Lewis Jr. v. City of Chicago Reply Brief for Respondent in Opposition

    No. 08-974

In The

Supreme Court o! tje flHnttefc
Aethtjr L. Lewis, Jr .; Gregory S. Foster, Jr .; 
Arthur C. Charleston, III; Pamela B. A dams; 

William R. Muzzall; Philippe H. Victor; 
Crawford M. Smith; Aldron R. Reed; and 

African American Fire Fighters League of 
CHICAGO, Inc., individually, and on behalf 

of all others similarly situated,
Petitioners,

v.

C m  of Chicago,
Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

Mara S. Georges 
Corporation Counsel 

of the City of Chicago 
Benna Ruth Solomon 
Deputy Corporation Counsel 
Myriam Zreczny Kasper 
Chief Assistant

Corporation Counsel 
Nadine Jean Wichekn * 
Assistant Corporation Counsel 
30 N. LaSalle Street, Suite 800 
Chicago, Illinois 60602 
(312) 744-0468

* Counsel of Record Attorneys for Respondent

Wilson-Epes Printing Co., Inc. -  (202) 789-0096 Washington, D. C. 20002



QUESTION PRESENTED

Whether the limitations period on a Title VII claim 
for disparate impact from an examination and eligi­
bility list created based on the examination results 
starts to run only when the list is adopted and 
announced, or also later, upon each use of the same 
list.



TABLE OF CONTENTS
Page

QUESTION PRESENTED...................................  i
TABLE OF CONTENTS....................................... iii
TABLE OF AUTHORITIES..... ...........................  iv
STATEMENT .........................................................  1

A. Factual Background..................................... 1
B. District Court Proceedings.......................... 4
C. Seventh Circuit Proceedings....................... 6

REASONS FOR DENYING THE PETITION.... 7
I. The Seventh Circuit Faithfully Applied 

This Court’s Entire Line Of Relevant 
Precedents To The Particular Facts Of 
This Case......................................................  8

II. The Circuit Split On The Question 
Presented Is Shallow And Stale, And 
Will Likely Resolve Itself........................... 21

CONCLUSION....................................................... 32

(iii)



IV

TABLE OF AUTHORITIES
CASES Page

Anderson v. Zubieta,
180 F.3d 329 (D.C. Cir. 1999)....................... 29, 30

Association Against Discrimination in 
Employment, Inc. v. City o f Bridgeport,

647 F.2d 256 (2d Cir. 1981)........................... 25, 28
Bazemore v. Friday,

478 U.S. 385 (1986)....................................... passim
Beavers v. American Cast Iron Pipe Co.,

975 F.2d 792 (11th Cir. 1992)..................  29-30
Bouman v. Block,

940 F.2d 1211 (9th Cir. 1991)..................  30-31
Bronze Shields, Inc. v. New Jersey Department 
o f Civil Service,

667 F.2d 1074 (3d Cir. 1981).............  22-23, 24, 31
Chardon v. Fernandez,

454 U.S. 6 (1981).......................9, 11-12, 13, 31, 32
Connolly v. McCall,

254 F.3d 36 (2d Cir. 2001)........................26, 27, 28
Cox v. City o f Memphis,

230 F.3d 199 (6th Cir. 2000) .20, 24, 26, 28, 31, 32
Davidson v. Board o f Governors,

920 F.2d 441 (7th Cir. 1990)......................... 17
Delaware State College v. Ricks,

449 U.S. 250 (1980).............. ........................ passim
Electrical Workers v. Robbins & Myers, Inc.,

429 U.S. 229 (1976)........................................ 31
Gonzalez v. Firestone Tire & Rubber Co., 

610 F.2d 241 (5th Cir. 1980)................. 25, 29, 32



V

Page
Guardians Association v. Civil Service 
Commission,

633 F.2d 232 (2d Cir. 1980)....23, 24-25, 27, 28, 32

TABLE OF AUTHORITIES—Continued

Griggs v. Duke Power Co.,
401 U.S. 424 (1971)............................... ........  17

Harris v. City o f New York,
186 F.3d 243 (2d Cir. 1999)..................... 26-27, 28

Hood v. New Jersey Department o f Civil Service,
680 F.2d 955 (3d Cir. 1982)........................... 23, 24

Hulteen v. AT&T Corp.,
498 F.3d 1001 (9th Cir. 2007)....................... 31

Johnson v. Railway Express Agency, Inc.,
421 U.S. 454 (1975).............. ............ ............  19

Kennedy v. Chemical Waste Management, Inc.,
79 F.3d 49 (7th Cir. 1996).............................  31

Law v. Continental Airlines Corp. ,
399 F.3d 330 (D.C. Cir. 2005).................. . 30

Ledbetter v. Goodyear Tire & Rubber Co.,
550 U.S. 618 (2007).......................................passim

Lorance v. AT&T Technologies, Inc.,
490 U.S. 900 (1989)....................   passim

Mohasco Corp. v. Silver,
447 U.S. 807 (1980)........................................ 19

National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002).......................................passim

Pallas v. Pacific Bell,
940 F.2d 1324 (9th Cir. 1991)......................  31



VI

TABLE OF AUTHORITIES—Continued
Page

United Air Lines, Inc. v. Evans,
431 U.S. 553 (1977)....................................... passim

United States v. New York,
No. 07-2067, 2009 WL 212154 (E.D.N.Y.

Jan. 28, 2009)..............................................  27-28
Van Zant v. KLM Royal Dutch Airlines,

80 F.3d 708 (2d Cir. 1996).............................  26, 27

STATUTES
42 U.S.C. § 2000e-2(a).................................... 9
42 U.S.C. § 2000e-2(k)................................  17
42 U.S.C. § 2000e-5(e)(l)............................9, 10, 18
42 U.S.C. § 2000e-5(e)(2)............................... 13, 18
42 U.S.C. § 2000e-5(e)(3)(A)..........................13, 18



In The

Supreme Court of tlje finttefc H>tateg

No. 08-974

Arthur L. Lewis, Jr .; Gregory S. Foster, Jr .; 
Arthur C. Charleston, III; Pamela B. A dams; 

William R. Muzzall; Philippe H. Victor; 
Crawford M. Smith; Aldron R. Reed; and 

A frican American Fire Fighters League of 
Chicago, Inc., individually, and on behalf 

of all others similarly situated,
Petitioners, 

v.

City of Chicago,
Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT
A. Factual Background
The City of Chicago follows a multi-step process to 

hire firefighters. The first step is a written exami­
nation, and applicants become eligible for further 
processing based on their examination scores. Supp. 
R. 436, Ex. 1. Thereafter, as the needs of the Chicago



Fire Department (“CFD”) dictate, candidates are 
called for a physical abilities test, background check, 
medical evaluation, and drug test; those who pass 
each step receive fire academy training; and gra­
duates go into the field for a probationary period. 
Ibid. The City hired consultants, including Dr. 
James Outtz, an expert on reducing disparate impact 
in testing, to analyze the firefighter position and 
create a new written examination. Ibid. Developing 
the examination took years, and it was administered 
for the first, and only, time in July 1995 to some 
26,000 applicants. Id. at Aff. 14. The City scored the 
tests, listed applicants from highest to lowest score, 
and divided the list into three categories. Id. at Aff. 
115. The first category included those scoring 89 or 
above; the second included those scoring 88 to 65; the 
third included those scoring 64 or below; and the 
categories were deemed “well qualified,” “qualified,” 
and “not qualified,” respectively. Ibid.

On January 26, 1996, after the hiring eligibility list 
was adopted, the City mailed notices informing each 
applicant of their score and category, and what would 
happen for that category. Supp. R. 436, Aff. 115-8, 
Ex. 1. Those “well qualified” were told they passed 
and would be called in random order to continue the 
hiring process, based on CFD’s needs. Id. at Aff. H5. 
Those “qualified” were told they passed but would 
“not likely” be called due to the “large number of 
candidates who received higher scores.” Ibid. They 
were also told they would remain “on the eligible list” 
for “as long as that list is used” because it was “not 
possible to predict how many” would be hired from 
the “well qualified” category over the “next few 
years.” Ibid. Those “not qualified” were told they 
failed and would not be called. Ibid.

2



That same day, the City’s Mayor publicly an­
nounced the examination results in a news release. 
Supp. R. 436, Ex. 1. He noted that 1,782, or 6.8%, of 
applicants were deemed “well qualified”; and of those, 
75.8% were white and 11.5% African-American. Id. 
at 2. He stated that those “well qualified” would be 
called in random order to continue the hiring process 
and the City expected to hire about 600 from that 
category over the next three years. Ibid. He added 
that “ [a]fter all our efforts to improve diversity, these 
test results are disappointing” {id. at 1), and although 
he “was not satisfied with the results, in fairness to” 
those who scored higher, the eligibility list would be 
used while the City studied “new procedures” for 
hiring {id. at 2). For weeks, major Chicago newspa­
pers -  the Chicago Sun-Times, Chicago Tribune, and 
Chicago Defender (popular in the African-American 
community) -  regularly reported on the examina­
tion’s impact on minorities, and the reactions of 
applicants, firefighters, and minority leaders. Id. at 
Ex. 2.

Months later, in April 1996, the African American 
Fire Fighters League of Chicago, Inc. (“AAFFLC”), 
along with some petitioners, met with an attorney to 
discuss whether they “had a possible lawsuit” based 
on the examination. R. 74, Ex. K <R1. They men­
tioned the score notices and “ [r]ecent newspaper 
articles” about the examination’s “adverse impact” on 
African-Americans. Ibid. Counsel told them they 
had a possible “adverse impact” claim but he wanted 
to explore potential defenses the City could raise. Id. 
at f2 . In the following months, counsel gathered 
information he believed was needed; once he had 
satisfied himself, he advised them about the “possible 
adverse impact” claim. Id. at Exs. A-B, K 31*113-9, L; 
R. 83, Aff. 31313-8, Ex. 1. With counsel’s assistance (R.

3



4
74, Ex. K *1110), the earliest charge was filed with the 
EEOC by a named petitioner on March 31, 1997 
(Supp. R. 436, Ex. 3). The charge claimed that the 
“hiring procedures, including” the examination, “dis­
criminated against African Americans,” and that the 
“most recent” violation had occurred in March 1997 
and was “continuing.” Ibid. Nearly 16 months later, 
the EEOC issued a right-to-sue letter. Id. at Ex. 4.

Meanwhile, based on CFD’s hiring needs, the City 
used the eligibility list for the first time in May 1996; 
the second time in October 1996; and eight more 
times until November 2001, each time calling from 
the “well qualified” category in random order. R. 163 
at 9; R. 233, Ex. A at 5; Supp. R. 436, Exs. 1-2.1

B. District Court Proceedings
Within 90 days of the right-to-sue letter, the eight 

named petitioners and the AAFFLC filed suit against 
the City, claiming that the examination and decision 
to call only “well qualified” applicants had disparate 
impact under Title VII. Supp. R. 432. The district 
court certified a class of about 6,000 African-Ameri­
cans in the “qualified” category who would “not likely” 
be called, or at least not for many years. R. 58-59. 
Answering the complaint, the City admitted adverse 
impact but raised defenses, including the statute of 
limitations. R. 11, 163, 171-74, 188.

The City sought summary judgment, arguing that 
the claim was untimely because no EEOC charge was

1 Ultimately, the City used this list longer than expected 
because new hiring procedures had not been finalized. The 
“well qualified” category was exhausted in November 2001, after 
which the City began drawing from the “qualified” category in 
random order. The City stopped using the list altogether in 
2007, after new procedures were adopted.



filed within 300 days after the alleged unlawful 
employment practice occurred, which was when the 
list was adopted and announced. R. 83; Supp. R. 433, 
436. Petitioners defended the claim’s timeliness 
under multiple theories, including that the continu­
ing violation doctrine applied; that they did not 
receive definite notice of their injury; and that the 
limitations period should be equitably tolled. R. 74. 
Framing the question as whether “the City’s ongoing 
reliance on a discriminatory examination’s results in 
making hiring decisions constitute [s] a continuing 
violation of Title VII” (Pet. App. 45a), the district 
court answered in the affirmative and denied the 
City’s motion (id. at 44a-70a). A bifurcated bench 
trial was held; because the City had admitted 
adverse impact, the liability trial focused on the 
defenses that the examination was job related and its 
use was consistent with business necessity; the court 
rejected the defenses and found the City liable under 
Title VII. Id. at 12a-43a.2 Two years later, the court 
granted relief and entered judgment. R. 390-91, 404- 
06.

Throughout the proceedings, the City continued to 
argue that the claim was time barred (R. 233, 244, 
258, 260, 268, 301-02, 304-05, 308, 310), but the 
district court declined to alter its ruling (R. 259, 269, 
273-74). The City appealed (R. 407), and the district 
court stayed the judgment pending appeal (R. 424-

5

2 Petitioners highlight some of the district court’s liability 
findings (Pet. 8 n.3) but omit that Dr. Outtz issued a report 
after the examination was scored finding that it was valid and 
job related (R. 189, Ex. B). They also fail to mention the City’s 
determination that calling only those in the “well qualified” 
category was justified by business necessity (Tr. Vols. 15-16) 
and that there were operational and administrative reasons for 
using the cut-off score of 89 (R. 274 at 9, 19-20).



25), specifically noting that this Court’s recent deci­
sion in Ledbetter v. Goodyear Tire & Rubber Co., 550 
U.S. 618 (2007), made its decision on this question 
“less clear” (R. 425 at 3).

C. Seventh Circuit Proceedings
The sole issue the City raised on appeal was 

whether petitioners’ claim was untimely. As we 
explained, no EEOC charge was filed within 300 days 
after the unlawful employment practice occurred, 
which was when the hiring eligibility list was 
adopted and announced; and neither the continuing 
violation doctrine nor equitable tolling applied. 
Petitioners modified their response, arguing that a 
new violation occurred each time the list was used, 
making the EEOC charge timely to challenge the 
list’s second use; that it was timely even as to the 
first use under the continuing violation doctrine; and 
that equitable tolling applied. Moreover, for the first 
time in the decade-long litigation, petitioners offered 
a disparate-treatment theory and urged application 
of equitable estoppel. The City replied to petitioners’ 
arguments, including the newly-raised ones.

The Seventh Circuit, in an opinion authored by 
Judge Posner and joined by Chief Judge Easterbrook 
and Judge Bauer, reversed. Pet. App. la -lla . The 
court reviewed the relevant precedents of this Court 
and noted some disharmony in the courts of appeals. 
Id. at 3a-9a. The court held that petitioners’ claim 
was time barred because they failed to file an EEOC 
charge within 300 days after the unlawful practice 
occurred, which was when the list was adopted and 
announced. Id. at 3a-9a. That is when petitioners 
were injured -  indeed, they “were injured, and their 
claim accrued, when they were placed in the ‘quali­
fied’ category of the hiring list on the basis of their

6



7
score in the firefighters’ test; for that categorization 
delayed indefinitely their being hired.” Id. at 9a. 
There was “only one wrongful act” -  the “classifica­
tion” of petitioners “as merely ‘qualified’ on the basis 
of a test that they contend was discriminatory.” Id. 
at 7a (quotation omitted). Each use of the list after 
that was nothing more than an “automatic conse­
quence” of the examination and list, not a “fresh act 
of discrimination.” Id. at 4a; see id. at 6a, 7a.

As the court explained, this is the “acknowledge[d]” 
rule “in a ‘disparate treatment’ case” -  where a claim 
accrues when the “discriminatory decision is made” 
and communicated “rather than when it is executed.” 
Pet. App. 3a. The court saw no basis for applying a 
different rule “to a disparate-impact case,” particu­
larly because these are simply methods of proving a 
discrimination claim. Id. at 5a-6a. And because this 
case did not involve a facially-discriminatory policy, 
the court put the unique accrual rule that applies in 
those cases -  where each act taken pursuant to such 
a policy is a fresh violation -  to the side. Id. at 4a-5a. 
The court also rejected petitioners’ bids under the 
continuing violation (id. at 7a-9a) and equitable tol­
ling (id. at 7a, 9a-lla) doctrines, and gave no moment 
to their waived arguments.

Petitioners sought rehearing en banc, but there 
were no votes for that. Pet. App. 71a.

REASONS FOR DENYING THE PETITION
After administering and scoring a written exami­

nation, the City adopted an eligibility list that 
limited the pool of applicants who would be called to 
continue the hiring process. The City would call only 
those in the “well qualified” category in random order 
for the next several years, as CFD’s needs required.



That decision was communicated to all applicants, 
including petitioners, but no EEOC charge was filed 
for 420 days, despite Title VII’s applicable 300-day 
limitations period. Nor did petitioners file within 300 
days of the first use of the list. Petitioners finally 
filed about five months after the list’s second use. 
The Seventh Circuit held that the claim accrued 
when the list was adopted and announced, rendering 
their filing untimely. After all, the list was adopted 
only once, in a single, discrete act, and no discrimina­
tory act occurred after that. The subsequent uses 
of the list were merely the inevitable effects of its 
adoption.

Review of that decision is unnecessary. The Se­
venth Circuit faithfully applied the entire line of this 
Court’s relevant precedents, and reached the correct 
result. Not only that, but the conflict in the courts of 
appeals is shallow and stale -  on the precise question 
presented, the split is only two to two, and the two 
favoring petitioners have not been rethought for 
nearly three decades. Since then, this Court has 
decided at least six relevant cases. Given the 
developments in the law, particularly the trend 
toward the Seventh Circuit’s view, the conflict will 
likely resolve itself.

I. The Seventh Circuit Faithfully Applied 
This Court’s Entire Line Of Relevant 
Precedents To The Particular Facts Of 
This Case.

The paramount reason review is unnecessary is 
that the Seventh Circuit’s decision on the question 
presented is correct. The question is whether, to 
preserve a Title VII claim that a hiring examination, 
and eligibility list created from the examination 
results and intended to be used as needed for several

8



9
years, had disparate impact, a plaintiff must file an 
EEOC charge within 300 days after the list was 
adopted and announced, or whether a plaintiff may 
wait and file a charge after any subsequent use of the 
list. The Seventh Circuit faithfully considered the 
entire line of this Court’s precedents related to this 
question. That long line began with United Air 
Lines, Inc. v. Evans, 431 U.S. 553 (1977); included 
Delaware State College v. Ricks, 449 U.S. 250 (1980), 
Chardon v. Fernandez, 454 U.S. 6 (1981) (per 
curiam), Bazemore v. Friday, 478 U.S. 385 (1986), 
Lorance v. AT&T Technologies, Inc., 490 U.S. 900 
(1989), and National Railroad Passenger Corp. v. 
Morgan, 536 U.S. 101 (2002); and culminated last 
term in Ledbetter. In doing so, the Seventh Circuit 
ruled that petitioners’ claim was time barred because 
it accrued only upon the list’s adoption and an­
nouncement, for no unlawful practice occurred after 
that. Pet. App. la -lla . As we now explain, the court 
applied these cases correctly to this context.

Among other things, it is an “unlawful employment 
practice” for an employer to discriminate against any 
individual in making hiring decisions “because o f’ 
the person’s “race.” 42 U.S.C. § 2000e-2(a). Relevant 
here, anyone seeking to challenge a hiring decision 
under Title VII must first file a charge with the 
EEOC within 300 days “after the alleged unlawful 
employment practice occurred.” Id. § 2000e-5(e)(l). 
If no timely charge is filed, then a plaintiff “may not 
challenge the practice in court” and the claim must be 
dismissed. Ledbetter, 550 U.S. at 624.

As the Court’s precedents teach, to determine when 
a Title VII claim accrues, and thus when the 300-day 
filing period starts running, the “specific employment 
practice that is at issue” must be identified “with



10

care” (.Ledbetter, 550 U.S. at 624; accord Morgan, 
536 U.S. at 110-11; Lorance, 490 U.S. at 904; Ricks, 
449 U.S. at 257), and then it must be determined 
when that practice “occurred” (42 U.S.C. § 2000e- 
5(e)(1)), which simply means when it “happened” 
(Morgan, 536 U.S. at 109-10 & n.5), and was “com­
municated” {Ricks, 449 U.S. at 258). Such practices 
have been characterized in the Court’s cases as either 
a “discrete act” that “occurs at a particular point in 
time” (Ledbetter, 550 U.S. at 621), like “termination, 
failure to promote, denial of transfer, or refusal to 
hire” {Morgan, 536 U.S. at 114); a series of acts for 
which the violation is not known until the acts are 
repeated over time, like a hostile work environment 
{id. at 115); or an act taken pursuant to a facially- 
discriminatory policy (Ledbetter, 550 U.S. at 634-36 & 
n.5 (discussing Bazemore, 478 U.S. at 389-91)).

These classifications are illustrated by the Court’s 
cases. For starters, in Evans, a newlywed was forced 
to resign due to her employer’s policy of excluding 
married female flight attendants. 431 U.S. at 554-55. 
She was rehired after the policy was changed, but her 
seniority was calculated based on her rehiring, rather 
than her original hiring, date. Id. at 554-55. Only 
after that did she fde an EEOC charge and a lawsuit 
claiming sex discrimination. Id. at 554-56. While 
recognizing that using the rehiring date perpetuated 
the prior discriminatory act, the Court ruled the 
claim was untimely because there was no “present” 
violation; there were merely “continuing” and “neutral” 
effects of a past act. Id. at 557-58. The key inquiry is 
“whether any present violation exists.” Id. at 558 
(emphasis in original). After no timely charge was 
filed, the employer was “entitled to treat that past act 
as lawful” because a “discriminatory act which is not 
made the basis for a timely charge is the legal equiv­



alent of a discriminatory act which occurred before 
[Title VII] was passed. It . . .  is merely an unfortu­
nate event in history which has no present legal 
consequences.” Ibid. The Court concluded, “such a 
challenge to a neutral system may not be predicated 
on the mere fact that a past event which has no 
present legal significance has affected the calculation 
of seniority credit, even if the past event might at one 
time have justified a valid claim against the 
employer.” Id. at 560.

Similarly, in Ricks, a college denied an African- 
American professor tenure and gave him a non­
renewable one-year contract. 449 U.S. at 252-56. 
After the contract expired, he filed an EEOC charge 
and a lawsuit, but the Court held the claim was 
untimely -  any discriminatory act occurred, and thus 
the claim accrued, when he was denied tenure. Id. at 
256-58. No discriminatory act “continued until, or 
occurred at the time of, [his] actual termination”; 
rather, his termination was merely “one of the effects 
of,” and “a delayed, but inevitable, consequence of,” 
the denial of tenure. Id. at 257-58 (emphasis in 
original). As in Evans, the Court instructed that the 
“proper focus” is on whether a present violation 
exists, not on when the “consequences” of a prior 
unlawful act become “most painful.” Id. at 258 
(quotation omitted).

Char don applied this analysis to a First Amend­
ment claim. There, school administrators received 
letters stating they would be terminated in the next 
few months, and filed suit after being terminated. 
454 U.S. at 6-7. The Court, citing Ricks, concluded 
that the claim was untimely because it accrued when 
the letters were received, as the decision to terminate 
was the allegedly discriminatory act and the later

11



termination was merely an effect of that decision. Id. 
at 7-8.

On the other hand, in Bazemore, African-American 
employees filed an EEOC charge and a lawsuit claim­
ing intentional discrimination because they were 
being paid less than whites. 478 U.S. at 389-91. 
Before Title VII’s enactment, the employer segre­
gated employees and paid African-Americans less; 
and although the employer had since stopped segre­
gating, pay disparities remained. Id. at 390-91. 
Finding a present violation, the Court wrote: “Each 
week’s paycheck that delivers less to a black than 
to a similarly situated white is a wrong actionable 
under Title VII, regardless of the fact that this 
pattern was begun prior to the effective date of Title 
VII.” Id. at 395-96. As Ledbetter later explained, 
“the focus [in Bazemore] was on a current violation, 
not the carrying forward of a past act of discrimina­
tion.” 550 U.S. at 635 n.5. If an employer “adopts 
and intentionally retains” a “facially discriminatory 
pay structure,” it “engages in intentional discrimina­
tion whenever it issues a check.” Id. at 634. By 
contrast, no fresh violation occurs if the employer 
simply fails to remedy the “present effects” of prior 
discrimination. Id. at 635 n.5 (quotation omitted). 
For this reason, each paycheck issued under a 
facially-discriminatory pay structure is a new viola­
tion, although that is not the case under “a system 
that is ‘facially nondiscriminatory and neutrally ap­
plied.’” Id. at 637 (quoting Lorance, 490 U.S. at 911).

Next, in Lorance, female employees alleged that 
their employer adopted an intentionally discrimina­
tory seniority system but filed no EEOC charge until 
they were laid off based on seniority. 490 U.S. at 
904-06. Discussing Evans, Ricks, and Chardon, the

12



Court rejected their argument that the unlawful 
practice occurred when the system was adopted and 
when each effect of its adoption was felt. Id. at 906.3 
That is because this was a “facially neutral system,” 
albeit allegedly adopted with discriminatory intent, 
and so the discrimination occurred “only at the time 
of [its] adoption”; without another discriminatory act, 
“each application” of the system was “nondiscrimina- 
tory.” Id. at 912 n.5 (emphasis in original). Signifi­
cantly, the Court explained that, in theory, the claim 
could be timely based on a “continuing violation 
which ‘occurred’” not only when the system was 
adopted “but also when each of the concrete effects” of 
its adoption was felt, but that approach had been 
flatly rejected in Evans, Ricks, and Chardon. Id. at 
906. Nor was the case like Bazemore, under which 
every act taken under a “facially discriminatory” 
policy is actionable, because such a policy “by defini­
tion” intentionally discriminates “each time it is 
applied.” Id. at 912 n.5. That rule rightly does not 
apply to facially-neutral policies: “ [Allowing a facial -

13

8 After Lorance, Congress enacted 42 U.S.C. § 2000e-5(e)(2), 
so that claims of intentional discrimination involving seniority 
systems accrue when the system is adopted or applied. As 
Ledbetter explained, 550 U.S. at 627 n.2, while Lorance’s specific 
holding regarding seniority systems was abrogated, its reason­
ing otherwise remains persuasive since it follows directly from 
Evans and Ricks. This case does not involve a seniority system, 
so Lorance’s, reasoning applies. The same is true of Ledbetter, 
which we discuss below. Months ago, in response to Ledbetter, 
Congress enacted 42 U.S.C. § 2000e-5(e)(3)(A), so that claims 
“with respect to discrimination in compensation” accrue when 
someone “becomes subject to” or “is affected by application o f’ 
a “discriminatory compensation decision or other practice.” 
Because this case does not fall under this amendment, it, too, 
has no impact on this case. Like Lorance, then, Ledbetter’s 
reasoning is fully applicable here.



14
ly neutral system to be challenged, and entitlements 
under it to be altered, many years after its adoption 
would disrupt those valid reliance interests that [the 
limitations period] was meant to protect.” Id. at 912.

In Morgan, the Court identified a category of con­
tinuing violations for Title VII claims. Such claims 
“will not be time barred so long as all acts which 
constitute the claim are part of the same unlawful 
employment practice and at least one act falls within 
the time period.” 536 U.S. at 122. But, as we men­
tion above, the Court effectively limited this doctrine 
to claims where the violation is not known until acts 
have been repeated over time, like a hostile work 
environment. Id. at 110-22.

Ledbetter is the latest in this line. The employee in 
Ledbetter filed an EEOC charge and a lawsuit chal­
lenging the denial of pay raises over 19 years based 
on performance evaluations she claimed were dis­
criminatory. 550 U.S. at 621-22. The Court held that 
the claim was “squarely foreclosed by our precedents” 
(id. at 625), discussing Evans, Ricks, Lorance, and 
Morgan (id. at 624-29). The Court reiterated that 
“ [a] new violation does not occur, and a new charging 
period does not commence, upon the occurrence of 
subsequent nondiscriminatory acts that entail ad­
verse effects resulting from the past discrimination.” 
Id. at 628. The claims of plaintiff, however, accrued 
only when she received a poor evaluation and no 
raise. Ibid. The Court duly noted that the prior 
evaluations had ongoing effects -  she received less 
each payday -  but the “intent associated with” those 
acts could not be shifted “to a later act that was 
not performed with bias or discriminatory motive,” 
because that would “impose liability in the absence of 
the requisite intent,” and would “effectively eliminate



the defining element of her disparate-treatment 
claim.” Id. at 629. The Court also recognized the 
importance of filing intentional discrimination claims 
quickly, because the “passage of time may seriously 
diminish the ability of the parties and the factfinder 
to reconstruct what actually happened.” Id. at 631.

From these cases, the Seventh Circuit concluded 
that petitioners’ claim accrued when the eligibility 
list was adopted and announced. That straightfor­
ward application of law to the specific facts of this 
case is unassailable. The court first identified “with 
care” (Ledbetter, 550 U.S. at 624) the unlawful 
employment practice claimed. Petitioners complained 
that the examination and decision to limit hiring to 
those “well qualified” had a disparate impact on 
African-Americans. Pet. App. 2a, 4a, 7a. The court 
determined when the injury occurred -  when peti­
tioners were placed in the “qualified” category, 
because that decision delayed their hiring “indefi­
nitely.” Id. at 9a. In turn, everything petitioners 
challenged was traceable to that single decision -  
made in early 1996 and not revisited before late 
2001 -  and that decision alone. From that, the court 
correctly determined that “only one wrongful act” 
occurred. Id. at 7a (quotation omitted). And under 
the Court’s cases, when a claim based on a discrete 
act accrues is clear: the claim here accrued when the 
decision was made and communicated, which was 
substantially more than 300 days before the EEOC 
filing.

The Seventh Circuit also correctly characterized 
each use of the list between May 1996 and November 
2001 as an “automatic consequence” of the exami­
nation and list, and not its own “fresh act of dis­
crimination.” Pet. App. 4a; see id. at 6a, 7a. Use of

15



the list reflected no adverse impact that the list itself 
did not have. The list was neutral on its face and 
was used in a neutral manner, for those in the “well 
qualified” category were called in random order. This 
Court has repeatedly stated that the neutral applica­
tion of a facially-neutral employment practice is not 
itself a discriminatory act and the inevitable conse­
quences of a past unlawful act are not themselves 
actionable. Moreover, as the Seventh Circuit aptly 
explained {id. at 4a-5a), if the practice here had been 
facially discriminatory, each application would have 
given rise to a new claim. But, in this disparate- 
impact challenge to the examination and list, once 
the testing was done and applicants were sorted into 
facially-neutral categories, there was no further 
unlawful action in using the list. Petitioners’ theory 
that subsequent uses of the list are themselves 
actionable discrimination improperly equates the 
present effects of a prior unlawful act with repeated 
illegal conduct. Nor was the City’s failure to stop 
using the list sooner a fresh violation. Like the 
present effects of prior discrimination, the failure to 
undo prior discrimination does not give rise to a new 
claim. Ledbetter, 550 U.S. at 634-36 n.5; Morgan, 536 
U.S. at 112-13. All told, there was only one, discrete 
act of discrimination here, albeit one with ongoing 
effects.

In addition, petitioners knew of their injury from 
the start, as the Seventh Circuit noted. Pet. App, la- 
3a, 11a. From around January 26, 1996, petitioners 
were aware they were not deemed “well qualified” 
and that this meant their hiring would at least be 
delayed. They received notice of this from the City, 
the Mayor’s news release, and media reports. Supp. 
R. 436, Aff. M5-8, Exs. 1-2. Petitioners reported 
their knowledge to the attorney they met with in

16



April 1996, and he knew right away they had a 
“possible” disparate-impact claim. R. 74, Ex. K ‘M l- 
2. As the Seventh Circuit therefore concluded, peti­
tioners’ delay in filing charges was inexcusable and 
“fatal.” Pet. App. 11a.

Petitioners’ contention that the Seventh Circuit’s 
decision “results in different claim-accrual rules for 
disparate treatment and disparate impact cases” 
(Pet. 26) is ironic and demonstrably incorrect. As the 
court noted, it was petitioners who urged a different 
accrual rule for disparate-impact claims. Pet. App. 
5a. The court rejected their invitation because it saw 
no basis in Title VII’s plain language for applying a 
different rule, especially since “disparate treatment” 
and “disparate impact” are simply methods of proving 
discrimination claims, not types of discriminatory 
acts in and of themselves. Id. at 5a-6a. In fact, 
as the court pointed out, it had already rejected a 
similar argument in Davidson v. Board o f Governors, 
920 F.2d 441 (7th Cir. 1990). Pet. App. 6a. That is 
because, while a discrimination claim ultimately may 
be proved under two theories -  disparate treatment 
and disparate impact (see 42 U.S.C. § 2000e-2(k); 
Griggs v. Duke Power Co., 401 U.S. 424, 429-31 
(1971)) -  as petitioners indicate (Pet. 26-27), a plain­
tiff may present the same facts under both theories. 
It would make no sense to apply different accrual 
rules to the same type of claim simply depending on 
how the plaintiff chooses to go about proving it. 
Moreover, if there should be a difference between 
these theories, the greater moral culpability of dispa­
rate treatment should prolong the accrual of those 
claims, not disparate-impact claims like petitioners’.

Regardless, there is no basis for creating such a 
distinction. Certainly nothing in Title VII indicates

17



that different accrual rules should apply. Relevant 
here, the language merely demands that a charge be 
filed within 300 days after the “unlawful employment 
practice occurred.” 42 U.S.C. § 2000e-5(e)(l). And, 
when Congress has disagreed with the Court’s read­
ing of Title VII’s accrual rules, it has taken prompt 
action to make that clear. As we note above, after 
Lorance and Ledbetter, Congress amended the 
statute to provide different rules. See 42 U.S.C. 
§§ 2000e-5(e)(2), 2000e-5(e)(3)(A). But, the general 
rule emerging from the Court’s cases for discrete acts 
applies here.

Petitioners also seek review on the basis that the 
decision below “threatens to undermine Congress’s 
broad remedial purpose in enacting Title VII” (Pet. 
23), because under Title VII’s “short” limitations 
period (id. at 10, 24), an unlawful employment prac­
tice may be “immunize[d]” (id. at 23, 24) “indefinitely” 
(id. at 10) and “permanently” (id. at 11). Those 
concerns are wholly unfounded here. The Seventh 
Circuit honored not only the statute’s terms but the 
equally important interest in repose. As it acknowl­
edged, Title VII purposefully provides a “short” time 
for filing an EEOC charge. Pet. App. 10a. As this 
Court is well aware, Title VII was the product of 
legislative compromises, which included the “short” 
filing period. Ledbetter, 550 U.S. at 629-30. Indeed, 
by “choosing what are obviously quite short dead­
lines, Congress clearly intended to encourage prompt 
processing of all charges of employment discrimina­
tion.” Morgan, 536 U.S. at 109 (quotation omitted). 
And, “strict adherence to the procedural require­
ments specified by the legislature is the best guaran­
tee of evenhanded administration of the law.” 
Ledbetter, 550 U.S. at 632.

18



This delicate balance should not be skewed. The 
limitations period both “guarantee[s] the protection of 
the civil rights laws to those who promptly assert 
their rights” and “protect [s] employers from the bur­
den of defending claims arising from employment 
decisions that are long past.” Ricks, 449 U.S. at 256- 
57. While Title VII’s remedial purpose should be 
realized when valid claims are diligently pursued, the 
statute reflects that “it is unjust to fail to put the 
adversary on notice to defend within a specific period 
of time and that the right to be free of stale claims in 
time comes to prevail over the right to prosecute 
them.” Ledbetter, 550 U.S. at 630 (quotation omit­
ted). See also Mohasco Corp. v. Silver, 447 U.S. 807, 
820 (1980) (“ [I]t seems clear that the [limitations] 
provision to some must have represented a judgment 
that most genuine claims of discrimination would be 
promptly asserted and that the costs associated with 
processing and defending stale or dormant claims 
outweigh the federal interest in guaranteeing a re­
medy to every victim of discrimination.”); Johnson v. 
Railway Express Agency, Inc., 421 U.S. 454, 463-64 
(1975) (“ [T]he length of the period allowed for insti­
tuting suit inevitably reflects a value judgment 
concerning the point at which the interests in favor of 
protecting valid claims are outweighed by the inter­
ests in prohibiting the prosecution of stale ones.”). 
For these reasons, once the limitations period passes 
with no EEOC charge, an employer is “entitled to 
treat [a] past act as lawful”; it becomes the “legal 
equivalent of a discriminatory act which occurred 
before [Title VII] was passed” and “merely an unfor­
tunate event in history which has no present legal 
consequences.” Evans, 431 U.S. at 558.

Interests in repose and reliance are equally impor­
tant in a disparate-impact case like this one. While

19



Ledbetter recognized that prompt filing of disparate- 
treatment claims helps protect evidence of intent 
(550 U.S. at 631), challenges to eligibility lists years 
after adoption and announcement present their own 
problems. They “expose employers to a virtually 
open-ended period of liability”; “create substantial 
uncertainty” about “important staffing decisions based 
upon the list”; and call “into question an organiza­
tional structure” in place for years, upsetting reliance 
interests. Cox v. City o f Memphis, 230 F.3d 199, 205 
(6th Cir. 2000) (quotation omitted). As this Court 
put it, “allowing a facially neutral” practice “to be 
challenged, and entitlements under it to be altered, 
many years after its adoption would disrupt those 
valid reliance interests that” the limitations period 
“was meant to protect.” Lorance, 490 U.S. at 912. 
With a theory that has no stopping point until the 
list is taken down, petitioners ignore the rights and 
expectations of others on the list. On petitioners’ 
view, vast numbers of potential plaintiffs -  6,000 in 
this case -  may stand idly by as eligibility lists are 
created and applicants are called from the list, and 
file charges years down the road. Adopting that view 
would upset reasonable reliance interests and impose 
back-pay liability on employers, despite Title VII’s 
intentionally brief filing period. Nor does the limita­
tions period forever “immunize” an employer (Pet. 24; 
see id. at 10, 11, 23), as petitioners fear. Eligibility 
lists are not used indefinitely, but only until the next 
examination is administered. And, while a list is up, 
any actual discrimination will give rise to another 
claim. Regardless, every petitioner here was well 
aware of a potential claim in the time to meet the 
limitations period. Petitioners’ inexplicable delay 
should not prejudice others.

20



Citing various authority, petitioners also contend 
that the question here is “important” because exami­
nation results are commonly used to make hiring 
decisions and disparate-impact suits are regularly 
filed. Pet. 10, 19-24. Even if that is so, there is no 
indication that plaintiffs in those cases, or in most 
cases for that matter, were unable to file EEOC 
charges on time. But petitioners here were late, 
filing no charge within 300 days of the list’s adoption 
and announcement, or even 300 days after the list’s 
first use. Thus, they lost the opportunity to avail 
themselves of Title VII’s protections.

At bottom, since there is no dispute what the rele­
vant case law is, petitioners seek to have this Court 
apply those precedents differently than the Seventh 
Circuit did. Of course, this Court’s review is not 
granted just to fix misapplications of law by the 
courts of appeals. Moreover, no error correction is 
needed here, for no error was made. The Seventh 
Circuit reached the correct result under the law and 
facts.

II. The Circuit Split On The Question Pre­
sented Is Shallow And Stale, And Will 
Likely Resolve Itself.

In the courts below, petitioners acknowledged no 
circuit split on the question presented (R. 74 at 4-9; 
Brief of Plaintiffs-Appellees 10, 30-35, No. 07-2052 
(7th Cir.)), a fact they only quietly note to this Court 
(Pet. 17 n.9). Petitioners now advance a position 
that debuted in their request for rehearing en banc 
(Plaintiffs-Appellees’ Petition for Rehearing En Banc 
2, 9, No. 07-2052 (7th Cir.)) -  that the division re­
quires further review. While, as petitioners state ad 
nauseam, the City and the courts below recognized 
the split, there are at least three reasons their

21



22

new-found acknowledgment does not support review. 
First, petitioners get the math wrong: the disunity in 
the courts of appeals is far shallower than they 
submit. Second, the split that does exist is stale and, 
at this point, tolerable. Third, while petitioners see 
“nothing to suggest” that the split “will resolve itself 
without this Court’s intervention” (Pet. 18), this 
ignores a wealth of this Court’s cases. With future 
opportunity, the circuits are likely to align. But, if 
the tension persists, the Court may step in later, once 
the lower courts have fully considered the issue in 
light of more recent precedents.

To begin, the split is thinner than petitioners 
claim. Their tally is five to three, with the Second, 
Fifth, Ninth, Eleventh, and D.C. Circuits on their 
side, and the Third, Sixth, and now Seventh on ours. 
Pet. 3, 11-18. They add that, although the City ac­
knowledged the split in the courts below, we failed to 
recognize its “full depth.” Id. at 12. Just the opposite 
is true. Not only did petitioners disavow the split 
below, but they overstate it now. Only the Second 
and Fifth Circuits side with petitioners, while the 
Third, Sixth, and now Seventh Circuits agree with 
us. The other cases petitioners rely on do not decide 
the specific question here.

Firmly aligned with the Seventh Circuit is the 
Third, as petitioners now admit. Pet. 16 & n.8. In 
Bronze Shields, Inc. v. New Jersey Department o f 
Civil Service, 667 F.2d 1074 (3d Cir. 1981), a police 
department administered a promotion examination, 
created an eligibility list based on the results, and 
announced its decision to use the list for three years. 
Id. at 1077. EEOC charges claiming disparate im­
pact were filed more than 300 days after the list was 
adopted and announced but before it was used. Id.



at 1078-80. Citing Evans and Ricks, the Third 
Circuit held that the claim accrued when the list was 
adopted; each use of the list was merely an effect of 
that, not a fresh violation. Id. at 1082-84. In so 
concluding (id. at 1083 & n.21), the court declined to 
follow any case decided before Evans and Ricks, 
including the Second Circuit’s decision in Guardians 
Association v. Civil Service Commission, 633 F.2d 232 
(2d Cir. 1980), which we discuss below. The court 
explained that the employer did not “continue! ] to 
discriminate against [plaintiffs] by its use of the 
eligibility roster,” adding that “even if [the employer] 
had used the list,” there was no suggestion that it 
“would have followed anything but a neutral, non- 
discriminatory procedure in hiring from the list,” as 
its “policy was simply to hire in order from the list.” 
667 F.2d at 1083. The “non-discriminatory policy as 
to the use of the roster is similar to” the policy in 
Ricks to discharge “all faculty denied tenure.” Id. at 
1084. The list’s use was ‘“a delayed, but inevitable 
consequence’ of the allegedly discriminatory employ­
ment procedure -  here a specific, identifiable act, the 
promulgation of the hiring roster.” Ibid, (quoting 
Ricks, 449 U.S. at 257-58). “It is unlike, therefore, a 
continuing practice!.]” Ibid. The Third Circuit re­
turned to the issue in Hood v. New Jersey Depart­
ment o f Civil Service, 680 F,2d 955 (3d Cir. 1982). 
There, a plaintiff claimed that an examination, and 
hiring and promotions lists based on the test scores, 
had disparate impact. Id. at 956. The court applied 
Bronze Shields to hold untimely an EEOC charge 
filed 300 days past the “list’s promulgation.” Id. at 
959. The claim accrued “ [a]t that time” because that 
is when plaintiff “knew that he would not be pro­
moted during the next three years.” Ibid.

23



24
Cox from the Sixth Circuit is the same. There, a 

police department gave an examination to determine 
promotions; created an eligibility list from the re­
sults; announced the list it planned to use for the 
next two years; and used the list twice. 230 F.3d at
201. Several women at the bottom of the list were 
not promoted and filed EEOC charges after the list’s 
second use. Ibid. The parties agreed that an unlaw­
ful employment practice “occurred” when the list was 
announced (id. at 202), but plaintiffs insisted their 
claim was timely because “each promotion from the 
eligibility list constituted a separate act of discrim­
ination” (id. at 201). The department countered that 
the claim was untimely because each use was merely 
“an effect of the original discriminatory act.” Id. at
202. Relying on Evans, Ricks, and Lorance, as well 
as the Third Circuit’s decisions in Bronze Shields and 
Hood, while rejecting the Second Circuit’s Guardians 
decision, the Sixth Circuit settled on the “better view” 
that “promotion or hiring from an allegedly tainted 
promotions roster is not a 'continuing act’ but is 
merely the effect of previous discrimination. It is at 
the point of promulgation of the roster that a poten­
tial plaintiff is aware that alleged discrimination is 
likely to play a pivotal role in her future advance­
ment.” Id. at 204. The “list was neutral on its face,” 
and promotions “operated in a neutral manner after 
the list was compiled”; “any discrimination” that 
occurred was “in the compilation of the list.” Ibid.

To be sure, the Second and Fifth Circuits track 
petitioners’ view that each use of an eligibility list 
created from an examination with disparate impact is 
a new unlawful practice for statute of limitations 
purposes. In Guardians, a police department cited 
Evans (the only one of this Court’s relevant cases 
then decided) to argue that the “'operative’ event”



was the “promulgation of the eligibility lists reflect­
ing the applicants’ scores on the challenged exams,” 
because the lists “determined the order in which 
all appointments were made”; uses of the list were 
“merely the non-actionable perpetuation of the effects 
of past, non-actionable discrimination.” 633 F.2d at 
248-49. The Second Circuit disagreed, stating that 
by repeatedly using the “tainted test results,” defen­
dants “continued a course of discriminatory conduct 
th at. . . did not cease until defendants abandoned the 
practice of making hiring decisions in this manner.” 
Id. at 249. A year later, despite the intervening 
decision in Ricks, the Second Circuit followed Guar­
dians in Association Against Discrimination in Em­
ployment, Inc. v. City o f Bridgeport, 647 F.2d 256, 
274-75 (2d Cir. 1981).

The Fifth Circuit has joined this approach. In 
Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 
241 (5th Cir. 1980), the employer used examinations 
to make promotions and plaintiff was not promoted 
based on his test scores. Id. at 243-44. The district 
court found his EEOC charge was untimely, but, 
offering virtually no analysis, the Fifth Circuit re­
versed and remanded for a determination whether 
the employer “continued to base its selection of em­
ployees to receive job opportunities upon scores from 
an unvalidated battery of tests.” Id. at 249. If so, the 
court said, the violation would be viewed as “continu­
ing,” rendering his claim timely. Ibid.

Like the Second Circuit’s decision in Guardians, 
Gonzalez precedes all but Evans. While City of 
Bridgeport post-dates Ricks, the Second and Fifth 
Circuit decisions plainly do not reflect the full line of 
this Court’s precedents, as the decisions of the Sixth 
and Seventh Circuits do. And, while the Second and

25



Fifth Circuits are in tension with the Third, Sixth, 
and Seventh, the conflict first appeared 30 years ago. 
There is no reason to address it now, especially when 
the trend in the Sixth and Seventh Circuits, not to 
mention the numerous decisions of this Court, may 
cause the Second and Fifth Circuits to reevaluate 
their position. While petitioners contend that the 
circuit split “will [not] resolve itself without this 
Court’s intervention” (Pet. 18), they do not explain 
this and there is no reason to think it is correct.

In fact, petitioners mistakenly rely on the more 
recent Second Circuit decisions in Van Zant u. KLM 
Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996); 
Harris v. City o f New York, 186 F.3d 243 (2d Cir. 
1999); and Connolly v. McCall, 254 F.3d 36 (2d Cir. 
2001). Pet. 18 n.10. For starters, Van Zant con­
cerned a hostile work environment claim, where it 
was more settled that the continuing violation doc­
trine applied. Van Zant did not involve an eligibility 
list with disparate impact, so the court’s inclusion of 
“the use of discriminatory seniority lists or employ­
ment tests” (80 F.3d at 713) in the category of 
continuing violations is dicta (see Cox, 230 F.3d at 
204). As such, Van Zant presented no occasion for 
the Second Circuit to reassess its position on the 
issue here.

More significantly, Harris and Connolly reveal that 
the Second Circuit may be aligning with the Sixth 
and Seventh Circuits. In Harris, an employee was 
denied a promotion based on an eligibility list, and 
the court concluded that, as petitioners note (Pet. 18 
n.10), one of the claims was timely because the em­
ployer had “engaged in a continuing violation by not 
promoting him” while the list was up (186 F.3d at 
248). What petitioners fail to mention is that,

26



regarding another claim, the court said that the 
continuing violation doctrine “does not apply when a 
plaintiff challenges a facially neutral policy” and 
“offers no evidence that the policy has a discrimina­
tory motive.” Id. at 249 (citation omitted). “Instead, 
to advance a continuing violation claim a plaintiff 
must point to his disparate treatment stemming from 
a continuous practice of intentional discrimination” 
(ibid.), and “a continuing violation cannot be estab­
lished merely because the claimant continues to feel 
the effects of a time-barred discriminatory act” (id. at 
250).

Like Van Zant, Connolly did not involve disparate 
impact of an examination and eligibility list. Rather, 
it concerned a constitutional challenge to a statute 
that suspended pension benefits for any retired gov­
ernment worker who took another government job, 
unless a waiver was obtained every two years. 254 
F.3d at 39-41. Defendants argued the claim was 
untimely because it accrued when plaintiff took the 
second job; but the Second Circuit held it was timely 
because a claim accrued each time he applied for a 
waiver. Id. at 41-42. While the court analogized the 
case to Guardians, as the “repeated application of a 
discriminatory policy” (id. at 41), in fact, the policy 
in Connolly was facially discriminatory, while in 
Guardians, and here, the practice was facially 
neutral. As such, despite the reference to Guardians, 
Connolly may be read as correct under Bazemore, and 
the Seventh Circuit recognized that rule under such 
facts. Pet. App. 4a-5a.

Moreover, the Second Circuit may soon be poised to 
reconsider its position. A few months ago, a district 
court in the Second Circuit issued a decision in a case 
presenting a Title VII claim regarding an examina­

27



tion and a hiring eligibility list with disparate impact 
on African-Americans. United States v. New York, 
No. 07-2067, 2009 WL 212154, at *1-2 (E.D.N.Y. Jan. 
28, 2009). New York sought summary judgment, 
arguing this claim was untimely because no EEOC 
charge was filed within 300 days after applicants 
were informed of the test results. Id. at *2. Plaintiffs 
countered that a charge could be filed up until 300 
days after the “last date on which the [cjity used the 
eligibility lists to hire new firefighters.” Ibid. Based 
on circuit precedent, it denied the city’s motion. Id. 
at *3-7. In doing so, the court wrote: “Underlying 
this dispute about the proper accrual date for the 
charge filing period is the parties’ disagreement 
about the effect of the Supreme Court’s decision in 
Ledbetter” on prior Second Circuit cases. Id. at *3. 
“At issue is whether Guardians and City o f Bridgeport 
survive recent Supreme Court rulings” in Ledbetter 
and Morgan. Id. at *4. The court concluded that the 
Second Circuit’s decisions were not “overruled by 
recent Supreme Court precedent,” adding that it was 
“aware of the [c] ity’s position that recent Title VII 
precedent may have eroded the basis for those thirty- 
year-old decisions. The court is also aware that other 
circuits have reached a different conclusion about 
whe[n] employment practices similar to the one here” 
accrue, citing the Seventh Circuit’s decision in this 
case and the Sixth Circuit’s Cox decision. Id. at *7.

In short order, then, the Second Circuit may have 
the opportunity to squarely reassess Guardians and 
City o f Bridgeport. And, given that court’s more 
nuanced decisions in Harris and Connolly, it may 
well reach a different result, bringing the law of that 
circuit in line with the Sixth and Seventh. If it does 
not, then it is quite possible that this Court will be 
presented again with this question. If so, the issue

28



will have benefitted from further percolation based 
on more recent precedents. Indeed, if the Second 
Circuit maintains its position, that decision will 
merit review for the additional reason that it will be 
incorrect. Similarly, since there is little fanfare in 
Gonzalez, the Fifth Circuit may take advantage of 
another case at least to explain its analysis more 
thoroughly. And, if that opportunity arises, the Fifth 
Circuit may reach a different result, especially if the 
Second Circuit has modernized its position by then.

Petitioners attempt to expand the split with Ele­
venth and D.C. Circuit cases, but even they recognize 
that the precise issue in those cases was “adoption 
and repeated application of employment benefit 
policies.” Pet. 14. In other words, they did not in­
volve an examination and eligibility list with dispa­
rate impact. For this reason alone, Beavers v. 
American Cast Iron Pipe Co., 975 F.2d 792 (11th Cir. 
1992), and Anderson v. Zubieta, 180 F.3d 329 (D.C. 
Cir. 1999), do not directly conflict with the decision 
below. Beyond that, if the issue were the same, the 
Eleventh Circuit was bound to follow the Fifth Cir­
cuit’s decision in Gonzalez (975 F.2d at 796 & n.2), 
and so, Beavers hardly counts in the split. Finally, 
the Seventh Circuit addressed Beavers and accommo­
dated its holding (while questioning whether it was 
even correct). Pet. App. 5a.4

29

4 B ea v ers  involved a disparate-impact challenge to an em­
ployer’s “policy of denying medical and dental insurance cover­
age to the children” of employees “if those children [did] not 
reside full time with their employee-parent.” 975 F.2d at 794. 
Plaintiffs sued long after the policy was adopted but within 180 
days (the applicable limitations period) of the denial of their 
claims for dependent coverage. Id . at 794-96. The court held 
the claims timely because the denial was pursuant to the policy,



As for Anderson, it involved allegations that the 
employer paid employees differently based on race. 
180 F.3d at 332. The D.C. Circuit, citing Bazemore, 
concluded that the employer was presently paying 
similarly-situated employees differently, and thus a 
new violation occurred with every paycheck, rejecting 
the employer’s argument under Evans, Ricks, and 
Lorance. Id. at 335-36. But, after Morgan, the court 
decided Law v. Continental Airlines Corp., 399 F.3d 
330 (D.C. Cir. 2005). There, pilots allegedly were not 
promoted due to age discrimination, and this time, 
the court relied on Evans, Ricks, and Lorance, and 
distinguished Bazemore and Anderson. Id. at 332-34. 
Like the Seventh Circuit, the D.C. Circuit held that 
while a facially-discriminatory policy may be chal­
lenged any time, the same is not so for a facially- 
neutral policy, where plaintiff “offered no evidence 
of discriminatory purpose other than (at most) the 
discrete time-barred decision.” Id. at 333-34. “To 
decide otherwise would completely undo” Morgan and 
Lorance. Id. at 334. So, while neither Anderson nor 
Law concerns examinations and eligibility lists, to 
the extent they bear on the issue here, Law signals 
that the D.C. Circuit would join the Third, Sixth, and 
Seventh, not the Second and Fifth.

Finally, petitioners submit that the Ninth Circuit’s 
decision in Bouman v. Block, 940 F.2d 1211 (9th Cir. 
1991), deepens the conflict. Pet. 12-13. It does not. 
Bouman at least involved a Title VII challenge to an 
examination and list used for promotions. 940 F.2d 
at 1217-18. As here, the employer argued that the 
EEOC charge was untimely because it was not filed 
within the applicable limitations period after the

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and thus was part of a continuing violation. Id . at 796-800. 
This p re -M o rg a n  decision is incorrect.



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list’s promulgation. Id. at 1221. The Ninth Circuit 
disagreed, distinguishing Bronze Shields on the basis 
that the claim did not accrue until the list expired 
because not until then was it certain she would not 
be promoted. Ibid. As the Seventh Circuit indicated 
(Pet. App. 6a-7a), the Ninth Circuit’s approach has 
been resoundingly rejected, including by this Court 
(see Lorance, 490 U.S. at 907 n.3; Chardon, 454 U.S. 
at 8; Ricks, 449 U.S. at 260-61; Electrical Workers v. 
Robbins & Myers, Inc., 429 U.S. 229, 234 (1976); see 
also Cox, 230 F.3d at 205; Kennedy v. Chemical Waste 
Management, Inc., 79 F.3d 49, 50 (7th Cir. 1996)). 
Indeed, the possibility of being promoted down the 
road does not mean no injury occurred upon the list’s 
adoption. The delay in being promoted, with its 
attendant loss of pay and seniority, is itself an injury. 
It is of no matter, then, that the Ninth Circuit again 
relied on this mistaken premise in a recent unpub­
lished decision, as petitioners indicate. Pet. 18.

Moreover, in Hulteen v. AT&T Corp., 498 F.3d 
1001 (9th Cir. 2007), on which this Court granted 
certiorari and recently heard oral argument (see 
AT&T Corp. v. Hulteen, No. 07-543), the Ninth Cir­
cuit noted that Pallas v. Pacific Bell, 940 F.2d 1324 
(9th Cir. 1991), decided a month after Bouman, “dis­
tinguished facially neutral from facially discrimi­
natory” practices (Hulteen, 498 F.3d at 1010 n.7). 
According to Pallas, Evans, Lorance, and Bazemore 
stand for the proposition that disparate impact “re­
sulting from a bona tide seniority system that is 
facially neutral must be challenged within the sta­
tute of limitations from the time the system is 
adopted; with a facially neutral system, the discri­
minatory act occurs at the time of adoption and 
subsequent applications do not constitute continuing 
violations.” 940 F.2d at 1326. For what it is worth, it



seems that, if the Ninth Circuit faced the issue here 
again, it would join the Seventh Circuit as well.

In the end, given this Court’s recent decision in 
Ledbetter, along with the Seventh Circuit’s decision 
here and the Sixth Circuit’s decision in Cox eight 
years ago, there is no reason to be concerned about 
decisions in the Second and Fifth Circuits, which 
have not been reevaluated in 30 years. As we explain 
above, only Evans was decided before Guardians and 
Gonzalez, so those cases did not take account of Ricks, 
Chardon, Bazemore, Lorance, Morgan, or Ledbetter, 
let alone current circuit decisions. At this point, this 
shallow and stale conflict provides no basis for 
review.

CONCLUSION

The petition should be denied.

Respectfully submitted,

Mara S. Georges 
Corporation Counsel 

of the City of Chicago 
Benna Ruth Solomon 
Deputy Corporation Counsel 
Myriam Zreczny Kasper 
Chief Assistant

Corporation Counsel 
Nadine Jean Wichern * 
Assistant Corporation Counsel 
30 N. LaSalle Street, Suite 800 
Chicago, Illinois 60602 
(312) 744-0468

* Counsel of Record Attorneys for Respondent 
April 10, 2009

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