555 F. App'x 37
2d Cir.
2014

Elsa GULINO, Mayling Ralph, Peter Wilds, Nia Greene, Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the NEW YORK CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, Defendant-Appellant.

No. 13-1001-cv.

United States Court of Appeals, Second Circuit.

Feb. 4, 2014.

555 F. App‘x 37

Mordecai Newman, Assistant Corporation Counsel (Leonard Koerner, Eamonn Foley, Benjamin Welikson, Larry A. Sonnenshein, on the brief), for Zachary Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellant.

Barbara D. Underwood, Sоlicitor General (Andrew W. Amend, Assistant Solicitor General; Steven C. Wu, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Amicus Curiae New York State Education Department in Support of Defendant-Appellant.

Joshua S. Sohn, DLA Piper LLP (US), New York, NY, (Rachel V. Stevens, Spencer Stiefel, DLA Piper LLP (US), Nеw York, NY; Anthony D. Gill, DLA Piper LLP (US), Washington, DC; Stephen G. Seliger, Joel Hellman, Chicago, IL; Baher Azmy, Darius Charney, Ghita Schwarz, Center for Constitutional Rights, New York, NY, on the brief), for Plaintiffs-Appellees.

Present: ROBERT A. KATZMANN, Chief Judge, RICHARD C. WESLEY and RAYMOND J. LOHIER, JR., Circuit Judges.

SUMMARY ORDER

Defendant-Appellant the Board of Education of the New York City School District of the City of New York (the “Board“) brings this interlocutory appeal under 28 U.S.C. § 1292(b) from a December 5, 2012 order of the United States District Court for the Southern District of New York (Wood, J.). Plaintiffs-Appellees Elsa Gulino, Mayling Ralph, Peter Wilds, and Nia Greene filed this suit in 1996 on behalf of themselves and all others similarly situated, alleging that the Board engaged in unlawful employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, by requiring public school teachers to pass certаin examinations in order to obtain or retain a permanent teaching position. Upon remand from a prior appeal to this Court, the district court (1) held that the Boаrd “can be subject to Title VII liability for its use of” the Liberal Arts and ‍​​‌​‌​​​‌‌​​​​‌​​​‌​‌​​‌​​‌​‌​​‌​​​‌‌​‌‌‌​‌‌​​​‌‍Sciences Test (“LAST“) and that the LAST violates Title VII‘s disparate impact provisions because it was not properly validated; (2) granted in part and denied in part the Board‘s motion to decertify the previously certified class in light of the Supreme Court‘s intervening decision in ; and (3) held that the defense to claims of disparate treatment under Title VII recognized in , does not apply to claims of disparate impact. .1 On appeal, the Board challenges each of these rulings. We presume the parties’ familiarity with the relevant facts, the procedural history of the case, and the issues presented for review.

We review a district court‘s interpretation of a federal statute de novo. See . In its first argument on appeal, the Board, joined by Amicus Curiae the New York State Education Department (“SED“), argues that the district court errеd in interpreting Title VII to permit an employer to be held liable for complying with a facially neutral state licensing requirement. This argument fails for multiple reasons.

To begin with, as the Board‘s counsel conceded at oral argument, the Board forfeited this argument by initially raising it before the district court—which rejected the argument—and then abandoning it in the first appeal to this Court. It is well settled that when a party forgoes the opportunity to challenge a lower court‘s decision in an initial appeal, the party is “deemed to have waived the right to challenge that decision at a later time,” including in any subsequent appeal. (quoting ).

In addition, although the Board failed to raise this argument in the first aрpeal, this Court addressed the issue nonetheless, noting that “the district court was correct in holding that the mandates of state law are no defense to Title VII liability.” . That decision is now the law of the case. Under the law of the case doctrine, “when a court has ruled on an ‍​​‌​‌​​​‌‌​​​​‌​​​‌​‌​​‌​​‌​‌​​‌​​​‌‌​‌‌‌​‌‌​​​‌‍issue, that decision should generally be adhered to by that court in subsequent stаges in the same case.” (quoting ).

To be sure, both issue forfeiture and the law of the case are flexible doctrines from which we may depart. “[T]his Court has discretion to decide the merits of a forfeited claim or defense ‘where the issue is purely legal and there is no need for additional fact-finding or where consideration of the issue is necessary to avoid manifest injustice.‘” (quoting ). Similarly, we “may depart from the law of the case and reconsider the issue for ‘cogent’ and ‘compelling’ reasons such as ‘an intervening chаnge of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.‘” (quoting ). But the Board points to no new evidence or any relevant intervening change in the law, and we see no injustice—let alone manifest injustice—in adhering to our prior decision, especially when neither the Board nor SED (which was a party to the prior appeal) have provided a justification for the failure to raise this issue at an earlier stage of this protrаcted case.

Nor was our ruling in Gulino IV clearly erroneous. To the contrary, it was commanded by controlling precedent. In , this Court confronted a disparate impact claim challenging a facially neutral employment practice of a municiрal employer. Like the Board here, the employer in Guardians argued that it could not be subject to liability under Title VII because the challenged practice was mandated by state law. We rejected that argument in no uncertain terms: “Nor can the City justify [its policy] by reliance on what it contends are the requirements of state law. Title VII explicitly relieves employers from any duty to observe a state hiring provision ‘which purports to require or permit’ any discriminatory employment practice.” (citation omitted) (quoting 42 U.S.C. § 2000e-7 (1976)). In our prior decisiоn, we cited ‍​​‌​‌​​​‌‌​​​​‌​​​‌​‌​​‌​​‌​‌​​‌​​​‌‌​‌‌‌​‌‌​​​‌‍and quoted this holding. See . The Board‘s argument, even if it had not been forfeited, is thus foreclosed.

We review the district court‘s ruling on the Board‘s motion to decertify the class for abuse of discretion. See . Rule 23 provides that a class action may be certified where the case meets all four requirements set forth in Rule 23(a) and one of the three requirements set forth in Rule 23(b). In addition, Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”

On remand, the district court decertified the original Rule 23(b)(2) class with respect to the plaintiffs’ claims for damages and individualized injunctive relief, but maintained thе class with respect to the plaintiffs’ claims for declaratory and class-wide injunctive relief. On appeal, the Board argues that the latter portion of the district сourt‘s decision was erroneous. According to the Board, notwithstanding the plain text of Rule 23(c)(4), the district court was not permitted under Rule 23(b)(2) to maintain the class with respect to some claims for relief and decertify it with respect to others. Instead, the Board contends, the district was required to “determine whether plaintiffs’ entire claim could satisfy thе predominance and superiority requirements of Rule 23(b)(3).” Appellant‘s Br. 32.

On August 29, 2013, however, after the Board filed its opening brief on this appeal, the district court issued an order сertifying a remedy-phase class under Rule 23(b)(3), and in doing so, considered the entirety of the plaintiffs’ claim. See . Accordingly, the Board hаs now obtained precisely the relief it seeks from this Court on appeal—a determination of whether the plaintiffs’ entire claim satisfies ‍​​‌​‌​​​‌‌​​​​‌​​​‌​‌​​‌​​‌​‌​​‌​​​‌‌​‌‌‌​‌‌​​​‌‍the predominance and superiority requirements of Rule 23(b)(3). The Board‘s challenge to the district court‘s decertification decision is accordingly moot. See . We note, however, that in light of Rule 23(c)(4)‘s рlain language and our decision in , the district court‘s decision to maintain partial certification under Rule 23(b)(2) appears to have been proper.

Finally, we reviеw the district court‘s denial of the Board‘s Ricci defense de novo. See . The Board argues that the district court erred in holding that the defense to claims of disparate treatment under Title VII recognized in Ricci is not a defense to claims of disparate impact. As the Board acknowledges, however, this argument is squarely foreclosed by our prior decision in , cert. denied, — U.S. —, 132 S.Ct. 2741, 183 L.Ed.2d 630 (2012).2

We have considered the Board‘s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the order of the district court is AFFIRMED.

Notes

1
To differentiate the several prior opinions in this case, we adopt the same numbers used by the district court in the opinion and order underlying this appeal.
2
In its reply brief, the Board also argues that the order under review should bе reversed on the ground that the Board‘s defense was hamstrung by the failure of SED and the private company ‍​​‌​‌​​​‌‌​​​​‌​​​‌​‌​​‌​​‌​‌​​‌​​​‌‌​‌‌‌​‌‌​​​‌‍that developed the LAST to adequately document the processes by which the test was developed. Because this argument was raised for the first time on reply, we will not consider it. See .
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