Eugene Margerum, et al., Appellants-Respondents,v.City of Buffalo, et al., Respondents-Appellants.

Brief

N.Y.January 6, 2015

0 To be Argued by: JASON E. MARKEL, ESQ. Time Requested for Argument: (20 Minutes) STATE OF NEW YORK Court of Appeals APL-2013-00290 EUGENE MARGERUM, ANTHONY HYNES, JOSEPH FAHEY, TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI, SCOTT SKINNER, THOMAS REDDINGTON, TIMOTHY CASSEL, MATTHEW S. OSINSKI, MARK ABAD, BRAD ARNONE and DAVID DENZ, Appellants-Respondents, vs. CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF FIRE and LEONARD MATARESE, Individually and as Commissioner of Human Resources for the City of Buffalo, Respondents-Appellants. Appellate Division Docket Number: CA 12-01540. Erie County Index No.: 2007-1462. REPLY BRIEF FOR RESPONDENTS-APPELLANTS HODGSON RUSS LLP Attorneys for Respondents-Appellants The Guaranty Building 140 Pearl Street, Suite 100 Buffalo, New York 14202 Telephone: (716) 856-4000 Facsimile: (716) 849-0349 ADAM W. PERRY, ESQ. JASON E. MARKEL, ESQ. STEPHEN W. KELKENBERG, ESQ. JOSHUA FEINSTEIN, ESQ. Of Counsel Date of Completion: August 4, 2014. BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768-2100 TABLE OF CONTENTS PAGE i PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 5 I. HUMAN RIGHTS LAW CLAIMS ARE SUBJECT TO NOTICE OF CLAIM UNDER GENERAL MUNICIPAL LAW § 50-i ........................... 5 II. THE PLAINTIFFS CONCEDE RICCI APPLIES, BUT CAN’T EXPLAIN HOW THE FOURTH DEPARTMENT’S HOLDING COMPORTS WITH RICCI ........................................................................ 18 A. The Core Elements of Ricci ................................................................ 20 1. Whether a “Strong Basis in Evidence” Exists Must be Measured When the Compliance Action is Taken, Not With the Benefit of Hindsight ................................................... 21 2. The Quantum of Proof is Less Than a Preponderance of Evidence .................................................................................... 21 3. “Disparate Impact Liability” Encompasses Both Liability and Damages that Might Result if an Employer Does Not Act ...................................................................................... 24 B. The Other Proceedings Referenced by the Plaintiffs .......................... 28 1. The MOCHA Plaintiffs’ 2001 Application for a Preliminary Injunction .............................................................. 29 2. The Hynes Article 78 Proceeding ............................................. 32 3. The Grievance Arbitration Before Arbitrator Lewandowski.... 38 4. The Grievance Arbitration Before Arbitrator Foster ................ 40 C. THE PLAINTIFFS’ CRITICISMS OF THE CITY AND MATARESE ARE FOUNDED UPON A MISAPPLICATION OF RICCI AND A DISTORTION OF THE FACTUAL RECORD ........ 42 TABLE OF CONTENTS - cont’d PAGE ii 1. Plaintiffs Ground Their Arguments in Distortion and Misrepresentation of Matarese’s Motivations .......................... 44 a. Statistical Disparity .............................................................. 45 b. Matarese’s Concerns with “Avoiding Litigation” and “Financial Exposure” are Fully Consistent with Ricci ........ 49 c. Matarese Did Not Permit the Lists to Lapse for Purposes of Settling MOCHA ............................................................. 51 2. The Plaintiffs’ Collateral Attack on Matarese’s Credibility is Premised upon the Same Defective Assumptions and Disregard of the Record Evidence as Their Other Arguments ................................................................................. 55 3. The City’s Defense of the MOCHA Litigation Does Not Estop the City From Relying upon Evidence of Invalidity ................ 61 4. The Plaintiffs’ Gross Mischaracterization of Ricci Further Underscores Their Distortion of the Facts Here ....................... 65 5. The Plaintiffs Ignore the Ultimate Teaching of United States v. New Jersey ................................................................................ 67 D. The Plaintiffs’ Criticisms of Certain Evidence Relied upon by the City Are Superficial and Irrelevant to the Ricci Analysis ................... 70 1. Plaintiffs Misconstrue the Significance of the Remedial Decree ....................................................................................... 71 2. That the City’s Decision Was Made During the MOCHA I Litigation is Not Proof That There Was No Strong Basis in Evidence for the City’s Decision .............................................. 73 3. The Mere Fact Matarese Did Not Reference the Civil Service Deposition Testimony or the Dr. Murphy Report in Prior TABLE OF CONTENTS - cont’d PAGE iii Proceedings Does Not Prove the City Lacked a Strong Basis in Evidence ................................................................................ 76 4. The City’s Litigation Strategy in MOCHA Does Not Prove that the City Lacked a Strong Basis in Evidence ...................... 81 5. The Plaintiffs’ Attack on Dr. Abrams’s Opinion Is Insubstantial and Does Not Undermine the City’s Strong Basis In Evidence ...................................................................... 85 6. The Plaintiffs’ Speculation of What the City “Should Have Known” Is Not Evidence, Is Belied by the Record, and Does Not Prove that a Strong Basis in Evidence Did Not Exist ........ 86 III. THE PLAINTIFFS CANNOT PREVAIL ON THEIR CONSTITUTIONAL CLAIMS FOR MULTIPLE REASONS ................. 90 A. Under Established Precedent, the Plaintiffs’ Failure to File Notice of Claim is Fatal to Their State Constitutional Claims ........... 90 B. Employment Discrimination Claims Are Not Cognizable under the State Constitution ................................................................ 91 C. The City’s Conduct Satisfies Strict Scrutiny ...................................... 92 IV. THE PLAINTIFFS’ ECONOMIC DAMAGES AWARD SHOULD BE REDUCED TO ZERO GIVEN THE APPELLATE DIVISION’S RULING THAT THE PLAINTIFFS FAILED TO ESTABLISH THEIR ECONOMIC DAMAGES WITH REASONABLE CERTAINTY .......... 100 CONCLUSION ...................................................................................................... 103 TABLE OF AUTHORITIES PAGE iv FEDERAL CASES Abrams v. Johnson, 521 U.S. 74 (1997) .............................................................................................. 96 Anderson v. Nassau Cnty. Dep’t of Corr., 558 F. Supp. 2d 283 (E.D.N.Y. 2008) ................................................................ 14 Bush v. Vera, 517 U.S. 952 (1996) (plurality opinion) ....................................................... 94, 96 Bushey v. NYS Civil Serv. Comm’n, 733 F.2d 220 (2d Cir. 1984) ............................................................................... 61 Cotter v. City of Boston, 323 F.3d 160 (1st Cir. 2003) cert. denied, 540 U.S. 828 ........................... 98, 100 DC3, LLC v. Town of Geneva, 783 F. Supp. 2d 418 (W.D.N.Y. 2011) ............................................................... 90 Dimonda v. N.Y.C. Police Dep’t, 1996 U.S. Dist. LEXIS 5286 (S.D.N.Y. Apr. 22, 1996) .................................... 14 Febres v. City of New York, 238 F.R.D. 377 (S.D.N.Y 2006) ................................................................... 15, 90 Felder v. Casey, 487 U.S. 131 (1988) ............................................................................................ 13 Fisher v. Univ. of Texas at Austin, __ U.S. __, 133 S. Ct. 2411 (2013) ..................................................................... 93 Gentile v. Town of Huntington, 288 F. Supp. 2d 316 (E.D.N.Y. 2003) ................................................................ 14 Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................................................................ 93 TABLE OF AUTHORITIES - cont’d PAGE v Guardians Assoc. of the N.Y.C. Police Dep’t, Inc. v. Civil Service Comm’n of the City of New York¸630 F.2d 79 (2d Cir. 1980) ........................................................................................ 87 Hamm v. N.Y.C. Office of Comptroller Alan Hevesi, 1998 U.S. Dist. LEXIS 2345 (S.D.N.Y. Mar. 4, 1998) ...................................... 14 Hayden v. Cnty. of Nassau, 180 F.3d 42 (2d. Cir. 1982) ................................................................................ 61 Kirkland v. NYS Dep’t of Corr. Servs., 711 F.2d 1117 (2d Cir. 1983) ............................................................................. 68 League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (Stevens, J., concurring in part and dissenting in part) ..................................................................................................................... 96 Lewis v. City of Chicago, Ill., 560 U.S. 205 (2010) ................................................................................ 26, 27, 28 M.O.C.H.A. Soc’y. Inc. v. City of Buffalo, 689 F. 3d 263 (2d Cir. 2014) ............................................................ 82, 83, 84, 88 Majeske v. City of Chicago, 218 F.3d 816 (7th Cir. 2000) cert. denied, 531 U.S. 1079 ................................. 98 McNamara v. City of Chicago, 138 F.3d 1219 (7th Cir. 1998) cert. denied, 525 U.S. 981 (Posner, J.) .............. 99 Menes v. City Univ. of New York, 578 F. Supp. 2d 598 (S.D.N.Y. 2008) ................................................................ 92 Muhammad v. New York City, 450 F. Supp. 2d 198 (E.D.N.Y. 2006) ................................................................ 92 Pflaum v. Town of Stuyvesant, 937 F. Supp. 2d 289 (N.D.N.Y. 2013) ................................................................ 90 TABLE OF AUTHORITIES - cont’d PAGE vi Ricci v. DeStefano, 557 U.S. 557 (2009) .................................................................................... passim Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ............................................................................................ 95 Shaw v. Hunt, 517 U.S. 899 (1996) ............................................................................................ 94 United States v. Brennan, 650 F.3d 65 (2d Cir. 2011) ................................ 21, 22, 23, 42, 44, 49, 61, 69, 89 United States v. City of Buffalo, 457 F. Supp. 612 (W.D.N.Y. 1978) ........................................................ 47, 72, 97 United States v. City of New York, 717 F.3d 72 (2d Cir. 2013) ................................................................................. 50 United States v. New Jersey, 2012 U.S. Dist. LEXIS 113175 (D.N.J. June 12, 2012), aff’d, 522 Fed. Appx. 167 (3d Cir. 2013), cert denied, ___ U.S. ___, 134 S. Ct. 527 (2013) ...................................................................................................... 67, 68, 69 United States v. Paradise, 480 U.S. 149 (1987) ............................................................................................ 96 Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986) ...................................................................................... 94, 95 STATE CASES 423 S. Salina St., Inc. v. City of Syracuse, 68 N.Y.2d 474 (1986), cert. denied, 481 U.S. 1008 (1987) ......................... 15, 90 Alaimo v. N.Y.C. Dep’t of Sanitation, 203 A.D.2d 501 (2d Dep’t 1994) ........................................................................ 10 Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367 (2007) ........................................................................................... 16 TABLE OF AUTHORITIES - cont’d PAGE vii Bennett v. Health Mgt. Sys. Inc., 92 A.D.3d 29, 35 n.1 (1st Dep’t 2011) ............................................................... 89 Buffalo Prof’l Firefighters Ass’n, IAFF Local 282 v. City of Buffalo, 79 A.D.3d 1737 (4th Dep’t 2010) ....................................................................... 41 Buffalo Prof’l Firefighter Ass’n, IAFF Local 282 v. City of Buffalo, Index No. 3580/2007 (Erie Cnty. Aug. 25 2009) ................................... 29, 41, 42 Carver v. State of New York, 79 A.D.3d 1393 (3d Dep’t 2010) ........................................................................ 91 Corvetti v. Town of Lake Pleasant, 227 A.D.2d 821 (3d Dep’t 1996) ........................................................................ 90 Fahey v. City of Buffalo, Index No. 2006/3371 (Sup. Ct. Erie Cnty. Dec. 20, 2006) .......................... 33, 38 Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295 (2004) superseded by statute on other grounds, as explained by Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29 (1st Dep’t 2011) ................................................................................................................... 89 Grasso v. Schenectady Cnty. Public Library, 30 A.D.3d 814 (3d Dep’t 2006) .......................................................................... 14 Henderson v. Holley, 112 A.D.2d 190 (2d Dep’t 1985) ...................................................................... 102 Hoger v. Thomann, 189 A.D.2d 1048 (3d Dep’t 1993) ...................................................................... 13 Hynes v. City of Buffalo, 52 A.D.3d 1216 (4th Dep’t 2008) ........................................................... 37, 38, 74 Hynes v. City of Buffalo, Index No. I2005-11989 (Sup. Ct. Erie Cnty. Dec. 20, 2006) ............................. 32 TABLE OF AUTHORITIES - cont’d PAGE viii Margerum v. City of Buffalo, 63 A.D.3d 1574 (4th Dep’t. 2009) ............................................................... 41, 96 Marino v. N.Y.C. Off-Track Betting Corp., 12 A.D.3d 606 (2d Dep’t 2004) .......................................................................... 14 Martinez v. City of Schenectady, 97 N.Y.2d 78 (2001) ........................................................................................... 91 Mendell v. Salamanca Hous. Auth., 12 A.D.3d 1023 (4th Dep’t 2004) ....................................................................... 13 Mills v. Cnty. of Monroe, 89 A.D.2d 776 (4th Dep’t 1983, aff’d, 59 N.Y.2d 307 (1983), cert. denied, 464 U.S. 1018 (1983) ....................................................................... 11, 13 Mompoint v. City of New York, 299 A.D.2d 527 (2d Dep’t 2002) .................................................................. 15, 16 Morrison v. N.Y.C. Police Dep’t., 214 A.D.2d 394 (1st Dep’t 1995) ....................................................................... 10 Palmer v. City of New York, 215 A.D.2d 336 (1st Dep’t 1995) ................................................................... 9, 10 Parry v. Tompkins Cnty., 260 A.D.2d 987 (3d Dep’t 1999) ........................................................................ 14 People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324 (1985), rev’d on other grounds, 478 U.S. 697 (1986) ................. 5 People v. Taylor, 42 A.D.3d 13 (2d Dep’t 2007) .............................................................................. 6 Picciano v. Nassau Cnty. Civil Serv. Comm’n, 290 A.D.2d 164 (2d Dep’t 2001) ................................................................ 8, 9, 13 Pierce v. Vill. of Horseheads Police Dep’t, 107 A.D.3d 1354 (3d Dep’t 2013) ...................................................................... 90 TABLE OF AUTHORITIES - cont’d PAGE ix Quain v. Buzzetta Constr. Corp., 69 N.Y.2d 376 (1987) ....................................................................................... 100 Scopelliti v. Town of New Castle, 210 A.D.2d 308 (2d Dep’t 2004) ........................................................................ 14 Sebastian v. N.Y.C. Health & Hosps. Corp., 221 A.D.2d 294 (1st Dep’t 1995) ......................................................................... 9 Simpson v. N.Y.C. Transit Auth., 188 A.D.2d 522 (2d Dep’t 1992) .................................................................. 10, 11 Thygesen v. N. Bailey Volunteer Fire Co., 106 A.D.3d 1458 (4th Dep’t 2013) ..................................................................... 14 Town of Brookhaven v. NYS Div. of Human Rights, 282 A.D.2d 685 (2d Dep’t 2001) ........................................................................ 13 Under 21, Catholic Home Bureau for Dependent Children v. New York, 65 N.Y.2d 344 (1985) ......................................................................................... 93 Varsity Transit, Inc. v. Bd. of Educ. of City of New York, 5 N.Y.3d 532 (2005) ........................................................................................... 91 STATE STATUTES N.Y. Civ. Serv. Law § 56 ......................................................................................... 24 N.Y. Civ. Serv. Law § 61(1) .................................................................................... 24 N.Y. County Law § 52 ............................................................................................. 13 N.Y. Exec. Law, Article 15 ...................................................................................... 92 N.Y. Exec. Law § 290(1) ......................................................................................... 92 N.Y. Exec. Law § 296 .....................................................................5, 7, 10, 11, 12,15 N.Y. Gen. Mun. Law § 50-e .............................................................................. 13, 14 TABLE OF AUTHORITIES - cont’d PAGE x N.Y. Gen. Mun. Law § 50-e(1)(a) ..................................................................... 12, 13 N.Y. Gen. Mun. Law § 50-e(8) ................................................................................ 12 N.Y. Gen. Mun. Law § 50-i ..............................................................................passim N.Y. Gen. Mun. Law § 50-i(1) (2014) ................................................................. 6, 14 N.Y. Gen. Mun. Law § 50-i(2) .................................................................................. 6 N.Y. Pub. Hous. Law § 157 ............................................................................... 13, 17 N.Y. Town Law § 67 ............................................................................................... 13 N.Y. Town Law § 67(1) ........................................................................................... 17 RULES Fed. R. Civ. P. 23(e) ................................................................................................. 68 Fed. R. Civ. P. 24 ..................................................................................................... 68 OTHER AUTHORITIES CARL SANBERG, THE PEOPLE, YES 181 (1936) ....................................................................1 PRELIMINARY STATEMENT Plaintiffs’ Reply Brief harkens Carl Sandburg’s famous quote in The People, Yes (1936): “If the law is against you, talk about the evidence . . . If the evidence is against you, talk about the law, and . . . If the law and the evidence are both against you, then pound on the table and yell like hell.” CARL SANDBURG, THE PEOPLE, YES 181 (1936). Plaintiffs have not surprisingly jumped directly to the pounding and yelling stage. The plaintiffs admit they failed to file a notice of claim. That’s “OK” they say, because a handful of court decisions have said that General Municipal Law § 50-i is inapplicable to Human Rights Law discrimination claims against cities. But even a cursory “reverse engineering” of that authority demonstrates that the so-called rule is not premised on any meaningful analysis of the statutory language. It exists as a string citation borne from rote repetition of a single sentence from one case that did not even involve a city. Despite this, plaintiffs begin their boisterous table pounding by decrying that the City has taken an “outrageous” and “almost sanctionable” position (Pls.’ Reply Br. 20) by asking the Court to focus upon the actual words and phrases of the statute as the starting point for interpreting and applying the law. The plaintiffs’ wallops and wails are so loud that a reader could easily miss the fact that plaintiffs offer no response whatsoever 2 to the City’s statutory analysis, in pari materia argument, and public policy underpinnings. The plaintiffs carry their assault on the woodgrain into the Ricci analysis, where they concede Ricci’s application because they are unable to explain away the Fourth Department’s bizarre references to proof issues in the MOCHA trial (i.e., job-relatedness and business necessity) as the pivot point for the analysis. Plaintiffs avoid focusing on the elements of Ricci’s strong-basis-in-evidence standard and the circumstances as existed at the time the City’s decision was made. They focus instead upon using a blend of hindsight, supposition, and the future, unknown outcome in the MOCHA trial as the framework to critique a decision made at an earlier point in time. Plaintiffs accomplish this by severing timelines and mischaracterizing events and proceedings to instill confusion and misdirection, which serves as the foundation of their concomitant caterwaul against the City’s former Human Resource Commissioner, Leonard Matarese. When the events and circumstances are viewed in their actual order, however, it becomes clear that the plaintiffs have offered nothing but conjecture to disprove the Record evidence supporting the City’s decision to allow the eligibility lists to expire. That decision, understood chronologically, was the culmination of a detailed investigation and thoughtful consideration of material information which included statistical 3 disparities, the City’s continuing obligations under the Remedial Decree, extensive discovery exchanged in MOCHA, stinging criticisms of the validity of the promotional exam created by NYS Civil Service employees, as levied by the MOCHA plaintiffs’ expert, and similar damning criticisms of the entire promotional exam series by the City’s own independent expert, Dr. Nancy Abrams, who told the City that it would be better off not calling her as a witness in the MOCHA trial given her views on the invalidity of the promotional exam series. The City’s explanation of how, when, and why the City and Commissioner Matarese arrived at the decision to allow the promotional lists to expire are the facts, plain and simple. Because neither the law nor the facts are good for plaintiffs, their strategy is to shriek even louder and longer by reiterating the same inaccuracies over and over. The overriding theme of that attack is to repeatedly try to impugn the testimony of Commissioner Matarese by offering partial quotations of his statements without regard to context, purpose of the statement, or the completeness of his response. But such “sound bites” ripped out of context are neither persuasive nor compelling. In the end, it is the plaintiffs’ arguments that prove inconsistent, not only with Ricci and the Record facts, but even relative to each other at times. For example, plaintiffs recognize that the evidence most probative on the motive 4 underlying the City’s decision is the “evidence which came into existence most closely in time to the race-conscious action.” Pls.’ Reply Br. 51. Curiously, however, they identify no such evidence. Instead, plaintiffs baldly assert that the City knew or should have known that the exams were valid all along, as evidenced by the City’s adoption of the eligible lists, the City’s defense of the exams in MOCHA, and the MOCHA plaintiffs’ ultimate failure to succeed at trial. The plaintiffs want to ignore the actual evidence and information considered by Commissioner Matarese at the time he made his decision. As a result, the substance of the strong basis in evidence upon which the City acted remains unimpeached. Accordingly, this Court should reverse the Fourth Department’s Order, vacate the judgment below, and order the Complaint dismissed, with a direction that judgment be entered in the City’s favor. 5 ARGUMENT I. HUMAN RIGHTS LAW CLAIMS ARE SUBJECT TO NOTICE OF CLAIM UNDER GENERAL MUNICIPAL LAW § 50-i The crux of the plaintiffs’ argument seems to be that the notice-of- claim requirements of General Municipal Law § 50-i do not apply because Executive Law § 296 discrimination claims are not torts, and section 50-i has historically been held to apply only to tort and contract claims. Pls.’ Reply Br. 21. The plaintiffs, however, miss the point of the City’s arguments. The City’s position rests on statutory interpretation and the actual language of General Municipal Law § 50-i, not whether Human Rights Law discrimination claims are or are not torts. The starting point of any meaningful analysis of the scope and application of a statute is the language of the statute itself. Nowhere does the plain language of General Municipal Law § 50-i contain the word “tort” or, for that matter, “contract.”1 The statute does not expressly limit its application to common 1 The title of the statute refers to the “presentation of tort claims”; however, “it is the language of the actual statutory provisions which determines the meaning of the act” and the title and the section headings should only be considered where the statute provisions are ambiguous. People ex rel. Arcara v. Cloud Books, Inc., 65 N.Y.2d 324, 329-30 (1985) (holding that a statute was unambiguously broader than its title and title headings would have suggested), rev’d on other grounds, 478 U.S. 697 (1986); People v. 6 law torts or state that Human Rights Law employment discrimination claims or other statutory claims are excluded. Rather, the statute prohibits prosecution and maintenance of an “action or special proceeding” against a city for “personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city . . . unless . . . a notice of claim shall have been made and served upon the city . . . .” N.Y. Gen. Mun. Law § 50-i(1) (2014) (emphasis added). As discussed in Point I.A. of the City’s initial brief, the plain meaning of these terms readily encompasses the invasion of personal rights and resulting injuries, including emotional and mental duress and loss of income, which are alleged here and typically form the basis for employment discrimination claims under the Human Rights Law. Defs.’ Br. 57-65. And the fact that the statute expressly applies both to “actions” and “special proceedings” likewise evidences an intent to reach beyond tort cases and tort damages, which typically can be pursued only in an “action.” Moreover, section 50-i(2) states: “[t]his section shall be applicable notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any city charter.” N.Y. Taylor, 42 A.D.3d 13, 18 (2d Dep’t 2007) (“Statutory titles . . . are of little significance in statutory construction.”). 7 Gen. Mun. Law § 50-i(2). So to the extent any other law is inconsistent, section 50-i expressly trumps it. The plaintiffs completely ignore the actual words and definitions of the statute. Plaintiffs’ reply brief contains no counter-analysis of the actual statutory language, offering only that “the City is just plain wrong” and asserting that the City’s argument is no more than “a shameful game of semantics and mischaracterizations.” Pls.’ Reply Br. 21. They try to sidestep the statutory analysis by misdirecting the focus to an irrelevant question: whether a statutory Human Rights Law claim is a tort. Plaintiffs then go on to argue that numerous lower courts have confirmed that an Executive Law § 296 statutory employment discrimination claim is not a tort claim. But reliance upon that case law is misplaced. It doesn’t respond to the legal questions the City has raised, which can only be answered by this Court. Plaintiffs continue the diversionary tactic by arguing that all four Appellate Division Departments have consistently and explicitly held that General Municipal Law § 50-i does not apply to employment discrimination claims. That is not only a gross overstatement of the case law, but few of the cases cited by plaintiffs actually involve cities. Generally speaking, the line of authority espoused by plaintiffs stands for the proposition that a Human Rights Law claim is 8 not categorized as a tort for notice of claim purposes. But again, that is not the issue before this Court. The issue is whether section 50-i, as a matter of statutory interpretation, is applicable only to tort claims. Even a cursory analysis of the cases cited and relied upon by plaintiffs reveals that not a single one of them grapples with the meaning behind the actual text of section 50-i or contains any in-depth statutory analysis of the type presented in the City’s brief. Rather, they are all predicated upon the assumption that section 50-i as written applies only to tort claims, despite the absence of any express limiting language. The plaintiffs offer no case authority in which the statutory interpretation has ever been meaningfully analyzed. Pls.’ Reply Br. 20-26. The cases they cite evidence little more than an assumption that seems to have perpetuated itself through numerous cases solely as a result of repetition and string citations, rather than a well-considered and thorough evaluation of the actual statutory language. As a result, the so-called rule offered by plaintiffs has no analytical underpinning grounded in the statutory text. That becomes clear when the case law is traced backwards to its origin. Plaintiffs offer up Picciano v. Nassau Cnty. Civil Serv. Comm’n, 290 A.D.2d 164 (2d Dep’t 2001), as the leading authority. They offer a quote in which the Second Department states that a Human Rights Law claim is not a tort claim 9 and, therefore, notice of claim is not required in a jurisdiction where General Municipal Law §§ 50-e and 50-i are the only applicable statutes. See id. at 170. The “therefore” is telling and makes clear that the Second Department’s statement is predicated upon the implied assumption that section 50-i applies only to tort claims. That court’s statement is then punctuated with a string citation of five cases (upon which the plaintiffs also heavily rely). See id. But neither Picciano nor any of those underlying five cases offer any substantive analysis of the statutory language of section 50-i, and some of them were even decided on different grounds. The first case in the string citation is Sebastian v. N.Y.C. Health & Hosps. Corp., 221 A.D.2d 294 (1st Dep’t 1995). There, the court similarly stated that a statutory Human Rights Law claim is not a tort, but it had no occasion to interpret section 50-i. See id. at 294. With no analysis, the court simply assumed that section 50-i was limited to torts and its “definition” of that term was the same as in the New York City Health and Hospitals Corporation Act (Unconsolidated Laws § 7401). See id. The second case in the Picciano string citation is Palmer v. City of New York, 215 A.D.2d 336 (1st Dep’t 1995). There, the First Department issued a four-sentence decision stating in conclusory fashion that General Municipal Law § 10 50-i was inapplicable to Human Rights Law claims. See id. at 336. In doing so, that court did no more than cite to Alaimo v. N.Y.C. Dep’t of Sanitation, 203 A.D.2d 501 (2d Dep’t 1994) and Simpson v. N.Y.C. Transit Auth., 188 A.D.2d 522 (2d Dep’t 1992), both of which were included in the Picciano string citation along with one other case, Morrison v. N.Y.C. Police Dep’t., 214 A.D.2d 394 (1st Dep’t 1995). Morrison was yet another cursory decision which stated, in one sweeping sentence, that actions against municipalities for unlawful discriminatory practices under Executive Law § 296 are not subject to the notice of claim requirements of General Municipal Law § 50-e (not 50-i) for tort claims. See Morrison, 214 A.D.2d at 394. Like Palmer, the Morrison court did no more than cite to Alaimo and Simpson for this proposition. See id. But Alaimo likewise offered zero analysis of the statutory language, merely stating that General Municipal Law § 50-i was not applicable to a Human Rights Law claim, so no notice of claim was required. See Alaimo, 203 A.D.2d at 501. As authority for that statement, the Alaimo court cited Simpson and Mills v. Cnty. of Monroe. Simpson, however, does not even mention section 50-i. See Simpson, 188 A.D.2d at 522. Rather, Simpson merely held in a conclusory one-liner that 11 Executive Law § 296 claims were not subject to the notice of claim requirements of Public Authorities Law § 1212 and General Municipal Law § 50-e (not 50-i). See id. Indeed, Simpson involved the New York City Transit Authority, which is not a city, county, or other municipality covered by section 50-i. So Simpson is hardly a foundation upon which to have constructed the guiding principle of law governing the application of section 50-i. That leaves Mills v. Cnty. of Monroe, where the county had moved for summary judgment to dismiss the plaintiff’s Human Rights Law and 42 U.S.C. § 1981 discrimination complaint for failure to file a notice of claim. See Mills, 89 A.D.2d 776 (4th Dep’t 1983), aff’d, 59 N.Y.2d 307 (1983), cert. denied, 464 U.S. 1018 (1983). According to the Fourth Department’s recitation of the procedural history, the county’s motion was based exclusively on General Municipal Law § 50-e, which the court characterized as “the procedural mechanism for filing a notice of claim when required.” 89 A.D.2d at 776. It then characterized General Municipal Law § 50-i as “set[ting] forth the kinds of actions which will trigger the requirement to provide a municipality with notice of claim.” Id. The Fourth Department followed this with a broad brush, conclusory statement that “the applicability of the statute is confined to tort claims for personal injury, wrongful death, or damage to property and not to torts generally” and went on to conclude 12 that Executive Law § 296 “is not a tort claim which falls within the notice provisions of the General Municipal Law.” Id. Other than quoting a portion of General Municipal Law § 50-i, the Fourth Department’s decision contains no discussion of the specific words and phrases used in the statute, no analysis as to how the court arrived at its conclusion, and no citation to other authorities. It is also unclear from the decision the extent to which the County of Monroe had, if at all, even pressed any arguments under General Municipal Law § 50-i. The procedural history of the case mentions only a motion under General Municipal Law § 50-e, and the Fourth Department clearly drew a substantive versus procedural distinction between the two. Id. This suggests that the Fourth Department’s statement about section 50-i may have been little more than a passing statement or unnecessary dicta. Indeed, the balance of the Fourth Department’s decision was devoted to plaintiff’s non-compliance with County Law § 52 as implemented through General Municipal Law § 50-e,2 which collectively served as the basis for dismissing the case. See id. 2 Though procedural in nature, General Municipal Law § 50-e(1)(a) specifically references “cases founded upon tort.” Section 50-e(8), however, expressly identifies the only four types of claims to which the Legislature intended the statute to be inapplicable, specifically claims under the workers’ compensation law, the volunteer firefighters’ benefit law, the volunteer ambulance workers’ benefit law, or claims against public 13 On further appeal in Mills, this Court’s opinion notes that plaintiff’s appeal was limited to the applicability of County Law § 52. See 59 N.Y.2d 307, 309 (1983), overruled in part on other grounds by Felder v. Casey, 487 U.S. 131 (1988), as explained in Hoger v. Thomann, 189 A.D.2d 1048, 1049 (3d Dep’t 1993). The entire analysis was predicated upon the application of County Law § 52 and General Municipal Law § 50-e. Nowhere did this Court in Mills discuss section 50-i or attempt to apply it to cities, or even the County of Monroe. In fact, this Court “d[id] not find that the State’s notice requirements are antithetical to the policy underlying the civil rights laws.” Id. at 310. The fact that the County Law provision proved dispositive in Mills does not mean General Municipal Law § 50-i was inapplicable. It only means that this Court did not have occasion or need to address that question in Mills. corporations by their own infant wards. A statutory Human Rights Law claim is therefore not excluded from its scope. Nor does the reference to “tort” in section 50-e(1)(a) serve as a limitation on the substantive statutes that rely upon section 50-e for the procedural aspects of filing and serving a notice of claim. If that were the case, courts addressing the notice of claim issue under County Law § 52, Town Law § 67, and Public Housing Law § 157 could not have required a notice of claim in accordance with General Municipal Law § 50-e. But they have. See Picciano, 290 A.D.2d at 171- 72; Town of Brookhaven v. NYS Div. of Human Rights, 282 A.D.2d 685, 685-86 (2d Dep’t 2001); Mendell v. Salamanca Hous. Auth., 12 A.D.3d 1023, 1024 (4th Dep’t 2004). 14 Based on this reverse-engineering of the case law, it is quite clear that no court has endeavored to perform an in-depth analysis of the actual words and phrases used in General Municipal Law §§ 50-i(1) or 50-i(2). And while plaintiffs offer a number of additional State and Federal cases in their brief, none of them do anything more from an analytical perspective than cite back to one or more of the string-cite cases discussed above and/or each other.3 All of them perpetuate the same assumption that General Municipal Law § 50-i is limited to tort claims for personal injury, wrongful death, or damage to property. And that means that the precedential value of all of these cases suffer from the same fundamental defect. None of them analyze the actual statutory language of General Municipal Law § 50-i or the definitional meaning of “personal injury” or “damage to property” or any other phrases. They simply assumed in one string cite after another that the 3 See Marino v. N.Y.C. Off-Track Betting Corp., 12 A.D.3d 606, 607 (2d Dep’t 2004); Scopelliti v. Town of New Castle, 210 A.D.2d 308, 309 (2d Dep’t 2004); Grasso v. Schenectady Cnty. Public Library, 30 A.D.3d 814, 816 (3d Dep’t 2006); Parry v. Tompkins Cnty., 260 A.D.2d 987, 988-89 (3d Dep’t 1999); Thygesen v. N. Bailey Volunteer Fire Co., 106 A.D.3d 1458, 1460 (4th Dep’t 2013) (addressing only section 50-e, not 50-i); Anderson v. Nassau Cnty. Dep’t of Corr., 558 F. Supp. 2d 283, 302-03 (E.D.N.Y. 2008); Gentile v. Town of Huntington, 288 F. Supp. 2d 316, 320 (E.D.N.Y. 2003); Hamm v. N.Y.C. Office of Comptroller Alan Hevesi, 1998 U.S. Dist. LEXIS 2345, at *15 (S.D.N.Y. Mar. 4, 1998) (unreported); Dimonda v. N.Y.C. Police Dep’t, 1996 U.S. Dist. LEXIS 5286, at *15-18 (S.D.N.Y. Apr. 22, 1996) (unreported). 15 statute only applies to “tort” claims. But that assumption is not sustainable on the plain language and commonly understood definitions of the words and phrases used in the statute. As set forth in Point I.D. of the City’s initial brief, a number of other cases have given General Municipal Law § 50-i a broader reading and applied the statute to require notice of claim on contract, statutory, and constitutional claims. See Defs.’ Br. 72-74; see also 423 S. Salina St., Inc. v. City of Syracuse, 68 N.Y.2d 474, 480, 482, 490 n.5 (1986) (dismissing claims against City based on NYS Constitution for failure to file notice of claim), cert. denied, 481 U.S. 1008 (1987); Febres v. City of New York, 238 F.R.D. 377, 393 (S.D.N.Y 2006). The mere fact the plaintiffs’ claims are grounded in Executive Law § 296, or that such a statutory claim is not recognized as a common law tort, is no basis to exempt them from the plain language requirements of General Municipal Law § 50-i - particularly in light of the personal injuries and property damages they alleged in their complaint. Indeed, such was the outcome in Mompoint v. City of New York, 299 A.D.2d 527 (2d Dep’t 2002). Plaintiffs refuse to recognize the direct conflict that exists between the Fourth Department’s decision below and Mompoint. They instead attempt to misrepresent and mischaracterize the case by asserting that Mompoint is a “suit 16 against the Board of Education” and imply that the Education Law § 3813 notice- of-claim provision was at issue. Pls.’ Reply Br. 23. But Education Law § 3813 is nowhere mentioned in the case. The reported ruling makes clear that the motion on appeal in Mompoint involved only the City of New York and only the General Municipal Law. The Second Department affirmed the dismissal of the Human Rights Law discrimination claims against the City of New York due to the plaintiffs’ failure to comply with the notice of claim requirements of General Municipal Law §§ 50-i and 50-e. That the New York City Board of Education may also have been a party to the case is immaterial to the Second Department’s holding in Mompoint, which specifically addressed only the City of New York’s motion to dismiss. Plaintiffs’ reliance upon Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367 (2007), is similarly misplaced. Amorosi referenced the notice of claim provisions in Education Law § 3813 as applied to a Human Rights Law discrimination claim, but the heart of the case focused upon whether a one-year versus three-year statute of limitations applied. The case had nothing to do with the language of General Municipal Law § 50-i. As for the City’s arguments under the in pari materia doctrine, the plaintiffs completely ignore and fail to address them. Plaintiffs do not dispute that 17 the notice of claim provisions found in Town Law § 67(1) and Public Housing Law § 157 are equivalent to or narrower than General Municipal Law § 50-i. And plaintiffs offer no reason why cities should be treated differently than these other municipalities with respect to Human Rights Law claims under those similar statutes, or how or why the wording of the Town Law and Public Housing Law is distinguishable from General Municipal Law § 50-i. While plaintiffs do briefly address public policy considerations (Pls.’ Reply Br. 220), the points they offer are nonresponsive to the City’s arguments and they lack substance. The plaintiffs do not dispute the public policy considerations and purposes underlying notice of claim requirements generally, or the City’s contention that such considerations apply with equal force to Human Rights Law claims. Instead, they simply attack the City by baldly claiming that the City suffered no prejudice, asserting that the City had every opportunity to investigate during the litigation and the grievances that followed after the promotional lists expired. The plaintiffs’ assertions, however, are belied by the facts and Record. The City had no knowledge the plaintiffs might bring Human Rights Law claims before receiving the Complaint in this matter, which was filed on February 12, 2007, well over a year after the events giving rise to their claims. A57. And neither the prior Hynes Article 78 proceeding nor the Lewandowski grievance 18 arbitration involved discrimination claims or the types of personal injuries and damages being claimed in this action. A118-31, 137. In sum, the plain language of the General Municipal Law, the in pari materia doctrine, and public policy considerations all support the conclusion that Human Rights Law plaintiffs are required by General Municipal Law § 50-i to timely serve notices of claim before bringing suit against cities. The Appellate Division’s June 5, 2009 Order should be reversed, and the Complaint dismissed. II. THE PLAINTIFFS CONCEDE RICCI APPLIES, BUT CAN’T EXPLAIN HOW THE FOURTH DEPARTMENT’S HOLDING COMPORTS WITH RICCI The plaintiffs’ argument is a curious one. They concede that Ricci controls the outcome. Pls.’ Reply Br. 27. They know the Fourth Department’s decision cannot be explained in Ricci terms, but at the same time they necessarily must argue for an affirmance without expressly conceding as much. That plaintiffs make no argument for affirmance based on the Appellate Division’s own words makes this all the more apparent. The substance of their argument is instead focused upon the trial court’s evaluation of the evidence, not the inexplicable rationale articulated by the Fourth Department. 19 Plaintiffs argue for affirmance of the Fourth Department’s decision only because that preserves the trial court’s ruling. They distance themselves from the wording of the decision, unwilling to concede that the Fourth Department created a rule very different from Ricci. But they are likewise unable to provide an explanation that comports with Ricci, so plaintiffs simply offer that the Fourth Department’s decision “was perhaps not as thorough as it could have been.” Pls.’ Reply Br. 36. Plaintiffs do not dispute that the standard referenced by the Fourth Department - i.e., whether the suspect exams were “job related and consistent with business necessity” - was not even litigated in Margerum, or that it is fundamentally irrelevant and distinct from the “strong basis in evidence” standard required under Ricci. The plaintiffs are also at a loss to explain or justify the meaning of the Fourth Department’s words as being anything other than a reference to MOCHA I. The best they can muster is to point out that the Fourth Department didn’t expressly state that its decision turned upon the trial outcome in MOCHA I, and that the court’s words are some kind of “summary way” to reject the City’s arguments as being without a strong basis in evidence. Pls.’ Reply Br. 36-37. In this way, the plaintiffs all but overtly concede that the Fourth Department erred by creating and applying some new and different legal standard that cannot be squared with Ricci. 20 Unable to explain the Fourth Department’s ruling, plaintiffs urge that affirmance is warranted because the trial court properly applied Ricci, regardless of the meaning behind the Appellate Division’s summary characterization or any misapplication of Ricci. But this cannot be a case about the application of Ricci in the first instance when the rule of law announced by the Appellate Division is the threshold issue before the Court. To apply the law, one must first determine what the law is. The City certainly agrees with plaintiffs that Ricci is the law and should apply. And all parties agree - even if the plaintiffs refuse to admit it - that the Fourth Department did something other than simply apply Ricci. For that reason, the Fourth Department’s decision created a different rule of law that cannot stand, and this Court should expressly adopt the U.S. Supreme Court’s version of Ricci for use in Human Rights Law discrimination cases. A. The Core Elements of Ricci There is no dispute that the core question under Ricci is whether the City had a “strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” Ricci v. DeStefano, 557 U.S. 557, 585 (2009). At issue in this case are three underlying inquiries that shape the application of Ricci: (1) at what point in time is the “strong 21 basis in evidence” to be measured; (2) what is the quantum of proof; and (3) what disparate-impact liability exposure will result from a failure to act. 1. Whether a “Strong Basis in Evidence” Exists Must be Measured When the Compliance Action is Taken, Not With the Benefit of Hindsight Plaintiffs affirmatively argue that determining whether an employer has a “strong basis in evidence” must be measured at the time voluntary compliance action is taken, and not with the benefit of hindsight. Pls.’ Reply Br. 37-38. The City agrees. That principle is one of the teachings of United States v. Brennan, 650 F.3d 65, 111, 113 (2d Cir. 2011). But as detailed in Point II.C. infra, the plaintiffs only pay lip service to this rule. Their application of it focuses the analysis on events both before and after the City made the decision at issue in 2005 - such as the adoption of the eligible lists in 2002 and the district court’s 2008 ruling in MOCHA I - thus avoiding any meaningful discussion of the evidence the City actually considered. 2. The Quantum of Proof is Less Than a Preponderance of Evidence Ricci makes clear that an employer’s fear of litigation standing alone is not sufficient to establish a strong basis in evidence. Ricci, 557 U.S. at 592. At the same time, consistent with “Congress’ intent that ‘voluntary compliance’ be ‘the preferred means of achieving the objectives of Title VII[,]’” (Id. at 581), Ricci 22 also allows employers to exercise reasoned discretion and its standard “is not so restrictive that it allows employers to act only when there is a provable, actual violation.” Id. at 583. As the Second Circuit has explained, a strong basis in evidence thus means “an objectively reasonable fear of disparate-impact liability” that is “more than a mere fear of litigation, but less than the preponderance of the evidence that would be necessary for actual liability.” Brennan, 650 F.3d at 109-10. While the plaintiffs repeatedly cite Ricci and Brennan in their Reply Brief, nowhere do they address the quantum of proof. As explained in Brennan, an objectively reasonable belief of liability is something more than a mere fear of litigation, but less than a preponderance of the evidence. See Brennan, 650 F.3d at 109-10. That’s a rather large window of protection. The plaintiffs completely ignore this standard and do not dispute that an objectively reasonable belief can be satisfied on substantially less than a preponderance of evidence. See Defs.’ Br. 87- 89, 93-94, 117-18, 122-23. The plaintiffs instead offer only the self-serving, conclusory statement that “the overwhelming evidence in the record confirms that Comissioner Matarese did not act based on an objective strong basis in evidence to believe the City would be liable for disparate impact discrimination. . . .” Pls.’ Reply Br. 37. So while 23 plaintiffs’ statement concedes the objective nature of the test as explained in Brennan, plaintiffs simultaneously concede that not all the evidence (i.e., only the “overwhelming” evidence in their view) is against the City and Comissioner Matarese. As explained later in this brief (Points II.C. and II.D. infra), plaintiffs so-called “overwhelming evidence” doesn’t really exist, and is little more than argument, supposition and innuendo for which Record support is non-existent. Plaintiffs pitch their presentation as if this Court is a jury making a fact-finding under a “preponderance of the evidence” standard, or reviewing a fact- finding under a weight of the evidence inquiry. But these are not the measures of proof by which the employer is afforded protection under Ricci, and there is no balancing or weighing of evidence under Ricci. Before this Court is a question of law, not a trial court’s evidentiary fact-finding. The only actual evidence relevant to the analysis is the thought process, evidence, and deliberation that went into the decision at the time it was made. And when that is objectively viewed under the proper legal standard in the circumstances as they existed at the time, there can be no question that the City had a strong basis in evidence to believe that it would be subject to disparate impact liability if it failed to act. 24 3. “Disparate Impact Liability” Encompasses Both Liability and Damages that Might Result if an Employer Does Not Act The plaintiffs make a half-hearted attempt to isolate and litigate the legal intent of the word “liability” as used in Ricci, but do so through a confusing presentation of factually incorrect and unsupportable assertions. The premise of their argument is that “race conscious action can only be taken to avoid liability,” and that Ricci does not provide a safe harbor “merely to avoid potential (speculative) damages.” Pls.’ Reply Br. 31-34 (emphasis in original). Plaintiffs contend that the City’s “certification”4 of promotional lists that have a disparate 4 The plaintiffs’ references to “certification” of exam results is reflective of a fundamental misunderstanding and misrepresentation of the facts. The City of Buffalo administered promotional examinations developed by the NYS Civil Service Department. Those examinations were scored to produce a ranking of candidates, which formed the basis of the eligible lists that the City then adopted. Under New York law, “certification” of an eligible list does not occur when the exam results are first announced and the list published, as plaintiffs repeatedly and incorrectly assert in their Reply Brief. Pls.’ Reply Br. 3-4, 10, 56-57. Plaintiffs apparently incorrectly assume that the process under Connecticut’s civil service procedures, as described in Ricci, are the same in New York. Eligible lists in New York, however, are “established” or “adopted” subject to renewal. N.Y. Civ. Serv. Law § 56. Only when appointments are actually contemplated does the applicable Civil Service Commission - or in the case of Buffalo, the Human Resources Commissioner - certify a list of the three persons standing highest on the list who are are eligible for selection. A140, 161, 447, 449, 1070, 1207; N.Y. Civ. Serv. Law § 61(1). So, for purposes of responding to the plaintiffs argument here, the City liberally construes the plaintiffs’ references to certification to mean the initial establishment of 25 impact is what created the liability, and that engaging in race conscious action against the Caucasian plaintiffs does nothing to alter that past liability, which they say became fixed prior to the commencement of the MOCHA suits in 1998 and 2001. Pls.’ Reply Br. 32. Thus, having already created that liability, the City purportedly is now seeking only to avoid damages for a past transgression, which plaintiffs claim is not a proper basis for invoking Ricci. Plaintiffs’ arguments are fundamentally flawed and littered with inconsistencies. Plaintiffs’ attempt to isolate the word “liability” to the singular past underlying act of generating a list of test scores is as illogical as it is impractical. Ricci draws no distinction between “liability” and “damages.” Under plaintiffs’ ill-conceived logic, an employer who “certified” an examination that produces test results indicative of a discriminatory adverse impact would be liable just for administering the test and scoring the results, even if the results were never used in making employment decisions. Yet plaintiffs fail to explain how or to whom the City became liable by merely “certifying” the test results - much less articulate what damages supposedly resulted. The flip side of plaintiffs’ position - if it were correct, which it isn’t - is that once the employer began using the eligible lists after the administration and scoring of the civil service examination. 26 results to make employment decisions, it would have to continue doing so even if it became aware of strong evidence that the exam was discriminatory, because Ricci’s safe harbor would no longer be available now that “liability” had already attached. These examples underscore how truly flawed and perverse the plaintiffs’ argument really is. Even more fundamentally, plaintiffs’ argument runs directly counter to the U.S. Supreme Court’s decision in Lewis v. City of Chicago, Ill., 560 U.S. 205 (2010). In that case, the Court explained that disparate impact claims accrue each time a promotional list is used, not merely from the administration of the civil service test or creation of lists ranking the candidates. See id. at 214. In Lewis, the plaintiffs were African-American candidates for firefighter positions who had passed the required civil service examination but whose scores were not high enough to be considered for appointment. See id. at 209. They commenced a Title VII suit alleging that the examinations had a disparate impact. Id. The City of Chicago sought summary judgment on the grounds that plaintiffs had not filed their initial charges of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) within 300 days ‘“after the alleged unlawful employment practice had occurred[,]”’ as required under Title VII as a prerequisite 27 to suit. Id. at 210 (quoting 42 U.S.C. § 2000e-5(e)(1)). The Seventh Circuit agreed and dismissed the suit. See id. In reversing, the Supreme Court expressly rejected Chicago’s contention that the “only actionable discrimination” occurred when it first “used the examination results to create the hiring eligibility list, limited hiring to the ‘well qualified’ classification, and notified petitioners.” Id. at 213-14. Writing for a unanimous Court, Justice Scalia emphasized the statutory language of Title VII, which requires a plaintiff to file a charge with the EEOC within 300 days ‘“after the alleged unlawful employment practice occurred.”’ Id. at 210 (quoting 42 U.S.C. § 20003-5(e)(1)). The Court stated that “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.” Id. at 212 (quoting 42 U.S.C. § 2000e-2(k)(1)(i)) (emphasis in original). Accordingly, even though Chicago’s initial decision to use the practice may have given rise to a separate, “freestanding disparate-impact claim[,]” the Court held that “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’ 28 [within the 300-day limitation period], they could prevail.” Id. at 214 (citing 42 U.S.C. § 2000e-2(k)). The Margerum plaintiffs’ arguments about when liability accrues are impossible to square with Lewis. As Lewis makes crystal clear, disparate impact liability and damages result from use of an illegal selection device to make appointments that have an illegal race-based impact upon an employee. Ricci’s use of the phrase “disparate impact liability” necessarily encompasses claims for both the liability and resultant damages from an employer’s unlawful conduct. Liability without damages is meaningless. And damages are only recoverable where liability exists. The plaintiffs’ attempt to divorce these concepts and apply them separately in a vacuum at different time periods is both illogical and unsupportable. B. The Other Proceedings Referenced by the Plaintiffs Before addressing the specifics of plaintiffs’ “evidentiary” arguments, it is necessary to provide some background and context about several other proceedings the plaintiffs reference in their Reply Brief. These include a 2001 preliminary injunction application by the MOCHA plaintiffs as well as the Hynes C.P.L.R. Article 78 proceeding, the Lewandowski grievance arbitration, and the Foster grievance arbitration. Pls.’ Reply Br. 9-10, 45-48, 56-57. Had plaintiffs explained what those proceedings were about, and identified the substance and 29 issues being addressed in proper context and timing, the gross distortions of the prior testimony of Commissioner Matarese that are central to their arguments would have become readily apparent. In particular, Hynes, Lewandowski, and Foster were all initiated in the wake of the City’s decision to permit the lists to lapse in late 2005 and early 2006, and at a time when the MOCHA litigation was between the mediation stage (late summer 2005) and the trial stage (summer 2008). A79, 152-53; see also Buffalo Prof’l Firefighter Ass’n, IAFF Local 282 v. City of Buffalo, Index No. 3580/2007 (Erie Cnty. Aug. 25 2009) (a copy of this decision is appended to the plaintiffs’ Reply Brief). All of the underlying decisions in these proceedings were issued before the Supreme Court’s decision in Ricci, and none of them required proof of all the detailed evidence that was available to Commissioner Matarese or considered by him when the decision was made to permit the lists to lapse. 1. The MOCHA Plaintiffs’ 2001 Application for a Preliminary Injunction The plaintiffs repeatedly make reference to a 2001 preliminary injunction application by the MOCHA I plaintiffs that sought to enjoin the City from promoting 24 firefighters to the position of lieutenant. On July 20, 2001, the district court denied the motion. A248-53. Plaintiffs repeatedly misrepresent this 30 Order as having decided an application by the City for permission to re-administer the Lieutenant’s examination. Pls.’ Reply Br. 56. They further expand the fiction by later characterizing it as some kind of judicial ruling that the 1998 test was determined to be valid, with the plaintiffs colorfully referencing the Order as “Judge Curtin’s blessing,” Judge Curtin’s “full authorization” to readminister the same Lieutenant’s examination in 2002, and a determination that the City should continue to promote from the lists out of concern for public safety. Pls.’ Reply Br. 57, 62, 82. The district court made no such findings or rulings. The district court’s Order simply denied the plaintiffs a preliminary injunction on narrow legal grounds, noting that a preliminary injunction is a “drastic remedy that should not be routinely granted.” A250. Judge Curtin explained how the plaintiffs had failed to carry their burden to justify the granting of this extraordinary relief. The Court ultimately held that the MOCHA I plaintiffs were unlikely to suffer “irreparable injury” because “most of the potential damages that plaintiffs could claim in this case could be remedied by a future award,” which might include both back pay damages and retroactive seniority. The Court observed that such relief “can be awarded in the future just as well as it could be here and now.” A250-51. In addition, the plaintiffs had delayed nearly three years in making their application, even though the City had made 37 promotions since 31 adopting the list in September 1998, which further undercut the alleged irreparable nature of their injuries. A251-52. The Court concluded that plaintiffs failed to establish a likelihood of success on the merits, noting that the “essential problem is the absence of proof.” A252. While the plaintiffs had come forward with “some proof, to indicate, in a preliminary way, that the 1998 promotion exam disparately impacted Black candidates,” it noted that “there is nothing in the record to indicate whether the promotion exam of 1998 was adequately job-related or not.” A252-53. At the same time, though, the Court made clear that the absence of evidence was neither surprising, nor an indication of the ultimate merits of the case, given the complex issues of proof involved in evaluating exam validity: Plaintiffs’ preliminary showing that the 1998 exam may have disparately impacted Black candidates is not, standing on its own, enough to justify the drastic relief requested. The court appreciates the fact that the absence of proof on this issue is not the fault of plaintiffs. Nevertheless, this court’s past experience with validation disputes over civil service hiring tests, in the Police Case, 73-CV-414, and the Fire Case, 74-CV-195, is that relief is appropriate only after there has been a substantial airing of the issues surrounding the test. These test validity questions involve consideration of complicated testimony from various experts. So, a finding of whether a test is valid or not cannot be made quickly or lightly. Given the absence of critical proof, the court cannot say 32 one way or the other whether plaintiffs have a substantial likelihood of prevailing on the merits. A253 (emphasis in original). Notably, the district court never ruled that the “City of Buffalo not only could but should promote off of the Civil Service list out of concern for public safety,” as the plaintiffs now maintain. Pls.’ Reply Br. 82. While the court acknowledged the City’s interest in public safety (A249-50), it was only one of a number of factors considered when denying the plaintiffs’ preliminary injunction application. Contrary to the plaintiffs’ assertions, the denial of the MOCHA I plaintiffs’ motion for failure to meet their evidentiary burden is not equivalent to the granting of affirmative relief to the City or a determination that the lists were valid. Indeed, the district court expressly stated it was unable to make such a finding on the record before it. 2. The Hynes Article 78 Proceeding In 2005, a group of Caucasian firefighters and their union, the Buffalo Professional Firefighters Association, Local 282, IAFF, AFL-CIO (the “Union”) commenced a C.P.L.R. Article 78 proceeding entitled Hynes v. City of Buffalo, Index No. I2005-11989. A79. The petitioners included all of the plaintiffs in the later commenced Margerum action, except Kertzie. The Hynes petition challenged the City’s determination to permit the fire promotional eligible lists to expire, 33 claiming that the decision violated the Civil Service Law and the Merit and Fitness Clause of the State Constitution. A82-83. The proceeding did not allege racial discrimination or violations of the Human Rights Law. A79-103. The petitioners sought reinstatement of the eligible lists, permanent promotions from those lists, and back pay awards. A102. On October 25, 2006, Justice Michalek held a hearing5 during which Commissioner Matarese gave testimony. When asked why he made the decision to allow the lists to expire, Commissioner Matarese explained that it had become clear to him that there was a “serious challenge to the validity of these examinations,” after he had begun to familiarize himself with the MOCHA litigation and consulted with experts in preparation for mediation: Q: And, Commissioner, did there come a time when you determined not to extend eligible lists for the promotional titles in the Buffalo Fire Department? A: Yes. Q: When was that? 5 At the same hearing, the trial court also heard testimony relating to a separate proceeding, which was brought by plaintiff Fahey and the Union, Fahey v. City of Buffalo, Index No. 2006/3371. The trial court heard and decided both matters in unison, as they both related to alleged violations of civil service procedures arising from the City’s determination to permit the eligible lists to expire. A119-20. 34 A: I first began seriously considering that in the summer of 2005. As I got more involved in the litigation, the MOCHA litigation that’s been referred to previously, throughout the summer and into the fall I did everything I could to familiarize myself with the situation in that litigation and also what the challenges were to the then existing list. And as the list came to expire, I made a determination in one case to let them immediately expire the battalion and the division chiefs’ list, and then in the lieutenant and captains’ lists, ultimately allow them to expire in January of the next year. Q: Commissioner, can you explain why you let the lists for these promotional fire titles expire? A: Well, the first issue is the very serious discrepancy with regards to the number of minority supervisors in the Buffalo Fire Department. There’s approximately two hundred civil service supervisory positions in the fire department and only about ten of them are held by African- Americans. That in itself raises very serious concerns to me that there’s something going on in the testing process that’s somehow or another preventing individuals from being promoted through the ranks. The fire department’s about forty percent minority at this time and we still only have ten individuals, ten African-Americans in supervisory positions. So that in and of itself raises serious questions to me about the testing procedure. And then when I started to look further into the entire process in which the testing procedure is developed and the outcomes and in speaking with our experts, it became clear to me that there was a serious challenge to the validity of these examinations. I had to make the decision as to whether to continue to allow these 35 exams to produce permanent appointments, which I believe would subject the City to considerable liability through the ultimate litigation in the MOCHA, case and potentially additional litigation. And that led me to the conclusion that it was in the best interests of the City and fire department and the matter of just justice to let the list expire and pursue alternative testing mechanisms. A1065-66 (emphasis added). On cross-examination, the Commissioner further reiterated that his concerns boiled down to questions about whether the promotional exams could be used in light of the questions about their validity: Q. You stated on direct examination that there were - that you became aware that there were problems with the validity of the lieutenant’s exam, correct? A. Yes. Q. And what problems are those? A. My concern is and the problems rely around - revolve around the issue of can this be validated in such a way that will permit the City to continue to operate in a course of action that’s producing a very, very limited number of African-American males being promoted off of these examinations. That’s the heart of the issue. A1120. (emphasis added). 36 Commissioner Matarese was also asked whether he had considered public safety concerns in permitting the eligible lists to expire. A1107, 1139. He responded that, after several discussions with the City’s Fire Commissioner, he had reached the conclusion that the City could mitigate the risks to public safety through the use of provisional appointments to fill promotional vacancies temporarily, while the City was in the process of developing the new promotional examinations. A1139. So, overall the policy considerations weighed in favor of permitting the eligible lists to lapse, particularly since Commissioner Matarese believed that new examinations would be a better measure of job aptitude and thus select better candidates for permanent promotion. A1107-08, 1139-40. The trial court issued its decision in Hynes on December 20, 2006. A118-31. In a lengthy decision dotted with philosophically-posed rhetorical questions and ponderings about the interplay with the federal lawsuit, the trial court recognized that the City, “ha[s] done more than [a] credible job in setting forth the reasonableness of its present course of action, i.e., expired lists, trying to settle [the] Federal Action, seeking out a new better Civil Service test company, and how they are moving forward to have some [tests] ready for application, between May and December of 2007.” A129. And Justice Michalek denied reinstatement of various eligible lists and promotions from those lists. A130. 37 The court was also “convinced the City, with Commissioner Matarese, ha[d] worked very hard, in contacting companies to draft a new Service exam which would hold up under scrutiny and be nondiscriminatory.” A127. Despite this, the trial court nonetheless determined that the time the City was taking to develop these new exams, during which time there was no Civil Service exam to be offered, was “unreasonable” because it delayed testing and permanent appointments. A130. So, on that basis, the trial court further ordered the City to proceed with Civil Service examinations in certain circumstances and directed the City to pay the petitioners’ attorneys’ fees. A130-31. Both parties appealed from the judgment. On June 6, 2008, the Fourth Department modified the trial court’s judgment by dismissing the petition in its entirety and striking the award for attorneys’ fees and costs. See Hynes v. City of Buffalo, 52 A.D.3d 1216, 1216 (4th Dep’t 2008). In reaching this result, the Fourth Department further agreed with the trial court that the City’s decision to permit the eligible lists to lapse met the rational basis test: [T]he [trial] court properly concluded that the respondents’ determination to permit the eligibility lists at issue to expire was not arbitrary, nor was it made in bad faith. The petitioners thus were not entitled to have 38 the eligibility lists revived or the appointments proposed from those lists processed. Id. at 1217.6 3. The Grievance Arbitration Before Arbitrator Lewandowski In addition to participating in the Hynes proceeding, the Union also filed a grievance on February 2, 2006, alleging that the City violated certain provisions of the collective bargaining agreement by allowing the promotional lists to lapse and by failing to fill promotional vacancies before doing so. A132, 134, 152-53. The grievance did not allege racial discrimination; it was purely a contractual dispute. A152-53. After conducting a hearing, Arbitrator Michael Lewandowski issued a January 22, 2007 decision denying the grievances (A132-53), which summarized the arguments and the “extensive testimony and documentary evidence,” including a short overview of the reasons why Matarese permitted the lists to expire: Testimony and evidence showed that Human Resources Commissioner Leonard Mattarese [sic] had decided to permit the expiration of these lists because there were two on-going Federal lawsuits brought by African- American firefighters claiming the that the [sic] 1998 and 2002 eligible lists for the position of Lieutenant were 6 In the same decision, the Fourth Department likewise dismissed the Fahey proceeding in part, including the attorneys’ fee award, although it affirmed the decision with respect to one item of injunctive relief. See Hynes, 52 A.D.3d at 1217. 39 discriminatory in their impact. Mattarese [sic] testified that upon his review, he determined that the examination outcomes that were the basis for the lists showed a disparate result as the results applied to minorities. Mattarese [sic] said he concluded that the disparate result he found would present a liability for minorities at the Lieutenant examination level and higher. Based on the above, Mattarese [sic] said he let the Division Fire Chief and the Battalion Chief lists expire but held judgment on the Lieutenant and Captain lists. He extended the Lieutenant and Captain lists pending settlement discussions in the lawsuit. Mattarese [sic] said that after determining there was a problem with the lists; using the lists to make appointments would have exacerbated the legal challenge and would have exposed the City to greater liability not to mention that the use of the lists would have, in his opinion, resulted in discrimination against minorities. A135-36 (emphasis added). In explaining why the decision to let the lists expire did not violate the collective bargaining agreement, Arbitrator Lewandowski emphasized that Matarese acted to limit the City’s liability in light of concerns that the examination process was discriminatory: The facts show that Commissioner Mattarese [sic] did not refuse to extend the lists simply because of who was on the lists or out of total disregard for the selections of the Fire Commissioner. The facts show that the lists were [not] extended because Mattarese [sic] felt the examination process was discriminatory to minorities and because he wanted to limit the City’s liability in the pending lawsuits. While Mattarese [sic] may have been or may not have been correct in his determinations as to 40 the improper bias of the exams and resulting lists, there is no evidence to show that Mattarese [sic] let the lists expire simply to avoid the language of Article 16 . . . . [The CBA] does not mandate that Mattarese [sic] extend lists that he deems discriminatory or that any other officer of the City take an action he/she would deem improper or harmful to the City by passing on appointments that would be deemed improper or illegal. Mattarese [sic] was doing his part of the appointment process and was not denying the requests based on bad faith assumptions to avoid the appointments. A148-49. The Union did not object when the City subsequently sought confirmation of Arbitrator Lewandowski’s award, denying the grievances. A76. 4. The Grievance Arbitration Before Arbitrator Foster The Foster Arbitration arose from a grievance filed by the Union on December 4, 2006, which alleged that the City’s determination to permit the eligible lists to expire violated the anti-discrimination provision of the collective bargaining agreement.7 On February 3, 2009, after conducting a hearing (while both Margerum and MOCHA were still pending), the arbitrator issued a decision denying the grievance because, among other reasons, the Union was unable to 7 Records relating to this proceeding are not contained in the Record. The plaintiffs have attached to their Reply Brief a copy of the ruling on the subsequent motion to vacate the arbitrator’s determination, from which the facts in this section are drawn. 41 identify any provision of the collective bargaining agreement that the City had applied unequally, among other grounds. See Buffalo Prof’l Firefighters Ass’n, IAFF Local 282 v. City of Buffalo, Index No. 3580/2007, at p. 5 (Erie Cnty. Aug. 25, 2009) (a copy of this decision is appended to the plaintiffs’ Reply Brief). Subsequently, the Union commenced a C.P.L.R. Article 75 proceeding in Supreme Court, Erie County, (Dillon, J.) seeking to vacate the award. See id. That court issued a decision on August 25, 2009 vacating the arbitration on public policy grounds because the arbitrator’s February 9, 2009 decision did not consider three subsequently released decisions, namely the March 9, 2009 decision in MOCHA I, the Fourth Department’s June 5, 2009 decision in Margerum applying strict scrutiny analysis, and the U.S. Supreme Court’s June 29, 2009 decision in Ricci, which established the “strong-basis-in-evidence” standard. On appeal, the Fourth Department affirmed the trial court without opinion. See Buffalo Prof’l Firefighters Ass’n, IAFF Local 282 v. City of Buffalo, 79 A.D.3d 1737 (4th Dep’t 2010). The City’s motion for leave to appeal was thereafter dismissed for nonfinality. 17 N.Y.3d 854 (2011), reargument denied, 18 N.Y.3d 836 (2011); see also 83 A.D.3d 1602 (4th Dep’t 2011). As a result of the vacatur, the proceeding was remanded to a new arbitrator for hearing. See Buffalo Prof’l Firefighters Ass’n, IAFF Local 282, 42 Index No. 3580/2007, at p. 11. As explained in the City’s Statement of Related Litigation, no hearing has occurred because the arbitration has been stayed pending the outcome of this appeal. C. THE PLAINTIFFS’ CRITICISMS OF THE CITY AND MATARESE ARE FOUNDED UPON A MISAPPLICATION OF RICCI AND A DISTORTION OF THE FACTUAL RECORD Plaintiffs’ Reply Brief offers little more than a cacophany of misleading statements, non-contextual quotations, contrived inconsistencies, factually unsupported accusations, and attempts to impugn the credibility of Commissioner Matarese with statements he made in Hynes and the grievance arbitrations identified above, even though these proceedings involved different substantive issues. While plaintiffs fundamentally agree with the Second Circuit’s teaching in Brennan that the strong basis in evidence test is to be measured as of the time the decision was made, (Pls.’ Reply Br. 37-38) they do their best to confuse the timing and sequence of events. They repeatedly try to charge Matarese with knowledge of past events, knowledge of information he did not possess, or knowledge of future events that had not yet occurred. The overriding theme to plaintiffs’ argument is the assumed validity of the tests. Plaintiffs assert that the tests are absolutely valid, that the City always knew or should have known the tests were valid, that the City properly certified the 43 tests (even though the City doesn’t certify tests), that the City always maintained the tests were valid since being sued by the MOCHA plaintiffs, that the City validly promoted from the lists during the MOCHA litigation, and that the City ultimately prevailed in MOCHA. Pls.’ Reply Br. 6-10, 42-43, 51-52. Plaintiffs further use the trial outcome in MOCHA to bolster their conclusion that MOCHA only confirmed the known validity of the tests. Pls.’ Reply Br. 68-69, 73. They then assert that, because the City faced no liability for a known valid test, the City could never have an objectively strong basis in evidence to conclude it would be subject to disparate impact liability. Therefore, plaintiffs’ argument concludes, the City should not be afforded protection under Ricci for allowing the lists to expire and denying the plaintiffs their right to promotion. Pls.’ Reply Br. 69-78. The plaintiffs’ arguments, however, are entirely superficial and based upon assumption and misdirection. Their presentation lacks evidentiary substance, misses the overarching premise of Ricci, and assumes far too much. The plaintiffs avoid discussing the evidence that is meaningful here - which is uncontroverted and which supports a conclusion that the City had a strong basis in evidence to believe it would be subject to disparate treatment liability if it failed to act when it did. The fact that some evidence tends to support the validity of the tests, or that the meaning behind a particular event is subject to dispute or interpretation, does 44 not mean that the City did not act upon a strong basis in evidence. Ricci does not require certainty. Indeed, Ricci’s protection kicks in at something less than a preponderance of the evidence, but more than a mere fear of litigation. United States v. Brennan, 650 F.3d 65, 109-10 (2d Cir. 2011). Ricci thus leaves ample room for judgment calls where reasonable minds might differ, and affords protection even if those calls are later proven incorrect or someone else might have decided them differently at the time. 1. Plaintiffs Ground Their Arguments in Distortion and Misrepresentation of Matarese’s Motivations The plaintiffs argue that the City should be “stuck with Matarese” and should be estopped from expanding upon the testimony he gave in Hynes. Pls.’ Reply Br. 56. A core building block of this argument is the plaintiffs’ characterization of Commissioner Matarese’s motivations for permitting the eligible lists to expire, which they suggest were inherently suspect so as to defeat the City’s strong basis in evidence. Specifically, plaintiffs argue that Matarese was motivated by four things, none of which involved validity: (1) his “focus on the numbers” and personal desires to correct racial imbalance by not promoting Caucasians; (2) avoiding further litigation; (3) limiting the City’s financial exposure; and (4) settling the MOCHA litigation. Pls.’ Reply Br. 39, 41, 43, 48. But while plaintiffs offer up these arguments with an indignant tone, they never 45 explain why any of Commissioner Matarese’s motivations were in any way improper or otherwise at odds with the City’s strong basis in evidence when considered in proper context or with regard to the sequence of events as they actually happened. While plaintiffs focus on these four themes throughout their brief, they also ignore the remainder of Commissioner Matarese’s statements in Hynes which reflect not only that he had serious concerns about the validity of the promotional exams, but that he consulted on that issue with experts before making his decision. Plaintiffs argument seems to be that because Matarese did not expand upon his validity concerns in Hynes, he should be estopped from doing so now. But that ignores the purpose and context of the testimony he gave at the time he was questioned. a. Statistical Disparity Plaintiffs insist that Commissioner Matarese was unconcerned with the validity of the promotional examinations and acted based almost exclusively on statistical disparity and his own personal quest to resolve perceived racial imbalances in the Fire Department. As the sole support for that conclusion, plaintiffs argue that Matarese’s testimony in Hynes repeatedly referenced statistical 46 disparities but contained no discussion of specific validity evidence or Dr. Murphy’s or Dr. Abrams’s criticisms of the examinations. Pls.’ Reply Br. 39-43. From this false premise, plaintiffs argue that the City is bound by Matarese’s prior testimony and the City therefore had no strong basis in evidence. Pls.’ Reply Br. 39. While Matarese certainly referenced statistics and concerns about racial imbalances in the number of minority supervisors, the conclusion that Matarese permitted the lists to expire based a personal mission to resolve racial disparity, without regard to validity, is factually unsupported. What plaintiffs characterize as evidence are no more than a few snippets of Commissioner Matarese’s testimony in Hynes in which he discussed numerical racial imbalances. There is nothing inherently suspect or improper about Matarese’s “focus on the numbers” or his recognition of the stark racial disparities within the Fire Department. See, e.g., Pls.’ Reply Br. 41-42. Frankly, the identification of a statistical racial disparity is the logical starting point for identifying a potential disparate impact problem with the ongoing use of a selection device. And it should be no surprise that Matarese - as the City’s chief human resources professional - paid attention to the demographics of the firefighter workforce, especially in light of the continuing federal court supervision under the Remedial Decree. Indeed, one of the discriminatory practices that led 47 the District Court to impose the Remedial Decree was an employment examination for entry-level firefighters, which likewise had been developed by NYS Civil Service. United States v. City of Buffalo, 457 F. Supp. 612, 623 (W.D.N.Y. 1978). As the plaintiffs themselves ackowledge, an examination that statistically favors one racial group over another is presumptively “impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” A1165 (quoting Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975)); Pls.’ Reply Br. 71. A plaintiff thus establishes a prima facie case of discrimination by demonstrating a disparity in pass rates among applicants of different groups. Ricci, 557 U.S. at 578. So there is nothing inherently suspect or impermissible about Commissioner Matarese identifying concerns about statistical disparities in the number of minorities holding supervisory firefighter positions. The fact that Matarese found the statistics disconcerting and questioned the racial imbalance is not proof that he permitted the examinations to lapse solely or even largely on this basis, as plaintiffs claim. Nor does it prove that validity was not one of his concerns. The mention of racial disparity only proves he was doing his job by questioning whether there might be a disparate impact. 48 Moreover, as plaintiffs point out elsewhere in their brief, the statistical disparities were known and confirmed by Dr. Abrams in 2001. Pls.’ Reply Br. 61. Commissioner Matarese became Human Resources Commissioner in 2002. A441, 1064. So, if statistical disparity and a personal ambition to eradicate racial imbalance were the most significant factors in Matarese’s decision, why is it that the City waited four more years to act? The reason is quite simple and amply demonstrated in the Record. The City was going through the process of collecting evidence and evaluating, with the assistance of an expert, whether the statistical imbalance was the result of an improper selection device or other factors. The plaintiffs repeatedly ignore those portions of Matarese’s testimony in Hynes where he expressed that his overriding concern was whether there was evidence to support the validity of the exams and thus their legality as a selection device. He testified in Hynes that “when I started to look further into the entire process in which the testing procedure is developed and the outcomes and in speaking with our experts, it became clear to me that there was a serious challenge to the validity of these examinations.” A1065-66 (emphasis added). Only then did he conclude “that it was in the best interests of the City and fire department and the matter of just justice” to permit the eligible lists to expire and proceed with hiring an outside consultant to develop new examinations. A1065- 49 66. Matarese likewise testified in no uncertain terms that, “my concern is and the problems . . . revolve around the issue of can this be validated in such a way that will permit the City to continue to operate in a course of action that’s producing a very, very limited number of African-American males being promoted off of these examinations. That’s the heart of the issue.” A1120 (emphasis added). Plaintiffs’ argument that the City acted based on statistical disparity, without regard for validity, is untrue and contrary to the Record. b. Matarese’s Concerns with “Avoiding Litigation” and “Financial Exposure” are Fully Consistent with Ricci The plaintiffs next argue that Commissioner Matarese’s concerns with “avoiding litigation” and “financial exposure” somehow prove that the City could not have had a strong basis in evidence for its actions. Pls.’ Reply Br. 39, 43, 45- 46. True, fear of litigation or liability alone does not justify race-based compliance action. Brennan, 650 F.3d at 109-10. But there is absolutely nothing inconsistent about an employer being concerned with disparate impact liability or litigation and having a “strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” Ricci, 557 U.S. at 585. Indeed, anyone with a strong basis in evidence under Ricci would 50 necessarily be concerned with the implications and potential for litigation and financial exposure that might ensue from failing to take compliance action. At most, the plaintiffs are merely highlighting testimony where Commissioner Matarese was discussing different facets of the same problem. That Matarese expressed concern about the MOCHA litigation as well as the potential for “further litigation” and “financial exposure” does not in any way undermine the City’s strong basis in evidence. Nor is concern about future disparate impact liability inconsistent with a well-grounded belief - based on discussions with the City’s counsel and its expert - that the MOCHA litigation posed a serious challenge to the validity of the examinations. The validity of the examinations had far reaching implications for the City, which could face future disparate impact liability claims if it continued to use the promotional lists. A1065-66. There is no question that a finding of disparate impact against a public employer can readily result in extraordinarily disruptive and expensive injunctive relief in addition to very substantial monetary relief. See, e.g., United States v. City of New York, 717 F.3d 72 (2d Cir. 2013) (affirming principal components of far-reaching injunction, including appointment of monitor to oversee hiring and recruitment in nation’s largest municipal fire department, retention of court jurisdiction through at least 2017, development of new selection procedures, in addition to remanding matter 51 for determination of damages on behalf of approximately 3,100 African-American candidates). And while plaintiffs cite to various characterizations of the City’s legal liability and litigation concerns by other courts and arbitrators, these passages only serve to highlight that the City had legitimate and reasonable concerns about further liability and financial exposure. Pls.’ Br. 45-48, 56-57. These concerns are not proof that the City acted solely out of a fear of litigation or that the City did not have a strong basis in evidence to believe it could face that liability if it did not act. On the contrary, the City’s concerns about liability and litigation were premised upon and are fully consistent with the underlying expert advice and opinions, which reflected that limited evidence was available to actually support the validity of the examinations. c. Matarese Did Not Permit the Lists to Lapse for Purposes of Settling MOCHA Also confusing and unavailing is the plaintiffs’ criticism that Commissioner Matarese was motivated to expire the eligible lists “in an attempt to settle the MOCHA litigation.” Pls.’ Reply Br. 39, 45-46, 48. Nothing in the Record actually supports this. Plaintiffs contend that both Justice Michalek and 52 Arbitrator Lewandowski made such findings, but the record shows that neither actually did. In fact, they each stated the exact opposite. Justice Michalek noted that Commissioner Matarese extended some of the lists because promotions from those lists might be necessary as part of a Court-ordered settlement of MOCHA. A127 (emphasis added). Arbitrator Lewandowski similarly stated that “[t]he facts . . . show that the Lieutenant and Captain lists were extended because Matarese wanted to use the lists to reach a settlement of the lawsuits.” A149 (emphasis added). In this context, the plaintiffs further grossly distort the Record with the claim that Matarese “first cancelled the Battalion and Division Chief lists for the sole purpose of preventing the promotion of white firefighters.” Pls.’ Reply Br. 13. To support this claim, they quote Matarese as saying, “. . . [T]here didn’t appear to be any reason to continue those [lists]. The problem is that if we kept those lists in place and the longer we kept them in place, the more white males would be promoted into these positions.” Pls.’ Reply Br. 13. But the plaintiffs have truncated Matarese’s statement in midsentence in a misleading way. When the entire statement is read in context, it becomes clear he extended the Lieutenant’s and Captain’s lists for settlement purposes in case the District Court might need to order appointments to resolve the MOCHA actions. In 53 contrast, since there were no minorities on the Battalion and Division Chief lists, there was no purpose in continuing them as there was no possibility of offering appointments off those lists to the MOCHA plaintiffs as part of a court-ordered settlement: Q: Commissioner, why did you let the battalion chief and division chief lists expire in December of 2005 but you renewed the lieutenant and captain lists several times so they did not expire until February of 2006? A: Well, there were a couple of reasons for that. As I mentioned, we were in settlement negotiations with the plaintiffs, the MOCHA plaintiffs. And we had scheduled in late fall a meeting with the federal magistrate in the hopes that we were going to be able to come to some kind of resolution. At that time I thought it would be valuable to keep the list active because one of the remedies we were going to suggest to the plaintiffs and to the court was that we would make some promotions of African-Americans off of those lists from individuals who had passed the exam but not necessarily had scored high enough in the exam to be able to be promoted through the normal process. So we thought there was a value in keeping the list, those lists active. With regards to the battalion and division chief as I’ve already testified, there were no African-Americans on either one of those lists and so there didn’t appear to be any reason to continue those. The problem is that if we kept those lists in place and the longer we kept them in place, the more white males would be promoted into these positions which would exacerbate the imbalance that we have with 54 regard to the number of minority supervisors. So, every day we kept the list going, more people get promoted, makes this problem more serious that we have to go to the Federal Courts for a remedy. A1069-70. The Record demonstrates that Commissioner Matarese made the fundamental decision to allow all of the eligible lists to expire based upon concerns, backed by two different experts, that there was limited evidence supporting the validity of the examinations. A443-46, 1065-66. That Matarese temporarily extended and delayed the expiration of the lieutenant and captain lists out of concern that the City might be required to make promotions from those lists as part of a Court-ordered settlement in MOCHA I is not inconsistent with the City having a strong basis in evidence under Ricci. Indeed, once it became clear that the mediation with the MOCHA plaintiffs was unlikely to be successful, Matarese allowed the lieutenant’s and captain’s lists to lapse. A448, 1070-71. Significantly, he took this action even though at least one African-American candidate would have been reachable because the problem with the lists was “structural.” And the continued use of the lists “would have [made] the matter worse and expos[ed] the City to even greater liability . . . when it came to the ultimate resolution of the Federal Court case.” A1071-72. 55 Simply put, there is no evidence in the Record demonstrating that the City permitted the eligible lists to lapse “in order to attempt to settle the MOCHA litigation.” As such, plaintiffs’ unsupportable assertion is foundationally bereft and unhelpful to the Ricci analysis before this Court. 2. The Plaintiffs’ Collateral Attack on Matarese’s Credibility is Premised upon the Same Defective Assumptions and Disregard of the Record Evidence as Their Other Arguments The plaintiffs further argue that the City should be “estopped” from relying upon the evidence of invalidity as explained by Dr. Murphy and Dr. Abrams because Commissioner Matarese’s testimony that he relied heavily upon this information is purportedly not credible. Plaintiffs’ argument does not take issue with the substance of those expert conclusions, or contend here that the validity critiques of Dr. Murphy or Dr. Abrams were insufficient to satisfy the strong basis in evidence test. They instead assert that it is not credible to believe that Matarese relied upon that evidence when he made the decision. Pls.’ Reply Br. 39-40. The foundation for their credibility argument proceeds from the same unsupportable premise that Matarese acted only in accordance with the four motivations discussed in Point II.C.1. above, again realleging that Matarese never specifically mentioned the Dr. Murphy or Dr. Abrams critiques in his testimony in 56 Hynes or the grievance arbitrations. Therefore, plaintiffs conclude, the expanded testimony provided in this case is not credible and the City should be estopped from relying upon it. Pls.’ Reply Br. 39-42. Their argument is one of estoppel as a way to avoid looking at the evidence, not an attack on the evidence itself. Plaintiffs’ repetitious mischaracterizations of Commissioner Matarese’s motives as being limited to only those four that they choose to emphasize is hardly a basis to claim that Matarese testified inconsistently. Plaintiffs refuse to address the portion of Matarese’s testimony in Hynes where he expressed concerns about test validity and consulted with experts before making the decision. A1065-66. Commissioner Matarese also explained in detail the reasons why the City concluded it was necessary to permit all the promotional lists to expire even though MOCHA had only directly challenged the lieutenant’s examination in terms that unambiguously reflected the advice that he had received from Dr. Abrams: Q: And, Commissioner, what position is the MOCHA litigation directed at specifically? A: The current litigation is directed at the fire lieutenant’s examination. Q: Okay. Why did you let the eligible lists for the other three positions, captain, division chief and battalion chief expire as well? 57 A: Well, there’s several reasons. First, all of those exams were produced by the same organization that produced the lieutenant’s exam, the New York State Department of Civil Service. . . . So these exams, promotional exams, were produced by the same organization and essentially are very similar examinations. They’re just variations of essentially the same types of questions. So the obvious concern is if the lieutenant’s exam is found to be invalid, that would dramatically affect the validity of the other examinations. A1066-67; compare A471-72. Despite this uncontroverted Record evidence, plaintiffs nonetheless persist in arguing that Commisioner Matarese should not be believed because he didn’t expressly testify in Hynes that he relied upon Dr. Murphy or Dr. Abrams. Yet plaintiffs contradict their own arguments and their own credibility, specifically conceding that Matarese did testify that he relied, at least in part, upon Dr. Abrams’s opinions. Pls.’ Reply Br. 44. That Matarese did not specifically detail the advice of Dr. Abrams - which encompassed opinions about statistical disparities, criticism of the Civil Service testimony, and general agreement with Dr. Murphy’s report - does not in any way prove that the City’s strong basis in evidence did not encompass Dr. Abrams’s advice and analysis. The reasons those details were not expanded upon in Hynes must be viewed in context. 58 Dr. Abrams was the City’s consulting expert, engaged for the specific purpose of assisting the City with evaluating the validity and disparate impact of the examinations and the strength of the City’s defense in MOCHA. Hynes was an Article 78 proceeding alleging violations of the Civil Service Law, a matter subject to “rational basis” scrutiny. A79-117. The legal issues and burden of proof in those cases were distinct from those presented here. A1252-56. Not only was there no need for the City to delve into the details of expert opinion and advice to establish a rational basis, it would have been inadvisable to get into such privileged material with the MOCHA litigation still pending. Indeed, the City objected strenuously when opposing counsel attempted to elicit testimony from Commissioner Matarese in Hynes concerning Dr. Abrams on the grounds that she was a non-testifying expert whose communications with the City were privileged. A1117, 1118-19. And even the plaintiffs recognize that the trial court protected the City and Matarese from having to give detailed testimony in Hynes for those reasons. Pls.’ Reply Br. 44; A1264. The mere fact Matarese did not reveal Dr. Abrams’s specific advice or how closely her analysis paralleled Dr. Murphy’s opinions and validity critiques does not undermine the City’s or Matarese’s credibility. Nor does it prove that the opinions 59 of Dr. Murphy or Dr. Abrams were not part of the strong basis in evidence upon which Matarese relied when making the decision. Similarly, the fact that Commissioner Matarese did not directly testify about Dr. Murphy’s opinions in Hynes does not render his testimony inconsistent. Nowhere do plaintiffs point to any questioning where Matarese was directly asked whether he was aware of Dr. Murphy’s opinions or whether Dr. Murphy’s testimony, opinions, or reports influenced his decision. Having never been directly asked these questions in Hynes, there is no legitimate basis to suggest he gave inconsistent testimony or that the City lacks credibility in asserting that Dr. Murphy’s opinions were a part of the strong basis in evidence that prompted the City to act. Again, context is important. Dr. Murphy was the MOCHA plaintiffs’ expert. The City was in the midst of defending itself against the MOCHA actions when Matarese testified in Hynes. In demonstrating the City had a “rational basis,” there was no need to elicit testimony from Matarese about Dr. Murphy’s opinions that could later be used against Matarese or the City in MOCHA or by other potential plaintiffs. The City’s attempt to introduce Dr. Murphy’s deposition transcript without foundation from Matarese (A411) only underscores that the City did not want to open the door to have Commissioner Matarese cross-examined about Dr. Murphy’s opinions, which 60 could have also opened the door to questioning about the advice received from Abrams, including her agreement with many of the conclusions reached by Murphy. Commissioner Matarese’s testimony in Hynes demonstrates an obvious concern with the underlying validity of the promotional examinations. That he was not required to explain those validity concerns in extensive detail in Hynes does not render his testimony inconsistent with the City’s arguments and evidence in this case. The Hynes testimony is fully consistent and foreshadows his testimony in Margerum, even though the legal and factual questions in the earlier matter are distinct from those now at issue. Moreover, the plaintiffs’ insistence that the scope of Matarese’s testimony in the two matters should somehow exactly mirror each other is itself inconsistent with the type and nature of those proceedings as well as plaintiffs’ position below that Hynes and Lewandowski - both of which were decided in the City’s favor - should have no res judicata or collateral estoppel effect here. A15, 1252-56. Given the distinct procedural context and differing standard and scope of proof in each case, plaintiffs’ credibility attack falls flat. The Record evidence demonstrates that the City and Commissioner Matarese maintained a constant and continuing emphasis - in repeated statements made over many years in varying 61 procedural contexts and despite shifting legal standards8 - on compliance with anti-discrimination requirements through implementing appropriate and valid personnel selection procedures. A127, 148-49, 1065-66, 1072. 3. The City’s Defense of the MOCHA Litigation Does Not Estop the City From Relying upon Evidence of Invalidity The plaintiffs next argue that the City should be estopped from relying upon the evidence it has put forth in this case because the City consistently maintained that the exams were valid in MOCHA. As with plaintiffs’ other arguments, plaintiffs cite no actual proof that the City knew the exams were valid as a matter of fact, or that the evidence the City had before it was insufficient to establish a strong basis in evidence to believe it could face disparate impact 8 Under prevailing Second Circuit precedent at the time, the City did not require a strong basis in evidence showing the exams were not valid predictors of job performance in order to undertake race-conscious compliance action; evidence of a statistical racial disparity alone was sufficient. See, e.g., Bushey v. NYS Civil Serv. Comm’n, 733 F.2d 220, 228 (2d Cir. 1984) (“[A] showing of a prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies.”); Hayden v. Cnty. of Nassau, 180 F.3d 42, 50 (2d. Cir. 1982) (holding that governmental purpose in avoiding disparate impact discrimination on a protected group, in spite of adverse effects upon other identifiable groups, did not evince an intent to discriminate); see also United States v. Brennan, 650 F.3d 65, 98 (2d Cir. 2011) (explaining pre-Ricci standard for race-based voluntary compliance of suspected disparate impact violations). 62 liability if it failed to act when it did. Plaintiffs, once again, do not respond to that critical inquiry with any contrary record evidence. What plaintiffs offer as “fact” or “evidence” is no more than their own speculative conclusion, which they engineer by implication and the trial outcome in MOCHA. First, plaintiffs conclude that defending the exams in MOCHA somehow proves that the exams were valid and, therefore, the City should be estopped from claiming otherwise in this case. Pls.’ Reply Br. 6-10, 51-53. But nothing in Ricci requires the City to have conceded liability to the MOCHA plaintiffs before permitting the eligible lists to expire. The Supreme Court expressly rejected the proposition that an employer cannot act unless there is a “provable, actual [disparate impact] violation” specifically because such a rule would undermine voluntary compliance by employers. Ricci, 557 U.S. at 583. And as explained in more detail at Point II.D.4., infra, the City’s litigation strategy at the MOCHA trial, some three years after the lists were permitted to expire, is not evidence of the validity of the examination or relevant to the Ricci analysis. Second, plaintiffs incorrectly assert that Commissioner Matarese admitted the tests were valid in his October 2006 testimony in Hynes, a year after permitting the lists to expire. But plaintiffs misrepresent the substance and context of the very testimony they quote. Matarese was not asked whether the exams were 63 valid or invalid as a matter of fact or proof. A261. Indeed, the trial court had ruled that the City need not disclose the substance of the opinions of its consulting expert (A1116-19) which would have gone directly to the validity issues. Thus, the context and import of the testimony cited by plaintiffs is limited. After counsel first confirmed that the MOCHA litigation had been ongoing for eight years, counsel merely asked whether the City had consistently maintained throughout the MOCHA litigation that the lieutenant’s exam was valid and had no discriminatory impact. A261. The City has never disputed that it maintained that defense in MOCHA. But the fact the City took a consistent litigation position does not prove the validity of the examinations as an uncontested fact or that the City did not have a strong basis in evidence when it permitted the lists to expire. Defendants regularly defend cases and proceed to trial on weak evidence, especially where the case has far-reaching liability implications, presents a significant damage exposure, and cannot be settled on acceptable terms. A defendant faced with such exposures, and who faces only an estimated 10%, 20%, or even 30% chance of winning, may still reasonably “take a shot” at winning at trial even on poor odds. In doing so, however, it must be remembered that such a defendant still faces a 70%, 80%, or 90% chance of losing. The City faced the same choice here when it elected to proceed to trial in MOCHA. It had a difficult 64 case with a large liability exposure that could not be settled. The City’s own expert had concluded that there was limited proof of validity and she had advised the City not to call her at trial because she largely had confirmed and expanded upon the sharp criticisms levied by Dr. Murphy. So the fact the City defended the MOCHA case on long odds and slim evidence does not prove that the City did not have a strong basis in evidence for Ricci purposes. Third, plaintiffs claim that because the City’s attorneys argued in their 2008 post-hearing brief in MOCHA that the MOCHA plaintiffs’ claims were “meritless,” they should be estopped from claiming otherwise in this case. But zealous advocacy three years after the decision was made is not evidence of anything. It is argument of counsel and litigation strategy, not factual proof of validity or evidence that the “City never believed its examinations were anything other than valid and non-discriminatory.” Pls.’ Reply Br. 56. Advocacy is, indeed, central to our system of adversarial justice. So, the City’s purportedly “aggressive and enthusiastic defense in the MOCHA litigation” (Pls.’ Reply Br. 56) proves only that the City found itself between a rock and a hard place, and made the most of the limited evidence it had available through strong advocacy and effective persuasion. 65 4. The Plaintiffs’ Gross Mischaracterization of Ricci Further Underscores Their Distortion of the Facts Here The plaintiffs attempt to contrast favorably New Haven’s decision making process in Ricci, which they suggest was more thorough than the City’s decision making here, despite New Haven having ultimately lacked a strong basis in evidence. Pls.’ Reply Br. 5, 28-29. But the plaintiffs’ characterization of the facts in Ricci - much like their characterization of the facts here - is grossly distorted. The plaintiffs thus quote the Ricci Court as purportedly characterizing New Haven’s inquiry into the exam results there as “open, honest, serious, and deliberate.” Pls.’ Reply Br. 28. In fact, this is Justice Alito’s summary of the dissent’s view of New Haven’s decision making process. Ricci, 557 U.S. at 598. As a member of the majority, Justice Alito’s own view of the evidence was entirely different. He thus suggests that “city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of . . . influential leaders of New Haven’s African American Community.” Id. Here, in stark contrast, there is nothing in the Record that even remotely suggests that Commissioner Matarese or any other City official was bowing to pressure from outside groups in permitting the eligible lists to lapse. To the contrary, the City continued to vigorously defend 66 against the claims brought by the African-American MOCHA actions, even while concluding that voluntary measures were necessary to ensure legal compliance. Likewise, there is nothing whatsoever in the Record suggesting that the City “turned a blind eye,” which, as the plaintiffs emphasize, was one of the Supreme Court’s principal criticisms of New Haven and a basis for the trial court’s decision in their favor below. Pls.’ Reply Br. 18, 29. New Haven deliberately did not request a validity report from its exam developer, even though its contract with the exam developer required the report and the developer stood ready to provide it. Ricci, 557 U.S. at 589. Here, though, there is no basis whatsoever for the plaintiffs’ groundless insinuation that the City ignored evidence supporting to the exams’ validity. Through discovery in MOCHA, the City obtained all the available evidence concerning the examination’s validity from New York State Civil Service. The City further retained its own expert, Dr. Abrams to defend the state exams. Only after Dr. Abrams conducted an exhaustive review of the evidence - including the deposition transcripts of Dr. Wendy Steinberg and Paul Kaiser, who devised the exam - and notified the City of her serious concerns, did the City conclude that voluntary compliance action was necessary. A443-46, 476-473. In this way, with Dr. Abrams’s assistance, the City made its decision to permit the 67 lists to lapse based on a complete, thorough, and unbiased review of all the evidence. 5. The Plaintiffs Ignore the Ultimate Teaching of United States v. New Jersey The plaintiffs likewise insist that the facts and circumstances in United States v. New Jersey are so different than those here that it does not possibly support safe-harbor protection here. But the plaintiffs seize upon irrelevant differences. The main teaching of New Jersey - that the U.S. Supreme Court never intended the Ricci harbor to be unattainable - remains unimpeached. See United States v. New Jersey, 2012 U.S. Dist. LEXIS 113175 (D.N.J. June 12, 2012), aff’d, 522 Fed. Appx. 167 (3d Cir. 2013), cert denied, ___ U.S. ___, 134 S. Ct. 527 (2013). The plaintiffs thus emphasize, among other circumstances, that the plaintiff in New Jersey was the United States government, the defendants ceased litigating and conceded liability, and a fairness hearing was held where intervenors had the opportunity to object. Pls.’ Reply Br. 54-55. But none of these factors speak to the substance of the strong-basis-in-evidence inquiry performed by the District Court in approving the settlement. Rather, they concern the concededly different procedural history and posture of the matter. Notably, nothing in New 68 Jersey suggests that the district court applied a different or more lenient standard. See New Jersey, 2012 U.S. Dist. LEXIS 113175. In fact, the district court agreed with the intervenors in that case that Ricci was squarely applicable and the strong- basis-in-evidence test had to be met before the Consent Decree could be approved. Id. at *50-52. The plaintiffs further make no effort to explain why the different procedural circumstances should matter. Indeed, had the City been able to reach a voluntary resolution of the MOCHA class actions, the outcome here from a procedural standpoint would have closely paralleled New Jersey, too. The district court would have held a fairness hearing and affected Caucasian firefighters could have sought to intervene. See FED. R. CIV. P. 23(e), 24. And, assuming they had, the settling parties in MOCHA would then have had to justify both the reasonableness and legality of the settlement, in much the same way as the parties in New Jersey were forced to defend the Consent Decree at issue there. See Kirkland v. NYS Dep’t of Corr. Servs., 711 F.2d 1117, 1128 (2d Cir. 1983). So, again, it is impossible to discern how the procedural differences between this case and New Jersey are of any practical import. The substantive inquiry under both postures remains identical. That the City here was unable to settle the MOCHA litigation does not mean it loses the Ricci safe harbor. 69 The plaintiffs also make much of New Jersey’s status as apparently the only case since Ricci was handed down in 2009 that has found the strong-basis- in-evidence standard to be satisfied. But, again, so what? As pointed out in the City’s opening brief, there has also apparently only been one other case since Ricci where the strong-basis-in-evidence standard applied but was found not to be satisfied. Defs.’ Br. 120, n.8. So, this fact in itself is hardly surprising given that Ricci is still a relatively young precedent. Moreover, as we have seen, the Second Circuit has held the strong-basis-in-evidence standard can be satisfied with “an objectively reasonable fear of disparate-impact liability” that is “more than a mere fear of litigation, but less than the preponderance of evidence that would be necessary for actual liability.” Brennan, 650 F.3d at 109-10. So, it is clearly not intended to be an unattainable standard, as the plaintiffs suspect. Notably, the substantive facts the plaintiffs reference in New Jersey only underscore how New Jersey is indistinguishable from this matter. The plaintiffs thus emphasize that the “decision was not rushed or made lightly” and “experts were available.” Pls.’ Reply Br. 55. But the City’s decision here was also not “rushed or lightly made.” As in New Jersey, the decision likewise “was not prompted by the fear of litigation. Rather, it was a calculated decision based on an evaluation of significant evidence, including expert reports and deposition.” 2012 70 U.S. Dist. LEXIS 113175, at *51. The plaintiffs deny this again and again. But their conclusory assertions do not change the Record, which irrefutably establishes that the City’s decision to permit the eligible lists to lapse was deliberate, carefully considered, and based on strong evidence. D. The Plaintiffs’ Criticisms of Certain Evidence Relied upon by the City Are Superficial and Irrelevant to the Ricci Analysis Over the course of pages 58-78 of the plaintiffs’ Reply Brief, plaintiffs attempt to criticize and undermine the significance of certain factual events and testimony relied upon by the City. They do so through superficial conclusions, unfounded assumption, and distortion of the Ricci analysis. When carefully read, the plaintiffs’ arguments are not challenges to the “evidence” itself, but simply more of the same unfounded criticisms of the City and Commissioner Matarese for not acting sooner; for not going into detail about the validity concerns set forth in Dr. Murphy’s report when he gave testimony in Hynes; and similarly, for not revealing in the Hynes proceedings the City’s litigation strategy in MOCHA or the details of privileged advice given by the City’s own expert. Perhaps most revealing about plaintiffs’ argument is that it does not attack or criticize the substantive evidence offered by Matarese and how that evidence accumulated into the strong basis in evidence that supported his ultimate 71 decision. Plaintiffs try to compartmentalize the events as being independent and unrelated, without giving due regard to importance of the information in the context of the decision-making process. And while the plaintiffs lead into their presentation with a title that purports to suggest the evidence is insufficient to satisfy Ricci, it is clear that they are not actually addressing whether the City had a strong basis in evidence. The thrust of their argument suggests instead that the City should somehow be estopped from relying upon the evidence because the City “knew or should have known” that the examinations were, in fact, valid. Again, plaintiffs assume validity of the tests as a matter of unassailable fact and foregone conclusion. But plaintiffs’ claim is not substantiated by any actual proof or evidence known to Commissioner Matarese at the time he made the decision. Instead, once again, plaintiffs rely on their own assumptions and self-serving inferences, drawn from the City’s claimed failure to discuss the details of its expert’s advice in Hynes, the City’s insistence on defending itself in MOCHA, the City’s reliance upon the testimony of Civil Service employees in MOCHA, and the eventual trial outcome in MOCHA. 1. Plaintiffs Misconstrue the Significance of the Remedial Decree Plaintiffs contend the Remedial Decree is “not relevant to the issues raised by MOCHA in either the 1998 or 2003 litigation.” Pls.’ Reply Br. 58. The 72 plaintiffs’ factual premise is illogical and unsupportable. More importantly, whether the Remedial Decree had relevance to issues raised in the MOCHA litigation is utterly irrelevant to the Ricci analysis. What is relevant is whether the Remedial Decree was a piece of the evidence that influenced Matarese’s decision to permit the lists to expire. The uncontested record evidence reflects that it was. A442, 1067. The plaintiffs do not dispute that the federal court maintained ongoing oversight of the City through the Remedial Decree, that Commissioner Matarese knew the City remained subject to it, or that its purpose was designed to remedy the effects of a historic pattern and practice against minorities. A442-43, 451-63, 1067. Indeed, one of the discriminatory practices that led the district court to impose the Remedial Decree was an employment examination for entry-level firefighters. United States v. City of Buffalo, 457 F. Supp. 612, 623 (W.D.N.Y. 1978). To baldly suggest that the Remedial Decree was not a proper piece of evidence to be considered when evaluating whether the City had a strong basis in evidence to act simply belies the Record and all common sense. Plaintiffs also try to suggest that, if Matarese ceased using the lists because they had an unlawful disparate impact, then every past appointment from the list violated the Remedial Decree. Pls.’ Reply Br. 59. But, this argument only 73 confirms the importance and significance of the Remdedial Decree to the ultimate decision, the difficulty of making such a decision, and the importance of that decision to both the City and its firefighters. 2. That the City’s Decision Was Made During the MOCHA I Litigation is Not Proof That There Was No Strong Basis in Evidence for the City’s Decision The plaintiffs argue that because the City knew that the lieutenant’s exam had a marked, disparate statistical impact, which Dr. Abrams confirmed in 2001, it should have determined whether the examinations were valid immediately after the MOCHA actions were commenced in 1998 and 2002, not years later after discovery was exchanged. Pls.’ Reply Br. 60, 62. Having waited until 2005, plaintiffs’ argument continues, the City not only acted unreasonably, but it could do nothing about the disparate impact liability it already faced by using the lists if the tests were, in fact, determined to be invalid. Extending this false logic, the plaintiffs further insist that because the promulgation of the lists occurred in the past, the City could have no future liability for these same actions. On this basis, plaintiffs argue that the City should be estopped by its alleged delay. Pls.’ Reply Br. 60-62. There are multiple problems with plaintiffs arguments. First and foremost, nothing about the plaintiffs’ argument is evidentiary in nature or speaks 74 to Ricci’s strong-basis-in-evidence test. Instead, the crux of the argument posits that the City should be estopped from relying upon its Ricci evidence because, in plaintiffs’ view, the City irrationally or unreasonably waited too long. But they forget that the trial court and the Fourth Department both specifically found that the City had a rational basis for permitting the lists to expire in 2005. A127; Hynes v. City of Buffalo, 52 A.D.3d 1216, 1217 (4th Dep’t 2008). Second, the plaintiffs’ argument rests upon the same false legal premise that liability accrues only once when an illegal practice is adopted, and they keep repeating this false premise throughout their Reply Brief. See Point II.A.3. above. Third, the fact that the trial court may have accepted some of the plaintiffs’ criticisms and distortions, including the mischaracterization of Judge Curtin’s 2001 Order, is not an evidentiary fact for purposes of Ricci’s strong-basis- in-evidence analysis. Judge Curtin’s denial of the MOCHA plaintiffs’ motion for a preliminary injunction in 2001 does not in any way prove the validity of the tests or whether a strong basis in evidence existed in 2005, some four years later. Finally, plaintiffs suggest that the City should have and could have determined validity immediately after MOCHA was commenced, as if there is some type of simple test for doing so (e.g., like a medical provider uses a rapid 75 “strep test” to determine if a patient has strep throat). But that is both unrealistic and nonsensical. If the disparate impact validation were that simple and easy to determine, the MOCHA litigation would not have taken a decade to resolve, this litigation would not exist, disparate impact cases and legal precedent would probably be a fraction of what they are, and the Ricci safe harbor probably would have never been developed. Whether the plaintiffs like it or not, exam validity and disparate impact liability are complicated issues that require input from experts and legal advisors to evaluate and, in the final analysis, often come down to a judicial determination that cannot be predicted with a high degree of certainty. Indeed, Judge Curtin’s 2001 Order - the authority of which the plaintiffs surely would not question since they themselves repeatedly reference it - emphasizes that “[t]hese test validity questions involve consideration of complicated testimony from various experts. So, a finding of whether a test is valid or not cannot be made quickly or lightly.” A253 (emphasis added). Simply put, the mere fact Commissioner Matarese made the decision in 2005 is not proof that he did not have a strong basis in evidence for that decision. Unlike the City of New Haven in Ricci, the City of Buffalo and Commissioner Matarese did not rush to judgment based on statistical disparities alone. See Ricci, 557 U.S. at 587. Matarese joined the City in 2002. He 76 acknowledges that, “for the first year that I was in the City, the case was dormant, and . . . I made . . . the assumption that . . . it was a state examination and that ultimately the State could prevail in it.” A1068. After becoming actively involved with the case and consulting with Dr. Abrams about the deficiencies of the exam that had become evident to her after reviewing all the available evidence, Matarese came to realize the seriousness of the MOCHA plaintiffs’ claim and the implications for the City’s promotional procedures. A1065-66. The City had the benefit of discovery in MOCHA and input and advice from its expert and legal advisors. The timing of the City’s decision to permit the eligible lists to expire therefore only underscores that it was a carefully considered, evidence-based determination made neither in haste nor lightly undertaken, and whose aim was to achieve compliance with applicable legal standards while ensuring the selection of the best qualified candidates for promotion. A446-47. 3. The Mere Fact Matarese Did Not Reference the Civil Service Deposition Testimony or the Dr. Murphy Report in Prior Proceedings Does Not Prove the City Lacked a Strong Basis in Evidence Plaintiffs claim that the City lacked a strong basis in evidence to allow the lists to expire because the City knew or should have known that the tests were valid based on the depositions of Dr. Steinberg and Mr. Kaiser - the creators of the exam series. They go on to assert that Commissioner Matarese’s failure to cite 77 their testimony or Dr. Murphy’s criticisms of that testimony as a reason for permitting the lists to lapse somehow proves that the City lacked a strong basis in evidence. Simply stated, plaintiffs’ arguments and protestations prove nothing. A962-82. As plaintiffs recognize, Dr. Steinberg and Mr. Kaiser gave testimony in January/February 2003 and January 2004, respectively. Plaintiffs also recognize that obtaining these depositions and information regarding the creation of the tests did not come from voluntary cooperation by NYS Civil Service, but became available to the City only through litigation subpoenas issued to that state agency during the course of discovery in MOCHA. Pls.’ Reply Br. 62. The City thereafter received in February 2004 an expert report from the MOCHA plaintiffs’ expert - Dr. Murphy - which heavily criticized the process undertaken by civil service in the development of the tests and who opined that the tests were invalid. The decision to permit the lists to lapse came in late 2005, a year-and- a-half later. In the interim, the City’s own consulting expert - Dr. Abrams - reviewed both Dr. Murphy’s report and the evidence and testimony of the NYS Civil Service witnesses. A465-73. And as plaintiffs readily acknowledge later in their brief, Dr. Abrams concluded from her review that there was “limited” 78 evidence supporting the validity of the examination. Pls.’ Reply Br. 68; A470-71.9 Plaintiffs apparently argue that the City should have blindly accepted the testimony of the civil service witnesses and concluded that the exams were absolutely valid, notwithstanding the deep criticisms levied by both Dr. Murphy and Dr. Abrams. Plaintiffs also try to make much of the fact that Commissioner Matarese never personally read the transcripts of the civil service witnesses and the MOCHA plaintiffs’ expert. But this criticism proves nothing for Ricci purposes. It is not uncommon in litigation for a witness to not have read transcripts of other witnesses. That Matarese did not read the transcripts, or that a proper foundation was not laid for introduction of Dr. Murphy’s deposition in a separate proceeding turning on distinct legal and factual questions, is not proof that Matarese did not become aware of the deficiencies in the tests. Nor is it proof that the examinations were valid, or proof that the City and Matarese knew the plaintiffs would ultimately fail to meet their burden of proof at trial in MOCHA. Indeed, both Matarese and Dr. Abrams’s testimony shows that he consulted with her concerning 9 Specifically, Dr. Abrams stated: “I informed the City of my opinions and advised them that there was a substantial risk that the MOCHA plaintiffs would prevail against the City because the scientific evidence supporting the validity of the Lieutenant’s Examination was limited.” 79 Dr. Murphy’s opinions and the other evidence that the City faced in MOCHA. A445, 470-71. The testimony of Dr. Steinberg and Mr. Kaiser must be viewed for exactly what it is - the testimony of two NYS Civil Service employees explaining the facts of how they developed the examinations, including the underlying research, information, and assumptions they used. The fact these two witnesses also testified in a manner that is favorable and supportive of their own personal work, rather than questioning their own professional competence, should be no surprise to anyone. Such testimony does not conclusively prove validity. Nor does it prove that their work and testimony would pass the scrutiny and criticism of third-party experts. Similarly, that Commissioner Matarese did not specifically testify about Dr. Murphy, Dr. Steinberg, or Mr. Kaiser means very little given the full context of his testimony. When the City sought to introduce Dr. Murphy’s deposition testimony in Hynes, the trial court suggested that the City was “wandering far afield.” A411. Moreover, the plaintiffs completely mischaracterize the purpose for which the testimony of these witnesses was being offered. As detailed by the City’s counsel, the City sought to introduce Dr. Murphy’s deposition transcript because it “describes in part what MOCHA’s 80 challenge is to the use of the lieutenant’s exam.” A411. Similarly, “the purpose of [the City] introducing [Dr. Steinberg’s and Mr. Kaiser’s] testimony [was] to rebut the notion propounded by the petitioners that because the MOCHA lawsuit only touches on, directly affects the lieutenant exam, for some reason that makes the decision to let all of the lists expire unsupported.” A412. As counsel explained further, “what this evidence is intended to do is support the rationality of Commissioner Matarese’s decision.” A414. The matters being proved in Hynes, as well as the threshold of proof, were very different than in this case. Dr. Murphy’s report was provided to the City during the course of the MOCHA litigation. The City would have been foolhardy to have affirmatively introduced evidence of how Matarese reacted to Dr. Murphy’s opinions in Hynes only to have it used against the City in MOCHA - especially given that it was unnecessary for the City to do so to defend Hynes under a rational basis test. Equally important, Matarese specifically testified in Hynes that “in speaking with our experts, it became clear to me that there was a serious challenge to the validity of these examinations.” A1066. His reliance upon Dr. Abrams subsumes within it all the criticisms and concerns that had been raised about the methodologies employed by NYS Civil Service when the exams were developed. 81 Indeed, that was the very purpose and function of Dr. Abrams - to review the evidence, evaluate the MOCHA plaintiffs’ expert report, and provide expert advice and guidance to the City about the validity of the examinations and the strength of the MOCHA plaintiffs’ case. So the mere fact Matarese did not specifically mention Mr. Kaiser or Dr. Steinberg or Dr. Murphy in Hynes or the prior arbitrations, or personally read their deposition transcripts, proves nothing. The uncontested evidence in the record demonstrates that at the time he made his decision, Matarese had the benefit of the advice and consultation that Dr. Abrams provided to the City, including her opinions about Dr. Steinberg and Mr. Kaiser’s depositions, Dr. Murphy’s report and deposition, and the validity of the exams. A444-48, 470-71, 1065-66. 4. The City’s Litigation Strategy in MOCHA Does Not Prove that the City Lacked a Strong Basis in Evidence Plaintiffs argue that the City should not be permitted to assert that the testimony of the Civil Service witness, Steinberg and Kaiser, supported its decision to permit the tests to lapse because: (1) Matarese failed to cite the Civil Service testimony in Hynes as a reason for permitting the lists to lapse; and (2) the City later relied upon the Civil Service testimony in 2008 to defend itself during the MOCHA trial. Plaintiffs’ arguments are again no more than a superficial attempt to manufacture inconsistency where none exists. When the circumstances of the 82 City’s actions are evaluated in proper context, timing, and in light of the MOCHA litigation posture, there is nothing inconsistent about the City’s actions. What plaintiffs label as inconsistency and “talking out both sides of its mouth” (Pls.’ Reply Br. 56) are no more than superficial red herrings and false logic that yet again ignore the timing of discrete events as well as the distinction between actual evidence and litigation strategy. The City’s litigation strategy of using the Civil Service testimony in MOCHA is not evidence and is an irrelevant consideration in a proper application of Ricci. The Second Circuit even explicitly warned future courts to avoid misconstruing it as such. M.O.C.H.A. Soc’y. Inc. v. City of Buffalo, 689 F. 3d 263, 282, n.14 (2d Cir. 2014). That the City - which proceeded to trial in 2008 with no expert to support the validity of the exam or to contest Dr. Murphy’s report - relied upon the testimony of Mr. Kaiser and Dr. Steinberg does not prove that the City or Matarese lacked a strong basis in evidence in late 2005 when Matarese made the decision to permit the lists to expire. Plaintiffs repeatedly ignore the uncontested record evidence relied upon in 2005, which demonstrates that Dr. Abrams advised the City that the examinations were subject to significant criticism and that there was limited evidence supporting validity. Pls.’ Reply Br. 44-45, 67. The plaintiffs offer no actual evidence to the contrary because there is none. They instead resort 83 to an attack on the City’s litigation strategy some three years later, which is utterly irrelevant to the strong basis in evidence test. Pls.’ Reply Br. 51-53, 62-63, 73. Litigation strategy is exactly that - a strategy of how to best defend a case and minimize liability and exposure to damages to a specific group of plaintiffs in light of the evidence that exists. The MOCHA plaintiffs had sued the City, alleging that they suffered disparate impact discrimination from the City’s use of the tests and sought millions of dollars in compensatory damages, among other relief. Id. at 271-72. The City’s decision to not call Dr. Abrams at trial in 2008 is fully consistent with Dr. Abrams’ criticisms of the methodology utilized by Civil Service to develop the tests, her opinions that there was limited evidence of validity, and her specific recommendation to not call her at trial where she would be forced to acknowledge the serious deficiencies that she had identified in the exam. A471. Based on Dr. Abrams’ expert opinion and advice, the City defended the case with no expert because it had no expert who could support the validity of the tests. The City thus relied upon Dr. Steinberg and Mr. Kaiser’s testimony purely as a matter of litigation strategy, not because the City accepted their testimony as unassailable proof of validity. And while the district court ultimately found in favor of the City on narrow evidentiary grounds, the Second Circuit’s 84 split 2-1 decision not only cautioned against misconstruing the district court’s decision for Ricci purposes, but it produced a vehement dissent that largely accepted the validity criticisms levied by Dr. Murphy (which Dr. Abrams would likewise have been forced to repeat had she been called as an expert at trial). Id. 282; Defs.’ Br. 55-56. How the City defended MOCHA in 2008 has no bearing upon Matarese’s decision in 2005, or whether he and the City had a strong basis in evidence to believe that the City would be subject to disparate impact liability if it failed to act. The plaintiffs imply that if Matarese and the City truly believed the tests were invalid, it should have simply conceded liability in MOCHA and paid the damages. Pls.’ Reply Br. 51-53. Nowhere does Ricci require an employer to admit liability to one group of plaintiffs before it can discontinue the use of a suspect employment practice where there is strong evidence to believe that its further use will result in discrimination. Such a requirement would undermine the voluntary compliance that Ricci tries to encourage and protect. Ricci, 557 U.S. at 581. Conceding liability, moreover, is not that simple. The City not only had a duty to protect the public fisc but conceding invalidity of the examinations would serve only to invite liability exposure to new disparate impact plaintiffs, 85 which is precisely the situation for which the Ricci safe harbor was intended to afford protection. A1067-68. And conceding disparate impact liability would not have meant that the exams were necessarily invalid, either. So, it would not have necessarily protected the City from disparate treatment claims, as the City of New Haven learned. Ricci, 557 U.S. 557. 5. The Plaintiffs’ Attack on Dr. Abrams’s Opinion Is Insubstantial and Does Not Undermine the City’s Strong Basis In Evidence The plaintiffs have not and cannot dispute that the City had the benefit of the advice and counsel of its own well-qualified expert to assist it with the difficult tasks of determining whether a true disparate impact existed and defending the MOCHA litigation. Nor can they dispute the uncontroverted Record establishing that she largely agreed with Dr. Murphy’s criticisms of the lieutenants exam and that the same deficiencies permeated the entire promotional exam series. A469-72. Given the complete absence of any expert opinion to support the validity of the tests at the time Matarese made his decision, the plaintiffs offer an insubstantial and artificial collateral attack on Dr. Abrams. Pls.’ Reply Br. 67-69 They first try to find inconsistency where none exists by urging that her testimony indicating there was “limited” evidence to support the validity of the tests is 86 somehow inconsistent with her disagreement with Dr. Murphy’s contention that there was “no” credible evidence of validity. Pls.’ Reply Br. 68. But these statements are in no way inconsistent: Dr. Abrams credited some small amount of evidence as being supportive of validity, while Dr. Murphy found no credible evidence at all. That does not somehow prove that Dr. Abrams’s advice and conclusions were “specious and erroneous” as claimed by plaintiffs, or otherwise improperly considered by Matarese. In reality, plaintiffs’ argument does no more than highlight that both experts had concluded the examinations could not be validated, given the deficiencies in the work performed by NYS Civil Service in creating them. That Dr. Abrams extended her conclusions and rationale to the entire promotional series, which was founded upon the same deficiencies, does not render her opinion invalid or the City’s reliance upon it improper. Indeed, the plaintiffs’ argument only emphasizes that there was almost no proof of validity of the examinations. 6. The Plaintiffs’ Speculation of What the City “Should Have Known” Is Not Evidence, Is Belied by the Record, and Does Not Prove that a Strong Basis in Evidence Did Not Exist The plaintiffs conclude their brief by insisting that “at all times defendants knew or should have known that the tests were valid,” as evidenced by the trial outcome in MOCHA I. Pls.’ Reply Br. 69. Plaintiffs’ argument assumes 87 too much, both as to the facts and the law. Not only is Ricci not a “should have known” standard, but the speculation that the plaintiffs marshal in support of this proposition is not evidence, and the Record belies their unsupportable conclusions. The plaintiffs’ arguments here are again built upon a foundation of assumption, positing that the examinations were, as a matter of fact, valid because the City relied upon the Civil Service testimony in the MOCHA I trial. Plaintiffs’ argument is little more than a retooling of other arguments that rely upon the same amalgamation of false premises. That the City in MOCHA I was forced to defend itself with the limited evidence of validity available to it (i.e., the heavily criticized Civil Service testimony and information), is not proof that the exams were valid, that the City knew they were valid, or that MOCHA would ultimately be decided in the City’s favor. After staging these false premises, the plaintiffs spend nearly eight pages laboriously rehearsing the application of the five-part test used by courts to evaluate the validity of a personnel exam that was set forth by the Second Circuit in Guardians Assoc. of the N.Y.C. Police Dep’t, Inc. v. Civil Service Comm’n of the City of New York¸630 F.2d 79 (2d Cir. 1980). In discussing each element of the test, however, the plaintiffs invariably, time and again, fall back to citing the District Court’s ruling dismissing MOCHA I, which they quote from repeatedly at 88 length, thus ignoring the Second Circuit’s express warnings about doing so. Pls.’ Reply Br. 71-78; M.O.C.H.A. Soc’y. Inc. v. City of Buffalo, 689 F. 3d 263, 282, n.14 (2d Cir. 2014). And even though the plaintiffs repeatedly state affirmatively that an employer’s strong basis in evidence must be measured at the time the action is taken and not with hindsight, Pls.’ Reply Br. 37-38, their purported evidence of validity in 2005 is no more than the district court’s statements and conclusions some four years later in 2009 - a hindsight analysis based on the limited trial evidence placed before that court. The plaintiffs likewise make no effort to explain why this Court should adopt the Fourth Department’s rationale that a strong basis in evidence did not exist simply because the District Court concluded, on the trial evidence before it, that the MOCHA plaintiffs did not carry their burden. A10; Pls.’ Reply Br. 36- 37. They undertake no effort to explain how or why the district court’s analysis of the specific evidence before it has any legitimate bearing on the Ricci analysis, particularly when: (1) an entirely distinct standard governed the MOCHA plaintiffs’ disparate impact claims; (2) the City had demonstrably more evidence of invalidity when the decision was made than was put into evidence during the trial; (3) an employer may establish a strong basis in evidence for discontinuing a suspect practice on less than a preponderance of evidence that the practice is in fact 89 illegal, United States v. Brennan, 650 F.3d 65, 109-10 (2d Cir. 2011); and (4) the Fourth Department’s rule would create a conflict between State and federal law in an area where this Court has repeatedly held that there are compelling reasons to maintain uniformity between State and federal standards of recovery. See, e.g., Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n.3 (2004) superseded by statute on other grounds, as explained by Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35 n.1 (1st Dep’t 2011). Perhaps most remarkable about the plaintiffs’ arguments is the complete absence of any searching discussion of the actual evidence that the City in fact relied upon in 2005 when it permitted the eligible lists to expire. They do not attempt to explain why the substance of either of these two expert’s conclusions were manifestly flawed or unfounded - other than to point out that the District Court eventually ruled in the City’s favor some three years later. Pls.’ Reply Br. 68. Instead, the plaintiffs do no more than perpetuate inaccuracy and repeat the same false assumptions they have relied upon over the course of their entire brief, building arguments on a foundation of insinuation and indignant rhetoric instead of Record evidence. Pounding the table and yelling makes for a lot of commotion and an elaborate side show, but in the end it only facilitates sore 90 hands and headaches. That’s why resort to these tactics came into play here: neither the law nor the support plaintiffs’ arguments. III. THE PLAINTIFFS CANNOT PREVAIL ON THEIR CONSTITUTIONAL CLAIMS FOR MULTIPLE REASONS A. Under Established Precedent, the Plaintiffs’ Failure to File Notice of Claim is Fatal to Their State Constitutional Claims The plaintiffs contend that if the City wins on Ricci grounds, they are nonetheless entitled to a remand to pursue their claims under the Equal Protection Clause of the New York State Constitution. A71. This and other courts, however, have consistently held that state constitutional claims against cities and other municipalities are subject to notice of claim requirements under General Municipal Law §§ 50-e and 50-i. 423 S. Salina St., Inc. v. City of Syracuse, 68 N.Y.2d 474, 482 (1986) cert. den’d, 481 U.S. 1008 (1987); Pierce v. Vill. of Horseheads Police Dep’t, 107 A.D.3d 1354, 1358 (3d Dep’t 2013) (failure to file timely notice of claim fatal to state constitutional claims); Corvetti v. Town of Lake Pleasant, 227 A.D.2d 821, 822 (3d Dep’t 1996) (refusing leave to file late notice of claim and dismissing state constitutional claims); Pflaum v. Town of Stuyvesant, 937 F. Supp. 2d 289, 308 (N.D.N.Y. 2013) (same result); DC3, LLC v. Town of Geneva, 783 F. Supp. 2d 418, 423 (W.D.N.Y. 2011) (same result); see also Febres v. City of New York, 238 F.R.D. 377, 393 (S.D.N.Y. 2006). New York courts further strictly 91 apply notice of claim requirements. Varsity Tr., Inc. v. Bd. of Educ. of City of New York, 5 N.Y.3d 532, 536 (2005) (“We have repeatedly rejected, and now reject again, proposals to compromise the strict statutory notice of claim requirement.”). The plaintiffs never filed a notice of claim. That failure is fatal to the prosecution of any claim based on the New York State constitution. Thus, the Equal Protection Claim they seek to pursue cannot be remanded. It must be dismissed if the Court were to reach it. B. Employment Discrimination Claims Are Not Cognizable under the State Constitution New York courts will only imply a private right of action under the State Constitution where no alternative remedy is available to the plaintiff. Martinez v. City of Schenectady, 97 N.Y.2d 78, 83-84 (2001) (rejecting constitutional claim for damages arising from issuance of improper warrant because suppression of evidence was sufficient to realize plaintiff’s constitutional rights, notwithstanding the four year imprisonment resulting from her wrongful conviction); Carver v. State of New York, 79 A.D.3d 1393, 1395 (3d Dep’t 2010) (“[w]here . . . an alternative avenue of relief is available . . . a claim based upon a constitutional tort will not lie.”). 92 Here, the New York Human Rights Law provides a comprehensive scheme to redress employment discrimination, including damages and injunctive relief. See N.Y. EXEC. LAW, ART. 15. Indeed, the Legislature specifically enacted the statute “in fulfillment of the provisions of the constitution of this state concerning civil rights.” N.Y. EXEC. LAW § 290(1). Given that the Legislature has afforded remedies under the Human Rights Law for any alleged discrimination the plaintiffs claim to have suffered, the plaintiffs’ Constitutional Equal Protection claims are not cognizable at law and fail to state a cause of action for which any relief can be afforded them. Menes v. City Univ. of New York, 578 F. Supp. 2d 598, 602, n.1 (S.D.N.Y. 2008) (constitutional tort for employment discrimination is unavailable under the New York Constitution because the Human Rights Law already provides a private cause of action for the same conduct); Muhammad v. New York City, 450 F. Supp. 2d 198, 212 (E.D.N.Y. 2006) (same). C. The City’s Conduct Satisfies Strict Scrutiny As detailed above, the Human Rights Law is the sole source for any redress of claimed discrimination. But even if their claims were analyzed under the strict scrutiny standard that is used to evaluate race-based classifications under the Equal Protection Clause, the plaintiffs fare no better than under Ricci, which is largely a duplicate of the same analysis. 93 To satisfy strict scrutiny, any use of racial classifications must be “narrowly tailored to further compelling governmental interests.” Fisher v. Univ. of Texas at Austin, __ U.S. __, 133 S. Ct. 2411, 2419 (2013); Grutter v. Bollinger, 539 U.S. 306, 326 (2003); cf. Under 21, Catholic Home Bureau for Dependent Children v. New York, 65 N.Y.2d 344, 360 n.6 (1985) (New York Equal Protection Clause is no broader than the federal provision and enacted to embody in our Constitution the provisions of the Federal Constitution). While the U.S. Supreme Court did not expressly reach whether the Ricci defendants’ actions were permissible under the Equal Protection Clause, that was because it had already found a violation of Title VII of the Civil Rights Act of 1964. See 557 U.S. at 593. So, there was no need for it to reach the Constitutional question. Id. But any conduct satisfying Ricci must necessarily be sufficient to satisfy strict scrutiny. To begin with, the U.S. Supreme Court expressly fashioned the Ricci standard from its earlier decisions applying the strict scrutiny standard in the equal protection field. In his majority opinion, Justice Kennedy thus explained, “In searching for a standard . . . we note that this Court has considered cases similar to this one, albeit in the context of the Equal Protection Clause of the Fourteenth Amendment. The Court has held that certain government actions to remedy past 94 racial discrimination - actions that are themselves based on race - are constitutional only where there is ‘a strong basis in evidence’ that the remedial actions were necessary.” Id. at 582 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989) and Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277 (1986) (plurality decision)). In this way, the Court implicitly held that: (1) avoiding statutorily prohibited disparate impact discrimination is a compelling state interest; and (2) discontinuing a suspect selection procedure is a narrowly tailored remedy that does not unnecessarily trample the rights of others. Cf. id. An employer thus may take race-based action so long as it has a “strong basis in evidence” to conclude that doing so is necessary to avoid disparate impact discrimination. Id. at 583. Additionally, a governmental interest in remedying discrimination is compelling if two conditions are met: the discrimination must be specific, “identified discrimination”; and the government must have had a “strong basis in evidence” to conclude that remedial action was necessary before implementing the remedy. Bush v. Vera, 517 U.S. 952, 982 (1996) (plurality opinion); Shaw v. Hunt, 517 U.S. 899, 909 (1996). Here, both these elements are readily met. The discrimination here was attributable to a specific, identifiable practice - namely use of the State-developed promotional exam series; the City’s actions were not 95 based on some “generalized assertion” or “amorphous claim” of past discrimination. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989) (set-aside program for minority contractors was illegal where based on a general and unsupported assertion of past discrimination in the local construction industry). Moreover, the City undoubtedly had a “strong basis in evidence” for the same reasons as discussed in Point II supra. There also can hardly be a more narrowly tailored remedy than simply discontinuing further use of the suspect employment selection procedure and developing a new one. This action involves no broad remedial relief such as quotas or preferences. Indeed, it does not involve any additional use of racial classifications at all but merely discards an employment selection device that is believed to be discriminatory. In this case, the plaintiffs thus suffered no change in their existing employment status and later received the same opportunity as everyone else to compete for promotion on the basis of new, valid exams, which appropriately selected candidates on merit. Moreover, it is difficult to conceive of any alternative course of action that the City could have taken, other than to simply ignore the strong basis in evidence confronting it that the State-developed exams were discriminatory. So, the City’s actions in permitting the lists to expire were “specifically and narrowly” tailored by any measure. See Wygant v. Jackson Bd. of 96 Educ., 476 U.S. 267, 280 (1986); see also United States v. Paradise, 480 U.S. 149, 171 (1987) (in considering race conscious remedies, courts consider several factors, including, “the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief . . . and the impact of the relief on the rights of third parties”). Indeed, the U.S. Supreme Court has repeatedly held compliance with federal law by a State to be a compelling interest sufficient to justify race- conscious action. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 475 n.12 (2006) (Stevens, J., concurring in part and dissenting in part); id. at 485, n.2 (Souter, J., concurring in part and dissenting in part); id. at 518-19 (Scalia, J., concurring in the judgment in part and dissenting in part); Bush v. Vera, 517 U.S. at 990-92 (O’Connor, J., concurring); id. at 1033-34 (Stevens, J., dissenting); id. at 1046 (Souter, J., dissenting); Abrams v. Johnson, 521 U.S. 74, 91 (1997). The Fourth Department, too, recognized as much below by holding that the City’s concerns about liability in the MOCHA action could provide a basis for satisfying strict scrutiny. Margerum v. City of Buffalo, 63 A.D.3d 1574, 1579 (4th Dep’t. 2009) (“[A] sufficiently serious claim of discrimination may constitute a compelling interest to engage in race-conscious remedial action.”). 97 In addition, the City’s actions would have satisfied strict scrutiny, even assuming the City did not already have an independent strong basis in evidence to believe that the promotional examinations violated the disparate impact provisions of Title VII. As noted previously, the Buffalo Fire Department continues to be subject to the long-standing Remedial Decree, which the U.S. District Court issued after finding a pattern and practice of discrimination against African-Americans in the City’s Fire Department. A445, 451-63. Commissioner Matarese recognized that the Department’s hierarchy remained nearly entirely Caucasian despite whatever other progress had been achieved under the Remedial Decree in addressing historical discrimination. To be clear, even though the Department was forty percent minority, African-Americans held only ten of the approximately 200 promotional positions - i.e., roughly five percent. A445. Commissioner Matarese also knew that previous State-developed exams had strongly favored the selection of Caucasians over other groups and were an important factor that had led to the District Court’s finding of a pattern and practice of discrimination that necessitated the imposition of the Remedial Decree in the first place. A445; see also United States v. City of Buffalo, 457 F. Supp. 612, 621-23 (W.D.N.Y. 1978). So, he had every legitimate reason to be concerned that the stark racial imbalance between the Fire Department’s hierarchy and its 98 rank and file was attributable to the exams which were perpetuating the effects of past discrimination within the Fire Department. A445. The plaintiffs’ charge that “Matarese, simply decided it was time to do some racial engineering,” Pls.’ Reply Br. 82, trivializes the entire history of contentious racial relations that led up to the Remedial Decree and the heavy responsibilities that Matarese as the City’s personnel officer, charged with the duties formerly assigned to the Municipal Civil Service Commission, bore. A441. These undisputed circumstances, standing alone, are sufficient to satisfy strict scrutiny, even in the absence of the overwhelming evidence considered by Matarese supporting the conclusion that the exams in fact had an illegal disparate impact. See, e.g., Cotter v. City of Boston, 323 F.3d 160, 169-70 (1st Cir. 2003) cert. denied, 540 U.S. 828 (rejecting challenge to City’s promotion of three African-Americans over seven Caucasians with identical exam scores where evidence of disparity in promotions of African-Americans, racial tensions within department, prior litigation, and documented history of past discrimination created a “strong basis in evidence” for the City to conclude that race-conscious action was necessary); Majeske v. City of Chicago, 218 F.3d 816, 822 (7th Cir. 2000) cert. denied, 531 U.S. 1079 (statistical and anecdotal evidence of past discrimination constituted “strong basis in evidence” to support City’s decision to 99 promote police officers out of rank order from exam as affirmative action measure); McNamara v. City of Chicago, 138 F.3d 1219, 1224 (7th Cir. 1998) cert. denied, 525 U.S. 981 (Posner, J.) (statistics and other evidence of past discrimination justified affirmative action designed to boost number of minority fire captains). Indeed, in previously granting the City’s motion for an injunction against plaintiffs’ continued prosecution of this case pending trial in MOCHA I, the District Court found that the City’s conduct in permitting the eligible lists to expire and developing its own exam series was “precisely what is required under the Remedial Decree”: . . . the Court is extremely hesitant to allow any course of action to proceed which could have a negative effect on the City’s substantial efforts to develop and administer entry-level and promotional examinations addressing the personnel needs of the Fire Department in accordance with the requirements of state and federal law . . . Indeed, this is precisely what is required under the Remedial Decree . . . . A878-79. If the City had not acted as responsibly as it did, its continued use of the suspect eligible lists would have risked violating the Remedial Decree. By permitting the eligible lists to expire, the City took narrowly tailored action to achieve a compelling state interest, namely complying with 100 federal law, including both Title VII and the Remedial Decree’s prohibition against discriminating against African-Americans in its Fire Department promotional practices. The City’s conduct easily satisfies the Strict Scrutiny Standard as a matter of law. See Cotter, 323 F.3d at 168 (whether strict scrutiny is satisfied is a legal question). IV. THE PLAINTIFFS’ ECONOMIC DAMAGES AWARD SHOULD BE REDUCED TO ZERO GIVEN THE APPELLATE DIVISION’S RULING THAT THE PLAINTIFFS FAILED TO ESTABLISH THEIR ECONOMIC DAMAGES WITH REASONABLE CERTAINTY The plaintiffs do not challenge either the legal or factual premise for the City’s position that the Fourth Department’s ruling that they failed to carry their burden of proof necessitated an award of zero damages. Instead, the plaintiffs contend the City failed to identify this issue in its leave application. Plaintiffs cite no authority for this position, and this Court’s rules contain no provisions effectuating a waiver of any issue not identified in a leave application. Moreover, this Court has specifically stated that “a grant of leave to appeal to this court ordinarily brings every reviewable issue before the court . . . .” Quain v. Buzzetta Constr. Corp., 69 N.Y.2d 376, 379 (1987). The only exception is when “a party in its application for leave to appeal specifically limits the issues it seeks to have reviewed.” Id. (appellant precluded from raising other issue when it specifically 101 requested review of a “limited issue”). Here, the City broadly requested “leave to appeal” in its notice of motion for leave and repeatedly in its supporting memorandum of law. Notice of Motion, dated August 13, 2013, at 2; Memorandum of Law, dated August 13, 2013, 4, 54. The City did not “specifically limit” its leave application in any way. Accordingly, the issue is appropriately before the Court. Plaintiffs’ second argument is that the issue is unpreserved. But burden of proof issues have repeatedly been a focus of this case. As detailed in the City’s opening brief (Point IV, 128-29), the trial court heard pretrial motions on who bore the burden of proof, but it erroneously refused to decide the motions and suggested the burden lie with the defendants. RA 25-36. The City also moved to dismiss under C.P.L.R. 4401 on the grounds that the plaintiffs had failed to prove that they were damaged, but the trial court refused to hear it until all proof was put into the Record. RA75, 81-93. As a result, the City was forced to offer its own damages calculations. The City renewed burden of proof issues again at the Appellate Division. Br. for Defs.-Apps., dated November 5, 2012, 45-48 (previously submitted to this Court with the motion for leave to appeal). And it is quite clear that the Fourth Department’s ruling touched on burden of proof issues, ultimately concluding that plaintiffs’ expert testimony was speculative and 102 incompetent. Having so ruled, that court should have recognized the obvious: plaintiffs’ deficient proof established no entitlement to damages, and using the defense expert as the basis for the damage award improperly shifted the burden of proof. There can thus be no question that the issue is preserved. Plaintiffs’ only other response to the City’s argument is a conclusory assertion that they met their burden of proof. The plaintiffs do not dispute that it was their burden - not the City’s - to prove their damages with reasonable certainty and to produce “sufficient evidence to form a basis for an estimate of damages with some degree of exactness.” Henderson v. Holley, 112 A.D.2d 190, 191 (2d Dep’t 1985). The plaintiffs do not point to a single case holding that a plaintiff who fails to carry this affirmative burden may nonetheless recover damages. Yet that is what happened here as a result of the improper shifting of the burden of proof and the trial court’s refusal to timely decide the City’s motions until after receiving testimony and calculations from the City’s expert. Accordingly, in the event that the Court declines to dismiss the Complaint on notice of claim or Ricci grounds, the plaintiffs’ economic damages awards should be reduced to zero as a result of their failure to carry their burden of proof to establish damages with “reasonable certainty.” 103 CONCLUSION For these reasons, the Court should reverse the Fourth Department’s orders, vacate the judgment below, and dismiss the complaint in its entirety, and direct entry of judgement in the City’s favor, with costs and such other relief as this Court deems just and proper. Dated: Buffalo, New York August 4, 2014 HODGSON RUSS LLP Attorneys for City of Buffalo By: _______________________________ Adam W. Perry, Esq. Jason E. Markel, Esq. Stephen W. Kelkenberg, Esq., and Joshua Feinstein, Esq. of counsel The Guaranty Building 140 Pearl Street, Suite 100 Buffalo, NY 14202-4040 716.856.4000 017635.00023 Litigation 12095513v4