Citations
- 967 F. Supp. 2d 563
Full opinion text
RULING ON MOTIONS OF DEFENDANT AND INTERVENORS TO DISMISS PLAINTIFF’S COMPLAINT
HAIGHT, JR., Senior District Judge:
In this action Plaintiff Michael Briscoe, an African-American firefighter employed by Defendant City of New Haven (“the City”), sues the City under Title VII of the CM Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff alleges that the City’s selection process for promotion to the rank of Lieutenant within the Fire Department had a discriminatory disparate impact upon black firefighters. Plaintiff’s Third Amended Complaint (“TAC”), the operative pleading, also asserts a pendent claim under municipal law.
The City and certain Intervenors, who are white firefighters employed by the City, move to dismiss Plaintiffs TAC on various grounds. Plaintiff resists both motions. This Ruling resolves them.
I.
In the year 2003, the New Haven Fire Department had vacancies in the ranks of Lieutenant and Captain. Many firefighters wished to be promoted. In November and December 2003, the Fire Department administered written and oral examinations for promotion to Lieutenant and Captain. The examinations were designed by I/O Solutions, an Illinois company specializing in entry-level and promotional examinations for public safety (police and fire) departments. Under the contract between the City and the firefighters’ union, the written examination result counted for 60% of an applicant’s total score and the oral exam for 40%. Those with a total score above 70% on the exam would pass.
The case at bar is concerned with promotion to Lieutenant. Seventy-seven applicants took the Lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. Thirty-four passed, of whom 25 were white, 6 black and 3 Hispanic. There were 8 vacancies, but because all of the top scorers were white, it appeared that no blacks or Hispanics would be promoted. Certified promotional lists remained valid for two years. Ricci v. DeStefano, 554 F.Supp.2d 142, 148 (D.Conn.2006).
The City was concerned about its potential liability for disparate impact if it certified the 2003 examination results and made promotions on the basis of them. The New Haven Civil Services Board held a hearing on the matter, at the conclusion of which the Board split evenly on the question of certifying each exam, with the result that the promotional lists were not certified. That led to the action by the white and Hispanic firefighters in Ricci, who had done well in the exams, and alleged that the City discriminated against them by refusing to certify the promotion lists generated by the exam results. Judge Arterton granted the City’s motion for summary judgment and dismissed the Ricci plaintiffs’ claim. 554 F.Supp.2d at 160-63. The Second Circuit affirmed in a per curiam opinion, 530 F.3d 87 (2d Cir.2008), reasoning that “because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.” The Supreme Court granted the Ricci plaintiffs’ petition for certiorari and reversed the Second Circuit. 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The Court held by a 5-4 majority that the City’s refusal to certify the exam results was in itself a violation of Title VII’s disparate-treatment prohibition, absent some valid defense, which the Court did not discern from the record. The Court concluded that the Ricci plaintiffs were entitled to summary judgment on their Title VII claim, and remanded the case. Its decision was dated June 29, 2009. Later in 2009, the City certified the exam results and made promotions. The Ricci plaintiffs settled their remaining claims before Judge Arterton.
Briscoe was not promoted, and brought this action against the City, on a disparate-impact theory. This Court dismissed the action on the ground that “What the [Supreme] Court held in Ricci and what it said in doing so squarely forecloses Briscoe’s claims.” 2010 WL 2794212, at *10 (D.Conn. July 12, 2010). The Second Circuit reversed, 654 F.3d 200 (2d Cir.2011). It held that “[a]fter a careful review of that [Ricci] decision and relevant non-party preclusion and Title VII case law, we conclude that Briscoe’s claim is neither precluded nor properly dismissed.” Id. at 209. This Court’s dismissal of Briscoe’s claim was vacated and the case remanded, with the Court of Appeals’ notation that “we express no view as to whether other issues raised below may warrant dismissal of the action, including relevant statutes of limitations, the doctrine of laches, or the unavailability of the requested relief because of Title VII’s anti-alteration provision (42 U.S.C. § 2000e-2(Z)).” 654 F.3d at 210.
The case was duly remanded to this Court. The Proposed Intervenors’ motion to intervene was granted, which turned them into Intervenors. These motions to dismiss followed.
II.
The City and the Intervenors each contend that Briscoe’s Title VII discrimination action against the City is barred by the passage of time. Their theories are different.
Intervenors rely upon the statutory time for filing a Title VII charge with the federal Equal Employment Opportunity Commission (“EEOC”). The charge-filing period is the functional equivalent of a statute of limitations. “The Court today holds that, for discrete discriminatory acts, § 2000e-5(e)(l) serves as a form of statute of limitations, barring recovery for actions that take place outside the charge-filing period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 123, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (O’Connor, J., concurring in part and dissenting in part).
Briscoe’s failure to assert his claim in a timely fashion, if demonstrated, bars that claim as a matter of law. The City relies instead upon the equitable doctrine of laches. Neither the City nor the Intervenors suggest that the other’s defensive theory is unsound. One cannot discern from the record a reason why the City prefers an equitable defense and the Intervenors a legal one. The contentions are not mutually exclusive. A Title VII claim may be barred by laches even if it was filed and sued upon within the proscribed statutory time limit.
I consider the Intervenors’ and the City’s theories of the case, in that order.
III.
A.
The Intervenors contend that the interaction of three cases compels the conclusion that Briscoe’s Title VII claim is time barred. Those three cases are Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Lewis v. City of Chicago, 560 U.S. 205, 130 S.Ct. 2191, 176 L.Ed.2d 967 (2010); and Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135 (2d Cir.2012).
In Morgan, the Supreme Court held, inter alia, that Title VII’s requirement that a plaintiff file a charge with the EEOC either 180 or 300 days after the alleged unlawful employment practice occurred “precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period.” 536 U.S. at 105, 122 S.Ct. 2061. In Lewis, 130 S.Ct. at 2197-99, the Supreme Court interpreted Title VII’s language “to mean that every ‘use’ of an employment practice that causes a disparate impact is a separate actionable violation of Title VII with its own 180- or 300-day statute-of-limitations clock.” I have quoted the Second Circuit’s paraphrase of Lewis in its opinion in Chin, 685 F.3d at 158; the Court of Appeals went on to say: “Accordingly, under Lewis and Morgan, each time the Port Authority failed to promote one of the plaintiffs, that plaintiff had 180 days to challenge the decision.” Id. Given that Supreme Court authority, the Second Circuit in Chin, reversing jury verdicts for certain plaintiffs and remanding the case for a new trial, ended its opinion with the terse instruction: “On remand, individual relief should be awarded only insofar as it corresponds to discriminatory failures to promote committed after August 2, 2000.” 685 F.3d at 163. August 2, 2000 was the decisive date because, as the Court of Appeals explained at 685 F.3d at 146: “Accordingly, because the EEOC charge in this case was filed on January 31, 2001, only an unlawful employment practice that ‘occurred’ after August 2, 2000, may give rise to liability.” (footnote omitted).
The Intervenors’ theory, as expressed by their counsel during oral argument, is that “Morgan, Lewis and, most recently, Chin, those three cases together I think unambiguously establish a hard and fast bright-line rule,” Tr. 98, which precludes Briscoe’s Title VII claim as untimely. It is useful to describe these three cases in greater detail. I will quote from them at some length, in order to decipher the courts’ holdings and reasoning for them.
In Morgan the sole plaintiff, Abner J. Morgan, was an African-American former employee of the defendant railroad company, Amtrak. On February 27, 1995, Morgan filed a charge of discrimination and retaliation against Amtrak with the EEOC, and cross-filed with the California agency. Morgan alleged in his EEOC charge that during the time period he worked for Amtrak he was “consistently harassed and disciplined more harshly than other employees on account of his race.” 536 U.S. at 105, 122 S.Ct. 2061. Such discrimination, Morgan alleged, “began when the company hired him in August 1990 as an electrician helper, rather than as an electrician. Subsequent alleged racially motivated discriminatory acts included a termination for refusing to follow orders, Amtrak’s refusal to allow him to participate in an apprenticeship program, numerous ‘written counselings’ for absenteeism, as well as the use of racial epithets against him by his managers.” 536 U.S. at 105 n. 1, 122 S.Ct. 2061.
The Court in Morgan summarized its holdings as follows:
We conclude that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period — 180 or 300 days — set forth in 42 U.S.C. § 2000e-5(e)(l). ■ A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Neither holding, however, precludes a court from applying equitable doctrines that may toll or limit the time period.
536 U.S. at 122, 122 S.Ct. 2061. In the case at bar, we are concerned only with the first of these two holdings. Briscoe’s claims against the City relate solely to discrete acts: the preparation of the promotion examination in 2003, and the City’s application of that examination’s results in 2009, which had the effect of denying Briscoe promotion to lieutenant.
As to that first point of decision, the Morgan Court said this:
Title 42 U.S.C. § 2000e-5(e)(l) is a charge filing provision that “specifies with precision” the prerequisites that a plaintiff must satisfy before filing suit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). An individual must file a charge within the statutory time period and serve notice upon the person against whom the charge is made. In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days. A claim is time barred if it is. not filed within these time limits.
For our purposes, the critical sentence of the charge filing provision is: “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” § 2000e-5(e)(l) (emphasis added). The operative terms are “shall,” “after ... occurred,” and “unlawful employment practice.” “[S]hall” makes the act of filing a charge within the specified time period mandatory.... The requirement, therefore, that the charge be filed “after” the practice “occurred” tells us that a litigant has up to 180 or 300 days after the unlawful practice happened to file a charge with the EEOC.
A discrete retaliatory or discriminatory act “occurred” on the day that it “happened.” A party, therefore, must file a charge within either 180 days or 300 days of the act or lose the ability to recover for it.... [Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. [Because] [e]ach discrete discriminatory act starts a new clock for filing charges alleging that act[,] [t]he charge ... must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred...... Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” Morgan can only file a charge to cover discrete acts that “occurred” within the appropriate time period.
536 U.S. at 109-110, 113-114, 122 S.Ct. 2061 (footnotes omitted).
In Lewis, the Court considered a written examination the City of Chicago administered in July 1995 to over 26,000 applicants seeking to serve in the Chicago Fire Department. After scoring the examination, the City reported the results and on January 26, 1996 issued a press release that it would begin hiring firefighters by drawing randomly from those who scored 89 or above out of 100, a group the City termed “well qualified.” Applicants scoring between 65 and 88 were notified that they had passed the examination and were regarded as “qualified,” but it was not likely they would be called for further processing. Those who scored below 65 were told they had failed the test, were characterized as “not qualified,” and would not be further considered.
On May 16, 1996, the City selected its first class of applicants. It selected a second class on October 1, 1996, and repeated the process nine more times over the next six years. By the last of these rounds the City had exhausted the pool of “well qualified” applicants,, and filled the remaining vacant firefighter slots with “qualified” candidates instead.
On March 31, 1997, an African-American applicant who scored in the “qualified” range and had not been hired filed a charge of discrimination with the EEOC. Five other similarly situated individuals followed suit. On July 28, 1998, the EEOC issued all six individuals right-to-sue letters. Two months later they filed a civil action against the City, alleging that the City’s practice of selecting for advancement only applicants who scored 89 or above on the July 1995 examination caused a disparate impact on African-Americans, in violation of Title VII.
In the district court, the City sought summary judgment on the ground that the plaintiffs had failed to file the EEOC charges within 300 days after their Title VII claims accrued, which the City contended occurred not later than January 26, 1996, the date of the City’s press release announcing its decision to sort firefighter applicants into the three categories of qualification based on their scores in the 1995 examination. The district court .rejected that contention, holding that the City’s “ongoing reliance” on the 1995 test results constituted a “continuing violation” of Title VII. As the case went forward in the district court, the City stipulated that the 89-point cutoff had a “severe disparate impact against African Americans,” but argued that the cutoff score was justified by business necessity. The district court rejected that defense after a bench trial, ruled in plaintiffs’ favor, and ordered various forms of remedial relief.
The City appealed and the Seventh Circuit reversed. Lewis v. City of Chicago, 528 F.3d 488 (7th Cir.2008). In'the Court of Appeals’ view, “the only discriminatory act” in the case was “sorting the scores into the ‘well-qualified,’ ‘qualified,’ and ‘not-qualified’ categories.” The plaintiffs’ action was time barred “because the earliest EEOC charge was filed more than 300 days after” that act. While the City made actual hiring decisions at later times, they were immaterial to the analysis because “[t]he hiring only of applicants classified ‘well-qualified’ was the automatic consequence of the test scores rather than the product of a fresh act of discrimination.” 528 F.3d at 491.
The Supreme Court granted certiorari. Justice Scalia began his opinion for a unanimous Court by recalling that Title VII “requires plaintiffs, before beginning a federal lawsuit, to file a timely charge of discrimination with the Equal Employment Opportunity Commission,” and then posed the question presented by the case:
We consider whether a plaintiff who does not file a timely charge challenging the adoption of a practice — here, an employer’s decision to exclude employment applicants who did not achieve a certain score on an, examination — may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice.
130 S.Ct. at 2195 (emphases in original). The Court answered that question in the affirmative, reversed the Seventh Circuit, and reinstated most of the plaintiffs’ claims.
The Lewis Court laid the foundation for its conclusion by defining the nature, the essence, of what the African American firefighter applicants were complaining about. On that score, the Court said:
In this case, petitioners’ charges were due within 300 days “after the alleged unlawful employment practice occurred.” .§ 2000e-5(e)(l). Determining whether a plaintiffs charge is timely thus requires identifying] precisely the “unlawful employment practice” of which he complains. Petitioners here challenge the City’s practice of picking only those who had scored 89 or above on the 1995 examination when it later chose applicants to advance. Setting aside the first round of selection in May 1996, which all agree is beyond the cut-off, no one disputes that the conduct petitioners challenge occurred within the charging period. The real question, then, is not whether a claim predicated on that conduct is timely, but whether the practice thus defined can be the basis for a disparate-impact claim at all.
130 S.Ct. at 2197 (internal citation and footnotes omitted). “We conclude that it can,” the Court declared, promptly answering its own question, and then proceeded to trace the jurisprudential and legislative development of a disparate-impact claim, ultimately arriving at 42 U.S.C. § 2000e-2(k), which the Lewis Court quoted in part:
(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity....
Justice Scalia’s opinion interprets and construes that part of Title VII in the following extended passage:
Thus, a plaintiff establishes a prima facie disparate-impact claim by showing that the employer “uses a particular employment practice that causes a disparate impact” on one of the prohibited bases. Ibid, (emphasis added). See Ricci v. DeStefano, 557 U.S. [557, 577-78], 129 S.Ct. 2658, 2672-2673, 174 L.Ed.2d 490 (2009).
Petitioners’ claim satisfies that requirement. Title VII does not define “employment practice,” but we think it clear that the term encompasses the conduct of which petitioners complain: the exclusion of passing applicants who scored below 89 (until the supply of scores 89 or above was exhausted) when selecting those who would advance. The City “use[d]” that practice in each round of selection. Although the City had adopted the eligibility list (embodying the score cutoffs) earlier and announced its intention to draw from that list, it made use of the practice of excluding those who scored 88 or below each time it filled a new class of firefighters. Petitioners alleged that this exclusion caused a disparate impact. Whether they adequately proved that is not before us. What matters is that their allegations, based on the City’s actual implementation of its policy, stated a cognizable claim.
... Aside from the first round of selection in May 1996 (which all agree is beyond the 300-day charging period), the acts petitioners challenge — the City’s use of its cutoff scores in selecting candidates — occurred within the charging period. Accordingly, no one disputes that if petitioners could bring new claims based on those acts, their claims were timely. The issue, in other words, is not when petitioners’ claims accrued, but whether they could accrue at all.
130 S.Ct. at 2197-2198 (emphases in original). This discussion makes it clear that a discrimination claim arising out of a selection round occurring beyond the charge-filing time could not “accrue at all” because it would be untimely.
What stands out in the Court’s discussion is the dominant theme, the leitmotiv, sounded by the word “use”: as verb or noun. The word first appears in Title VII itself: “the respondent uses a particular practice that causes a disparate impact.” The quoted portion of the Lewis opinion contains variations on that theme: “the City ‘use[d]’ that practice in each round of selection”; “it made use of the practice of excluding those who scored 88 or below”; “the City’s use of its cutoff score in selecting candidates.” I have added the emphases, but they are not needed to make the point. The Supreme Court’s fastening upon the application of scoring-based hiring exclusions as the prohibited discriminatory use, rather than the adoption of that practice, explains the Court’s rejection of the City’s and Seventh Circuit’s notion that “the only actionable discrimination” occurred in 1996, when the City “used the examination results to create the hiring list, limited hiring to the ‘well qualified’ classification, and notified petitioners,” so that subsequent to that moment in time “no new violations could have occurred.” 130 S.Ct. at 2198. The Court rejected that perception for this reason:
The City’s premise is sound, but its conclusion does not follow. It may be true that the City’s January 1996 decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a free-standing disparate-impact claim. Cf. Connecticut v. Teal, 457 U.S. 440, 445-451, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). If that is so, the City is correct that since no timely charge was filed attacking it, the City is now “entitled to treat that past act as lawful.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). But it does not follow that no new violation occurred— and no new claims could arise — when the City implemented that decision down the road. If petitioners could prove that the City “use[d]” the “practice” that “causes a disparate impact,” they could prevail.
After the Supreme Court handed down its decisions in Morgan and Lewis, the Second Circuit decided the third case upon which Intervenors rely: Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135 (2012). Plaintiffs in Chin were eleven Asian American present or former police officers employed by the Port Authority. They sued the Port Authority under Title VII, alleging that they were passed over for promotions because of their race. The plaintiffs asserted three theories of discrimination: individual disparate treatment, pattern-or-practice disparate treatment, and disparate impact. After trial, a jury found for seven plaintiffs under all three theories and awarded back pay and compensatory damages; the district judge awarded various forms of equitable relief to certain of the prevailing plaintiffs. The Port Authority appealed on a number of grounds and issues; for purposes of the case at bar, I am concerned only with the Second Circuit’s holdings on the disparate impact aspect of Chin.
In that regard, the Second Circuit held that the district court erred in “concluding that the ‘continuing violation’ doctrine applied to the plaintiffs’ disparate impact theory so that the jury could award back pay and compensatory damages for harms predating the onset of the statute of limitations.” 685 F.3d at 141. The Court of Appeals fixed the limitations period in the case by stating: “Accordingly, because the EEOC charge in this case was filed on January 31, 2001, only an unlawful employment practice that ‘occurred’ after August 2, 2000, may give rise to liability.” Id. at 146 (footnote omitted). Chin cites Morgan for the proposition that “an employer’s failure to promote is by its very nature a discrete act,” and goes on to hold:
Accordingly, under Morgan, every failure to promote is a discrete act that potentially gives rise to a freestanding Title VII claim with its own filing deadline.
Discrete acts of this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period.
In Chin, the Second Circuit held that the timeliness of a Title VII failure-to-promote discrimination depended solely and entirely upon the statutory limitations protocol. The Court of Appeals reached that conclusion because it read Morgan and Lewis to mandate it. The Chin court said:
To prevail on a disparate impact claim, a plaintiff must “demonstrate[ ] that a respondent uses a particular employment practice that causes a disparate impact.” 42 U.S.C. § 2000e-2(k)(l)(A)(i) (emphasis added). In Lewis v. City of Chicago, [560] U.S. [205], 130 S.Ct. 2191, 2197-99, 176 L.Ed.2d 967 (2010), the Supreme Court interpreted this language to mean that every “use” of an employment practice that causes a disparate impact is a separate actionable violation of Title VII with its own 180- or 300-day statute-of-limitations clock. See id. at 2197-99. Accordingly, under Lewis and Morgan, each time the Port Authority failed to promote one of the plaintiffs, that plaintiff had 180 days to challenge the decision.
In an attempt to distinguish Morgan, the plaintiffs argue that they “challenge the process by which the Port Authority made promotion decisions, rather than any specific promotion decision.” Appellees’ Br. at 29. But this argument hurts rather than helps them. In Lewis, the Supreme Court considered the case of an allegedly discriminatory examination used by the City of Chicago to make hiring decisions. The examination’s scores and the City’s plan to hire based on certain cutoff scores were announced outside the limitations period, but the actual hiring occurred within the limitations period. See Lewis, 130 S.Ct. at 2195-96. The Supreme Court explained that although “[i]t may be true that the City’s ... decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparate-impact claim[,] [i]f that is so, the City is correct that since no timely charge was filed attacking it, the City is now entitled to treat that act as lawful.” Id. at 2198-99 (citation and internal quotation marks omitted). If the process by which the Port Authority promoted police officers from its eligibility lists did not materially change within the limitations period, as the plaintiffs claim, then the Port Authority is entitled to treat the process as lawful. See id. at 2199. The process itself therefore cannot be challenged; rather, only specific failures to promote that occurred within the limitation period are actionable.
In case any of its readers had not yet gotten the message, the Second Circuit ended its opinion in Chin with these terse instructions:
We remand all of these remedies issues to the district court for a new trial solely on damages and for the reconsideration of equitable relief. On remand, individual relief should be awarded only insofar as it corresponds to discriminatory failures to promote committed after August 2, 2000.
685 F.3d at 163 (emphasis added). As previously noted, August 2, 2000 was the beginning of the statutory limitations period: 180 days before the filing of the first EEOC charge on January 31, 2001.
These three cases — Morgan, Lewis and Chin — declare the law binding upon this Court with respect to the timeliness of Plaintiff Briscoe’s Title VII claim against the City of New Haven. It is now necessary to examine the time line of events relevant to Briscoe’s claim.
B.
The time line of events relevant to Briscoe’s claim begins with this case’s Book of Genesis: the examinations which during the year 2003 the City administered to determine eligibility for promotion to the positions of lieutenant and captain in the New Haven Fire Department.
In November and December, 2003, candidates took the examinations for promotion. Plaintiff Michael Briscoe was one of them. Seventy-seven candidates completed the lieutenant examination: 43 Caucasians, 19 African-Americans, and 15 Hispanics. Of those, 34 candidates passed: 25 whites, 6 blacks, and 3 Hispanics. When Briscoe’s overall score was completed, he ranked 24th among the 77 candidates for promotion to the position of lieutenant. Eight lieutenant positions were vacant at the time of the examination. By reason of a City Charter provision that the hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list, the top 10 candidates were eligible for immediate promotion to lieutenant. All 10 were white. Similarly, as a result of the test scores, no African-American candidates were eligible for promotion to captain.
On March 18, 2004, the Civil Service Board of the City, which was required to certify the results of the examinations, voted not to certify them. City officials had asked the Board to hold public hearings on whether to certify, because those officials were concerned that promotions based on the examination results would violate Title VII by causing a disparate impact on African-American candidates. During the public debate before the Civil Service Board, which the Supreme Court characterized as “rancorous,” 129 S.Ct. at 2664, some firefighters argued that the tests should be discarded because the results showed them to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters defended the examination as neutral and fair, and in turn threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the event, the City took the side of those who protested the test results, and with the complaisant vote of the Civil Service Board, threw out the examinations.
On July 8, 2004, one Hispanic and 19 Caucasian candidates, all of whom had high marks on the examinations, filed suit in this Court against the City and some of its officials. The first-named plaintiff, Frank Ricci, by reason of that fortuity gained what passes in some circles for immortality: lawyers and judges now speak of “the Ricci plaintiffs.” The Ricci plaintiffs alleged that, by discarding the test results, the City and its officials discriminated against the plaintiffs based on their race, in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters seeking promotion. The case was assigned to District Judge Arterton.
On September 28, 2006, Judge Arterton filed an opinion which granted the defendants’ motion for summary judgment, denied the Ricci plaintiffs’ cross-motion for summary judgment, and directed the Clerk of Court to close the case. 554 F.Supp.2d 142. The Second Circuit affirmed in a brief per curiam opinion. 580 F.3d 87. The Supreme Court granted certiorari.
On June 29, 2009, the Supreme Court filed its opinion, which held that the Ricci plaintiffs “are entitled to summary judgment on their Title VII claim, ... [t]he judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.” 129 S.Ct. at 2681. The Second Circuit, having been reversed, issued its mandate to this Court, where it again came to rest in the chambers of Judge Arterton, who reopened the case for the principal purpose of determining appropriate remedies for the now-successful Ricci plaintiffs.
On October 2, 2009 or October 5, 2009, Briscoe filed a sworn Charge of Discrimination form with the Waterbury office of the State of Connecticut Commission on Human Rights and Opportunities (“CHRO”) [Doc. 237-2]. By checking the appropriate box, Briscoe indicated that the “cause of discrimination” was “based on Race,” and that it was “continuing.” On the page of the form directing the complainant to provide “particulars” for “each specific allegation,” Briscoe wrote:
The City of New Haven is about to certify a promotional employment list for the position of fire lieutenant. My position on the list (24) is much lower than it should be. The reason is a selection process that discriminates against African American candidates, in violation of Title VII of the Civil Rights Act of 1964, as amended. The promotional examination was not job related and had a disparate impact and the system for weighting the two components of the test, oral and written, was not job related and had a disparate impact.
On October 9, 2009, the CHRO sent a letter bearing that date to David N. Rosen, Esq., counsel for Briscoe, who presumably participated in Briscoe’s delivery of his October 2 Charge of Discrimination to the agency. The letter [Doc. 237-3] reads in its entirety:
Dear Attorney Rosen:
I am returning the affidavit and additional paperwork you sent to our office on the on behalf of [sic] the above named individual.
We are unable to accept the affidavit since no the [sic] event alleged, denial of promotion, has not yet occurred. The allegations made in the affidavit were discussed with the Regional Manager, Pekah Wallace, before this determination was made.
If you would like to discuss this matter further, feel free to contact.
The letter was signed by Kathleen Bowden Garassino, identified as an “Investigator.”
Also under date of October 2, 2009, Briscoe filed an Intake Questionnaire with the EEOC, whose Boston Area Office stamped the document as received on October 5 [Doc. 237-4]. Submitting this questionnaire is the manner in which an individual files a discrimination claim with the EEOC. Question 5 asks the individual: “What happened to you that you believe was discriminatory? Include the date(s) of harm, action(s) and include the name(s) and title(s) of the persons who you believe discriminated against you.” A claimant’s response to that overall question is structured by a series of sub-questions, captioned “Date,” “Action” and “Name and title of Person(s) Responsible.” Briscoe responded to those inquiries by stating, respectively: “Continuing,” “Not promoted,” and “City” (a reference, other parts of the document make clear, to the City of New Haven).
It is common ground that shortly after Briscoe filed his EEOC claim, his counsel asked the United States Department of Justice to issue a right to sue letter. The Department complied, and sent a right to sue letter dated October 27, 2009 [Doc. 237-5] to Briscoe in counsel’s care, signed on behalf of the Assistant Attorney General in charge of the Civil Rights Division. The letter recites in what appears to be boilerplate language that the EEOC “has determined that it will not be able to investigate and conciliate that charge within 180 days of the date the Commission assumed jurisdiction over the charge,” and goes on to say that “because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended” against “the above-named respondent,” namely the City of New Haven. The letter concludes with the standard bureaucratic disclaimer: “This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.”
On October 15, 2009, Briscoe filed his initial complaint in this action [Doc. 1]. The complaint focused upon and criticized the 2003 New Haven fire lieutenant examination. Specifically, the complaint alleged that the City’s choosing “to weight the written test 60 percent and the oral exam 40 percent ... had a disparate impact on African-American candidates; and it will prevent the plaintiff from being promoted to the rank of lieutenant, even though he is one of the most highly qualified candidates.” ¶ 1. This conduct on the part of the City is alleged to have violated Title VII.
On November 24, 2009, in the Ricci case pending before her, Judge Arterton issued an Order directing that Judgment be entered for the plaintiffs on their disparate-treatment claim under Title VII; that the New Haven Civil Service Board certify the results of the 2003 examinations and certify the promotion lists for each position derived from the examination results; and that the City immediately promote eight named firefighters to the rank of Lieutenant. Briscoe was not one of these. Following remand to the District Court, the litigants, thus refi-eshed, renewed brisk adversarial exchanges, and at one point Judge Arterton contemplated deferring final judgments until the quantum of each claim had been tried on its merits. However, it was represented to the Court that there was an urgent need to fill the vacancies for fire lieutenants and captains, a need which the November 24, 2009 Order and Judgment addressed.
What happened next does not seem to be in dispute. According to the City’s brief [Doc. 224-1] at 5, “[t]he City’s Charter dictates that the eligible [promotion] lists are to be effective for a period of up to two years. Accordingly, had the eligible lists been certified in the ordinary course, the lists would have been effective from March 18, 2004 through March 18, 2006.” During that two-year period, there was an increased total of 16 vacancies for the position of lieutenant. In obedience to Judge Arterton’s November 24, 2009 Order and Judgment, the City, acting through the New Haven Board of Fire Commissioners, promoted to lieutenant the 16 candidates with the highest overall scores on the 2003 examination. On December 1, 2009, the City promoted 8 candidates, and in a second round of selection several days later promoted another 8 candidates to lieutenant, thus filling all 16 then-existing vacancies. Briscoe was not among the promoted candidates because his overall score on the examination was not high enough. The City, with no further use for 2003 exam results and promotion lists, whose effective dates had expired in any event, discarded them.
Following these promotions to lieutenant, which were based upon the 2003 examination scores and excluded him, Briscoe has not filed a Title VII discrimination claim with either the CHRO or the EEOC. He continues to press this action, having most recently obtained leave of Court to file a Third Amended Complaint, which adds to the federal claim a pendent claim alleging violations of the New Haven City Charter and Civil Service Rules.
C.
It clearly emerges from the statute and the cited cases that a Title VII discrimination claim accrues and becomes actionable when a respondent employer “uses a particular employment practice that causes a disparate impact on the basis of race” or other proscribed bases, and that practice is not job related and consistent with business necessity. I have quoted the statute, but all these cases speak in the same tongues and terms. In Consequence, if an individual is discriminated against by an employer’s use of an employment practice (such as an examination) with adverse effect upon the individual (such as denial of employment or promotion), and that use occurred within the proscribed period before the EEOC charge is filed (180 days or 300 days, as the case may be), then a subsequent Title VII action in the district court will be timely. Conversely, if the employer’s use of the practice occurred outside the charging period, any subsequent legal action would be time barred.
In the case at bar, Michael Briscoe aspired to fill one of the then existing vacancies for the position and rank of lieutenant in the New Haven Fire Department. Those vacancies remained unfilled' until shortly after November 24, 2009, the date of Judge Arterton’s Order and Judgment in the Ricci case directing the City to certify the promotion list and fill the vacancies. The 16 lieutenant vacancies were filled by promotions announced in November and December 2009. Whatever qualms or misgivings Briscoe might have felt about his personal prospects as the result of earlier administrative or litigation developments, not until those moments in. November and December of 2009 did the use of the examination test results Briscoe challenges as discriminatory subject him to the bitter disappointment of denial of promotion. The City continues to press its contention that for Title VII purposes, it did not “use” the 2003 exam results as the basis for promotion, because the Supreme Court told it to do so. I reject that contention: use is use, whether as joyful choice or in sullen compliance. However, the question is irrelevant to that of whether Briscoe’s lawsuit is timely under the statutory scheme.
The case for the Intervenors is simple enough: in their perception, Briscoe’s claim au fond is that the City’s refusal to promote him was tainted by racial discrimination. That denial of promotion did not occur until the first week in December, 2009. Briscoe had 300 days from that occurrence to file a discrimination claim with the EEOC. That time limitation is imposed by section 706 of Title VII, 42 U.S.C. § 2000e-5(e)(l), which provides that with respect to a claim initially presented to a State agency such as the CHRO, a charge “shall be filed” with the EEOC “by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred ...” (emphases added). Since Briscoe has never filed an EEOC charge after the promotions were made, the present suit is time barred.
To avoid time bar, Briscoe must perforce rely upon the only administrative claims he did file. There are two of them. The first is the CHRO form Briscoe signed on October 2, 2009, which that State agency received on October 5. The second is the claim Briscoe filed simultaneously with the EEOC, a practice that the regulatory scheme allows. In the form Briscoe filed with the CHRO, he checked a box which said: “I also want this charge filed with the EEOC.” It is necessary to consider the nature and disposition of these claims.
The language of Title VII and the cases interpreting it show that to be viable, an individual’s charge of discrimination must identify the employment practice alleged to be discriminatory. Briscoe’s briefs and counsel’s oral submissions purport to identify two employment practices on’ the part of the City whose disparate impact harmed Briscoe.
First, Briscoe’s brief [Doc. 239-1] contends at 8-9 that “New Haven’s decision to certify the list and make promotions from it, in compliance with the Supreme Court’s Ricci ruling, constituted an employment practice within the meaning of Title VII.... Here the decision occurred when New Haven decided to certify the lists as early as June 29, 2009, and in any event before October 5, 2009.” June 29, 2009 is the date of the Supreme Court’s Ricci decision; which conveyed to the City the unwelcome news that it could not discard the results of the 2009 examinations. While the City’s decision to certify the lists and base promotions on them necessarily occurred on June 29 or some later date, June 29 itself is less than 300 days before Briscoe’s October 5 charge-filing date with the CHRO. If one accepts the characterization of this decision by the City as a discriminatory employment practice, it follows, as Briscoe contends, that his filing of a charge on October 5, 2009 was timely under Title VII.
As a second, additional or alternative theory, Briscoe appears to contend in a footnote that “the City’s November 30 [2009] certification and its December promotions also constituted uses of an employment practice, within 300 days of which a plaintiff could file an EEOC charge, even though the decision to make promotions was the original trigger.” Brief, Doc. 239-1, at 9 n. 4 (emphasis added). In support of that concept of timeliness, Briscoe argues that since, in contrast to a disparate treatment claim, a disparate impact claim requires no showing of an employer’s intent to discriminate, “any discrete act or use of an employment practice starts its own 300-day limitations period, whether that employment practice is an inevitable decision to certify exam results or the inevitable effects of that decision, such as promotions from a previously certified list.” Id. That concept does not operate to render Briscoe’s administrative filings timely ex proprio vigore, since Briscoe has not filed any administrative claim after “the City’s November 30 [2009] certification and its December promotions” started the 300-day clock running. Briscoe’s argument must be that the City’s discrete acts in November and December of 2009 have a salutary effect upon the meaning, effect and timeliness of administrative claims Briscoe filed during the preceding October.
Briscoe’s principal contention on timeliness turns upon the October 5, 2009 CHRO and EEOC filings. That reliance is problematic because the State agency did not regard Briscoe’s submission as stating an appropriate or viable claim for discrimination. Instead, the CHRO mailed the form back to Briscoe’s counsel, with this explanation: “We are unable to accept the affidavit since no the [sic] event alleged, denial of promotion, has not yet occurred.” Doc. 237-3.- The agency’s communication must be graded F for grammar, but A for clarity. The CHRO is unmistakably expressing its view that until the discrete act of a denial of promotion actually occurred, Briscoe did not have a claim for discrimination sufficient to fall within Title VII or the agency’s competence to even receive Briscoe’s affidavit, let alone act upon it. Briscoe’s complaint to the CHRO began with, and is encapsulated by, these first two sentences: “The City of New Haven is about to certify a promotional employment list for the position of fire lieutenant. My position on the list (24) is much lower than it should be.” The CHRO responded, in substance: “Not our business yet. If later on you are denied promotion, and you think it was discriminatory, file a form and we’ll consider the claim.” Counsel for the parties are now devoting their very considerable skills, and the Court is expending such resources as it has, upon the question of time bar because Briscoe, having been denied promotion never filed a further CHRO/EEOC charge.
In short, the CHRO' regarded Briscoe’s October 2, 2009 submission as a nullity, and sent it back to him. The briefs for Briscoe on this motion do not argue explicitly that in doing so, the CHRO acted improvidently or in derogation of its responsibilities. But it seems to me that Briscoe must take that position, even if implicitly, notwithstanding the deference which courts customarily extend to the decisions and practices of a specialized agency such as the CHRO. To state the proposition differently, this Court has to decide whether Briscoe’s October 2, 2009 filing with the CHRO, describing the City’s selection process for promotions to be made in the future, gave rise to a then-existing freestanding disparate-impact claim, which the CHRO wrongfully returned rather than retained.
Counsel for Briscoe seems to discern support and comfort on this point in the reaction of the federal EEOC and Department of Justice to the claim Briscoe filed with the EEOC simultaneously with his CHRO filing. As noted in footnote 10, supra, counsel said during oral argument on the motion: “The Department of Justice, unlike the state agency, did not say, We had filed it too soon.” (emphasis added). If counsel’s quoted distinction is intended to suggest that the “state agency” acted improperly in its response to Briscoe, and the Department of Justice, in contrast, arrived at a reasoned decision on the viability of an October 2 pre-promotion denial discrimination claim, the vessel is too frail to transport the intended cargo. The Department’s right-to-sue letter, dated October 27, 2009, recites that Briscoe’s counsel requested the letter shortly after the claim was filed, with no time or opportunity for the federal agency to do anything except accede to Briscoe’s request, produce a right-to-sue letter from' its word processor, and send it off. Briscoe’s relations and objectives with the federal agencies related solely to form. No substance can fairly be derived from Briscoe’s abbreviated stop at the federal way-station.
Reverting to Briscoe’s CHRO filing, there is scant recent authority on the question of whether it presented a cognizable claim under Title VII. Briscoe’s affidavit to the CHRO anticipated that the City “is about to certify” a promotional list which was the product of “a selection process” and a “promotional examination” that Briscoe asserted to be discriminatory. Once promotions were actually made, and Briscoe was denied promotion, a discrete adverse employment decision occurred which was actionable under Title VII if not time barred. That is the core holding of Morgan, Lewis and Chin.
But does the City’s earlier and preliminary determination (coerced as it may have been by Ricci) to certify the lists and make promotions based upon the 2003 examination results give rise to a viable Title VII claim? The Supreme Court came close to answering that question in Lewis. Notably, in Lewis the City of Chicago, defending against a Title VII claim on behalf of unsuccessful fire department applicants, argued that the only actionable discrimination occurred when the City used examination results to create hiring eligibility lists and that, “because no timely charge challenged the decision, that cannot now be the basis for liability.” 130 S.Ct. at 2198. The Court accepted the City’s premise that “the exclusion of petitioners when selecting classes of firefighters followed inevitably from the earlier decision to adopt the cut-off score,” but rejected the City’s conclusion that “no new violation occurred — and no new claims could arise— when the City implemented that decision down the road.” Id. at 2199. During its discussion, the Court said:
It may be true that the City’s January 1996 decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparate-impact claim. Cf. Connecticut v. Teal, 457 U.S. 440, 445-451, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982).
While the phrase “it may be true” has about it the ring of dicta rather than a holding, the case the Court cited for the quoted proposition, Connecticut v. Teal, is instructive. Teal involved a selection process for promotion to permanent status as supervisor in a state agency. The process “required, as the first step, a passing score on a written examination.” 457 U.S. at 443, 102 S.Ct. 2525. The plaintiffs, four black employees of the agency, “were among the blacks who failed the examination, and they were thus excluded from further consideration for permanent supervisory positions.” Id. at 443-444, 102 S.Ct. 2525. Plaintiffs’ complaint alleged that the state employer “violated Title VII by imposing, as an absolute condition for consideration for promotion, that applicants pass a written test that excluded blacks in disproportionate numbers and that was not job related.” Id. at 444, 102 S.Ct. 2525.
The Court held in Teal that the employer’s “affirmative-action program in order to ensure a significant number of minority supervisors,” by means of a promotional process with the “bottom-line” result of an appropriate racial balance, did not preclude plaintiffs from establishing a . prima facie case of disparate impact discrimination, nor did it provide the employer with a defense to such a case. 457 U.S. at 442, 102 S.Ct. 2525. While that specific holding is not applicable to the case at bar, the Teal Court’s analysis of the nature of the plaintiffs’ Title VII disparate-impact claim is instructive:
Title VII proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.... The statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities ....
[Plaintiffs’] claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under § 703(a)(2), despite their employer’s nondiscriminatory “bottom line,” and that “bottom line” is no defense to this prima facie case under § 703(h).'
Id. at 446, 448, 452, 102 S.Ct. 2525 (citations, internal quotation marks, and footnotes omitted).
In Teal, the Court concluded that an employer’s promotion selection process, keyed to an examination with disparate impact effect, gave rise to a prima facie Title VII claim. In Lewis, the Court cited Teal as a basis for suggesting that the City of Chicago’s “January 1966 decision to adopt the cutoff score (and to create a list of the applicants above it)” might give rise “to a freestanding disparate-impact claim.” 130 S.Ct. at 2199. In Chin, the Second Circuit cited Lewis for the proposition that “[i]f the process by which the Port Authority promoted police officers from its eligibility lists did not materially change, within the limitations period, as the plaintiffs claim, then the Port Authority is entitled to treat the process as lawful.” 685 F.3d at 158.
These three cases hold {Teal) or suggest {Lewis and Chin) that a promotion process with a demonstrable disparate-impact effect may give rise to a Title VII claim before the process is implemented to deny promotion or hiring to a particular individual. In the case at bar, that appears to be the sort of Title VII claim Briscoe asserted in his filing with the CHRO. Briscoe complained of “a selection process that discriminates against African American candidates, in violation of Title VII,” because “the promotional examination was not job related and had a disparate impact.” I am unable to discern any basis for distinguishing Briscoe’s claim from the claims of the Teal plaintiffs that the Supreme Court held stated a prima facie Title VII case; and the Court cited Teal in Lewis to suggest that if an African-American firefighter applicant had complained at the time of Chicago’s decision to adopt the promotion process in question, he would have stated “a freestanding disparate-impact claim.” In point of fact, no plaintiff in either Lewis or Chin challenged the selection processes when the employers decided upon them; but Briscoe has done so.
While I owe a certain deference to the CHRO’s decision to reject Briscoe’s Title VII claim as premature, I am not bound by the agency’s action. The holdings and reasoning of the cited cases lead me to conclude that Briscoe’s October 5, 2009 filing with the CHRO stated a viable claim of a Title VII violation on the part of the City of New Haven. That charge was timely filed, because the City’s decision to use the examination results and certify the resulting promotion lists could not have occurred earlier than June 29, 2009, the date of the Supreme Court’s decision in Ricci Subsequently, Briscoe obtained a right-to-sue-letter from the Department of Justice and filed this action. The Intervenors’ motion to dismiss Briscoe’s complaint on the ground that it is time barred will be denied.
IV.
The City does not press a statute of limitations ground for dismissal, although it does not oppose the Intervenors’ doing so. Rather, the City relies upon the equitable principle of laches.
Briscoe responds that laches is not applicable in any case where a plaintiff has sued within the relevant limitations period. For the reasons stated in Part III.C., Briscoe filed a Title VII charge and commenced an action upon it within the statutory limitations period. But his premise is wrong. Laches is still available as a defense to the City, if the facts sustain it.
In Morgan the Supreme Court, after holding that with respect to “each discrete discriminatory act” an administrative charge “must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred,” went on to say:
As we have held, however, this time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. We hold that a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly. Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.
536 U.S. at 113-114, 122 S.Ct. 2061 (citations and internal quotation marks omitted). Later in the opinion, the Court said that nothing in its statute of limitations holding “precludes a court from applying equitable doctrines that may toll or limit the time period.” Id. at 122, 122 S.Ct. 2061 (emphasis added).
Briscoe’s brief seeks to confine this language from Morgan to circumstances present in that case but not in the case at bar. The effort does not persuade. Whatever the circumstances of a case may be, the elements of laches remain the same: delay by a plaintiff, resulting in prejudice to a defendant. Within the context of a statute of limitations, Judge Friendly articulated the appropriate formula in Larios v. Victory Carriers, Inc., 316 F.2d 63 (2d Cir.1963):
[I]n deciding whether maritime claims are barred by laches, courts of admiralty will use local limitation statutes as a rule-of-thumb ... This seems to put it right. When the suit has been brought after the expiration of the state limitation period, a court applying maritime law asks why the case should be allowed to proceed; when the suit, although perhaps long delayed, has nevertheless been brought within the state limitation period, the court asks why it should not be.
316 F.2d at 66 (internal quotations and citation omitted). Larios fell within admiralty jurisdiction, traditionally governed by equitable principles. Judge Friendly’s formula, which asks in essence what is fair in the case, extends naturally to non-maritime cases, and I apply it in the case of Briscoe’s discrimination claim against the City.
Briscoe’s brief argues that a later Second Circuit case, United States v. Milstein, 401 F.3d 53 (2005), stands for the general proposition that laches is not available where an applicable statute of limitations has n