180 F.

3d 42,

William HAYDEN, et al., Plaintiffs-Appellees,

v.
COUNTY OF NASSAU, et al., Defendants-Appellees,
United States of America and Nassau County Guardians
Association, Defendants-Intervenors-Appellees.
No. 98-6113.

United States Court of Appeals,

Second Circuit.
Argued March 12, 1999.
Decided June 9, 1999.

Appeal from a district court decision which dismissed a class action suit
brought by 68 applicants to the Nassau County Police Department after
concluding that appellants failed to state a claim entitling them to relief by
asserting that a police officers' entrance exam designed to minimize the
discriminatory impact on minority candidates necessarily discriminated
against them. We hold that designing and administering a race-neutral
entrance examination with the purpose of eliminating or reducing the
differential effects suffered by minority candidates does not violate equal
protection, 703 of Title VII, or 106 and 107 of the Civil Rights Act of
1991. Affirmed.
Martin S. Kaufman, Atlantic Legal Foundation, Inc., New York, N.Y., for
Plaintiffs-Appellants.
Charles D. Cunningham, Snitow & Cunningham, LLP, New York, N.Y.
(William H. Pauley, III, on the brief), for Defendants-Appellees.
Linda F. Thome, United States Department of Justice, Washington, D.C.
(Dennis J. Dimsey, on the brief), for Intervenor-Defendant-Appellee
United States of America.
Robin L. Alperstein, Cravath, Swaine & Moore, New York, N.Y.
(Richard T. Seymour, Lawyers' Committee for Civil Rights Under Law,
Washington, D.C., Paul C. Saunders, Cravath, Swaine & Moore, New
York, N.Y., on the brief), for Intervenor-Defendant-Appellee Nassau

County Guardians Association.

Before: OAKES, WALKER and KEITH* , Circuit Judges.
KEITH, Circuit Judge:

William Hayden and 67 other white, Latino and female applicants to the
Nassau County Police Department challenge a district court order which
dismissed their class action suit pursuant to Fed.R.Civ.P. 12(b)(6) and 12(c).
The district court found that the police department's entrance examination,
although designed with race in mind (i.e., to minimize the discriminatory
impact on minority candidates), was administered and scored in a race-neutral
fashion. As such, the court concluded that appellants failed to state a claim
entitling them to relief under the Equal Protection Clause and various sections
of Title VII and the Civil Rights Act of 1991. Appellants dispute this ruling,
and urge that the entrance examination necessarily discriminates against them.
For the reasons set forth below, we affirm the district court's dismissal of the
class action suit.

I. BACKGROUND
A. Factual Background
2

In 1977, the U.S. Department of Justice ("DoJ") sued the County of Nassau, the
Nassau County Civil Service Commission, and the Nassau County Police
Department (collectively referred to as "Nassau County" or the "County") for
discriminating against black, Latino and female applicants in the hiring of its
police department. The case was settled in 1982 by entry of a consent decree, in
which Nassau County expressly denied that it discriminated against blacks,
Latinos or females. The County did, however, acknowledge that certain of its
selection criteria and personnel practices, and the substantial
underrepresentation of these groups in the Nassau County Police Department
might support an inference that discrimination had occurred.

To that end, the 1982 consent decree prohibited the County from engaging in
any further discrimination. Nassau County was also ordered to utilize entrance
exams which either had no discriminatory impact on minority applicants or had
been "validated"1 in accordance with Title VII and the Uniform Guidelines on
Employee Selection Procedures (the "Uniform Guidelines").2

In 1983 and again in 1987, Nassau County administered entrance exams which

had severe adverse impacts on black, Latino and female applicants. The DoJ
challenged the results of both tests. Those challenges culminated in two
additional consent decrees (collectively referred to as the "1990 consent
orders"). In the 1990 consent orders, the DoJ and Nassau County agreed to
work together to develop an examination which would eliminate, or at least
significantly reduce, the discriminatory impact on minority and female
candidates. As a result, the "Technical Design and Advisory Committee"
("TDAC") was formed, with experts appointed by both the DoJ and Nassau
County.
5

After years of work, the TDAC developed the 1994 Nassau County police
officers' examination, which was administered to over 25,000 applicants in July
and October of 1994. Appellants are 68 white and Latino applicants, male and
female, who sat for the 1994 exam.

After the exam was given to the applicants, the TDAC conducted an analysis
of whether the exam was "valid"3 and whether the exam had any adverse
impact on minority applicants.4 As part of its validity analysis, the TDAC
considered several different configurations, or test batteries, of the twenty-five
sections which had been administered to the applicants. TDAC's goal was to
find a test battery which was sufficiently valid, yet minimized the adverse
impact on minority applicants. Of the twenty-five sections administered to the
applicants, the TDAC Report recommended that Nassau County use nine
sections as the 1994 test. Notably, there was another configuration of the exam
which best minimized the adverse impact on minority applicants. That battery,
however, was not endorsed because it had a lower validity (i.e., job relatedness)
than all of the other configurations.

The DoJ and Nassau County independently reviewed the TDAC Report, and
jointly requested that the district court approve Nassau County's use of the
TDAC-recommended configuration. The district court granted their request,
authorizing the use of the 1994 exam.

B. Procedural Background
8

Appellants initiated a class action suit against Nassau County in April 1997,
challenging the use of the 1994 exam. Appellants brought their action pursuant
to the Fourteenth Amendment to the U.S. Constitution, Title VII of the Civil
Rights Law of 1964, the New York State Constitution, and several New York
state statutes.

The United States and the Nassau County Guardians Association (the

The United States and the Nassau County Guardians Association (the
"Guardians"), an association of black police officers, were permitted to
intervene in the suit as defendants. In December of 1997, the Nassau County
defendants and the United States filed a joint motion for dismissal pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. In that same month, the
Guardians moved for a judgment on the pleadings pursuant to Fed.R.Civ.P.
12(c).

10

On March 20, 1998, the district court entered a Memorandum of Decision and
Order dismissing all of appellants' claims for failure to state a claim upon which
relief may be granted.

11

Appellants filed a timely notice of appeal on April 24, 1998.

II. ANALYSIS
12

An appellate court reviews de novo a district court's dismissal of a complaint

for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). See Still v.
DeBuono, 101 F.3d 888, 891 (2d Cir.1996). In reviewing the district court's
dismissal, the appellate court must accept as true all allegations contained in the
complaint and must resolve all inferences in favor of the non-moving party. See
id. The complaint should be dismissed only if there is no doubt that the plaintiff
is unable to prove a set of facts which would entitle him to relief. See Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Still, 101
F.3d at 891.

13

Appellants contend that by deliberately designing an entrance exam which

would minimize the adverse impact on black candidates, Nassau County
necessarily discriminated against appellants. On that basis, appellants argue
that they have sufficiently stated claims for relief under the Equal Protection
Clause of the U.S. Constitution, Title VII, and 106 and 107 of the Civil
Rights Act of 1991. We, however, conclude that there is no doubt that
appellants have failed to allege facts which, if proven true, would entitle them
to relief. We discuss each claim in turn.

A. Equal Protection
14

To state a claim for an equal protection violation, appellants must allege that a
government actor intentionally discriminated against them on the basis of race,
national origin or gender. Such intentional discrimination can be demonstrated
in several ways. First, a law or policy is discriminatory on its face if it expressly
classifies persons on the basis of race or gender. See Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 213, 227-29, 115 S.Ct. 2097, 2105, 2112-14, 132
L.Ed.2d 158 (1995). In addition, a law which is facially neutral violates equal
protection if it is applied in a discriminatory fashion. See Yick Wo v. Hopkins,
118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed.2d 220 (1886). Lastly, a
facially neutral statute violates equal protection if it was motivated by
discriminatory animus and its application results in a discriminatory effect. See
Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S.
252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).
1. Absence of Facial Classification
15

The sole allegation set forth in appellants' complaint as to their Equal Protection
claim is that "[b]y designing, administering and scoring the Exam in a raceconscious way, with the intent of solely or primarily benefitting one racial
group to the detriment of other racial or ethnic groups, Defendants have
violated ... the equal protection of the law guaranteed by the Fourteenth
Amendment...." In the briefs submitted to this Court, appellants further argue
that this allegation should be construed as a facial classification which expressly
distinguishes between applicants on the basis of race. Appellants reason that
since Nassau County designed the 1994 exam with racial factors in mind (i.e.,
with the intent to diminish the adverse effects suffered by minority applicants),
Nassau County has expressly treated applicants differently because of their
race. Accordingly, they argue a strict scrutiny standard of review should be
applied.

16

We find this argument wholly without merit. A statute or policy utilizes a

"racial classification" when, on its face, it explicitly distinguishes between
people on the basis of some protected category. See, e.g., Loving v. Virginia,
388 U.S. 1, 11-12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (invalidating a
miscegenation statute which, on its face, prohibited interracial marriages);
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-84, 106 S.Ct. 1842, 185152, 90 L.Ed.2d 260 (1986) (invalidating a school board plan which expressly
utilized race-based preferences in teacher lay-offs); Adarand, 515 U.S. at 227,
115 S.Ct. at 2112-13 (concluding that a federal set-aside program which, on its
face, provided financial incentives to hire minority subcontractors would be
subject to strict scrutiny).

17

The district court concluded, and appropriately so, that appellants' allegations
do not support a claim that the 1994 exam was discriminatory on its face.
Nassau County's entrance exam did not differentiate between applicants on the
basis of race or gender. It is undisputed that the exam was administered and
scored in an identical fashion for all applicants. The exam was not scored

differently on the basis of a candidate's ethnicity or gender, nor were

differential cut-off points used for applicants of different races or sexes.
18

In fact, the only manner in which race was implicated is that Nassau County set
out to design an entrance exam which would diminish the adverse impact on
black applicants. This desire, in and of itself, however, does not constitute a
"racial classification." Since the exam was administered in a race-neutral
fashion which did not expressly distinguish between applicants on the basis of
race, Nassau County's intent, without anything more, does not implicate an
express, racial classification. Rather,

19 plaintiffs are mistaken in treating 'racial motive' as a synonym for a

the
constitutional violation. Every antidiscrimination statute aimed at racial
discrimination, and every enforcement measure taken under such a statute, reflect a
concern with race. That does not make such enactments or actions unlawful or
automatically 'suspect' under the Equal Protection Clause.... The term [racial
classification] normally refers to a governmental standard, preferentially favorable to
one race or another, for the distribution of benefits.
20

Raso v. Lago, 135 F.3d 11, 16 (1 st Cir.), cert. denied, U.S. , --- U.S. ----, 119
S.Ct. 44, 142 L.Ed.2d 34 (1998); see also Hornell Brewing Co. v. Brady, 819
F.Supp. 1227, 1241 n. 11 (E.D.N.Y.1993) ("[E]qual protection proscribes race
based classifications, not all statutes whose purpose it is to protect certain racial
or ethnic groups.... The statute [prohibiting the use of the name "Crazy Horse"
on any alcoholic product] was enacted on behalf of protecting a specific ethnic
group [Native Americans]; however, it requires no differential treatment on the
basis of race.") (emphasis added).

21

Because appellants misconstrue the County's race-conscious efforts to redesign

its entrance exam as a "racial classification," appellants unpersuasively cite to
numerous "reverse discrimination" cases. In particular, appellants heavily rely
on widely known affirmative action cases such as Regents of the University of
California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), City
of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854
(1989), and Adarand. We find these cases distinguishable from the case at bar.
Our reading of those cases suggests that they are concerned with select
affirmative action tools, such as quota systems, set-aside programs, and
differential scoring cutoffs, which utilize express racial classifications and
which prevent non-minorities from competing for specific slots or contracts.

22

For example, in Bakke, the Supreme Court invalidated a medical school

admissions program where 16 slots out of 100 were reserved for minority and

disadvantaged applicants. The Court rejected the use of this quota system
because non-minority candidates were prevented from competing for a specific
percentage of seats in the incoming class. See Bakke, 438 U.S. at 319-20, 98
S.Ct. at 2763. Likewise, in its decision in Croson, the Court rejected a local setaside program which required prime contractors awarded city construction
contracts to subcontract at least 30% of the contract with minority businesses.
See Croson, 488 U.S. at 477, 511, 109 S.Ct. at 713, 731. Regardless of the
"benign" intent behind such minority set-aside programs, the Court clarified
that the use of an express racial classification, whether benign or invidious,
would be subject to strict scrutiny. See id. at 493-94, 109 S.Ct. at 721-22. The
Court reasoned that this result was warranted even for benign racial
classifications because the set-aside program "denie[d] certain citizens the
opportunity to compete for a fixed percentage of public contracts based solely
upon their race." Id. at 493, 109 S.Ct. at 721; see also Adarand, 515 U.S. at
227-36, 115 S.Ct. at 2112-17 (holding that facial racial classifications imposed
by the federal government should also be subject to strict scrutiny review).
23

Cases such as Bakke, Croson and Adarand are plainly distinguishable from the
matter currently before us. A touchstone of equal protection is that the
government may not subject persons to unequal treatment based on race. See
Adarand, 515 U.S. at 224, 115 S.Ct. at 2111 (holding that strict scrutiny applies
to "any racial classification subjecting [a] person to unequal treatment"). Here,
unlike in the above cited cases, although Nassau County was necessarily
conscious of race in redesigning its entrance exam, it treated all persons equally
in the administration of the exam. Cf. Allen v. Alabama State Bd. of Educ., 164
F.3d 1347, 1353 (11th Cir.1999) (affirming consent decree requiring that
school board develop an exam that minimizes racially disparate impact, and
stating that "nothing in Adarand requires the application of strict scrutiny to this
sort of race-consciousness"). As such, Nassau County's desire to design an
exam which would lessen the discriminatory impact on black applicants is
simply not analogous to a quota system or a minority set-aside where
candidates, on the basis of their race, are not treated uniformly. Accordingly,
appellants have failed to demonstrate that the 1994 exam represented an
improper racial classification.

24

2. Absence of Facially Neutral Policy Applied in Discriminatory Manner

25

Clearly, appellants' allegations fail to set forth a claim that the 1994 exam was a
facially neutral test applied in a discriminatory manner. The police officers'
examination was administered and scored in the same manner for all
applicants. Cf. Yick Wo, 118 U.S. at 373-74, 6 S.Ct. at 1072-73 (finding an
equal protection violation where a facially neutral ordinance was

discriminatorily applied to Chinese businesses).

26

3. Absence of Discriminatory Intent and Effect

27

As appellants fail to establish an equal protection violation under the first two
theories, we agree with the district court's conclusion that in order to survive
Rules 12(b)(6) and 12(c), appellants must sufficiently allege that the Nassau
County defendants harbored a discriminatory intent against them and that the
entrance examination disproportionately impacted them. We find that
appellants fail to put forth any claims which would demonstrate either
discriminatory intent or discriminatory impact.

28

a. Discriminatory Intent

29

Appellants' brief contends that, by designing the entrance exam so as to lessen

the adverse impact on minority applicants, Nassau County intended to treat
candidates differently on the basis of their race or ethnicity. This, they charge,
amounts to intentional discrimination. Appellants further allege that this is a
very subtle and insidious type of discrimination because it was done to "avoid
the weaknesses of candidates belonging to favored racial or ethnic groups."
(Appellants' Br. at 17).

30

We determine that appellants' claims do not sufficiently allege that Nassau

County harbored an intent to discriminate against them. Discriminatory purpose
"implies that the decisionmaker ... selected or reaffirmed a particular course of
action at least in part 'because of,' not merely 'in spite of,' its adverse effects
upon an identifiable group." Personnel Administrator v. Feeney, 442 U.S. 256,
279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979) (emphasis added).
Discriminatory intent or purpose typically refers to those instances when a
government actor seeks to disadvantage or negatively impact a group of
persons. See, e.g., Washington v. Davis, 426 U.S. 229, 245-46, 96 S.Ct. 2040,
2050-51, 48 L.Ed.2d 597 (1976) (concluding that purposeful discrimination
was not present in a police officers' examination designed simply to test the
level of an applicant's verbal skills even though black candidates suffered
disproportionate adverse effects); Arlington Heights, 429 U.S. at 268-71, 97
S.Ct. at 565-66 (finding that, although the ultimate effect of a policy was
discriminatory, there was no intent to discriminate when the record aptly
demonstrated the decision was motivated by zoning, not racial, concerns);
Adarand, 515 U.S. at 230, 115 S.Ct. at 2114 (an "individual suffers an injury
when he or she is disadvantaged by the government because of his or her race
....") (emphasis added).

31

Despite appellants' inflammatory suggestion that the exam was designed to

avoid the weaknesses of a favored racial group, their sole allegation, at its
simplest, is that designing the police officers' entrance exam to mitigate the
negative impact on minority candidates (thereby improving their chances for
selection) is akin to an intent to discriminate against appellants. This allegation
is wholly insufficient to state a claim that the County intended to discriminate
against appellants because it does not demonstrate that the County designed the
1994 exam "because of" some desire to adversely affect appellants. See Feeney,
442 U.S. at 279, 99 S.Ct. at 2296. Nothing suggests that the County sought to
disadvantage appellants, or that the County was propelled by sinister or
invidious motivations. A desire to reduce the adverse impact on black
applicants and rectify hiring practices which the County admitted in the 1982
consent order might support an inference of discrimination is not analogous to
an intent to discriminate against non-minority candidates. As the district court
so aptly phrased it: "where an exam that discriminates against a group or groups
of persons is reviewed, studied and changed in order to eliminate, or at the very
least, alleviate such discrimination, there is a complete absence of intentional
discrimination."

32

Appellants' position would have us equate the County's desire to eliminate the
discriminatory impact of its hiring practices on minority applicants with an
intent to discriminate against Appellants. To so find could seriously stifle
attempts to remedy discrimination. If employers or governmental entities fear
that they will be charged with discriminating against non-minorities, they will
shy away from all proper efforts to rectify prior discrimination.

33

"The unhappy persistence of both the practice and the lingering effects of racial
discrimination against minority groups in this country is an unfortunate reality,
and government is not disqualified from acting in response to it [within, of
course, constitutional parameters]." Adarand, 515 U.S. at 237, 115 S.Ct. at
2117; see also Fullilove v. Klutznick, 448 U.S. 448, 482, 100 S.Ct. 2758, 2777,
65 L.Ed.2d 902 (1980) ("As a threshold matter, we reject the contention that in
the remedial context the Congress must act in a wholly 'color-blind' fashion."),
overruled on other grounds Adarand, 515 U.S. at 200, 115 S.Ct. at 2097. In
fact, where there is evidence of past discrimination, it is entirely within
constitutional parameters to undertake efforts to remedy the effect of the prior,
illegitimate practices, including, in extreme cases, the use of narrowly tailored
racial (or gender) preferences. See Croson, 488 U.S. at 509, 109 S.Ct. at 730.
Even in the absence of specific and identified discrimination, nothing in our
jurisprudence precludes the use of race-neutral means to improve racial and
gender representation. See id. at 509-10, 109 S.Ct. at 730.

34

In sum, appellants' allegations are insufficient to establish that Nassau County

acted "because of" a desire to adversely affect appellants. The Nassau County
defendants sought to design a police officers' exam which would reduce or
eliminate the prior exams' adverse impact on black candidates. The 1994 exam
was administered to all of the 25,000 candidates in identical fashion, regardless
of race. The test was scored the same for all candidates, and no differential
cutoffs were used. We conclude that the intent to remedy the disparate impact
of the prior exams is not equivalent to an intent to discriminate against nonminority applicants. Accordingly, we affirm the district court's determination
that appellants can prove no set of facts which would state a claim for
intentional discrimination.

35

b. Discriminatory Impact

36

Appellants submitted during oral arguments that they were prejudiced because
the 1994 exam did not include any of the cognitive sections which had been
administered to the applicants. They argue that they would have performed
better had those cognitive sections been included. We find that appellants fail to
set forth allegations which would support a claim that they were adversely
impacted by the redesign of the police officers' entrance exam.

37

Appellants certainly suffered no discriminatory impact in the administration or

scoring of the facially neutral examination. On the contrary, even though the
redesigned 1994 exam decreased the adverse impact on black applicants,
noticeable adverse effects remained. Appellants concede that, on average, they
scored higher than black applicants on the 1994 exam. Although appellants
may have performed even better had the 1994 exam included cognitive
sections, we fail to see how they can establish a claim for prejudice in light of
this concession.

38

Although not binding on this court, we find the Tenth Circuit's ruling in a
similar case extremely persuasive. In Byers v. City of Albuquerque, 150 F.3d
1271 (10th Cir.1998), the Tenth Circuit found that a police department did not
discriminate against those appellants, several white police officers, in its
promotional process. The alleged discriminatory action was the lowering of the
written test score needed to proceed to the next round of the selection process
by one point. See id. at 1276. That Circuit held that since the qualifying score
was lowered for all applicants, regardless of race, the plaintiffs were neither
excluded from full consideration because of their race, nor were they
disadvantaged because of their race. See id. As such, the court concluded that
those plaintiffs failed to show that they were harmed by the score adjustment.

See id.
39

Byers directly bears on this case, where all of the applicants to the Nassau
County Police Department were given the same test and were scored in the
same manner. Like the Byers plaintiffs, appellants before us have not been
excluded from full consideration because of their race or gender. If appellants
continued to score higher than black candidates, on average, the exam did not
impair or disadvantage these appellants in favor of African-American
applicants. Thus, appellants are unable to set forth a claim that they endured
any disparate impact as a result of the design and administration of the 1994
examination.

B. Title VII
40

Appellants also allege that Nassau County violated 703 of Title VII of the
1964 Civil Rights Act, codified at 42 U.S.C. 2000e-2(a)(1). We find
appellants' position meritless.

41

Section 703 provides that it is an unlawful employment practice for an

employer to fail or refuse to hire or to discharge an individual on the basis of
race, national origin, religion or gender. A violation of 703 can arise either
through disparate treatment or disparate impact.

42

A disparate treatment claim alleges that the employer treats some people less
favorably than others because of race. See International Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d
396 (1977). As part of a disparate treatment claim, the plaintiff must establish
that the employer acted with the intent to discriminate. See id; see also St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2746-47,
125 L.Ed.2d 407 (1993). As discussed earlier, appellants fail to establish any
intent to discriminate against them in Nassau County's efforts to craft an exam
which lessens the discriminatory impact on minority candidates. Accordingly,
appellants are unable to establish a disparate treatment claim under Title VII.

43

Disparate impact claims involve employment practices which are facially

neutral, but fall more harshly on one group than another and cannot be justified
by some business necessity. See International Brotherhood, 431 U.S. at 335 n.
15, 97 S.Ct. at 1854 n. 15. Appellants cannot show that the 1994 exam "fell
more harshly" upon them. Although the 1994 exam reduced the adverse impact
on black applicants, there was still an adverse impact present. Thus, appellants,
on average, scored better than black applicants on the redesigned 1994 exam.

As appellants cannot establish that they were injured or disadvantaged in some

way, they fail to make out a claim for disparate impact.
C. Sections 106 and 107 of the Civil Rights Act
44
45

Appellants contend that Nassau County violated 106 and 107 of the 1991
Civil Rights Act, codified at 42 U.S.C. 2000e-2(l), 2(m). Both of these
claims are also disposed of easily.

46

Section 106 prohibits employers from adjusting scores, using different scores,
or otherwise altering the results of employment related tests on the basis of
race, color, gender or religion. The statute, on its face, clearly prohibits
methods which utilize different scoring techniques or adjust candidates' scores
on the basis of race. See Fioriglio v. State of New Jersey Dep't of Personnel,
Civ. No. 95-3422, 1996 WL 599400, at * 5 (D.N.J. Oct.15, 1996) ("The
defendants changed the testing criteria and applied the new criteria
evenhandedly to each and every score, not just to the scores of minority
candidates. Thus, plaintiff fails to convince the court that the employment
practice violates [ 106] .... ), aff'd, 166 F.3d 1205 (3d Cir.1998). The
legislative history of the statute also confirms that it intended to prohibit "race
norming" and other methods of using different cut-offs for different races or
altering scores based on race. See generally 137 Cong. Rec. H9529 (1991); 137
Cong. Rec. S15476 (1991). In the case before us, the 1994 exam was scored in
the same manner for all applicants; no differential cutoffs were employed.
Thus, appellants fail to adequately allege a claim under 106.

47

Section 107 of the 1991 Civil Rights Act provides that an unlawful
employment practice is established when the complainant demonstrates that
race was a motivating factor for an employment practice even though other
legitimate factors also motivated the employment decision.

48

That section was plainly included to benefit plaintiffs in "mixed motive"

employment discrimination cases by confirming that race need not be the sole
motivating factor for an adverse employment action. See Fuller v. Phipps, 67
F.3d 1137, 1142-44 (4th Cir.1995); see also 137 Cong. Rec. H9529, 137 Cong.
Rec. S15476. This, however, is not a "mixed motive" case. "Mixed motive"
cases arise in employment discrimination suits brought under the statutory
scheme of Title VII or other related employment discrimination laws. See
generally Fuller, 67 F.3d at 1141-44; Stratton v. Dep't for the Aging for the
City of New York, 132 F.3d 869, 878-79 & nn. 4-5 (2d. Cir.1997) (reviewing
the mixed motive and pretext frameworks in employment discrimination cases).
The instant suit is entirely devoid of any Title VII claims. Rather, the matter

before us is primarily a constitutional challenge resting on the Fourteenth

Amendment. Accordingly, appellants also fail to establish a claim under 107.
D. Miscellaneous Arguments
49

Appellants make several, smaller arguments which can be summarily discussed

and dismissed.

50

First, appellants allege that the district court erred in not allowing them leave to
replead. When a motion to dismiss is granted, the usual practice is to grant
leave to amend the complaint. See Ronzani v. Sanofi S.A., 899 F.2d 195, 198
(2d Cir.1990). Although the decision to grant leave to amend is within the
discretion of the court, refusal to grant leave must be based on a valid ground.
See id. However, where the plaintiff is unable to demonstrate that he would be
able to amend his complaint in a manner which would survive dismissal,
opportunity to replead is rightfully denied. See Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 76 (2d Cir.1998), cert. denied, U.S. , --- U.S. ----, 119 S.Ct.
868, 142 L.Ed.2d 770 (1999).

51

Although appellants assert that they specifically requested the right to replead,
our review of the record does not confirm that appellants indeed requested the
right to replead. Even if such a request was made, however, it does not appear
that Judge Mishler abused his discretion in dismissing the complaint without
granting leave to replead. There is nothing to suggest that appellants could
replead in a fashion which would sufficiently allege that Nassau County
harbored an intent to discriminate against them simply by attempting to
minimize the adverse impact on black and minority applicants. Additionally,
appellants remain unable to allege discriminatory impact as the factual
background does not support a claim that they were differentially impacted by
the 1994 exam. Accordingly, the district court did not abuse its discretion in
dismissing appellants' claims without granting the right to replead.

52

Finally, appellants assert that the district court looked beyond the pleadings and
relied on the TDAC Report during its consideration of the motion to dismiss for
failure to state a claim. Appellants specifically take issue with the portion of
Judge Mishler's opinion which states: "[w]e accept the United States and
Nassau County Defendants' summary of the Project Technical Report as stated
in their memorandum in support of their motions to dismiss and append a copy
of the same to this memorandum of decision and order."

53

In considering a motion to dismiss for failure to state a claim, a district court

must limit itself to the facts stated in the complaint, documents attached to the
complaint as exhibits and documents incorporated by reference in the
complaint. See Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991).
If a judge looks to additional materials, the motion should be converted into a
motion for summary judgment. See id. Where, however, the court simply refers
to supplementary materials, but does not rely on them or use them as a basis for
its decision, the 12(b)(6) motion is not converted into a motion for summary
judgment. See id; see also Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494
(2d Cir.1992) (refusing to find that a district court's judgment relied on
materials outside the complaint when the judgment was adequately supported
by information contained in the "four corners" of the complaint).
54

In the case at bar, the only reference to the TDAC Report is in the district
court's recitation of the factual background of the case. In a section entitled
"Development of the 1994 Exam," the court discussed the historical
background of the 1994 exam and adopted the Defendants' summary of the
TDAC Report presented in their memorandum in support of their motions to
dismiss. However, the court did not refer to the Report in the portion of its
opinion which discusses and evaluates appellants' claims. We determine that
the court's adoption of the summary in its statement of the facts is more aptly
characterized as a mere reference to the TDAC Report. There is nothing to
suggest that the court actually relied on the Report or grounded its decision in
the findings of the Report. Thus, the district court did not err in adopting the
summary of the TDAC Report in the factual portion of its Memorandum of
Decision.

III. CONCLUSION
55

Nassau County sought to design a police officers' entrance examination which

would reduce the discriminatory impact of its hiring practices on minority
candidates. Although the decision to redesign the exam certainly took race into
account, the exam was administered and scored in a wholly race-neutral
fashion. We conclude that race-neutral efforts to address and rectify the racially
disproportionate effects of an entrance examination do not discriminate against
non-minorities. On that basis, we find that the 68 white and Latino appellants,
male and female, in this case fail to state a claim under the Equal Protection
Clause, 703 of Title VII, and 106 and 107 of the Civil Rights Act of 1991.

56

Further, the district court did not err in: (1) not granting Appellants the right to
replead, and (2) referring to the TDAC Report.

57

For the foregoing reasons, we AFFIRM the Memorandum of Decision and

Order entered by the Honorable Jacob Mishler, District Judge for the Eastern
District of New York.

The Honorable Damon J. Keith, of the United States Court of Appeals for the
Sixth Circuit, sitting by designation

See infra note 3

The Uniform Guidelines, issued pursuant to 28 C.F.R. 50.14 and 29 C.F.R.

1607, have been adopted by the EEOC, the Civil Service Commission, and the
Departments of Justice and Treasury

A "valid" exam is one which sufficiently measures a candidate's on the job

performance. Stating that an exam is "valid" denotes an entirely different
concept from stating that an exam has been "validated." A "validated" exam
conforms with Title VII and the Uniform Guidelines

The results of this analysis were chronicled in a report prepared by the TDAC
(the "TDAC Report")