Full opinion text
ORDER After disposition of this appeal by summary order dated February 15, 2008, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll on whether to rehear the case in banc was conducted among the active judges of the Court. After the poll was concluded, on June 9, 2008, the original three-judge panel withdrew the summary order and filed a per curiam opinion; no subsequent in banc poll has been requested. Because a majority of the court’s active judges voted to deny rehearing in banc, rehearing in banc is hereby DENIED. Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, and B.D. Parker concur in the denial of rehearing in banc. Chief Judge Jacobs and Judges Cabranes, Raggi, Wesley, Hall and Livingston dissent from the denial of rehearing in banc. With this order, Judge Calabresi is filing a concurring opinion; Judge Katzmann is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack, Sotomayor and B.D. Parker join; Judge B.D. Parker is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack and Soto-mayor join; Chief Judge Jacobs is filing a dissenting opinion; and Judge Cabranes is filing a dissenting opinion, in which Chief Judge Jacobs and Judges Raggi, Wesley, Hall and Livingston join.
GUIDO CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc: I join entirely Judge Parker’s opinion concurring in the denial of a rehearing en banc. I also join fully Judge Katzmann’s opinion because, as he points out, going en banc is unnecessary as all that is involved in this case has already been described in the filed opinions. I write today to emphasize one reason that, I believe, makes it particularly inappropriate for us to exercise our purely discretionary power to review this case en banc. The question of whether a municipality incurs liability when, motivated only by a desire to comply with federal anti-discrimination law, it takes race-neutral actions that have racially significant consequences, is undoubtedly an interesting one. To reach that question one must, however, first examine whether the municipality’s proffered desire to comply with federal law is in good faith and not a pretext. After that, we must ask whether that asserted desire, although in good faith, is not also in part motivated by other, racial, considerations. In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did. The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives. And that is why Judge Cabranes, in his dissent from the denial of en banc review, suggests that, since the plaintiffs alleged that their race motivated the defendants’ decision, the district court should have undertaken such a mixed motive analysis. He contends, that is, that the courts should have examined the situation as one in which a legitimate motive may have combined with an improper motive to bring about the challenged action. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). He would be precisely right ... except for the fact that that type of analysis is not available to us in this case. It is not available for the most traditional of legal reasons. The parties did not present a mixed motive argument to the district court or to the panel. It is the unavailability of mixed motive analysis that makes this case an especially undesirable one for elective review. The interesting issue the case might present— concerning the obligations of a municipality seeking only to comply with the relevant federal anti-discrimination law — is, in the circumstances before us, clouded by the allegations that something more is going on. Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue. Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided — and rehearing en banc is always a matter of choice, not necessity — it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this ease. For this reason too, I concur in the denial of rehearing en banc. . For an exceptionally thoughtful and thorough discussion of this area, see Richard A. Primus, Equal Protection and Disparate Impact: Round 3, 117 Harv. L. Rev. 494 (2003). . It is unavailable, that is, unless we reach out and consider a legal theory that the parties have eschewed. Sometimes — for example, in matters of life and death — such a reaching out may be appropriate. But generally, and specifically in this case, it is not.
ROBERT A. KATZMANN, Circuit Judge, with whom Judge POOLER, Judge SACK, Judge SOTOMAYOR, and Judge B.D. PARKER join, concurring in the denial of rehearing en banc: I concur in the denial of rehearing en banc, consistent with our Circuit’s longstanding tradition of general deference to panel adjudication — a tradition which holds whether or not the judges of the Court agree with the panel’s disposition of the matter before it. Throughout our history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances. See Wilfred Feinberg, Unique Customs and Practices of The Second Circuit, 14 Hofstra L.Rev. 297, 311-12 (1986). The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues. As the Supreme Court decides whether to grant certiorari, it has for its review the district court’s opinion, the panel’s per curiam opinion, and opinions concurring with and dissenting from the decision denying rehearing en banc. The issues are therefore sharply defined for the Supreme Court’s consideration of whether to grant certiorari.
BARRINGTON D. PARKER, Circuit Judge, with whom Judge CALABRESI, Judge POOLER, Judge SACK, and Judge SOTOMAYOR join, concurring in the denial of rehearing en banc: At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions — among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir.1999) and Bushey v. N.Y. State Civil Serv. Comm’n, 733 F.2d 220 (2d Cir.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability. Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates — and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test — the City’s response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent’s citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), are therefore inapposite. See Hayden, 180 F.3d at 49 (distinguishing those cases as “concerned with select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts.”). Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir.2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 (“It is settled that voluntary compliance is a preferred means of achieving Title VII’s goal of eliminating employment discrimination.” (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 (“A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates.”). I think the dissent also quite unfairly caricatures the district court’s evaluation of the plaintiffs’ Title VII claim: “Under the District Court’s rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is itself immune from scrutiny under Title VII.” This is simply not the case. Prior to reaching its conclusion, the district court assessed whether the examination results demonstrated a statistically disproportionate adverse racial impact under the EEOC Guidelines and whether the City had presented evidence to support its belief that less discriminatory alternatives to this particular test existed. This analysis shows that, contrary to the dissent’s suggestion, the district court did not rubber stamp the City’s proffered non-discriminatory reason for not certifying the exam results. Moreover, I hardly think that in order to decline to certify the exam results, the City was required to prove, through a validation study or some other means, that its own tests were not “job related for the position in question and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(l)(A)(i) (defining affirmative defense to prima facie case of disparate impact violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226 (disagreeing with the assertion that “before adopting remedial measures” the employer must “prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable through job-related explanations”). I also disagree with the dissent’s view that en banc review is warranted because the district court analyzed the plaintiffs claims using the McDonnell Douglas pretext test rather than the Price Waterhouse mixed-motive test. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As the dissent is well aware, the plaintiffs did not argue the mixed-motive theory; a non-party raised it in an amicus brief. “Although an amicus brief can be helpful in elaborating issues properly presented by the parties, it is normally not a method for injecting new issues into an appeal, at least in cases where the parties are competently represented by counsel.” Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir.2001); see also Bano v. Union Carbide Corp., 273 F.3d 120, 127 n. 5 (2d Cir.2001) (same). Finally, the dissent suggests that the panel’s per curiam opinion inappropriately adopted the reasoning set forth in the district court’s opinion, one that the panel recognized was “thorough, thoughtful, and well-reasoned.” The adherence of a Court of Appeals to the decision and reasoning of a district court is anything but novel. In fact, the practice pre-dates the formal establishment of this Court in 1891 by at least fifty years. United States v. Libellants & Claimants of the Schooner Amistad, 40 U.S. 518, 590, 15 Pet. 518, 10 L.Ed. 826 (1841) (“The Circuit Court, by a mere pro forma decree, affirmed the decree of the [Connecticut] District Court----And from that decree the present appeal has been brought to this Court.”). This Court has followed this practice on numerous occasions in appeals covering myriad issues. See, e.g., In re Bankers Trust Co., 450 F.3d 121, 123 (2d Cir.2006) (per curiam); Murphy ex rel. Estate of Payne v. United States, 427 F.3d 158, 159 (2d Cir.2005) (per curiam); In re Red Dot Scenic, Inc., 351 F.3d 57, 58 (2d Cir.2003) (per curiam); United States v. Gluzman, 154 F.3d 49, 50 (2d Cir.1998); Trans World Airlines, Inc. v. Sinicropi, 84 F.3d 116, 116 (2d Cir.) (per curiam), cert. denied, 519 U.S. 949, 117 S.Ct. 360, 136 L.Ed.2d 252 (1996). The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court’s reasoning in its per curiam opinion. Nothing more is required. . It may be worth noting that the Croson Court based its decision partly on the fact that "[tjhere [was] nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry-” Croson, 488 U.S. at 500, 109 S.Ct. 706. Here, by contrast, the City was faced with a prima facie case of a violation of Title VII. See Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 382 (2d Cir.2006) (defining prima facie case of disparate-impact liability under Title VII); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir.2001) (same); see also 42 U.S.C. § 2000e-2(k) (codifying the disparate-impact theory of liability and legislatively overruling Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989)).
DENNIS JACOBS, Chief Judge, dissenting from the denial of rehearing in banc: Along with almost half of the members of this Court, I join Judge Cabranes’s dissent, which does the heavy lifting on the procedural merits of in banc review. I write separately to answer respectfully the concurring opinions of Judge Calabresi and Judge Katzmann. Judge Katzmann and those of my colleagues who signed his opinion “recognize” that this case “presents difficult issues,” but would leave further review and consideration to the Supreme Court, citing a Circuit “tradition” of deference to panel adjudication. In effect, this has become a Circuit tradition of hearing virtually no cases in banc. The grant or denial of in banc review is governed by Fed.R.App.P. 35, which says that in banc rehearing is disfavored — unless such review is needed for coherence of the Court’s decisions or “the proceeding involves a question of exceptional importance.” Fed.R.App.P. 35(a). Accordingly, the next subdivision of Rule 35 requires the petition to explain why the case falls within one or both of these categories. Fed.R.App.P. 35(b). This weighing calls for an exercise of discretion. Judge Calabresi’s concurring opinion deprecates this standard as a “purely discretionary power” that is “always a matter of choice” (emphasis added). He nevertheless “join[s] fully” in both Judge Parker’s opinion, which counsels against in banc review as a matter of (plain ordinary) discretion, and Judge Katzmann’s opinion, which decides against in banc review as a matter of tradition. I understand Judge Calabresi to be saying, in effect, that when it comes to in banc review, discretion should be leavened by caprice. As applied to this case, that means that there might be discretionary grounds for denying in banc review were it not already foreclosed by tradition. This occluded view of our discretion to sit in banc runs counter to the criteria set down for our guidance in Rule 35. No doubt, the proper exercise of discretion results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the pattern of denial that would result from saying “no” by tradition. But the decision to grant or deny in banc review is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a default position. See United States v. Campo, 140 F.3d 415, 419 (2d Cir.1998) (per curiam) (holding that “refusal to exercise discretion accorded [the court] by law ... constitutes an error of law”). The exercise of discretion to hear cases in banc is integral to the judicial process. The advisory notes emphasize that “an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts.” See Fed.R.App.P. 35, Advisory Committee Notes (1998 Amendments). In other words, issues of exceptional importance that may divide the circuits should be subject to in banc review lest a three-judge panel adopt a rule of law that would not command a majority vote of the appeals court as a whole, and thereby provoke an avoidable circuit conflict that the Supreme Court would have to resolve. That is why I respectfully disagree with those of my colleagues who are pleased to defer as a matter of tradition to the ruling of the three-judge panel, and thereby leave further consideration to the Supreme Court. Cf. Landell v. Sorrell, 406 F.3d 159, 167 (2d Cir.2005) (Sack, J., and Katzmann, J., concurring) (observing that in banc hearing should be avoided where it “would only forestall resolution of issues destined appropriately for Supreme Court consideration”). I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. Of course, if an in banc poll discloses broad-based agreement with the panel opinion, in banc review may be a spinning of wheels. Under such circumstances, it may very well be an appropriate exercise of discretion to deny rehearing in banc. But to rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion. . I have not solicited concurrences for my opinion. . In the alternative, Judge Calabresi contends that we cannot consider whether the District Court applied the correct legal standard to plaintiffs' Title VII claim because the "parties did not present [that] argument to the district court or the panel” and we can only consider a "legal theory that the parties have eschewed” in such circumstances as "matters of life and death.” Judge Calabresi provides no authority for this proposition for the good reason that it is unsound. Writing for a unanimous Supreme Court, Justice Thurgood Marshall explained that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir.2006) ("We are required to interpret federal statutes as they are written ... and we are not bound by parties' stipulations of law.”); Neilson v. D’Angelis, 409 F.3d 100, 105 n.2 (2d Cir.2005) ("The parties' apparent agreement on the standard of ‘similarity' for 'class of one' cases does not control our judgment, because this court is not bound by stipulations of law.”); United States v. Pabon-Cruz, 391 F.3d 86, 97 (2d Cir.2004) ("It is clear that we have the authority to resolve this question despite its not having been raised in the District Court proceedings or in the parties’ initial briefs.”).
JOSÉ A. CABRANES, Circuit Judge, with whom Chief Judge JACOBS, Judge RAGGI, Judge WESLEY, Judge HALL, and Judge LIVINGSTON join, dissenting: This appeal raises important questions of first impression in our Circuit — and indeed, in the nation — regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices. At its core, this case presents a straight forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Ricci v. Destefano, 264 Fed.Appx. 106 (2d Cir.2008). Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court’s opinion the law of the Circuit. See Ricci v. DeStefano, 530 F.3d 87 (2d Cir.2008). The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that “too many” applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set-aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such “exceptional importance,” Fed. R. App. P. 35(a)(2), a majority of this Court voted to avoid doing so. I respectfully dissent from that decision, without expressing a view on the merits of the questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great significance raised by this case. BACKGROUND In late 2003, 118 applicants took a written and oral examination administered by the New Haven Fire Department (“NHFD”) for promotion to the ranks of Captain and Lieutenant. Forty-one applicants took the Captain examination, of whom twenty-five were white, eight black, and eight Hispanic. Based on the examination results and New Haven’s protocol for civil service promotions, it appeared, at the time that the tests were scored, that “no blacks and at most two Hispanics would be eligible for promotion” to Captain. Ricci v. DeStefano, No. 04cv1109, at 103, infra, 2006 WL 2828419 (D.Conn. Sept. 28, 2006). With respect to the Lieutenant examination, the racial composition of the seventy-seven applicants was as follows: forty-three whites, nineteen blacks, and fifteen Hispanics. The examination results indicated that no blacks or Hispanics would be promoted to the rank of Lieutenant. Between January and March 2004, the New Haven Civil Service Board (“CSB”) held hearings to determine whether to certify the examination results and confer promotions according to those results. Despite the substantial efforts undertaken by the examination designer to ensure that it would be race-neutral, the City of New Haven (the “City”) frankly stated its fear that, if the results were certified, it would face an employment discrimination lawsuit from non-white applicants who were not promoted. The CSB did not certify the examination results, and no promotions were made. Eighteen candidates — seventeen whites and one Hispanic — brought an action in the U.S. District Court for the District of Connecticut. They alleged in their complaint that the City and several municipal officials — acting in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and other provisions of federal and state law — disregarded the results of two promotional examinations that produced “too many” eligible white candidates and “too few” eligible non-white candidates. On cross-motions for summary judgment, the District Court (Janet Bond Arterton, Judge) granted defendants’ motion for summary judgment, denied plaintiffs’ motion, and directed the Clerk of Court to close the case. In a forty-eight page opinion, the District Court observed that (1) “[plaintiffs’ evidence — and defendants’ own arguments — show that the City’s reasons for advocating non-certification [of the examination results] were related to the racial distribution of the results” and (2) “[a] jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the [eligibility] lists to be certified.” Ricci, No. 04cv1109, at 111 infra. The District Court recognized the exceptional circumstances presented by the case, noting that it “presents the opposite scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants’ reason for their refusal to use the results.” Id. Applying the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the District Court held that “[d]efendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim.” Ricci, No. 04cv1109, at 118—19, infra (footnote omitted). The District Court further concluded that defendants had not violated plaintiffs’ rights under the Equal Protection Clause by, as plaintiffs alleged, “employing a race-based classification system for promotion or, alternatively, by applying facially neutral promotion criteria in a racially discriminatory manner.” Id. at 119, 120, infra. Although it is not disputed that the decision to discard the examination results was based on racial considerations, the District Court determined as a matter of law that no racial discrimination had occurred “because [all of] the test results were discarded and nobody was promoted,” id. at 119-20, infra, and because “[n]othing in the record in this case suggests that the City defendants or CSB acted ‘because of discriminatory animus toward plaintiffs or other non-minority applicants for promotion,” id. at 120, infra. The District Court also rejected plaintiffs’ civil rights conspiracy and First Amendment claims and declined supplemental jurisdiction over a state law tort claim. On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages; plaintiffs’ reply brief was thirty-two pages long. Two amici briefs were filed and oral argument, on December 10, 2007, lasted over an hour (an unusually long argument in the practice of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed the District Court’s ruling in a summary order containing a single substantive paragraph. The operative portion of the summary order read as follows: We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, 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 judgment of the district court is AFFIRMED. See App. A, at 102, infra. Four months later, and three days prior to the publication of this opinion, the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and Lexis-Nexis databases. This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily with the weighty issues presented by this appeal. Prior to the entry of the per curiam opinion and in light of the “question[s] of exceptional importance,” Fed. R. App. P. 35(a)(2), raised in this appeal, the Court considered a motion for en banc review. A majority of this Court declined to take up the appeal. DISCUSSION The core issue presented by this case— the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants — is not addressed by any precedent of the Supreme Court or our Circuit. Plaintiffs alleged that the City’s actions violated, inter alia, their rights under the Equal Protection Clause and Tide VII. The District Court disagreed, but did so without the benefit of pertinent guidance from a higher court. The questions raised by the instant appeal clearly merit further review. A. The Equal Protection Clause Plaintiffs claim that the City’s decision to discard the examination results was race-based discrimination in violation of the Equal Protection Clause because it was undertaken solely to reduce the number of -high-scoring white applicants and increase the number of eligible non-white candidates. Defendants contend that their decision, though race-based, was necessary because compliance with federal anti-discrimination laws required them to reduce the number of eligible white candidates. See Ricci, No. 04cv1109, at 111, infra; Appellee Br. at 15-20, 30-31. The Supreme Court has addressed a government entity’s claim that race-based decisions were necessary to redress a racial imbalance in the closely analogous context of government contracts. In City of Richmond v. J.A. Croson Co., the Supreme Court held that: “[w]hile there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts....” 488 U.S. 469, 499, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). The Court further observed that: [W]hen a legislative body chooses to employ a suspect classification, it cannot rest upon a generalized assertion as to the classification’s relevance to its goals. A governmental actor cannot render race a legitimate proxy for a particular condition merely by declaring that the condition exists. The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis. Id. at 500-01, 109 S.Ct. 706 (internal citations omitted). More recently, the Supreme Court has identified “three general propositions with respect to governmental racial classifications.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 223, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). They are: First, skepticism: Any preference based on racial or ethnic criteria must necessarily receive a most searching examination. Second, consistency: The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification, ie., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Id. at 223-24, 115 S.Ct. 2097 (quotation marks, internal citations, and brackets omitted) (emphasis added). Whether the District Court’s judgment comports with these propositions is a question of immense importance that is not addressed in the panel’s per curiam opinion. The District Court’s ruling rested in part on the premise that “where a test is administered and scored in the same manner for all applicants, plaintiffs cannot make out a claim that the exam was a facially neutral test used in a discriminatory manner.” Ricci, No. 04cv1109, at 120, infra. Neutral administration and scoring' — even against the backdrop of race-conscious design of an employment examination, see Hayden v. County of Nassau, 180 F.3d 42, 50 (2d Cir.1999) — is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely. Where, as here, examination results are disregarded on the ground that too many candidates of one race qualified for promotion on the basis of those results, the fact of neutral administration and scoring may not necessarily immunize defendants from the claims of civil rights violations brought by plaintiffs. If it did, municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — ie., failed to satisfy a racial quota. Croson and Adarand establish that racial quotas are impermissible under the Constitution absent specific findings of past discrimination that are not in the record here. Whether Croson and Adarand preclude the actions challenged in this case, or whether Hayden can fairly be read to compel judgment in defendants’ favor as a matter of law, are questions that admit no easy answer. As such, they require the careful analysis of a full opinion of an appellate court, not abbreviated disposition. The District Court held that the test was administered in the same manner for all applicants because the City discarded the scores of all exam-takers. Insofar as the decision to not certify the results was based on the race of the high-scoring applicants, however, it is arguable that the deck was stacked against applicants of that race: If too many white applicants obtained high scores, the City stood ready to nullify the results in the hope that nonwhite applicants would score relatively higher on a subsequent examination. Whether such action amounts to an impermissible racial quota was not addressed in the District Court’s opinion or in the decisions issued by the panel, which do not even note that this action arises under the Equal Protection Clause of the Fourteenth Amendment. See App. A (summary order of Feb. 15, 2008); Ricci v. DiStefano, 530 F.3d 87 (2d Cir.2008) (per curiam opinion filed on June 9, 2008). The District Court also held as a matter of law that none of the City’s reasons for disregarding the examination results amounted to intentional discrimination because the City had acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend. Ricci, No. 04cv1109, at 120, infra (emphasis added). Leaving aside the propriety of the District Court’s evaluation, on summary judgment, of the City’s motives — a quintessential question of fact, see, e.g., Hunt v. Cromartie, 526 U.S. 541, 552-53, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) — it is at least arguable that the District Court failed to subject the City’s justifications to the “most searching examination” prescribed by the Adarand Court. See 515 U.S. at 223, 115 S.Ct. 2097. The record suggests that the District Court took the City’s justifications at face value, as it appears Judge Parker has done in his opinion concurring in the denial of en banc review. An appellate court ought to consider whether this level of scrutiny is consistent with Justice O’Connor’s observation, in Croson, that “[ajbsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” 488 U.S. at 493, 109 S.Ct. 706 (plurality opinion). Justice O’Connor’s cautionary note on “racial politics” is particularly relevant in light of the District Court’s observation that fear of “public criticism” and other “political reasons” factored into the City’s decision. Whether the District Court subjected the City’s claims to sufficient scrutiny — and whether the City’s claims could have withstood such scrutiny — are vital “question[s] of exceptional importance,” Fed. R. App. P. 35(a)(2), that warrant further review, both for the proper resolution of this case and for the guidance of other courts and municipalities in future cases. B. Title VII Plaintiffs urge that the City’s race-based action also violated Title VII’s prohibition of employment discrimination. See 42 U.S.C. § 2000e-2. The District Court dismissed plaintiffs’ Title VII claim by applying the three-step burden-shifting framework for adjudicating claims of pretextual discrimination established by McDonnell Douglas. The dismissal of the Title VII claim on this basis raises two significant questions: (1) whether the McDonnell Douglas test for pretextual discrimination should be applied to claims of discrimination that is overt, and (2) whether a race-based decision allegedly made to avoid perceived liability for racial discrimination is exempt from scrutiny under Title VII and, if not, what quantum of proof is required to substantiate such a defense. Courts generally apply McDonnell Douglas in cases where plaintiffs “presente ] no direct evidence of discriminatory treatment.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.2005); see also Graves v. Finch Pruyn & Co. Inc., 457 F.3d 181, 187 (2d Cir.2006). “If a plaintiff can convince the trier of fact that an impermissible criterion in fact entered into the employment decision, [however,] a somewhat different analysis takes place.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.1992). In that kind of “mixed-motive” case, the burden-shifting analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), governs the claim. Under this framework, the plaintiff ... must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a motivating or substantial role in the employment decision. If the plaintiff convinces the factfinder that the illegitimate factor played such a role, the employee has proved that the decision was made at least in part because of the illegitimate factor. At this point the employee is entitled to succeed subject only to the employer’s opportunity to prove its affirmative defense; that is, that it would have reached the same decision as to the employee’s employment even in the absence of the impermissible factor. Tyler, 958 F.2d at 1181 (internal citations, quotation marks, and brackets omitted); see also Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 173-74 (2d Cir.2006); Raskin v. Wyatt Co., 125 F.3d 55, 60-61 (2d Cir.1997) (“Evidence potentially warranting a Price Waterhouse burden shift includes, inter alia, policy documents and evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the alleged discriminatory attitude.” (internal quotation marks omitted)). The Ricci plaintiffs offered evidence that an impermissible factor — their race— motivated defendants to discard the results of the employment examination. As the District Court itself candidly observed: “[plaintiffs’ evidence — and defendants’ own arguments — show that the City’s reasons for advocating non-certification [of the examination results] were related to the racial distribution of the results” and “[a] jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the [eligibility] lists to be certified.” Ricci, No. 04cv1109, at 111, infra. The District Court’s application of the McDonnell Douglas test for pretextual discrimination, its conclusion that plaintiffs cannot pass that test as a matter of law, and its failure to consider the possibility that defendants themselves might bear a burden of proof under the analysis set forth in Price Waterhouse, all raise serious concerns left unaddressed by the panel in its per curiam opinion and by the full Court, which declined en banc review of the appeal. Assuming arguendo that a claim of overt racial discrimination is ever appropriately evaluated under the McDonnell Douglas framework for pretextual discrimination, the application of that framework to this case required a “reversal” of the usual roles assigned to plaintiffs and defendants in such cases. As the District Court observed: [T]his case presents the opposite scenario of the usual challenge to an employment or promotional examination.... Ordinarily, as contemplated by the statute, the “complaining party” bears the burden of proving a disparate impact, and the “respondent” bears the burden of “demonstrat[ing] that the challenged practice is job related for the position in question and consistent with business necessity,” or, alternatively, the “complaining party” may prevail by showing that an alternative employment practice with less disparate impact existed and that the respondent failed to utilize it. Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a “respondent” role in the Title VII disparate impact analysis, contending that use of the promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the “complaining party,” arguing that the test results were sufficiently job-related to be defensible under the law. Ricci, No. 04cvll09, at 111, infra (alteration in original) (internal citations omitted). Unlike the Court of Appeals, the District Court answered the exceptional, and difficult, questions presented, concluding that the City’s expressed desire to comply with “the letter and the spirit of Title VII,” id., constituted a non-pretextual reason for its action, id. at 118-19, infra, and therefore no employment discrimination occurred. Under the District Court’s rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from scrutiny under Title VII. This appears to be so, moreover, regardless of whether the employer has made any efforts to verify that a valid basis exists for the putative Title VII suit. Applying this rationale, the District Court concluded that the City, which had not conducted any study to determine whether latent racial bias had tainted the results of the promotion examination, could discard the results of the examination, id. at 113-15, infra, in the hope that a future test would yield a preferable racial distribution, id. at 116-17, infra. Regardless of how one may decide the matter, there can be little doubt that a decision of this Court thus sanctioning race-based employment decisions in. the name of compliance with Title VII raises novel questions that are indisputably of “exceptional importance.” CONCLUSION It is arguable that when an appeal raising novel questions of constitutional and statutory law is resolved by an opinion that tersely adopts the reasoning of a lower court — and does so without further legal analysis or even a full statement of the questions raised on appeal — those questions are insulated from further judicial review. It is arguable also that the decision of this Court to deny en banc review of this appeal supports that view. What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review. Appendix A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT http://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15th day of February, two thousand and eight. Present: ROSEMARY S. POOLER, ROBERT D. SACK, SONIA SOTOMAYOR, Circuit Judges. (06-4996-cv) FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK VENDETTO, Plaintiffs-Appellants, v. JOHN DESTEFANO, KAREN DUBOISWALTON, THOMAS UDE JR., TINA BURGETT, BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN, Defendants-Appellees. Karen Lee Torre, New Haven, CT, for Plaintiffs-Appellants Richard A. Roberts (Nicole C. Chomiak, Stacey L. Pitcher, and Todd J. Richardson on the brief), Cheshire, CT, for Defendants-Appellants. Upon Consideration Whereof, It Is Hereby Ordered, Adjudged, and Decreed that the judgment of the district court is Affirmed. Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants’ motion for summary judgment on all counts. We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, 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 judgment of the district court is AFFIRMED. For the Court: Catherine O’Hagan Wolfe, Clerk By: - Appendix B UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT Civil No. 3:04cv1109 (JBA) FRANK RICCI, et al., Plaintiffs, v. JOHN DESTEFANO, et al., Defendants. RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. ## 52, 60] In March 2004 the New Haven Civil Service Board (“CSB”) refused to certify the results of two promotional exams for the positions of Lieutenant and Captain in the New Haven Fire Department. This lawsuit arises from the circumstances leading to that decision and its consequences. Plaintiffs are seventeen white candidates and one Hispanic candidate who took the promotional exams, on which they fared very well, but received no promotion because without the CSB’s certification of the test results, the promotional process could not proceed. Defendants are the City of New Haven, Mayor John DeStefano, Chief Administrative Officer Karen Dubois-Walton, Corporation Counsel Thomas Ude, Director of Personnel Tina Burgett, and the two members of the CSB, Malcolm Weber and Zelma Tirado, who voted against certification. Plaintiffs assert that defendants’ actions in voting or arguing against certification of the examination results violated their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Protection Clause, the First Amendment, and 42 U.S.C. § 1985; plaintiffs also allege a common law claim of intentional infliction of emotional distress. The parties have cross-moved for summary judgment on the Title VII and Equal Protection claims, and defendants additionally move for summary judgment on plaintiffs’ other claims. For the reasons that follow, defendants’ motion for summary judgment [Doc. # 52] will be granted as to plaintiffs’ federal claims; plaintiffs’ cross-motion for summary judgment [Doc. # 60] will be denied; and the Court will decline jurisdiction over plaintiffs’ state law claim. 1. Factual Background While the parties strenuously dispute the relevance and legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed. In November and December 2003, the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain. The City’s Department of Human Resources issued a Request for Proposal for these examinations, as a result of which I/O Solutions (“IOS”), a seven-year-old Illinois company that specializes in entry-level and promotional examinations for public safety (police and fire) departments, designed the examinations. Pl.Ex. TV(C) at 8. Under the contract between the City and the New Haven firefighters’ union, the written exam result counted for 60% of an applicant’s score and the oral exam for 40%. Those with a total score above 70% on the exam would pass. Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. Pl.Ex. Vol. I, at 43. Given that there were 7 Captain vacancies in the department when the tests were administered, and that the “Rule of Three” in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared at that time that no blacks and at most two Hispanics would be eligible for promotion, as the top 9 scorers included 7 whites and 2 Hispanics. 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. Id. There were 8 vacancies, but because all of the top 10 scorers were white, it appeared that no blacks or Hispanics would be promoted. Certified promotional lists remain valid for two years. The CSB held five hearings between January and March 2004 on the issue of whether to certify the test results. The issue appears to have been raised by New Haven’s Corporation Counsel, Thomas Ude. At the initial hearing on January 22, 2004, Mr. Ude characterized the exam results as “a very significant disparate impact ... that caused us to think this was something we should bring to you, the Civil Service Board, to evaluate and to be part of and to ultimately make a decision about the process.” Pl.Ex. Vol. IV(A) at 32. While it is disputed whether Mr. Ude already had made up his mind to advise the CSB against certifying the results, his comments “emphasize[d] ... that the case law does not require that the City find that the test is indefensible in order to take action that it believes is appropriate to remedy ... disparate impact from examination.” Id. at 34-35. He advised that “federal law does not require that you [the CSB] make a finding that this test ... was not job-related, which is another way of saying it wasn’t fair. A test can be job-related and have a disparate impact on an ethnic group and still be rejected because there are less discriminatory alternatives for the selection process.” Id. at 36. During the hearings, the tests results were not released by name, and therefore none of the firefighters knew where they had placed. The only information provided to the CSB and the public, including plaintiffs, was the scores by race and gender. Nonetheless, several firefighters, although they did not know where they had placed, spoke in favor of certifying the results. Plaintiff Frank Ricci stated that the questions on the test were drawn from “nationally recognized” books and New Haven’s own Rules and Regulations and Standard Operating Procedures. PLEx. Vol. IV(A) at 88. He stated that he “studied 8 to 13 hours a day to prepare for this test and incurred over $1,000 in funds [sic] to study for this test,” including purchasing the books and paying an acquaintance to read them on tape because he is dyslexic and learns better by listening. Other firefighters, who believed the tests were fair, also spoke in support of the certifying the results. See, e.g., Testimony of Michael Blatchley, id. at 75 (“[N]one of those questions were not in that study material. Every one of those questions came from the material.”). During the first hearing, the CSB also took statements from several New Haven firefighters who complained that some of the questions were not relevant to knowledge or skills necessary for the positions (see, e.g., Statement of James Watson, id. at 85 (“I think this test was unfair. We don’t use a. lot of things that were on that test” such as whether to park a firetruek facing “uptown” or “downtown”)), or that the study materials were difficult to obtain (see Testimony of Gary Kinney, id. at 77 (“The only books that most of us had in front of us in the fire houses were Essentials of Fire Fighting.... [T]hese books [on the syllabus] were never in the fire houses.”)). At the second hearing on February 5, Patrick Egan, president of the firefighters’ union, urged the CSB to conduct a validation study to determine the job-relatedness of the test, referring generally, although not by name, to the EEOCs “Uniform Guidelines of Employee Selection Procedures.” Pl.Ex. Vol. IY(B) at 11-12. Plaintiffs’ counsel in the present case also spoke and urged certification. On the other side, Donald Day, a representative of the Northeast Region of the International Association of Black Professional Firefighters, argued against certification, stating that previous promotional examinations in 1996 and 1999 had black and Latino firefighters ranked sufficiently high to have a realistic opportunity for promotion, whereas “there was something inherently wrong with this test” because minorities did not score as highly. Id. at 33-34. He suggested that the CSB speak with the director of the civil service in Bridgeport “to find out what Bridgeport is doing different [sic] than New Haven,” as they have more diversity in their firefighter ranks. Id. at 35. In particular, he stated that Bridgeport had “changed the relative weights” among the portions of the exam, such that the written test counts for 30% of the total score, the oral test for 65%, and seniority 5%. Id. at 36-37. Ronald Mackey, the Internal Affairs Officer for the Northeast Region of the International Association of Black Professional Firefighters, supported Patrick Egan’s suggestion of obtaining a validation study, and also suggested that New Haven could “adjust the test” as Bridgeport had done, in order to “meet the criteria of having a certain amount of minorities get elevated to the rank of Lieutenant and Captain.” Id. at 43-45. On February 11, 2004, the CSB heard from Chad Legel, Vice President of IOS, who was the “project manager” in charge of developing the exams at issue. He stated that IOS had prepared “both an entry-level exam and a physical ability test for the firefighter position” in New Haven, but had not previously prepared a New Haven promotional exam. Id. at 10. However, in recent years his company had worked with similarly-sized public safety departments with demographics similar to New Haven, including Lansing, Michigan, Orange County, Florida, and the North Miami Police Department, among others. Id. at 9. Legel described the way in which the test was developed. First, the company interviewed a random sample of current New Haven Fire Department Lieutenants, Captains and Battalion Chiefs to determine basic information concerning the structure of the department, the tasks required of individuals- at each rank, and the materials the department generally utilizes for training. Based on the interviews, IOS developed a written job analysis questionnaire (“JAQ”) that asked all incumbents in the positions of Lieutenant and Captain “to provide information about how important they feel a specific task, knowledge area, skill or ability is____” Id. at 17. The JAQ asked how important each task was to successful performance on the job and how frequently it was necessary to perform it. Importance and frequency were merged into a metric called “criticality or essentiality.” Id. at 19. Tasks above a certain criticality threshold were designated for testing on the written and oral portions of the exam. In response to the question of whether he has generally found a difference between information tested in various departments “based on the racial content of the city and the force,” Legel stated, “definitely no.” Id. at 21. The one difference among the New Haven firefighters of similar rank that Legel noted was different levels of t