UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Robert Jordan,

Plaintiff-Appellant,

-v-

City of New London and

Keith Harrigan,

Defendants-Appellees.

No. 99-9188

2000 U.S. App. Lexis 22195

(Unpublished)

August 23, 2000, Decided

Notice: Rules of the Second Circuit Court of Appeals may limit citation to unpublished opinions. please refer to the rules of the United States Court of Appeals for this Circuit.

Reported in Table Case Format at: 2000 U.S. App. Lexis 26351 .

Jon O. Newman, Rosemary S. Pooler, Circuit Judges, Lloyd D. George,* District Judge.

* Honorable Lloyd D. George of the United States District Court for the District of Nevada, sitting by designation.

SUMMARY ORDER

On consideration whereof, it is hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is AFFIRMED.

On March 16, 1996, plaintiff Robert Jordan and 500 other applicants underwent a written screening process conducted by the Law Enforcement Council of Southeastern Connecticut, Inc. (�LEC�), a coalition of fourteen cities and towns, for a position as a police officer. That testing process operated as an initial screen for participating police departments. The testing material included the Wonderlic Personnel Test and Scholastic Level Exam (�WPT�), which purports to measure cognitive ability. An accompanying manual listed recommended scores for various professions and cautioned that because overqualified candidates may soon become bored with unchallenging work and quit, �simply hiring the highest scoring employee can be self-defeating.� Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.

In the fall of 1996, Jordan learned that the city of New London was interviewing candidates. Upon further inquiry, however, he learned from assistant city manager Keith Harrigan that he would not be interviewed because he �didn�t fit the profile.� Plaintiff, who was 46 years old, suspected age discrimination and filed an administrative complaint with the Connecticut Commission on Human Rights and Opportunities. The city responded that it removed Jordan from consideration because he scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants the city only interviewed candidates who scored between 20 and 27.

Plaintiff brought a civil rights action in the District Court for the District of Connecticut (Dorsey, Judge) alleging that the city and Harrigan denied him equal protection in violation of the Fourteenth Amendment and Article 4, Section 20, of the Connecticut Constitution. On August 29, 1999, the district court granted defendants� motion for summary judgment, finding no suspect classification and that defendants had �shown . . . a rational basis� for the policy. We agree that New London�s use of an �upper cut� did not violate the equal protection clause and affirm the judgment of the district court.

Summary judgment is appropriate where �there is no genuine issue as to any material fact� and �the moving party is entitled to judgment as a matter of law.� Fed. R. Civ. P. 56(c). We review the grant of summary judgment de novo on appeal. See Beatie v. City of New York, 123 F.3d 707, 710 (2d Cir. 1997).

As Plaintiff concedes, there exists no fundamental right to employment as a police officer. See Harris v. McRae, 448 U.S. 297, 322, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1979) (�It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of the classification must be sustained unless the classification rests on grounds wholly irrelevant to the achievement of [any legitimate government] objective.�). Under rational basis analysis, �a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.� Federal Communications Comm�n v. Beach Communications, Inc., 508 U.S. 307, 313, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993) (citing, inter alia, Dandridge v. Williams, 397 U.S. 471, 484-85, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970)). We require no supporting empirical evidence and will not strike down a classification as unconstitutional unless ��the . . . facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.�� Beatie, 123 F.3d at 712 (quoting Vance v. Bradley, 440 U.S. 93, 111, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979)).

In Dandridge, a case involving welfare benefits, the Supreme Court stated that �to approve the invalidation of state economic or social regulation as overreaching would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws because they may be unwise, improvident, or out of harmony with a particular school of thought.� Dandridge, 397 U.S. at 484 (internal quotation marks and citation omitted). The Court held that classifications need not be perfect, because ��the problems of government are practical ones and may justify, if they do not require, rough accommodations - illogical, it may be, and unscientific.�� Dandridge, 397 U.S. at 485 (quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69, 57 L. Ed. 730, 33 S. Ct. 441 (1913)). The Court concluded that � the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.� Dandridge, 397 U.S. at 486.

Applying that lenient standard of review, we conclude that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed -- on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC -- that there was such a connection. Plaintiff presented some evidence that high scorers do not actually experience more job dissatisfaction, but that evidence does not create a factual issue, because it matters not whether the city�s decision was correct so long as it was rational. The city could rationally have relied upon the guide to interpreting test results provided by the test maker as justification for reducing the size of the applicant pool with both a low and a high cut off. Even if unwise, the upper cut was a rational policy instituted to reduce job turnover and thereby lessen the economic cost involved in hiring and training police officers who do not remain long enough to justify the expense.

We have considered appellant�s remaining arguments and find them without merit.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

Robert Jordan,

Plaintiff,

-vs-

City of New London and

Keith Harrigan,

Defendants.

Civil No. 3:97CV1012 (PCD)

1999 U.S. Dist. Lexis 14289

15 IER Cases (BNA) 919

August 29, 1999, Decided

September 2, 1999, Filed

RULING ON MOTION FOR SUMMARY JUDGMENT

Plaintiff alleges a violation of the Equal Protection Clauses of the United States and Connecticut constitutions stemming from Defendants� hiring practice. Plaintiff was denied a job opportunity because he had scored higher than average on a written examination used to screen applicants and, as a result, was deemed overqualified for the position. Defendants move for summary judgment.

I. BACKGROUND

On March 16, 1996, Plaintiff took a written test for the position of entry level police officer given by the Law Enforcement Council of Connecticut, Inc., a consortium of fourteen towns in eastern Connecticut, including New London. Am. Compl. at P 8. Part of the examination was a standardized test of cognitive ability known as the Wonderlic Personnel Test and Scholastic Level Exam (�WPT�), designed by Wonderlic Personnel Test, Inc. (�Wonderlic�). Def�s Mem. Supp. Mot. Summ. J. at 2. The advertisement indicated that the test �will generate an eligibility list for distribution to the participating police departments for possible future employment�. Am. Compl. at P 9.

The user�s manual for interpreting the Wonderlic test scores contains a table of recommended minimum test scores for a range of occupations. Wonderlic User�s Manual, Def.�s Ex. 3 at 28-29. The suggested minimum score for a patrol officer is 22. Id. at 29. The manual suggests that for most hiring decisions an appropriate test score may range from two points below the suggested score to six points above it. Id. at 6. Elsewhere, the recommended range for a police patrolman is given as, approximately, 18 to 30. Wonderlic Employee Turnover Report, Def�s. Ex. 5 at 10. Plaintiff scored a 33 on the exam. Am. Compl. at P 17.

In the fall of 1996, Plaintiff learned that New London was hiring police officers. He requested an interview with Keith Harrigan, the Assistant City Manager in charge of personnel. Id. at P 10, 11. Mr. Harrigan informed Plaintiff that he was ineligible because he scored too high on the written test. Id. at P 17. Following the recommendation of the Wonderlic User�s Manual, New London had decided to consider only applicants who scored between 20 and 27 on the written examination. Id. at P 17.

II. DISCUSSION

A. Standard for Motion for Summary Judgment

Summary judgment is confined to those instances where �there is no genuine issue as to any material fact� and �the moving party is entitled to judgment as a matter of law.� Fed. R. Civ. P. 56(c). All ambiguities must be resolved and all factual inferences drawn in favor of the party against whom summary judgment is sought. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994).

Movant carries the initial burden of demonstrating the nonexistence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once that burden has been carried, the opposing party cannot defeat the motion by resting on the allegations in its complaint; rather, it must set forth specific facts to indicate that a genuine, not merely colorable, issue of material fact exists. Gibson v. American Broadcasting Companies, 892 F.2d 1128, 1132 (2d Cir. 1989).

B. Equal Protection Claim

�Social and economic [action] that does not employ suspect classifications or impinge on fundamental rights must be upheld under the equal protection component of the Fifth Amendment when the . . . means are rationally related to a legitimate Government purpose.� Schweiker v. Wilson, 450 U.S. 221, 242, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981) (Powell, J., dissenting).

The guarantee of equal protection under the Fifth Amendment is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity. It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of the classification must be sustained unless the classification rests on grounds wholly irrelevant to the achievement of [any legitimate government] objective.

Harris v. McRae, 448 U.S. 297, 322, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1979) (quotation and citation omitted).

Plaintiff concedes that he is not a member of a �suspect class� and that there is no �fundamental right� to employment as a police officer. Therefore, rational basis review is the proper standard under which to evaluate Plaintiff�s claim.

Plaintiff further concedes that increasing employment longevity and reducing the high costs associated with rapid employee turnover are legitimate government purposes. Plaintiff admits that limiting the size of an applicant pool to a manageable level is a legitimate goal. Therefore the only issue for resolution is whether Defendants� means were rationally related to those goals.

Under rational basis review, there is no constitutional violation if �there is any conceivable state of facts� that would provide a rational basis for the government�s conduct. Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996) (citation omitted). However, a �state may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.� City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). The term �rational ... involves a requirement that an impartial [policy maker] could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.� Id. at 451 (1985) (Stevens, J., concurring).

Plaintiff provides evidence of a lack of definitive relationship between high cognitive ability and job satisfaction, performance and longevity. Plaintiff argues that data suggesting such a correlation conflicts with current thinking within industrial psychology circles. However, Defendant need not show that the classification employed leads inexorably to the desired result, nor even that the policy is wise. Defendant need show only that there was reason to believe that employing the classification could be beneficial in achieving their stated goal. �No bright line divides the merely foolish from the arbitrary law.� Schweiker, 450 U.S. at 243. �It is not the function of the courts to judge the wisdom of particular business policies, but to ensure that such policies are made on a rational basis.� Stein v. National City Bank, 942 F.2d 1062, 1065 (6th Cir. 1991) (citation omitted).

Defendants followed the instructions accompanying the WPT test, on which they rationally could have relied as authoritative. Additionally, a body of professional literature concludes that hiring overqualified applicants leads to subsequent job dissatisfaction and turnover. While such studies have been challenged, it cannot be said that their conclusions have been refuted.

Plaintiff also argues that Defendants used test scores as an afterthought to reduce the number of applicants. Defendants reasonably may apply Wonderlic�s objective criteria to screen an otherwise unmanageable number of applicants. Defendants need not have determined to use the Wonderlic numbers prior to receiving the flood of applications, after which they rationally could have decided to recruit those most likely to find the job challenging and rewarding. The fact that Defendants could have chosen to ignore the Wonderlic guidelines does not establish that their ultimate decision to follow those guidelines was arbitrary or irrational and thus unconstitutional.

The question presented is not whether a rational basis has been shown for the policy chosen by defendants. It is not for a trier to decide between two bodies of evidence in support of and in contradiction of the validity of that basis. Because defendants have shown that there is a rational basis for its policy, it cannot be found that the policy is arbitrary nor irrational. Plaintiff may have been disqualified unwisely but he was not denied equal protection.

III. CONCLUSION

For the foregoing reasons, Defendants� motion for summary judgment [Document No. 31] is granted. The clerk shall close the file.

So ordered.

Dated at New Haven, Connecticut, August 29, 1999.

Peter C. Dorsey

Senior United States District Judge

JUDGMENT

This matter came on for consideration on defendants� motion for summary judgment before the Honorable Peter C. Dorsey, Senior United States District Judge.

The Court has reviewed all of the papers filed in conjunction with the motion and on September 2, 1999, entered a Ruling on Motion for Summary Judgment granting the relief.

It is therefore ORDERED and ADJUDGED that judgment is entered for the defendants and the case is closed.

Dated at New Haven, Connecticut, this 2nd day of September, 1999.