City of Hartford v. Town of Glastonbury Supplemental Brief of Plaintiffs-Appellees on Rehearing En Banc

    No. 08-974

In The

Supreme Court of tfje Untteb States?

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

William R. Muzzall; Philippe H. V ictor; 
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.

City of Chicago,
Respondent.

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

for the Seventh Circuit

SUPPLEMENTAL 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  W ichern  * 
Assistant Corporation Counsel 
30 N. LaSalle Street, Suite 800 
Chicago, Illinois 60602 
(312) 744-0468

* Counsel of Record Attorneys for Respondent

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



TABLE OF CONTENTS
Page

TABLE OF CONTENTS...............................    i
TABLE OF AUTHORITIES.................................  ii
ARGUMENT...........................................................  1
CONCLUSION.... ..................................................  12

( i )



11

TABLE OF AUTHORITIES 
CASES Page

Anderson u. Zubieta,
180 F.3d 329 (D.C. Cir. 1999)....................... 4

Bazemore v. Friday,
478 U.S. 385 (1986)........................................ 3, 4

Beavers v. American Cast Iron Pipe Co.,
975 F.2d 792 (11th Cir. 1992)......................  4

Bouman v. Block,
940 F.2d 1211 (9th Cir.), cert, denied, 502 
U.S. 1005 (1991) ............................................  4

Bronze Shields, Inc. v. New Jersey Department 
o f Civil Service,

667 F.2d 1074 (3d Cir. 1981), cert, denied,
458 U.S. 1122 (1982)...................................... 2, 3

Chardon v. Fernandez,
454 U.S. 6 (1981)............................................  3,11

Cox v. City o f Memphis,
230 F.3d 199 (6th Cir. 2000)......................... 3

Delaware State College v. Ricks,
449 U.S. 250 (1980)....................................... passim

Gonzalez v. Firestone Tire & Rubber Co.,
610 F.2d 241 (5th Cir. 1980)......................... 3, 5

Guardians Association v. Civil Service 
Commission,

633 F.2d 232 (2d Cir. 1980), cert, denied,
463 U.S. 1228 (1983)...................................... 2, 3

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



I l l

TABLE OF AUTHORITIES—Continued
Page

Lorance u. AT&T Technologies, Inc.,
490 U.S. 900 (1989).................................. 3, 6, 9, 11

National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002)........................................ 3

Ricci v. DeStefano,
129 S. Ct. 2658 (2009)....... ...........................  7

United Air Lines, Inc. v. Evans,
431 U.S. 553 (1977)........................................ 3 ,5 ,6

United States v. New York,
No. 07-2067, 2009 WL 212154 (E.D.N.Y.
Jan. 28, 2009)..........................    5

Wallace v. Kato,
549 U.S. 384 (2007)...................... ....... . 7

STATUTES
42 U.S.C. § 2000e-2(a)(2)...............................  8
42 U.S.C. § 2000e-2(k)(l)(A)(i).....................  8
42 U.S.C. § 2000e-5(e)(l)...........................   6



In The

Supreme Court of tfje Untteb States

No. 08-974

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

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.

City of Chicago,
Respondent.

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

for the Seventh Circuit

SUPPLEMENTAL BRIEF FOR 
RESPONDENT IN OPPOSITION

ARGUMENT
The Solicitor General’s submission that review 

should be granted disregards three crucial points. 
First, the circuit split on which petitioners and the



2

Solicitor General rely is unusually stale, and the 
issue very rarely arises. Br. in Opp. 21-32. Second, 
the circuits with old decisions in conflict with the 
decision below will have the opportunity, in any 
future cases, to consult the Court’s consistent and 
recent guidance on the issue and harmonize 
themselves with the majority and modern view; 
potential plaintiffs, too, are on notice to calculate 
their EEOC-filing date under the more recent 
decisions. Id. at 25-31. Third, although the Solicitor 
General urges a different accrual rule in disparate- 
impact cases, the rule that a fresh violation must 
occur to trigger a new claim has nothing to do with 
the plaintiffs method of proof. Certainly, the limi­
tations period for disparate-impact claims should not 
be longer than for disparate-treatment claims. Id. at 
17-21. Further review is not needed just so this 
Court can again reaffirm that a new statutory wrong 
-  not the present consequences of a past wrong — is 
necessary to start a new limitations period under 
Title VII.

1. The conflict on the question here -  whether a 
disparate-impact claim based on a facially race- 
neutral examination and eligibility list created from 
the examination results accrues only when the list is 
adopted and announced, or also again thereafter, 
each time there is hiring from the same list -  is 
extraordinarily stale. It surfaced almost 30 years 
ago, in 1981, when the Third Circuit in Bronze 
Shields, Inc. v. New Jersey Department o f Civil 
Service, 667 F.2d 1074 (3d Cir. 1981), cert, denied, 
458 U.S. 1122 (1982), declined to follow the Second 
Circuit’s 1980 decision in Guardians Association v. 
Civil Service Commission, 633 F.2d 232 (2d Cir. 
1980), cert, denied, 463 U.S. 1228 (1983). Tellingly,



even at that time, this Court denied certiorari in both 
Bronze Shields and Guardians.

Nothing since then supports a different result here. 
While the Solicitor General asserts that the issue is 
“recurring” (SG Br. 19), in fact it rarely arises. In 
nearly three decades, only five cases have decided the 
precise issue. Three of the cases -  Gonzalez v. 
Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir. 
1980), Bronze Shields, and Guardians — were decided 
in 1980 and 1981. After that, the issue did not 
emerge again for 19 years, in Cox v. City o f Memphis, 
230 F.3d 199 (6th Cir. 2000), and then not for most of 
another decade, until the 2008 decision below.

Of those five cases, the two under which petitioners 
would prevail are the oldest, decided after United Air 
Lines, Inc. v. Evans, 431 U.S. 553 (1977), but before 
the other six relevant decisions from this Court. 
Since 1980, no circuit has accepted the position of 
petitioners and the Solicitor General. That is 
unsurprising, for the Court in the intervening years 
has repeatedly rejected all attempts by late-filing 
plaintiffs to date accrual not from when a statutory 
wrong occurred, but from when the consequences of a 
prior discriminatory practice were felt. See Ledbetter 
v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007); 
National Railroad Passenger Corp. v. Morgan, 536 
U.S. 101 (2002); Lorance v. AT&T Technologies, Inc., 
490 U.S. 900 (1989); Chardon v. Fernandez, 454 U.S. 
6 (1981) (per curiam); Delaware State College v. 
Ricks, 449 U.S. 250 (1980). See also Bazemore v. 
Friday, 478 U.S. 385 (1986) (discriminatory pay 
pursuant to facially discriminatory pay structure 
is current violation each time check is issued, 
not merely carrying forward of a past act of 
discrimination).

3



The Solicitor General contends the decision below 
also conflicts with Bouman v. Block, 940 F.2d 1211 
(9th Cir.), cert, denied, 502 U.S. 1005 (1991). SG Br. 
16-17 & n.3.1 There, the court ruled that a claim 
directed to an eligibility list did not accrue until the 
list was taken down. See 940 F.2d at 1221. The 
court did not decide the issue here -  whether each 
use of the list is a fresh violation. Moreover, the 
Solicitor General does not address the Ninth Circuit’s 
decisions moving away from Bouman. Br. in Opp. 31- 
32. This Court also denied review in Bouman, when 
the conflict arguably had greater currency. Bouman 
thus provides no basis for further review.

2. The Solicitor General summarily states there is 
“little reason” to think the circuits will align without

4

1 The Solicitor General rightly does not endorse petitioners’ 
view that the decision below conflicts with Anderson v. Zubieta, 
180 F.3d 329 (D.C. Cir. 1999), and Beavers v. American Cast 
Iron Pipe Co., 975 F.2d 792 (11th Cir. 1992), recognizing that 
those cases arose “in other contexts.” SG Br. 17. As we explain 
(Br. in Opp. 30), Anderson involved a policy of pay and benefits 
discrimination based on race for which the limitations period 
ran anew with each paycheck or benefits decision. See 
Ledbetter, 550 U.S. at 633-47 (explaining Bazemore). Beavers 
involved a policy of denying health coverage to dependents who 
did not reside full time with the employee, which was also, at 
least arguably (Pet. App. 5a), a facially discriminatory policy 
(Br. in Opp. 29 & n.4). Application of an employment policy to 
both current and future employees, as in those cases, is far 
different from maintenance of an eligibility list. While new 
employees are hired (or their positions change), and they 
become subject to an employment policy on an ongoing basis, an 
eligibility list applies to everyone to whom it will ever apply at 
the outset; no one is newly affected only after the filing period 
has passed. Whatever the correct approach in cases like 
Anderson and Beavers, those cases do not bear on whether to 
grant review in this case.



this Court’s immediate intervention, and that there 
has been “no relevant change in the law” since the 
1980 Second and Fifth Circuit decisions. SG Br. 19. 
But after those decisions, the Court elaborated on 
Evans, and from Ricks to Ledbetter just two Terms 
ago, has developed a consistent body of case law 
governing the Title VII limitations period. For that 
reason, the more current decisions of the Third, 
Sixth, and Seventh Circuits, which have had the 
benefit of that entire line of cases, have been in 
harmony. If future cases arise, the Second and Fifth 
Circuits would also have the benefit of the interven­
ing decisions of this Court and other circuits, and 
would likely reverse their earlier, incorrect positions.

The Solicitor General ignores that this process may 
already be underway. The district court in United 
States v. New York, No. 07-2067, 2009 WL 212154 
(E.D.N.Y. Jan. 28, 2009), rejected a limitations 
defense. That issue may soon make its way to the 
Second Circuit, which could will surely evaluate 
Guardians against more modern decisions. Br. in 
Opp. 27-29. The Fifth Circuit never offered any 
analysis supporting its disposition. Id. at 25-26, 28- 
29. If the issue arose there again, the same wealth of 
well-reasoned, consistent decisions would reveal the 
1980 ruling should not survive.

Morever, if (at worst) the early circuit decisions 
create some “uncertainty” (SG Br. 19) about the 
limitations period in a case like this, the three later 
decisions unquestionably alert a careful plaintiff that 
he should file an EEOC charge within 180 or 300 
days of notice that he has been injured by an 
eligibility examination and list. As petitioners 
admitted, they knew of their injury from the start 
and could have filed sooner, but did not think they

5



6

had to. Pet. App. 11a. Until the conflict resolves 
itself, prudent plaintiffs even in the Second and Fifth 
Circuits would likely file on time, since the rule there 
is old, in the minority, and out of touch with this 
Court’s consistent line of cases.

The paucity of cases involving the issue here, the 
consistent case law from both this Court and the 
three later circuits, and the ability of plaintiffs to 
protect themselves, avoid the Solicitor General’s 
concern that denying review would “undermin[e] the 
uniform application of federal employment discrimina­
tion law.” SG Br. 19. That concern, moreover, rings 
hollow when the law has not been uniform since 1981 
-  except that every case decided since then has 
uniformly rejected arguments like those petitioners 
and the Solicitor General advance here.

3. On the merits, this Court, from Evans to Ledbet­
ter, has made clear that Title VII claims accrue when 
the unlawful act occurs, and that a new statutory 
wrong -  not merely the present consequences of a 
prior act -  is needed to trigger a new claim. The 
plaintiff must file a charge (in States with 
enforcement agencies) within 300 days of when the 
unlawful employment practice occurred. See 42 
U.S.C. § 2000e-5(e)(l). As the Solicitor General 
agrees (SG Br. 13), petitioners were injured when 
they were informed that the City would hire from a 
group that did not include them. That “impact 
[was] felt” (Lorance, 490 U.S. at 908) from the outset. 
That started the limitations period. Petitioners’ 
ineligibility to be hired when the City subsequently 
called candidates from the list was merely the 
“delayed, but inevitable, consequence o f ’ (Ricks, 449 
U.S. at 257-58) their not being on the eligibility list — 
an “adverse effect [ ] resulting from the past discrimi­



nation” (Ledbetter, 550 U.S. at 628). It was not a 
fresh statutory wrong; by using the list, the City 
committed no further act of discrimination (in treat­
ment or in impact), and petitioners suffered no 
additional injury. If anything, petitioners stood a 
greater chance of being hired as the “well qualified” 
pool was exhausted, and ultimately the City did call 
applicants from the “qualified” pool.2 Thus, the later 
rounds of hiring did not start the limitations clock 
anew. Pet. App. 4a, 6a-7a. Further review to once 
again reaffirm these governing principles is 
unwarranted.

a. The Solicitor General adds that disparate-impact 
claims have a different, and more liberal filing period 
than disparate-treatment claims because “the 
defining element of a disparate-impact claim is the 
effect of an employment practice on members of a 
protected group, rather than the employer’s intent in 
adopting the practice.” SG Br. 12. But even in 
disparate-treatment cases, an employer’s intent alone 
will not support a claim. Rather, in both types of 
cases, the claim accrues when the employer engages 
in an employment practice that discriminates -  
whether in treatment or in impact. In neither case 
may the plaintiff wait for additional consequences of 
the practice to be felt before filing a claim. Indeed, 
disparate treatment and disparate impact are merely

7

2
That does not mean accrual is postponed to see whether the 

employer eventually “hire[s] from among the ranks of those 
adversely affected by the examination.” SG Br. 15. Issues of 
damages calculation do not delay accrual. See, e.g., Wallace v. 
Kato, 549 U.S. 384, 390-91 (2007). As for the possibility the 
employer may never “use the results to select employees for hire 
or promotion” (SG Br. 15), Ricci v. DeStefano, 129 S. Ct. 2658 
(2009), sharply limits this option.



alternative methods of proving a Title VII claim, and 
plaintiffs may pursue both claims. It would “creat[e] 
uncertainty” (SG Br. 19) if  the two claims accrued at 
different times. And it would be perverse to extend 
the filing period for disparate-impact claims, where 
the proof “involves the use of circumstantial evidence 
to create an inference of discrimination” (Pet. App. 
5a), while continuing to enforce the tighter deadline 
for disparate-treatment claims, for which there is 
direct evidence of discrimination.

b. The Solicitor General further contends that the 
statutory text forbidding an employer “to limit, 
segregate, or classify . . . applicants for employment 
in any way which would deprive or tend to deprive 
any individual of employment opportunities . . . 
because of such individual’s race . . .” supports 
extending the limitations period. SG Br. 7-8 (citing 
42 U.S.C. § 2000e-2(a)(2)). Here, the City’s eligibility 
list was the limitation or classification. Use of the 
list to call “well qualified” candidates in random 
order for further processing did not segregate or 
classify anyone, nor limit employment opportunities, 
based on race. The burden of proof in disparate- 
impact cases (id. at 7) does not fill this hole. That 
provision allows a plaintiff to prevail if, among other 
things, “a respondent uses a particular employment 
practice that causes a disparate impact on the basis 
of race.” 42 U.S.C. § 2000e-2(k)(l)(A)(i). Petitioners 
here demonstrated that use of the test results to 
create the eligibility list was such a practice but not 
that the subsequent random calling of applicants on 
the list had any further disparate impact.

c. The Solicitor General variously characterizes 
the Seventh Circuit as having held that “an em­
ployer’s use of an invalid employment examination

8



accrues only when the examination is scored and the 
results announced” (SG Br. 7); that the analysis is 
“altered by [the City’s] practice of preceding the 
hiring decisions by sorting test-takers into groups of 
‘qualified’ and ‘well qualified’ applicants” (id. at 13); 
and that an employer is “immunized from liability 
merely because” it takes that “intermediate step” 
(ibid.). These arguments describe neither the 
decision below nor our submission. Rather, as the 
court held, the City used an unlawful employment 
practice when it created a hiring eligibility list of 
“well qualified” applicants from a test with disparate 
impact, and gave notice to every applicant in the 
“qualified” pool, including petitioners, that this list 
would govern hiring over the next several years. 
That is when “the discriminatory act occur [red]” 
(Ledbetter, 550 U.S. at 621), and thus when 
petitioners’ claim accrued. There was no further 
“use” of the test “to hire” (SG Br. 7) after that.

In addition, to the extent the Solicitor General uses 
“immunity” to describe the statute of limitations, the 
assertion that the City was “not immunized” by the 
“intermediate step” of classifying applicants cannot 
be squared with this Court’s cases. (SG Br. 13) 
Where the “intermediate step” is the actionable 
wrong, and the belated claim merely another 
challenge to that “raw resul[t]” (ibid.), the employer 
certainly is “immunized” — or, more properly, the 
claim is time barred. For example, the college in 
Ricks was “immunized” by the “intermediate step” of 
denying the plaintiff tenure; the employer in Lorance 
by the “intermediate step” of adopting a 
discriminatory seniority system; and the employer in 
Ledbetter by the “intermediate step” of providing 
discriminatory evaluations. These claims, like 
petitioners’ here, were all untimely because, as this

9



Court has consistently ruled, the occurrence of 
predictable consequences of a prior discriminatory act 
does not restart the limitations period.3

d. The Solicitor General urges that the decision 
below would encourage “premature charges” that 
would “impos[e] substantial burdens on both the 
EEOC and the courts” (SG Br. 20), and “could un­
dermine enforcement of Title VII’s disparate-impact 
provisions” (id. at 19). The circuits first disagreed on 
this issue in 1981. The Solicitor General points to no 
adverse effects on the EEOC, or enforcement of Title 
VII, to date. Because the careful plaintiff pursues 
claims in a timely fashion, and as the Solicitor 
General urges, “candidates for employment or promo­
tion have little incentive to delay unreasonably in 
filing EEOC charges” (id. at 14), likely no such effects 
have occurred.

Ultimately, the Solicitor General’s arguments for a 
longer limitations period in disparate-impact cases, 
simply disagree with Congress’s clear policy choices. 
Congress obviously could have opted for a longer or 
more flexible limitations period, emphasizing the 
need for strict enforcement and compensation for 
all injuries. But, as this Court has repeatedly 
recognized, Congress made a purposeful judgment 
that a short limitations period would encourage 
victims of employment discrimination to file their 
claims quickly, allowing agencies (and, if necessary,

1 0

2
Petitioners’ problem is not that they challenge a practice “in 

some way connected to earlier violations.” SG Br. 11. It is, 
rather, the nature of the “connection.” Where the later event is 
the consequence of an earlier one, and no further act of 
discrimination has occurred, the later event is not actionable. 
Petitioners’ claim is untimely because no new statutory wrong 
was committed after the list was adopted and announced.



the courts) to resolve such claims promptly. This 
ensures that memories are clear; the harm is limited; 
and reliance interests of employers and other 
employees have not yet crystallized. Br. in Opp. 18- 
20. Even if “the passage of time . . . does n o t . . . raise 
the same concerns” as in disparate-treatment cases, 
the most that can be said is that evidence in 
disparate-impact cases may be “less likely to ‘fade 
quickly with time.’” SG Br. 14-15 (quoting Ledbetter, 
550 U.S. at 631). Still, the memories of those who 
made decisions concerning the examination and the 
eligibility list will fade, risking loss of that evidence 
over time. A short and firm filing period protects the 
interests in repose and reliance, which are especially 
important in cases involving eligibility lists, which 
can be used for several years.

More puzzling is the Solicitor General’s further 
submission that the decision below “encourages -  
indeed, requires -  plaintiffs to file lawsuits before 
they can be sure of the practical consequences of an 
employer’s administration of an unlawful selection 
device -  and may poison the workplace with anticipa­
tory litigation before facts have crystallized.” SG Br. 
15. Those concerns, again, ignore Congress’s choice 
of a short filing period, which necessarily pressures 
plaintiffs to file earlier. Beyond that, if anything 
should be clear from this Court’s cases (see, e.g., 
Lorance, 490 U.S. at 907 n.3; Chardon, 454 U.S. at 8; 
Ricks, 449 U.S. at 260-61), it is that a Title VII 
plaintiff cannot wait to be absolutely certain about 
the consequences of an employment action. Rather, 
the time to file runs from the unlawful act, even if 
that is before all the consequences are known with 
certainty or have taken effect.

1 1



12
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  W ichern  * 
Assistant Corporation Counsel 
30 N. LaSalle Street, Suite 800 
Chicago, Illinois 60602 
(312) 744-0468

* Counsel of Record Attorneys for Respondent 
September 2, 2009