Chin v. Port Authority of New York & New Jersey , 685 F.3d 135 ( 2012 )

10-1904-cv (L)
Chin v. Port Auth. of N.Y. & N.J.
United States Court of Appeals
FOR THE SECOND CIRCUIT
August Term 2011
(Argued: October 17, 2011 Decided: July 10, 2012)
Nos. 10-1904-cv(L), 10-2031-cv(XAP)
_____________________________________
HOWARD CHIN, RICHARD WONG, SANRIT BOONCOME, MICHAEL CHUNG,
Plaintiffs-Appellees–Cross-Appellants,
THE PORT AUTHORITY POLICE ASIAN JADE SOCIETY OF NEW YORK & NEW
JERSEY INC., CHRISTIAN ENG, NICHOLAS YUM, ALAN LEW, DAVID LIM, GEORGE
MARTINEZ, STANLEY CHIN, MILTON FONG,
Plaintiffs-Appellees,
-v.-
THE PORT AUTHORITY OF NEW YORK & NEW JERSEY,
Defendant-Appellant–Cross-Appellee.
_____________________________________
Before: MCLAUGHLIN, CABRANES, and LIVINGSTON, Circuit Judges.
Defendant-appellant the Port Authority of New York and New Jersey, Inc.
(“Port Authority”) and plaintiff-appellants Howard Chin, Richard Wong, Sanrit
Booncome, and Michael Chung appeal from a judgment of the United States
District Court for the Southern District of New York (Miriam Goldman
Cedarbaum, Judge) holding, after a jury trial, that the Port Authority violated
Title VII of the Civil Rights Act of 1964 by failing to promote seven plaintiffs,
and awarding plaintiffs-appellees Christian Eng, Nicholas Yum, Alan Lew,
David Lim, George Martinez, Stanley Chin, and Milton Fong back pay,
compensatory damages, and equitable relief. We conclude that the pattern-or-
practice method of proving liability was not available to plaintiffs in this private,
nonclass action and so REVERSE as to the submission of this theory of liability
to the jury. We also REVERSE with respect to the district court’s determination
that pursuant to the plaintiffs’ disparate impact theory, the “continuing
violation” doctrine permitted the award of damages and equitable relief in
connection with conduct predating the statute of limitations. We therefore
VACATE the back pay awards to Eng, Lew, Stanley Chin, and Fong; VACATE the
jury’s compensatory damage awards with respect to Eng, Yum, Lew, Lim,
Martinez, Stanley Chin, and Fong; VACATE the retroactive promotion of Lew;
VACATE the salary and pension adjustments for Lew, Stanley Chin, and Fong;
and REMAND to the district court for a new trial on damages as to these plaintiffs
and for reconsideration of the equitable relief afforded to them to the extent such
relief was premised on failures to promote occurring outside the statute of
limitations. With respect to all other issues raised by the parties on appeal, we
AFFIRM.
KAREN R. KING (Susanna M. Buergel, on the
briefs), Paul, Weiss, Rifkind, Wharton & Garrison
LLP, New York, New York, for Plaintiffs-
Appellees–Cross-Appellants and Plaintiffs-
Appellees.
KATHLEEN GILL MILLER (Milton H. Pachter &
James M. Begley, on the briefs), Port Authority of
New York and New Jersey, New York, New York,
for Defendant-Appellant–Cross-Appellee.
LIVINGSTON, Circuit Judge:
Plaintiffs-appellees, eleven Asian Americans currently or formerly
employed as police officers by the Port Authority of New York and New Jersey
(“Port Authority”), sued the Port Authority under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., alleging that they were passed over for
promotions because of their race. The plaintiffs asserted three theories of
liability for discrimination: individual disparate treatment, pattern-or-practice
disparate treatment, and disparate impact. After a nine-day trial, a unanimous
2
jury found the Port Authority liable for discrimination against seven of the
plaintiffs under all three theories and awarded back pay and compensatory
damages to each of those seven plaintiffs. The district court (Miriam Goldman
Cedarbaum, Judge) also granted equitable relief to certain of the prevailing
plaintiffs in the form of retroactive promotions, seniority benefits, and salary
and pension adjustments corresponding with the hypothetical promotion dates
that the jury apparently selected as a basis for calculating these plaintiffs’ back
pay awards.
On appeal, the Port Authority argues: (1) that evidence predating the
onset of the statute of limitations should not have been admitted; (2) that the
evidence was insufficient to support the jury’s verdict with respect to each of the
plaintiffs’ theories; and (3) that the damages and equitable relief were premised
on time-barred claims and were otherwise excessive. With regard to the
plaintiffs’ individual disparate treatment allegations, we hold that the district
court properly admitted background evidence predating the onset of the
limitations period and that there was sufficient evidence for a reasonable juror
to conclude that the Port Authority discriminated against the seven prevailing
plaintiffs within the limitations period. The district court erred, however, in: (1)
submitting the pattern-or-practice disparate treatment theory to the jury in this
private, nonclass action; and (2) concluding that the “continuing violation”
3
doctrine applied to the plaintiffs’ disparate impact theory so that the jury could
award back pay and compensatory damages for harms predating the onset of the
statute of limitations. We therefore vacate the back pay for four of the plaintiffs,
whose awards correspond with hypothetical promotion dates beyond the
limitations period, as well as the injunctive relief for three of the same plaintiffs,
and we also vacate the award of compensatory damages for all seven prevailing
plaintiffs. We remand for a new trial on damages as to all seven prevailing
plaintiffs and for reconsideration of equitable relief to the extent such relief was
premised on failures to promote occurring outside the limitations period.
The four plaintiffs who did not prevail at trial cross-appeal, arguing that
the district court erred by excluding expert testimony from an industrial
psychologist. One of these plaintiffs, cross-appellant Howard Chin, further
argues that the district court erred in denying the plaintiffs’ motion for sanctions
in the form of an adverse inference instruction due to the Port Authority’s
destruction of promotion records. Finding no abuse of discretion in the district
court’s determinations as to these matters, we affirm.
BACKGROUND
The Port Authority is a bi-state transportation agency whose facilities are
policed by its Public Safety Department. The eleven plaintiffs-appellees in this
case are Asian Americans who were employed by that department as police
4
officers. Christian Eng was hired in 1977, David Lim in 1980, Richard Wong in
1983, Milton Fong in 1985, Howard Chin and Alan Lew in 1987, Stanley Chin
in 1988, George Martinez and Nicholas Yum in 1993, and Michael Chung and
Sanrit Booncome in 1999. All of the plaintiffs were members of the Port
Authority Police Asian Jade Society of New York & New Jersey Inc. (“Asian Jade
Society”), a nonprofit organization comprised of Port Authority police officers of
Asian or Pacific Islander origin, whose stated goal is to “promot[e]
understanding, friendship and cooperation among members of the Port
Authority police department.”
I. The Port Authority Police Department’s Promotion Process
During the period relevant to this case, entry-level police officers in the
Port Authority’s police department could be promoted to the rank of Sergeant,
the first level in a hierarchy of supervisory positions (followed by Lieutenant,
Captain, Inspector, Chief, and finally Superintendent of Police). To become
eligible for promotion to Sergeant, a police officer was required (among other
requirements) to pass an examination, which would place him on an “eligibility
list” for a period of time. When such a list expired, the officer would have to pass
the examination again to be placed on the new list. Three lists were in effect
during the period relevant to this case: the 1996 List, the 1999 List, and the
5
2002 List.1 These lists were “horizontal,” which meant that the lists did not rank
the officers, but merely established eligibility for promotion.
Each Port Authority facility’s commanding officer (generally a Captain)
was periodically asked to recommend eligible officers for promotion, at their
discretion. The Port Authority did not dictate any criteria for recommendation.
Moreover, commanding officers were free to make recommendation decisions
themselves, solicit input from the police officers’ direct supervisors (generally
Sergeants and Lieutenants), or delegate the responsibility entirely to the direct
supervisors. A promotion folder was prepared for each recommended officer,
which included a performance evaluation by a supervisor, a photograph of the
officer, and his record of absences, commendations, awards, and disciplinary
history.
Officers recommended in this way were typically considered by the Chiefs’
Board, in which the Chiefs would collectively decide which officers to recommend
to the Superintendent. The Chiefs’ Board did not operate under any written
1
The 1996 List was in effect from August 1996 through August 1999, and
included 178 officers, 7 of whom were Asian. Twenty-three officers were promoted
from the 1996 List, none of whom was Asian. The 1999 List was in effect from August
1999 through August 2002, and included 220 officers, 10 of whom were Asian. Fifty-
five officers were promoted from the 1999 List, 2 of whom were Asian (both of whom
were promoted in December 2001). The 2002 List was in effect from August 2002
through the date the complaint was filed (April 15, 2005), and included 352 officers, 16
of whom were Asian. As of April 15, 2005, when the complaint in this case was filed,
45 officers had been promoted from the 2002 List, 1 of whom was Asian.
6
guidelines, and from 1996 through September 2001, took no minutes or notes.
Each Chief would vote regarding each recommended officer, and any officer who
received a majority of votes from the Chiefs’ Board would then be recommended
to the Superintendent. This step in the process was not always necessary to
promotion, however; for example, Acting Superintendent Joseph Morris did not
use the Chiefs’ Board at all during his tenure from September 2001 through
April 2002.
The ultimate decision to promote an officer to Sergeant belonged solely to
the Superintendent. In fact, the Superintendent occasionally promoted officers
whom the Chiefs’ Board had declined to recommend ahead of those
recommended by the Board.
As of January 31, 2001, no Asian American had ever been promoted to
Sergeant.
II. Procedural History
On January 31, 2001, the Asian Jade Society filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
on behalf of its members, claiming that the Port Authority had denied Asian
American police officers promotions because of their race. On August 29, 2003,
the EEOC determined that there was reasonable cause to believe the Port
Authority had violated Title VII, and on January 25, 2005, the Department of
7
Justice issued a right-to-sue letter to the Asian Jade Society.2 The eleven
plaintiffs in this case filed suit on April 15, 2005, alleging that the Port
Authority had discriminated against Asian Americans in making promotions to
Sergeant.
During discovery, the plaintiffs learned that the Port Authority had not
implemented a document retention policy and that, as a result, at least thirty-
two promotion folders used to make promotion decisions between August 1999
and August 2002 had been destroyed. The plaintiffs moved for sanctions,
seeking an adverse inference against the Port Authority for spoliation. The
district court denied the motion, reasoning that the plaintiffs had ample
alternative evidence regarding the relative qualifications of the plaintiffs and
that the Port Authority’s destruction of the documents was “negligent, but not
grossly so.” Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth.
of N.Y. & N.J. (Port Auth. I), 601 F. Supp. 2d 566, 570 (S.D.N.Y. 2009).
On the eve of trial, the district court granted the Port Authority’s motion
to exclude testimony from one of the plaintiffs’ expert witnesses: Dr. Kathleen
Lundquist, an industrial psychologist who specializes in analyzing the reliability
2
Ordinarily, a “right to sue” letter must be issued by the EEOC. However,
where the respondent to a Title VII discrimination charge is a governmental agency
and the EEOC has not dismissed the charge, the Attorney General is responsible for
issuing the right-to-sue letter. See 29 C.F.R. § 1601.28(d).
8
and validity of employee-selection procedures. Dr. Lundquist had prepared a
report opining on the effectiveness of the Port Authority’s promotion process, on
whether it included safeguards to prevent bias and discrimination, and on the
comparative qualifications of the plaintiffs relative to the qualifications of the
officers who had been promoted. Citing Rule 702 of the Federal Rules of
Evidence,3 the district court concluded that Dr. Lundquist’s testimony “would
not assist the trier of fact” and was therefore excluded.
The nine-day trial began on March 11, 2009, and included testimony from
twenty-two fact witnesses and four expert witnesses. All eleven of the plaintiffs
testified regarding their personal backgrounds, education, experiences as police
officers, attendance and disciplinary records, awards and commendations, and
performance evaluations. Six Chiefs, one former Superintendent, the
Superintendent at the time of trial, and three other Port Authority managers
testified regarding the Port Authority’s promotion procedure. Each side also
presented a statistical expert and a damages expert.
3
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if: (a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
9
Most relevant to this appeal, the plaintiffs’ statistical expert, Dr.
Christopher Cavanagh, presented two analyses that, in his view, demonstrated
a high probability that Asian Americans had been discriminated against in the
Port Authority’s promotion process. In his first study, Cavanagh compared the
percentage of white police officers who held a supervisory position (out of all
white police officers) with the percentage of Asian Americans who held a
supervisory position (out of all Asian American police officers) from 1996 through
2004. For each year, he used a Fisher Exact Test to calculate the likelihood that
the difference between Asian American and white representation at the
supervisory level (as compared to the representation of these groups at the non-
supervisory level) was due to chance.4 From 1996 through 2000, the likelihood
that the disparities were due to chance was about two percent or less; from 2001
through 2004, the likelihoods that the disparities were due to chance were
between about five and eleven percent.
Cavanagh’s second analysis compared the promotion rate for whites who
were on the eligible lists to the promotion rate for Asian Americans who were on
the eligible lists over the period from August 1996 through January 31, 2001
(the date on which the EEOC charge was filed). Of the 259 white officers on the
4
The Fisher Exact Test is a statistical significance test named for its author,
R.A. Fisher. See generally R.A. Fisher, On the Interpretation of [Chi-Squared] from
Contingency Tables, and the Calculation of P, 85 J. Royal Stat. Soc’y 87 (1922).
10
lists over this period, 36 were promoted; of the 12 Asian Americans on the lists,
none were promoted. Using the Fisher Exact Test, Cavanagh calculated that the
likelihood this disparity would occur due to chance was about thirteen percent.
The district court instructed the jury regarding three theories of
discrimination: (1) disparate impact; (2) pattern-or-practice disparate treatment;
and (3) individual disparate treatment. After two-and-a-half days of
deliberation, the jury returned a unanimous verdict, finding that seven of the
eleven plaintiffs—Christian Eng, Milton Fong, Alan Lew, Stanley Chin, Nicholas
Yum, George Martinez, and David Lim—had proven all three of their theories
of liability, and awarding more than $1.6 million in total to those seven
plaintiffs. The back pay awards corresponded precisely to certain hypothetical
promotion dates suggested by the plaintiffs’ damages expert.5
On the plaintiffs’ motion, the district court also granted the seven
prevailing plaintiffs equitable relief, including salary adjustments for pension
purposes for Milton Fong, Stanley Chin, Alan Lew, George Martinez, Nicholas
5
Four plaintiffs’ back pay awards corresponded to hypothetical promotion dates
of October 31, 1999: Christian Eng was awarded $35,445 in back pay and $250,000 in
compensatory damages; Milton Fong was awarded $83,924 in back pay and $100,000
in compensatory damages; Alan Lew was awarded $189,859 in back pay and $75,000
in compensatory damages; and Stanley Chin was awarded $116,636 in back pay and
$100,000 in compensatory damages. Three plaintiffs’ back pay awards corresponded
to hypothetical promotion dates of September 30, 2002: Nicholas Yum was awarded
$141,663 in back pay and $15,000 in compensatory damages; George Martinez was
awarded $145,861 in back pay and $15,000 in compensatory damages; and David Lim
was awarded $119,234 in back pay and $250,000 in compensatory damages.
11
Yum, and David Lim, and retroactive promotions for Alan Lew, George
Martinez, and Nicholas Yum. The hypothetical dates the district court used
were October 31, 1999, for Fong, Chin, and Lew, and September 30, 2002, for
Martinez, Yum, and Lim—corresponding with the hypothetical dates the jury
apparently used as a basis for computing back pay. The court also ordered the
Port Authority to take certain specific actions to prevent future violations.
The Port Authority filed a motion pursuant to Rules 50 and 59 of the
Federal Rules of Civil Procedure to set aside the jury’s verdict or, alternatively,
for a new trial and for remittitur. The Port Authority argued that: (1) the
district court improperly admitted evidence pertaining to events prior to the
onset of the statute of limitations period; (2) the jury was improperly instructed
to consider events outside the limitations period for purposes of establishing
liability; (3) there was insufficient evidence to find the Port Authority liable
under any of the plaintiffs’ three theories; (4) the jury instructions were
erroneous and confusing with respect to the statute of limitations; and (5) the
jury’s damages included time-barred claims and were otherwise excessive.
The district court denied the Port Authority’s motion in its entirety. See
Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. &
N.J. (Port Auth. II), 681 F. Supp. 2d 456 (S.D.N.Y. 2010). As pertinent to this
appeal, the district court first held that background evidence from beyond the
12
statute of limitations is admissible in support of a timely claim. See id. at 462.
Next, the court concluded that the plaintiffs’ individual disparate treatment
claims were premised on “discrete acts” and thus that the Port Authority could
be liable only for those acts within the statute of limitations. See id at 463. The
court concluded that the plaintiffs’ disparate impact and pattern-or-practice
disparate treatment theories of liability, however, were premised on the
existence of an “ongoing discriminatory policy,” and thus were subject to the
“continuing violations” doctrine, so that the plaintiffs could recover for untimely
discrete acts so long as they were the product of a discriminatory policy that
continued into the statute-of-limitations period. See id. at 463–66. Third, the
district court held that although Cavanagh’s statistical evidence did not reach
the conventional five-percent level of statistical significance, see Smith v. Xerox
Corp., 196 F.3d 358, 366 (2d Cir. 1999) (noting that statistical significance at the
five-percent level is generally “sufficient to warrant an inference of
discrimination”), the jury had before it other evidence of discrimination sufficient
to find for the plaintiffs on each of the theories of liability. See Port Auth. II, 681
F. Supp. 2d at 468–69. Finally, the district court declined to remit the jury’s
compensatory damages awards because other judges had upheld similar awards
and because the awards did not “shock the judicial conscience.” Id. at 470.
13
The Port Authority appeals, and argues before this Court that it is entitled
to a new trial with respect to the seven prevailing plaintiffs because: (1) evidence
predating the onset of the limitations period should not have been admitted; (2)
the evidence at trial was insufficient to support the jury’s verdict with respect
to each of the plaintiffs’ theories; and (3) the damages and equitable relief are
premised on time-barred claims and are otherwise excessive.
The four plaintiffs who did not prevail at trial—Howard Chin, Richard
Wong, Sanrit Booncome, and Michael Chung—cross-appeal, and argue here that
they are entitled to a new trial because the district court erred by excluding
Lundquist’s testimony. Howard Chin further argues that he is entitled to a new
trial because the district court improperly denied the plaintiffs an adverse
inference instruction despite the Port Authority’s destruction of promotion
records.
DISCUSSION
The plaintiffs argue that they are entitled to damages for injuries that
occurred before the onset of the statute of limitations period because the
“continuing violations” doctrine applies to two of their three theories of
liability—pattern-or-practice disparate treatment and disparate impact. We
dispose of half of this argument at the outset of this opinion by holding that no
such pattern-or-practice theory of liability is available to the private, non-class
14
plaintiffs in this case. We next consider and affirm the district court’s judgment
with respect to the plaintiffs’ two remaining theories of liability—individual
disparate treatment and disparate impact—by holding that background evidence
from outside the limitations period was admissible and that the evidence
presented at trial was sufficient to sustain the jury’s findings of liability on both
theories. We then conclude, however, that the “continuing violations” doctrine
does not apply to either theory in this case, and therefore vacate and remand for
reconsideration of the damages and equitable relief granted by the district court
to the prevailing plaintiffs whose awards correspond (or may correspond) to
hypothetical promotion dates preceding the onset of the limitations period.
Finally, we consider the plaintiffs’ cross-appeal, and hold that the district court
did not abuse its discretion by excluding Lundquist’s testimony or by denying the
plaintiffs an adverse inference instruction.
“A motion for a new trial should be granted when, in the opinion of the
district court, ‘the jury has reached a seriously erroneous result or . . . the verdict
is a miscarriage of justice.’” Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.
1992) (quoting and altering Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363,
370 (2d Cir. 1988)). “The district court’s denial of a Rule 59 motion for a new
trial is reviewed for abuse of discretion.” Manganiello v. City of New York, 612
F.3d 149, 165 (2d Cir. 2010). “A district court has abused its discretion if it has
15
(1) ‘based its ruling on an erroneous view of the law,’ (2) made ‘a clearly
erroneous assessment of the evidence,’ or (3) ‘rendered a decision that cannot be
located within the range of permissible decisions.’” Id. (quoting Sims v. Blot, 534
F.3d 117, 132 (2d Cir. 2008)). We review the denial of a motion for judgment as
a matter of law de novo. Lore v. City of Syracuse, 670 F.3d 127, 150 (2d Cir.
2012). “[W]hether conducting review de novo or under a less sweeping standard,
we must disregard all errors and defects . . . . if there is no likelihood that the
error or defect affected the outcome of the case.” Id. (internal quotation marks
omitted).
As a prerequisite to filing suit under Title VII, a private plaintiff must first
file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Both
parties agree that in this case, the plaintiffs’ charge was due “within one
hundred and eighty days after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1). Accordingly, because the EEOC charge in
this case was filed on January 31, 2001, only an unlawful employment practice
that “occurred” after August 2, 2000, may give rise to liability.6
6
Although the district court and the parties appear to agree that 180 days prior
to January 31, 2001 is August 3, 2000, by this Court’s calculation the correct date is
August 4, 2000, which would mean that only an unlawful employment practice that
occurred after August 3, 2000 may give rise to liability. But because the one-day
difference is not material to this appeal, we refer to August 2, 2000, as the relevant
date throughout this opinion. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982) (“[F]iling a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a
16
I. The Pattern-or-Practice Method of Proof
As an initial matter, we address the question whether the method of proof
described in International Brotherhood of Teamsters v. United States, 431 U.S.
324 (1997), and known as the “Teamsters” or “pattern-or-practice” method, was
available to the nonclass private plaintiffs in this case.7 We conclude that it was
not and that the judgment as to pattern or practice must for this reason be
reversed. We emphasize, however, that evidence that the Port Authority
engaged in a pattern or practice of discrimination—in the ordinary sense of those
words, rather than in the technical sense describing a theory of liability for
discrimination—remains relevant in assessing whether the plaintiffs proved
discrimination using the individual disparate treatment and disparate impact
methods of proof.
The phrase “pattern or practice” appears only once in Title VII—in a
section that authorizes the government to pursue injunctive relief against an
employer “engaged in a pattern or practice of resistance to the full enjoyment of
any of the rights secured by” the statute. 42 U.S.C. § 2000e-6. Notwithstanding
statute of limitations, is subject to waiver, estoppel, and equitable tolling.”).
7
The parties did not address this issue before the district court and do not raise
it on appeal. Nonetheless, we are not bound by parties’ effective stipulations on
questions of law, see U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S.
439, 446–48 (1993), and in this case we exercise our discretion to consider this issue
in order to provide guidance in a complicated area.
17
the Supreme Court’s recognition in Teamsters that this language “was not
intended as a term of art, and the words reflect only their usual meaning,”
Teamsters, 431 U.S. at 336 n.16, the phrase is often used in a technical sense to
refer either to this unique form of liability available in government actions under
§ 2000e-6, see, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 67–68 n.19, 70, 80 (1984),
or to the burden-shifting framework set out in Teamsters and available both to
the government in § 2000e-6 litigation and to class-action plaintiffs in private
actions alleging discrimination, see, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2552 n.7 (2011).
We begin with § 2000e-6. The building blocks of liability pursuant to this
provision—which provides for prospective injunctive relief where the
government establishes that an employer is engaged in a “pattern or practice of
resistance to the full enjoyment” of rights secured by Title VII—differ from those
that provide the foundation for typical, private-party Title VII litigation. To
establish an employer’s liability for discrimination in violation of Title VII, a
private plaintiff ordinarily must show that an employer took an adverse
employment action against him or her because of his or her race, or on account
of another protected ground. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973); Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 80
(2d Cir. 2009). In § 2000e-6 litigation, by contrast, the government need not
18
demonstrate specific losses to specific individuals to establish that injunctive
relief is appropriate. The government must “prove more than the mere
occurrence of isolated or ‘accidental’ or sporadic discriminatory acts”: it must
prove that unlawful discrimination “was the company’s standard operating
procedure.” Teamsters, 431 U.S. at 336. Once established, however, “a court’s
finding of a pattern or practice justifies an award of prospective relief” even
absent proof of losses to specific individuals. Id. at 361.
The parties here use the term “pattern or practice” to refer not to an
element of a § 2000e-6 claim, but to the method of proof that the Supreme Court
endorsed in Teamsters for the adjudication of such claims. This method of proof,
however, originated in the class action context, in Franks v. Bowman
Transportation Co., 424 U.S. 747 (1976). The Supreme Court in Franks
determined that once the private plaintiffs in the class action there “carried their
burden of demonstrating the existence of a discriminatory hiring pattern and
practice by the [employer] . . . , the burden [was] upon [the employer] to prove
that individuals who reappl[ied] were not in fact victims of previous hiring
discrimination.” Id. at 772. The Court in Franks used the phrase “pattern and
practice” to refer to the common question of fact (whether the employer had
engaged in a practice of discriminatory hiring) to be litigated by class plaintiffs,
and apparently viewed its holding as no more than an application of McDonnell
19
Douglas’ burden-shifting framework in the class-action context. See Franks, 424
U.S. at 773 (citing McDonnell Douglas, 411 U.S. 792).
The Teamsters Court thereafter determined that the Franks burden-
shifting framework for certain class actions should also apply to government
“pattern or practice” suits brought under § 2000e-6:
Although not all class actions will necessarily follow the
Franks model, the nature of a [§ 2000e-6] pattern-or-practice suit
brings it squarely within our holding in Franks. The plaintiff in a
pattern-or-practice action is the Government, and its initial burden
is to demonstrate that unlawful discrimination has been a regular
procedure or policy followed by an employer or group of employers.
At the initial, “liability” stage of a pattern-or-practice suit the
Government is not required to offer evidence that each person for
whom it will ultimately seek relief was a victim of the employer’s
discriminatory policy. . . .
....
When the Government seeks individual relief for the victims
of the discriminatory practice, a district court must usually conduct
additional proceedings after the liability phase of the trial to
determine the scope of individual relief. The petitioners’ contention
in this case is that if the Government has not, in the course of
proving a pattern or practice, already brought forth specific evidence
that each individual was discriminatorily denied an employment
opportunity, it must carry that burden at the second, “remedial”
stage of trial. That basic contention was rejected in the Franks
case. . . .
The proof of the pattern or practice supports an inference that
any particular employment decision, during the period in which the
discriminatory policy was in force, was made in pursuit of that
policy. The Government need only show that an alleged individual
discriminatee unsuccessfully applied for a job and therefore was a
potential victim of the proved discrimination. As in Franks, the
burden then rests on the employer to demonstrate that the
20
individual applicant was denied an employment opportunity for
lawful reasons.
Teamsters, 431 U.S. at 360–62 (internal citation and footnotes omitted). Since
Teamsters, this burden-shifting framework has been known as the “Teamsters
method of proof” or the “pattern-or-practice method.” See, e.g., Celestine v.
Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001) (“A pattern or
practice case is not a separate and free-standing cause of action . . . , but is really
merely another method by which disparate treatment can be shown.” (internal
quotation marks omitted)); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760
(4th Cir. 1998) (“The courts of appeals have . . . permitted pattern or practice
class action suits using the Teamsters method of proof.”), vacated on other
grounds, 527 U.S. 1031 (1999).8 In sum, unlike in a typical individual disparate
treatment suit, “a plaintiff’s burden under the pattern-or-practice method
requires the plaintiff to prove only the existence of a discriminatory policy rather
than all elements of a prima facie case of discrimination”—but “under the
pattern-or-practice method, only prospective relief [is] available, unless the
8
Although the Teamsters framework is not a freestanding cause of action,
courts—including the Supreme Court—sometimes loosely refer to the Teamsters
method of proof as a “pattern-or-practice claim.” See, e.g., Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 n.9 (2002) (“We have no occasion here to consider
the timely filing question with respect to ‘pattern-or-practice’ claims brought by
private litigants as none are at issue here.”).
21
plaintiffs offer[] additional proof.” Semsroth v. City of Wichita, 304 F. App’x 707,
716 (10th Cir. 2008) (describing the reasoning in Lowery, 158 F.3d at 761).
Permitting private plaintiffs to use the pattern-or-practice method of proof
outside the class action context would require us to extend this method beyond
its current application. This we decline to do. Such an extension would allow
nonclass private plaintiffs who have shown a pattern or practice of
discrimination (but have not made out a disparate impact claim) to shift the
burden to employers to prove that they did not discriminate against a particular
individual. But this would conflict with the Supreme Court’s oft-repeated
holding in the context of disparate-treatment, private nonclass litigation that
“[t]he ultimate burden of pursuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
be sure, proof that an employer engaged in a pattern or practice of
discrimination may be of substantial help in demonstrating an employer’s
liability in the individual case. But such proof cannot relieve the plaintiff of the
need to establish each element of his or her claim.
We note that the district court in this case did not instruct the jury that
a finding of a pattern or practice of discrimination shifted the burden of
persuasion. Rather, the verdict sheet instructed the jury that each individual
22
plaintiff was required to prove by a preponderance of the evidence that he was
discriminated against as part of the pattern or practice. This instruction only
underscores, however, why there was no need for the jury to make a specific
finding regarding a pattern or practice of discrimination in this private, nonclass
suit, as opposed to determining directly whether each individual plaintiff had
been intentionally discriminated against. Where, as here, there are only
individual, nonclass disparate-treatment claims, a district court need not and
should not instruct the jury that a common pattern of discrimination is an
element of liability.
For these reasons, all of our sister circuits to consider the question have
held that the pattern-or-practice method of proof is not available to private,
nonclass plaintiffs. See Semsroth v. City of Wichita, 304 F. App’x 707, 715 (10th
Cir. 2008); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 967–69 (11th
Cir. 2008); Bacon v. Honda of Am. Mfg., 370 F.3d 565, 575 (6th Cir. 2004);
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355–56 (5th Cir. 2001);
Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990); Lowery v. Circuit
City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds, 527
U.S. 1031 (1999); see also Schuler v. PricewaterhouseCoopers, LLP, 739 F. Supp.
2d 1, 6 n.2 (D.D.C. 2010) (“Courts in every other Circuit that has touched on this
issue have indicated that an individual plaintiff cannot maintain a pattern and
23
practice claim.”) (collecting cases); 1 Lex Larson et al., Employment
Discrimination § 8.01[3], at 8-13 (2d ed. 2011) (“[C]ourts have refused to permit
individuals to use the pattern or practice proof structure for claims of individual
discrimination . . . .”). We have suggested as much, albeit in dicta. See Brown
v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998).
For the foregoing reasons, we now hold that the pattern-or-practice
method of proof is not available to nonclass, private plaintiffs in cases such as
the one before us. Evidence of an employer’s general practice of discrimination
may be highly relevant to an individual disparate treatment or to a disparate
impact claim. Outside the class context, however, private plaintiffs may not
invoke the Teamsters method of proof as an independent and distinct method of
establishing liability. The district court erred in submitting this method of proof
to the jury as a basis on which it could hold the Port Authority liable.
II. Admissibility and Sufficiency of Evidence
A. Admissibility of Evidence from Outside the Limitations Period
Turning to the plaintiffs’ individual disparate treatment and disparate
impact claims, the Port Authority argues that the district court improperly
admitted evidence of events prior to August 2, 2000, for purposes of liability and
damages. It is well established, however, that so long as at least “one alleged
adverse employment action . . . occurred within the applicable filing period[,] . . .
24
evidence of an earlier alleged retaliatory act may constitute relevant
‘background evidence in support of [that] timely claim.’” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 176 (2d Cir. 2005) (quoting and altering Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Such background
evidence “may be considered to assess liability on the timely alleged act.” Id. at
177; see also Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (applying this
rule in the failure-to-promote context). In particular, we have noted that
statistical studies may include data from outside the statute of limitations to
prove timely discriminatory acts. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d
590, 604 n.5 (2d Cir. 1986).9 Title VII’s statute of limitations therefore did not
prohibit admission of the plaintiffs’ evidence of discrimination before August 2,
2000.
B. Sufficiency of the Evidence
The Port Authority next argues that the plaintiffs’ evidence of individual
disparate treatment and disparate impact was insufficient as a matter of law,
and that the district court therefore abused its discretion in declining to set aside
the verdict. “In reviewing the sufficiency of the evidence in support of a jury’s
9
To be clear, the district court retains discretion to determine whether evidence
predating the onset of the statute of limitations period should be admitted under any
applicable rule of evidence. See Jute, 420 F.3d at 177 n.7; Malarkey v. Texaco, Inc., 983
F.2d 1204, 1211 (2d Cir. 1993).
25
verdict, we examine the evidence in the light most favorable to the party in
whose favor the jury decided, drawing all reasonable inferences in the winning
party’s favor.” Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005). We will
overturn the verdict here “only if there is ‘such a complete absence of evidence
supporting the verdict that the jury’s findings could only have been the result of
sheer surmise and conjecture, or such an overwhelming amount of evidence in
favor of the [Port Authority] that reasonable and fair minded men could not
arrive at a verdict against [the Port Authority].’” Id. at 292 (quoting LeBlanc-
Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995)) (some internal quotation
marks omitted).
With respect to a Title VII individual disparate treatment claim,
“[w]hether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. Those include the strength of the plaintiff’s
prima facie case, the probative value of the proof that the employer’s explanation
is false, and any other evidence that supports the employer’s case and that
properly may be considered on a motion for judgment as a matter of law.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148–49 (2000). A plaintiff
establishes a prima facie case by showing “(1) that he belonged to a protected
class; (2) that he was qualified for the position he held; (3) that he suffered an
adverse employment action; and (4) that the adverse employment action
26
occurred under circumstances giving rise to an inference of discriminatory
intent.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). An employer
may then rebut this prima facie case by offering a legitimate, nondiscriminatory
business reason for its conduct. See id. A plaintiff ultimately prevails if he
proves that the defendant’s employment decision was based in whole or in part
on intentional discrimination. See id.To prevail under the disparate impact theory of liability, a plaintiff must
show that the employer “uses a particular employment practice that causes a
disparate impact on the basis of race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(k)(1)(A)(i). This requires a plaintiff to (1) “identify a specific
employment practice” or policy, Malave v. Potter, 320 F.3d 321, 326 (2d Cir.
2003); “(2) demonstrate that a disparity exists; and (3) establish a causal
relationship between the two.” Robinson v. Metro-North Commuter R.R. Co., 267
F.3d 147, 160 (2d Cir. 2001). “The statistics must reveal that the disparity is
substantial or significant,” and “must be of a kind and degree sufficient to reveal
a causal relationship between the challenged practice and the disparity.” Id.(internal quotation marks omitted). To rebut a plaintiff’s statistics, a defendant
may introduce evidence showing that “either no statistically significant disparity
in fact exists or the challenged practice did not cause the disparity.” Id. at 161.
27
If the trier of fact determines that the plaintiffs have established a
disparate impact violation of Title VII, each person seeking individual relief such
as back pay and compensatory damages “need only show that he or she suffered
an adverse employment decision ‘and therefore was a potential victim of the
proved discrimination.’” Id. at 159 (quoting Teamsters, 431 U.S. at 362)
(alteration omitted); see id. at 161–62. After such a showing, the employer bears
the burden of persuading the trier of fact that its decision was made for lawful
reasons; otherwise, the employee is entitled to individualized relief, which may
include back pay, front pay, and compensatory damages for “emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other
nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3); see Robinson, 267 F.3d at 159–60.
The Port Authority challenges three aspects of the plaintiffs’ evidence.
First, the Port Authority argues that the plaintiffs’ statistical evidence was
fatally flawed and that without it the plaintiffs lack sufficient evidence to prove
a disparate impact. Second, the Port Authority contends that the plaintiffs did
not show that the multiple-step promotion process was “not capable of
separation for analysis,” 42 U.S.C. § 2000e-2(k)(1)(B)(i), and therefore the
plaintiffs were required but failed to identify the specific promotion practice that
caused a disparate impact. Third, the Port Authority contends that the
plaintiffs’ anecdotal evidence of intentional discrimination consists of nothing
28
more than personal affronts outside of the promotion context, and therefore that
the plaintiffs’ individual disparate treatment claims must fail for lack of
evidence that any discrimination was intentional.
We disagree with all three of the Port Authority’s arguments and hold that
the plaintiffs introduced sufficient evidence to support the jury’s verdict as to
plaintiffs’ disparate impact and individual disparate treatment claims.
1. Statistical Evidence
The Port Authority argues first that the statistical evidence presented by
Dr. Cavanagh, the plaintiffs’ expert witness, was insufficient to prove their
disparate impact claim because Dr. Cavanagh’s analyses impermissibly (1) relied
on data predating the onset of the statute of limitations, (2) did not focus on the
relevant pool of candidates eligible for promotion, and (3) failed to establish
statistical significance. We address each of these contentions in turn.
First, the Port Authority is incorrect in asserting that Dr. Cavanagh’s
statistics were flawed because they relied in part on data predating the onset of
the statute of limitations period. In Bazemore v. Friday, 478 U.S. 385 (1986), the
Supreme Court stated that evidence predating the 1972 enactment of Title VII
was not only admissible but, “to the extent that proof is required to establish
discrimination with respect to salary disparities created after 1972, evidence of
pre-Act discrimination is quite probative.” Id. at 402 n.13 (internal citation
29
omitted). Moreover, we have made clear that a district court errs by
“downgrading” statistical studies on the ground that they “relied in part on
pre–statute of limitations data.” Rossini, 798 F.2d at 604 n.5.
The Port Authority next argues that Dr. Cavanagh’s year-end demographic
statistics were not sufficient to show a disparate impact because they simply
compared the percentage of Asian Americans in supervisory positions with the
percentage of Asian American officers, rather than looking to the relevant pool
for promotion (i.e., the percentage of Asian Americans on the eligible lists). On
this point, we agree.
As we have said, “plaintiffs must identify the correct population for
analysis. In the typical disparate impact case the proper population for analysis
is the applicant pool or the eligible labor pool.” Smith v. Xerox Corp., 196 F.3d
358, 368 (2d Cir. 1999) (emphasis added), overruled on other grounds by
Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 140 (2d Cir. 2006). “In the
context of promotions, we have held that the appropriate comparison is
customarily between the [racial] composition of candidates seeking to be
promoted and the [racial] composition of those actually promoted,” at least so
long as the relevant data are available. Malave, 320 F.3d at 326 (emphasis
added). The plaintiffs in this case did not allege that the eligibility test was
discriminatory; rather, they alleged that discrimination entered the process at
30
the discretionary stage after the eligible lists had already been drawn up. The
relevant population for analysis, then, includes only those officers on the eligible
lists. Dr. Cavanagh’s year-end demographic analyses include all officers, and
therefore do not meet the statistical standards prescribed by law.
Putting aside these demographic analyses, then, we are left with Dr.
Cavanagh’s statistical analysis comparing the percentage of Asian Americans
on the eligibility lists with the percentage of Asian Americans promoted from
1996 to January 31, 2001 (the date that the EEOC complaint was filed). None
of the 12 Asians on the eligible lists were promoted during this period, in
contrast to 36 out of 259 whites; according to Dr. Cavanagh’s calculations, this
difference would occur due to chance “a bit under 13 percent” of the time. The
Port Authority argues that a due-to-chance figure of 13 percent is not
statistically significant because “it is generally accepted that statistical
significance is at a 5% level or less.”
It is true that “we have . . . looked to whether the plaintiff can show a
statistically significant disparity of two standard deviations,” which (in a normal
distribution) requires statistical significance at approximately the 5-percent
level. Xerox, 196 F.3d at 365. However, we have also said that “[t]here is no
minimum statistical threshold requiring a mandatory finding that a plaintiff has
demonstrated a violation of Title VII. Courts should take a ‘case-by-case
31
approach’ in judging the significance or substantiality of disparities, one that
considers not only statistics but also all the surrounding facts and
circumstances.” Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d
Cir. 1991) (quoting Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365,
372–73 (2d Cir. 1991)); see also Watson v. Fort Worth Bank & Trust, 487 U.S.
977, 995 n.3 (1988) (“[W]e have not suggested that any particular number of
‘standard deviations’ can determine whether a plaintiff has made out a prima
facie case in the complex area of employment discrimination. . . .”); accord Xerox,
196 F.3d at 366.
In many (perhaps most) cases, if there is a 13-percent likelihood that a
disparity resulted from chance, it will not qualify as statistically significant. In
this case, the plaintiffs offered other evidence that reasonable jurors could have
relied upon to find that an 87-percent likelihood that the disparity was not due
to chance qualified as significant. First, no Asian Americans were promoted
during the relevant period; requiring a statistical showing of 95-percent
confidence would make it mathematically impossible to rely upon statistics in
a case like this one, in which the relevant population included so few Asian
Americans. See Waisome, 948 F.2d at 1379 (“[T]he lack of statistical significance
in the ultimate promotion reflects only the small sample size.”). Second, as the
Port Authority acknowledges, the plaintiffs presented a substantial amount of
32
evidence that reasonable jurors could have relied on to conclude that the
plaintiffs were more qualified than some of the white officers who were
promoted, including comparing length of service, attendance records, and
disciplinary histories. In the context of this case, it would not be unreasonable
for a juror to find Dr. Cavanagh’s statistics significant despite only being
significant at the 13-percent level.
Finally, despite the Port Authority’s argument to the contrary, Dr.
Cavanagh’s choice to limit his time frame to the period from 1996 through
January 2001 (rather than, as defendant’s expert did, extending the analysis
into 2005) was not unreasonable. The plaintiffs’ theory was that the Port
Authority’s failures to promote them caused a disparate impact through 2001,
when the EEOC charge in this case was filed. Dr. Cavanagh’s selected time
frame was directly relevant to answering this question.
2. Specific Employment Practice
The Port Authority next argues that there was insufficient evidence to
support the plaintiffs’ disparate impact claim on the ground that plaintiffs either
failed to identify a specific promotion practice resulting in a disparate impact on
Asian Americans or failed to show that the Port Authority’s promotion process
could not be separated into component parts for analysis. According to the Port
Authority, the promotion process involved three separate
33
steps—recommendation by a commanding officer, approval by the Chiefs’ Board,
and selection by the Superintendent—and these steps were wholly capable of
being separated from each other for the purpose of statistical analysis. For the
following reasons, we disagree.
To make out a disparate impact claim (or, more generally, to rely on
statistical evidence), a plaintiff must identify a specific discriminatory
employment practice. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2555–56 (2011) (“[R]espondents have identified no ‘specific employment
practice’ . . . . Merely showing that Wal-Mart’s policy of discretion has produced
an overall sex-based disparity does not suffice.”); Watson, 487 U.S. at 994(“Especially in cases where an employer combines subjective criteria with the
use of more rigid standardized rules or tests, the plaintiff is in our view
responsible for isolating and identifying the specific employment practices that
are allegedly responsible for any observed statistical disparities.”). Title VII,
however, expressly provides that “if the complaining party can demonstrate to
the court that the elements of a respondent’s decisionmaking process are not
capable of separation for analysis, the decisionmaking process may be analyzed
as one employment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). Whether a
particular decisionmaking process is capable of separation for analysis largely
turns on the details of the specific process and its implementation in a given
34
case. See McClain v. Lufkin Indus., 519 F.3d 264, 278 (5th Cir. 2008); cf.
Meachem v. Knolls Atomic Power Lab., 381 F.3d 56, 74 (2d Cir. 2004), vacated
on other grounds, 544 U.S. 957 (2005).
Here, the evidence amply demonstrated that recommendation by the
Chief’s Board could not be separated from the rest of the promotion process for
the purpose of statistical analysis. Such recommendation was neither necessary
nor sufficient for promotion, and the weight it carried in the process was both
unclear and variable. For example, two candidates who were not recommended
by the Chiefs’ Board in January 2003 were nonetheless promoted by the
Superintendent later that month, even as others who received unanimous
recommendations from the Chiefs were not promoted for a year, or two years.
Another Superintendent did not bother to use the Chiefs’ Board at all.
Recommendation by the Chiefs’ Board was therefore not capable of separation
from the rest of the promotion process.
The commanding officers’ recommendations were similarly inseparable
from the Superintendent’s ultimate decisions regarding promotions because they
played an indeterminate role in the integrated promotion process. For example,
former Chief Thomas Farrell testified that he occasionally would ask for
performance evaluations of everyone on the eligible list—not just those who were
recommended by commanding officers—while other testimony indicated that
35
commanding officers’ recommendations were often important in the promotion
process. We therefore agree with the district court that these “steps” in the
promotion process were not capable of separation for analysis. See Port Auth.
II, 681 F. Supp. 2d at 464. Accordingly, the decisionmaking process involved in
promotions to Sergeant was properly analyzed as one employment practice.
3. Proof of Intent
The Port Authority next argues that it was entitled to judgment as a
matter of law on the plaintiffs’ individual disparate treatment claims because
many of the plaintiffs’ anecdotes of intentional discrimination were merely
“situations involving personal affront as opposed to examples of overt racism,”
and moreover, that “[n]one of the specific instances relied upon by plaintiffs took
place in the context of promotion.” Appellants’ Reply Br. at 17. Even if we were
to accept the Port Authority’s characterization of these accounts of
discrimination, however, the plaintiffs also provided evidence that they were
better qualified for promotion than several white officers who were promoted
instead. In conjunction with the plaintiffs’ statistical evidence, we conclude that
this anecdotal evidence of intent was sufficient for a reasonable jury to conclude
that the Port Authority intentionally discriminated against the plaintiffs by
failing to promote them.
36
III. Damages and the Statute of Limitations
The Port Authority argues, finally, that it was improperly assessed back
pay and compensatory damages for harms that were suffered by the plaintiffs
prior to August 2, 2000. The district court disagreed because it believed that the
“continuing violation” doctrine applied in the context of plaintiffs’ disparate
impact allegations so that damages could properly be awarded for failures to
promote that occurred outside the limitations period.10 We agree with the Port
Authority and hold that the continuing violation doctrine does not apply to
plaintiffs’ disparate impact proof. As a result, we further conclude: (1) that the
back pay awards to Eng, Lew, Stanley Chin, and Fong must be vacated, as well
as the retroactive promotion of Lew and the salary and pension adjustments for
Lew, Stanley Chin, and Fong; and (2) that the jury’s compensatory damage
awards with regard to all seven prevailing plaintiffs must also be vacated. We
remand to the district court for a new trial on damages and for reconsideration
of equitable relief to the extent such relief was premised on failures to promote
occurring outside the limitations period.
10
The district court reached a similar conclusion with regard to plaintiffs’
pattern-or-practice allegations but, for the reasons already stated, see supra Part I, we
have concluded that this theory of liability was not properly submitted to the jury.
37
A. The Continuing Violation Doctrine
It has been the law of this Circuit that “[u]nder the continuing violation
exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC
charge that is timely as to any incident of discrimination in furtherance of an
ongoing policy of discrimination, all claims of acts of discrimination under that
policy will be timely even if they would be untimely standing alone.” Lambert
v. Genesse Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated on other grounds by
Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329–30
(2011); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004);
Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001); Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Cornwall v. Robinson, 23
F.3d 694, 703–04 (2d Cir. 1994). Applying this principle, the district court in
this case concluded that the Port Authority could be liable, and assessed
damages, for discriminatory failures to promote outside the statute of limitations
because, pursuant to the plaintiffs’ disparate impact theory, those failures to
promote were the product of an ongoing discriminatory policy that continued
after August 2, 2000, thus triggering the continuing-violation doctrine. See Port
Auth. II, 681 F. Supp. 2d at 463.
* * *
38
The Port Authority argues that the continuing-violation doctrine does not
apply in this case because (1) the plaintiffs did not identify a specific, ongoing
discriminatory policy or custom; and (2) under the Supreme Court’s decision in
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), failures to
promote are “discrete acts” of discrimination and thus do not implicate the
continuing-violation doctrine. Because we agree with the Port Authority’s
second argument, we do not address the first.
In Morgan, the Supreme Court unanimously rejected the Ninth Circuit’s
view that a series or pattern of “related discrete acts” could constitute one
continuous “unlawful employment practice” for purposes of the statute of
limitations. Id. at 111. Rather, the Court held that “discrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act starts a new clock for
filing charges alleging that act.” Id. at 113. By a divided vote, however, the
Morgan Court distinguished such discrete acts from an allegedly hostile work
environment, which it held could be a continuing violation because its “very
nature involves repeated conduct.” Id. at 115. “Such claims are based on the
cumulative effect of individual acts,” the Court wrote, noting that “a single act
of harassment may not be actionable on its own.” Id.39
The plaintiffs argue that Morgan’s analysis of “discrete acts” cannot apply
to disparate impact claims because such claims—like hostile work environment
claims—are “necessarily based on the cumulative effect of a particular practice
over time.” Appellees’ Br. at 28. It is true that Morgan involved only an
individual disparate treatment claim premised on a series of related discrete
acts, and therefore did not directly address whether the continuing-violation
doctrine applies where an ongoing discriminatory policy results in discrete
discriminatory acts both before and after the limitation date. See Morgan, 536
U.S. at 107 (noting in passing that in the Ninth Circuit, pre-Morgan, another
type of continuing violation could be established by showing “a systematic policy
or practice of discrimination that operated, in part, within the limitations
period,” but neither endorsing nor repudiating that category of continuing
violations); id. at 115 n.9 (“We have no occasion here to consider the timely filing
question with respect to ‘pattern-or-practice’ claims brought by private litigants
as none are at issue here.”). Morgan’s reasoning, however, demonstrates that
a plaintiff may recover for a failure to promote—regardless whether it was
caused by an ongoing discriminatory policy—only if he files an EEOC charge
within 180 or 300 days of that decision.11
11
As Morgan notes, the 300-day limitations period, inapplicable here, applies in
those states that have “an entity with the authority to grant or seek relief with respect
to the alleged unlawful practice” and where an employee initially files a grievance with
that entity. 536 U.S. at 109.
40
Morgan established that an employer’s failure to promote is by its very
nature a discrete act. “Discrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire are easy to identify,” the Court wrote. Id.
at 114 (emphasis added); see also Forsyth v. Fed’n Emp’t & Guidance Serv., 409
F.3d 565, 572 (2d Cir. 2005), abrogated on other grounds by Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Moreover, each discrete act
necessarily “constitutes a separate actionable ‘unlawful employment practice,’”
Morgan, 536 U.S. at 114—unlike the incidents that comprise a hostile work
environment claim, which may not be individually actionable, id. at 115. Both
the employer and the aggrieved party may therefore rely on the clear and
predictable statute of limitations when contemplating prospective litigation
regarding failures to promote or other discrete acts. As Justice Ginsburg has
explained:
A worker knows immediately if she is denied a promotion or
transfer, if she is fired or refused employment. And promotions,
transfers, hirings, and firings are generally public events, known to
co-workers. When an employer makes a decision of such open and
definitive character, an employee can immediately seek out an
explanation and evaluate it for pretext.
Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting). Accordingly, under
Morgan, every failure to promote is a discrete act that potentially gives rise to
a freestanding Title VII claim with its own filing deadline.
41
Discrete acts of this sort, which fall outside the limitations period, cannot
be brought within it, even when undertaken pursuant to a general policy that
results in other discrete acts occurring within the limitations period. This is the
conclusion of every circuit to consider the question after Morgan. Each of our
sister circuits has held that an allegation of an ongoing discriminatory policy
does not extend the statute of limitations where the individual effects of the
policy that give rise to the claim are merely discrete acts. See, e.g., Williams v.
Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (“Nor does [the plaintiff’s]
allegation of a 20-year ‘pattern or practice’ of discrimination extend the
applicable limitations periods.”); Davidson v. Am. Online, Inc., 337 F.3d 1179,
1185–86 (10th Cir. 2003) (holding that claims cannot be premised on an
untimely discrete act “even if the discrete act was part of a company-wide or
systemic policy”); cf. Tademe v. St. Cloud State Univ., 328 F.3d 982, 988 (8th Cir.
2003) (“Although [the plaintiff] argues that the district court failed to consider
that he was asserting a pattern-or-practice of discrimination, Morgan makes
clear that the failure to promote, refusal to hire, and termination are generally
considered separate violations.”); Lyons v. England, 307 F.3d 1092, 1107 & n.8
(9th Cir. 2002) (holding that an individual plaintiff’s “assertion that this series
of discrete acts flows from a company-wide, or systemic, discriminatory practice
will not succeed in establishing the employer’s liability for acts occurring outside
42
the limitations period,” but distinguishing and declining to address class-wide
pattern-or-practice claims).
This conclusion is not altered by the fact that the plaintiffs employ the
disparate impact method of proof. To prevail on a disparate impact claim, a
plaintiff must “demonstrate[] that a respondent uses a particular employment
practice that causes a disparate impact.” 42 U.S.C. § 2000e-2(k)(1)(A)(i)
(emphasis added). In Lewis v. City of Chicago, 130 S. Ct. 2191, 2197–99 (2010),
the Supreme Court interpreted this language to mean that every “use” of an
employment practice that causes a disparate impact is a separate actionable
violation of Title VII with its own 180- or 300-day statute-of-limitations clock.
See id. at 2197–99. Accordingly, under Lewis and Morgan, each time the Port
Authority failed to promote one of the plaintiffs, that plaintiff had 180 days to
challenge the decision.
In an attempt to distinguish Morgan, the plaintiffs argue that they
“challenge the process by which the Port Authority made promotion decisions,
rather than any specific promotion decision.” Appellees’ Br. at 29. But this
argument hurts rather than helps them. In Lewis, the Supreme Court
considered the case of an allegedly discriminatory examination used by the City
of Chicago to make hiring decisions. The examination’s scores and the City’s
plan to hire based on certain cutoff scores were announced outside the
43
limitations period, but the actual hiring occurred within the limitations period.
See Lewis, 130 S. Ct. at 2195–96. The Supreme Court explained that although
“[i]t may be true that the City’s . . . decision to adopt the cutoff score (and to
create a list of the applicants above it) gave rise to a freestanding disparate-
impact claim[,] [i]f that is so, the City is correct that since no timely charge was
filed attacking it, the City is now entitled to treat that past act as lawful.” Id.at 2198–99 (citation and internal quotation marks omitted). If the process by
which the Port Authority promoted police officers from its eligibility lists did not
materially change within the limitations period, as the plaintiffs claim, then the
Port Authority is entitled to treat the process as lawful. See id. at 2199. The
process itself therefore cannot be challenged; rather, only specific failures to
promote that occurred within the limitations period are actionable.
B. Damages & Equitable Relief
The district court properly instructed the jury regarding the statute of
limitations for plaintiffs’ individual disparate treatment claims, and the jury
indicated on the verdict sheet its express findings that the Port Authority made
discriminatory decisions not to promote Eng, Fong, Lew, Stanley Chin, Yum,
Martinez, and Lim “after August 2, 2000.” Pursuant to the district court’s
conclusion that the continuing violation doctrine was applicable to plaintiffs’
disparate impact proof, however, the jury was permitted to assess damages for
44
failures to promote occurring outside the limitations period.12 With this in mind,
we turn to the Port Authority’s claim that the damages and equitable awards
here were premised on time-barred claims and were otherwise excessive.
1. Back Pay
The jury’s back-pay awards correspond precisely to certain calculations of
the plaintiffs’ damages expert, such that both parties and the district court
agreed below that the jury found that four of the prevailing plaintiffs (Eng, Lew,
Stanley Chin, and Fong) would have been promoted on October 31, 1999, and the
other three (Yum, Lim, and Martinez) would have been promoted on September
30, 2002.
12
We note that the jury was not properly instructed regarding the statute
of limitations as it applied to the plaintiffs’ disparate impact proof. “To find
disparate impact,” the district court instructed the jury, “you are not required
to consider whether the Port Authority intended to discriminate, but whether
the Port Authority’s promotion practices were the cause of a disparity, if any,
after August 2, 2000.” When the jury asked for clarification regarding the
timing, the district court told them simply, “There has to be an effect after
August 2, 2000.” This phrasing suggests that the jury could find disparate
impact liability where the Port Authority used an employment practice only
outside the limitations period that resulted in a disparate effect that then
passively persisted into the limitations period. Lewis, however, makes clear that
a disparate impact claim requires plaintiffs to plead and prove that defendants,
within the limitations period, used an employment practice that had a disparate
impact. 130 S. Ct. at 2197–99. In other words, the cause—not merely the
effect—must occur within the limitations period. The district court’s instruction
was therefore erroneous. The Port Authority, however, does not challenge the
jury’s liability finding on this basis, but simply the award of damages and
equitable relief for harms occurring before August 2, 2000. Accordingly, we
deem the error waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998).
45
The Port Authority argues first that the jury could not award back pay to
multiple plaintiffs dating back to the same date when fewer than that number
of plaintiffs were actually promoted on that date. It points out that there were
only three promotions on October 31, 1999, but the jury awarded back pay to
four plaintiffs corresponding to a failure to promote on that date. Likewise,
there were only two promotions on September 30, 2002, but the jury awarded
back pay to three plaintiffs extending back to that date. The Port Authority
urges that the back pay awards for this reason “suffer from a fundamental error
of law” and must be vacated. Appellants’ Br. at 46.
We disagree. Although in many circumstances an employer may have only
a fixed, limited number of possible promotion slots such that relief would be
limited accordingly, see Dougherty v. Barry, 869 F.2d 605, 614–15 (D.C. Cir.
1989) (R.B. Ginsburg, J.), that is not the case here. The plaintiffs presented
evidence that the Port Authority could and did create new Sergeant-level
vacancies. For example, during cross-examination, Chief Farrell conceded that
the Superintendent occasionally would not specify the number of new Sergeants
he was looking for, and that from time to time the Port Authority created new
Sergeant-level vacancies based on staffing needs. A reasonable jury could
therefore have concluded that the Port Authority could have promoted three
46
officers rather than two on September 30, 2002, and four officers rather than
three on October 31, 1999.
Nevertheless, the back pay awards to Christian Eng, Alan Lew, Stanley
Chin, and Milton Fong were improper because they were premised on a
hypothetical promotion date outside the statute of limitations. As explained
earlier, see supra section III.A, the district court should have instructed the jury
that the Port Authority could be liable only for discriminatory failures to
promote after August 2, 2000, and that individual remedies were limited
accordingly. We therefore vacate the back pay awards to these four plaintiffs
and remand to the district court for determination of their proper back-pay
awards.
2. Compensatory Damages
The Port Authority next argues that the jury’s compensatory damages
awards were based on discriminatory acts that predated the onset of the statute
of limitations period. The plaintiffs do not contest this allegation, but rather
embrace it, and defend the awards solely on the basis of the continuing violation
theory. See Appellees’ Br. at 48 (“The compensatory damages awards correlate
to each Plaintiff’s seniority on the job—and thus, the duration of each Plaintiff’s
distress—awarding $250,000 to the two Plaintiffs who each had more than
twenty-nine years on the job, $100,000 and $75,000 to the three Plaintiffs who
47
had between twenty and twenty-five years on the job, and $15,000 to the two
Plaintiffs who had sixteen years on the job.”). “When ‘[i]t is not possible to
ascertain what portions of the compensatory and punitive damages awards were
attributable’ to claims that were time-barred, the damages awards must be
vacated” and remanded for a new trial on damages. Annis v. Cnty. of
Westchester, 136 F.3d 239, 248 (2d Cir. 1998) (quoting Rush v. Scott Specialty
Gases, Inc., 113 F.3d 476, 485 (3d Cir. 1997)). Because the jury may have
included time-barred claims with respect to each of the plaintiffs, we vacate all
seven prevailing plaintiffs’ compensatory damages awards and remand for a new
trial on damages. On remand, the district court should instruct the jury to
award damages only for injuries stemming from a discriminatory failure to
promote after August 2, 2000.
3. Equitable Relief
The Port Authority next argues that the district court’s equitable relief of
retroactive promotions and salary and pension adjustments should have been
granted only pro rata under the theory that only a limited number of promotions
were available on each day. See Dougherty, 869 F.2d at 614–15. But this
argument fails with respect to equitable relief for the same reason it fails
regarding back pay, see supra section III.B.1; on the evidence presented, a
48
reasonable jury could have concluded that the Port Authority could promote
more officers on a given date than it chose to.
The equitable relief should not, however, have extended retroactive
promotions or salary or pension adjustments beyond the limitations period. The
district court’s award of salary and pension adjustments for Milton Fong,
Stanley Chin, and Alan Lew, as well as the retroactive promotion of Alan Lew,
must be vacated and remanded for reconsideration because the award of such
equitable relief was premised on a hypothetical promotion date of October 31,
1999. On remand, the district court should determine the date, after August 2,
2000, that each of these three plaintiffs would have been promoted absent
discrimination and may grant appropriate equitable relief accordingly.
IV. Exclusion of Lundquist’s Expert Testimony
We now turn to the cross-appeal. The four cross-appealing plaintiffs argue
that the district court erred in excluding the expert testimony of Dr. Lundquist,
who would have testified that the Port Authority’s promotion procedure was so
unstructured and subjective that it fell below professional standards, and who
would have compared the qualifications of the plaintiffs with those of the officers
who were actually promoted. Expert testimony is admissible if it “(a) will help
the trier of fact to understand the evidence or to determine a fact in issue,” so
long as “(b) the testimony is based upon sufficient facts or data; (c) the testimony
49
is the product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.” Fed. R. Evid. 702.
A district court’s exclusion of expert testimony is reviewed for abuse of
discretion, and “[a] decision to admit or exclude expert scientific testimony is not
an abuse of discretion unless it is ‘manifestly erroneous.’” Amorgianos v. Nat’l
R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting McCullock v.
H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995)). “Further, an erroneous
evidentiary ruling warrants a new trial only when ‘a substantial right of a party
is affected,’ as when ‘a jury’s judgment would be swayed in a material fashion by
the error.’” Lore v. City of Syracuse, 670 F.3d 127, 155 (2d Cir. 2012) (quoting
Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)).
The district court did not abuse its discretion in concluding that it lacked
evidence that Dr. Lundquist’s testimony was based on established principles and
methods and that, in any event, her testimony would not have provided
assistance to the trier of fact beyond that afforded by the arguments of counsel,
as required by Rule 702. On appeal, the plaintiffs argue that the district court
failed to acknowledge the portion of Dr. Lundquist’s testimony that compared
the qualifications of the plaintiffs with those of the white officers who were
promoted instead. But Dr. Lundquist’s analysis as to the comparative
qualifications of the plaintiffs was both brief and simple, relying mostly on
50
various officers’ years of experience, commendations, discipline, and absences.
For each of the four plaintiffs who did not prevail, Dr. Lundquist merely
summed up their qualifications in a few sentences and then compared each of
them to two officers who were promoted instead but whose record suggested that
they may have been less qualified. For example, she compared both Michael
Chung and Sanrit Booncome to a promoted officer named Gary Griffith, whom
she described only as having “sixty-seven absences in 2000 alone.”
The district court did not abuse its discretion in concluding that expert
analysis was not required to help the jury understand such evidence. Indeed,
the plaintiffs’ attorneys made the same points in argument that were made in
Dr. Lundquist’s report. Chung and Booncome’s qualifications were established
in detail while they were on the stand, and their attorney brought out Gary
Griffith’s relative lack of experience and his significant number of absences
through questioning of a former Superintendent. The plaintiffs’ attorneys,
moreover, emphasized throughout the trial the relative qualifications of the
plaintiffs when compared with officers who were promoted. At the trial’s
conclusion, the plaintiffs’ summation detailed the qualifications of each of the
plaintiffs in almost exactly the same way as Dr. Lundquist’s testimony would
have, including occasionally comparing a plaintiff with someone who had been
promoted. The district court therefore did not abuse its discretion in
51
determining that Dr. Lundquist’s testimony was not relevant expert testimony
that would help the jury understand the facts at issue.
V. Sanctions for Spoliation
Finally, cross-appealing plaintiff Howard Chin argues that the district
court erred in denying the plaintiffs’ motion requesting an adverse inference
instruction due to the Port Authority’s destruction of the promotion folders used
to make promotions off of the 1999 eligible list.13 See Port Auth. I, 601 F. Supp.
2d 566 (S.D.N.Y. 2009). The Port Authority does not dispute that, upon
receiving notice of the filing of plaintiffs’ EEOC charge in February 2001, it had
an obligation to preserve the promotion folders yet failed to do so. It argues,
however, that the district court did not abuse its discretion in denying an
adverse inference instruction. We agree.
“[A] party seeking an adverse inference instruction based on the
destruction of evidence must establish (1) that the party having control over the
evidence had an obligation to preserve it at the time it was destroyed; (2) that
the records were destroyed with a culpable state of mind; and (3) that the
destroyed evidence was relevant to the party’s claim or defense such that a
reasonable trier of fact could find that it would support that claim or defense.”
13
Howard Chin is the only one of the four cross-appealing plaintiffs who claims
to have lost relevant evidence due to the Port Authority’s destruction of the promotion
folders.
52
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.
2002) (internal quotation marks omitted). If these elements are established, a
district court may, at its discretion, grant an adverse inference jury instruction
insofar as such a sanction would “serve[] [the] threefold purpose of (1) deterring
parties from destroying evidence; (2) placing the risk of an erroneous evaluation
of the content of the destroyed evidence on the party responsible for its
destruction; and (3) restoring the party harmed by the loss of evidence helpful
to its case to where the party would have been in the absence of spoliation.”
Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001). Our review of a
district court’s decision on a motion for discovery sanctions is limited to abuse
of discretion, which includes errors of law and clearly erroneous assessments of
evidence. See Residential Funding Corp., 306 F.3d at 107. “[A]bsent a showing
of prejudice, the jury’s verdict should not be disturbed.” Id. at 112.
Howard Chin argues that the Port Authority’s failure even to issue a
litigation hold regarding the promotion folders at any point between 2001 and
2007 amounted to gross, rather than simple, negligence. We reject the notion
that a failure to institute a “litigation hold” constitutes gross negligence per se.
Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs.,
LLC, 685 F. Supp. 2d 456, 464–65 (S.D.N.Y. 2010). Rather, we agree that “the
better approach is to consider [the failure to adopt good preservation practices]
53
as one factor” in the determination of whether discovery sanctions should issue.
Orbit Comm’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010).
Moreover, as the district court recognized, see Port Auth. I, 601 F. Supp. 2d at
570, a finding of gross negligence merely permits, rather than requires, a district
court to give an adverse inference instruction. See Residential Funding Corp.,
306 F.3d at 109; Byrnie, 243 F.3d at 108. Even if we assume arguendo both that
the Port Authority was grossly negligent and that the documents here were
“relevant,” we have repeatedly held that a “case-by-case approach to the failure
to produce relevant evidence,” at the discretion of the district court, is
appropriate. Residential Funding Corp., 306 F.3d at 108 (quoting Reilly v.
Natwest Mkts. Grp., 181 F.3d 253, 267 (2d Cir. 1999)). In this case, the district
court concluded that an adverse inference instruction was inappropriate in light
of the limited role of the destroyed folders in the promotion process and the
plaintiffs’ ample evidence regarding their relative qualifications when compared
with the officers who were actually promoted. See Port Auth. I, 601 F. Supp. 2d
at 570–71. At trial, Howard Chin was able to establish his service record and
honors, and Chief Charles Torres testified that Howard Chin was very smart
and a good employee. Under these circumstances, the district court did not
abuse its discretion in concluding that an adverse inference instruction was
inappropriate.
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CONCLUSION
For the foregoing reasons, we affirm the district court’s conclusion that the
Port Authority is liable to Christian Eng, Nicholas Yum, Alan Lew, David Lim,
George Martinez, Stanley Chin, and Milton Fong under both the individual
disparate treatment and disparate impact theories. We also affirm the denial
of individual relief to Howard Chin, Richard Wong, Sanrit Booncome, and
Michael Chung. Because the district court erred in applying the continuing-
violation exception to the plaintiffs’ claims, however, we: (1) vacate the jury’s
back pay awards with respect to Christian Eng, Alan Lew, Stanley Chin, and
Milton Fong; (2) vacate the jury’s compensatory damage awards with respect to
Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley
Chin, and Milton Fong; (3) vacate the retroactive promotion of Alan Lew; and (4)
vacate the salary and pension adjustments for Alan Lew, Stanley Chin, and
Milton Fong. We remand all of these remedies issues to the district court for a
new trial solely on damages and for the reconsideration of equitable relief. On
remand, individual relief should be awarded only insofar as it corresponds to
discriminatory failures to promote committed after August 2, 2000.
55