United States v. City of New York
97 Empl. Prac. Dec. (CCH) 44,841, 2013 U.S. App. LEXIS 9671, 717 F.3d 72 (2013)
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Rule of Law:
In a Title VII pattern-or-practice disparate treatment case, an employer's burden to rebut a plaintiff's prima facie case is a burden of production, which can be satisfied by producing non-statistical evidence of a non-discriminatory explanation for its actions and does not require a direct attack on the plaintiff's statistical proof.
Facts:
- The Fire Department of New York City (FDNY) had a long-standing and significant underrepresentation of black and Hispanic firefighters compared to the city's general population and other uniformed services.
- In 1973, a written examination for FDNY entry-level firefighters was found to have a discriminatory impact on minority applicants, and subsequent exams in 1988 and 1992 also demonstrated a disparate impact against black applicants.
- The FDNY administered two written examinations, No. 7029 in 1998 and No. 2043 in 2002, as screening devices for entry-level firefighter applicants.
- The pass rates for these exams were substantially lower for black and Hispanic applicants than for white applicants; for example, on Exam No. 7029, the pass rate was 89.9% for whites and 60.3% for blacks.
- Applicants who passed the exams were placed on a rank-order eligibility list based in part on their written exam scores, from which the FDNY hired new recruits.
- The City of New York presented evidence that its agencies made efforts to develop what they believed were job-related exams and also engaged in targeted recruitment campaigns to increase minority hiring.
- Despite these efforts, by 2007, when the litigation began, black firefighters constituted only 3.4% of the FDNY, while the city's population was approximately 25% black.
Procedural Posture:
- The United States sued the City of New York in the U.S. District Court for the Eastern District of New York, alleging that firefighter exams had an unlawful disparate impact on minority applicants.
- The Vulcan Society and other individual firefighters (the Intervenors) were permitted to intervene in the lawsuit, adding a disparate treatment claim alleging intentional discrimination against the City, Mayor Bloomberg, and Fire Commissioner Scoppetta.
- The District Court granted summary judgment for the Government and Intervenors on the disparate impact claim, a ruling the City did not appeal.
- The Intervenors moved for partial summary judgment on their disparate treatment (intentional discrimination) claim, which the District Court granted against the City.
- The District Court dismissed the claims against Mayor Bloomberg and Commissioner Scoppetta on the grounds of qualified and official immunity.
- Following a bench trial on remedies, the District Court issued a comprehensive permanent injunction imposing sweeping remedial measures on the City.
- The City of New York (appellant) appealed to the U.S. Court of Appeals for the Second Circuit, challenging the summary judgment ruling on the disparate treatment claim and the scope of the injunction.
- The Intervenors (cross-appellants) cross-appealed the dismissal of their claims against the individual defendants.
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Issue:
Does an employer, in a Title VII pattern-or-practice disparate treatment case, satisfy its burden of production to rebut a prima facie case by offering non-statistical evidence of its non-discriminatory intent, such as its efforts to create job-related exams and recruit minorities, even if it does not directly challenge the accuracy or significance of the plaintiff's statistical evidence?
Opinions:
Majority - Newman, J.
Yes. In a pattern-or-practice disparate treatment case, an employer satisfies its burden of production to rebut a prima facie case by articulating a legitimate, non-discriminatory reason for its actions, and it is not limited to presenting evidence that directly attacks the plaintiff's statistics. The Supreme Court in Teamsters clarified that an employer may provide a 'nondiscriminatory explanation for the apparently discriminatory result' and that there are 'no particular limits on the type of evidence an employer may use.' Here, the City of New York produced evidence of its efforts to create job-related exams and recruit minority candidates. This evidence, while not disproving the exams' disparate impact, was relevant to rebutting the inference of discriminatory intent. The district court erred by making a credibility assessment of the City's evidence at the summary judgment stage and by too narrowly requiring the City to attack the Intervenors' statistics directly. Because the City met its burden of production, the presumption of discrimination drops, and the case must proceed to a trial on the merits to determine the ultimate issue of intent.
Dissenting - Pooler, J.
No. The majority conflates the low burden of rebuttal from an individual disparate treatment claim under McDonnell Douglas with the higher burden required in a pattern-or-practice case under Teamsters. When a plaintiff establishes a prima facie case with powerful statistical evidence, as the Intervenors did here, the employer must do more than merely articulate a non-discriminatory reason; it must 'defeat the prima facie showing' by demonstrating that the plaintiff's 'proof is either inaccurate or insignificant.' The City of New York failed to offer any evidence that challenged the accuracy or significance of the overwhelming statistical proof of discrimination. Its claims of good faith in test development and recruitment do not 'meet' the prima facie case as required by Teamsters. The district court correctly applied this more demanding standard and, finding the City's rebuttal entirely insufficient, properly granted summary judgment to the Intervenors.
Analysis:
This decision clarifies that in pattern-or-practice disparate treatment cases, an employer's rebuttal burden is one of production, not persuasion, and can be met with a wide range of evidence negating discriminatory intent. By rejecting a rigid requirement that employers must directly refute a plaintiff's statistical case, the court makes it more difficult for plaintiffs to win such cases on summary judgment. The ruling pushes the ultimate, fact-intensive question of discriminatory intent to a full trial, where the fact-finder must weigh the plaintiff's statistical evidence against the employer's non-statistical explanations. This reinforces the high bar for proving subjective, intentional discrimination on a class-wide basis, even in the face of significant disparate impact.
