Plaintiffs appeal from an October 26, 2007 order of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), denying their Motion for Contempt and/or to Compel Compliance with the District Court’s judgment of September 17, 2004.
See Latino Officers Ass’n v. City of New York,
BACKGROUND
In September 1999, the Latino Officers Association and several Hispanic and African American police officers (collectively, “plaintiffs”) commenced an action against the City of New York, the NYPD, and several municipal officials (collectively, “defendants”), alleging systematic discrimination in the disciplinary system of the NYPD, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981, 1983, 1985, the First and Fourteenth Amendments of the United States Constitution, the New York State Human Rights Law, the New York City Human
all Latino and African-American individuals who have been, are, or will be employed by the NYPD as uniformed officers, including civilians who perform the same employment functions as uniformed officers, who have been or will be subjected to discrimination on the basis of race, color or national origin in the form of a hostile work environment, disparate disciplinary treatment, and retaliation for the exercise of their rights.
Latino Officers Ass’n. v. City of New York,
the [NYPD] would [1] establish a “Disciplinary Review Unit” (“DRU”) to track and analyze whether minority members of the NYPD were being treated in a discriminatory manner when disciplined, [2] establish an “Advisory Committee” to address employment discrimination and retaliation concerns, [3] develop a “Know Your Rights” guide to the NYPD discipline system, and [4] enhance existing databases and create new databases to capture, and report to plaintiffs on a specified schedule, data thought to be relevant to analyzing whether or not discrimination was continuing in the NYPD discipline system.
Latino Officers Ass’n,
On December 6, 2006, plaintiffs moved for an Order of Contempt and/or to Compel Compliance with the Settlement and Order of September 17, 2004. Specifically, plaintiffs alleged that defendants had failed to comply with the settlement agreement and the judgment entered pursuant thereto because,
inter alia,
(1) defendants had not established the Disciplinary Review Unit, as agreed,
1
(2) defendants had not provided plaintiffs with the agreed-upon statistical data in a timely and complete fashion, and (3) discrimination had continued in the NYPD discipline system, as evidenced by statistical data proffered by plaintiffs.
See Latino Officers Ass’n,
In an October 26, 2007 Memorandum and Opinion, the District Court found that plaintiffs had failed to establish that defendants should be held in contempt for failing to comply with the settlement agreement, and it denied plaintiffs’ motion. Specifically, with regard to plaintiffs’ alle
While the Agreement recites that the NYPD “will not allow discrimination based on actual or perceived race, color, national origin, ethnicity or any other reason prohibited by federal, state or local law,” it did not create a regime of strict liability. If plaintiffs believe that discrimination continues, notwithstanding the Agreement, they may seek redress through appropriate means, such as the federal and state laws that served as the basis for the underlying class action. The remedy, in the absence of proof that the NYPD is “allow[ing] discrimination,” is not contempt. Plaintiffs’ showing falls far short of establishing that the NYPD is “allow[ing] discrimination,” even assuming that discriminatory behavior occurs from time to time, as it regrettably does in many parts of our society.
Id. at 447-48 (footnote omitted). Accordingly, the District Court denied plaintiffs’ motion. Plaintiffs then filed a timely notice of appeal.
DISCUSSION
Before this Court, plaintiffs appeal only the District Court’s denial of their motion with respect to defendants’ alleged failure to comply -with the settlement by “allowing” discrimination to occur within the NYPD discipline system. “Although the parties do not contest our jurisdiction” to entertain this appeal, “we are obliged to ascertain it independently.”
Catskill Dev., L.L.C. v. Park Place Entm’t Corp.,
As before the District Court, plaintiffs here rely on statistical data that show,
inter alia,
that minority officers were thirty-five percent more likely to receive informal discipline in the form of a “Command Discipline” than were white officers. Appellants’ Br. at 26. Plaintiffs also argue that their data demonstrate that for the most recent period measured, minority members of the NYPD were “much more apt to be the subject of formal discipline,” including that they were more likely to be
We note that a contempt order is a “potent weapon,”
Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n,
Upon review, we conclude that the District Court did not abuse its discretion in determining that plaintiffs failed to prove that defendants should be held in contempt for violating the Settlement and Order. At the outset, we underscore that it is the moving party — in this case the plaintiffs — who bears the burden of establishing the three factors set forth in
King v. Allied Vision, Ltd.,
Beginning with the second
King
factor — whether plaintiffs’ proof of noncompliance is clear and convincing — we note that the Supreme Court has cautioned that “statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.”
International Broth. of Teamsters v. United States,
Indeed, if anything, the record shows that defendants have taken substantial steps to eliminate discriminatory practices in the NYPD. The District Court found that, pursuant to the settlement agreement, defendants had (1) established a Disciplinary Review Unit, titled the Employment Practices Unit, to review the NYPD’s disciplinary process and how it affects employment discrimination, (2) developed a “Know Your Rights” guide, which details the NYPD disciplinary process, and (3) produced statistical reports on the NYPD discipline system. 3 Beyond the terms of the settlement agreement, the record shows that defendants had decided to conduct a review of at least one command each month to assess disciplinary actions taken and use information from their databases to train commanding officers about discipline trends. In the absence of clear and convincing evidence of defendants’ noncompliance, and in light of the fact that defendants have taken these affirmative steps to curb employment discrimination in the NYPD — including the very steps plaintiffs deemed necessary to combat such discrimination — we conclude that plaintiffs have failed to meet their burden of showing why defendants should be held in contempt. 4
Finally, we note that our holding here does not preclude plaintiffs from pressing their claims through other means. As the District Court noted, plaintiffs may still bring an action relying on the federal and state laws that served as a basis for the underlying class action.
CONCLUSION
For the reasons stated above and substantially for the reasons stated by Judge
Notes
. Despite the fact that defendants had created an "Employment Practices Unit,” which was to serve the same purpose as the "Disciplinary Review Unit” as set forth in the settlement agreement, plaintiffs argued that the difference in nomenclature violated the agreement. In the Memorandum and Opinion of October 26, 2007, the District Court concluded that "[t]he provision [of the settlement agreement] does not clearly and unambiguously require defendants to name the unit in any specific manner.”
Latino Officers Ass’n,
.The expert's failure to assess the significance of the disparities he identified in the 2005 disciplinary data is troubling in light of the fact that several of those disparities were eliminated or notably reduced in the 2006 data presented to the District Court. For example, plaintiffs’ expert reported that in 2005, minority officers were 84% more likely (30.8% versus 16.7%.) to receive "charges filed" dispositions of their disciplinary proceedings, considered a severe sanction. In 2006, however, that difference disappeared: 23.9% of white officers received a "charges filed” disposition, as did 23.2% of minority officers. Similarly, according to the expert, in 2005, minority officers received the "relatively more favorable” guilty-by-plea dispositions 30% less often than whites (40.2% versus 57.3%). In 2006, that discrepancy was reduced to 12% (40.9% versus 46.3%). To be sure, not all of the disparities identified by the plaintiffs’ expert in the 2005 data were reduced or eliminated in the 2006 data. However, in the absence of analysis indicating which of the disparities he identified, if any, are statistically significant or not attributable to other factors, the notable year-to-year variation in the data undermines plaintiffs' argument on appeal that the District Court erred in concluding that plaintiffs’ statistical analysis was insufficient to support their contempt motion.
. Defendants concede that the initial reports were not issued in a timely fashion. However, plaintiffs do not raise on appeal the issue of noncompliance with the specific reporting deadlines set forth in the settlement agreement.
. Because plaintiffs have failed to establish the second
King
factor,
see King v. Allied Vision, Ltd.,