Claude GRANT; Oralene Day; Princess Martindale; Faletha B. Reid; Darryl McKibbens; Darrel Gant; Antonio McKissack; Pamela Tucker; and Sandra Derrick, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. METROPOLITAN GOVERNMENT OF NASHVILLE and DAVIDSON COUNTY, TENNESSEE, Defendant-Appellant.
Nos. 10-5944, 10-6233
United States Court of Appeals, Sixth Circuit
Aug. 26, 2011
747 F.3d 737
ALICE M. BATCHELDER, Chief Judge.
In this class action lawsuit alleging racial discrimination, the district court entered judgment for Plaintiffs after a bench trial on their disparate impact claims. Because we find that Plaintiffs failed to establish a prima facie case of disparate impact liability, we reverse.
I.
Nine named plaintiffs filed this class action under Title VII of the Civil Rights Act of 1964 (“Title VII“) against Defendant-Appellant Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro“). The named plaintiffs are current and former employees of Metro Water Services (“MWS“), a subdivision of Metro. They alleged various violations of Title VII on behalf of themselves and all others similarly situated.1 Specifically, Plaintiffs claimed that MWS engages in systemic practices of discrimination against black employees in post-hiring opportunities, including disparate job assignments, promotions, pay, accommodations, discipline, and other terms and conditions of their employment. Plaintiffs presented disparate treatment and disparate impact theories of liability.2
During the bench trial, Plaintiffs sought to establish their case through anecdotal evidence and expert testimony. Plaintiffs’ expert, Dr. Moomaw, examined the proportion of black employees across numerous categories of MWS‘s workforce, including FLSA exempt status, salary type, and pay grade. He found that black employees at MWS were disproportionately represented in lower-paying positions which had fewer supervisory responsibilities and fewer opportunities for advancement. Dr. Moomaw concluded that black employees’ placement into those jobs limited their opportunities for promotions and higher earnings.
Based on Plaintiffs’ evidence, the district court held that they had presented a prima facie case of disparate impact discrimination.3 Upon determining that Plaintiffs
In the meantime, the district court appointed Dr. Kathleen Lundquist as Special Master in the case to conduct oral interviews and oversee the promotions process. Alleging that Dr. Lundquist had a conflict of interest that precluded her from serving as Special Master and that the district court failed to follow Rule 53‘s procedures, Metro moved the district court to revise its appointment. Although the motion was unopposed, the district court denied Metro‘s motion. Metro filed a timely supplemental appeal. This Court consolidated the two appeals.
II.
As an initial matter, we must address Plaintiffs’ motion to dismiss this appeal for lack of jurisdiction. Plaintiffs argue that we lack jurisdiction to review the merits of the district court‘s opinion and that we may only consider the question of whether the district court abused its discretion by granting injunctive relief.
It is well-established that we have jurisdiction over appeals from interlocutory orders that grant or deny injunctive relief. See
As a general matter, we limit our review under
In order to review the district court‘s decision to grant injunctive relief in this case, we must look at the district court‘s disparate impact determination—the basis for that injunctive relief. We cannot determine whether the district court abused its discretion in awarding injunctive relief unless we first determine whether the district court‘s finding of liability was correct. Accordingly, we will exercise our jurisdiction to review the merits of the district court‘s legal determination. Plaintiffs’ motion to dismiss is DENIED.
III.
“This Court‘s standard of review in a Title VII discrimination case is narrow.”
On appeal, Metro argues that Plaintiffs failed to establish their prima facie case of disparate impact discrimination, so we limit our discussion accordingly.6 A prima facie case of disparate impact discrimination under Title VII requires a plaintiff to (1) identify a specific employment practice and (2) present relevant statistical data that the challenged practice has an adverse impact on a protected group. Id.
A.
Regarding the first prong of the prima facie case, the Supreme Court has explained that a plaintiff is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 994 (1988); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2555-56, 180 L.Ed.2d 374 (2011). However, if a plaintiff demonstrates that “the elements of [an employer‘s] decisionmaking process are not capable of separation for analysis, [then] the decisionmaking process may be analyzed as one employment practice.”
Plaintiffs’ general claim is that MWS has engaged in “preselection” which caused an adverse, disparate impact on black employees. They allege that this preselection has taken many forms, including tailored job qualifications, selective interviewing, and subjective decisionmaking. The problem, however, is that Plaintiffs make no effort to isolate any of these practices or to examine their individual effects on the promotions process. See Watson, 487 U.S. at 994; see also
Plaintiffs’ failure to identify and isolate the effects of each specific employment practice could have been forgiven if they had “demonstrate[d] to the court that the elements of [Metro‘s] decisionmaking process are not capable of separation for analysis.” See
B.
Even if Plaintiffs had satisfied the first prong of their prima facie case, their claim would nevertheless fail on the second prong. Plaintiffs simply did not present relevant statistical data that MWS‘s promotion practices caused an adverse, disparate impact on its black employees.
The Supreme Court has explained that “the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at 994. In cases involving promotion policies, “the relevant inquiry is comparing the number of protected group members benefitting from promotions with the number seeking them; this figure is then contrasted with the corresponding ratio for the non-protected group.” Phillips, 400 F.3d at 399; see also Phillips v. Gates, 329 Fed. Appx. 577, 581 (6th Cir. 2009). Plaintiffs may rely on this comparison without regard to candidates’ qualifications. See Phillips, 400 F.3d at 400. In instances where the data regarding qualified or eligible applicants is incomplete or unavailable, plaintiffs may rely on other statistics, “such as measures indicating the racial composition of otherwise-qualified applicants for at-issue jobs.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 651 (1989) (quotation marks omitted), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071,
In this case, Plaintiffs’ evidence was merely a description of the racial demographics of MWS‘s workforce. Dr. Moomaw‘s testimony demonstrated that black employees at MWS were disproportionately concentrated in positions which paid less and had fewer opportunities for advancement. Dr. Moomaw focused specifically on the representation of “blacks in higher level positions compared to the overall black to white ratio at MWS.” He did not look at actual promotion rates, nor did he compare the ratios of black and white employees eligible for promotions with those who actually received promotions. He explained that, in light of MWS‘s alleged practice of altering job qualifications and criteria, it was impossible to determine who was actually eligible for promotions.
Plaintiffs’ evidence falls short of the relevant statistical data that the law requires. First, it compares the wrong groups of people. Instead of comparing the employees who actually applied for or were eligible for promotions with those who received them, see Phillips, 400 F.3d at 399, Plaintiffs compared the proportion of black em-
Additionally, the district court‘s determination that each segment of MWS‘s workforce should mirror the overall racial demographic of MWS amounts to an impermissible quota system. See id. at 652. Essentially, Plaintiffs’ evidence shows only that black employees are disproportionately represented in lower-paying jobs that have fewer opportunities for advancement. However, “[r]acial imbalance in one segment of an employer‘s work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer‘s other positions, even where workers for the different positions may have somewhat fungible skills....” See id. at 653.
IV.
Because we find that Plaintiffs have failed to meet their prima facie case of disparate impact discrimination, we REVERSE the district court‘s order. In light of this holding, we DISMISS as moot Metro‘s appeal as to the order appointing Dr. Kathleen Lundquist as Special Master.
CLAY, Circuit Judge, dissenting.
The decision below was based on the extensive evidentiary record that was developed over nine days of trial. The trial judge heard testimony from more than twenty witnesses, including two expert statisticians, and received hundreds of documents into evidence. In stripping Plaintiffs of their victory, the majority ignores this evidentiary record and relies instead on a series of largely unexplained conclusions. Because the district court committed no error of law, and the factual findings underpinning its decision are not clearly erroneous, we should affirm. The majority has no legal basis to do otherwise, and therefore I respectfully dissent.
The majority reverses the district court‘s finding of liability against Defendant Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro“) on the basis that “Plaintiffs failed to establish a prima facie case of disparate impact liability.” (Maj. Op. at 738.) To make out a prima facie case of disparate impact in violation of Title VII, a plaintiff must “(1) identif[y] a specific employment practice to be challenged; and (2) through relevant statistical analysis prove[] that the challenged practice has an adverse impact on a protected group.” Dunlap v. Tenn. Valley Auth., 519 F.3d 626, 626 (6th Cir. 2008) (citations omitted); see also Lewis v. City of Chicago, 560 U.S. 205, 130 S.Ct. 2191, 2197, 176 L.Ed.2d 967 (2010). The district court, sitting as finder of fact, found that Plaintiffs had satisfied their prima facie burden, and as explained below, its conclusion should be upheld as to each element of the prima facie case.
A. Identification of Specific Employment Practices
The district court did not err in finding that Plaintiffs’ burden of identifying the specific employment practices that are
The specific employment practices identified by Plaintiffs as discriminatory are well documented in the record. The district court found that Defendant‘s posted minimum job qualifications “are frequently tailored or altered from the original job descriptions to fit the person whom [] management desires to fill the specific position.” (Dist. Ct. Op. at 6.) “As a factual matter“, the court explained, “the proof also clearly establishes that [Metro‘s Water Services Department (“MWS“)] distorts educational requirements, seniority, and experience in its promotion decisions of its white employees.” (Id. at 65.) In one instance, Metro eliminated a bachelor‘s degree requirement for a director position after a qualified black employee applied, and awarded the position to a white applicant without a degree, even though the previous director had both bachelor and master‘s degrees. (Id. at 12-13.)
With regard to lateral transfers, the district court found that Metro frequently permits white employees to transfer internally, thereby circumventing the competitive employment application process. (Id.) To the extent that the competitive application process was utilized, the district court found that Defendant‘s department managers possess discretion over whom to interview for promotions, and once the relevant employees are identified, the usual practice is that each employee‘s supervisor will serve on the interview panel. This results in a highly subjective—and problematic—process. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2554 (2011) (“[A]n employer‘s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” (internal citation and quotation marks omitted; alteration in original)). The problems of this subjective process are exacerbated by the frequent variations in the size and composition of interview panels, and the heavy (and sometimes controlling) weight accorded the results of an oral interview.
Additionally, the district court found that Metro has a policy whereby an employee may be assigned to fill a temporary vacancy in a higher position—a so-called “out of class assignment“—and that after 100 days, the employee would be promoted into the higher position. (Dist. Ct. Op. at 16-19.) White employees, including six individuals identified at trial, would receive the promotion after 100 days, whereas black employees often would not. (Id. at 17.) Additionally, black employees working “out of class” are not always paid at the higher “out of class” rate, even though white employees were. In one situation, as proved at trial, a black employee assumed the duties of a public information officer on an “out-of-class” basis, but was told he was not qualified to fill the position on a permanent basis, even though the position was later filled by a biologist without any public relations background, at a
The majority does not explain why the specific employment practices proved by Plaintiffs at trial, and identified by the district court, failed to satisfy Plaintiffs’ burden of identification. The majority identifies no factual finding by the district court that is clearly erroneous, and cites no legal authority to support its conclusion. This sort of truncated analysis is particularly troubling in light of the nature and significance of this case—a civil rights class action against a major public employer—and the availability of extensive evidence in the record.
B. Disparate Impact
The district court additionally did not err in finding that Plaintiffs carried their burden to establish that the challenged practices have an adverse impact on a protected group. The district court held that “[t]he specific employment practices alone and in combination have had the effect of denying and delaying promotions to black employees [at Metro], as set forth by Dr. [Michael] Moomaw‘s testimony and analyses and Plaintiffs’ other proof.” (Id. at 59.) The majority offers no reason why this conclusion was clearly erroneous.
As to the statistical proof, the district court concluded based on a binomial distribution analysis that the rate of promotions of black employees, across nearly every job category, was three to four standard deviations lower than would be expected in the absence of discrimination. See Vogel v. City of Cincinnati, 959 F.2d 594, 600 (6th Cir. 1992); see also Alexander v. Local 496, Laborers’ Int‘l Union of N. Am., 177 F.3d 394, 419 (6th Cir. 1999) (Batchelder, J., concurring in part and dissenting in part) (reasoning that district court did not clearly err in finding disparate impact “[g]iven the extreme statistical disparity” proved at trial). This analysis reflected the report of Dr. Moomaw, who recategorized the MWS workforce and analyzed employment data across four dimensions, finding “stark and significant differences in representation between white and black employees that extend to all categories of MWS’ positions.” (Dist. Ct. Op. at 33); see also Phillips, 329 Fed. Appx. at 581 (stating that “sufficiently substantial’ statistical disparities raise an inference of disparate impact“).
The district court determined that these “widespread statistical imbalances” were a result of the employment practices challenged by Plaintiffs. (Dist. Ct. Op. at 60.) Rather than determining the effect of each challenged practice, which it found were “not capable of separation for analysis,” the district court analyzed Metro‘s promotion practices as “one promotion practice.” See
Considering the process as a whole, the district court made the following factual findings as to the cause of the statistical abnormalities, none of which the majority contends is clearly erroneous:
The majority overturns the district court‘s finding because, as it explains, “Plaintiffs simply did not present relevant statistical data that MWS‘s promotion practices caused an adverse, disparate impact on its black employees.” (Maj. Op. at 741.) According to the majority, “Plaintiffs’ evidence was merely a description of the racial demographics of MWS‘s workforce.” (Id. at 8.) The majority explains that Plaintiffs’ statistical evidence “falls short” because, “instead of comparing the employees who actually applied for or were eligible for promotions with those who received them, Plaintiffs compared the promotion of black employees in high-paying positions with the proportion of black employees within the entire MWS workforce.” (Id. at 9.) Even if the latter comparison was problematic, the majority continues, Plaintiffs were “still required to construct a generally qualified applicant pool” from which to make a comparison. (Id.)
As an initial matter, the majority‘s insistence on a specific form of statistical evidence has no basis in our case law. We have never “limited a plaintiff‘s choices in Title VII cases involving statistical analysis in any way,” Isabel v. City of Memphis, 404 F.3d 404, 412 (6th Cir. 2005), and, as the Supreme Court recognizes, statistics “come in infinite variety and . . . their usefulness depends upon all of the surrounding facts and circumstances.” Int‘l Bhd. of Teamsters v. United States, 431 U.S. 324, 339-40 (1977). The statistical evidence relied upon by the district court was relevant, and to the extent it was less than perfect, “such flaws relate to the weight of the [evidence] which is a matter for the trier of fact.” Phillips v. Cohen, 400 F.3d 388, 401-02 (6th Cir. 2005). The majority offers no legal authority to support its argument that the district court‘s evaluation of the statistical evidence was improper as a matter of law. See Johnson v. U.S. Dep‘t of Health and Human Servs., 30 F.3d 45, 48 (6th Cir. 1994) (holding that the district court‘s view of the sufficiency of statistical evidence is reviewed for clear error).
The majority suggests that Plaintiffs’ failure to compare actual promotion rates could be excused if Plaintiffs had “construct[ed] a generally qualified applicant pool” and compared the promotion rates within that pool. (Maj. Op. at 742.) Such a statement, however, reflects the majority‘s fundamental misunderstanding of this case. As the district court found, “the proof . . . clearly establishes that MWS distorts educational requirements, seniority, and experience in its promotion decisions of its white employees,” and it is therefore not possible to determine the actual qualifications for many positions. (Dist. Ct. Op. at 65.)
Additionally, even if the actual qualifications for each position could be determined, any failure to control for this variable is not fatal under the circumstances of this case, given the extent to which Metro obfuscated and apparently manipulated the promotion process. See Phillips, 400 F.3d at 400-02 (reversing district court‘s dismissal of disparate impact challenge to promotion process, and reasoning that the plaintiff‘s failure to control for employees’ qualifications in statistical data did not render its statistics legally insufficient). The majority‘s reasoning to the contrary runs counter to well-established case law in this Circuit. See id. (citing Scales, 925 F.2d at 906 (finding gender discrimination on the basis that it took women longer than men to be promoted to the first managerial level in the company)).
Finally, the majority ignores the non-statistical evidence adduced at trial, thereby ignoring the extensive testimony by individual plaintiffs as to their “personal experiences with promotion decisions at MWS.” (Dist. Ct. Op. at 19-25); see also Int‘l Bhd. of Teamsters, 431 U.S. at 340 (“The individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life.“). Our cases have recognized that “expert statistical evidence in disparate impact cases is not to be considered in a vacuum, as the only evidence permitting plaintiffs to meet their prima facie test; it must be considered in light of all the evidence in the record.” Phillips, 400 F.3d at 401 (holding that non-statistical evidence of disparate of impact “compensate[ed] to some degree for plaintiffs’ failure to demonstrate conclusively that they are promoted at lower rates than white employees.” (internal citation and quotation marks omitted)); see also Wal-Mart Stores, 131 S.Ct. at 2556 (recognizing the relevance of testimonial evidence apart from statistical evidence in disparate impact cases). This point is lost on the majority.
Accordingly, because the district court committed no error of law, and the find-