Eugene Margerum, et al., Appellants-Respondents,v.City of Buffalo, et al., Respondents-Appellants.BriefN.Y.January 6, 2015To be Argued by: CHRISTEN ARCHER PIERROT (Time Requested: 30 Minutes) APL-2013-00290 Appellate Division Docket No. CA 12-01540 Erie County Clerk’s Index No. I 2007-1462 Court of Appeals of the State of New York EUGENE MARGERUM, ANTHONY HYNES, JOSEPH FAHEY, TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI, SCOTT SKINNER, THOMAS REDINGTON, TIMOTHY CASSEL, MATTHEW S. OSINSKI, MARK ABAD, BRAD ARNONE and DAVID DENZ, Appellants-Respondents, – against – 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. REPLY BRIEF FOR APPELLANTS-RESPONDENTS Of Counsel: ANDREW P. FLEMING, ESQ. CHRISTEN ARCHER PIERROT, ESQ. CHIACCHIA & FLEMING, LLP Attorneys for Appellants-Respondents 5113 South Park Avenue Hamburg, New York 14075 Tel.: (716) 648-3030 Fax: (716) 648-0810 Date Completed: July 7, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………… vi COUNTERSTATEMENT OF QUESTIONS PRESENTED ON CITY’S APPEAL AS TO THE ISSUE OF LIABILITY………………………….. 1 PRELIMINARY STATEMENT………………………………………….. 4 COUNTER-STATEMENT OF BACKGROUND, PROCEDURAL HISTORY, AND FACTS AS TO LIABILITY…………………………… 6 ARGUMENT …………………………………………………………….. 20 POINT I: GENERAL MUNICIPAL LAW 50-i DOES NOT REQUIRE A NOTICE OF CLAIM TO BE FILED AS A PREREQUISITE TO COMMENCING AN EMPLOYMENT DISCRIMINATION SUIT AGAINST A CITY………. 20 POINT II: THE TRIAL COURT AND THE APPELLATE DIVISION BOTH APPLIED THE LEGAL ANALYSIS SET FORTH IN RICCI AND PROPERLY FOUND THE CITY LIABLE FOR UNLAWFUL DISPARATE TREATMENT DISCRIMINATION ……………………………..……. 27 A) There Is No Dispute That Ricci Offers Defendants A Potential Defense To Disparate Treatment Claims Brought Under NYSHRL Or That The Trial Court And The Fourth Department Applied Such Law …………………………………………………. 27 B) Ricci’s Strong Basis in Evidence Threshold……………… 28 C) Ricci Does Not Provide a Safe Harbor To Merely Avoid Potential Damages ………………………………………………….. 31 D) The Trial Court Properly Considered Ricci And Applied Same ………………………………………………………. 34 ii Table of Contents, Cont. E) The Fourth Department Properly Adopted The Trial Court’s Decision As To Liability ………………………………….. 36 POINT III: LEONARD MATARESE DID NOT HAVE A STRONG BASIS IN EVIDENCE TO BELIEVE THAT THE CITY WOULD BE LIABLE FOR DISPARATE IMPACT DISCRIMINATION IF HE FAILED TO TAKE THE DISPARATE TREATMENT ACTION ………………. 37 A) The City Must Not Be Allowed To Use Hindsight In Order To Rewrite History In A Self-Serving Attempt To Meet The Strong Basis In Evidence Test …………………………………….. 37 i) Matarese’s Testimony Explicitly Evidences Why He Did What He Did And The City Should Be Estopped From Expanding On His Testimony…………… 39 ii) Neutral Third Parties’ Characterizations of Matarese’s Testimony In Various Legal Proceedings As To Why He Did What He Did Corroborates That Matarese Did Not Rely Upon The Evidence Now Claimed By The City And That He Did Not Have A Strong Basis In Evidence ……………………… 45 iii) Before Ricci Came Out The City’s Reasoning For Expiring The Lists Focused On Avoiding Further Litigation And Potential Liability ……………….. 48 iii Table of Contents, Cont. iv) The City Has Always Contended That The Lieutenant Exams Were Valid……………………………..… 51 B) The City Cannot Meet The Ricci Threshold ……………….. 53 i) Ricci Insulates A Defendant Only In Certain Narrow Circumstances None Of Which Are Present Here ……………………………………………… 53 ii) The Evidence Claimed To Have Been Relied Upon By The City Is Still Insufficient To Satisfy Ricci …… 58 a. 1979 Remedial Decree …………. 58 b. MOCHA I Litigation ….………... 59 c. Dr. Abrams’s Early Evaluation … 61 d. Dr. Steinberg’s and Mr. Kaiser’s Deposition Testimony ………… 62 e. The City Receives Dr. Murphy’s Report …………………………… 64 f. Nancy Abrams’s Subsequent Alleged Concerns Regarding The Validity Of The Exam…………………………… 67 C) At All Times Defendants Knew Or Should Have Known That The Tests Were Valid ………………………………… 69 i) The Testmakers Conducted A Suitable Job Analysis ………………………………………… 71 iv Table of Contents, Cont. ii) The Test Makers Used Reasonable Competence In Constructing The Test…………………………… 75 iii) The Content Of The Test Was Related To And Representative Of The Content Of The Job ……… 76 iv) Scoring System Was Utilized That Usefully Selected From Among The Applicants Those Who Could Better Perform The Job ………………………………… 77 v) An Alternative Employment Practice Was Unavailable For The Selection of Fire Lieutenant Candidates………………………………………… 78 POINT IV: EVEN IF PLAINTIFFS’ CLAIMS FAIL UNDER TITLE VII, THIS MATTER MUST BE REMANDED FOR CONSIDERATION OF THEIR CONSTITUTIONAL EQUAL PROTECTION CLAIMS ……………………… 78 CONCLUSION AS TO LIABILITY ………………………………………. 83 POINT V: THE TRIAL COURT’S FACTUAL AND LEGAL FINDINGS AS TO PLAINTIFFS’ DAMAGES WERE PROPERLY SUPPORTED BY THE RECORD AND OUGHT NOT TO HAVE BEEN DISTURBED ………………………..… 84 A) Overtime …………………………………………… 86 B) Promotions…………………………………………. 93 C) IOD…………………………………………………. 94 CONCLUSION AS TO DAMAGES ………………………………………. 97 v Table of Contents, Cont. SIGNATURE PAGE …………………………………………………… 98 ADDENDA …………………………………………………….……… 99 vi TABLE OF AUTHORITIES CASES: Alaimo v. New York City Dept. of Sanitation, 203 A.D.2d 501, 611 N.Y.S.2d 245 (2d Dept. 1994) ………………… 24 Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)…………………… 71 Amorosi v. South Colonie Independent Cent. School Dist., 9 N.Y.3d 367, 880 N.E.2d 6 (2007)……………………………………. 21 Anderson v. Nassau County Dept. of Corrections, 558 F.Supp.2d 283 (E.D.N.Y. 2008) ………………………………….. 26 Buffalo Professional Firefighters Association, Inc., v. City of Buffalo, Index No.: 3580/2007 (N.Y. Sup. 2009) ……………………………… 36, 46 Dimonda v. New York City Police Dep't, No. 94 Civ. 0840, 1996 WL 194325 (S.D.N.Y. April 22, 1996)…….. 26 Escambia County v. McMillan, 466 U.S. 48, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984)……………………. 31 Falchenberg v. New York City Department of Education, 375 F.Supp.2d 344 (S.D.N.Y. 2005)……………………………………. 23 Gentile v. Town of Huntington, 288 F.Supp.2d 316 (E.D.N.Y. 2003)…………………………………… 26 Grasso v. Schenectady County Pub. Lib., 30 A.D.3d 814, 817 N.Y.S.2d 186 (3d Dept. 2006)…………………… 25 Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)……………………. 70 Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of the City of New York, 630 F.2d 79 (2d Cir. 1980) ………………………………………….. 71, 74-76 vii Table of Authorities, Cont. Hamm v. NYC Office of the Comptroller Alan Hevesi, No. 95 Civ. 6367, 1998 WL 92395 (S.D.N.Y. March 4, 1998) ………. 26 Margerum v. City of Buffalo, 63 A.D.3d 1574, 880 N.Y.S.2d 820 (4th Dept. 2009)………………….. 26 Margerum v. City of Buffalo, 83 A.D.3d 1575 (4th Dept. 2011) ………………………………………… 36 Matter of Marino v. New York City Off Track Betting Corp, 12 A.D.3d 606, 785 N.Y.S.2d 481 (2d Dept. 2004)……………………. 24 Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S.2d 486 (4th Dept. 1982) affd. 59 N.Y.2d 307,464 N.Y.S.2d 709, 451 N.E.2d 456 (1982) cert. denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983) ……… 26 M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, No.98-CV-99C(JTC), 2009 WL 604898 (W.D.N.Y. Mar. 9, 2009) ……… 73 Mompoint v. The Board of Education of the City of New York, 299 A.D.2d 527 (2d Dept. 2002)………………………………………….. 23 Palmer v. City of New York, 215 A.D.2d 336, 627 N.Y.S.2d 42 (1st Dept. 1995)……………………. 25 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)………………………………………………………. 79-80 Parochial Bus Systems, Inc. v. Board of Educ. of City of New York, 60 N.Y.2d 539, 458 N.E.2d 1241 (1983)…………………………………. 23 Parry v. Tompkins County, 260 A.D.2d 987, 689 N.Y.S.2d 296 (3d Dept. 1999)……………………. 25 Picciano v. Nassau County Civil Serv. Comm'n, 290 A.D.2d 164, 736 N.Y.S.2d 55 (2d Dept. 2001) …………………….. 24 viii Table of Authorities, Cont. Ricci v. DeStefano, 554 F.Supp.2d 142 (D. Conn. 2006) ……………………………………….. 29, 31 Ricci v. DeStefano, 264 Fed.Appx. 106 (2d Cir. Feb. 2008) …………………………………….. 29 Ricci v. DeStefano, 530 F.3d 87 (2d Cir. June 2008) ……………………………………………. 29 Ricci v. DeStefano, 557 U.S. 557 (2009) …………………………………………………... passim Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001)…………………………………………………. 77 Scopelliti v. Town of New Castle, 210 A.D.2d 308, 620 N.Y.S.2d 405 (2d Dept. 1994)………………………. 24 Sebastian v. New York City Health & Hosps. Corp., 221 A.D.2d 294, 634 N.Y.S.2d 114 (1st Dept. 1995)…………………….. 25 Simpson v. New York City Tr. Auth., 188 A.D.2d 522, 591 N.Y.S.2d 350 (2d Dept. 1992)……………………… 25 Thygesen v. North Bailey Volunteer Fire Co., Inc., 106 A.D.3d 1458, 964 N.Y.S.2d 816 (4th Dept. 2013)………………….. 25 United States v. Brennan, 650 F.3d 65 (2d Cir. 2011) ……………………………………………….. 32, 37 United States v. New Jersey, 2012 WL 3265905 (D. N.J. 2012) ………………………………………… 54-56 United States v. City of New York, 637 F.Supp.2d 77 (E.D.N.Y. 2009) ……………………………………….. 72-73 ix Table of Authorities, Cont. STATE STATUTES Education Law §3813 ………………………………………………….. 23 Executive Law § 290…………………………………………………… 27 General Municipal Law § 50-e ………………………………………… 24-26 General Municipal Law § 50-i ………………………..…………… 1, 20-26 Uniform Notice of Claim Act of 2012 ………………………………….. 21-22 FEDERAL STATUTES 42 U.S.C. §2000e-2(h) ………………………………………………….. 30 29 C.F.R. ' 1607.14C(2) ………………………………………………… 72 1 COUNTERSTATEMENT OF QUESTIONS PRESENTED ON CITY’S APPEAL AS TO THE ISSUE OF LIABILITY 1. Should the Plaintiffs’ claims be dismissed for failure to file Notices of Claim, pursuant to General Municipal Law §50-i, where such statutory provision has never once been held to apply to employment discrimination claims? Answer of the lower courts: No. General Municipal Law §50-i does not apply to employment discrimination claims. 2. Can the City of Buffalo meet the strong basis in evidence threshold under Ricci where the single decision maker testified, almost contemporaneously with his decision to take the race-conscious action, that he did so because (a) he did not want to exacerbate the racial disparity in the department by appointing more white candidates; (b) he feared additional litigation; (c) he wanted to settle other pending litigation; and (d) he only thought the testing may have had something to do with the disparity? Answer of the lower courts: No. Matarese’s testimony as to his reason for acting was insufficient to warrant insulation under Ricci. 2 3. Where there is credible testimony that is almost contemporaneous with a defendant’s race-conscious actions, which is specifically given to explain such actions, and does explain such actions, can a defendant subsequently rely upon additional alleged evidence in order to attempt to meet the strong-basis-in- evidence threshold set forth in Ricci, or ought the defendant be limited to the reasons initially given for the actions? Answer of the lower courts: No. Matarese very clearly explained his actions and the motives behind same and it was not credible to believe that he relied upon evidence that he did not mention in his testimony. 4. Does the safe harbor protection of Ricci apply to the City’s decision to expire civil service lists where the race conscious actions were taken seven years after the disparate impact liability would have arisen, if at all, and where the City took no action, one way or the other, to investigate the validity of the exams at the time that same were initially challenged? Answer of the lower courts: The courts below never reached this issue. 3 5. Does Ricci sanction the taking of race-conscious actions in situations where such actions would not defeat or prevent a finding of disparate impact liability inasmuch as if disparate impact discrimination was, in fact, committed, such liability would have attached long before the race conscious action was taken, resulting in the race conscious actions merely serving as an effort to limit the employer’s possible financial exposure in such disparate impact discrimination claim? Answer of the lower courts: The courts below never reached this issue. 6. Even if a defendant has a strong-basis-in-evidence to believe it will be liable for disparate impact discrimination if it does not take race-conscious action, do its race conscious actions violate the Equal Protection clause of the New York State Constitution? Answer of the lower courts: The courts below never reached this issue. 4 PRELIMINARY STATEMENT The United States Supreme Court decision in Ricci v. DeStefano, 557 U.S. 557 (2009), cannot possibly have been meant to excuse the City’s actions in this case. If this Court were to apply the safe harbor in this case, it would be lawful for a defendant to: (1) Administer examinations that produce disparate statistical results; (2) Certify lists from same and make promotional appointments, including appointments of African-American candidates, without undertaking any meaningful analysis of the examinations; (3) Defend disparate impact federal litigation immediately commenced as a result of those examinations, and continue to do so for years, all while vehemently and successfully arguing in federal court that the tests are valid and nondiscriminatory; (4) Re-administer the examination(s) at issue in the federal litigation; (5) Certify lists again despite alleged continued statistical disparities; (6) Once again, fail to undertake any meaningful analysis of the examination; (7) Continue to promote minorities and non-minorities from the resulting lists; 5 (8) Defend a second disparate impact federal lawsuit commenced as a result of the subsequent examination; only to then (9) Expire all promotional lists, not just those resulting from the challenged examination, but only to prevent the appointment of additional white candidates in an attempt to limit potential financial exposure in the disparate impact litigation – which its attorneys called a meritless action – all because the defendant sat on its hands for seven years! The City’s behavior, in vigorously defending against the MOCHA litigation, with its undisputed delay in addressing the merit of MOCHA’s claims, is, for all intents and purposes, guilty of laches. It is wholly inequitable to the Plaintiffs here to allow the City to waltz in, seven years after it was called to the carpet by MOCHA, and now seek insulation from financial exposure, all to the detriment of the Plaintiffs who – pursuant to the City’s actions from 1998 until 2005 – relied upon rightful and proper expectations that they would be appointed to arising vacancies without regard to their race. The United States Supreme Court, in Ricci, clearly empathized with the City of New Haven’s difficult position in determining whether to move forward or not on the statistically disparate test results. But, the City’s actions here deserve no sympathy whatsoever. The City created the debacle that arose as a result of the MOCHA litigation by failing to act meaningfully at the point in time when it 6 should have done so. Vigilantibus non dormientibus æquitas subvenit. Equity aids the vigilant, not those who slumber on their (in this case improbable) rights. We respectfully submit that this Court should hold that in order for the safe harbor to insulate a defendant from liability for race conscious actions, those actions must closely follow the point in time that liability would attach for disparate impact; they cannot be taken seven years later, to the detriment of third parties, in what can only be an effort to reduce possible financial exposure in an already existing disparate impact discrimination lawsuit. COUNTER-STATEMENT OF BACKGROUND, PROCEDURAL HISTORY, AND FACTS AS TO LIABILITY The City’s Forked Tongue: Seven and a half years before our Plaintiffs would come to be discriminated against, on or around February 10, 1998, an association of minority firefighters known as the Members of Color Helping All Society of Buffalo, Inc. (AMOCHA@) filed suit in Federal Court claiming, inter alia, that the 1998 Civil Service promotional test for Lieutenant in the City of Buffalo Fire Department was discriminatory in that it produced statistically disparate test results which, ultimately, led to a disproportionate number of white firefighters being eligible for 7 promotion. [Importantly, the MOCHA litigation contemplates only the Lieutenant exam and not the examinations for Captain or Chief. In the instant action, however, the City expired not only the Lieutenant list to avoid promoting any further white candidates, but also the Captain, Battalion Chief, and Division Chief eligible lists, which are not, and have never been, the subject of any discrimination lawsuit.] For over ten (10) years, the MOCHA suit was pending before Judge Curtin. Three (3) years after filing suit, on or about July 3, 2001, MOCHA moved for a Temporary Restraining Order/Preliminary Injunction to prevent the City of Buffalo from continuing to promote firefighters to the position of Lieutenant. No injunctive relief was ever sought to prevent appointments off of the Captain, Battalion Chief, or Division Chief lists. The City of Buffalo defended against this motion arguing that MOCHA had not established a likelihood of success on the merits of its case (i.e., that the Lieutenant=s examination was discriminatory) and, further, that irreparable harm to the MOCHA plaintiffs B if the City continued to promote from the Lieutenant’s list B was neither actual nor imminent. [A-233-237.] The City asserted that it had already appointed 37 individuals from the 1998 Lieutenant examination, including four (4) blacks, two (2) women, and (1) Hispanic. The City further contended, inter alia, that there was nothing illegal or 8 discriminatory in the Civil Service examination for Lieutenant, specifically stating that: A simple review of [MOCHA=s] statistical analysis indicates that it is flawed. The analysis is conclusory and appears to be based on an uncertified roll list . . . Even assuming that MOCHA=s questionable statistical analysis has established a prima facie case, they have not carried the burden of persuasion on Title VII case [sic]. That burden always rests with the plaintiff. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 658-59 (1989). MOCHA has not proffered any analysis of the state civil service exam. They have not put forth any proof that the test is not job related. They have not set forth any evidence of alternatives that would achieve legitimate employment goals without producing the alleged disparate effect. Wards Cove, 490 U.S. at 658-59. [A-234-235.] In a supporting attorney affirmation, then Senior Deputy Corporation Counsel for the City, David State, Esq., further argued that the district court should maintain the status quo and allow the City to continue to make appointments from the challenged Lieutenant list since it had been doing so, unchallenged by anyone, much less the MOCHA plaintiffs, since the list=s inception. [A-238-243.] Specifically, Mr. State wrote: [T]he status quo has been unchallenged promotions by the City for over three (3) years. The Plaintiff seeks to disturb that status quo and are [sic] seeking a mandatory injunction. This is an extremely heavy burden requiring a clear or substantial showing of likelihood of success and irreparable harm . . . Plaintiffs have submitted only a conclusory statistical analysis prepared by two (2) financial economists. The Plaintiffs have not 9 proffered any analysis of the test at issue . . . Plaintiffs= allegations of irreparable harm are completely without merit and are speculative. They are assuming that the court will engage in the extreme remedy of removing qualified individuals from the position of lieutenant and replace [sic] them with MOCHA members who failed the exam. [A-239-240.] Subsequently, the City of Buffalo filed a second memorandum of law in opposition to any future request for injunctive relief by the MOCHA plaintiffs, specifically maintaining that any delay in the promotion of firefighters was both a threat to public safety and was unconstitutional. [A-244-247.] The City argued: The MOCHA members who failed the exam are apparently seeking to block promotions. It defies common sense to grant individuals who are not even eligible for promotions because they failed the test the ability to block the promotions of individuals, both black and non- black, who legitimately passed a New York State Civil Service Exam. Granting an injunction would hurt those black firefighters who passed the test and are ready, willing and able to be promoted. [A-246.] On July 23, 2001, the Honorable John T. Curtin found that the MOCHA plaintiffs would not be irreparably harmed with the continued promotions off of the Lieutenant eligible list inasmuch as each MOCHA plaintiff – if entitled to relief – could be made whole with an award of money damages. He further found that 10 the MOCHA plaintiffs had not demonstrated a substantial likelihood of success. Ultimately, Judge Curtin issued a decision denying MOCHA’s application for an injunction and permitting the City to go forward with promotions to Lieutenant. [A-253.] In or about 2002, the City once again administered Civil Service promotional examinations for the positions of Lieutenant, Captain, Battalion Chief, and Division Chief. The exam results were certified and lists promulgated. In 2003, MOCHA once again commenced a lawsuit against the City of Buffalo, this time challenging the 2002 Lieutenant examination. MOCHA did not seek injunctive relief to prevent the City from making appointments off of the 2002 Lieutenant list. Nor did MOCHA challenge any other promotional examination. The City has never filed any document in either MOCHA action which in any way contradicts its long-held views that 1) promoting off the eligible lists is necessary and justified both for public safety and fairness purposes, and 2) that the Lieutenant (or any other promotional) examination is lawful and valid. For sure, for the entirety of the MOCHA litigation, which did not cease until late 2013, the City vigorously defended its use of the Lieutenant examination, at all times contending that MOCHA’s claims were meritless and its Civil Service examinations were valid. 11 The City is and has been for the last seven years speaking out of both sides of its mouth. The direct evidence of racial discrimination against the Plaintiffs: The City continued promoting off of its Civil Service eligible lists until September of 2005, when Defendant Leonard Matarese, then Human Resources Commissioner for Defendant City, unilaterally expired the 2002 Civil Service eligibility lists, from which promotions could be made to Battalion Chief [A-86] and Division Chief [A-84]. Matarese expired the lists despite Fire Department requests that said lists be extended and, further, in contravention of the Department’s and City’s historical precedent that lists were extended and, therefore, fully utilized for the full four (4) years under Civil Service Law. A few months later, Matarese would testify, under oath, that he, alone, made this initial decision because only white candidates were reachable for promotion and he did not want to promote any additional white candidates, for fear of exacerbating City liability in the MOCHA action and because he wanted to solve the racial disparity in the fire department. [A-155, 158, 159, 256-262.] At this same time, in September 2005, Matarese opted to renew the Civil Service eligibility lists for Lieutenant and Captain. Matarese testified that he made this second decision because he believed it might have been possible to appoint a 12 non-white candidate to a promotional position. Ultimately, however, he expired the Lieutenant and Captain lists as well on or about February 6, 2006 [A-88]. [It is a rarity in discrimination actions to have such clear-cut undeniable evidence of discriminatory intent. It was because of this that Judge Michalek, from the bench in Plaintiffs’ initial pre-discovery motion for summary judgment rightly held in Plaintiffs’ favor.] As a result of the expiration of the Chief lists in February 2006, firefighters were refused promotions despite having been previously notified that they were going to be appointed to such promotional positions before the lists were expired. These individuals immediately filed an Article 78 proceeding for declaratory relief (Hynes), seeking a ruling that they were, in fact, effectively appointed to their respective promotional positions prior to the expiration of the Civil Service lists by virtue of having literally and actually received their Notices of Appointment or Personnel Requisitions (APR=s@). In response to the Hynes lawsuit, and on July 7, 2006, less than four months after his decision to expire the Lieutenant and Captain lists, Matarese submitted an affidavit in the Hynes proceeding, wherein he attested that it was decided to expire the lists because their validity was challenged in the MOCHA litigation. Specifically, he wrote: 13 The City therefore decided not to renew the lists at issue and to move forward with developing new eligible lists based on a new examination series, rather than continue to appoint firefighters from lists based on an exam series that is subject to two pending federal, purported class-action, employment discrimination challenges . . . In light of MOCHA’s challenges to the lieutenants’ exam, the City has determined that further use of the state-developed exams previously employed to determine eligibility for fire department promotional positions should not be affected. The City is concerned that continued use of the state-developed exams will expose the City to further litigation and potential liability. [A-155, 158.] A few months later, during the October 2006 hearing before the lower court, Matarese was called as the City of Buffalo=s principle witness. He testified that he first canceled the Battalion and Division Chief lists for the sole purpose of preventing the promotion of white firefighters. [A-256-259.] After explaining that neither the Batallion or Division Chief lists contained reachable minority candidates, he testified: “. . . [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.@ [A-1124.] Matarese further explained that he did not expire the Lieutenant and Captain lists right away because he wanted to propose making, A...some promotions of African-Americans off of those lists from individuals who passed the exam but not 14 necessarily had scored high enough in the exam to be able to be promoted through the normal process.” [A-258.] Eventually, Matarese testified that he later canceled the Lieutenant list even though an African-American was on the list for promotion. Matarese explained that he canceled the list because even though he could have promoted one African- American, he would Ahave had at least two white males promoted ahead of him and that would have, again, exacerbated the problem.@ [A-260.] Coincidentally, ironically, and very significantly, Matarese admitted throughout his testimony before the lower court that the defendant City=s official position is that the Lieutenant Civil Service examinations are not discriminatory: Q. And throughout that [MOCHA] litigation the City has always held the position that there was no discriminatory impact as a result of lieutenant=s civil service exam, correct? A. That=s the City=s position, yes. Q. And the City has always held the position that the test was valid, correct? A. Yes. [A-261.] When pressed as to what evidence he had to support his notion that the examinations may be invalid, his response was, “Well, to begin with, the numbers 15 speak for themselves .” [A-262.] He never went on to identify other evidence. [A- 1120-1142.] Following the conclusion of the hearing, the lower court, Hon. John A. Michalek, presiding, rendered a decision in the Hynes matter on December 20, 2006, holding that the Defendants= expiring of the Civil Service eligibility lists without new lists in place and, further, without new examinations being in place in the foreseeable future was, Aagainst public policy, against the purpose of the Civil Service Law, against the interest of public safety, against the New York State Constitution . . .@ and was unreasonable, Aeven in the best context of the City=s position.@ [A-129.] The lower court further held that the Defendants were unreasonable in indefinitely delaying Civil Service testing and indefinitely delaying permanent appointments. [A-130.] The lower court did not address, because such claims were not and could not be before it in the context of an Article 78 proceeding, whether Defendants= actions constituted unlawful racial discrimination or Equal Protection violations. Meanwhile, the Hynes petitioners were also grieving the City’s actions as violations of the Collective Bargaining Agreement. On January 22, 2007, Arbitrator Lewandowski found that Matarese expired the Battalion Chief and Division Chief lists “because Matarese felt the examination process was discriminatory to minorities and because he wanted to limit the City’s liability in 16 the pending lawsuits,” and that the Lieutenant and Captain lists were temporarily extended before being expired because “Matarese wanted to use the lists to reach a settlement of the lawsuits.” [A-148-149.] Arbitrator Lewandowski described his conclusions: Testimony and evidence showed that Human Resources Commissioner Leonard Matarese had decided to permit the expiration of these lists because there were two on-going Federal lawsuits brought by African-American firefighters claiming that the 1998 and 2002 eligible lists for the position of Lieutenant were discriminatory in their impact. Matarese 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. Matarese said he concluded that the disparate result he found would present a liability for minorities at the Lieutenant examination level and higher. [A-135-136.] One month later, or about February 12, 2007, Plaintiffs filed their Complaint in the instant action alleging that the Defendants discriminated against them in the terms and conditions of their employment because of their race, thereby violating New York State Human Rights Law and Plaintiffs= Constitutional rights to Equal Protection under the law. [A-59, 67-71.] Specifically, the complained of discrimination includes, inter alia, Defendants= refusal to appoint Plaintiffs to promotional positions on account of their race; Defendants= refusal to renew certain Civil Service eligibility lists for the sole purpose of avoiding the promotion of non- 17 African-American candidates; Defendants= renewal of certain Civil Service eligibility lists for the sole purpose of appointing African-American candidates; and, Defendants= intentions to promote African-American candidates solely because of their race and who were not otherwise eligible for promotion. [A-58- 71.] On or about April 12, 2007, and in lieu of an Answer, Defendants= filed a Motion to Dismiss or Stay the instant action. [A-72-77.] Plaintiffs opposed Defendants= motion and successfully cross-moved for summary judgment on the issue of liability on their Equal Protection claims, specifically, arguing that Defendants= actions constituted unlawful and unconstitutional race-based decision- making that fails to pass strict scrutiny. The lower court agreed with Plaintiffs and held that the Defendants= actions constituted impermissible race-based decision- making and found the City liable for same. [A-336-340.] Specifically, Judge Michalek wrote: It is the Court’s rationale that both the Motion and Cross-Motion center on the sworn statements of Commissioner Leonard Matarese only. Although counsel for each side present varying interpretations of what Mr. Matarese meant by what he said, the Defendant Leonard Matarese’s statements speak for themselves and there is no triable fact issue which would preclude summary disposition on the issue of liability. 18 It is clear that the Defendants let the list expire as a result of a race based or race conscious decision due to concern as to what might be the outcome of a Federal litigation. . . . Rather than relying on compelling government interest, at best, Defendants relied on speculation as to a future outcome in a Federal matter. Rather than engaging in “narrow tailoring”, the Defendants herein took broad-sweeping and drastic action in allowing the list and/or lists to expire. [A-338-339.] The City appealed. On June 5, 2009, the Fourth Department denied the Defendants’ motion to dismiss, but also vacated the award of summary judgment to Plaintiffs, finding that the record was insufficient to determine whether Defendants had a compelling government interest and, further, whether Defendants’ actions were narrowly tailored to further such interest. [A-15.] However, almost immediately thereafter, the United States Supreme Court issued its decision in Ricci v. DeStefano, 557 U.S. 557 (2009), which specifically held that the analysis of whether a defendant committed disparate treatment discrimination ought to be first premised upon whether there is a statutory violation of Title VII, in which case, if such conduct violates Title VII, there is no need to reach the constitutional claim. The Supreme Court further set forth the proper analysis to determine whether a defendant’s conduct is lawful. 19 Defendants’ moved the Fourth Department for reconsideration on appeal of of their motion to dismiss under the Ricci standard. [A-349-351.] However, the Fourth Department advised that such relief should first be sought from the trial court. The trial court, keeping in line with the Fourth Department’s first decision, which vacated the award of summary judgment on the Equal Protection claim and, for all intents and purposes, ordered the parties to engage in discovery, declined to award summary judgment on the statutory claim and ordered the parties to engage in discovery, at the completion of which they could re-move the court for dispositive relief. The parties engaged in discovery and resubmitted competing motions for summary judgment. Subsequently, on October 29, 2010, the trial court, applying the standards set forth in Ricci, awarded Plaintiffs’ summary judgment on their New York State Human Rights Law claim. [A-1260-1266.] Defendants appealed and, on April 29, 2011, the Fourth Department affirmed. [A-9-10.] Thereafter, from August 23, 2011 through October 25, 2011, the parties conducted a lengthy and intensive trial on damages, the transcript of which appears at pages 1275-3177 of the Joint Appendix. Plaintiffs were collectively awarded approximately $2.7 Million Dollars in damages. 20 On July 5, 2013, the Fourth Department modified the damages award by reducing same to approximately $1.6 Million Dollars. Both parties appealed to this Court; Plaintiffs as to the reduction in damages, and Defendants as to liability. On October 17, 2013, this Court accepted both appeals. The MOCHA litigation, of course and as per the City’ long held contentions, finally resolved in the City’s favor in late 2013. For the entirety of the 15 year legal battle, the City never wavered in its steadfast position that the Lieutenant’s exam was valid. ARGUMENT POINT I: GENERAL MUNICIPAL LAW § 50-i DOES NOT REQUIRE A NOTICE OF CLAIM TO BE FILED AS A PREREQUISITE TO COMMENCING AN EMPLOYMENT DISCRIMINATION SUIT AGAINST A CITY It is almost sanctionable that the City of Buffalo has not yet abandoned its outrageous argument that employment law claims are contemplated within the notice of claim requirements under General Municipal Law §50-i. And, it is perplexing that the City opened its 182-page brief with that argument. For sure, the City’s brief is an obvious exercise in throwing everything at the wall and hoping against hope that something sticks. 21 In short, the City is just plain wrong; in its analysis; in its interpretation; and in its theory. Understandably, it would be very convenient for the City to rewrite the General Municipal Law and the dozens of cases interpreting such law (just as it has rewritten the justification and motive behind Matarese's actions in expiring the lists) in yet another meritless attempt to defeat Plaintiffs' claims. But, the City's instant attempts must be recognized for what they are – a shameful game of semantics and mischaracterizations. Since its inception, General Municipal Law §50-i has been held to only apply to claims founded in tort or contract and court after court has held that employment claims are not founded in tort for purposes of the statute. While the City makes much of the fact that Town Law and County Law require notices of claim as to all claims, it is irrelevant. For sure, the legislature could have drafted General Municipal Law in the same fashion, but it did not. Perhaps, most importantly, this Court, in Amorosi v. South Colonie Independent Cent. School Dist., 9 N.Y.3d 367, 371, 880 N.E.2d 6 (2007), has confirmed that an employment discrimination claim is not a tort claim. The City's reliance upon the Uniform Notice of Claim Act of 2012, (which was, of course, enacted six years after the illegal discrimination at issue here,) to buttress its argument that General Municipal Law ought to apply to all legal claims is misplaced inasmuch as the Act actually confirms the legislature’s intent 22 that General Municipal Law only apply to claims founded in tort. For sure, the Act does not amend the types of legal claims for which a notice of claim is required, nor does it even mention Town Law or County Law. Instead, the Act amends various other statutes to allow service of a notice of claim upon the Secretary of State to constitute a filing under General Municipal Law §50-i. It certainly does not, as the City suggests, seek to unify the requirements under General Municipal Law with those under Town or County Law, or require notices of claim for legal claims other than those arising in tort. It just doesn’t. And, certainly, if the legislature's intention had been to ensure that all claims, even those under New York State Human Rights Law, be subject to the notice of claim requirements, surely the 2012 Act was the vehicle by which to accomplish that. It was their opportunity to revise the law. But no such thing occurred. Moreover, the public policy arguments proffered by the City are wholly inapposite here. For sure, the City did not suffer any prejudice due to the failure to file notices of claim. Indeed, given the litigation and grievances immediately commenced following Matarese's decisions to illegally expire the lists, the City had every opportunity to investigate and take appropriate measures to resolve the claim at its earliest opportunity- this is especially so since the City takes the very staunch although belated position that the decision at issue here was somehow calculated and careful. It is actually ironic that the City argues that it was 23 somehow prevented from determining whether the case was one to be settled or one to be litigated when the City had, at all times, the opportunity to resolve this claim both prior to and early on in litigation and it balked at the notion. Contrary to Defendants’ mischaracterizations, there is no inconsistency in the application of the law, by the Second Department or otherwise. The Second Department decision, in Mompoint v. The City of New York, The Board of Education of the City of New York, 299 A.D.2d 527 (2d Dept. 2002), upon which the City bases its entire argument, involved a suit against the Board of Education of the City of New York. Of course, this Court has very clearly held that in order to sue a Board of Education, one must comply with the notice of claim requirements under Education Law §3813. Parochial Bus Systems, Inc. v. Board of Educ. of City of New York, 60 N.Y.2d 539, 458 N.E.2d 1241 (1983); see also Falchenberg v. New York City Department of Education, 375 F.Supp.2d 344 (S.D.N.Y. 2005). Obviously, and especially in light of the Second Department’s treatment of employment discrimination claims and General Municipal Law requirements, the claims in Mompoint were dismissed due to the failure of the plaintiff to serve a notice of claim as against the Board of Education. For sure, the First, Second, Third, and Fourth Departments have all consistently and explicitly held that the notice of claim requirements under General Municipal Law §50-i do not apply to employment discrimination claims. 24 While it seems unnecessary, in light of how well settled this issue actually is, to actually itemize the dozens of cases that contradict the Defendants' argument, for purposes of submitting a thorough and meaningful response, decisions from each Department are referenced below. Contrary to the Defendants' claims, the Second Department has addressed this issue (on multiple occasions) and has (always) explicitly held: [A] cause of action under the Human Rights Law is not categorized as a tort for notice of claim purposes...[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law§§ 50-e and 50-i provide the only notice of claim criteria. Picciano v. Nassau County Civil Serv. Comm'n, 290 A.D.2d 164, 170, 736 N.Y.S.2d 55, 60 (2d Dept. 2001); see also Matter of Marino v. New York City Off Track Betting Corp, 12 A.D.3d 606, 607, 785 N.Y.S.2d 481, 483 (2d Dept. 2004) (A cause of action under the Human Rights Law is not categorized as a tort for notice of claim purposes under General Municipal Law section fifty); Scopelliti v. Town of New Castle, 210 A.D.2d 308, 620 N.Y.S.2d 405 (2d Dept. 1994) (Holding that the plaintiff correctly argued that an action brought pursuant to Executive Law § 296 is not a tort claim which falls within the notice provisions of the General Municipal Law); See also, Alaimo v. New York City Dept. of Sanitation, 203 A.D.2d 501, 611 N.Y.S.2d 245 (2d Dept. 1994) 25 (Holding that General Municipal Law §50-i is not applicable to NYSHRL claims); Simpson v. New York City Tr. Auth., 188 A.D.2d 522, 591 N.Y.S.2d 350 (2d Dept. 1992) (Holding that plaintiffs are not required to serve notices of claim in an employment discrimination action). The Third Department has held that the notice of claim requirement under General Municipal Law is "confined to claims for personal injury, wrongful death, or damage to property and does not apply to discrimination claims." Grasso v. Schenectady County Pub. Lib.,30 A.D.3d 814, 816,817 N.Y.S.2d 186, 188 (3d Dept. 2006); see also Parry v. Tompkins County, 260 A.D.2d 987, 988, 689 N.Y.S.2d 296, 297 (3d Dept. 1999). The First Department, in Palmer v. City of New York, 215 A.D.2d 336,627 N.Y.S.2d 42 (1st Dept. 1995), has held that the notice of claim requirement is not applicable to claims of discrimination under the Human Rights Law. See also Sebastian v. New York City Health & Hosps. Corp., 221 A.D.2d 294,294-295,634 N.Y.S.2d 114 (1st Dept. 1995). And, of course, the Fourth Department has agreed with its sister departments. See Thygesen v. North Bailey Volunteer Fire Co., Inc., 106 A.D.3d 1458,964 N.Y.S.2d 816 (4th Dept. 2013) (Holding that it is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those 26 causes of action are not "founded upon tort"); see Mills v. County of Monroe, 89 A.D.2d 776, 776,453 N.Y.S.2d 486 (4th Dept. 1982), affd. 59 N.Y.2d 307,464 N.Y.S.2d 709, 451 N.E.2d 456 (1982), cert. denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983); Margerum v. City of Buffalo, 63 A.D.3d 1574, 1580, 880 N.Y.S.2d 820 (4th Dept. 2009). New York federal courts have also consistently held that notice of claim requirements under General Municipal Law §50-i do not apply to employment claims under NYSHRL. See Gentile v. Town of Huntington, 288 F.Supp.2d 316 (E.D.N.Y. 2003); Hamm v. NYC Office of the Comptroller Alan Hevesi, No. 95 Civ. 6367, 1998 WL 92395, at *6 (S.D.N.Y. March 4, 1998) (Holding that discrimination claims brought pursuant to Executive Law § 296 are not tort actions and are thus not subject to Section 50-e's notice of claim requirement); Dimonda v. New York City Police Dep't, No. 94 Civ. 0840, 1996 WL 194325 (S.D.N.Y. April 22, 1996) (The notice of claim provisions embodied in sections 50-e and 50-i are not applicable to claims of discrimination brought pursuant to Executive Law § 296); Anderson v. Nassau County Dept. of Corrections, 558 F.Supp.2d 283 (E.D.N.Y. 2008) (Holding that because the language of the General Municipal Law is limited to tort claims, courts have held that the notice of claim provision of the General Municipal Law does not apply in cases of 27 employment discrimination brought pursuant to New York Exec. Law § 290, et seq.). Defendants' assertion that Plaintiffs' claims fail due to a failure to file notices of claim must be rejected. POINT II: THE TRIAL COURT AND THE APPELLATE DIVISION BOTH APPLIED THE LEGAL ANALYSIS SET FORTH IN RICCI AND PROPERLY FOUND THE CITY LIABLE FOR UNLAWFUL DISPARATE TREATMENT DISCRIMINATION A) There Is No Dispute That Ricci Offers Defendants A Potential Defense To Disparate Treatment Claims Brought Under NYSHRL Or That The Trial Court And The Fourth Department Applied Such Law The City, by taking the preposterous position that the Fourth Department somehow rejected the standard set forth in Ricci, is attempting to create controversy where none exists. The trial court’s decision, of course, carefully assessed the evidence before it as to the motives for the race-based action and, after applying Ricci, Judge Michalek concluded that Commissioner Matarese prevented the appointment of additional white firefighters, not because he had a strong basis in evidence to believe that the City would be liable for disparate impact discrimination if he did not block such appointments, but rather (and as will be 28 described more fully below) that he acted for reasons that do not satisfy the Ricci safe harbor threshold. In turn, the Fourth Department, also relying on Ricci, properly affirmed the trial court’s decision as to liability. B) Ricci’s Strong Basis in Evidence Threshold As this Court is well aware, the City of New Haven, in Ricci, administered a civil service examination, the results of which demonstrated a significant adverse impact as against minorities. Because of the significant disparity in the exam results, and because the City feared lawsuits from the minority candidates (had the results been certified) and lawsuits from the white candidates (if the results were discarded), it scheduled and held five (5) separate and public meetings in order for various witnesses to give testimony, and for various interested persons to give opinions on whether the test results ought to be certified. The City of New Haven’s inquiry into whether it should certify the exam results was an “open, honest, serious, and deliberate” process. Ricci, 557 U.S. at 598. Over the course of nearly three months, and after holding five separate public hearings, the City’s Civil Service Board voted on the issue of certification. The vote was deadlocked, two for certifying and two against. The deadlock resulted in the Board discarding the test results. 29 The white candidates who lost promotions as a result of the City’s decision brought suit alleging unlawful race discrimination under Title VII and the United States Constitution. The District Court dismissed the plaintiffs’ claims. Ricci v. DeStefano, 554 F.Supp.2d 142 (D. Conn. 2006). The Second Circuit summarily affirmed in Ricci v. DeStefano, 264 Fed.Appx. 106 (2d Cir. Feb. 2008), and then, four months later, withdrew its opinion and reaffirmed in Ricci v. DeStefano, 530 F.3d 87 (2d Cir. June 2008). The Ricci plaintiffs appealed to the United States Supreme Court. On its certiorari review, the Court was put in the position of determining when, if at all, an employer can commit disparate treatment discrimination in order to avoid liability for disparate impact discrimination. The Court cautioned that its decision must be “consistent with the important purpose of Title VII – that the workplace be an environment free of discrimination, where race is not a barrier to opportunity,” and, further, that hiring should be “on the basis of job qualifications, rather than on the basis of race or color.” Id. 580, 582. Ultimately, the Court concluded that: [U]nder Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have 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. Id. at 585. 30 The Court was careful to note that “[r]estricting an employer’s ability to discard test results (and thereby discriminate against qualified applicants on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.” Id. at 584, citing §2000e-2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race.”). In order to determine whether the City of New Haven had a strong basis in evidence to believe that it would be liable for disparate impact discrimination if it certified the test results, the Supreme Court examined the record created during the course of the nearly three months of public meetings and the record of testimony heard during same. [Keep in mind: New Haven at least had a process – Buffalo had no such thing.] From this record, the Supreme Court matter-of-factly concluded that the City of New Haven did not have a strong basis in evidence to believe it would have been liable for disparate impact discrimination if it certified the lists, explaining: All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race . . . As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 31 Id. at 579, quoting Ricci v. DeStefano, 554 F.Supp.2d 142, 152 (D. Conn. 2006). The Court also chastised the City for “turning a blind eye” to evidence that supported the exams’ validity. For example, there was evidence in the record that tended to establish that the examinations were, in fact, job-related and consistent with business necessity and, further, the City could have requested that IOS, its examination developer, prepare a validation study, but it failed to do so. Finally, the Court advised that its holding “does not address the constitutionality of the measures taken here in purported compliance with Title VII,” nor does it mandate “that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case.” Id. at 584. Thus, to the extent that this Court deems that Matarese’s race-conscious actions are somehow protected under the Ricci safe harbor, there is still the issue of Plaintiffs’ equal protection claim that must be decided. Id. at 577, citing Escambia County v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) (“[N]ormally, the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”). C) Ricci Does Not Provide a Safe Harbor To Merely Avoid Potential Damages Ricci clearly provides that a defendant can only lawfully take a race-based action when it has a strong basis in evidence to believe that if it does not take such 32 action, it will be liable for disparate impact discrimination. Thus, the race- conscious action can only be undertaken to avoid liability. This necessarily begs the question as to when liability attaches. In Ricci, liability would have attached at certification of the exam results – if, of course, the exams were invalid. In short: the City of New Haven would not have incurred separate findings of liability for each promotion it made off of the certified lists if, in fact, it had certified lists from invalid examinations. The Second Circuit, in United States v. Brennan, 650 F.3d 65 (2d Cir. 2011) has further advised and further raised the bar holding that, “there must be a strong basis in evidence that the race- or gender-conscious action taken by the employer is necessary to avoid disparate-impact liability.” Id. at 113-114. The Defendants, however, are asking this Court to expand the Ricci safe harbor to allow a defendant to take race conscious actions merely to avoid potential (speculative) damages in a situation where if it already committed disparate impact discrimination, it did so in the past and, thus, the race conscious actions could do nothing to preclude disparate impact liability as it would have already occurred. Here, MOCHA commenced litigation against the City of Buffalo in both 1998 and 2003, alleging that the 1998 and 2002 Lieutenant examinations were invalid. If MOCHA was correct, liability would have attached at the time that the City certified the exam results, in 1998 and in 2002. This liability would attach 33 regardless of whatever subsequent actions the City took. In other words, Matarese’s actions in failing to appoint any additional candidates off of the list – solely because such candidates were white – does not and cannot undo the liability that the City would have incurred at the time that it certified the lists – if, of course, the lists resulted from invalid examinations (which in our case truly did not). The City would have already been liable. Certainly each promotion off of the resulting eligible list does not translate into a new finding of liability for disparate impact. The City’s speculative desire to avoid paying money damages, whether to the named MOCHA plaintiffs or to a not yet existent but potential group of future plaintiffs, is not a legitimate reason to cease making appointments off of lists simply because no further minorities were reachable. And, this is an important point – Matarese readily admitted that he did not expire the lists because he believed they resulted from invalid testing processes. He expired the lists because there were no reachable minorities. We can be sure, from Matarese’s own testimony and admissions, that had there been reachable minorities on the list, they would have been appointed to the existing vacancies before he expired the lists to prevent the appointment of additional white candidates. Matarese’s actions were, among other things, an alleged attempt to limit financial exposure, but it certainly could not have been necessary for the City, in 2005, to prohibit the appointment of any additional white candidates off of the 34 various 2002 promotional lists to avoid liability for the alleged disparate impact discrimination claims brought by MOCHA in 1998 and 2003. It is the Plaintiffs’ position that Ricci does not provide insulation for an employer’s race-conscious actions where such actions cannot and will not prevent disparate impact liability, but, instead, can only limit financial exposure for the disparate impact liability, if any, that the employer may face. The City’s race conscious actions are not the type of actions contemplated by Ricci as lawful discrimination. D) The Trial Court Properly Considered Ricci And Applied Same The trial court’s decision was well-reasoned and thorough. As will be set forth more comprehensively below, Judge Michalek aptly concluded that the most credible evidence of the motivation behind Matarese’s decision to expire the lists was Matarese’s own testimony, both live (before Judge Michalek) and in writing in the Hynes proceedings. Judge Michalek wrote: Based on this Court’s review of all relevant information presented, and upon the undisputed facts, the City did not under the standard enunciated by the U.S. Supreme Court in Ricci have a strong basis in evidence to believe that it would be subject to disparate-impact liability if it failed to take the race-conscious action which it took. And also under the Ricci standard, the City lacked a strong basis in 35 evidence to believe that the examinations which are the subject of this action were not job-related and consistent with business necessity. It is clear from the testimony of Leonard Matarese in the Hynes proceeding that he did not have strong evidence regarding the potential invalidity of the composition of the 1998 tests, much less any potential invalidity of the 2002 tests which would satisfy the Ricci standard, and that his primary motivation for expiring the lists at issue in this action was the fear of future litigation in light of the MOCHA federal litigation pending at the time. This primary motivation is referenced as well in Matarese=s affidavit of July 2006 which was submitted in support of the City=s motion seeking dismissal of the Hynes proceeding. And despite other reasons cited for the decision to allow the lists to expire, including, but not limited to, the simultaneous attempts at settling the MOCHA litigation and the Federal Court=s findings and its continued supervision of the City=s hiring practices, these reasons, whether individually or in total, do not satisfy the requirements of Ricci.@ [Emphasis added.] A-1262-1263. The trial court very clearly applied the Ricci standard and found that the City’s claims as to why Matarese made the decision he did were not convincing, and that the real reasons behind Matarese’s decision were insufficient to justify his racial discrimination against the Plaintiffs. 36 E) The Fourth Department Properly Adopted The Trial Court’s Decision As To Liability The Fourth Department’s decision, while perhaps not as thorough as it could have been, affirmed the trial court’s decision that thoughtfully and correctly applied the proper standard. Specifically, the Fourth Department wrote: The court, inter alia, granted those parts of plaintiffs’ motion on liability with respect to the City of Buffalo . . . We affirm. We agree with the court that the City defendants did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire, inasmuch as the examinations in questions were job-related and consistent with business necessity (see Ricci, ____ US at ____, 129 S Ct at 2678). Thus the City defendants failed to meet the standard set forth in Ricci, and plaintiffs are entitled to summary judgment on liability against them (see Matter of Buffalo Professional Firefighters Assn., Inc. IAFF Local 282 [City of Buffalo], 79 AD3d 1737). Margerum v. City of Buffalo, 83 A.D.3d 1575 (4th Dept. 2011) [Emphasis added]. [A-10.] The City obviously takes issue with the Fourth Department’s reference to the examinations being job-related and consistent with business necessity. However, the Fourth Department certainly did not indicate that it was relying on the MOCHA decision in this regard. Indeed, no citation to MOCHA is included or even referenced in the decision. Nor does the court say that the exams were found to be job-related and consistent with business necessity. The court simply says they 37 were, as a summary way for the court to reject the City’s arguments that they somehow had strong evidence otherwise. Regardless of how the Fourth Department summarily characterized why the City did not meet the strong basis in evidence test, the fact of the matter is that the overwhelming evidence in the record confirms that Matarese did not act based on an objective strong basis in evidence to believe that the City would be liable for disparate impact discrimination if he did not prevent the appointment of white candidates, but rather that he randomly and unilaterally acted so as not to exacerbate what he merely perceived to be a racial disparity in the department. Even if the Fourth Department’s decision misapplied the Ricci standard, which is neither conceded, nor suspected by Plaintiffs, reversal is simply not warranted. POINT III: LEONARD MATARESE DID NOT HAVE A STRONG BASIS IN EVIDENCE TO BELIEVE THAT THE CITY WOULD BE LIABLE FOR DISPARATE IMPACT DISCRIMINATION IF HE FAILED TO TAKE THE DISPARATE TREATMENT ACTION A) The City Must Not Be Allowed To Use Hindsight In Order To Rewrite History In A Self-Serving Attempt To Meet The Strong Basis In Evidence Test The Second Circuit, in United States v. Brennan, 650 F.3d 65 (2d Cir. 2011) cautioned against allowing a defendant to rely on after acquired evidence to 38 buttress a race-based decision, noting that the Ricci court “considered only what the city knew at the time it made its decision,” and explaining: The rationale underlying Ricci, moreover, confirms that the evidence is to be gauged at the time of the race – or sex- conscious employer action. The strong-basis-in-evidence standard is intended to “strike [] a . . . balance” between the Title VII provisions concerning disparate treatment and disparate impact, so that employers make the right decisions in the first place. Id., at 111, quoting Ricci, 129 S.Ct. 2675. Since the United States Supreme Court issued its decision in Ricci, in 2009, but not before then, the City of Buffalo has belatedly contended that the decision to expire the lists was allegedly based on the following: (a) the 1998 and 2002 MOCHA litigation challenging the validity of the lieutenant exams; (b) the MOCHA Plaintiffs= expert regarding the 1998 exam, Kevin R. Murphy, Ph.D.; (c) the City=s expert in the 1998 MOCHA litigation, Nancy Abrams, Ph.D.; (d) the 1979 Remedial Decree; and (e) the deposition testimony of Wendy Steinberg and Paul Kaiser from the New York State Department of Civil Service. For several reasons, Defendants=contentions are without merit. First, they ignore the simple fact that Matarese has already locked the City into a justification for allowing the lists to expire in 2005 and 2006, and that justification did not even contemplate the reasons now set forth by the City. For sure, the City has failed to put forth any credible evidence establishing that Commissioner Matarese actually based his decision on anything more than 39 what he repeatedly testified to: His speculative belief that the examinations may have been discriminatory because they produced a disparity in the passage rates for whites and blacks; his desire to avoid promoting additional white candidates so as not to exacerbate the disparity; to avoid further litigation; and in an attempt to settle the MOCHA litigation. Indeed, we have before us the most credible evidence that we could possibly have of Matarese’s motive and reasoning behind his decision to prevent the appointment of additional white candidates, i.e., his almost contemporaneous and personal explanations as to why he, and he alone, made the decision. The post- Ricci attestations ought to be firmly rejected for what they are: Self-serving, post- facto, exaggerated, disingenuous, and meritless. There can be no dispute but that the City’s rationale for Matarese’s decisions has evolved and changed significantly during the course of litigation, especially after the Supreme Court issued its decision in Ricci. i) Matarese’s Testimony Explicitly Evidences Why He Did What He Did And The City Should Be Estopped From Expanding On His Testimony Matarese, and the City, should be bound by Matarese’s prior testimony, both written and oral, in the Hynes proceeding as to his reasons for preventing the 40 promotional appointment of any additional white candidates, including the Margerum Plaintiffs, to Lieutenant, Captain, Battalion Chief, and Division Chief. In his affidavit submitted in support of the City’s motion to dismiss the Hynes petition, Matarese attested: As noted, the City allowed the eligible lists to expire because the lists were determined on the basis of an exam series whose validity and racial neutrality has been challenged in two federal actions brought by African-American firefighters . . . In light of MOCHA’s challenges to the lieutenants’ exam, the City has determined that further use of the state-developed exams previously employed to determine eligibility for fire department promotional positions should not be affected. The City is concerned that continued use of the state-developed exams will expose the City to further litigation and potential liability. Should the MOCHA plaintiffs succeed in establishing the invalidity of the exam used previously for determining the eligible list for lieutenants, I am informed by counsel that the City may face a similar challenge [sic] the contesting the validity of other exams in the same series. Likewise, the City has determined that it would be inappropriate to extend any existing lists based on the state-developed exams for Fire Department promotional positions as their further use may expose the City to further liability. [A-157-159.] No mention of Murphy or Abrams or any so-called evidence as to the exams’ invalidity was made by Matarese in this telling affidavit. Critically, Matarese testified that he alone was the decision-maker in this case. [A-1065.] Thus, this Court must consider his prior testimony in determining 41 the real reason and motivation behind his expiring the lists. The City=s attempt to style Matarese=s prior testimony into that which now fits the Ricci standard is both obvious and unavailing. The lower Court recognized same: This primary motivation [fear of future litigation] is referenced as well in Matarese=s affidavit of July 2006 which was submitted in support of the City=s motion seeking dismissal of the Hynes proceeding. And despite other reasons cited for the decision to allow the lists to expire, including, but not limited to, the simultaneous attempts at settling the MOCHA litigation and the Federal Court=s findings and its continued supervision of the City=s hiring practices, these reasons, whether individually or in total, do not satisfy the requirements of Ricci. [A-1263-1264.] [Emphasis added.] Even the defense has conceded, “As Commissioner Matarese’s testimony makes clear, the City was simply attempting to avoid potential further liability, while at the same time preserving possible options for resolving the MOCHA litigation.” [A-284.] Unconcerned with whether the examination was actually invalid, Matarese was focused on the numbers. This was corroborated by his prior testimony in the Hynes litigation. Matarese testified, in October 2006, that the first reason for letting the lists expire was Athe very serious discrepancy with regards to the number of minority supervisors in the Buffalo Fire Department . . . That in itself raise[d] very serious concerns to [him] that there=s something going on in the testing process that=s somehow or another preventing individuals from being 42 promoted through the ranks . . . So that in and of itself raise [sic] serious questions to [him] about the testing procedure.@ [A-1066.] Indeed, during the proceeding, Matarese explained why he did not make the appointments of at least one minority candidate, testifying that Aeven if [he] had kept the list alive long enough for him to be promoted, that would have had at least two white males promoted ahead of him and that would have, again, exacerbated the problem.@ [A-1071.] Matarese explained that the problem he was trying to Asolve,@ i.e., Aserious racial imbalance,@ was a Astructural problem,@ which “may, in fact, be caused as a result of improper testing.” [A-1072.]. Matarese went on to state, Amy concern is and the problems rely around C 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.” [A-1120.] Again, critically, when asked what evidence he was aware of to support his statement, he went on to explain, AWell, to begin with, the numbers speaks for themselves.@ Id. As evidenced by the District Court=s repeated findings that the exams were valid, Matarese entirely disregarded all of the evidence in support of the exam=s validity in summarily deciding to expire the 2002 eligibility lists. Thus, he expired those lists without a Astrong basis in evidence,@ and, based solely on his concern 43 about correcting the racial imbalance within the Department. As previously quoted, the lower Court recognized same: It is clear from the testimony of Leonard Matarese in the Hynes proceeding that he did not have a strong basis in evidence regarding the invalidity of the composition of the 1998 tests, much less any potential invalidity of the 2002 tests, which would satisfy the Ricci standard, and that his primary motivation for expiring the lists at issue in this action was the fear of future litigation in light of the MOCHA federal litigation pending at the time. [A-1262.]. Matarese=s testimony makes very clear that his motivation in expiring the lists was due to his concern about two things; alleged, but unsubstantiated, financial Aexposure@ in the MOCHA case and remedying the statistical disparities in the fire department. Ricci, however, clearly does not justify race-based actions taken to avoid litigation or because of statistical disparity. Dr. Murphy Matarese never once testified that he either considered or relied upon the expert opinion of Dr. Murphy. Indeed, Dr. Murphy=s report was never mentioned during the course of Matarese=s testimony. The City=s attempt to now suggest that Matarese was aware of Dr. Murphy=s report and testimony, and that such information played a role in his decision, must be rejected here, just as the trial court rejected it below: Moreover, as to the issue which has been raised regarding whether Matarese relied on the report and/or the testimony of Dr. Murphy who 44 was retained by the plaintiffs in the MOCHA litigation, this Court notes that during the Hynes proceeding Matarese did not reference Dr. Murphy. And even though this Court did not allow Mr. Matarese to testify as to the substance of any expert report or conversations with any expert, this Court did not preclude him from referencing any expert upon whose opinion he had relied via-a-vis his concerns about the validity of the tests. Notably, Matarese cited neither Dr. Murphy=s report nor his testimony in giving the reasons why he allowed the lists to expire or in referencing the information on which he relied in so doing. The Court cannot allow a witness to avoid the consequences of earlier sworn testimony by submission of a contrary or different sworn statement in the form of a subsequent affidavit. [A-1264.] Nancy Abrams Further, with respect to Dr. Nancy Abrams, Matarese did testify in the Hynes proceedings that he relied Ain part@ on her opinion, but he never extrapolated how or to what extent he did so. The lower Court took notice of Matarese=s crucial omission in this regard as well: And even acknowledging that Matarese did testify that he consulted with Dr. Abrams in this regard, it still cannot be said, based on the record before this court, that in taking the actions he did, Matarese had a strong basis in evidence to believe the City would be subject to disparate-impact liability if it failed to take the race-conscious action which it did or that Matarese had a strong basis in evidence to believe that the examinations, which are the subject of this action, were not job related and consistent with business necessity. The fact that Defendants consulted expert opinion does not guarantee a favorable outcome for them under the Ricci standard. A thorough analysis of Matarese=s motives as set forth by him in the Hynes 45 proceeding, which was clearly conducted for that purpose, clearly demonstrates that the City has not met the Ricci standard. Id. The City must not be permitted to morph Matarese=s personal ambitions to Afix@ or Asolve@ an alleged racial imbalance within the Department into that of a Astrong basis in evidence@ to believe that it would, in fact, have been liable for disparate impact liability had the promotions of additional white candidates taken place. Ricci requires the City=s race-based action to be taken to prevent what it has a Astrong basis in evidence to believe@ is disparate impact liability, otherwise it is simply an unlawful race-based action. Id. The City cannot meet this burden and their Appeal must fail. ii) Neutral Third Parties’ Characterizations of Matarese’s Testimony In Various Legal Proceedings As To Why He Did What He Did Corroborates That Matarese Did Not Rely Upon The Evidence Now Claimed By The City And That He Did Not Have A Strong Basis In Evidence We know how Judge Michalek characterized Matarese’s testimony, iterating that Matarese testified that he acted out of fear of litigation and in an attempt to settle the MOCHA action, of which neither reason would satisfy Ricci. [A-127.] Similarly, Arbitrator Lewandowski, in 2007, described Matarese’s testimony in the same fashion. [A-135-136, 148-149.] Specifically, he wrote: 46 Testimony and evidence showed that Human Resources Commissioner Leonard Matarese had decided to permit the expiration of these lists because there were two on-going Federal lawsuits brought by African-American firefighters claiming that the 1998 and 2002 eligible lists for the position of Lieutenant were discriminatory in their impact . . . The facts show that the lists were [not] extended because Matarese felt the examination process was discriminatory to minorities and because he wanted to limit the City’s liability in the pending lawsuits. The facts also show that the Lieutenant and Captain lists were extended because Matarese wanted to use the lists to reach a settlement of the lawsuits. Id. Further, in another arbitration proceeding, which decision was subsequently reviewed by Erie County Supreme Court Judge Kevin Dillon in August 2009, the City was found to have merely argued that it expired the lists because “it was attempting to avoid claims of discrimination and resulting legal liability.” See Buffalo Professional Firefighters Association, Inc., v. City of Buffalo, Index No.: 3580/2007 (N.Y. Sup. 2009), a copy of which is attached hereto, due to its non- published status. Judge Dillon further described the arbitrator’s findings based on Matarese’s testimony: The arbitrator concluded that Mr. Matarese’s testimony objectively demonstrated imbalance in the supervisory ranks in the fire department and a “suspect but not ungrounded” belief that the imbalance was caused, at least in part by the testing procedures. Further, he credited Mr. Matarese’s conclusion that the best way to 47 protect the City from legal liability and to control risks was to let the lists expire. Id. Judge Dillon, ultimately vacated the arbitrator’s decision in the City’s favor, finding that the decision, which permitted racial discrimination, could not be reconciled with Federal and State case law and statutory law. Judge Dillon expressly found that: In the present proceeding, contrary to Ricci, the City did not demonstrate that there was a “strong basis in evidence” to conclude that it would face liability under the disparate impact provisions of the Civil Rights Act. Id. The most credible evidence upon which to assess the motivation behind Matarese’s decision to expire the lists, and when to expire them, is that evidence that came into being most closely in time to the decision itself, specifically, Matarese’s testimony in Hynes, Lewandowski, Margerum (before Ricci was decided), and the arbitration decision reviewed by Judge Dillon. In light of the consistency of Matarese’s testimony and of the characterizations of such testimony by neutral third parties, the City ought to be estopped from relying on any other alleged and after-acquired evidence. 48 Certainly, it is not credible to accept the City’s post-Ricci claim that a variety of other evidence existed, when Matarese never mentioned such evidence, much less testified as to his reliance on same. iii) Before Ricci Came Out The City’s Reasoning For Expiring The Lists Focused On Avoiding Further Litigation And Potential Liability Until the United States Supreme Court enumerated the “strong basis in evidence” standard set forth in Ricci, the City merely argued that Matarese made the decision he did because of the disparity in the test results, the racial imbalance in the department, a desire to try to settle MOCHA, and fear of other litigation or further liability. Subsequent to Ricci, the City has attempted to morph its previously argued justification into that which it believes satisfies the Ricci Court=s Astrong basis in evidence@ test. It’s as simple as that. The City’s sudden and now bolstered version of why it did what it did is nothing less than a disingenuous post hoc attempt to make lawful its otherwise unlawful actions. It must be rejected. Indeed, the City has been making contradictory arguments for far too long. In its initial appellate brief to the Fourth Department, appealing the trial court’s grant of summary judgment to the Margerum Plaintiffs on the issue of liability under the Equal Protection analysis, the City described its decision to 49 expire the lists in two paragraphs. Specifically, on December 1, 2008, the City wrote: The Decision To Permit The Lists To Expire The fire lieutenants’ exam is just one in a series of exams previously used by the City in determining eligibility for promotional positions within the Fire Department. The New York State Department of Civil Service developed all of the promotional exams at the same time and in the same manner. The exams also have an undisputed adverse impact. For these reasons, MOCHA’s challenge to the lieutenants’ exam potentially calls into question the validity of the other exams that [sic] City uses for purposes of determining eligibility for promotional positions within the Fire Department, including division chief, battalion chief, captain, and lieutenant. In light of MOCHA’s serious challenges to the lieutenants’ exam, the City decided to permit the Civil Service lists based on the state- developed exams series to lapse automatically under the Civil Service Law as they came up for renewal between late 2005 and early 2006. The City first let the division chief and battalion chief eligible lists expire. The City kept the lieutenants and captains eligible lists active somewhat longer because it contemplated making appointments off those lists as part of a federally court-ordered settlement in the MOCHA actions. The City then permitted those lists to expire after it became evident that settlement was not forthcoming. The City was concerned that continued use of the state-developed exams would expose the City to further litigation and potential liability. See Brief for Defendants-Appellants, a copy of which is attached hereto, pp. 7-8. [Emphasis added.] 50 Here there is no mention of Dr. Murphy, no mention of Nancy Abrams, and no mention of the fact that the City had long and successfully contended that the exams in question were utterly legitimate. The City further described its actions, explaining: As in Hayden and Ricci, the exam series at issue has an indisputable adverse impact on Blacks. The City acted merely to avoid further potential liability from continued use of eligible lists derived from a potentially biased exam series. Brief, p. 20. Of course, the City’s mention of Ricci in the passage above referred, not the United States Supreme Court decision in 2009, but, rather, to the District Court’s decision, wherein the City of New Haven had prevailed and defeated the claims of racial discrimination. First, the City of Buffalo admitted – we did this to avoid potential liability, just like in Ricci. But, after the District Court’s (and the Second Circuit’s summary affirmance of same) Ricci came to be reversed, the City of Buffalo argued – oh no, wait, we really did this because we had a strong basis in evidence to believe that we would be liable for disparate impact discrimination if we did not. In this same brief, the City went on to note that an arbitrator, in a class action grievance by the Plaintiffs’ union against the City, and which was brought as a result of the decision to expire the lists, also determined, “The facts show that the lists were extended because Matarese felt the examination process was 51 discriminatory to minorities and because he wanted to limit the City’s liability in pending lawsuits.” Brief, p. 11. Moreover, City attorney, Joshua Feinstein, attested on March 13, 2009, that the City had a reasonable concern that continuing to appoint from the promotional lists could subject it to further liability. [A-368.] It makes sense that the evidence regarding Defendants’ motives for taking race-conscious actions, and which came into existence most closely in time to the race-conscious actions, is the most credible evidence of why such race-conscious actions were taken. Here, the most credible evidence in the record demonstrates that the City cannot meet the strong basis in evidence test. iv) The City Has Always Contended That The Lieutenant Exams Were Valid In determining that the City did not have a strong basis in evidence to believe it would be subject to disparate impact liability if it did not expire the promotional lists, Judge Michalek noted the City=s Asteadfast position in MOCHA that the exams were valid.@ [A-1265.] In October 2006, Matarese testified that it was the City’s position that the exams were valid. Specifically, Matarese admitted throughout his testimony before 52 the lower court that the defendant City=s official position is that the Lieutenant Civil Service examinations are not discriminatory: Q. And throughout that [MOCHA] litigation the City has always held the position that there was no discriminatory impact as a result of lieutenant=s civil service exam, correct? A. That=s the City=s position, yes. Q. And the City has always held the position that the test was valid, correct? A. Yes. [A-261.] And, in 2008, in the MOCHA litigation, counsel for the City, attorney Joshua Feinstein wrote: The [MOCHA] plaintiffs= post-trial brief underscores the fundamental lack of merit to their entire case. The plaintiffs do not engage the substantial evidence supporting the validity of the 1998 Lieutenants= Examination at all . . . The Court should not permit the plaintiffs= meritless contentions to distract it from the actual record before it. There is no question here that Dr. Steinberg accumulated substantial evidence that the 1998 Lieutenants= Exam is an appropriate and representative measure of the skills, aptitudes, and other traits necessary to succeed as a fire lieutenant in Buffalo. Judgment in the City=s favor is therefore appropriate. See Defendants= Reply to the Plaintiffs= Post-Hearing Brief, Case 1:98-cv- 00099-JTC, Doc. No.: 406, p. 2 (Emphasis added). 53 He subsequently added: Dr. Steinberg and NYS Civil Service accumulated overwhelming evidence that the 1998 Lieutenants= Examination is an appropriate measure of the skills, knowledge, and aptitudes necessary to succeed as a Buffalo Fire Lieutenant. The City has therefore carried its burden of establishing the examination=s validity. The plaintiffs= attempt to impeach the careful, methodical work performed by Dr. Steinberg and NYS Civil Service in constructing the examination is unpersuasive. Id., p. 7. Mr. Feinstein’s firm was representing the City (and Matarese) at the Hynes hearing. Speaking on the record and, therefore, under oath, he told a Federal Court judge that the MOCHA Plaintiffs’ contentions were meritless. He was right, but more importantly, surely he had to be telling his client – the City – the same thing. There is no dispute that the City has always, over the course of the fifteen year legal battle in MOCHA, maintained its position that the examinations were valid. Such a fact is not irrelevant for purposes of determining the credibility of the City’s now about-face. B) The City Cannot Meet The Ricci Threshold i) Ricci Insulates A Defendant Only In Certain Narrow Circumstances None Of Which Are Present Here Safe harbor protections are allowed only in certain, narrow circumstances. Ricci, 557 U.S. at 583. For sure, the certain, narrow circumstances are such that 54 even the Ricci defendants, who attempted to make a cautious, careful, and well informed decision did not satisfy the burden. Importantly, the United States Supreme Court has yet to find that any defendant has satisfied the threshold of the strong basis in evidence test. Further, only one other court, to date, has held that a defendant satisfied the strong basis in evidence test. Specifically, the District Court in New Jersey held that a defendant in a disparate impact discrimination case could enter into a consent decree which provided modest race-conscious remedial efforts, in order to settle the disparate impact litigation where there was a strong basis in evidence to believe that the examinations were invalid. See United States v. New Jersey, 2012 WL 3265905 (D. N.J. 2012). The lack of any case law granting a safe harbor is surely because Ricci made very clear that a violation of disparate treatment in the name of avoiding disparate impact is allowed only in “certain, narrow circumstances.” While those narrow circumstances may have been present in United States v. New Jersey, they are certainly not present here. In United States v. New Jersey, the United States sued the State of New Jersey following a two year investigation by the Department of Justice as to the State’s alleged discriminatory practices in hiring and promotions. Less than a year after suit, the parties had conducted extensive discovery and were actively trying to 55 settle the case. Critically, by this point, the State conceded that its examinations were discriminatory. The City argues that the facts in United States v. New Jersey are “indistinguishable” from those at hand. But, that just is not the case. The State defendant in United States v. New Jersey ceased litigating in its disparate impact litigation, ceased defending its examinations, conceded that such examinations were not job-related or consistent with business necessity, and in the name of resolving that pending litigation, it sought to enter into a Consent Decree which provided for modest race-based remedial actions. Furthermore, prior to approval of the Consent Decree by the court, the parties instituted a process to call for written objections opposing the Decree and arranged to hold a fairness hearing to consider such objections. Furthermore, experts were available not only to testify during the fairness hearing, but to answer questions asked by those objecting to the Decree. The Consent Decrees were amended three separate times over the course of six months. The decision was not rushed or made lightly. And, the State did not undertake any race-based actions outside of those set forth in the Consent Decree in the litigation that it sought to settle. Those facts are nothing close to what happened here. 56 Here, despite its post-Ricci assertions as to how convincing or competent the alleged evidence was as to the examinations’ invalidity, the City never once discontinued its aggressive and enthusiastic defense in the MOCHA litigation. At no time did the City concede that its examinations were anything other than valid and non-discriminatory. Plainly, this is because the City never believed its examinations were anything other than valid and non-discriminatory. Indeed, Matarese explained, very candidly, why he made the decision that he did and the fact that he thought the examinations may have had something to do with the racial disparity was only a part of that. It was not until after the Ricci decision came out from the Supreme Court that the City began rewriting the reasons behind Matarese’s decision to kill the lists. For sure, the fact that the City continued defending the exams in MOCHA, only undermines the City’s argument that the exams were likely invalid. The City has done little here but speak out both sides of its mouth whenever it was convenient to take a particular legal position. The City has been stuck with Matarese from the beginning of this case and all the way back in 2007 the trial court (Judge Michalek) so concluded. The City of Buffalo has no business comparing its actions or the facts of this case to those present in United States v. New Jersey. Here, the City of Buffalo sought permission from the federal court to re-administer the very same test that was under question in the earlier MOCHA litigation and, further, to certify the results 57 and then appoint from the resulting list. Judge Curtin approved the City’s actions from the outset. And, the City continued to appoint from the list, even despite the MOCHA plaintiffs commencing a second lawsuit in 2002. In fact, it was not until late 2005, after the list contained no more reachable minority candidates, that Matarese, as the Civil Service Commissioner made the unilateral decision to prevent any further appointments. This scenario falls fall short of meeting the “certain, narrow circumstances” test that the Ricci Court set up to claim a safe harbor. For sure, and putting aside the District Court’s (Judge Curtin’s) blessing in taking the actions that it did (which would undermine any potential litigation following for continued appointments from the list), the City had an obligation at the time of testing or, at the very least, at the time that it was contemplating certifying the list, to undertake the analysis as to whether it would be liable for disparate impact liability if it (a) used the test; (b) certified the results; and (c) appointed from same. It just cannot be the case that the City could test – with the Court’s permission, certify – with the Court’s permission, and then appoint – with the Court’s permission, but then when it ran out of reachable minorities to appoint, kill the list to prevent appointing more white candidates, and somehow still claim to be protected under the “certain, narrow circumstances,” of avoiding liability as 58 contemplated by Ricci. That result is nothing short of absurd, especially where all of the evidence that the City would come to rely on to prove validity and business- relatedness was in existence at the time that it administered the 2002 examination and certified the list from same. It cannot be the case that a defendant can refuse to make a reasonable inquiry into the lawfulness of its employment process at the time of the potential disparate impact liability thereby establishing a status quo and then take race conscious actions years in the future in what can only be a self-serving attempt to limit its speculative, after-the-fact, and merely alleged claim of potential financial exposure. ii) The Evidence Claimed to Have Been Relied Upon By The City Is Still Insufficient To Satisfy Ricci a. 1979 Remedial Decree The Consent Decree provides for its own remedial measures in the hiring processes of the City of Buffalo Fire Department and is not relevant to the issues raised by MOCHA in either the 1998 or 2003 litigation. The City of Buffalo erroneously argues that if any further appointments were made from the civil service lists created from the 2002 civil service examination, the City would possibly be violating the Consent Decree=s general prohibition on discrimination. Specifically, the Consent Decree prohibits discrimination against any individual on 59 the basis of race, whites and blacks alike. To not discriminate is, of course, the City=s legal obligation anyway. What the City fails to mention, however, is that its own blatant race-based remedial measures are a per se violation of the Consent Decree. This, of course, is not once mentioned in the City=s voluminous pleadings. It is also significant to note that numerous promotional appointments have been made from the Civil Service lists generated by the Civil Service examinations administered since 1979. Certainly if the City of Buffalo would be in violation of the Consent Decree now by continuing to make appointments, it has been in violation of the Consent Decree all along, yet this argument was never once advanced or considered previously inasmuch as the District Court outright denied injunctive relief to the MOCHA plaintiffs and allowed the City to continue promoting officers from the civil service lists. The Consent Decree is merely an after-thought by the City as it scrambled post-Ricci to get something to stick to the wall. It should be rejected. b. MOCHA I litigation The City argues that, in stark contrast to the Ricci litigation, it did not act out of fear of litigation alone, but rather its actions were somehow more reasonable 60 because it waited seven (7) years for a lawsuit to purportedly develop and unfold before taking allegedly necessary race conscious actions. The point that the City misses is that it had no right to avoid taking a hard look at the validity of its 1998 and 2002 Lieutenant examinations until such time that the parties were engaging in factual and expert discovery in MOCHA. The time to investigate the examinations’ validity was immediately at the onset of the challenge to the examinations, especially where the test results demonstrated a disparate statistical impact. The City of New Haven, in Ricci, certainly did not garner criticism for acting promptly. Instead, the Court simply found that the City failed to either secure or examine all of the evidence available to it in order to make an educated decision on whether it had a strong basis in evidence to believe that not certifying the test results was the only way to avoid disparate impact discrimination. Here, however, despite MOCHA’s lawsuit and despite the statistical disparity in the test results, the City sat on its hands, while vigorously arguing – albeit correctly – that the examinations were valid. Seven years later, the City made a determination that it had to expire the 2002 promotional lists in order to limit liability and financial exposure in the MOCHA litigation, among other insufficient reasons, all of which would not prevent a finding of disparate impact discrimination liability for the administration of the Lieutenant examinations 61 inasmuch as disparate impact liability, had the examinations been found to be invalid, would have attached in 1998 and in 2002, when the City certified the results and promulgated lists. To reiterate: Nothing the City would come to do in 2005 would prevent liability on the disparate impact claim if, in fact, the tests were invalid. The MOCHA actions, commenced in 1998 and 2002, did not provide a strong basis in evidence for the City to take race conscious actions in 2005 and 2006. There was a specific finding of fact to this exact affect by the trial court: Here, the plaintiffs are correct, that the City of Buffalo either turned a blind eye to the evidence in favor of the exam’s validity which they were emphasizing when they were appearing before Judge Curtin in the MOCHA litigation or failed to make a reasonable inquiry into the validity of the exams. [A-1265.] c. Dr. Abrams’s Early Evaluation The City asserts that back in 2001, Dr. Abrams advised it that the City’s 1998 Lieutenant’s examination had a marked statistical adverse impact on racial minorities. The City claims that Dr. Abrams did not possess enough information from which to draw conclusions concerning the 1998 Lieutenant examination’s validity. 62 Despite knowing that the test had a “marked statistical adverse impact,” and, further, that Dr. Abrams was requesting more information, the City waited another two years, (now five years after the MOCHA litigation commenced) before it subpoenaed testimony and information about the research and analyses underlying the Lieutenant examination. [And, to remind the reader, subsequently described that the MOCHA arguments were “meritless contentions.”] Dr. Abrams’s early evaluation does little more than demonstrate the unreasonableness of the City’s delay. Indeed, the City’s failure and/or refusal to act promptly and carefully at the outset of the MOCHA litigation in 1998, much less in 2001 when Dr. Abrams confirmed the disparity in test results, or again when MOCHA commenced a second suit in 2002, ought to bar it from invoking any affirmative defense under Ricci for actions it would only come to take seven years after it may have but now we know didn’t commit disparate impact discrimination. The time to act was in 1998, before re-administering the same Lieutenant examination in 2002 with Judge Curtin’s full authorization. d. Dr. Steinberg’s and Mr. Kaiser’s Deposition Testimony As is set forth above, the City successfully and exclusively relied upon the testimony of Dr. Steinberg and Mr. Kaiser in defending MOCHA’s claims by 63 proving that the examinations were job-related and consistent with business necessity. As is set forth in more detail below, the Defendants knew or should have known, simply based on the extensive information provided by Dr. Steinberg and Mr. Kaiser, that the examinations were, in fact, valid. At the very least, Defendants could not have had a strong basis in evidence to believe otherwise. Dr. Steinberg was deposed in January and February 2003 and Mr. Kaiser in January 2004. [A-509, 866.] Finally, and this is not in dispute, Matarese never once testified that he relied upon Dr. Steinberg’s or Mr. Kaiser’s deposition testimony in choosing to expire the lists. In fact, the City specifically admitted this in the Hynes proceeding when City attorney, Ms. Sellers, of Mr. Feinstein’s firm, advised the court, as she sought to introduce the deposition transcripts of Dr. Steinberg and Mr. Kaiser into the Hynes record: “It’s not our position that Commissioner Matarese ever saw these transcripts or relied on them.” [A-413.] Given that Matarese was the sole decision maker, that he never saw the transcripts, and that he did not rely on same, the City is precluded from now asserting that any alleged omissions or admissions made by either Dr. Steinberg or Mr. Kaiser played any role whatsoever in Matarese’s decision to prevent the promotions of any additional white candidates. 64 e. The City Receives Dr. Murphy’s Report Matarese testified, at length, on both direct and cross examination in a number of legal proceedings following his decision to expire the 2002 promotional civil service lists. Some of that testimony is directly part of the record. Some of that testimony is described by others in the record. Nowhere in the record is there evidence that Matarese considered Dr. Murphy’s report. In the Hynes proceeding, Matarese gave his first testimony about his reasoning for determining to expire all of the 2002 promotional lists. He never once testified or even mentioned that he relied upon the so-called expert report or deposition testimony of Kevin Murphy, Ph.D., as has now been asserted by the City. This is further evidenced by the exchange that took place between City attorney Kathleen Sellers and the court immediately after Matarese was allowed to step down as a witness after having been direct examined, cross-examined, re- directed, and re-crossed. Specifically, Ms. Sellers indicated at that time that she wanted to submit the testimony from the deposition of Kevin Murphy to the Court for the record, whereupon the following conversation took place: THE COURT: And, who is Murphy? 65 MS. SELLERS: Murphy is MOCHA=s expert witness. THE COURT: As to what? MS. SELLERS: As to the validity of the lieutenant=s exam. I guess this testimony describes in part what MOCHA=s challenge is to the use of the lieutenant=s exam. THE COURT: Wandering far afield. [A-411.] The exchange continued when Attorney Kaplan for the Hynes petitioners objected to the submission of Murphy=s report, asserting that: I have a number of objections to this. First of all, of course, it was not in the record. There=s no evidence that Commissioner Matarese actually reviewed those in making his determination. They certainly could have asked him about that when he was on the stand. [A-412.] Of course, had Matarese testified about relying upon Dr. Murphy=s report or opinion about the validity of the 1998 Lieutenant=s Examination, Judge Michalek would have been familiar with same, and perhaps Ms. Sellers=s submission of the report itself may have been relevant in that proceeding. We know that Matarese was the decision-maker to expire the lists and prevent the promotion of any additional white candidates. We know that Matarese testified, at length, about why he made his decisions. We know that Matarese never once even suggested that he relied upon the report or Aexpert@ opinion of Kevin 66 Murphy. And, we know the trial court, in the Hynes proceeding, had no idea who Kevin Murphy was, or what Aexpert@ opinion he was providing. The City=s asserted argument that the decision to not promote any more whites off of the 2002 promotional lists was based on Kevin Murphy=s report quite literally lacks any credibility whatsoever. Furthermore, and this is very problematic for the Defendants, Kevin Murphy merely provided an opinion as to the validity of the 1998 Lieutenant examination. He never once addressed the 2002 promotional examinations, much less examinations for positions other than Lieutenant. Yet, Matarese, of course, expired all of the Civil Service promotional examinations, including not only the Fire Lieutenant=s exam, but the Battalion Chief, Division Chief, and Captain examinations, without ever properly inquiring as to the validity and job-relatedness of those exams simply because he merely believed the City may have faced similar challenges to the validity of the non-fire lieutenant examinations as well, even though there were never any legal challenges (or any other kind of challenges) to other promotional positions, other than Lieutenant. There ought to be no controversy that Matarese=s unsubstantiated belief that the City may have, because of the MOCHA challenge to the 1998 Fire Lieutenant Exam, faced similar challenges to the validity of other civil service examinations 67 obviously does not rise to the level of a Astrong basis in evidence@ to believe that the City would have been subject to disparate impact liability as a result of its administration of the 2002 Battalion Chief, Division Chief, and Captain exams and certification of their results, and is insufficient to justify the disparate treatment discrimination that he engaged in by expiring those lists created as a result of those 2002 Exams. Indeed, while there may have been some alleged evidence that the 1998 Fire Lieutenant=s Examination had a statistically disparate impact on minority candidates, there is no evidence or mention in Dr. Murphy’s report or the record to even suggest that the 2002 promotional examinations for Fire Lieutenant, Battalion Chief, Division Chief, or Captain also had a disparate impact on minority candidates, much less to suggest that the City possessed a Astrong basis in evidence@ for believing that the 2002 promotional examinations were not business related and, thus, deficient. f. Nancy Abrams’s Subsequent Alleged Concerns Regarding The Validity Of The Exam First and foremost, the City did not assert that Matarese’s decision was somehow based upon Nancy Abrams’s alleged opinions until well after the United States Supreme Court decision came out in Ricci. 68 Further, Dr. Abrams never conceded that the examinations were invalid or that she agreed with the MOCHA plaintiffs’ expert. In fact, she specifically attested, in her affidavit, sworn to January 15, 2010, that she disagreed with Dr. Murphy, MOCHA’s expert, in a number of ways. For instance, Dr. Abrams testified that: I disagreed with Dr. Murphy’s conclusions about the Lieutenant’s Examination in many respects, including that there was “no” credible evidence of the examination’s validity. [A-470.] Dr. Abrams’s concession in this regard is proof that credible evidence of the examinations’ validity existed. And, while Dr. Abrams’s went on to testify about her so-called concerns regarding the 1998 Lieutenant’s Examination, her opinion regarding the alleged limited evidence in support of the validity of that exam was clearly erroneous in light of the fact that the District Court concluded that there was ample evidence to demonstrate that the exam was, in fact, valid. The City could not have had a Astrong basis in evidence@ to believe the exams were invalid by relying upon her obviously specious and erroneous opinions regarding same. Further, Dr. Abrams’s opinion was only relevant to the 1998 Lieutenant’s Examination. The lists expired here resulted from all of the 2002 promotional examinations, not the 1998 Lieutenant’s exam. 69 Having said all of that, the fact of the matter is that Matarese was the sole decision maker and he very clearly testified about the reasons for his actions, none of which were dependent upon Dr. Abrams’s opinions. C) At All Times Defendants Knew Or Should Have Known That The Tests Were Valid The District Court, in MOCHA, held, on March 4, 2009, that the 1998 Fire Lieutenant=s Exam was job-related and consistent with business necessity. This Court is respectfully urged to review the District Court=s decision in that regard. [A-370-406.] It is critical that the evidence relied upon by both the City in defending MOCHA’s claims, and the District Court in reaching its decision in the City’s favor, proves that the City knew or should have known that the 1998 examination was valid at the time it was administered and the results certified. The same holds true for the 2002 exam. The City did not produce an expert during the course of the MOCHA hearing because it did not need to. Instead, it relied upon the personal knowledge and professional opinions of then Civil Service employees (and exam developers) Dr. Steinberg and her supervisor, Mr. Kaiser. Subsequent to the District Court=s decision, and in support of the City=s motion for summary judgment as to MOCHA=s remaining claims, counsel for the City wrote: 70 Contrary to the plaintiffs= assertion, the City was entitled to rely on NYS Civil Service to develop the 1998 Lieutenant=s Exam. NYS Civil Service created the 1998 Lieutenants= Exam that this Court determined was job-related for the position and consistent with business necessity. The City, like other New York State municipalities, requests employment tests from NYS Civil Service Law ' 23 . . . As New York=s Court of Appeals has observed, A[t]his mandate reflects the Legislature=s reasonable belief that the State Civil Service Department has the facilities and expertise available to aid the municipal commissions in handling the complexities of administering civil service examinations. The statutory scheme requires NYS Civil Service to render aid to the local civil service commission. To hold that the City could not rely on the expertise of NYS Civil Service would undermine the statutory scheme enacted by the NYS Legislature for administering exams to test for merit and fitness within the State of New York. [A-1207-1208.] The City=s assertion, in MOCHA, that it was entitled to rely upon the Civil Service Department=s expertise to demonstrate that the exam was valid does not reconcile with the City=s current assertion here that it had a strong basis in evidence to believe that the examination was invalid due to an alleged lack of evidence in support of the exam=s validity. What it really boils down to is that the City was being sued by MOCHA, and it claims that it feared exposure and had some concerns about being successful. To be sure, every litigant has concerns about being successful in litigation due to a 71 variety of factors, but that is not a sufficient justification under Ricci to take race- based action. It=s not a Acould be liable@ or a Amight be liable@ standard. In this case, the City knew or should have known that the examination(s) were valid (we contend that the record is pretty clear that it knew). While, there is no great dispute that the 1998 Fire Lieutenants exam had an apparent statistical disparity in the passage rates of minority and non-minority test takers, that is not the end of the inquiry. To be clear, a test with a disparate impact is only Aimpermissible” if it is “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.@ Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In other words, the test has to be Ademonstrably a reasonable measure of job performance . . . [and] must measure the person for the job and not the person in the abstract.@ Id. at 426, quoting Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The Second Circuit Court of Appeals, in Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of the City of New York, 630 F.2d 79 (2d Cir. 1980), laid out a five-part test for analyzing the content validity of an employment test. First, the test-makers must have conducted a 72 suitable job analysis, next they must have used reasonable competence in constructing the test itself, then the content of the test must be related to and representative of the content of the job, and there must be a scoring system that usefully selects from among the applicants those who can better perform the job. Guardians, 630 F.2d at 95. The test at issue here meets each of these Guardians criteria and the City had all of this information within its grasp in 1998. i. The Testmakers Conducted A Suitable Job Analysis According to the EEOC Guidelines, a job analysis involves an assessment Aof the important work behavior(s) required for successful performance and their relative importance.@ Guardians, 630 F.2d at 95, quoting 29 C.F.R. ' 1607.14C(2). Thus, A[o]nly if the relationship of abilities to tasks is clearly set forth can there be confidence that the pertinent abilities have been selected for measurement.@ Recently, the District Court for the Eastern District of New York, in U.S. v. City of New York, 637 F.Supp.2d 77 (E.D.N.Y. 2009), in a lawsuit concerning the validity of a firefighter civil service test, examined the relationship of tasks performed and abilities tested for on the examination, writing: Looking at the 21 task clustersB including such categories as Ladder Operation, Climbing and Portable Ladder Activities, Building Entry, Search, Rescue, Ventilation, Hose Operations During Extinguishment, and Extrication--it is not apparent how they relate to the nine specific 73 abilities identified by the City for testing. Indeed, the City has not offered any explanation or documentation indicating how the task clusters relate to the nine abilities. U.S. v. City of New York, 637 F.Supp.2d at 111. Most interestingly, a trump card was played for the Margerum Plaintiffs when the Second Circuit, in U.S. v. City of New York, went on to distinguish the situation therein from that in the MOCHA litigation by noting that the examination procedures in MOCHA, including those linking tasks and abilities together, were Apainstakingly documented.@ U.S. v. City of New York, 637 F.Supp.2d at 111 (emphasis added), referencing M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, No.98-CV-99C(JTC), 2009 WL 604898, at *14, (W.D.N.Y. Mar. 9, 2009). Of course, this painstaking documentation, by 1998 Fire Lieutenant exam developer Dr. Wendy Steinberg, occurred and was in existence at the time that the examination was being created between the years of 1994 and 1997. As conceded to by the City previously (before it made an about face to argue the opposite here in our litigation), it relied on that information from the NYS Civil Service Department and presented no new evidence at the 2008 5-day bench trial on the issue of the exam=s validity in the MOCHA litigation. And, the City won on the ample evidence that was in existence all during the pendency of the MOCHA 74 litigation. Thus, the City knew (or was in a position to know) that the examination contained a suitable job analysis at the time that it was administered in 1998. Let=s not forget that the City went on to re-administer a purportedly identical exam again in 2002. On both occasions, the City had available to it all of the Apainstakingly documented@ evidence with which to verify that the examinations relied upon a suitable job analysis. The District Court, in its post-hearing decision in the 1998 MOCHA litigation, addressed the job analysis performed by Dr. Steinberg for the 1998 Fire Lieutenant Exam, stating: As reflected in her testimony and summary report, Dr. Steinberg conducted a comprehensive job analysis designed to update the test plans for all fire service titles, including fire lieutenant. Her work on the project began in 1994, and continued through 1997. A major component of the job analysis was the task/SKAP survey of fire service personnel throughout New York State aimed at gathering detailed job information from incumbents across all titles. The initial task listing survey requested incumbents to provide data regarding whether each of 190 separate tasks was performed on the job, either personally or under the incumbent=s supervision; the difficulty, time, frequency, and consequence of error for the task; and whether the task was needed at job entry. The second survey sought data from incumbents concerning specific skills, knowledge, abilities, and personal traits associated with each of the critical tasks performed by each job title. This survey contained 150 items, and requested information to assess the importance of each item to effective job performance as well as the level competence needed at the time of appointment. In preparing both surveys, Dr. Steinberg relied on the 75 job specifications provided by the municipalities, previous job analyses, test plans from other jurisdictions, and input from the Fire Advisory Committee. [A-396.] In turn, according to Defendants= logic, all of the 2002 hiring and promotional exams would also have been valid at the time that they were administered and their results certified since they were purportedly identical to and based upon the same job analysis information as that of the 1998 Fire Lieutenant Exam. ii. The Test Makers Used Reasonable Competence In Constructing The Test The District Court, in examining the second criteria under the Guardians guidelines, found Alittle difficulty concluding that the test makers demonstrated reasonable competence in constructing the 1998 Lieutenant=s Exam.@ [A-400.] The Court based this finding on the fact that the Testing Services Division of the Civil Service Department Ais charged with the responsibility for developing employment and promotional examinations for competitive civil service positions statewide, in accordance with New York State Civil Service Law,@ that Dr. Steinberg and her supervisor Ahave been involved in the development and validation of hundreds of employment tests,@ that the testimony and evidence Aaptly demonstrate that the 76 Lieutenant=s Exam was constructed on the basis of a methodical selection of the tasks critical to job performance, and the knowledge, skills, and abilities needed to perform those tasks,@ and, that the Aaccumulated data was thoroughly organized, analyzed, rated, reviewed by a panel of experts drawn from all disciplines in the fire service, and compared to similar information gathered from other jurisdictions.@ Id. iii. The Content Of The Test Was Related To And Representative Of The Content Of The Job With respect to this third criteria under the Guardians analysis, the District Court in MOCHA found, among other things, that: Dr. Steinberg=s discriminate statistical analysis of the duties associated with the fire lieutenant title statewide showed a substantial correlation between lieutenant positions in different jurisdictions, which was confirmed by her review and comparison of test plans and other job information obtained from several large urban fire departments in other parts of the country. Based on this showing, the court finds that the job analysis in this case Aprovides adequate assurance that the identified tasks are in fact the tasks that a [fire lieutenant] performs . . .@ [A-401.] Accordingly, the City demonstrated a sufficient relationship between the content of the 1998 Lieutenant=s Exam and the content of the job of fire lieutenant to meet the recommendations of the Uniform Guidelines, as outlined in Guardians. 77 Importantly, Guardians interpreted the Uniform Guideline regarding Acontent representativeness@ to require only a showing Athat the test measure important aspects of the job, at least those for which appropriate measurement is feasible, but not that it measure all aspects, regardless of significance, in their exact proportions.@ Guardians, 630 F.2d at 99. The District Court in MOCHA found that, based on Dr. Steinberg=s comprehensive efforts to construct test questions for the Exam, the 1998 Fire Lieutenant=s Exam was developed as an adequate measure of important aspects of the job of fire lieutenant. [A-402-03.] iv. A Scoring System Was Utilized That Usefully Selected From Among The Applicants Those Who Could Better Perform The Job The fourth Guardians criteria is that the scoring system usefully select from among the applicants those who can better perform the job. The District Court determined that Dr. Steinberg reasonably set the pass mark at 66, between the highest pass mark allowable under state law at 70 and generally the lowest pass mark ever used at 60. The District Court further determined that Dr. Steinberg=s setting the pass mark at 66 nearly doubled the passage rate for African-American examinees from 19.5% (17 of 87 candidates) to 40% (35 of 87 candidates). [A- 403.] 78 v. An Alternative Employment Practice Was Unavailable For The Selection of Fire Lieutenant Candidates The District Court, in MOCHA, further assessed whether the plaintiffs met their burden of demonstrating that an alternative, and less discriminatory, employment practice was available for the selection of fire lieutenant candidates Athat would also satisfy the asserted business necessity, but would do so without producing the disparate effect.@ Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 161 (2d Cir. 2001). The District Court held that, A[u]pon review of the record, and despite the long history of this litigation, the court finds no proof that could be considered sufficient to meet this burden of persuasion, or to raise a genuine issue of fact requiring further proceedings in this regard.@ [A-405.] Similarly, here, there has been no evidence produced or even offered to demonstrate that the City of Buffalo had an alternative examination available to administer for purposes of effecting promotional appointments in the Department, or that the new examination series that it hired a third party to develop and administer in 2008 and 2009 had any less disparate impact on non-white test- takers. POINT IV: EVEN IF PLAINTIFFS’ CLAIMS FAIL UNDER TITLE VII, THIS MATTER MUST BE REMANDED FOR 79 CONSIDERATION OF THEIR CONSTITUTIONAL EQUAL PROTECTION CLAIMS The United States Supreme Court, in Ricci, made very clear that the inquiry into the constitutionality of a defendant’s race-based actions only becomes necessary when the defendant’s actions do not violate statutory proscriptions, such as Title VII. The Court explained: . . . because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution. Id. at 584. In 2007, the United States Supreme Court issued a decision in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), wherein race-based classifications and decision making were scrutinized and declared unconstitutional. For purposes of determining whether the City has a compelling governmental interest in allegedly Aremediating@ past purported discrimination, the Seattle School case is directly on point to the instant matter. The Supreme Court explicitly held that race-based decisions and/or classifications are subject to strict scrutiny analysis whereby, in our case, the City would be required to demonstrate that it had a compelling interest in making its race-based decisions and, further, that the race-based decisions were made in a way that is 80 narrowly tailored to achieve the compelling government interest. The Court went on to hold that while an entity=s own past intentional discrimination can constitute a compelling government interest, it is not enough to merely surmise that past discrimination occurred. Seattle School, 551 U.S. at 720 (Rejecting remedying past discrimination as a compelling government interest where a school could not show racial segregation by a law or a judicial decree that discrimination had occurred). As more explicitly stated by concurring Justice Thomas: The Constitution generally prohibits government race-based decision- making, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances. First, in schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation. Second, in Croson, the Court appeared willing to authorize a government unit to remedy past discrimination for which it was responsible. Richmond v. J.A. Croson Co., 488 U.S. 469, 504, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Id. Regarding remedying prior discrimination for which a government is responsible, Justice Thomas went on to write: Furthermore, for a government unit to remedy past discrimination for which it was responsible, the Court has required it to demonstrate Aa >strong basis in evidence for its conclusion that remedial action was necessary.= @ Croson, 488 U.S., at 500, 109 S.Ct. 706 (quoting Wygant, supra, at 277, 106 S.Ct. 1842 (plurality opinion)). Establishing a Astrong basis in evidence@ requires proper findings 81 regarding the extent of the government unit's past racial discrimination. Croson, 488 U.S., at 504, 109 S.Ct. 706. The findings should Adefine the scope of any injury [and] the necessary remedy,@ id., at 505, 109 S.Ct. 706, and must be more than Ainherently unmeasurable claims of past wrongs,@ id., at 506, 109 S.Ct. 706. Id. at 754. Here, the City of Buffalo can have no compelling interest in rectifying its alleged past discrimination in the administration of the Lieutenant, Captain, Fire Chief and Battalion Chief Civil Service examinations where it has argued for over ten years in the MOCHA litigation that there was nothing wrong with its tests! It is only since its about-face that it purports to rely upon the MOCHA litigation which focused only on the Lieutenant examination and, in any event, has been resolved in its favor and did not resulted in any judicial findings of discrimination. Further, according to Matarese, his motivation was not to remedy past (alleged) wrongs, as described by Justice Thomas in Seattle Schools. Instead, Matarese asserted that he only intended on reducing the City=s liability and exposure in the MOCHA litigation. Certainly, a self-serving motivation like reducing one=s legal exposure and/or aiding one=s ability to negotiate a settlement in another lawsuit cannot be held to be a compelling government interest. Here, the City=s deliberate refusal to follow through with the noticed promotions of the Plaintiffs unnecessarily trammeled their rights as affected parties 82 B particularly so where there was never any sort of decree mandating the City=s expiration of the Civil Service lists. Further, it seems obvious that the decision to expire the list with the black candidates could not be substantially related to the objective of eliminating the alleged instance of discrimination just because the black candidate would have been appointed along with the 2 or 3 white candidates before him on the list. One needs to ask, as well, how is it that promoting the Plaintiffs would have somehow prevented the federal court from fashioning a remedy in the event of a win by the MOCHA plaintiffs. Judge Curtin had already ruled that the City of Buffalo not only could but should promote off of the Civil Service lists out of a concern for public safety; the City, thus, could not be subsequently liable for having done so. As a practical matter, it appears clear that the only potential remedy that could have arisen in the MOCHA litigation, would have been a finding of discrimination and some sort of money damages. All evidence points to a contention we’ve been making for the seven years this matter has been litigated: The Defendants, through Matarese, simply decided it was time to do some racial engineering. Thus, to the extent that this Court were to deem Matarese’s actions to be insulated from liability under the safe harbor provisions of Ricci, this case cannot 83 simply be disposed of. Instead, the further issue of the constitutionality of Defendants’ actions must be litigated and decided by the lower court(s). Remand is appropriate where the trial courts did not have a reason or an opportunity to address an issue or claim. Here, while the trial court did initially rule in Plaintiffs’ favor on the issue of Equal Protection, the Fourth Department remanded it with an instruction to essentially conduct discovery on such issues. However, before the parties were able to proceed, the Supreme Court issued its decision in Ricci, thereby making Plaintiffs’ constitutional claims secondary to their statutory claims. Per Ricci, the only time that a plaintiff’s constitutional claim should be determined is if the plaintiff fails on his statutory claim first. Thus, to the extent that this Court deems the Defendants are protected under Ricci’s safe harbor, it is respectfully submitted that the matter be remanded to the trial court to proceed on Plaintiffs’ Equal Protection claims. CONCLUSION AS TO LIABILITY We know how Matarese characterized his decision. We know how the City originally characterized the decision. We know that the City vigorously defended its promotional examinations in the MOCHA litigation. We know that the District Court, in MOCHA, allowed continued examinations and testing. We know that the 84 City appointed candidates, including minorities, from the lists until such time that it ran out of minorities. We know that if the City was liable for disparate impact discrimination based on its administration of invalid examinations, such liability would have attached at the time that it certified the results from same and, thus, refusing to appoint any more candidates simply because all reachable candidates were white would do nothing to undo such liability, if it existed. The trial court’s and Appellate Division’s decisions as to liability must be affirmed. POINT V: THE TRIAL COURT’S FACTUAL AND LEGAL FINDINGS AS TO PLAINTIFFS’ DAMAGES WERE PROPERLY SUPPORTED BY THE RECORD AND OUGHT NOT TO HAVE BEEN DISTURBED First and foremost, Defendant’s argument that Plaintiffs are entitled to zero damages for allegedly failing to prove their damages with reasonable certainty is not properly before this Court inasmuch as Defendant failed to move this Court for permission to appeal the Fourth Department’s determination to award damages. Nor did Defendant ever object during the course of the trial as to submitting its own evidence of Plaintiffs’ damages – instead, Defendant retained its own expert specifically for the purpose of calculating its own analysis of Plaintiffs’ indisputable losses. 85 Moreover, the argument that Plaintiffs are entitled to nothing is just plain absurd. There can be no dispute that Plaintiffs suffered damages, both in the form of back wages, front pay, and lost pension differentials, etc., as a result of their delayed and denied promotions. Plaintiffs testified to same, produced voluminous exhibits as to same, and both parties provided expert opinion. The trial court’s failure to credit all of Plaintiffs’ expert’s assumptions as to damages does not preclude Plaintiffs from recovering anything. For sure, there can also be no dispute that the record is replete with evidence of these losses, or that the trial court was able to make sound, reasoned decisions as to Plaintiffs’ damages in this regard without necessarily relying on Plaintiffs’ expert in toto. To be clear, the trial court awarded those damages which it found to have been proven with a reasonable degree of certainty. Awarding damages to Plaintiffs required the trial court to make certain findings as to the best predictions for recreating each Plaintiff’s post- discrimination future as compared to what each Plaintiff’s pre-discrimination future would have looked like. As this Court is now well aware, three assumptions are in dispute: The proper period of time within which to project lost future overtime earnings; the probability of future promotions, and the probability that the IOD Plaintiffs would have been injured had each been promoted. 86 The trial court was in the best position to consider and determine each of these issues, after personally witnessing extensive testimony, endless exhibits, and legal argument as to same. It is wholly improper for the Fourth Department to step into the shoes of the factfinder and summarily set aside those factual determinations, especially where the court failed to explain its departure from the trial court’s reasoned opinions. Overtime As is explained in Plaintiffs’ initial brief, the trial court, after considering the evidence before it, determined that the years 2006, 2007, 2008, and 2010, ought to be used to calculate projections for future lost overtime earnings. [The same period of time, including 2009, was used for purposes of calculating Plaintiffs’ back lost earnings. [A-1951.]] The City’s expert, Mr. Besaw, had originally calculated his projections on the time frame from 2000 through 2005, while Plaintiff’s expert, Dr. Shick utilized 2008 through 2010. Defendants’ brief focuses, however, on Dr. Shick’s time period of 2008 through 2010, rather than the time period adopted by the trial court. Moreover, Defendants devote a nearly whole page footnote to criticizing Dr.Shick’s peer group analysis in his overtime calculations, despite the fact that the trial court did not adopt Dr. Shick’s calculations. Instead, the trial court adopted Mr. Besaw’s 87 calculations as premised upon the time frame of 2006, 2007, 2008, and 2010 (excluding the “bubble” year of 2009). The Defendants argue that the trial court’s awards to the IOD Plaintiffs relied on Dr. Shick’s use of the peer groups, instead of departmental averages – which is true, but it is irrelevant. The City makes a fuss about this, but it’s irrelevant since Judge Michalek adopted Mr. Besaw’s final calculations. In fact, Dr. Shick’s use of peer groups in that scenario only served to decrease the IOD Plaintiffs’ damages because it was only relevant in calculating the income that each Plaintiff would have earned (negative loss) in the event that he did not become disabled. While Dr. Shick also used peer group overtime analysis in a small part of his supplemental calculations for the IOD Plaintiffs, the fact is that doing so actually decreased the overall loss for each. Specifically, Dr. Shick used peer group overtime analysis to determine the earnings that each of the IOD Plaintiffs would have earned in the two potential and non-disabled career paths. These career paths only accounted for 15% of the weighted loss but, regardless, they created what we would call a “negative” loss, which Dr. Shick subtracted from the damages that each of the IOD Plaintiffs would be entitled to had they been injured as a Lieutenant (85% probability). 88 For instance, Dr. Shick calculated that Mark Abad’s “loss” had he been appointed to Lieutenant and then stayed a Lieutenant until retirement was actually a “negative” loss of $284,372. [A-2999.] Because Dr. Shick determined there was only an 11% chance of that career path occurring, he added the back pay owed and weighted the loss by 11% and achieved a “negative” loss of $28,482. Id. Similarly, he determined that had Abad been appointed to Lieutenant and then again promoted to Captain until retirement, he would have had a “negative” loss of $57,510, which when back pay was factored in and the loss was weighted by the 4% likelihood of its occurrence, it still resulted in a “negative” loss of $1,283. Dr. Shick determined that also Abad had an 85% chance of having been injured as a Lieutenant, which resulted in a positive loss of earnings in the amount of $177,310 (after factoring in back pay and weighting by the 85% probability of its occurrence). Finally, Dr. Shick combined the negative losses of $28,482 and $1,283 and subtracted them from the positive loss of $177,310, for a total projected loss of $147,545. [A-2999.] It may seem convoluted, for sure, but the bottom line is that anything Dr. Shick did to increase the value of the first two career paths (e.g., using peer groups, instead of departmental averages for overtime) only served to reduce Abad’s final projected loss. Thus, the City’s complaints about peer group analysis in the IOD 89 Plaintiffs’ supplemental calculations are meritless, because, if anything, the City benefits from it. Truly, the bottom line is that Mr. Besaw’s initial overtime predictions for 2011 and beyond do not comport with reality. For instance, while Plaintiff Margerum earned an actual $22,892 in overtime compensation in 2010, Mr. Besaw predicted that he would only earn $4,000 in overtime compensation in 2011. [Defendants assert that Dr. Shick reached the same conclusion as to Margerum, citing to page 2908 of the Joint Appendix, but that is a blatant mischaracterization. In fact, Shick took into account that Margerum was out on IOD and, thus, his overtime earnings would be severely compromised. The Court can note that Shick predicted overtime earnings for the remaining Plaintiffs in amounts ranging from $12,465 to $29,275.] Besaw’s calculation was not premised upon Margerum being out on IOD status, nor did he testify as to that reason being the discrepancy between Margerum’s 2010 actual overtime earnings and Besaw’s prediction for his 2011 earnings. Besaw’s use of the years 2000-2005 for purposes of calculating future overtime losses drastically underestimates overtime compensation into the future. Of course, this is evidenced by his prediction that Margerum’s overtime in 2011 would drastically drop to less than 20% of what it had been in 2010. In another illustration of how far removed Besaw’s future overtime predictions are, he 90 asserted that in 2011 and beyond, the overtime hours for Battalion Chiefs would be 62 hours per year, despite the fact that in 2010, it was 520 hours per year. [A- 2080.] Moreover, the overall climate in the City between 2000 and 2005 was that of administering examinations, certifying results (regardless of legal challenges and statistical disparities), and promptly promoting from the resulting eligible lists. Now, of course, we know that the City has expired civil service lists to prevent promotional appointments without other lists in place, thereby leaving vacancies; ceased making promotions; and delayed testing for six years in a so-called effort to administer an examination with a supposedly lesser statistical impact. How Besaw could utterly disregard the actual period of time that transpired from the time of the City’s actions through the time of trial in his analysis as to future overtime predictions, is perplexing. As Mr. Fleming asked him on cross- examination: Q: However, sir, your numbers completely disregard ’06 through 2010, don’t they? Completely disregard what’s just happened for the last five years, fair statement? A: Fair statement. [A-2126.] The Defendant has excuse after excuse about why the overtime between 2005 and 2011 is so high, citing unexpected and unforeseen circumstances, all the 91 while arguing that such circumstances will cease to exist and overtime rates will reduce to their pre-2005 averages. But, the bottom line is that, at the time of trial, that had not happened. And, we have no reason to believe that it will. It’s pure speculation. It’s almost humorous that the City argues that “the overtime amounts between 2006 and 2010 were inflated due to unusual circumstances that should not be repeated, but that overtime has begun a downward trend beginning in 2010 that was reasonably expected to continue,” all while simultaneously arguing that: Commissioner Whitfield also testified that while overtime was trending downward in 2011, a variety of factors contributed to somewhat higher than anticipated overtime during the 2011 calendar year . . . including 17 officer vacancies . . . the unusual occurrence of two four-alarm fires in a single year . . . and the deployment of 20 firefighters to Schoharie County in the aftermath of Hurricane Irene. Brief, p. 148. Instead, we have a pattern and a history, by looking at what has actually occurred since 2006 and through 2011, at the time of trial. The trial court’s decision to use the time frame of 2006, 2007, 2008, and 2010 for purposes of projecting future lost overtime earnings is supported by the evidence. History, and, importantly, the record before this Court, tells us that for a period of nearly seven years, overtime has not substantially decreased. Nor do we have any reason to believe that it will or should. Indeed, based on the City’s assertions, overtime should have substantially decreased in 2008 and 2009 following the hiring of new recruits and the filling of vacant promotional positions, 92 but we know, in fact, that 2009 was the highest year yet for overtime – hence why the trial court excluded same from the calculations. Moreover, we definitely should have seen – based on the City’s contentions – a drastic decrease in overtime in 2011, following the alleged downward trend in 2010, but, once again, we did not. Instead, overtime remained quite high, once again, due to “unforeseen circumstances”. But, the City urges that we are still expected to believe that in the future, there will be no unforeseen circumstances that continue to drive overtime costs in the same continued fashion since 2005. The evidence does not support the City’s view. And, in any event, whatever uncertainty exists in the recreation of Plaintiffs’ post-discrimination futures ought to be resolved as against the wrongdoer and in favor of the victims, especially where the trial court undertook precautions to avoid both over and under compensating the Plaintiffs. Regardless, Plaintiffs are of the opinion that the Fourth Department inadvertently adopted the City’s assumptions regarding overtime when it imposed Besaw’s calculations based on the court’s rejection of the assumption of no future promotions. However, the Court could have rejected the assumption of no future promotions, while still accepting the trial court’s assumptions as to overtime calculations inasmuch as the City had submitted evidence regarding those losses to the trial court. 93 Because the Fourth Department never even explained its departure from the trial court’s findings regarding overtime, its decision, which inherently rejected same, must be vacated. Promotions Plaintiffs’ expert, Dr. Shick, applied what information we knew at the time of trial from the post-discrimination world in order to fairly predict, while resolving uncertainties as against the wrongdoer, the Plaintiffs’ post- discrimination, post-trial futures as compared to their futures had no such discrimination occurred. Defendants’ expert disregarded all of the changes between the pre- discrimination world and the post-discrimination world, as if such changes had absolutely no bearing on the future career paths of the Plaintiffs. Besaw’s assumptions are simply not supported by either common sense or the evidence in the record. Despite whatever information existed before Matarese came to commit racial discrimination in September 2005, things unequivocally changed, permanently, after that time. We know that new examinations were developed. We know that at least five of our Plaintiffs failed and/or performed so poorly on such examinations that they 94 were not reachable for promotion. We know that at least five of our Plaintiffs struggled to prepare for and sit for the examinations. We know that the Department no longer appoints in rank order from the certified lists. We know that eligible candidates – since 2008 – have been skipped over, by virtue of the “rule of one of three,” thus proving that placement on a list no longer guarantees a promotional appointment. We know that the City has previously and deliberately taken race- conscious actions. We know that the City has canceled lists early and has delayed administering promotional examinations. We know that all of our Plaintiffs are white. We know that the post-discrimination world is markedly different than the pre-discrimination world. Judge Michalek was not only within reason when he determined to adopt Dr. Shick’s assumption of no further promotions after the time of trial, he was virtually mandated, by both the evidence in the record and the legal principle of resolving uncertainties as against the wrongdoer, to so find. IOD 95 Three Plaintiffs, Mark Abad, Brad Arnone, and David Denz, became disabled after the time that each should have been appointed to Lieutenant in 2005 or 2006. Because these Plaintiffs were discriminated against and denied their promotion to Lieutenant, these Plaintiffs became disabled as Firefighters. They now receive disability benefits at a Firefighter’s rate of pay. Of course, had these men been promoted to Lieutenant before becoming disabled each would have been entitled to disability benefits at a Lieutenant’s rate of pay. The issue then becomes: What are the chances that these three men, that Mark Abad, Brad Arnone, and David Denz, would still become disabled even after having been promoted to Lieutenant? Plaintiffs’ expert, Dr. Shick, determined that the probability that these three men would still become disabled as Lieutenants in or around 2007, when each was injured, was 85%. He premised his conclusion on the facts that each of these Plaintiffs had suffered prior injuries for which each had been off of work for various periods of time; the staffing levels in the department during the relevant 2006/2007 time period; that Lieutenant’s work was just as physically demanding and dangerous as a Firefighter’s; that these Plaintiffs were actually injured and disabled; and, that more Lieutenants than Firefighters were injured during 2006/2007, the time when these men were actually injured as Firefighters. 96 Defendants’ expert, Mr. Besaw, however, did a different analysis and reached a different conclusion as to the likelihood that these men would become disabled had each been promoted. Besaw determined that there was only a 58% chance that Abad, Arnone, and Denz would have still become disabled after having been promoted to Lieutenant by 2006. [A-2877.] Besaw’s calculation ignores these Plaintiffs’ prior injuries and susceptibility to injury and it ignores that Lieutenants, in the relevant 2007 time period when the Plaintiffs were injured, were injured at a higher rate than Firefighters. In fact, Besaw’s analysis is simply based on a comparison of the percentage of firefighters retiring with a disability pension with the percentage of lieutenants retiring with a disability pension (percentages that he calculated from his review of the City’s “personnel card system which are file cards in file drawers, not maintained in a separate summary database,” and which information was not included in the record at trial). [A-2024, 2042-2049.] He testified, specifically, that he looked at nothing other than the likelihood of retiring disabled as a firefighter as compared to retiring disabled as a lieutenant. [A-2189.] Though, Besaw did testify that “it intuitively occurred to [him] that a firefighter is more likely to be injured on duty than a lieutenant . . .” which we know was not the actual case in 2006/2007 when Dr. Shick determined, after reviewing the injury rates, that lieutenants were actually injured at a higher rate than firefighters. [A-2024, 2260-2261.] 97 The only “evidence” in the record that supports Besaw’s 58% superficial probability calculation, other than his own “intuition,” is his own self-prepared table appearing in Trial Exhibit 235. [A-2877.] The trial court, especially following Mr. Fleming’s cross-examination of Mr. Besaw, rightfully rejected Besaw’s summary analysis and inarticulate description of how he achieved same, in favor of Dr. Shick’s more thorough and comprehensive analysis which specifically took into account comprehensive information regarding disability retirements, non-disabling injury rates, staffing levels, and the Plaintiffs’ own unique circumstances, histories, and actual life events. CONCLUSION AS TO DAMAGES The trial court’s conclusions were more than fairly supported by and inferable from the record evidence. Judge Michalek was thorough in his approach and careful to neither over or under-compensate the Plaintiffs for their indisputable losses. The Fourth Department’s modification of Judge Michalek’s 37-page decision and award was an inappropriate exercise of discretion and must be vacated. Dated: July 7, 2014 Hamburg, New York 98 ;:hJ.uw fJ Ne;n/(f Andrew P. Fleming, Esq. Christen Archer Pierrot, Esq. CHIACCHIA & FLEMING, LLP Counsel for the Plaintiffs 5113 S. Park Avenue Hamburg, New York 14075 Tel: (716) 648-3030 E-Mail: andy@cf-legal.com cap@cf-legal.com 99 Addenda To be Argued by: ADAM W. PERRY, ESQ. Estimated Time for Argument: (15 Minutes) · STATEOFNEWYORK ~upttttlt a.tnurt APPELLATE DIVISION,.-FOURTH JUDICIAL DEPARTMEN'J:'. EUGENE MARGERUM, ANTHONY HYNES, JOSEPH FAHEY, TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI, SCOTT SKINNER, THOMAS REDIHNGTON, TIMOTHY CASSEL, MATHEWS. OSINSKI, MARK ABAD, BRAD ARNONE and DAVID DENZ, Plaintiffs"-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, Defendants-Appellants. Erie County Index No.: 2007-1462. BRIEF FOR DEFENDANTS-APPELLANTS ADAMW. PERRY JOSEPH S. BROWN JOSHUA FEINSTEIN Of Counsel HODGSON RUSS LLP Attorneys for Defendants~Appellants City ofBuffalo, City ofBuffalo Department of Fire and Leonard Matarese, Individually and as Commissioner of Human Resources for th.e City of Buffalo The Guaranty Building 140 Pearl Street, Suite 10.0 Buffalo, New York 14202 Telephone; (716) 856-4000 BATAVIA LEGAL PRINTING, INC . ....:. Telephone (866) 768·2100 TABLE OF CONTENTS PAGE QUESTIONS PRESENTED ............................................................................................................ 1 OVERVIEW .................................................................................................................................... 2 FACTS ............................................................................................................................................. 5 A. THE P ARTIES ......................................................................................................... 5 B. THE REMEDIAL ORDER ...................................................................................... 6 C. THE MOCHA ACTIONS ........................................................................................ ? D. THE DECISION TO PERMIT THE LISTS TO EXPIRE ...................................... 8 E. THE CITY'S APPOINTMENT PROCESS .......................................................... 11 F. NONE OF THE PLAINTIFFS WERE APPOINTED OR EVEN NOMINATED ..................................................................................... 13 G. THEHYNESPROCEEDING ................................................................................ l3 H. THE PLAINTIFFS COMMENCE THIS ACTION .............................................. 14 I. THE FEDERAL INJUNCTION ............................................................................ 14 J. THE FIRST APPEAL IN THIS ACTION ............................................................. 15 K. THE STATUS OF MOCHA ACTIONS ............................................................... 16 L. THE ORDER APPEALED FROM ....................................................................... 17 ARGUMENTS ............................................................................................................................... 19 POINT I. THE CITY HAD A STRONG BASIS IN EVIDENCE TO PERMIT THE ELIGIBLE LISTS TO EXPIRE .................................................... 19 A. THE "STRONG BASIS IN EVIDENCE" STANDARD ...................................... 19 B. RICCIDOES NOT REQUIRE CERTAINTY THAT A SELECTION PROCEDURE IS INVALID BEFORE AN EMPLOYER MAY ACT ................. 22 C. THE CITY'S STRONG BASIS IN EVIDENCE TO PERMIT THE ELIGIBLE LIST TO EXPIRE ............................................................................... 24 1 TABLE OF CONTENTS- cont'd PAGE 1. THE MOCHA LITIGATION ................................................................... .24 2. DR. MURPHY'S REPORT ....................................................................... 26 3. THE CITY'S EXPERT, NANCY ABRAMS, PH.D ................................. 28 4. THE DISTRICT COURT'S FINDINGS OF DISCRIMINATION AND CONTINUING SUPERVISION OF THE CITY'S HIRING PRACTICES ............................................................................... 29 POINT II. THE CITY'S CONDUCT SATISFIES STRICT SCRUTINY ............................ .30 POINT III. THE PLAINTIFFS' APPOINTMENTS WOULD HAVE BEEN SPECULATIVE, EVEN IF THE ELIGIBLE LISTS NEVER EXPIRED ........... .34 CONCLUSION .............................................................................................................................. 35 11 TABLE OF AUTHORITIES PAGE FEDERAL CASES Byers v. City of Albuquerque, 150 F.3d 1271 (lOth Cir. 1998) ................................................................................................ 35 Cotter v. City of Boston, 323 F.3d 160 (1 5t Cir. 2003) ........................................................................................ .32, 33,35 Grahek v. City of St. Paul, 84 F.3d 296 (8th Cir. 1996) ............................................................................. , ........................ 35 Griggs v. Duke Power Co, 401 U.S. 424, 91 S.Ct. 849 (1971) ..................................................................................... 19, 20 Gulino v. New York State Educ. Dept., 460 F.3d 361 (2d Cir. 2006) ....................................................................................................... 7 Hollander v. Institute for Research on Women & Gender, 2010 WL 1508269, 372 Fed. Appx. 140 (2d Cir., Apri116, 2010) ........................................ .34 M.O.C.H.A. Soc., Inc. v. City of Buffalo, 98-cv-99C, 2007 WL 4555904 (W.D.N.Y., Dec. 19, 2007) .............................................. 15, 29 MO.C.H.A. Society, Inc. v. City of Buffalo, 98-cv-99c., 2009 WL 604898 (W.D.N.Y., Mar. 9, 2009) ....................................... 8, 16, 25, 27 M 0. C.H.A. Society, Inc. v. City of Buffalo, 03-cv-580, 2010 WL 1930654 (W.D.N.Y. May 12, 2010) ..................................................... 16 Majeske v. City of Chicago, 218 F.3d 816 (7th Cir. 2000) .................................................................................................... 32 McNamara v. City of Chicago, 138 F.3d 1219 cert. denied 525 U.S. 981, 119 S.Ct. 444 (ih Cir. 1998) (Posner, J.) ............ .32 Ricci v. DeStefano, _U.S._, 129 S.Ct. 2658 (2009) ................................................................................... passim United States v. City of Buffalo, 457 F. Supp 612 (W.D.N.Y 1978) aff'd 633 F.2d 643 (2d Cir. 1980) ...................................... 6 Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S. Ct. 2777 (1988) ..................................................................................... .20 111 TABLE OF AUTHORITIES- cont'd PAGE STATE CASES Hynes v. City of Buffalo, 52 A.D.3d 1216 (4th Dep't. 2008) .................................................................................... passim In re Buffalo Police Benevolent Ass 'n, 4 N.Y.3d 660 (2005) ................................................................................................................ 34 Laverack & Haines v. NYS Div. Human Rights, 88 N.Y.2d 734 (1996) .............................................................................................................. 22 law. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295 (2004) ................................................................................................................ 22 Margerum v. City of Buffalo, 63 A.D.3d 1574 (4th Dep't. 2009) ................................................................................. .4, 15,31 Margerum v. City of Buffalo, 880 N.Y.S.2d 820 (4th Dep't. 2009) ......................................................................................... 22 Miller Brewing Co., v. State Div. of Human Rights, 66N.Y.2d 937 (1985) .............................................................................................................. 22 Samuels. v. Montefiore Medical Center, 49 A.D.3d 268 (1st Dep't 2008) ........................................................................................... : ... 17 FEDERAL STATUTES 42 U.S.C. 2000e-2(a)(1) ................................................................................................................. 20 42 U.S.C. 2000e-2(k)(l)(A)(i) ....................................................................................................... 20 42 U.S.C. 2000e-2(k)(l)(A)(ii) and (C) ......................................................................................... 21 42 U.S.C. § 2000e-2(k)(l )(A) (i) ..................................................................................................... 7 42 u.s.c. § 2000e-2(k)(l )(A)(ii), (C) .............................................................................................. s STATE STATUTES Civil Service Law § 61 .................................................................................................................. 34 IV QUESTIONS PRESENTED 1. Whether a city had a "strong basis in evidence" to discontinue using an exam series as a basis for promoting firefighters, where Black frre:fighters had mounted a vigorous legal challenge to the exams as discriminatory, a prominent testing expert's testimony showed that the exams were not valid predictors of job performance, another expert retained by the city concluded that there was limited evidence to support further use of the exams, and the city was subject to a long-standing federal remedial decree arising from its historic discrimination against Blacks? Answer below: Supreme Court erroneously held as a matter oflaw that the city lacked a strong basis in evidence for its actions, even though the White firefighter plaintiffs in this matter relied on an attorney affirmation and had no independent evidence that the city's concerns about the validity of exams were unfounded. 2. Whether a city's narrowly tailored actions in discontinuing use of suspect promotional exams satisfies the strict scrutiny standard, where a federal remedial decree had found that the city had historically discriminated against Blacks, Blacks were severely · underrepresented in promotional positions within the city's fire department, and there was substantial evidence that the exams were discriminatory against Blacks, including the testimony of a prominent expert, and even the city's expert consultant concluded that the evidence supporting use of the exams was limited? Answer below: Supreme Court did not reach this issue. 3. Whether White firefighter plaintiffs have standing to challenge a city's decision to discontinue use of suspect promotional exams where they have come forth with no evidence that they would have received the appointments that were allegedly denied them, even if the City had continued making promotions based on the exams? Answer below: Supreme Court did not reach this issue. OVERVIEW Defendants (collectively, the "City") have a duty under a federal cour t remedial decree and Title VII of the Civil Rights Act of 1964 to avoid discrimi nation in making promotions within the City of Buffalo Fire Department. To comply w ith this obligation, the City permitted Civil Service eligible lists for Fire Department promotional positions to expire automatically after two federal civil rights actions by a group of Black firefighters, known as MOCHA, raised serious questions concerning the legality of the civil service exam series used to promulgate the eligible lists. The plaintiffs here are White firefighters who were on the lapsed eligible lists. They claim to be victims of reverse discrimination. In an Order granted November 19,2010, Supreme Court, Erie County (Michalek, J.) ruled that City was liable for reverse discrimination. The court gra nted the plaintiffs' motion for summary judgment on liability, while denying the City's cross mo tion for summary judgment. But the City had a strong basis in evidence to conclude tha t its actions were necessary to comply with federal law. It would have been extraordinarily irrespon sible for the City to continue utilizing the eligible lists, given the seriousness of the MOCH A plaintiffs' challenge and other evidence- including the opinion of the City's own expert consultant- suggesting 2 that the civil service exams used to promulgate the exams would not withstand legal scrutiny. At all times, the City's overriding interest was in having selection procedures that were fair, complied with federal and state law, and selected candidates on merit and not some arbitrary basis. The City appeals the Order. Supreme Court appears to have based its ruling on the erroneous view that the City was barred under the U.S. Supreme Court's recent decision in Ricci v. DeStefano,_ U.S. _, 129 S.Ct. 2658 (2009) from discontinuing use ofthe eligible lists, while simultaneously defending itself against the claims of the MOCHA plaintiffs. The court below also appears to have been swayed by the District Court's dismissal, after a bench trial, of the MOCHA plaintiffs' claims in March 2009, well over three years after the City decided to discontinue use of the eligible lists. But nothing in Ricci requires an employer to discontinue a suspect employment practice only if it is certain that a suspect employment practice is illegal, let alone to predict the future. On the contrary, Ricci makes explicit that an employer may discontinue a suspect practice in the absence of a provable, actual violation, so long as there is "a strong basis in evidence" to conclude that the practice may be illegal. /d., 129 S.Ct. at 2676. The Record amply establishes the City's strong basis in evidence. Faced with a substantial legal challenge to the Fire promotional exams, the City did what was prudent and responsible. It relied on the advice of an outside, expert testing consultant, Dr. Nancy Abrams, Ph.D., to determine whether the exams -which had been developed by the New York State Department of Civil Service- were valid predictors of job performance and legally defensible. After independently reviewing the evidence, Dr. Abrams advised the City that the state exams would be difficult to defend. The MOCHA plaintiffs had retained a prominent testing expert, Dr. 3 Kevin R. Murphy, Ph.D., whose testimony was extremely critical of the exams. Moreover, Dr. Abrams determined that there was only limited scientific evidence showing that the state exams were a valid predictor of job performance and pointedly advised the City that it would not be in its interest to call her as a witness. The City was further mindful of a continuing federal Remedial Decree, which the U.S. District Court had imposed after finding that the City had historically discriminated against Black firefighters. Given this mounting evidence casting doubt on the exams, the City concluded that the prudent course of action was to discontinue their further use and retain another outside consultant to develop new exams. Otherwise, the City would face additional legal exposure, should the MOCHA plaintiffs prevail in their legal challenge. Indeed, these plaintiffs were already alleging that the City was knowingly employing biased exams as a means of intentional discrimination. If the strong basis in evidence standard is not satisfied under these highly compelling circumstances, it can never be satisfied. In contrast, the plaintiffs came forward with no independent evidence whatsoever -except perhaps the 20-20 hindsight of their counsel- to refute Dr. Abrams' conclusions or otherwise show why the City lacked a strong basis in evidence. They supported their motion exclusively with attorney affirmations attaching pleadings and other documents from the federal court actions brought by the MOCHA plaintiffs. Supreme Court further refused to permit the City even to depose the plaintiffs before granting summary judgment, even though this Court reversed Supreme Court's prior grant of summary judgment to the plaintiffs with express instructions to permit a full exploration of disputed issues. Margerum v. City of Buffalo, 63 A.D.3d 1574, 1579 (41h Dep't. 2009). 4 Lastly, Supreme Court erred by not even deigning to reach the City's argument that it is pure speculation that the plaintiffs would have received promotions, even if the eligible lists had remained in place. The unrefuted Record shows that the Fire Department never nominated, let alone appointed, any ofthe plaintiffs, the Fire Commissioner had discretion to choose any one of the top three candidates on the eligible lists under state law, and a hiring freeze was in place that required additional approval from an outside agency, the Buffalo Fiscal Stability Authority, for the appointments. fudeed, this Court, examining these same circumstances, held previously in Hynes v. City of Buffalo, 52 A.D.3d 1216 (2008) that the plaintiffs here were not entitled to appointments under the Civil Service Law. The lack of any actual evidence that the plaintiffs would ever have been appointed is yet an additional, independent basis for why their claims necessarily fail. Accordingly, this Court should reverse Supreme Court's Order and dismiss the plaintiffs' claims in their entirety. FACTS A. The Parties The plaintiffs are thirteen White firefighters, who are employed by the City of Buffalo. R. 764-766, 769-770. Defendant City of Buffalo is a J;llunicipality under New York law. R. 766. 5 Defendant Leonard Matarese is the former Commissioner ofHuman Resources for the City of Buffalo. R. 89. Supreme Court has dismissed all claims against Matarese personally. R. 8. That determination is not at issue. The City ofBuffalo Department of Fire is a department of the City of Buffalo. Buffalo City Charter § 5-l. Supreme Court previously held that the Department of Fire is not an entity subject to suit. That determination is not at issue. B. The Remedial Order In 1974, the United States brought suit against the City in United States District Court. Among other things, the suit alleged that the written examination used to select entry- level firefighters was discriminatory. The District Court found that the City had engaged in a pattern or practice of discrimination against Blacks, Hispanics, and women in the Fire Department. See United States v. City of Buffalo, 457 F. Supp 612 (W.D.N.Y 1978) aff'd 633 F.2d 643 (2d Cir. 1980); R. 123. On November 23, 1979, the District Court issued a Final Decree and Order (the "Remedial Order") designed to remedy the effects of past discrimination within the Fire Department. The Remedial Order required the City to set quotas for the appointment of new firefighters and enjoined the City "from ... engaging in any act or practice with respect to hiring, assignment, promotion, transfer, training or compensation which has the purpose or effect of discriminating against any employee or future employee with ... the Buffalo ... Fire Department because of such individual's race, sex or national origin, nor will they engage in any other acts or practices which deny to [Blacks, Hispanics] or women equal employment 6 opportunities." R. 132-133. The Remedial Order, as modified over the years, remains in effect. R. 123-124. C. The MOCHA Actions In 1998, MOCHA, a not-for-profit organization composed of Black firefighters, brought a putative class action suit against the City ofBuffa1o in the United States District Court for the Western District of New York, alleging racially discriminatory practices by the Fire Department ("MOCHA I"). R. 145-165. Among other things, the plaintiffs in MOCHA I claim that the examination given by the City in 1998 to determine eligibility for promotion to the rank of fire lieutenant discriminated against Black firefighters. R. 155. MOCHA filed a second putative class action in 2003, alleging that the 2002 administration ofthe lieutenants' exam also discriminated against Black firefighters ("MOCHA II"). R. 166-171. Under Title VII of the Civil Rights Act of 1964 and other law, the standard for determining whether an employment selection procedure, such as a promotional exam, is discriminatory involves three stages of proof. The plaintiff bears the initial burden of showing that the employment practice "causes a disparate impact on the basis of race, color, religion, or national origin ... ," 42 U.S.C. § 2000e-2(k)(l)(A) (i), or, in other words, that the practice statistically favors one group or another. Gulino v. New York State Educ. Dept., 460 F.3d 361, 382 (2d Cir. 2006). The burden then shifts to the employer to establish that the practice is ;•~ . "valid," or ')ob related and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i); Gulino at 382. Ifthe employer meets this burden, the plaintiff can still prevail by demonstrating 7 an equally valid, less discriminatory method of promotion that the employer refused to use. 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C). See also generally M.O.C.H.A. Society, Inc. v. City of Buffalo, 98-cv-99c., 2009 WL 604898, *10 (W.D.N.Y., Mar. 9, 2009). Under applicable law, the lieutenant's examination developed byNYS Civil Service was presumptively discriminatory, as it had a strong, uncontestable adverse impact. Id. at* 11; R. 175. The City therefore could prevail in the MOCHA actions only by showing that the examination valid or job related. In other words, it was the City's burden to demonstrate that the examination was "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." MO.C.H.A. Society, Inc. v. City of Buffalo, 2009 WL 604898 at *11 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405,431,95 S.Ct. 2362 (1975)). D. The Decision To Permit The Lists To Expire By the summer of2005, the City was preparing for mediation to settle the MOCHA actions. In this context, its then Commissioner of Human Resources, Leonard Matarese, reviewed the status ofthe MOCHA actions. R. 124-125. As the City's Personnel Officer, Matarese had the duties and responsibilities that were formerly assigned the City's Civil Service Commission, including determining whether or not to extend the duration of civil service eligible lists. R. 122. In addition to reviewing relevant pleadings and other documents from the MOCHA actions, Matarese consulted at length with the City's legal counsel and Nancy Abrams, Ph.D, an expert who was assisting the City with the defense of the MOCHA actions. Dr. 8 ... i Abrams was formerly a Personnel Psychologist with the United States Office of Personnel Management, where she was responsible for auditing the NYS Civil Service. She also has decades of experience consulting for localities throughout the New York State. R. 172-173, 124- 125. Dr. Abrams independently reviewed the evidence in the MOCHA actions. She informed Matarese that there was a substantial risk that the MOCHA plaintiffs would prevail against the City because the scientific evidence supporting the validity ofthe lieutenant's examination- i.e., whether the test was job related and in fact selects candidates best suited for the job- was limited. She further advised Materese that it might not be in the City's interest to call her to testify as an expert in the MOCHA actions. R. 177-178, 125. Dr. Abrams further concluded that her serious concerns about the lieutenant's examination were equally applicable to the other fire promotional examinations. Abrams advised Matarese that the examinations for Captain, Battalion Chief, and Division Chief were produced at the same time and in the same manner by NYS Civil Service as the lieutenant's examination. They were all based on the same research or "job analysis" that Dr. Wendy Steinberg, Ph.D., performed in the mid to late 1990s. Since NYS Civil Service had never repeated Dr. Steinberg's job analysis, Dr. Abrams advised Matarese that her conclusions applied both to the 1998 and 2002 administration of the lieutenant's and other fire promotional examinations as the same validity evidence is relevant to all these exams . Matarese was also aware ofthe expert report and testimony of Kevin Murphy, Ph.D., who was retained by the MOCHA plaintiffs. Dr. Abrams advised Matarese that Dr. 9 Murphy was an acknowledged scholar in the field of personnel psychology and his criticisms of the lieutenant's examination were substantial. R. 176-177, 126. In addition, Matarese's experience in studying similar cases elsewhere is that plaintiffs, once an entry-level exam is found to be invalid, will also seek remedies with respect to promotional positions to which the entry-level position is the first step. R. 126. As of2005, only ten of the approximately 200 promotional positions within the Fire Department were held by Blacks, even though the Department is about forty percent minority. Matarese also knew that the 1998 and 2002lieutenant's exams had an adverse impact on Blacks because they selected proportionately fewer Black candidates compared to candidates belonging to other racial groups. These facts were troubling given that the Fire Department's employment practices had been subject to on-going judicial monitoring for nearly 30 years under the Remedial Decree. Matarese was concerned that the promotional examination series developed by NYS Civil Service was contributing to a strong racial imbalance between the Fire Department's hierarchy and its rank and file. Matarese was likewise well aware of the Remedial Decree and the District Court's finding in the U.S. v. Buffalo matter that state-developed entry- level examinations had contributed to the Department becoming nearly exclusively White. R. 126. Given Dr. Abrams' conclusions, Dr. Murphy's report and testimony, the requirements of the Remedial Decree and the long history of litigation affecting the Fire Department employment practices, Matarese was concerned that continued reliance on the state- developed exams could expose the City to yet additional litigation and further potential liability. 10 If the MOCHA plaintiffs prevailed in their challenge to the lieutenant's examination, the City likely would face similar challenges contesting the validity of other exams in the same series. In addition, the MOCHA plaintiffs allege deliberate discrimination against Blacks based on the City's purportedly knowing use of a discriminatory exam. As a result, any further use of the exams- now that the City had Dr. Abrams' conclusions- might have provided a foundation for this separate theory of liability. Matarese therefore decided that the City should retain its own, independent consultant to develop a new examination series and the existing fire promotional eligible lists should be allowed to expire automatically under the NYS Civil Service Law. R. 126-127. The four lists at issue here subsequently lapsed between September 18, 2005 and February 3, 2006. R. 128-129. E. The City's Appointment Process A department's submission of a request for a personnel requisition number is the first of many steps that must occur before an appointment is made. R. 90, 93. Specifically, the City's Budget Director reviews any request to ensure that the funding is available and the requisition is consistent with the budget and administrative policy objectives. The Budget Director may determine that a personnel requisition number cannot be issued immediately because budgetary constraints may require the position to be left temporarily vacant. R. 94. For example, the funding for the position might be needed to cover severance expenses, such as the payment of unused vacation time or other monies owed to the positions' last occupant, or the department may be over-budgeted in other line-items or areas. I d. For these and similar reasons, many weeks or months might pass between the submission of a request for a personnel 11 requisition number and the issuance of a number, even assuming that the Budget Director determines that the request should otherwise be acted upon. R. 94. Additionally, due to the City's severe financial restraints, there were yet additional hurdles that had to be overcome before an appointment was possible during the relevant period. In December 2003, the Buffalo Fiscal Stability Authority (the "Control Board") imposed a hiring freeze. R. 94. Accordingly, the City had to apply for a waiver from the Control Board, which would have only approved a waiver if it independently determined that it was necessary "for the health and safety ofthe citizens, is required by the Charter, will avoid excessive use of overtime or will produce revenues in excess of costs." R. 94. Once the personnel requisition was approved by the Budget and Finance Department and the Control Board, the Human Resources Department would then have certified an eligible list to the applicable City department head, identifYing the top three candidates based on competitive examination. R. 95. The department head would then have selected one of the three names and return the form to the Human Resources Department. Id. After nomination of the successful candidate, a certificate of appointment is then filed with the City Council pursuant to City Code§ 35-11. R. 95. The City Council, too, must act on the appointment if the recommended salary exceeds the base level for the position. The appointment then becomes effective in accordance with the effective date specified in the Certificate of Appointment. R. 95. 12 F. None of the Plaintiffs Were Appointed Or Even Nominated The Fire Department never nominated any of the plaintiffs for the positions they now seek. The Fire Department merely indicated that some plaintiffs were candidates for promotion when making the initial request for personnel requisition numbers, which were never issued. During the same time frame, the City's administration changed and a new Fire Commissioner was appointed. It is therefore very possible that the Fire Department would have nominated other individuals for promotion, even assuming the eligible lists had not lapsed and the plaintiffs were among the top three candidates on the eligible lists as certified by the City's Human Resources Department, and the personal requisitions cleared all required steps, including approval by the City's Budget Director and the Control Board despite the hiring freeze that was in effect at the time. R. 129-130, 93-96. G. The Hynes Proceeding The plaintiffs (with the exception of Peter Kertzie) previously brought a proceeding, Hynes v. City of Buffalo, under Index No. 11989/2005. Hynes v. City of Buffalo, 52 A.D.3d 1216 (4th Dept. 2008). In the Hynes proceeding, the plaintiffs alleged that the City violated the New York Civil Service when it permitted the same civil service eligible lists that are at issue in this action to lapse. R. 771-774. The plaintiffs likewise claimed as here that they were entitled to promotions based on the completion of initial personnel requisitions forms, even though the Fire Department never nominated or appointed them to the positions they seek. R 771-774. On December 20, 2006, Supreme Court (Michalek, J.) issued a Memorandum Decision and Order determining the Hynes matter. R. 872-885. Among other rulings, the Court 13 denied the Hynes plaintiffs' request to reinstate the eligible lists . The court likewise refused to promote plaintiffs. R. 884-885. Supreme Court further specifica lly found that the promotions were not completed before the eligible lists expired. !d. This Court subsequently affirmed Supreme Court's refusal to r einstate the eligible lists and to appoint the plaintiffs from those lists. Hynes v. City of Buffalo, 52 A.D.3d 1216 (4th Dept. 2008). The Court held: "[the City's] determination to pe rmit the eligibility lists at issue to expire was not arbitrary, nor was it made in bad faith." !d. at 12 17. H. The Plaintiffs Commence This Action The plaintiffs commenced this action on February 12, 2007, all eging reverse discrimination under the New York Human Rights Law (Execu tive Law § 296 et seq.) and the New York State Constitution, based on the City's decision to p ermit the Fire promotional examinations to expire. R. 763-775. Instead of answering, the City moved to dismiss, or in the alternative, for a stay in favor ofthe MOCHA I and II actions p ending in the United States District Court. R. 10-11. The plaintiffs cross-moved for partial s ummary judgment on liability. In an Order granted on September 10, 2007, Supreme Court, Eri e County (Michalek, J.) denied the City's motion and granted the plaintiff s' pre-answer cross-motion for partial summary judgment. R. 33-38. I. The Federal Injunction The City moved the U.S. District Court to enjoin this action wh ile the MOCHA actions remained pending. In an Order filed on December 19, 2007 (the "Federal Injunction"), the District Court granted the City's injunction motion "to the extent it seeks to enjoin the 14 plaintiffs in Margerum, et al. v. City of Buffalo, et al., Index No. 1462/2007, and their attorneys, from proceeding any further in the state courts pending the outcome of the trial in this action, MO.C.H.A. v. City of Buffalo, No. 98-CV-99 .... " MO.C.H.A. Soc., Inc. v. City of Buffalo, 98- cv-99C, 2007 WL 4555904, at* 5 (W.D.N.Y., Dec. 19, 2007). In granting this relief, the District Court found that the relief sought by the White firefighter plaintiffs in this action directly conflicts with the relief sought by the Black firefighter plaintiffs in the MOCHA actions. !d. at *4-5. The Court further recognized the seriousness of the claims raised in the MOCHA actions: "There is a significant risk that the state court could order relief in favor of the Margerum plaintiffs ... which might then be subject to some type of corrective order from this court should the federal trial result in a judgme1zt in favor of the MOCHA plaintiffs." The District emphasized that the "possibility of incompatible relief is real, not speculative." !d. at 1 5 (emphasis added). J. The First Appeal In This Action The City appealed the September 10, 2007 Order. On June 5, 2009, this Court reversed Supreme Court's grant of partial summary judgment to the plaintiffs. In reaching this result, the Court concluded that the City had taken "race based" actions and therefore reviewed them under a "strict scrutiny" standard. The Court concluded that Supreme Court erred, among other reasons, because the plaintiffs failed to establish the absence of a "compelling interest" justifying the City's actions. The plaintiffs further failed to demonstrate that the City's actions were not "narrowly tailored" for achieving such an interest. R. 37. . . . On June 29, 2009, the U.S. Supreme Court issued its decision in Ricci v. DeStefano, _U.S. _, 129 S.Ct. 2658 (2009). Both sides subsequently moved to renew 15 argument on the grounds that Ricci represented a change in controlling law. On October 2, 2009, this Court denied the parties' motions "without prejudice to motions for the same or similar relief at Supreme Court." K. The Status of MOCHA Actions On March 9, 2009, the U.S. District Court, after a bench trial, held the lieutenant's examination to be valid and dismissed the MOCHA I Action to the extent the plaintiffs sought reliefbased on the City's 1998 administration ofthe exam. MO.C.H.A. Society, Inc. v. City of Buffalo, 98-CV-99C, 2009 WL 604898 (W.D.N.Y., Mar. 9, 2009). At the same time, the Court lifted the injunction, which it had imposed on the White plaintiffs here. Id. at 18. On May 12, 2010, the U.S. District Court dismissed the MOCHA ll Action. fu doing so, the District Court found that the plaintiffs were collaterally estopped from challenging the validity of the 2002 administration of the lieutenant's examination, as the Court had already found in MOCHA I that the lieutenant's examination was a valid employment selection procedure and the evidence concerning the validity ofboth the 1998 and 2002 administration of the exams was identical in substantially all materials respects. M. 0. C.H.A. Society, Inc. v. City of Buffalo, 03-cv-580, 2010 WL 1930654, *3 (W.D.N.Y. May 12, 2010). The Black firefighter plaintiffs have perfected their appeals in both the MOCHA I and MOCHA ll actions and the City's opposition briefs are due on February 4, 2011. MO.C.H.A. Society, Inc. v. City of Buffalo, 98-cv-99, Court of Appeals Docket No. 10-2129, entry no. 62 (2d Cir.); M 0. C.H.A. Society, Inc. v. City of Buffalo, 1 :03-cv-580, Court of Appeals Docket No. 10-2129, entry no. 67 (2d Cir.) [A court may take judicial notice of facts 16 resting upon sources that are widely acceptable and unimpeachable such as reliable, uncontested governmental records. Kingsbrook Jewish Med. Ctr. v. Allstate Insur. Co., 61 AD .3d 13, 19-20 (2d Dep't 2009); Samuels. v. Montefiore Medical Center, 49 A.D.3d 268 (1st Dep't. 2008) (taking judicial notice of order included in another court's files)]. The MOCHA plaintiffs are seeking millions of dollars in damages, preferential hiring, retroactive appointment and seniority, as well as emotional distress damages, punitive damages, and attorney fees. R. 91, 164, 170. L. The Order Appealed From On November 19, 2009, the plaintiffs moved once again for partial summary judgment as to liability. R. 22-23. On January 21,2010, the City cross-moved for summary judgment dismissing the Complaint and, alternatively, to compel written discovery and depositions, among other relief. R. 118-120. The City submitted the affidavits ofHuman Resources Commissioner Matarese, the City's independent consultant Dr. Nancy Abrams, Ph.D., as well as the expert report and deposition transcript of Kevin R. Murphy, Ph.D., from the MOCHA I action in opposition to the plaintiffs motion and in support of its cross motion for summary judgment. R. 121-131, 172-180,676-753. The plaintiffs relied exclusively on attorney declarations that attached pleadings, deposition excerpts, and other court documents from the MOCHA actions as well as testimony from Hynes proceedings. R. 24-117. The plaintiffs submitted no expert testimony or other evidence to refute Commissioner Matarese's reliance on Dr. Abrams' independent review of the evidence in the MOCHA actions in discontinuing further use of the eligible lists at issue. Nor did the plaintiffs submit any evidence that Dr. Abrams' . ' conclusions that the risks the City faced from continued use of the eligible lists were unfounded. 17 On April22, 2010, Supreme Court denied the cross motions for summary judgment without prejudice. R. 17-21. Supreme Court further refused to compel the plaintiffs' depositions but granted the other discovery sought by the City. R. 20. Supreme Court gave the parties until September 30, 2010 to complete written discovery and renew their summary judgment motions. R. 19. The parties then renewed their summary judgment motions. R. 22-23, 118-120. On October 29, 2010, Supreme Court rendered its decision on the record. The court granted partial summary judgment to the plaintiff as to liability and denied the City's cross-motion for summary judgment, except to the extent it sought to dismiss the action against defendant Matarese. R. 10. In reaching this result, the court applied the "strong basis in evidence" standard announced by the U.S. Supreme Court in_ U.S. _, 129 S.Ct. 2658 (2009). The court acknowledged that Matarese consulted with Dr. Abrams but stated cryptically that "a thorough analysis ofMaterese's motives as set forth by him in the Hynes proceeding, which was conducted specifically for that purpose, clearly demonstrate that the City has not met the Ricci standard." R. 12-13. The court further emphasized that the City continued to defend the MOCHA action, while accusing the City broadly of"turning a blind eye" towards evidence supporting the exam's validity. R. 14. The court did not discuss the Ricci decision itself or what the "strong basis in evidence" standard requires. R. 9-15. Absent from the decision is any analysis of why the extensive evidence from the MOCHA actions, together with the conclusions of the City's own expert, Dr. Abrams, was inadequate to satisfy the strong basis in evidence standard. 18 Supreme Court further did not address at all the evidence presented by the City that the plaintiffs' claims fail because their appointments to the positions at issue would have been speculative, even if the eligible lists had not lapsed. R. 9-15. The only support for the plaintiff's contention that they would have received the appointments are allegations "upon information and belief' in their unverified Complaint. R. 769-770. The plaintiffs submitted no admissible evidence on this point. On November 29,2010, Supreme Court granted the Order appealed from, along with a second Order concerning the discovery related issues raised in the City's motion to compel. The second Order is not the subject of this appeal, although the City may elect to appeal it separately. This timely appeal followed. POINT I. ARGUMENTS THE CITY HAD A STRONG BASIS IN EVIDENCE TO PERMIT THE ELIGIBLE LISTS TO EXPIRE A. The "Strong Basis In Evidence" Standard In Ricci v. DeStefano,_ U.S._, 129 S.Ct. 2658 (2009), the U.S. Supreme Court reached a novel issue: how should an employer proceed when the results of a selection procedure - such as the promotional exams at issue here - favors members of one protected class over other classes? If the employer continues to use the procedure, it may be liable for "disparate impact" discrimination, because the procedure, while facially neutral, is "discriminatory in operation." Ricci at 2672; Griggs v. Duke Power Co, 401 U.S. 424, 431, 91 S.Ct. 849 (1971). But if the employer engages in voluntary compliance and discontinues the practice, it risks 19 liability for "disparate treatment" discrimination treatment because it took actions based on race or another protected characteristic. See Ricci at 2473-74. The Supreme Court concluded that an employer could disregard the results of a personnel selection procedure favoring one protected class over another so long as there was a "strong basis in evidence" to conclude that use of the selection procedure constitutes statutorily prohibited "disparate impact" discrimination. I d. at 2676. Appreciating the significance of the Ricci decision requires some familiarity with Title VII of the U.S. Civil Rights Act of 1964. Title VII recognizes two broad theories of discrimination. Under the "disparate treatment" theory, an employer may not take an employment action "because of an individual's race, color, religion, sex or national origin." 42 U.S.C. 2000e-2(a)(1); Ricci at 2672. To prevail, a disparate-treatment plaintiff therefore must establish "that the defendant had a discriminatory intent or motive" for taking a job-related action. Ricci at 2672; Watson v. Fort Worth Bank & Trust, 487 U.S. 977,985-86, 108 S. Ct. 2777 (1988). Under the "disparate impact" theory, an employer must avoid any employment practice that causes "a disparate impact on the basis of race, color, religion, sex, or national origin," unless the practice is "job related for the position in question and consistent with business necessity." 42 U.S.C. 2000e-2(k)(1)(A)(i); Ricci at 2672. In other words, an employer must avoid practices that are "fair in form, but discriminatory in operation." Ricci at 2676; Griggs v. Duke Power Co, 401 U.S. 424,431,91 S.Ct. 849 (1971):" "If an employment practice which operates to exclude minorities cannot be shown to be related to job performance, the practice is prohibited." Ricci at 2672; Griggs, 401 U.S. at 432. And, even if a challenged 20 practice is job related, it may still be illegal if there is an "available, alternative practice that has less disparate impact and serves the employer's legitimate needs." Ricci at 2672 (interpreting 42 U.S.C. 2000e-2(k)(l)(A)(ii) and (C)). The Ricci decision does not privilege one theory of discrimination over the other. The U.S. Supreme Court adopted the "strong basis in evidence" standard specifically "to resolve any conflict between the disparate treatment and disparate-impact provisions of Title VII." Ricci at 2676. The standard's objective thus is to "give[] effect to both ... provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances." !d. In delivering the Court's opinion, Justice Kennedy emphasized that the standard "leaves ample room for employers' voluntary compliance efforts, which are essential to the statutory scheme and to Congress's efforts to eradicate workplace discrimination." !d. The parties are in agreement that the "strong basis in evidence" standard governs here. R. 25. Just like the Ricci plaintiffs, the plaintiffs claim that their employer, the City, improperly elected not to hire off Civil Service eligible lists based on the plaintiffs' race. R. 27- 28. The City acknowledges that it permitted the eligible lists to expire, in part, because it was concerned about disparate impact liability as the exams used to promulgate the lists favored White candidates over Black ones. But, in contrast to the Ricci defendants, the City had a strong basis in evidence to conclude that the claims pending in federal court brought by Blacks were likely to succeed and continued use of the challenged selection procedures would subject the City to further liability. The City therefore perrriitted the lists to expire to limit any further liability. At the same time, the City proceeded to retain an independent consultant to develop a new fire promotional examination series that would comply with applicable federal and state 21 : .. requirements, be fair to all applicants, and select the best suited candidates for the job based on merit and not some arbitrary basis. The standards for recovery under the New York anti-discrimination law are the same as under Title VII of the Civil Rights Act of 1964 and other federal law. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 316 (2004); Laverack & Haines v. NYS Div. Human Rights, 88 N.Y.2d 734,738 (1996); Miller Brewing Co., v. State Div. of Human Rights, 66 N.Y.2d 937, 938 (1985). This Court has also already recognized that the facts in Ricci and those here, while not identical, are similar. Margerum v. City of Buffalo, 880 N.Y.S.2d 820, 825 (4th Dep't. 2009). The Ricci standard therefore governs. B. Ricci Does Not Require Certainty That A Selection Procedure Is Invalid Before An Employer May Act The court below appears to have concluded that Ricci precluded the City from permitting the eligible lists to expire, while at the same time continuing to defend the MOCHA actions. R. 14. But Ricci requires nothing ofthe sort. On the contrary, Ricci makes very clear that employers may discontinue an employment practice even when they do not know with certainty that the practice would result in disparate impact liability. [The Ricci plaintiffs] next suggest that an employer in fact must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit. Again, this is overly simplistic and too restrictive of Title VII's purpose. The rule [the Ricci plaintiffs] offer would run counter to what we have recognize,d as Congress's intent that voluntary compliance be the , .. preferred means of achieving the objectives of Title VII. Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near stand stilL Even in the limited 22 situations when the restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment. Ricci at 2674 (quotations and citations omitted) (emphasis added). In this way, the strong basis in evidence standards creates a safe harbor for employers, which operate in a highly litigious environment and must decide -just as the City of Buffalo in this case- whether to continue a potentially discriminatory practice in the absence of definitive evidence. As we have seen, the very purpose of the "strong basis in evidence" standard is to strike a balance between the sometimes conflicting requirements of Title VIT, while permitting employers to engage in voluntary compliance efforts to avoid disparate-impact discrimination. Thus, the standard is "llot so restrictive that it allows employers to act only where there is a provable, actual violation": Applying the strong basis in evidence standard to Title VII gives effect to both disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers' voluntary compliance efforts, which are essential to the statutory scheme and to Congress's efforts to eradicate work place discrimination. And the standard appropriately constrains employers' discretion in making race- based decisions: it limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only whell there is a provable, actual violation. Ricci at 2676 (citations omitted)( emphasis added). Nothing in Ricci requires an employer to be certain that it has violated the disparate impact provisions of Title VII before discontinuing a challenged selection procedure. 23 On the contrary, the "strong basis and evidence" stan dard is specifically intended to permit voluntary compliance efforts even in the absence of a proven violation. This Court should reject any attempt to refashion the Ricci decision into a bla nket prohibition against voluntary efforts to avoid potential disparate-treatment violations. The C ity was not required to wait until an adverse ruling in the MOCHA litigation before taking action s to avoid potential liability. Nor was the City required to predict the future and intuit how the federal District Court Judge would decide the MOCHA actions before discontinuing the eligib le lists. The only relevant inquiry is whether the City had a strong basis in evidence at the time it took action. And the Record unmistakably shows that the City did. C. THE CITY'S STRONG BASIS IN EVIDENC E TO PERMIT THE ELIGIBLE LIST TO EXPIRE While the Ricci decision supplies the appropriate sta ndard for evaluating the City's conduct, the Ricci defendants did not have a s trong basis in evidence to act. In contrast, the City of Buffalo had a strong basis in evidence fo r concluding that continued use of the eligible lists here might subject it to liability for disp arate impact for several unrefuted reasons. 1. The Mocha Litigation The City did not act out of the mere fear oflitigation alone as did the defendants in Ricci; it had actually been sued in two pending federa l lawsuits. The New York State Department of Civil Service- a non-party who wa s not under the City's control- had developed the examinations at issue. Early on in the MOCHA litigation, the City's expert :· .• consultant, Dr. Abrams, advised it that the exams ha d a clear adverse impact on minorities. R. 175. The City therefore could only prevail again st the MOCHA plaintiffs by carrying its 24 burden to prove that the examinations were valid, i.e, "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.' M 0. C.HA. Society, Inc. v. City of Buffalo, 2009 WL 604898 at *11 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362 (1975)). Later, the City, for the first time, had the opportunity to obtain evidence from the State and evaluate it in light of the opinions of the plaintiffs' expert and the City's own consultant, Dr. Abrams. R. 128. Only then did the City conclude that the MOCHA plaintiffs' challenge was very serious and continued use ofthe State developed examinations and the associated eligibility lists would expose the City to additional disparate impact liability. R. 127. The City was further concerned that if it did not promptly discontinue use ofthe eligible lists, it would open itself to potential disparate treatment liability- as the MOCHA plaintiffs were already alleging- for "intentionally and purposefully" employing an illegal selection device that favored Whites over Blacks. R. 127, 160-161. In contrast, the Ricci defendants acted before minority candidates had even brought suit. As a result, the Ricci defendants did not have the benefit of any evidence even remotely comparable to the strong evidence confronting the City, including both Dr. Abram's evaluation of the exams and Dr. Murphy's expert report and deposition testimony. The Ricci defendants based their actions almost exclusively on the statistical disparity in the pass rate between White and Black candidates, bolstered by the inconclusive testimony of various supposed experts at a public hearing, none of whom- in direct to contrast to Dr. Abrams and . ' : Dr. Murphy here -had full access to the examination or evidence related to its validity. The Ricci defendants further ignored the opinion oftheir own expert test developer, who stood by the 25 examination's validity, and even instructed the test developer not to prepare a validity study as this would have undermined their planned course of action. Ricci at 2678-2679. They did not have any pending litigation of all, much less did they wait until litigation had reached an advanced stage and they had the benefit of expert and other discovery before drawing conclusions about the seriousness of disparate impact claims that might be brought by minority plaintiffs. The City here obviously had a strong basis in evidence as a matter of law; the Ricci defendants did not. 2. Dr. Murphy's Report The seriousness of the MOCHA plaintiffs' challenge is underscored by the report of their expert, Kevin R. Murphy, Ph.D., which the City received in advance of permitting the eligible lists to expire. Dr. Murphy heads the Department of Psychology at Pennsylvania State University and has decades of experience in developing and evaluating personnel selection procedures. Indeed, he is the past President of the Society for Industrial and Organizational Psychology and has published nine books and over one hundred articles and chapters concerning performance appraisal, personnel selection, psychological measurement, statistics, and research methods. He likewise has served as the Chair of the U.S. Department ofDefense Advisory Committee on Military Personnel Testing. R. 676. The City itself had also retained Dr. Murphy as an expert on prior cases. R. 187, 189. Dr. Murphy concluded that "neither the City of Buffalo nor the Department of Civil Service ofthe State ofNew York has presentedcredible evidence ofthe validity of the [ 1998 lieutenant's examination] for the purpose of making decisions about the promotion into the position of fire lieutenant." R. 677. This finding was equally probative ofthe validity of the 26 2002lieutenants' examination and the other 2002 promotional examinations since the validation of all these exams rested on the same job analysis performed by Dr. Wendy Steinberg, who developed the examinations for the State, and there was substantial overlap between the examinations. R. 178-179. Based on his review of the deposition testimony of the examination's developer, Dr. Wendy Steinberg, and other discovery from the MOCHA Litigation, Dr. Murphy opined that the examination had three major flaws that undermined its validity as a personnel selection device. To begin with, Dr. Murphy found there was no scientific evidence of validity or even "of any effort to investigate validity" of three of the examination's six subtests, namely "Training Practices," "Supervision," and "Understanding and futerpreting Written Materials." R. 680. Dr. Murphy's expert opinion that there was not any evidence at all available to support the validity of half of the exam was potentially devastating to the City, which carried the burden of establishing the examination's validity. MO.C.HA. Society, Inc. v. City of Buffalo, 98-cv-99c., 2009 WL 604898, *10 (W.D.N.Y., Mar. 9, 2009). fu addition, Dr. Murphy opined that the job analysis performed by Dr. Steinberg as a foundation for developing the examination was inadequate, among other reasons, due to "a systematic failure to sample fire departments in larger cities." R. 681-682. By Dr. Steinberg's own admission, the response rate to empirical surveys that she distributed to incumbent firefighters throughout New York State was "ridiculously low" in Buffalo and other large upstate cities. "Because of the systematic failure to collect adequate data from larger fire departments, the Department of Civil Service ... ha[ d] no way of testing the hypothesis that the same test can be validly used to test for promotion to fire lieutenant in large vs. small fire departments." R. 27 682-683. In other words, according to Dr. Murphy, Dr. Steinberg designed the examination based on data collected from small municipalities without any way of knowing whether fire lieutenants performed the same duties in both large and small jurisdictions. Lastly, Dr. Murphy opined that the job analysis performed by Dr. Steinberg did not support the inclusion on the examination ofthe same three subtests, Training Practices, Supervision, and Understanding and Interpreting Written Materials, for which there was allegedly no evidence of validity. R. 683. So, even assuming the subtests were a valid measure of the qualities they were supposed to test for, Dr. Murphy found that Dr. Steinberg lacked empirical evidence showing these qualities were important for performing the lieutenant's position so as to justify the inclusion of the subparts on the examination. Obviously, Dr. Murphy's opinion- even standing on its own- was enough to provide the City with the strong basis in evidence required by Ricci. 3. The City's Expert, Nancy Abrams, Ph.D. But the City did not simply rely on Dr. Murphy's word. The City retained its own expert, Nancy Abrams, Ph.D., to assist it with the defense of the MOCHA actions. After independently reviewing the pleadings and evidence in that case- including the lieutenant's examination, Dr. Steinberg's job analysis and other records relating to the examinations' validity, Dr. Murphy's report, and the deposition transcripts- Dr. Abrams likewise had serious concerns about the validity of the exams and the City's ability to defend their use. R. 177 . . -.,· Dr. Abrams' concerns included: 1) the job analysis was an inadequate basis for the validation ofthe examination in Buffalo because it was based on data that came 28 predominately from smaller localities; 2) Dr. Steinberg had placed too much reliance on a small panel offirefighting experts, who did not include anyone from the Buffalo Fire Department; 3) Dr. Steinberg relied on the firefighting experts to draw conclusions about what content to include on the examination, even though the data from her job analysis did not support some of those conclusions; 4) the examination included several subparts that measured general traits that were not specifically linked to the fire lieutenant's job; and 5) the pass-fail cut-offpoint for the examination was inadequately justified. R. 177. Dr. Abrams advised the City of her opinion that there was a substantial risk that the MOCHA plaintiffs would prevail against the City because the scientific evidence supporting the validity ofthe lieutenant's examination was limited. R. 177-178, 125. She further made clear that it would not be in the City's best interest to call her as an expert in the MOCHA actions. R. 177-178. 4. The District Court's Findings of Discrimination and Continuing Supervision of the City's Hiring Practices Also, unlike the Ricci defendants, the City is operating under the continuing supervision of the U.S. District Court, which has specifically found that the City has engaged in a pattern and practice of discrimination against Blacks and has enjoined the City from discriminating against Blacks in their promotional practices or otherwise denying them equal employment opportunities. R. 132-133. The District Court recognized the seriousness ofthe claims raised in the MOCHA actions by enjoining the plaintiffs in this action from proceeding with their claims pending the completion of a trial in the MOCHA actions. SeeM 0. C.HA. Soc., Inc. v. City of Buffalo, 98- 29 CV-99C, 2007 WL 4555904 (W.D.N.Y., Dec. 19, 2007) R. 862-871. In doing so, the District Court emphasized, "[T]here is a significant risk that the state court could order relief in favor of the Margerum plaintiffs . . . which might then be subject to some type of corrective order from this court should the federal trial result in a judgment in favor of the MOCHA plaintiffs." R. 869 (emphasis added). The District Court further noted that the ''possibility of ill compatible relief is real, lZOt speculative." !d. at 8 (emphasis added). The District Court would not have taken the extraordinary step under the rarely invoked federal All Writs Act of enjoining parties not otherwise before it from proceeding with a separate state court action unless it had concluded that the MOCHA plaintiffs had substantial claims on which they could prevaiL The District Court's Injunction thus establishes that the City had a strong basis in evidence for permitting the eligible lists to expire. In sum, Dr. Murphy's expert report and other evidence, the opinions of the City's own independent expert, Dr. Abrams, the advanced stage of the MOCHA Litigation, the Remedial Decree, and the extraordinary All Writs Act Injunction by the District Court, are dispositive. The City undoubtedly had a strong basis in evidence to support its decision to permit the eligible lists to lapse rather than risk liability under a disparate impact theory from their continued use. If the "strong basis in evidence" standard announced in Ricci is not satisfied here, it could never be satisfied in any case. POINT II. THE CITY'S CONDUCT SATISFIES STRICT SCRUTINY ~S~-- ~ On the prior appeal- which was decided without the benefit of Ricci - this Court held that the "strict scrutiny'' standard was applicable to plaintiffs' claims. As we have 30 seen, Ricci governs this case. But the result under strict scrutiny would be the same in any event. The U.S. Supreme Court expressly fashioned the Ricci standard from prior precedents from the equal protection field concerning the appropriate use of racial classifications under the strict scrutiny standard. Ricci at 2675 ("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"). In effect, the Court held: 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 transfer the rights of others. Ricci at 2675. 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. /d. True, the U.S. Supreme Court did not reach the issue of whether the Ricci defendants' actions were permissible under the Equal Protection Clause because it had already found a violation of Title VII ofthe Civil Rights Act of 1964. !d. at 2681. But any action satisfying Ricci also is proper under strict scrutiny. A compelling state interest obviously exists in avoiding discrimination. 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"). There also can hardly be a more narrowly tailored remedy than discontinuing a suspect employment practice. This response involves no broad remedial relief such as quotas or preferences. Indeed, it does not involve any mandatory relief at all but merely prohibits further use of a biased employment selection device. • ! r·., In addition, the City's actions would have satisfied strict scrutiny, even assuming the City did not already have a strong basis in evidence to conclude that the lieutenant's and 31 other fire promotional examinations were invalid. 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 Blacks in the City's Fire Department. R. 140. It was obvious to Commissioner Matarese that the Department's hierarchy remained nearly entirely White despite whatever other progress achieved under the Remedial Decree in addressing the effects of historic discrimination. Even though the Department was forty percent minority, Blacks held only ten of approximately 200 promotional positions. R. 126. Commissioner Matarese was concerned that the promotional examination series developed by the State Civil Service Department might be contributing to a strong racial imbalance between the Fire Department's hierarchy and its rank and file, just like- as the District Court had found earlier - similar state-developed entry level examinations had contributed to the Department becoming nearly exclusively White. R. 126. These undisputed circumstances, standing alone, are sufficient to satisfy strict scrutiny. See, e.g., Cotter v. City of Boston, 323 F.3d 160, 169-70 (1st Cir. 2003) cert. denied 540 U.S. 828, 124 S.Ct. 179 (rejecting challenge to City's promotion of three Blacks over seven Whites with identical exam scores where evidence of disparity in promotions of Blacks, racial tensions within department, prior litigation, and documented history of past discrimination created "strong basis in evidence" for City to conclude that race-conscious action was necessary); Majeske v. City ofChicago, 218 F.3d 816, 822 (ih Cir. 2000) cert. denied 531 U.S. 1079, 121 S.Ct. 779 (statistical and anecdotal evidence of past discrimination constituted "strong . ~· . basis in evidence" to support City's decision to promote police officers out of rank order from exam as affirmative action measure); McNamara v. City of Chicago, 138 F.3d 1219, 1224 cert. 32 denied 525 U.S. 981, 119 S.Ct. 444 (7th Cir. 1998) (Posner, J.) (statistics and other evidence of past discrimination justified affirmative action designed to boost number of minority Fire Captains). Indeed, in previously enjoining the plaintiffs in this action, 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 .... R. 869-870. Ifthe City had not acted as responsibly as it did, the City's continued use of the suspect eligible lists would have risked violating the Remedial Decree. In permitting the eligible lists to expire, the City therefore was taking narrowly tailored action to achieve a compelling state interest, namely complying with federal law, including both Title VII and the Remedial Decree's prohibition against discriminating against Blacks in its Fire Department promotional practices. The City's conduct easily satisfies the Strict Scrutiny Standard as a matter oflaw. See Cotter at 168 (whether strict scrutiny is satisfied as a legal question). 33 POINT HI. THE PLAINTIFFS' APPOINTMENTS WOULD HAVE BEEN SPECULATIVE, EVEN IF THE ELIGIBLE LISTS NEVER EXPIRED The plaintiffs further cannot establish as a matter oflaw that they would have been appointed, even assuming the eligible lists had not lapsed automatically. The plaintiffs submitted absolutely no evidence on this point. The only support for the plaintiff's contention that they would have received appointments are allegations "upon information and belief." R. 769. The uncontested Record demonstrates that Fire Department did not even nominate, let alone appoint, the plaintiffs to the positions that they seek. It is pure speculation that these nominations and appointments would have ever occurred. The Fire Department has broad discretion to appoint any one of the top three candidates on an eligible list to fill a vacancy. Civil Service Law§ 61; In re Buffalo Police Benevolent Ass 'n, 4 N.Y.3d 660 (2005) (arbitrator award violated public policy where it limited police commissioner's discretion to choose any of the top three candidates on an eligible list). The City's administration changed and a new Fire Commissioner was appointed during the time frame at issue. So, the Fire Department therefore ultimately may very well have nominated other individuals for promotion, even assuming all the other prerequisites for the appointments - including approval by the Buffalo Fiscal Stability Board despite the City's continuing fiscal crisis and the general hiring freeze then in effect - had occurred. Indeed, this Court already held in Hynes that the same plaintiffs were not entitled to appointments under the Civil Service Law. Hynes v. City of Buffalo, 52 A.D.3d 1216 (2008). 34 Accordingly, the plaintiffs lack standing because their alleged harm is speculative at best. Hollanderv. Jnstitutefor Research on Women & Gender, 2010 WL 1508269,372 Fed. Appx. 140 (2d Cir., April16, 2010) (affirming dismissal of discrimination claims because "the plaintiffs claims of harm amount to the kind of speculative harm for which courts cannot confer standing"); Cotter v. City of Boston, 323 F.3d 160, 167 (1st Cir. 2003) cert. denied 540 U.S. 828, 124 S.Ct. 179 (White police officers could not establish standing to seek monetary damages where it was uncontested that they would have not received promotions even if defendants had not used race conscious criteria); Byers v.- City of Albuquerque, 150 F.3d 1271, 1274 (lOth Cir. 1998) (White police officers lacked standing because they failed to show a causal relationship between their failure to be promoted and the challenged affirmative action policies); Grahek v. City of St. Paul, 84 F.3d 296, 298 (8th Cir. 1996) (White police officers lacked standing where they could not demonstrate that they would have received promotions, even if no protected members had). For these reasons as well, Supreme Court should have denied the plaintiffs motion and dismissed the Complaint. CONCLUSION This Court should reverse the Order and dismiss the plaintiffs' claims in their entirety. At all times, the City's overriding interest was in having selection procedures that were fair, complied with federal and state law, and selected candidates based on merit and not some arbitrary basis. Faced with a substantial legal challenge to the promotional exams, the City sought the advice of its outside, expert testing consultant, Dr. Abrams, to determine whether the exams were valid predictors of job performance and legally defensible. The MOCHA plaintiffs had already retained a prominent testing expert, Dr. Murphy, whose testimony was extremely 35 critical of the exams. Dr. Abrams determined that there was only limited scientific evidence showing that the state exams were a valid predictor of job performance. The City was further mindful of a continuing federal Remedial Decree and the District Court's finding that the City had historically discriminated against Black firefighters. As both this court and Supreme Court below held in Hynes, 52 A.D.3d 1216, the City therefore acted prudently to discontinue further use of the state exams as soon as possible and retain another outside consultant to develop new exams. Otherwise, the City faced additional legal exposure, should the Black firefighters prevail in their legal challenge. Indeed, these plaintiffs were already alleging that the City was knowingly employing biased exams as a means of intentional discrimination. The plaintiffs have come forward with no evidence whatsoever to refute Dr. Abrams' conclusions or the other evidence in the Record comprising the strong basis in evidence for the City's actions. Instead, they rely exclusively on their counsel's 20-20 hindsight, which shows only that the City failed to predict the future, not that the Ricci standard is not met. Indeed, Ricci makes very clear that "forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near stand still," thus frustrating "Congress' intent that voluntary compliance be the preferred means of achieving the objectives of Title VII." Ricci at 2674. And the District Court itself recognized the seriousness of the Black firefighters claims when it enjoined the plaintiffs 36 here under the All Writs Act. In sum, ifthe strong basis in evidence standard is not satisfied here, it could never be satisfied under any circumstances. Dated: Buffalo, New York January 24, 2011 000160/00738 Litigation 7705781 v3 HODGSON RUSS LLP By: JosephBro Joshua Fein in, of cou The Guaranty Build1 g 140 Pearl Street, Suite 100 Buffalo, NY 14202-4040 716.856.4000 37 tr ~~~· ~~/) Atio 2 (":~~ OF NEW YORK ~~-..- 5;009 SUPREME COURT : COUNTY OF ERIE C~ Co~ I-In--th_e_M--at-te_r_o_f_t_h_e_A_p_p-lic-a-ti_o_n_o_f--------------~~~o~,C~ I BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION, INC. IAFF LOCAL 282, Petitioner For an Order and Judgment Pursuant to Article 75 of the Civil Practice Law and Rules vs CITY OF BUFFALO, NEW YORK, Respondent JONATHAN G. JOHNSEN, ESQ. Attorney for Petitioner JOSHUA FEINSTEIN, ESQ,. Attorney for Respondent MEMORANDUM DECISION K.M. DILLON, J. Index No. 3580/2007 This special proceeding was brought by Notice of Petition. Petitioner is a union comprised of all professional firefighters in the City of Buffalo except for the Commissioners. The petition seeks an Order and Judgment pursuant to CPLR Article 75 vacating the opinion and award of the arbitrator dated February 3, 2009 relative to a grievance filed pursuant to the parties collective bargaining agreement (CBA). The grievance alleged that the City's refusal to promote any firefighters from certain Civil Service eligible \ ' . .• ·lists and in allowing such eligible lists to expire without making any 1 promotions, was in violation of the anti-discrimination provisions of the CBA. The petition also seeks to have the matter submitted to a new arbitrator. 1 In September 2002, the City of Buffalo promulgated lists of persons eligible for promotion in its' fire department. No promotions were made from those lists during the lists initial two year term. The lists expired and were extended for an additional two years. Again, no promotions were made. In late 2005, early 2006 the lists were allowed to expire by the City. The promotion lists were for the positions of battalion chief, division chief, lieutenant and captain. On December 4, 2006 petitioner filed a grievance which alleged that the failure to make promotions from the lists was in violation of the CBA's anti-discrimination provision. 2 This grievance was not resolved and was In addition to the parties original submissions each party submitted a letter addressing the impact of the decision of the United States Supreme Court in Ricci v DiStefano, 557 US _, 129 S.Ct. 2658 (June 29, 2009). This case was decided after the parties had oral argument as to the claims made in the petition. The anti-discrimination provision is found in Article 2, Section A of the Collective Bargaining Agreement and reads as follows: The provisions of this Agreement shall be applied equally to all employees in the bargaining unit without discrimination as to age, sex, marital status, race, color, creed, national origin, political affiliation or any reason whatsoever. The union shall share equally with the City the responsibility for applying this provision to the Agreement. -2- '· . submitted to arbitration. The arbitrator found that the City's decision to expire the lists was not a violation of Article II of the CBA, and did not "represent invidious discrimination ... as to race" and therefore denied the grievance. Petitioner argues that the arbitrator's finding contradicts the strong public policy of New York and the United States prohibiting racial discrimination in employment and that the finding is in direct violation of Federal and State anti-discrimination laws. Respondent City of Buffalo requests judgment dismissing the petition and confirming the arbitrator's award. The City asserts that petitioner has failed to meet the high standard under which awards may be vacated on public policy grounds; that the union failed to demonstrate any violation of the Collective Bargaining Agreement; and that the City's actions were not in violation of the law. Rather, the City states that it was attempting to avoid claims of discrimination and resulting legal liability. The City argues that its' actions were race neutral and that an earlier grievance on the same subject was summarily dismissed. ARBITRATOR'S OPINION AND AWARD The arbitrator framed the issues before him as follows: Did the City violate the Collective Bargaining Agreement when it allowed the Civil -3- '· . Service eligible list for division chief, battalion chief, fire captain and fire lieutenant to expire in late 2005 and 2006 without promoting from those lists? If so what is the appropriate remedy? Further, what limits exist, if any, on the arbitrator's authority in this matter? The arbitrator outlined some of the recent litigation history of the fire department in Federal and State Court and provided an extensive outline of the parties positions as to the issues pending before him. In his "Findings and Opinion" portion of the award, the arbitrator ruled that contrary to the City's position, he did have authority to arbitrate this matter in that he was not barred from doing so by the consent decree, the Federal litigation, the State litigation or prior arbitration rulings. He distinguished this arbitration from prior proceedings because those proceedings did not include "the claim that a discriminatory motivation lay behind the actions that allegedly violated Article 2 of the CBA." He also held that "Federal Law" did not impact his authority. As to the merits, the arbitrator framed the "threshold issue" in two different ways: Did the City violate Article 2 of the CBA when it allowed the eligible list to expire? Alternatively, did the expiration of the list constitute "discrimination as to race" within the meaning of the Agreement?" The arbitrator made the following observations: Expiration of the list -4- ·. had the same affect on all applicants; members of racial groups were not treated differently from one another; everyone was deprived of the opportunity for promotion; the Agreement does not mandate that the City fill vacancies within a specified time; and that the grievance essentially argues that the City may not use race in deciding vacancies, a claim that "goes beyond" a ban on using race to decide whom shall fill the vacancies. The arbitrator found that the union failed to cite a specific contract provision which was subject to its' arguments of unequal application. He found that the language of Article 2 required such specificity. Regardless, he went on to analyze the record before him to determine whether expiration of the list had in fact violated Article 2. The arbitrator stated while the "decision to expire the eligible lists was based on race" is true in the broadest sense, that alone is irrelevant to the issue of violation of Article 2. What was required, according to the decision, was the necessity of exploring the motivation "behind" the expiration. He concluded that the specific motivation was that few, if any, black applicants would be promoted if the lists were used. A relevant factor in reaching this conclusion was the testimony of Leonard Matarese, who was the Commissioner of Human Resources for respondent. The arbitrator cited Mr. Matarese's testimony that was given at the hearing as well as -5- testimony given by him in Matter of Hynes v City of Buffalo, 52 AD3d 1216 (4th AD 2008). The arbitrator concluded that Mr. Matarese's testimony objectively demonstrated imbalance in the supervisory ranks in the fire department and a "suspect but not ungrounded" belief that the imbalance was caused, at least in part by the testing procedures. Further he credited Mr. Matarese's conclusion that the best way to protect the City from legal liability and to control risks was to let the lists expire. The arbitrator also held that the "mere expiration of the lists" did not result in a discriminatory outcome citing the language of Article 2. He found that Article 2 proscribed unequal treatment of employees, not different treatment. He observed that the employees on the list were treated differently by the list expiration than they would have been absent expiration, but no other employees were treated better because of their race. The arbitrator did not feel it necessary to engage in constitutional analysis nor did he find it important that, in other context, notably the Federal litigation, the City had taken the possession that the testing procedures used in the lieutenant's exam were valid. STANDARD OF REVIEW It is axiomatic that an arbitrator's decision is subject only to limited -6- judicial review, particularly where, as here, the parties are subject to the provisions of a Collective Bargaining Agreement. Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management. In circumstances when the parties agree to submit their disputes to an arbitrator court, courts generally play limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contact and judgment concerning remedies. A court cannot examine the merits of an arbitrator award and substitute its' judgment for that of the arbitrator simply because it believes its' interpretation would be the better one. In deed, even in circumstances where an arbitrator makes errors of law or fact, the courts will not assume the role of overseers to conform the award to their sense of justice ... Despite this difference courts may vacate arbitral awards in some limited circumstances. A court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically numerated limitation on an arbitrator's power under CPLR 7511 (b)(1). Matter of New York State Correctional Officers and Police Benevolent Association v State of New York, 94 NY2d 321, 326 (1999) [citations omitted]. Here it is claimed by petitioner that this award violates strong public policy. "An arbitrator cannot issue an award where the award itself violates a well defined constitutional, statutory or common law of this State." (Matter of United Federation of Teachers, Local 2, AFT AFL-CIO v Board of /Education of City School District of City of New York, 1 NY3d 72, 80 (2003) -7- citing Matter of New York City Transit Authority v Transport Workers' Union of American, Local 100, AFL-CIO, 99 NY2d 1, 11 [2002]. This prohibition relates directly to the present litigation. Since 1974, the City has defended itself in United States District Court for the Western District of New York in suits brought by the Federal Government and by Men of Color Helping All (M.O.C.H.A.) concerning, inter alia, discriminatory selection procedures in the fire department. Since 1979, as the arbitrator pointed out, the fire department has been operating under a consent decree issued in the first Federal action which prohibits it from engaging in any act or practice which has a purpose or effect of discriminating against employees, present or future, in hiring and promotion. 3 However in March 2009 after an extensive trial, the Federal Court found that a fire lieutenant's exam, given in 1998, while having a disparate impact on African American promotional candidates, was job related and consistent with business necessity. Thus, that exam was validated under Title 7 VII of the Civil Rights Act of 1964, 42 USC 2000e-2. M.O.C.H.A. SOCY INC. v City of Buffalo, 2009 WL 60489 (Western WDNY, March 9, 2009 Curtin, J.) That decision also rescinded an injunction en- The consent decree is properly referred to as a Final Decree and Order and was issued in the first Federal action. The history of that litigation and the continuing applicability of the final decree are detailed in United States v City of Buffalo, 721 F sup 463 (1998). -8- joining actions seeking relief concerning the 2002 fire lieutenant's exam. Margerum v City of Buffalo, 63 AD 3d 1574 (4th AD 2009). The plaintiffs in Marjerum, like the union here, claimed that the City's action in allowing promotional lists to expire constituted racial discrimination. In the Margerum decision, the Appellate Division Fourth Department, found that Mr. Matarese had decided to let the lists expire in order to avoid the further appointment of caucasians. The 4th Department concluded that the City's action in allowing the expiration of the lists based on racial distinction, should be subjected to the "most exacting judicial examination" that is, strict scrutiny (Margerum supra at 1578, internal citation omitted). In the present proceeding there was no demonstration made by the City that its' actions in permitting the promotional lists to expire based upon racial distinction was subjected to "strict scrutiny". Even though the arbitrator made some mention of the validity of the test, that issue was not determined in this arbitration. In fact, the opinion and award specifically stated that strict scrutiny did not apply. This is contrary to Margerum. In the recent Supreme Court decision in Ricci v DeStefano, 557 US _, 129 Supreme Court 2658 (2009) the court addressed a situation where the New Haven Connecticut Fire Department "threw out" promotional test results when white candidates outperformed most minority candidates, I citing fear of legal liability because of the disparate impact. The court held I -9- ,• ' ,, \~ ' that such action was impermissible under Title VII of the Civil Rights Act unless the City demonstrated a "strong basis in evidence" that it would face liability under the disparate impact provisions of that statute. The court did not reach petitioner's claim of violation of the constitutional guaranty of equal protection of the laws. In the present proceeding, contrary to Ricci, the City did not demonstrate that there was a "strong basis in the evidence" to conclude that it would face liability under the disparate impact provisions of the Civil Rights Act. It is also clear that the arbitration award violated the strong public policy of both the State and United States which prohibits racial discrimina- tion in making promotional decisions. The arbitrator never considered the factors or made the findings addressed in the above cases and statutes. Consideration of such facts and the making of such findings are necessary in order to justify the extreme action taken by the City. The court is sympathetic to the difficulties faced by the arbitrator in adjudicating issues made even more complex by the lengthy history of fire fighter litigation. Regardless, the award cannot stand. The award would permit racial discrimination in the implementation of the Collective Bargaining Agreement contrary to Federal and State Court decisions, statutes and the common law. -10- , ' I 1,, .. ""~ Therefore, the award is vacated and the matter is remitted to a different arbitrator. (See, East Ramaopo Central School District v East Ramaopo Teachers Association, 108 AD2d 717 (1985). Submit judgment according. Dated: Buffalo, New York August 23, 2009 -I 1- SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE In the Matter of the Application of For An Order and Judgment Pursuant To Article 75 of the Civil Practice Law and Rules Against CITY OF BUFFALO, Respondent. Index No.: 2009-005156 ORDER & JUDGMENT Upon reading the Notice of Petition and Verified Petition pursuant to Article 75 of the Civil Practice Law and Rules for a judgment vacating the Opinion and Award of Arbitrator Howard Foster attached thereto, the Verified Answer of the Respondent, and the Affinnation of Joshua Feinstein, with exhibits, in opposition to the Petition; and Counsel for the parties having appeared and argued before the Court, and this Court having given the matter due consideration, and this Court having issued a Memorandum Decision dated August 23, 2009, it is hereby ORDERED, ADJUDGED, AND DECREED that Opinion and Award of Arbitrator Howard Foster is vac.ated in its entirety and that the parties shall re-arbitrate the dispute before a different arbitrator to be selected by the parties. DATED: September JJ. 2009 GRANTED J.S.C. COURT CLERK