*1 grant summary judgment outright however, America, UNITED
Cruz-Vázquez, because the evi- STATES Plaintiff-Appellee, dence in the unclear record is as to wheth- physicians may er the justifiably have Society, Inc., Hay The Vulcan Marcus differently treated her from patients other wood, Nunez, Roger Gregg, Candido presenting like symptoms as result of Intervenors-Plaintiffs-Appellees- they may additional information have had Cross-Appellants patient about the particular or her condi- tion.8 We do nevertheless feel obliged to cautionary sound a treating note. While a YORK, CITY OF NEW Michael Bloom judgment may obstetrician’s in- medical berg Mayor, Scoppetta, and Nicholas form patient whether or suffi- Commissioner, New York Fire in their ciently patients “like” other that come un- capacities, individual and official De a given hospital der protocol, it should not fendants-Appellants-Cross-Appellees, improperly entirely relied on to bypass hospital’s obligation equally Citywide screen New York Department of Correa,
under the statute. Service, See 69 F.3d at Administrative New York (“[A] refusal to regular follow Department, screen- Fire Defendants.1 ing procedures in particular instance 11-5113-cv(L), Docket Nos. statute”). contravenes the 12-491-cv(XAP). United States Appeals, Court of
III. Conclusion Second Circuit. Cruz-Vázquez presented thus sufficient Heard: June 2012. evidence to show a trialworthy issue May Decided: exists to her screening claim. accordingly
We vacate the district court’s
judgment and remand the case for trial on
her EMTALA claim as well as her Puerto
Rico law parties claims. The are to bear
their own costs in appeal.
Vacated and Remanded. 8. The record below is also devoid of critical dants had opportunity depose the ex- expert testimony any challenges to said pert or submit evidence into the record testimony. This is because the district court challenge expert report. witness’s judgment issued granted after it Cruz- Vazquez's appoint expert motion to wit- 1. The Clerk is directed to amend the official Cruz-Vázquez produced ness and expert his caption caption to conform the above. report to the defendants but before defen- *4 Stark, NEWMAN, WINTER, Department
Lisa J. United States Before (Thomas Justice, Washington, POOLER, D.C. E. Judges. Circuit Perez, Dimsey, Holly Dennis J. A. Thom- as, Justice, Department of United States NEWMAN, JON O. Judge: Circuit brief), D.C.,
Washington, Appel- on the case, brought by This the United States lee. pursuant to Title Rights VII the Civil Ratner, P.C., Levy, Levy Richard A. seq., 2000e et § Act of U.S.C. (Center York, New N.Y. for Constitutional allegations concerns of racial discrimina- NY; York, Rights, New Scott + Scott hiring tion in the of New York fire- LLP, York, NY, brief), New fighters. principal issues are whether Plaintiffs-Appellees-Cross-Appellants. summary judgment properly entered Brenner, Corporation Deborah A. Asst. against on a claim of intentional (Michael Counsel, York, New N.Y. A. Car- discrimination, whether claims dozo, Corporation Counsel of the City’s Mayor and former Fire Commis- York, Krams, New Alan Corpora- G. Asst. dismissed, properly sioner were whether Counsel, York, N.Y., tion New on the *5 injunction, an finding based both on the of brief), for Appellants-Cross-Appellees. intentional discrimination and an unchal- Sullivan, Galleshaw, Keith M. Sullivan & lenged finding disparate impact of arising LLP, NY, Queens, for amicus curiae Merit exams, broad, entry-level from is too and Matters, Inc., support of Appellants- whether, remand, in the event of a Cross-Appellees. it, portion or some of should be reas- Lustberg, Lawrence S. Alicia L. Ban- signed to judge. another district These non, P.C., Newark, NJ, Gibbons for amicus issues appeal arise on an from the Decem- curiae International Association of Black 8, 2011, ber cross-appeal order and a from Firefighters Professional and Black Chief 21, 2012, February partial final judgment Committee, Officers in support of Plain- of the United States District Court for the tiffs-Appellees-Cross-Appellants. (Nicholas Eastern District of New York G. Garaufis, Godsil, Pearson, Judge) District in a Kathryn brought
Rachel suit Jon Houter, Romberg, Andrew against City Van Seton Hall United States of Law, University (“the of School Center for So- New York. Society, The Vulcan Inc. Justice, Newark, NJ, cial for amicus curiae Inte'rvenors”), Vulcans” or “the organi- Institute, American in support Values of intervened, zation of firefighters, black2 Plaintiffs-Intervenors-Appellees. along with several firefighters. named The complaint Intervenors’ added as de- Moore,
ReNika Adegbile, C. Debo P. Department fendants the Fire City Boddie, Smith, Elise C. Johnathan J. Ria (“FDNY”), of New York the New York Tabacco, A. Legal NAACP Defense and City Department Citywide of Administra- Fund, Inc., York, NY; Educational New (“DCAS”), Mayor tive Services Mi- Civin, D.C., Joshua Washington, for ami- Bloomberg chael and then-New York Legal cus curiae NAACP Fire Defense & Edu- Fund, Inc., cational in support Scoppetta Commissioner Nicholas Appel- their lees. capacities. individual and official adopted 2. We have the form of racial identifi- Vulcans. (without capitalization) cation used history. Discrimination New York the December City appeals from The City Hispanic has a substantial black and issuing far-reaching perma- order According to the population. Department City. City The injunction against nent City Planning, in blacks were for appeal brings up contends Hispanics percent were 27 percent 13, 2010, January grant- order review time, population. percent- At that against summary judgment ing age firefighters who were black was 2.6 claim, disparate treatment the Intervenors’ percentage Hispanic and the who were intentional discrimination. alleged which percentage minority was 3.7. The low cross-appeal from the Intervenors personnel persisted in the FDNY has 1, 2012, partial judgment, final February only 4 some time. From 1963 to 1971 54(b) to Rule of the Fed- pursuant entered employees all FDNY percent were Procedure, dismissing Rules of Civil eral pending litigation black. com- When against claims Defendants Intervenors’ percentages menced in of black Fire Mayor Bloomberg and Commissioner Hispanic firefighters had increased to immunity. grounds of Scoppetta on percent, respec- percent 3.4 and 6.7 (1) summary judgment conclude that We tively. firefighter percentage The black the Interve- improperly entered on significantly York been New has (2) claim, disparate treatment nors’ below those for other cities with substan- Mayor against law claims federal and state population. tial black for exam- dismissed, as Bloomberg properly were firefighter ple, percentage when the black law claims Commis- were the state percent, for New York was 2.9 law Scoppetta, but the federal sioner percentages percent Ange- were 14 Los *6 Scoppetta against claims Commissioner Houston, les, percent in 20.4 percent 17.1 (3) reinstated, portions most should in Chicago, percent in and 26.3 Philadel- unchallenged injunction the based on the percentage of fire- phia. The black finding were the disparate impact within fighters significantly has also been below discretion, but District remedial Court’s percentages the for other uniformed ser- portions portions, particularly other those 2000, City. vices in New York As of the improper on the based in FDNY percentage of blacks the was 3.8 discretion, ruling, treatment exceeded that in Police De- percent; percentages the the (4) remand, trial on the and on the bench Department, and partment, the Sanitation liability phase of the treatment 16.6, Department the were Corrections City the reas- claim should be 24.3, 61.4, respectively. and judge. signed to a different district We 1973, In examination for en the written therefore, part, in in part, affirm vacate City firefighters was try-level New York and remand. discriminatory impact on held to have a Society minority applicants. See Vulcan Background City Dep’t, Inc. v. Civil New York Fire Commission, 1265, F.Supp. procedural factual and Service The extensive (S.D.N.Y.), part, relevant litigation is set forth in in background of aff'd Cir.1973). (2d Entry-level exams in New F.2d 387 detail United States (E.D.N.Y.2009) York, had firefighters for in 1988 and 1992 F.Supp.2d used blacks,3 although use Impact Op.”). disparate impact on (“Disparate 2.2, candidates, percentage was and percentage the black 3. The of blacks who took the 1988 10.9; 5,000 scoring percentage was 1.3. In highest hired exam was challenged was not The FDNY administered the Exams to of these exams 34,000 firefighter applicants more that and court. 5,300. 3,100 hired more than Of the blacks Pending litigation—disparate impact 4,200 Exams, Hispanics and who took the claims. August In filed Vulcans the FDNY hired 461 blacks and 184 His- complaint discrimination an unlawful pass panics. For Exam No. rate Equal Employment Opportuni- the federal percent for whites was 89.9 and for blacks (“EEOC”)- Exam No. percent. 60.3 For ty Commission The EEOC pass percent rate for whites 97.2 and complaint to the subsequently referred percent. or blacks 85.4 May Department of Justice. (“the Government”) complaint alleged The Government’s
United States
sued
job-related
the Exams were neither
VII,
challenging
Title
two
under
necessity,
nor consistent with
and
business
separate
employment procedures
FDNY
sought
enjoin
challenged
procedures
screening
selecting entry-level
and
require
“appro-
take
firefighters alleged
unjustified
to have an
priate action to
present
correct the
effects
disparate impact
Hispanic
on black and
discriminatory policies
prac-
of its
applicants. Specifically, the Government
tices.”
challenged the use of two written examina-
5, 2007,
September
On
the District
tions,
No.
administered
permitted
and several
Vulcans
(the
No.
administered
“Ex-
named individuals to
The In-
intervene.4
ams”),
initially
applicants
screened
on
complaint
tervenors’
added as defendants
pass/fail
basis.
Government also
DCAS,
FDNY, Mayor Bloomberg,
challenged
processing
the rank-order
Scoppetta.
and then-Fire Commissioner
i.e.,
applicants,
establishing
passing
After the District Court bifurcated the
score to reflect FDNY
needs
new re-
separate liability
ease into
phas-
and relief
scores,
listing,
cruits and
in order of test
es, the Government and the Intervenors
all applicants above that score. Candi-
partial summary judgment
moved for
passed
dates who
the written FDNY Ex-
Thereafter,
disparate impact
claim.
physical performance
ams and a
test were
23(b)(2)
Court, pursuant
to Rule
*7
place on a
eligibility
rank-order
list that
Procedure,
Federal Rules of Civil
certified
based,
part,
was
in
on the written exami-
consisting
applicants
a class
of black
nation score.
position
entry
firefighters.5
of
level
8.5;
percentage
taking
firefighters
firefighter
of blacks
appli-
the exam was
All black
cants who sat for
Written Exam
percentage
either
7029
hired was less than 2.
or Written Exam
[and]
were harmed
following employ-
one or more of the
previously
4. The Intervenors had
filed a com-
practices:
ment
plaint without
leave of the District Court.
(1) Defendants’ use of Written Exam 7029
complaint
jury
That
contained a
demand.
pass/fail screening
aas
device with a cutoff
granting the Intervenors leave to file a com-
84.75;
score of
5, 2007,
plaint
September
the District
(2)
processing
Defendants’ rank-order
of
Court noted that the Intervenors and the De-
7029;
applicants
passed
who
Written Exam
fendant, i.e.,
City,
right
had waived their
(3) Defendants’ use of Written Exam 2043
jury
permitted
to a
trial. The Intervenors’
pass/fail screening
as a
device with a cutoff
25, 2007,
complaint,
September
filed on
does
70.00;
score of
and
demand,
jury
not contain a
and no defendant
(4)
processing
Defendants’ rank-order
of
has made such a demand.
applicants
passed
who
Written Exam 2043.
York,
City
United States v.
New
258 F.R.D.
of
(E.D.N.Y.2009).
5. The class consists of:
claim,
22, 2009,
alleging that the Defendants’ use of
the District Court
July
On
and the Interve-
the Government’s
granted
employment
challenged
procedures
summary judgment on the
motion for
nors’
constituted
intentional
discrimination
Disparate
See
impact claim.
disparate
applicants.
black
That claim rais-
F.Supp.2d at 132. The
Op., 637
Impact
appeal.
es one of the central issues on this
Exams and the rank-
ruled that the
25, 2008,
July
On
District Court
im-
disproportionately
ordering of results
applicants,
augment
motion to
Hispanic
black and
denied the Intervenors’
pacted
its burden
City
not satisfied
had
claim
their
treatment
demonstrating
employment
amending
complaint
challenge
their
“ad-
“job-related” or “consis-
were
procedures
discriminatory screening
ditional
and se-
necessity.” Id. at 84-
with business
tent
lection devices” used from 1999 to the
im-
finding of disparate
The Court’s
132.
that,
present. The Court noted
at the
undisputed statistical
was based on
pact
sought to
time that
the Intervenors had
showing
Hispanic
that black and
intervene,
represented
they
had
they
failed the
applicants disproportionately
them,”
“taking pleadings
they
find
were
application
Exams and on meticulous
simply seeking
dispa-
to add the
were
Ass’n
decision Guardians
Court’s
claim.
rate treatment
Dep’t. Inc. v.
City
New York
Police
(2d
Commission,
82 Summary Judgment Ruling any on to that person group
II. The
cause
believe
or
of
in a
persons
engaged
pattern
prac-
is
or
Disparate Treatment
the Intervenors’
tice of
to
full enjoyment
resistance
of
Claim
any
rights
by [subchapter
of the
secured
considering
grant
the District Court’s
21],
chapter
of
that
pattern
VI
or
summary judgment
of
to the Intervenors
practice is of such a nature and is intended
claim,
disparate
on their
treatment
which
deny
.rights
to
the full exercise of the
discriminate,
requires an intent to
we note
....”7 A group
plain-
herein described
questions
subjective
that
the outset
tiffs,
class, may
entitled to
a
be certified as
rarely
by summary
intent can
be decided
pattern-or-practice
also initiate a
suit. See
Fitzgerald,
v.
judgment. See Harlow
Cooper v. Federal Reserve Bank
Rich-
800, 816,
U.S.
102 S.Ct.
73 L.Ed.2d mond,
467 U.S.
876 n.
(1982).
principal
presented
The
issue
(1984) (“[T]he
2794,
83
types
Both
of suits involve a scheme of
individual and
Comparison of
shifting
by
contending
burdens borne
next com
claims. We
pattern-or-practice
both,
plaintiff
sides.
bears the ini-
pattern-or-practice
and
individual
pare
presenting
prima
tial burden of
a
facie
difference between
principal
claims. The
Douglas,
case. Both McDonnell
411 U.S.
pattern-or-practice
and
discrimi
individual
807,
1817,
Teamsters,
93 S.Ct.
431
that, although
claims is
natory treatment
336,
1843,
U.S. at
97 S.Ct.
refer to the
discriminate, an
require an intent to
both
plaintiffs initial burden as a burden to
requires an intent to dis
individual claim
case,”
meaning
establish “a
facie
see,
person,
e.g.,
one
against
criminate
a
sufficient evidence to create
rebuttable
Green, 411
Douglas Corp. v.
McDonnell
presumption of the existence of the ulti-
L.Ed.2d 668
93 S.Ct.
U.S.
Douglas,
mate fact at issue: in McDonnell
(1973),
claim re
pattern-or-practice
and a
employer’s
intent
to discriminate
that “racial discrimination was
quires
against
plaintiff,
and in
operating procedure[,]
standard
company’s
employer’s pervasive practice of intention-
prac
regular rather than
unusual
al discrimination
the class. The
tice,”
Brotherhood
Team
International
Supreme
general
Court has noted that
States,
324, 336,
431 U.S.
sters v. United
phrase ‘prima
only
facie case’ not
“[t]he
(1977), and
can be
alone
in a
and has not used that word to
describe
prima
pat-
employer’s
pattern-or-practice
case constitute
facie
burden in a
respect,
discriminatory impact,
job-related.
In this
the rebuttal burden
have a
on
employer
Paper
Moody,
in a
treatment case
See Albemarle
Co. v.
422 U.S.
405, 424,
disparate impact
is less than the burden in a
95 S.Ct.
satisfy production pat- its burden of in a In tern-or-practice case. Teamsters the course, always Of it is open to a employer’s stated that the Supreme Court defendant to meet its production burden of prima burden was “to defeat facie by presenting a direct attack on the statis showing pattern practice by or demon- tics upon prima relied to constitute a facie strating the Government’s A might case. defendant endeavor insignificant.” either inaccurate or plaintiffs show that the statistics are inac at 1843 (emphasis U.S. add- curate, for example, infected with arithme ed). emphasized ques- words raise a errors, lacking tic or signifi statistical Supreme tion whether Court cance, example, based on too small a thought employer’s rebuttal evidence sample. But the rebuttal not need be so must be directed at the statistics that often may limited. A defendant rebut the infer prima constitute the facie case of discrimi- a by accept ence of intent simply pre- nation or at the rebuttable ing plaintiffs a producing statistics and sumption discrimination arises from non-statistical evidence to show that it those statistics. Teamsters, such an intent. lacked Supreme recognized
We think the
meant that the em-
this means of
Court
Court
ployer
produce any
rebutting
prima
by stating
must
evidence that is
a
facie case
rebutting
employer’s
provide
relevant to
the inference of dis-
that “the
burden is to
a
plaintiff
nondiscriminatory explanation
ap
crimination. No
can limit
for the
type
parently discriminatory
of evidence that a defendant must
result.” 431 U.S.
produce
Again,
to rebut a
facie case
at 360 n.
12. In
Court had no
a
that had been
tried on the
case
employer's
need to label the nature of the
merits.
rebuttal burden because the Court was re-
son, has
the sentence
might have been created Larson’s
rewritten
confusion
Some
and,
quoted
significant-
in Robinson
more
in the late
point by
passage
on this
making
it clear
ly, includes
subsection
Arthur Larson’s treatise on em-
Professor
evidence,
including
that non-statistical
this Court
ployment discrimination
efforts,
action
are
employer’s affirmative
Robinson,
159. That
quoted
probative
“both relevant to and
of absence
begins by stating, “Three basic
passage
Larson,
óf intent to discriminate.”
Lex
open to the defen-
avenues of attack are
9.03[2][c],
§
Employment Discrimination
statistics,
challenging
plaintiff’s
dant
(2d ed.2011) (footnote omitted).
at 9-20.1
source,
namely
accuracy,
on the
assault
recognized
have
that non-statistical
We
al,
1 Arthur Larson et
probative force.”
evidence,
such as defendant’s affirmative
9.03[2],
§
Discrimination
Employment
program,
probative
action
of the absence
(2d ed.2001)
added).
(emphasis
This
9-23
*14
employer’s
of an
intent
to discriminate.
sentence,
isolation, might
read in
be
Moore,
746,
See Coser v.
739 F.2d
751-52
chal-
thought
require
employer
to
to
(2d
Sears,
Cir.1984); see
v.
also EEOC
lenge
plaintiffs
statistics as such. But
(7th
Co.,
302,
Roebuck &
839 F.2d
dispelled by
Prof.
interpretation
that
(“[SJtatistical
Cir.1988)
only
evidence is
recognition
pas-
in the
Larson’s later
same
rebutting
a
one method
statistical
Robinson,
in
at
sage,
quoted
also
case.”). Although cases such as Coser and
159,
may
that a defendant
use “other non- Sears,
considering
Roebuck were
evidence
tending
statistical evidence
to rebut
negate discriminatory
available
intent at
Larson,
inference of discrimination.”
su-
trial,
why
we see no reason
a defendant
added).
9.03[2],
§
pra,
(emphasis
at 9-24
may
proffer
satisfy
not
such evidence to
Indeed,
Employ-
the current version of
in
production
burden of
advance of trial on
Discrimination,
by
compiled
ment
Prof.
the merits.14
dissenting colleague
13. Our
contends that we
at
But the referenced sentence from
103].
plaintiff's "proof,”
have
Teamsters refers to the
"conflate[d] two distinct tests set out in
defendant,
jurisprudence,”
plaintiff's
by
“statistics.” A
our
treatment
[dis-
presenting
choosing
evidence of its
that it
plaintiff pres-
sent at
and that where a
101]
intent,
lacked a
satisfies its
prima
ents statistics to establish its
facie case
showing
plaintiff’s
rebuttal burden of
that the
pattern
practice
pervasive
or
or
discrimi-
prima
significance.
facie
lacked
Fur-
nation,
necessarily
"those statistics must
thermore, although
suggests
the dissent
that
addressed”
the defendant’s rebuttal evi-
ignored
by permitting
we have
Teamsters
a
dence,
[dissent
104].
prima
defendant to rebut a
facie case without
contention,
explicitly
As to the first
we have
statistics,
directly challenging
plaintiff’s
it
recognized
plain-
the crucial
a
difference that
opinion
says,
is the Teamsters
itself that
"We
endeavoring
present
pattern
prac-
a
tiff
or
suggest
any
do not mean to
that there are
tice claim of intentional discrimination must
particular
type
limits on the
of evidence an
prove pervasive pattern
a
of such discrimina-
employer may
plaintiff’s prima
use” to meet a
plaintiff endeavoring
pres-
tion
a
whereas
46,
facie
sters
This statement in
an
rebut a
facie case
required
offering nondiscriminatoiy explanation,
the issue in that case was not the
a
rebuttal,
(b)
content of a defendant’s
but "wheth-
U.S. at 360 n.
97 S.Ct.
pattern-or-practice
Supreme
er recourse to the
eviden-
Court did not intend to limit the
use,
tiary
appropriate
type
employer may
framework is
in a suit
of evidence an
id. It
brought pur-
required by
point
individual state officials
is also
the incontestable
plaintiff
adversary’s
§
suant to 42 U.S.C.
1983 for intentional dis-
that no
can limit its
re-
type
sponding
crimination.”
prima facie
then the court ‘must find
the existence of the presumed fact of un-
Second, the District
rejected
must, therefore,
lawful discrimination and
City produced
evidence the
to satisfy
”
render a verdict
plaintiff.’ Dispa-
for the
production
burden of
as “either incredi
rate
Op.,
Treatment
F.Supp.2d
252 ble
inapposite.”
Disparate Treatment
Hicks,
(quoting
U.S. at
509-10 n.
Op.,
technically left unresolved—since the
Hicks,
ment.”
90
arise “at
Guardians,
that the Court said would
630 intent
exams,17see NYC
related
any
disparate-
Title
VII
end
“extensive
(noting employer’s
F.2d at 112
Disparate Treatment
inquiry.”
treatment
they hoped
a test
develop
...
to
efforts
(emphasis
at 252
F.Supp.2d
Op.,
validity”),18 and
requisite
have
would
improper,
was
the Court
original). This
recruitment,
minority
see
the efforts
al-
“if defendants were
thought, because
Davis,
246, 96
426 U.S.
Washington v.
or circumvent
bur-
lowed to
their
sustain
(“[A]ffir-
(1976)
2040, L.Ed.2d 597
S.Ct.
by invoking the
production
den of
ultimate
employer] to
municipal
[of
mative efforts
intent,
burden-shifting
struc-
issue of
any in-
negated
...
black officers
recruit
nullity.”
become a
Id.
253.
ture would
discrimi-
[employer]
that
ference
....”).
A
disagree.
defendant seek
nated
We
“defeat,”
431 U.S. at
ing to
appeared to con-
also
The District Court
facie case of inten
a
inapposite be-
City’s
sider the
evidence
stage
at the rebuttal
tional discrimination
cause,
opinion,
was
in the Court’s
every right
produce
evidence
has
competing
a
ac-
“construct
not entitled to
intent.
that it did not have such an
show
Treat-
Disparate
of its behavior.”
count
conclusory denial will
suf
Although a
253. This
F.Supp.2d at
Op.,
ment
fice,
support
that tends to
a deni
runs
City’s rebuttal
view of the
burden
always
Su
permissible.
al is
When the
Supreme
to the
Court’s
directly counter
preme
said
Teamsters that
Court
employ-
that “the
in Teamsters
statement
satisfy
may
produc
its burden
a nondiscrimina-
provide
er’s
burden
nondiscriminatory
by “providing]
tion
apparently
dis-
tory explanation for
discrimina
explanation
apparently
for the
n.
just employer’s because the rebuttal not pact known, proves, light prima meets the facie but case is also history of minority low hiring, relevant to the ultimate trial. issue City used the Exams with intent Nothing in obliges Teamsters an employer trial, discriminate. Prior the City to withhold its negating a dis- provided a sufficient rebuttal to the Inter- criminatory intent until that trial occurs. venors’ facie granting
Fourth, the District Court faulted the of the Intervenors’ motion summary City for “attempt[ing] to judgment circumvent its was error. production
burden of entirely by arguing III. Dismissal of Against Mayor Claims that the Intervenors have proved that Bloomberg and Scop- Commissioner City subjective harbored a intent petta against discriminate applicants.” black Disparate Op., Treatment F.Supp.2d The District Court dismissed the Inter- at 251. The Court understood the to venors’ Title VII claim against Mayor faulting the Intervenors for “failure to Bloomberg and former Commissioner produce direct evidence of the relevant Scoppetta for failure to state claim on culpable decisionmakers’ mental state.” which relief granted, could be see Fed. added). Id. (emphasis That was not what 12(b)(6); R.Civ.P. dismissed the Section said. oppos- memorandum 1981 and Section 1983 claims against these ing the Intervenors’ summary motion for officials on the ground qualified immuni- judgment on ty; treatment the state dismissed law claims claim, stated, “Plaintiffs-Interve- these ground officials on the not, nors have either byor infer- directly immunity. official Disparate See Treat- *19 ence, provided which prove an Op., 243-45, would ment 683 at F.Supp.2d 269- facts arising
tion from explanation contrary proof.” facie case “obli- Disparate or gates to come Op., with an F.Supp.2d forward Treatment 683 at 252. 92 Equal Protection § 1981 or the Interve- lated cross-appeal, the their
72.20 On
rulings, but
Id.
immunity
Clause.”
challenge the
nors
12(b)(6)
was
ruling, which
Rule
not the
public
mean that a
did not
Court
County
correct,
v.
see Patterson
plainly
that
not have known
official would
Cir.2004)
(2d
206,
Oneida,
221
F.3d
375
1981 or the
would violate Section
official
(individuals,
distinguished
employ-
from
as
intentionally
Equal Protection Clause
VII).
entitles,
Title
not liable under
ing
on the
action
taking
employment
adverse
law
immunity
Qualified
for
federal
proposition
That
of race.
obvious
basis
immu-
qualified
for
claims. The standards
1976,
since
see
been clear
least
has
v.
See Anderson
nity are well settled.
239-41,
426
96 S.Ct.
Washington,
U.S.
640,
635,
107 S.Ct.
Creighton, 483 U.S.
clear to the
would not be
2040. What
(1987);
v.
3034,
Mitchell
L.Ed.2d 523
97
stated,
officials,
the District Court
530-36,
105 S.Ct.
Forsyth, 472 U.S.
burden-shifting analy-
that the “Title VII
Harlow,
(1985);
411
457
L.Ed.2d
whether an
apply
sis” would
“to determine
818,
93 public employees hand, on the spective basis of the other stated that Court there race, the official is shielded quali- not was “no directly evidence that and unmis- immunity simply fied because official takably proves that fact.” Id.
might have been
that at
unaware
trial a
question
We
both observations.
burden-shifting
regulate
scheme would
one,
As to the second
there
require
is no
of ensuing
conduct
“For a
litigation.
con-
ment that an intent to discriminate must
right
established,
clearly
stitutional
to be
proved
be
“directly and unmistakably.”
its contours
sufficiently
must be
clear that
any
Like
element in a civil
the ele
a reasonable officialwould understand that
ment of discriminatory intent need be
doing
what he is
violates that
right.”
proven only by a preponderance of the
Pelzer,
730, 739,122
Hope v.
536 U.S.
S.Ct.
evidence. See
336,
431 U.S. at
(2002)
153 L.Ed.2d
(emphases
666
97
intent,
S.Ct. 1843. And
any
like
state
added)
(internal quotation marks omit-
mind,
may
proved by
circumstances
ted).21
reasonably supporting an inference of the
Having rejected the District Court’s
requisite
See,
intent.
e.g.,
Koren,
Blue v.
stated reason for dismissing the federal
(2d
Cir.1995)
72 F.3d
(requiring
ground
qualified
claims on the
immuni
“particularized evidence of direct or cir
ty, we next consider whether the record
cumstantial
facts” bearing on improper
supports dismissal of these claims on the
motive in order to resist defendant’s mo
ground that
the Intervenors have not
tion for summary judgment).
shown a violation of a
right.
federal
District Court did not reach that compo
time,
At
the same
we cannot
qualified
immunity,
nent
Siegert
see
agree with the District Court
226, 232,
Gilley,
500 U.S.
111 S.Ct.
record revealed “copious evidence” of the
(1991),
In considering whether the record would upon [the action’s] adverse effects an iden permitted have dismissal on ground tifiable group.” Iqbal, 676-77, 556 U.S. at (internal that the officials had violated a not federal quotation S.Ct. 1937 marks right, we encounter conflicting omitted; two state- and citation brackets in original); ments the District opinion. Court’s On see Personnel Feeney, Administrator v. hand, the one referred to “copi- 256, 279, U.S.
ous evidence”
(1979)
from
which
reasonable L.Ed.2d 870
(noting that “discrimi
fact-finder could infer that
natory purpose”
officials
implies
just
“harbored”
an intent
to discriminate
possessed
decisionmaker
“intent as aware
applicants.
black
Disparate
See
consequences”
ness of
but that he “select
Op.,
Treatment
F.Supp.2d
at 270. On ed or
particular
reaffirmed a
course of
event,
any
(2d
burden-shifting pro-
Cir.1980),
Title VII
and Section
see
previously
applied
cedures have
been
Westchester,
suits
County
Annis v.
136 F.3d
under both Section
see Hudson v. Inter-
(2d
1998).
Cir.
Corp.,
national Business Machines
*21
FDNY, his involvement
heading the
of, not
sioner
because
part
least
action at
using the re-
decision to continue
in the
upon
effects
of,
adverse
merely
spite
an intent to
Exams indicated
(internal
of the
sults
group”)
quotation
an identifiable
ours to
decision
Were the
omitted).
am-
discriminate.
contains
The record
marks
infer-
such an
make,
would not draw
we
of
officials’ awareness
of the
evidence
ple
more limited one
ence,
our task is the
Exams, and
but
of the
impact
disparate
such
inference
determining whether
of
awareness.
dispute such
not
they do
fact-
by the
reasonably be made
could
evidence
sufficient
it contains
Whether
Mayor,
howev-
respect to
finder. With
action
a course of
undertook
they
that
not suffice to
er,
the record does
think
further
we
requires
impact
that
of
because
to draw a reasonable
a fact-finder
permit
consideration.
light
intent to
of
discriminate.
inference
Inter-
cited
Most of the evidence
upon the
myriad
imposed
duties
of the
resisting
their burden of
satisfy
venors to
city
eight
of
officer of a
chief executive
judgment
summary
motion for
the officials’
evidence would be
more
people,
million
take,
officials did not
steps the
concerns
to find that
a fact-finder
permit
to
needed
they un-
of action”
rather than
“course
department
municipal
one
of
decision
Intervenors
example, the
For
dertook.
of the Exams
using the
to
results
continue
have
Exams
to
to the failure
point
discriminatory in-
an inference of
supports
use and
their continued
prior to
validated
Mayor.
part
tent
on
develop
promptly
failure to move
their
do not
Although we
exam.
new valid
Immunity
state
Official
failure of senior officials
doubt
doctrine of
The common-law
law claims.
an inference of
support
discrimina-
act can
employees
immunity
public
shields
official
circumstances, particu-
tory
in some
intent
discretionary actions
liability for
“from
position
in a
to avoid
they are
larly where
govern
during
performance
taken
see,
consequences,
likely unconstitutional
and “is intended to en
functions”
mental
rel.
Os-
ex
Larkins
e.g., United States
are free to ex
public
servants
sure
Cir.1975) (Cor-
(2d
wald,
F.2d
decision-making authority
their
ercise
for unwar-
liable
rections Commissioner
the courts.”
interference from
without
inmate),
we
solitary confinement
ranted
York, 18
New
N.Y.3d
Valdez v.
the cited
omissions
do
believe
69, 75-76,
936 N.Y.S.2d
N.E.2d
Mayor or
Commissioner suffice
Here,
(2011)
immunity).
(municipal
they
a reasonable inference that
support
Court, Dis
by the District
as explained
they
act because
wanted
declined to
F.Supp.2d
Op., 683
Treatment
parate
against
applicants.
black
discriminate
270-72,
of two of the
the decision
to continue hir
highest-ranking officials
aof
principal
eligibility
from
lists based
ing firefighters
arguably undertaken
of action
course
discretionary deci
the Exams involved
deci
is the
purpose
discrimination
sionmaking.
the results of the
using
to continue
sion
affirm
District Court’s
of their
We therefore
Exams with awareness
and state
to dismiss
law
decision
federal
disagree
we
impact. Although
with
Mayor Bloomberg on the
against
“copious evi
claim
that there was
District Court
immunity,
official
qualified
grounds
to discrimi
intent
dence” of
officials’
to dismiss state
affirm the decision
law
nate,
fact-
say
cannot
reasonable
we
Scoppetta on
infer,
claims
Commissioner
from all the evi
might not
finder
immunity, but vacate
ground of official
dence, that,
respect
Commis-
decision to
dismiss federal law claims
“close and continuing supervision” is “as
*22
against
Scoppetta
Commissioner
applicable
the
remedy
the
for
City’s
the
grounds
qualified
of
immunity.
violation of
disparate
the
impact provisions
of Title VII as it is to the remedy for the
Scope
Injunction
IV.
of the
City’s intentional
discrimination
scope of
black firefighter
“[T]he
a district
candidates.” United
powers
court’s
City
remedial
under Title
States v.
York,
VII is
New
No. 07-cv-
of
2007,
determined
purposes
4639832,
(E.D.N.Y.
the
of
2011
the Act.”
WL
at *11
5, 2011).
431
at
Oct.
U.S.
The District expressed Court ing the view disparate impact of a hiring conclusion concerning exam, the need for considerably more is warrant- relief We York, note recently 07-CV-2067, that the District States v. New No. approved use of the of a new results (E.D.N.Y. 28, 2012). 2012 WL Sept. entry-level exam firefighters. See United any exam with use of bars the distressing light case ed in this that is Hispanics against blacks minority hiring. impact FDNY limited pattern job-related. determination the 1973 after Even ra- because was invalid hiring exam requires approval Paragraph 16 Society impact, see Vulcan cially disparate in the hir- taking any step Monitor before F.Supp. Dep’t, Fire New York process. ing black City’s percentage *23 for com- 17 bars retaliation Paragraph or remained at has firefighters entry-level Para- discrimination. plaining against decades, and for several percent 4 below against black discrimination graph 18 bars com- percent of 3.4 percentage current the The candidates. firefighter Hispanic or achieved percent to the 16.6 woefully pares requires 19 paragraph of first sentence and Department Police city’s of intentional vestiges all elimination of City’s Correc- by the achieved percent 61.4 re- discrimination; sentence the second provi- Although some Department. tions and policies of all quires the elimination justified be injunction cannot of the sions discriminatory impact have a practices that of discriminato- finding absence in the candi- firefighter Hispanic on black and are well within intent, many provisions ry dates. remedy aas discretion District Court’s liability in view discriminatory impact for compliance with requires 20 Paragraph by the minority hiring history of of the Monitor. of the instruction un- City’s recalcitrance and the FDNY certain ex- specifies, with Paragraph steps. remedial dertaking be required all submissions ceptions, Injunction Terms” of The “General and the fire by the Commissioner signed exams and challenged enjoin the of use and and be reviewed Counsel Corporation discrimination prohibit prospectively Mayor. by the approved Hispanic applicants or against black require prior 22-24 notice firefighter. Paragraphs entry-level See position concerning parties and the at *4. the Monitor Op., 2011 WL Injunction preparation hiring details section new and Remedial Measures” “Specific eligibility lists. five substan- of new Injunction focuses Development Firefighter Test tive areas: require recruitment Paragraphs 25-30 Administration, Candidate Firefighter and efforts, hiring of a recruit- including Recruitment, Mitigation Plan and Attrition consultant, of a re- preparation ment Firefighter Entry-Level Reassessment compliance report, cruitment either Firefighter Selection, Post-Examination recommendations with the consultant’s Compli- EEO Screening, and Candidate them. following explanation Id. at *4-13. ance Reform. to miti- require steps Paragraphs 31-36 specific provisions describe We process. during attrition selection gate form.23 injunction abbreviated steps require various 37-46 Paragraphs Exams the use of bars Paragraph exams are administered. taken 6019,25 be after 7029, 2043, paragraph prohibition of the use of injunction's summary 25.The wording statements 23. The of these specific varying permission replaces the interim is not to understood Exam injunction. terms of the given previously to use exam. used in Paragraphs 1-13 define terms injunction. Paragraphs 37 and 38 require detailed itor to oversee the long-awaited FDNY’s any written record of oral conversations progress toward ending discrimination, that concern a Paragraph candidate. 39 ordering development policies to assure requires designation of a senior official to compliance with anti-discrimination re- the writing requirement. enforce Para- quirements, requiring efforts to recruit graphs 40 and 41 require written proce- minority applicants, ordering steps conducting dures for background investi- minority attrition, lessen ordering a docu- gations of candidates. ment retention policy, and requiring com- prehensive review of the process entire
Paragraphs require 47-51 steps, various selecting entry-level firefighters. Howev- including appointment of an EEO consul- er, we believe provisions several tant, must be compliance to assure equal em- deleted, modified or primarily because of ployment opportunity requirements. our vacating the grant of summary judg- Paragraphs 52 and require develop- *24 ment on the disparate treatment claim. compliance ment of and with a document policy. retention Paragraphs 54 and 55 Paragraph 19 must be modified to delete require discovery through pro- document sentence, the first which based on a deposition duction and availability to as- finding of intentional discrimination that compliance injunction. sure with the we subject have vacated to pro- further Paragraph ceedings. 56 authorizes sanctions for The second sentence generally noncompliance. barring policies and practices with a dispa- rate impact must also be modified to bar Paragraphs 57-77 Mark appoint S. Co- only those policies practices and job- not Monitor, duties, hen as specify his and related required necessity. business necessary authorize staff. Paragraphs provide 78-80 for the reten- Paragraph 21 must be modified to elimi- jurisdiction tion until at January least nate approval of submissions the Cor- Paragraphs 82 require poration Counsel, party is not a who to this costs, pay fees, to attorney’s and all litigation, and the Mayor, whose dismissal expenses. we have affirmed. Although we can un- derstand the District Court’s concern in After reviewing provisions these litigation against to have the light of the unchallenged disparate im City’s chief executive officer and chief le- (as pact finding, the yet) absence gal officer assume direct responsibility for proper disparate finding, treatment submissions, all requirements these are an FDNY’s record of minority hiring, minimal excessive intrusion into the duties of offi- broad, and the District Court’s but not cials charged with citywide responsibilities, limitless, discretion in fashioning appropri in the absence of either liability their or an relief, ate we conclude that the principal indication that imposing requirements on components of injunction appropri are the head of the department relevant will ate, but that several modifications must be inadequate. made.
In addition to proscribing use of the Paragraphs 26-29 must be modified to invalid exams and preparation of valid ex- requirement eliminate the of an outside ams, the District entirely Court was war- and, instead, recruitment consultant to as- in ordering significant ranted sign affirmative the consultant’s appropriate tasks to (although relief declining to any City order employees. Although the record war- hiring quota), including appointing a Mon- performance tasks, rants these it does of an requirement 26-29, to eliminate City with the burdening the require assign to EEO consultant outside an outside consultant. expenses
extra EEO to FDNYs tasks consultant’s the Monitor determines In the event that Monitor de- In the event that are not Office. employees designated City employees functions, designated he termines their adequately performing func- their adequately performing are not designation for to may apply desig- for tions, to the Court may apply 29 must he Paragraph consultant. an outside Para- consultant. of an outside modified, reason nation for the same be further modified, further graph 50 must be to eliminate paragraph to applicable 21, to Paragraph applicable Mayor’s approval. same reason requirement Mayor’s requirement of eliminate modified, must be 34-36 Paragraphs and certification. signature paragraph applicable to the same reason Mayor’s obligations to eliminate be modified 54 must Paragraph Fire those of the Commis- “any and substitute “any additional change document” sioner. non-privileged documents.” must be eliminated.
Paragraphs 37-39 must be modified 66 and 68 Paragraphs writ- contemporaneous requirement “reasonable change “short notice” concern- communications of all ten records must be modi- notice,” paragraph intrusive, least too ing hiring far days.” week” to “30 change “one fied to *25 dis- finding of intentional the absence to add 71 must modified Paragraph be crimination. Court, upon City may apply to “The modified and must be Paragraphs 40 to end the notice to the parties, reasonable intrusive, eliminate, detailed too to as Monitor’s of the of some all employment policies and PRB for CID requirements upon a demonstration and consultants staff requirement of devel- procedures; and of its burden has satisfied subject are oping procedures written Paragraph in proof specified modified remains. approval to the Monitor’s 78.” eliminated, for Paragraph must be to be modified Paragraph 78 must paragraphs to applicable reason the same subparagraph in nor” to “nor” change “and 26-29. (e) (a), subparagraphs and to eliminate im- be eliminated as Paragraph must (f) discrimination. concerning intentional Monitor, great a burden on posing too in must modified sub- Paragraph 79 be eligible will remain although Monitor “2017”, (a) “2022” to change to paragraph meeting. any PRB to attend (b) to be modified subparagraph must modified, for the must be Paragraph 45 City’s next two civil of the change “second 21, to applicable paragraph to same reason next civil “City’s to hiring lists” service Mayor’s requirement eliminate retention list.” An hiring extended service and certification. signature in the ab- is not warranted jurisdiction of discrimina- modified, finding of intentional sence must be Paragraphs 47-51 Paragraphs tion.26 applicable reason to the same prac- policies and to end the previously five District Court measures
26. We note stated, trial the court con- perpetuated "If the bench the harmful ef- after that have tices that, among City has shown cludes that hiring discriminatory practices fects of those things, has ended its other it relinquish ju- will the court procedures, affirma- hiring practices and taken sufficient Paragraph must pearance justice”); eliminated. United States v. Robin, satisfy (2d is entitled to undertake to Cir.1977) (in bias, banc) (“Absent of proof burden to be relieved of the in- personal junction’s prospective requirements when- reassignment is advisable to preserve the ”). ever it believes can do appearance justice it so. .... Paragraph 83 must be modified Although the District Judge ex change disparate “and treatment claims pressed several FDNY, criticisms of the
that were” in line 3 to “claim that
was”
we see no basis
require
reassignment of
change
Disparate
“and
Opin-
Treatment
the entire case to a
judge.
different
How
and,
ions” in
“Opinion”,
lines 4-5 to
ever,
aspect
one
of the Judge’s handling of
change “those claims” in line 8 to “that
the case thus far warrants a limited form
claim.”
reassignment.
In granting summary
Although we have made several modifi-
judgment to the Intervenors on
pat
their
cations,
in
primarily
view of the
that a
fact
tern-or-practice discriminatory treatment
proper finding of intentional discrimination
claim, Judge Garaufis stated that
made,
has not been
place
we leave in
the City’s rebuttal evidence
opposition
many provisions that
the District Court
that claim was “either
inap
incredible or
wisely required
has
only
order not
to posite.” Disparate
Op.,
Treatment
remedy
impact of the chal- F.Supp.2d at 266.
lenged
put
exams but also to
the FDNY on
This assessment is cause for concern for
a course
compliance
future
toward
First,
two
reasons.
considering the suf-
Title VII.
ficiency
City’s
evidence,
rebuttal
modified,
As
injunction
is affirmed.27 District Court’s task
to deter-
mine
whether the
rebuttal evidence
*26
City’s
V. The
for Reassignment
Claim
to
City’s
satisfied the
burden of production.
a Different Judge
But the
beyond
Court went
that task and
that,
The
contends
in the
of a granted
event
summary judgment to the Inter-
remand, the case should be reassigned to a
Although
venors.
summary judgment at
judge
different district
because of what it
preliminary
the
stage might
proper
be
in a
alleges is bias on
part
Judge
case,
the
of
Garau
rare
the Intervenors have not cited
fis. That
an
is
extreme remedy, rarely
any case,
none,
and we have
in
found
imposed,
Jacobs,
see United States v.
955 which
employer’s
an
rebuttal evidence in a
(2d
Cir.1992)
F.2d
(reassignment
is
discriminatory treatment
case resulted
“extraordinary
an
remedy”
for
a summary judgment
reserved
plaintiff.
for the
case”) (internal
“extraordinary
Second,
quota
and more important,
it
im-
omitted),
tion marks
but occasionally war
proper for the District
any
Court to make
ranted,
bias,
even in the absence of
to
credibility
of
in considering
assessment
avoid an appearance
partiality,
of
His
sufficiency
see
of the City’s rebuttal to the
pamos
Equitable
Fair &
Reapportion
Hicks,
Intervenors’
facie case. See
(2d
Griffin,
ment v.
(determin-
Cir.
types
Team-
employers.”
of
group
or
employer
to uncover discrimi
aim
suits
Individual
If
360,
1843.
sters,
97 S.Ct.
at
431 U.S.
subject
“has been
plaintiff
a
nation where
burden, the
initial
plaintiff meets
his
of
because
treatment’
‘disparate
toed
showing
“defeat” that
must then
employer
Waters,
Corp
Constr.
race.” Furnco
that the Government’s
“demonstrating
by
2943, 57
98 S.Ct.
438 U.S.
insignifi-
or
is either
inaccurate
(Marshall, J.,
(1979)
concur
L.Ed.2d 957
added).
em-
If the
(emphasis
cant." Id.
Under
dissenting
part).
ring
part,
produc-
of
satisfy its burden
fails to
ployer
framework
Douglas
the McDonnell
liability
tion,
concludes the
the suit then
to show
required
plaintiff
individual
Id.
phase.
remedial
and enters the
phase
“(1)
protected
a
a
of
he is member
that
If the defendant
361,
103
802,
1817,
at
Burdine,
U.S.
instead the
248,
U.S.
Affairs
employer must “meet” the Government’s
(1981).
S.Ct.
proving ed.2001)). it: “In a put one As Court “spo- mere more than prove plaintiffs must action, utilizing statistical complex class discrimination; rather, they acts of radic counterproof, the value proof and discrimina- intentional must establish high- sequence—-to Douglas ] [.McDonnell operat- ‘standard defendant’s tion was the ” in contrast—is about the issues light Robinson, at 267 F.3d ing procedure.’ minuet is to a thermonuclear as a relevant 336, Teamsters, at 431 U.S. (quoting 158 Bank, Nat’l Vuyanich Republic v. battle.” 1843). has used plaintiff Once 97 S.Ct. (N.D.Tex.1981), 656, va- 661 F.Supp. 521 prima out its to make statistical (5th 1195 grounds, 723 F.2d cated on other then “defeat must employer facie Cir.1984). Thus, who at- employer an addressing showing” facie require- the Teamsters tempts displace Teamsters, 431 U.S. at those statistics. proof must Douglas with McDonnell ment are no Although there 360, 1843. 97 S.Ct. fail. employ- of evidence type on the “limits must use,” employer because may continuously acknowledged
er
have
Courts
demonstrate
case and
plaintiffs
Teamsters and
“meet”
between
these differences
insignificant, id. at
or
example,
it is inaccurate
Douglas.
For
McDonnell
1843,
were
46,
if statistics
n.
97 S.Ct.
in
opinion
360
its
year following
necessarily be
used,
statistics must
those
the distinc-
Court reiterated
Supreme
Douglas
addressed.
McDonnell
tion between
Waters,
Title VII
Teamsters in
cases.
burden
The Teamsters
575,
In Wa-
at
105
disparate treatment
claims are of two that Robinson
adopted
also
one of the
types,” either individual
to be
claims
ana-
predominant
most
differences between the
lyzed under
Douglas
McDonnell
or pat-
tests: unlike the
Douglas
McDonnell
bur-
tern-or-practice
brought
claims
under
den-shifting framework, the
un-
employer
Reynolds,
Teamsters.
In sters, addition to recognizing general these 431 U.S. at differences, this Court even went further required often to defeat the Reynolds v. Barrett and plaintiffs underscored statistical evidence.6 prescriptions This Reynolds Court’s sic” Reynolds, form rebuttal. F.3d at acknowledge 203; Robinson Robinson, the statistical (internal bind at 159 F.3d cita- employers cases, Thus, most omitted). will face. these Reynolds tion and Robinson the Court challenging stated that recognize statisti- that Teamsters allows for non-statis- cal "[t]ypical[ evidence, would ]” or the “ba- tical recognize but these cases also begin its To burden. in its more difficult interpretation our
Consistent
*32
announced
discussion,
court
district
the
our sister Cir-
Reynolds,
and
Robinson
their bur-
clearly met
that the Intervenors
dis-
Teamsters’
upheld
similarly
cuits have
undisputed
“sufficient
by presenting
Circuit,
den
Indeed, every
save
analysis.
tinct
fa-
support
statistical evidence
Circuits,
decided
has
Federal
First
the
and
or
pattern
City
had a
case that
cie
employ-
quoting that
specifically
eases
ap-
black
discriminating against
practice
is to demon-
Teamsters
under
er’s burden
Not
Op 28-29.7
Dist. Ct.
plicants.”
proof
offered
plaintiffs
that
strate
City’s
that the
bear out
the statistics
did
Hohi-
See
insignificant.”
or
“inaccurate
basis
pass/fail
Exams on
of its
use
two
177-78; Morgan v. United
der,
F.3d at
574
yielded
processing
rank order
and the
459,
Inc.,
Am.,
380 F.3d
Parcel Serv. on
adverse effects
“statistically significant
Co.,
Cir.2004);
Boeing
(8th
v.
Beck
463-64
29,
candidates,”
the Inter-
at
but
id.
black
Cir.2003);
(9th
Thies-
38,
Fed.Appx.
39
60
their statistical
“supplemented
also
venors
F.3d
Corp., 267
Capital
Elec.
v.
sen Gen.
historical, anecdo-
showing with extensive
(10th Cir.2001); EEOC v. Joe’s
1095, 1106
in-
that the
tal,
and testimonial
Inc.,
1263,
n. 22
Crab,
1287
220 F.3d
Stone
was the
discrimination
tentional
Cir.2000);
Douglas &
(11th
v.
Anderson
for several
procedure”
operating
standard
(5th
1277,
Co.,
1285
Cir.
26 F.3d
Lomason
(internal quotation
decades,
at
id.
31
Co.,
Sears,
&
1994);
v.
Roebuck
EEOC
omitted).
marks
(7th Cir.1988); Ardrey v.
302,
F.2d
(4th
Serv.,
798 F.2d
Parcel
United
had
prima facie burden
Finding the
Cir.1986);
Smith, 738 F.2d
Segar
met,
moved
the district court then
been
(D.C.Cir.1984);
v. Aero
Alexander
1300-01
enunciated
requirement
to the Teamsters
Machinists
Int’l Ass’n
Lodge No.
the bur-
City
“the
bears
Robinson that
Workers, 565 F.2d
Aerospace
and
‘demonstrating
[Interve-
that
den of
(6th Cir.1977),
superceded
n.
insig-
or
either inaccurate
proof is
nors’]
grounds.
statute on other
‘source, accuracy,
by attacking its
nificant’
”
(citing Rob-
Id. at 33
probative force.’
or
Correctly Ap-
The District Court
II.
159).
inson,
Having failed
at
plied Teamsters
accuracy
practical
“dispute either
analy-
statistical
significance of Plaintiffs’
recog-
Thus, adhering to this unanimous
ses,”
found
at
the district court
id.
Circuit and
by this
nition of Teamsters
re-
“abjured
]
[its
to have
Teamsters
case faith-
others,
court in this
district
court
entirely,” id.
sponsibility
pattern-or-prac-
the distinct
fully applied
a com-
stated,
has
offered
“[t]he
not meet
did
found
tice test and
ever,
a net effect
2403 had
rarely, if
Exam
proof
employer’s
will
ap-
They
684 black
eliminating
notice
607 and
exclusively non-statistical.
“between
cases the
pattern-or-practice
the Exams
that
in most
have
plicants who would not
failed
statis-
to consist of
plaintiff's
will need
kept
disparity” and also
144 black
but for
discrimination,
widespread
to show
tics
they
appointments
gaining
firefighters from
Teamsters,
n.
339-40
received,
(2) the
would have otherwise
will have to
therefore the
the net
the examinations had
rank-ordering of
just
than
more
answer
evidence with
"ap-
applicants
denying 112 black
effect of
proof.
non-statistical
wages and
years' worth
proximately 34
they
have
absent
seniority
would
received
plaintiffs
example,
the court found
7. For
Op.
Dist. Ct.
policy's disparate effects.”
(1)
by showing
proved
burden
their
at 29-30.
policy to
application
pass/fail
Exam
summary
peting ‘statistical
treatment of nondiscriminatory
explanation”
under
class,’
protected
attempted
85-86, 88,
has not
id. at
I think the
City was required
undermine the Intervenors’ statistics with
both under the law of
this Circuit and
‘specific
validity,’
Supreme
on their
attacks
and has
outset,
show more. At the
garnered no ‘anecdotal or
the majority
other non-statis-
recognizes that
tending
pattern-or-practice
“[i]n
tical evidence
to rebut
infer-
”
plaintiffs
(internal
initial burden is heavi-
ence of
Id.
al-
discrimination.’
er,”
84, however,
id. at
*33
it fails to recognize
omitted). Thus,
terations and citations
Robinson's,
that a similarly heavy burden also exists
despite
suggestion that “the
for the defendant-employer under Team-
prudent defendant will follow all three
sters.
(internal
routes,”
citation
omitted), here, the lower court correctly
Majority
III. The
Failed to Notice
City
found
attempted
that the
to “circum-
“Insignificant
Teamsters’
or Inac-
vent
production
its burden of
entirely.”
curate”
Higher
Burden is
than
Op.
Dist. Ct.
at 33.
that
Douglas.
in McDonnell
responding
Rather than
to the statistical
First,
majority
the
incorrectly tries to
evidence,
City only
the
“argufed] that the
pare down the employer’s higher
in
bar
proved
Intervenors
not
ha[d]
the
Teamsters
the one
set out in McDonnell
subjective
harbored a
intent
to discrimi-
Douglas.
Teamsters,
Under
the employer
nate
black applicants.”
In es-
Id.
may only satisfy
heavy
burden if its
sence,
City ignored the
the
inevitable con-
defense
prima
“meet[s] the
facie case” and
clusion
the
statistics and tried to focus
proves it
“insignificant
is
or inaccurate.”
But,
on intent.
stage,
this
lack
“[a]t
Teamsters,
vate[s] the
decision” is rele-
dicta,
language
because,
as
especially
as
vant,
Paper
Hazen
v. Biggins,
Co.
admits,
majority
the
Supreme
in
604, 610,
In the face of the district court’s faithful said to be the same as McDonnell Doug- law, application of the majority not requirement las’ employer simply only overrules that decision well-reasoned plaintiffs rebut the evidence with offer but also confuses the pattern-or- distinct Still, nondiscriminatory reason. practice by incorrectly standard conflating majority tries to lessen more Teamsters’ employer’s burden in Teamsters with stringent language by stating al- “ ‘[djefeat’ the one in set out McDonnell Douglas. though might thought to im- Maj. Op. See at 84-85. majority While the ply something stronger than [McDonnell ” only asserts that the need provide Douglas’ ‘rebut,’ “a requirement to] strength case thing practice tern or “means same language
Court’s This argument at 84. to meet this rebuttal contexts.” Id. evidence sufficient both disregards plain language of much clearly typically to be burden will need also the law of this only strength but higher than the of the evidence pan- binding subsequent that is Circuit plain- to rebut an sufficient individual meanings separate els. Not were Douglas tiffs low-threshold McDonnell by the of “defeat” and “rebut” intended showing. use of two separate Court’s these Supreme ap- Segar, (discussing F.2d at 1269-70 words, separate meanings distinct but opposed Teamsters plicability of in the different are underscored standards Douglas pattern-or-practice McDonnell plain- requiring demonstration claims). words, majority ig- In other proof insignificant” tiffs “inaccurate nores fact that with substan- cases legitimate neutral showing versus some tial facie statistical reason.8 *34 Douglas offering a of a nondis- McDonnell Additionally, majority to con- the tries criminatory satisfy reason will not the em- met by quoting us a lower bar can be vince ployer’s higher burden under the Team- of the McDonnell Teamsters’ recitation sters Dist. v. bar. See Hazelwood School stating Insofar as
Douglas’ standard.
States,
299, 308-12,
433 U.S.
United
may recognize the McDonnell
Teamsters
(1977)
(detailing
pattern discrimination treatment.”); v. Petrol Celestine (emphasis F.3d at 204 Reynolds, 685 ty.” SA, 266 F.3d stated, eos de Venezuella “In a the Court original). in As (5th Cir.2001) (indicating “Teamsters make ease, these statistics can Title VII independent an meth proof method of [is] case facie out Webb, proof’); Davoll v. od of engaged pattern practice in a was (10th Cir.1999) (noting the Su This is because [statistics discrimination. “recognized spe preme Court has acts analysis collective or] frame Douglas cifics of McDonnell bidding employer’s be those who do the in factual inapplicable work are certain Id. motivation.” speak employer’s situations, including government when the in Robinson prescriptions This Court’s brought pattern has a broad-based acknowledge most “ba- Reynolds citing action” and practice or common situation that the rebuttal sic” 358-60, 1843); Segar, they because have will be statistical—not F.2d at (discussing applicabili 1267-69 as the evidence stating misread Teamsters ty proof op of Teamsters’ method as exclusively must be statistical but because Douglas pattern- posed McDonnell necessary for statistics will most often be claims). or-practice engaged plaintiff entity to show as in proof The Intervenors’ Teamsters, 431 U.S. pattern-or-practice. cases, in fact pattern-or practice most was Thus, at 339-40 n. Thus, method of statistical. treatise, in his non-statis- stated Larson proof required to be directed toward proof may disproving tical be relevant to majority’s classifica- those statistics. those but it most often will not be statistics proof these tion of differences method Larson, [b], 9.03[2][a], § sufficient. See apply choice as dictum and its Regardless, 9-16 to -20. whatever Teamsters’ and thus satisfied plaintiffs is—statistical or other- *36 City’s evidence, no facially give neutral that wise—if the defendant does not show that response Intervenors’ statistics insignificant it proof be inaccurate practice a clear and dis- pattern show of proof has not its burden of and carried crimination. the under proof, Whatever summary judgment granted must be Teamsters, City to de- obligated the was favor of plaintiffs. the Any contrary argument feat it. other is In the em undermining our easelaw on of Supreme the law this Circuit the ployer’s proof, majority of also method the Court.
ignores the of our that law sister Circuits Teamsters’ the Applying City Failed V. recog
have held the same rule.
It well
Meet
Its Burden
among
nized
other Circuits that the em
the
sta
ployer must defeat
Government’s
case,
dispute
In this
there is no
Hohider,
proof.
tistical
F.3d at
See
alleges
Intervenors’
the New
claim
(“The
judi
Teamsters
was
framework
City
in a
Department engaged
York
Fire
cially promulgated
as a
of
method
that led to
pattern-or-practice
decades
by
pattern-or-practice
brought
claims
minority
being
firefighters
black and other
government
VII,
the
under
Title
as
severely underrepresented
Depart-
in the
provides
by
2;
a means
Op.
statute authorizes—it
see also
ment. See Dist. Ct.
at
particu
can assess
Maj. Op.
which courts
whether
at
As the district court
77-78.
stated,
filed,
statutorily prohibited
form
at
lar
discrimi
the time this claim was
exists,
Doug- only
Department’s
force was
just
nation
as the McDonnell
3.4% the
Teamsters.
firefighters
despite
Maj.
at
composed
Op.
of black
88.
only
making up 25.6% of New
black residents
question that
City
remains
whether the
Dist.
City’s population.
Op.
York
Ct.
at 2. defeated the
proffered
statistical evidence
words,
city
eight
In
in a
of over
other
plaintiffs
insignificant
or inaccu-
people,
million
and out
force with
rate. See
360,
Moreover,
City merely of- of a test are not
end
where the
analysis.
previously
of
As this Court has
proof, in the face
fered non-statistieal
9.03[1],
may depend
(stating
plaintiff
the
on two forms
13. See Larson
§
at 9-13
suit”
1)
proof
any
evidence:
statistical
disparate
treat-
of circumstantial
ultimate burden
"[t]he
establishing
past
at
the defendant's
convince the fact finder that
"aimed
ment case is to
2)
discriminatorily
protected group”
"tes-
treatment of the
and
actions were
the defendant's
members”).
practice
timony
protected class
"pattern
or
from
motivated” and that in
(2d Cir.1983)
stated,
of
F.2d
(stating
exams with dis-
affir-
“[p]ersistent use
support
required where,
an in- mative relief may
racial effects would
parate
example,
if
intentionally
of intentional discrimination
“the defendant has
ference
or egregiously engaged
practice
were not even
in a
test construction
of
proper
discrimination”),
Ass’n
the
that issue is
attempted.” Guardians
not relevant
of
Inc. v. Civil
this initial
Dep’t,
stage
disparate
N.Y.C. Police
Serv.
under
treat-
(2d Cir.1980).
tegts
Comm’n,
Thus, ment.14
persistent
Additionally, although may they perform required intent be rel how well (2) question imposing injunc policies to the what effect have on black evant those (3) impact theory, applicants, why tive relief under a decided to York, adopt policies.” Op. Berkman v. New those Dist. Ct. at 38. see Moreover, tionally' provisions 706(g) already our Circuit has deter- in order for the Against play mined to come not that there in Ass’n Discrimination into means must Emp’t, City Bridgeport, discriminatory purpose, Inc. v. have been a but *39 deliberate, (2d Cir.1981) requirement been n. "the acts must have that an have discriminated 'inten- accidental.” has of recruitment the evidence Because PLAZA, LLC, EXECUTIVE challenged use bearing on
no Plaintiff-Appellant, provide Exams, City does not because nondiscriminatory explanation a sufficient discriminatory showed where statistics COMPANY, INSURANCE PEERLESS ulti- would result, any recruits and because Defendant-Appellee. Exams, this mately face the 12-1470-cv. Docket No. Inter- to show that cannot serve insig- inaccurate or evidence was venors’ Appeals, States Court United nificant. Second Circuit. context, City completely In this Feb. 2013. Argued: as re- proof, Intervenors’ failed to meet May Decided: it did not even quired raising question a material approach Intervenors’ about whether the
fact insignificant appeal. on inaccurate or
Thus, City’s apparent disinterest problem it has known to be a
fixing what appar- and its than four decades
for more ac- defending itself now
ent disinterest pre- the Teamsters standard
cording to disregard the Teamsters
cisely type against. For protect meant to
test was reasons, I am unable to foregoing majority’s conclusion
agree with the City met its burden because sup- requirements by
may not meet its with the McDonnell
planting Teamsters standard, it unreasonable
Douglas in Robinson language
to understand Accordingly, Reynolds as mere dicta. summary entitled to
the Intervenors were pattern-or-practice their
judgment part I from that
claim and DISSENT majority’s opinion that holds other-
wise.