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Statistics Fall Short of Showing Intent, Circuit Says

Published: August 3, 2015

Publication: New York Law Journal

By Andrew Keshner

The U.S. Court of Appeals for the Second Circuit ruled Friday that there could be circumstances where a putative class action suit alleging employment discrimination could rely on statistics alone to show discriminatory intent. But the statistics that New York City sanitation employees cited on racial make-up in the top ranks did not convince the panel that there was discriminatory intent in the department’s promotional practices.

As a result, the panel on Friday upheld a lower court’s dismissal of the employees’ case.

Southern District Judge Jed Rakoff, sitting by designation, said the case presented a matter of first impression for the circuit “in the context of a putative class action alleging employment discrimination under [42 U.S.C.] §1981 and/or the Equal Protection Clause.”

As some of the circuit’s employment discrimination cases “have hinted, in certain circumstances … statistics alone may be sufficient,” Rakoff said. But to make the showing on statistics alone, he said, the figures “must not only not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely.”

Second Circuit Judges Guido Calabresi and Peter Hall joined Rakoff in Burgis v. New York City Department of Sanitation, 14-1640.

The plaintiffs contended the Department of Sanitation’s promotion practices made for a predominantly white supervisory staff that did not reflect the composition of its workforce.

Within the department, employees were first promoted from sanitation worker to supervisor. The next promotional step was becoming general superintendent. The general superintendent position has four levels, and the fourth level is the most superior.

Promotions for general superintendent levels two through four are based on recommendations.

All the plaintiffs, black and Hispanic men and women, were promoted to supervisor, but have not gotten higher than general superintendent level one.

They sued the department in 2013.

In their papers, they cited publicly available fiscal year 2011 racial makeup statistics for the percentages of whites, blacks and Hispanics filling the various ranks.

The numbers showed 56 percent of sanitation workers were white, 23.5 percent were black and 18 percent were Hispanic.

However, 81 percent of supervisors were white, 11 percent were black and 10 percent were Hispanic.

Eighty-one percent of level one general superintendents were white, 13 percent were black and 9 percent were Hispanic.

For general superintendent levels two and three, 91 percent were white. Four percent were black and 3 percent were Hispanic.

At the fourth level, 80 percent were white while blacks and Hispanics equally constituted the remaining 20 percent.

In March 2014, Southern District Judge Thomas Griesa dismissed the case before it could get to discovery. He said the plaintiffs’ Equal Protection and §1981 claims did not sufficiently allege discriminatory intent, and dismissed the Title VII disparate impact claim for a failure to exhaust administrative remedies.

The plaintiffs subsequently filed a state action alleging disparate impact in violation of the New York City Human Rights Law. The matter is pending before Acting Manhattan Supreme Court Justice Margaret Pui Yee Chan.

The appeal in the federal case was argued March 5.

In his decision, Rakoff said even apart from failing to show discriminatory intent, the plaintiffs failed to give “meaningful specifics” on claimed qualification differences between the whites who landed promotions and seven of the plaintiffs who were purportedly passed over.

The plaintiffs said the statistics alone could be enough to warrant a “plausible inference of discriminatory intent” if they showed a pattern or practice, which could not be explained except by intentional discrimination.

Rakoff said the proffered information fell short.

“Among other shortcomings, the statistics provided by plaintiffs show only the raw percentages of white, black, and Hispanic individuals at each employment level, without providing any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level,” he said.

The judge said claims of discrimination also were undercut by the fact that each plaintiff had been promoted to a supervisor position.

Rakoff acknowledged there was an increased disparity between the racial and nation origin makeup of the level one general superintendents and level two and three general superintendents. But he said by level four, the composition returned “to essentially the same percentage as at level 1.”

Arthur Schwartz, principal attorney at Advocates for Justice Chartered Attorneys, represented the plaintiffs.

Apart from pressing the state case, Schwartz said he planned to ask the Second Circuit for an en banc review.

He said Friday’s ruling held him “to a standard of proof on a motion to dismiss that should have only been applied on summary judgment or at trial. The level of statistical proof that the court was demanding at the pleading stage was unprecedented.”

Schwartz said, “there is no question in our mind that there is gross discrimination in promotions” at the Sanitation Department.

The plaintiffs were also represented by Tracey Kiernan, an associate at the firm.

Nicholas Paolucci, a Law Department spokesman, said “this decision makes clear that the plaintiff’s allegations were insufficient to establish a claim that [the Sanitation Department] discriminated when promoting staff.”

Assistant Corporation Counsels Fay Ng and Pamela Seider Dolgow appeared for the city.

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