Carpenter v. The Boeing Company

F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 7, 2006
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT
K A RLA CA RPEN TER ; LIN D A
W ILK ERSO N ; SH ER YL LA N DON;
SA N D Y WILC YN SK I; SO N Y A
PH ILLIPS; C HA RLEN E C HA PM AN;
C HERYL LEE PER SIN G ER ; NENA
H O LD ER ; R UB Y R YH ER D,
individually & on behalf of all others
sim ilarly situated; M A RY D EA N;
FA ITH BR ID G EWA T ER ; V ERLENE
M AHOLM ES, individually,
Plaintiffs - Appellants/Cross-
Appellees,
v. Nos. 04-3334, 04-3350, 04-3351
TH E BOEIN G CO M PA N Y ,
Defendant - Appellee/Cross-
Appellant.
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K A RLA CA RPEN TER ; LIN D A
W ILK ERSO N ; SH ER YL LA N DON;
SA N D Y WILC YN SK I; SO N Y A
PH ILLIPS; C HA RLEN E C HA PM AN;
C HERYL LEE PER SIN G ER ; NENA
H O LD ER ; R UB Y R YH ER D,
individually, and on behalf of all other
persons similarly situated,
Petitioners,
No. 04-602
v.
TH E B OEIN G CO M PA N Y ,
Respondent.
A PPE A L S FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E D IST R IC T O F K A N SA S
(D .C . N O . 02-C V -1019-W E B )
Jeffrey T. Sprung, Hagens Berman Sobol Shapiro LLP, argued for Plaintiffs -
Appellants/Cross-Appellees, (Steve W . Berman, Andrew M . Volk, Ivy D. Arai,
Hagens Berman Sobol Shapiro LLP, Seattle, W ashington, and M ark B. Hutton and
Derek S. Casey, Hutton & Hutton, W ichita, Kansas, with him on the brief).
James M . Armstrong, Foulston Siefkin LLP, argued for D efendant -
Appellee/Cross-Appellant, (M ary Kathleen Babcock, Trisha A. Thelen, Carolyn L.
M atthews, Foulston Siefkin LLP, W ichita, Kansas, and C. Geoffrey W eirich,
Paul, Hastings, Janofsky & W alker LLP, Atlanta, Georgia, with him on the brief).
M ary Dean, Faith Bridgewater and V erlene M aholmes, pro se Plaintiffs -
Appellants/Cross-Appellees, submitted a brief.
Before H A R T Z, A N D ER SO N , and O ’B R IE N , Circuit Judges.
H A R T Z, Circuit Judge.
Plaintiffs appeal from the district court’s disposition of the em ploym ent-
discrim ination claim s of female employees at the Boeing Com pany’s W ichita,
Kansas, facility. They have sought to bring class-action claim s alleging several
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unlawful employm ent practices under both disparate-im pact and disparate-
treatm ent theories of discrim ination. The two subclasses relevant to this appeal
are a subclass of hourly female workers (the Hourly Subclass) and a subclass of
salaried female workers (the Salaried Subclass). Before us now are both (1) the
district court’s sum m ary judgm ent on the Hourly Subclass’s disparate-im pact
claim relating to overtim e assignm ents, certified by the district court as a final
judgm ent under Fed. R. Civ. P. 54(b); and (2) several of the district court’s class-
certification decisions relating to both the Hourly and Salaried Subclasses, on
which we provisionally granted interlocutory appeal under Fed. R. Civ. P. 23(f).
Boeing has cross-appealed to challenge the district court’s class certification of
the Hourly Subclass’s disparate-im pact claim in the event that we reverse the
district court’s grant of sum m ary judgm ent on that claim .
W e affirm the district court’s sum m ary judgm ent because Plaintiffs’
statistical evidence is not adequately based on data restricted to persons eligible
for overtime assignments. This affirmance moots the cross-appeal. Also, we
dism iss Plaintiffs’ appeal of the district court’s class-action decisions because
they were not filed within 10 days of the district court’s initial decision denying
class certification. Finally, we reject the claim s of three former class
representatives who were stripped of that designation by the district court on the
ground that they could not “fairly and adequately protect the interests of the
class,” Fed. R. Civ. P. 23(a)(4).
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I. BACKGROUND
Title VII of the Civil Rights Act of 1964 prohibits, am ong other things,
discrim ination on the basis of sex. See 42 U.S.C. § 2000e-2(a). Two types of
claim s are recognized under Title VII: disparate treatment and disparate im pact.
“Disparate treatm ent” . . . is the most easily understood type of
discrim ination. The em ployer sim ply treats some people less
favorably than others because of their race, color, religion, sex, or
national origin. Proof of discrim inatory m otive is critical, although
it can in som e situations be inferred from the mere fact of differences
in treatm ent. . . .
Claim s of disparate treatm ent m ay be distinguished from
claim s that stress “disparate im pact.” The latter involve employm ent
practices that are facially neutral in their treatm ent of different
groups but that in fact fall m ore harshly on one group than another
and cannot be justified by business necessity. Proof of
discrim inatory m otive . . . is not required under a disparate-im pact
theory. Either theory m ay, of course, be applied to a particular set of
facts.
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (citations
om itted). In a disparate-im pact claim the plaintiff is challenging an employm ent
practice that is “‘fair in form , but discrim inatory in operation.’” Bullington v.
United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir. 1999) (quoting Griggs v.
Duke Power Co., 401 U.S. 424, 431 (1971), overruled on other grounds by Nat’l
R.R. Passenger Corp. v. M organ, 536 U.S. 101 (2002). “[A] plaintiff m ay
establish a prim a facie case of disparate im pact discrim ination by showing that a
specific identifiable em ploym ent practice or policy caused a significant disparate
im pact on a protected group.” Id. (internal quotation m arks om itted). This
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burden, which had been im posed by caselaw, see, e.g., Ortega v. Safeway Stores,
Inc., 943 F.2d 1230, 1242 (10th Cir. 1991), was codified by statute in 1991. See
42 U.S.C. § 2000e-2(k); Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a),
105 Stat. 1071, 1074-75. The 1991 statute departed from case law in several
respects, but none are relevant here.
Discrim ination suits are often filed as putative class actions. W hether a
suit can proceed as a class action is governed by Fed. R. Civ. P. 23. Under that
rule the district court m ust determ ine “at an early practicable tim e,” Fed. R. Civ.
P. 23(c)(1)(A), whether a suit (or a particular claim within a suit) satisfies the
prerequisites of num erosity, comm onality, typicality, and adequacy of
representation, see id. 23(a), and falls within one of the categories of actions
m aintainable as class actions, see id. 23(b). W e review de novo whether the
district court applied the correct legal standard in its decision to grant or deny
class certification; when the district court has applied the proper standard, the
decision will be reversed only for abuse of discretion. See Shook v. El Paso
County, 386 F.3d 963, 967-68 (10th Cir. 2004). The district court can modify or
am end its class-certification determ ination at any time before final judgm ent in
response to changing circum stances in the case. See Fed. R. Civ. P. 23(c)(1)(C).
In 2000, Plaintiffs, among others, filed a putative nation-wide class-action
suit in the United States District Court for the W estern District of W ashington,
alleging gender discrim ination in a variety of Boeing’s com pensation practices.
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The district court, however, certified only a class of female employees working at
Boeing’s W ashington facilities. In 2002 non-W ashington plaintiffs filed suits in
several states, including this suit in the District of Kansas.
Boeing’s W ichita facility includes operations of three m ajor business units:
Boeing Com m ercial A irplanes, which is the largest group at the facility and is
responsible for comm ercial production; the W ichita Developm ent and
M odification Center, which is responsible for the site’s m ilitary business; and the
Shared Services G roup, which provides infrastructure support. According to the
com plaint, the W ichita facility is Boeing’s largest m anufacturing business. In
Decem ber 2001 Boeing had approximately 16,700 em ployees in K ansas.
This appeal concerns Plaintiffs’ Title VII claim s alleging gender
discrim ination in Boeing’s com pensation and overtim e policies. Nine of the
Plaintiffs (the Carpenter Plaintiffs) seek to represent themselves and a class of
sim ilarly situated current and form er fem ale em ployees at Boeing’s W ichita
facility. The other three Plaintiffs (the D ean Plaintiffs) are mem bers of the class
but represent only them selves on appeal.
The Hourly Subclass’s overtim e claim s were brought under both disparate-
im pact and disparate-treatm ent theories. The claim s are based on the allegation
that the discretion given to supervisors in assigning overtim e resulted in wom en
receiving consistently fewer overtim e assignm ents than their m ale counterparts.
In their disparate-treatm ent claim , they allege further that Boeing’s failure to act
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upon knowledge of the denial of those assignm ents constituted intentional
discrim ination against its fem ale em ployees. The Salaried Subclass m ade a
disparate-impact claim that Boeing’s com pany-wide practices for setting both
starting salaries and raises systematically disadvantaged its female employees and
a disparate-treatm ent claim that the company had failed to take action to correct
the discrim inatory im pact since learning of it in 1995. Not at issue are other
claim s brought by the two subclasses and the claim s of a putative subclass of
female salaried engineers.
II. C LA SS C ER TIFIC A T IO N
There have been several class-certification proceedings before the district
court in this case. The court’s initial certification decision, on April 25, 2003,
granted certification under Rule 23(b)(2) to both the Hourly and Salaried
Subclasses on their disparate-impact claims. Certification was denied on all
disparate-treatm ent claim s. On February 24, 2004, following m erits discovery,
the court granted Boeing’s m otion to decertify the disparate-im pact claim of the
Salaried Subclass, leaving the overtime disparate-impact claim of the Hourly
Subclass as the only claim certified for class-action treatm ent under Rule 23.
Plaintiffs filed a Renewed M otion for Class Certification (First Renewed
M otion) on April 2, 2004, seeking recertification of the Salaried Subclass’s
disparate-im pact claim s. The court prom ptly denied the motion. Plaintiffs filed a
Second Renewed M otion for Class Certification (Second Renewed M otion) on
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August 27, 2004, seeking certification of the disparate-treatment claims of both
the Hourly and Salaried Subclasses and again asking for recertification of the
Salaried Subclass’s disparate-im pact claim . The district court denied the motion
on Septem ber 8, 2004.
Plaintiffs then filed with this court an application to appeal under
Rule 23(f) the denial of their Second Renew ed M otion as it related to the claim s
of the Salaried Subclass. Although Plaintiffs sought certification of the disparate-
treatm ent claim of the Hourly Subclass in their Second Renewed M otion, they
abandoned that issue on appeal. Despite asserting in the application that the relief
sought was “leave to appeal the district court’s decision denying Plaintiffs’
Second Renewed M otion for Class Certification,” Pet. for Perm ission to Appeal at
11, the application refers only to the claim s of the Salaried Subclass and its
argum ents relate only to the certification determ inations m ade with respect to that
subclass. Therefore, we will address only the claim s of the Salaried Subclass.
Boeing argues that Plaintiffs’ application was untim ely under Rule 23(f),
and that we therefore lack jurisdiction to consider it. W e provisionally granted
the application pending briefing and argum ent on our jurisdiction and the m erits
of the appeal. Upon further consideration we dism iss the application as untimely
and do not reach the m erits of the appeal.
A. Fed. R . C iv. P. 23(f)
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Rule 23 was am ended in 1998 to add subsection (f), which perm its
interlocutory appeals of district court orders granting or denying class
certification. It states:
A court of appeals m ay in its discretion perm it an appeal from an
order of a district court granting or denying class action certification
under this rule if application is made to it within ten days after entry
of the order. An appeal does not stay proceedings in the district
court unless the district judge or the court of appeals so orders.
Fed. R. Civ. P. 23(f).
Interlocutory appeals have long been disfavored in the law, and properly so.
They disrupt and delay the proceedings below. See 19 James W m . M oore,
M oore’s Federal Practice § 201.10[1] (3d ed. 2006) (“The purposes of the final
judgm ent rule are to avoid piecem eal litigation, to prom ote judicial efficiency,
and to defer to the decisions of the trial court. Unfettered interlocutory appeals
would disrupt both the trial and appellate processes.”); 15A Charles A lan W right,
Arthur R. M iller & Edward H. Cooper, Federal Practice and Procedure § 3907, at
269 (2d ed. 1991) (“W hen courts attempt to explain the policies that underlie the
final judgm ent rule, . . . [they] speak of ‘efficiency,’ protecting the role of the
trial judge, and the need to avoid such evils as interference with the trial court,
deciding unnecessary issues, and deliberate delay or harassm ent.”). But
som etim es countervailing considerations predominate. The consideration that led
to adoption of subsection (f) is that a class-certification determ ination can force a
resolution of the case that is independent of the merits. W hen class-action status
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is denied, the plaintiffs m ay need to abandon the case, or settle for a pittance,
because the cost of continuing will far outweigh any potential recovery in the
individual actions remaining. And when class-action status is granted, the
defendant m ay be facing such enorm ous potential liability that a significant
settlem ent becom es the only prudent course. As the Advisory Com m ittee note
puts it:
[S]everal concerns justify expansion of present opportunities to
appeal. An order denying certification m ay confront the plaintiff
with a situation in which the only sure path to appellate review is by
proceeding to final judgm ent on the m erits of an individual claim
that, standing alone, is far smaller than the costs of litigation. An
order granting certification, on the other hand, m ay force a defendant
to settle rather than incur the costs of defending a class action and
run the risk of potentially ruinous liability. These concerns can be
m et at low cost by establishing in the court of appeals a discretionary
power to grant interlocutory review in cases that show appeal-worthy
certification issues.
Fed. R. Civ. P. 23 advisory com m ittee’s note, 1998 Am endm ents, Subdivision (f).
But this opportunity for an interlocutory appeal is tightly confined. First,
“[t]he court of appeals is given unfettered discretion whether to permit the appeal,
akin to the discretion exercised by the Supreme Court in acting on a petition for
certiorari.” Id. And second, there is a short time limit— 10 days— within which
the aggrieved party can ask the court of appeals to exercise its discretion. See id.
(“The 10-day period for seeking permission to appeal is designed to reduce the
risk that attempted appeals w ill disrupt continuing proceedings.”). Because this
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timeliness requirement is mandatory 1 , we m ust first determine w hether Plaintiffs
satisfied it.
B. T im eliness
The district court denied Plaintiffs’ Second Renewed M otion by order
entered on September 8, 2004. Plaintiffs assert that their application filed on
September 22, 2004, was tim ely because it was filed within 10 days of the district
court’s disposition. See Fed. R. Civ. P. 6(a) (com putation of time); Beck v.
Boeing Co., 320 F.3d 1021, 1022-23 (9th Cir. 2003) (Fed. R. Civ. P. 6(a) governs
the tim eliness of applications under Rule 23(f)). The validity of that assertion
depends on whether the district court’s denial was “an order . . . granting or
denying class action certification.” Fed. R. Civ. P. 23(f). Boeing contends that
the district court’s order was sim ply a refusal to reconsider its prior rulings
1
W e are among several circuits that have treated the timeliness requirement
as jurisdictional. See, e.g., Delta Airlines v. Butler, 383 F.3d 1143, 1144 (10th
Cir. 2004) (per curiam ) (“Because the petition was not filed within the mandated
time period, we dism issed for lack of jurisdiction.”); M cNamara v. Felderhof, 410
F.3d 277, 280 (5th Cir. 2005) (“Unless som e exception applies, we lack appellate
jurisdiction to entertain the [untim ely] petition.”). The Supreme Court’s recent
decision in Eberhart v. United States, 126 S.Ct. 403, 406 (2005), however, casts
doubt on the notion that the timeliness of notices of appeal generally is
jurisdictional, see In re Special Grand Jury 89-2, 450 F.3d 1159, 1166 n.2 (10th
Cir. 2006), and could have similar implications for Rule 23(f), see Coco v.
Incorporated Village of Belle Terre, 448 F.3d 490, 491 (2d Cir. 2006) (per
curiam). Even if it is not jurisdictional, however, it is unquestionably
“mandatory” if properly raised by the opposing party, as was the case here.
Because we must dismiss the appeal in either event, we need not analyze
Eberhart’s impact on Rule 23(f).
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denying certification to the Salaried Subclass and not itself an order appealable
under Rule 23(f). W e agree with Boeing.
In a sense, an order denying a m otion to reconsider a decision on class
certification is an “order . . . granting or denying class action certification.” But
that cannot be the sense in which the term is used in Rule 23(f), because that
construction of the term would underm ine the 10-day tim e lim it for filing an
application for review . One who failed to file an application in time could sim ply
file a m otion to reconsider; and when that is denied, the 10-day period would
restart. See Gary v. Sheahan, 188 F.3d 891, 893 (7th Cir. 1999) (“Accepting an
appeal from such a decision [leaving the class definition in place] would abandon
the tim e lim it for all practical purposes. That step would be both unauthorized
and imprudent.”); cf. M cNamara, 410 F.3d at 281 (“[T]o hold that— no m atter
how styled— a motion under Rule 23(c) [to alter or amend a class-certification
decision] is always distinct from a m otion to reconsider w ould allow a party to
subvert the ten-day tim e lim it prescribed in Rule 23(f).”).
One might argue, as Plaintiffs do, that this reasoning does not apply when
the m otion for reconsideration raises new argum ents, based on new developm ents
in the case. But the need to avoid causing delay and disruption to the district
court proceedings cautions against an appellate court’s engaging in detailed
inspection and analysis of the record to determ ine how new an argum ent is and
whether the underlying evidence was reasonably available when certification was
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originally litigated. M oreover, there can be little doubt that review of an order
denying a motion for reconsideration would have to be lim ited to the new
elements in the motion— the original order regarding certification m ust be
presum ed correct, or there would be a clear end run around the 10-day lim it. Yet
given the multifactor analysis that courts m ust apply in deciding the propriety of
class certification, such a lim ited review would often require contorted thinking
that exceeds the capacities of even appellate courts. How can an appellate court
say that one particular new factor would require a different result regardless of
how the district court weighed the factors presented originally? In stating that the
new factor required a different result, the appellate court m ust engage in weighing
the factors weighed by the district court in its original ruling but cannot know
precisely how much weight the district court granted to each. In particular, what
if the district court clearly erred in giving dispositive weight to one factor? How
is the appellate court to ignore such error (in keeping with the presum ption that
the original decision was correct) even when it addresses a motion for
reconsideration that raises only a rather inconsequential new factor? To be sure,
we do review m otions to reconsider in certain circumstances, such as denials of
m otions under Fed. R. Civ. P. 60(b). But the predicate for that review— for
exam ple, fraud or newly discovered evidence— is largely collateral to the m erits
of the decision. W e are not inclined to adopt a construction of Rule 23(f) that
would regularly require m ental gym nastics just for the purpose of giving litigants
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a second bite at the interlocutory-appellate-review apple. W e note that the very
absence of a prom pt appeal by the party aggrieved by the decision on certification
suggests that the concerns justifying Rule 23(f) are, at the least, less significant in
the particular case. If the decision whether or not to certify the class w as truly
outcome determ inative, one would not expect the losing party to continue the
litigation for m onths before launching a new challenge to the ruling. Any value
in perm itting a belated interlocutory appeal is overridden by the desirability of the
district court’s proceeding expeditiously.
W e recognize that Rule 23(c)(1)(C) perm its the district court to alter or
amend a certification decision. And parties m ay suggest such changes as the
factual record and legal theories develop. All we are saying is that there can be
no Rule 23(f) appeal from the denial of such a suggestion. An order that leaves
class-action status unchanged from what was determ ined by a prior order is not an
order “granting or denying class action certification.” Of course, when the
district court accepts a suggestion and the certification decision is changed, the
new order, to the extent it m odifies the prior order, is indeed such an order and an
interlocutory appeal under Rule 23(f) is perm itted. See G ary, 188 F.3d at 893(“[I]f in response to a belated m otion for reconsideration the judge m aterially
alters the decision, then the party aggrieved by the alteration m ay appeal within
the normal time.”).
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In addition, we note the special case of m otions to reconsider filed within
10 days of the district court’s certification decision. The Supreme Court has long
recognized that m otions to reconsider toll the tim e for appeal when they are filed
within the tim e for filing a notice of appeal. See United States v. Dieter, 429 U.S.
6, 8 & n.3 (1976) (“[T]he consistent practice in civil and crim inal cases alike has
been to treat tim ely petitions for rehearing as rendering the original judgm ent
nonfinal for purposes of appeal for as long as the petition is pending.”). This
recognition stems from the clear advantage of providing the district court an
opportunity to correct its own error, as long as doing so does not underm ine the
time limit for pursuing an appeal. W e assum e, without having to decide in this
case, that such m otions to reconsider w ould also toll the tim e lim it in Rule 23(f).
See, e.g., M cNam ara, 410 F.3d at 281 (recognizing the tolling effect of a timely
m otion to reconsider in the R ule 23(f) context).
The district court first denied certification of the Salaried Subclass’s
disparate-treatm ent claim on April 25, 2003. Plaintiffs did not exercise their right
to file a Rule 23(f) petition within 10 days of that order. The district court’s
determ ination as to that claim has not changed in all the subsequent proceedings,
so there has not been any other order “granting or denying class action
certification” that would trigger another period for seeking interlocutory appeal.
As for class certification of the Salaried Subclass’s disparate-im pact claim , the
district court initially certified the class in its April 25, 2003, order, which Boeing
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did not appeal. On February 24, 2004, however, it granted Boeing’s m otion to
decertify. At that juncture Plaintiffs could have sought our review under Rule
23(f), but they did not do so. Despite two attem pts to have the district court
recertify that claim , in both Plaintiffs’ First Renewed M otion and their Second
Renewed M otion, the district court’s ruling on certification has not changed
again. Therefore, neither of the orders denying those motions was an order
granting or denying certification and neither triggered a new period for filing a
Rule 23(f) application. Plaintiffs’ Rule 23(f) application on September 22, 2004,
m ust be dism issed as an untim ely attempt to have us review the court’s orders of
April 25, 2003, and February 24, 2004. Any appeal of those certification
decisions m ust await final judgm ent. See G ary, 188 F.3d at 892.
III. SU M M A R Y JU D G M E N T
On February 24, 2004, the district court granted Boeing’s m otion for
sum m ary judgment on the disparate-impact claim of the Hourly Subclass. On
August 11, 2004, the court certified that ruling as a final judgm ent, see Fed. R.
Civ. P. 54(b), and Plaintiffs filed a tim ely appeal. Boeing filed a cross-appeal
seeking decertification of this subclass should we reverse the sum m ary-judgm ent
ruling. B ecause w e affirm the district court’s grant of summary judgment, we
need not address the cross-appeal.
A. Standard of R eview
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Our standard of review on sum m ary judgm ent is de novo; we apply the
sam e legal standard to be used by the district court. Garrison v. Gambro, Inc.,
428 F.3d 933, 935 (10th Cir. 2005). Sum m ary judgm ent should be granted if “the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
m aterial fact and that the moving party is entitled to a judgm ent as a matter of
law.” Fed. R. Civ. P. 56(c). Neither “mere assertions and conjecture,” York v.
AT& T Co., 95 F.3d 948, 955 (10th Cir. 1996), nor “the existence of a scintilla of
evidence in support of the nonmovant’s position,” Lawmaster v. W ard, 125 F.3d
1341, 1347 (10th Cir. 1997), is sufficient to show a genuine issue of m aterial fact;
“an issue of m aterial fact is genuine only if the nonmovant presents facts such
that a reasonable jury could find in favor of the nonm ovant,” id.B. Plaintiffs’ C laim
Plaintiffs com plain that wom en have been the victim s of discrim ination in
the assignm ent of overtim e at Boeing’s W ichita facility, being offered and
receiving less than their proportionate share. They have raised both disparate-
treatment and disparate-im pact claims relating to overtim e. The sum m ary
judgm ent disposed of only their disparate-im pact claim .
“An unlawful employm ent practice based on disparate im pact is established
. . . only if . . . a com plaining party dem onstrates that a respondent uses a
particular em ploym ent practice that causes a disparate im pact on the basis of . . .
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sex . . . .” 42 U.S.C. § 2000e-2(k)(1)(A)(i). The first step in raising a disparate-
im pact claim is to identify the specific employm ent practice allegedly causing the
discrim inatory im pact. See W ards Cove Packing Co. v. Atonio, 490 U.S. 642, 657
(1989) (“[A] plaintiff m ust demonstrate that it is the application of a specific or
particular employm ent practice that has created the disparate im pact under
attack.”); M aldonado v. City of Altus, 433 F.3d 1294, 1304 (10th Cir. 2006). The
specific practice identified by Plaintiffs is that “B oeing supplies no guidance to
m anagers on how to choose among eligible employees, and there are no
centralized rules for how to choose am ong equally eligible m ale and fem ale
employees.” R. Doc. 340 at 23 (Plaintiffs’ M em. in Opp’n to Boeing’s M ot. for
Sum m . J.); see also Aplt. Br. at 26. (In the sum m ary-judgm ent proceedings
below, and on appeal, Plaintiffs have also claim ed discrim inatory im pact from
Boeing’s failure to m onitor m anagers or hold them accountable for the gender
im pacts of their overtim e decisions. That allegation was not addressed by the
district court. Plaintiffs’ appellate briefs, however, contain no further elaboration
of this claim , so we will not specifically address it. See Gross v. Burggraf
Constr. Co., 53 F.3d 1531, 1546-47 (10th Cir. 1995) (“[I]t is insufficient merely
to state in one's brief that one is appealing an adverse ruling below without
advancing reasoned argum ent as to the grounds for appeal.” (internal brackets and
quotation m arks om itted)). In any event, our discussion of their claim that
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supervisors w ere given inadequate guidance in overtime assignm ents w ould likely
also be dispositive of this claim .)
“U nder the disparate im pact theory, a plaintiff m ust first m ake out a prim a
facie case of discrim ination by showing that a specific identifiable employm ent
practice or policy caused a significant disparate im pact on a protected group.”
M urphy v. Derwinski, 990 F.2d 540, 544 (10th Cir. 1993) (internal quotation
m arks om itted). In other words, a plaintiff must “show that there is a legally
significant disparity between (a) the [gender] composition, caused by the
challenged em ploym ent practice, of the pool of those enjoying a job or job
benefit; and (b) the [gender] com position of the qualified applicant pool . . .
[, i.e.,] the pool from which potential qualified applicants m ight come.” Crum v.
Alabama (In re Em ployment Discrimination Litig. Against Ala., 198 F.3d 1305,
1312 & n.11 (11th Cir. 1999). The court compares the gender composition of
those who are subject to the challenged em ploym ent practice with the gender
com position of those enjoying the benefit for w hich the practice selects. In
assessing whether a plaintiff has established a prim a facie case, it is, of course,
irrelevant what happens to those who do not qualify for consideration. See Wards
Cove, 490 U.S. at 650-51 (“The proper comparison is between the racial
composition of the at-issue jobs and the racial composition of the qualified
population in the relevant labor m arket.” (emphasis added; internal quotation
m arks, brackets, and ellipsis om itted)).
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Plaintiffs’ claim rests on the assertion that supervisors are exercising their
discretion (intentionally or subconsciously) to award m ales a disproportionate
share of available overtim e assignm ents. To establish a prim a facie case, it is not
enough for Plaintiffs to show sim ply that m ore overtim e assignm ents go to m en
than to wom en, or even that men get a higher percentage of those assignm ents
than their percentage in the work force. They must compare qualified m en to
qualified wom en. That is, they m ust show that am ong m en and wom en who are
eligible for overtim e assignm ents, a disproportionate share of overtim e
assignm ents go to m en.
The qualifications for overtim e assignm ent are established in the collective
bargaining agreement (CBA) between Boeing and the International Association of
M achinists and A erospace W orkers AFL-CIO. The CBA provides:
6.10(b) O vertim e Scheduling P rocedures for Extended W orkday
or W orkw eek.
(1) The norm al practice for the advance scheduling of overtim e
within the shop and shift will be to:
(a) First, ask the employee regularly assigned to either the
m achine, job, crew, or position providing the em ployee is in
attendance when the overtim e is being assigned . . . .
(b) Then, ask other qualified employees in the same job
classification who are in attendance when the overtim e is being
assigned.
(c) If sufficient volunteers are not obtained, the Com pany may
designate any em ployee to satisfy remaining requirem ents.
(2) M anagem ent m ay exclude an em ployee from overtim e, even if the
em ployee is in attendance when the overtim e is being assigned, if:
(a) The em ployee has been absent during the week . . . .
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(b) An employee is asked to work overtim e (Saturday and/or
Sunday) and is subsequently absent due to illness or
bereavem ent leave on the workday preceding the overtim e day.
(c) Two (2) consecutive weekends have been worked by
the employee.
(d) One hundred forty-four (144) overtim e hours have been
worked in the budget quarter.
(e) Eight (8) overtim e hours have been worked on the Saturday
or the Sunday.
(f) A n em ployee’s schedule perform ance or work quality is
currently docum ented as being deficient.
Rep. Aplts. Supp. App. Vol. 1 at 10-11. (This provision is from the September 2,
1999, CBA. The 1995 CBA m ay be applicable to a portion of the class period,
which runs from April 2, 1999. Plaintiffs acknowledge, however, that the
overtim e provisions did not change m aterially during the class period.) Plaintiffs
do not dispute that the CBA applies to the challenged overtim e assignm ents.
Their claim is that the discretion exercised by managers in “choos[ing] among
employees who worked in the area where overtim e was required and wanted the
extra pay” has created a disparity betw een sim ilarly situated m en and wom en.
A plt. Br. at 26. Boeing for its part does not dispute that supervisors have som e
m easure of discretion within the term s of the CBA. It argues, however, that
Plaintiffs have failed to m ake a sufficient showing that this discretion has been
exercised in a manner adverse to wom en.
On appeal Plaintiffs contend that their statistical evidence of disparate
impact suffices to preclude sum m ary judgm ent. (In district court Plaintiffs also
presented a variety of anecdotal evidence to support this claim . But because on
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appeal they do not rely on that evidence in challenging summary judgment, we
will consider only the statistical evidence.) They rely on a study by their expert,
Dr. Bernard Siskin. Dr. Siskin perform ed a regression analysis that compared the
overtime worked by m ale and fem ale em ployees w hom he defined as “sim ilarly
situated.” R. Doc. 346 (Decl. of Bernard P. Siskin, Ph.D. in O pp’n to Boeing’s
M ot. for Sum m . J. (hereinafter “Siskin Study”)) at 22. The Siskin Study
exam ined overtime assignm ents from April 2, 1999 (the beginning of the liability
period for this claim ) through June 20, 2002, using Boeing’s electronic daily
payroll records. For weekday overtime the Siskin Study defined sim ilarly
situated employees as those who “[w]orked that day and are in the same job,
grade, budget code and shift.” Id. at 23. Similarly situated em ployees w ith
respect to weekend overtim e w ere defined as those w ho “[w ]orked Friday and are
in the same job, grade, budget code and shift.” Id. For each cohort of sim ilarly
situated employees, the Siskin Study calculated three measures for m en and
wom en: (1) the likelihood of working any overtim e; (2) the average number of
overtime hours w orked; and (3) the average num ber of overtime hours paid
(overtim e is paid at either 1.5 or 2 tim es a normal hour). It then computed a
shortfall num ber for fem ales that described how m uch greater each m easure
would be were females represented in proportion to their percentage
representation in each cohort. “That is, if fem ales were 25 percent of the cohort,
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they should be 25 percent of those working overtim e and receive 25 percent of the
overtim e hours and pay.” Id. at 22.
The Siskin Study concluded that “[h]ourly fem ale em ployees who are
sim ilarly situated to m ales with respect to job, grade, shift, departm ent, and
budget code are consistently and highly statistically significantly less likely to
work overtime, to w ork less overtime, and to receive less overtime pay. This
pattern is consistent across tim e.” Id. at 3. It observed that “[c]learly, som ething
in the overtim e process consistently results in m ales obtaining m ore overtim e and
working m ore overtim e than females.” Id. at 23.
There is no dispute that “som ething” causes m en to work proportionately
m ore overtim e than wom en at Boeing. The district court said that the following
sum m ary was uncontroverted for purposes of sum m ary judgm ent:
Between April 2, 1999, and Decem ber 31, 2001, disparities in
overtim e adverse to w om en ranged between a low of 17.06 standard
deviations and a high of 38.03 standard deviations. For the last
period for which Dr. Siskin has analyzed data, ending June 20, 2002,
the disparities w ere 10.23 standard deviations for w eekday overtim e
and 7.95 standard deviations for weekend overtim e.
Rep. Aplts. App. Vol.1 at 280.
Boeing concedes that these differences are statistically highly significant.
The Supreme Court has recognized that a disparity of m ore than two or three
standard deviations in a large sample makes “suspect” the contention that the
differential occurs random ly. See Hazelwood Sch. Dist. v. United States, 433
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U.S. 299, 308 n.14 (1977); Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977).
Several circuit courts have adopted a similar level of significance in Title VII
cases. See, e.g., Smith v. Xerox Corp., 196 F.3d 358, 366 (2d Cir. 1999); Brown
v. Philip M orris Inc., 250 F.3d 789, 809 (3d Cir. 2001); Lewis v. Bloomsburg
M ills, Inc., 773 F.2d 561, 568-69 (4th Cir. 1985) (five to eight standard
deviations); Adams v. Ameritech Servs., Inc., 231 F.3d 414, 424 (7th Cir. 2000).
But despite recognizing that the statistics show that m en have worked
proportionately m ore overtim e than wom en, Boeing claim s that the Siskin Study
nonetheless fails to establish a prim a facie case. It contends that the Siskin Study
does not show that the “som ething” causing m en to work m ore overtim e than
wom en is the manager discretion that Plaintiffs have identified as the challenged
em ploym ent practice. Boeing’s argum ent appears to be that the “som ething” is a
variable other than those that the Siskin Study included in the statistical
m odel— nam ely, job, grade, budget code, and shift. According to Boeing, other
variables affecting overtim e assignm ents— such as the CBA criteria and potential
differences in the rates at which men and wom en volunteer for overtim e— are not
controlled for in the Siskin Study and could be responsible for the observed
disparities. The district court agreed with Boeing that a statistical study could not
establish a claim without considering such variables and granted Boeing’s m otion
for sum m ary judgm ent on that basis. Before addressing Boeing’s argum ents, with
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which we agree in part, we review the legal framework for the use of statistical
evidence in Title VII cases.
C. Statistical E vidence - G eneral Principles
Statistical evidence is an acceptable, and comm on, m eans of proving
disparate im pact. See, e.g., Sandoval v. City of Boulder, 388 F.3d 1312, 1326
(10th Cir. 2004); Bullington, 186 F.3d at 1312 (“As is typical in disparate im pact
cases, [plaintiff] relies on statistical evidence to establish her prim a facie case.”);
M ountain Side Mobile Estates P’ship v. Sec’y of HUD, 56 F.3d 1243, 1251 (10th
Cir. 1995) (“In Title VII em ploym ent discrim ination cases, plaintiffs m ay rely
solely on a statistical showing of disparate effect to establish a prim a facie case of
disparate im pact.”). The statistics m ust, however, relate to the proper population.
For example, when the claim is disparate im pact in hiring, the statistics should be
based on data with respect to persons qualified for the job. See W ards Cove, 490
U.S. at 650-51 (“It is such a com parison— between the racial composition of the
qualified persons in the labor m arket and the persons holding at-issue jobs— that
generally form s the proper basis for the initial inquiry in a disparate-im pact
case.”); see also Bullington, 186 F.3d at 1314 (“[Plaintiff’s] applicant pool was
appropriately limited to persons w ho sought out and were at least m inimally
qualified for the position . . . .”). The same requirement applies to other job
benefits. See Crum, 198 F.3d at 1309, 1312 (relating to alleged discrim ination in
“layoffs, recalls from layoffs, term inations, discipline, hiring, rehiring,
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evaluations, com pensation, transfers, job duty assignm ents, recruitment,
screening, selection procedures, denial of prom otions, demotions, rollbacks, sick
leave, subjective decision-m aking practices, and other term s and conditions of
em ploym ent” (internal quotation m arks om itted)). The essential requirem ent is
that the data concern those persons subject to the challenged em ploym ent
practice.
After specifying the employm ent practice allegedly responsible for
excluding m em bers of their protected class from a benefit, plaintiffs
m ust identify the correct population for analysis. In the typical
disparate im pact case the proper population for analysis is the
applicant pool or the eligible labor pool. The com position of this
population is com pared to the com position of the em ployer's
workforce in a relevant m anner, depending on the nature of the
benefit sought.
Smith, 196 F.3d at 368. W hen the selection process is only partially subjective, a
disparate-im pact plaintiff should control for the constraints placed upon the
decisionm aker’s discretion. See Anderson v. W estinghouse Savannah River Co.,
406 F.3d 248, 266-67 (4th Cir. 2005); cf. W atson v. Fort W orth Bank & Trust,
487 U.S. 977, 994 (1988) (O’Connor, J., plurality opinion) (“Especially in cases
where an em ployer com bines subjective criteria w ith the use of m ore rigid
standardized rules or tests, the plaintiff is in our view responsible for isolating
and identifying the specific em ploym ent practices that are allegedly responsible
for any observed statistical disparities.”).
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To be sure, the population selected for statistical analysis need not
perfectly m atch the pool of qualified persons. Such perfection m ay be impossible
to obtain. W hen reliable data regarding that pool are unavailable, a different
population m ay be used if it adequately reflects the population of qualified
persons. See Ramona L. Paetzold & Steven L. W illborn, The Statistics of
Discrim ination § 5.04 (2002) (“In som e instances, where applicant data are not
available, reliable, or are believed to be biased, and where statistical inform ation
regarding the labor m arket is difficult to ascertain, the general population m ight
adequately reflect the population of qualified job applicants.”); see also M alave v.
Potter, 320 F.3d 321, 326-27 (2d Cir. 2003) (“[I]t was error [to reject] out of hand
[Plaintiff’s] statistical analysis sim ply because it failed to conform to the
preferred m ethodology described in W ards Cove, given the Suprem e Court’s
express endorsement in that decision of alternative methodologies if the preferred
statistics are ‘difficult’ or ‘im possible’ to obtain.”); cf. Trout v. Lehman, 702 F.2d
1094, 1102 (D.C. Cir. 1983) (in disparate-treatment case brought before the Civil
Rights A ct of 1991, “plaintiffs cannot legitim ately be faulted for gaps in their
statistical analysis when the inform ation necessary to close those gaps was
possessed only by defendants and was not furnished either to plaintiffs or to the
Court” (internal quotation m arks om itted)), vacated on other grounds by Lehman
v. Trout, 465 U.S. 1056 (1984), and abrogated on other grounds by Berger v. Iron
W orkers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1124-25 (D.C. Cir.
-27-
1999). For example, in Dothard v. Rawlinson, 433 U .S. 321 (1977), the Suprem e
Court determ ined that plaintiffs who were challenging Alabama’s height and
weight requirements for prison guards could use height and weight statistics based
on national data for com parison. “[R ]eliance on general population dem ographic
data was not m isplaced where there was no reason to suppose that physical height
and weight characteristics of Alabama men and wom en differ m arkedly from
those of the national population.” Id. at 330.
Nevertheless, absent a close fit between the population used to m easure
disparate im pact and the population of those qualified for a benefit, the statistical
results cannot be persuasive. “[S]tatistics based on an applicant pool containing
individuals lacking m inim al qualifications for the job would be of little probative
value.” W atson, 487 U.S. at 997.
Thus, a statistical analysis cannot establish a plaintiff’s prim a facie case
unless it is based on data restricted to qualified em ployees, or (1) reliable data
with respect to that group are unavailable and (2) the plaintiff establishes that the
statistical analysis uses a reliable proxy for qualification. This approach holds
plaintiffs to their statutory burden to “dem onstrate[] that a respondent uses a
particular em ploym ent practice that causes a disparate im pact on the basis of . . .
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sex,” 42 U.S.C. § 2000e-2(k)(1)(A )(i), without imposing an insurm ountable
burden when reliable data on a qualification are not available. 2
D. A pplication to this C ase
The employm ent practice challenged by Plaintiffs is the exercise of
discretion by supervisors in assigning overtim e. As stated in Smith, “[T]he proper
2
The statute provides another avenue for plaintiffs when the particular
aspect of the process that is claimed to be objectionable cannot be isolated:
[T]he complaining party shall demonstrate that each particular
challenged employment practice causes a disparate impact, except
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). Plaintiffs argue in their reply brief to this court
that they “presented facts below that defendant’s collective bargaining agreements
imposed no meaningful objective standards on supervisors in assigning overtime”
and that “[s]uch a showing is sufficient to trigger subsection 2000-
e2(k)(1)(B)(i).” Rep. Aplts. Reply Br. at 10. But they provide no citation to the
record showing that they raised this issue in district court, and we cannot find in
the record anything indicating to that court that they were attempting to make the
required showing of analytical inseparability. W e will not address the potential
application of § 2000e-2(k)(1)(B)(i) to Plaintiffs’ claim, because our general rule
is not to address arguments that were not first presented to the district court, see
Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (the “general rule that
issues not raised below are waived on appeal” is particularly important on appeal
of summary judgment); Bancamerica Commercial Corp. v. M osher Steel of
Kansas, Inc., 100 F.3d 792, 798-99 (10th Cir. 1996) (“W here a litigant changes to
a new theory on appeal that falls under the same general category as an argument
presented at trial or presents a theory that was discussed in a vague and
ambiguous way the theory will not be considered on appeal.” (brackets and
internal quotation marks omitted)), and we particularly frown on the making of
new arguments in a party’s reply brief, see Stump v. Gates, 211 F.3d 527, 533
(10th Cir. 2000).
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population for analysis is the . . . eligible labor pool.” 196 F.3d at 368. The
Boeing hourly employees eligible for an overtim e assignm ent are those who
satisfy the CBA requirements for the assignm ent; that is, the challenged practice
operates only w ith respect to employees eligible under the CBA. The CBA
requires that overtime first be offered to “the em ployee regularly assigned to
either the machine, job, crew, or position” for which overtim e is to be scheduled,
and then to others within the sam e “shop or shift.” Rep. Aplts. Supp. App. Vol. 1
at 10. The Siskin Study, however, did not incorporate the CBA’s eligibility
requirements in its analysis. Instead, it controlled for “job,” “grade,” “budget
code,” and “shift.” R. Doc. 346 at 23. The implicit assum ption is that two hourly
workers with the same job, grade, budget code, and shift have equal opportunities
for overtim e assignm ents under the CBA, subject to the supervisor’s discretion.
There is certainly overlap between the Siskin Study variables and those used to
determ ine overtim e assignm ents. But the tw o sets of variables are not the sam e.
Am ong the qualifications included in the CBA, the Siskin Study controlled for
only “job” and “shift.” It did not account for whether wom en worked on the
“machine” or were in the “crew,” “position,” or “shop” to which the overtim e was
assigned. This failure can skew the results. If, for exam ple, overtim e
assignm ents were concentrated in a handful of shops and alm ost no wom en
worked in those shops, a discrepancy found in the Siskin Study between the
overtime worked by m en and by wom en would not at all represent a disparate
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impact created by the supervisor’s discretionary choice am ong eligible
employees. Rather, it could sim ply be a reflection of the gender distribution
among those eligible for overtim e. At the outset, therefore, it appears that the
Siskin Study cannot establish a prim a facie case based on a com parison “between
(a) the [gender] composition, caused by the challenged em ploym ent practice, of
the pool of those enjoying a . . . job benefit; and (b) the [gender] composition of
the qualified applicant pool,” Crum, 198 F.3d at 1312, because the study is not
lim ited to data regarding those qualified people subject to the challenged practice.
The study does not isolate the effect of supervisor discretion from the effect of
the CBA requirem ents. See Anderson, 406 F.3d at 260.
Accordingly, we look to whether Plaintiffs have adequately established that
(1) reliable data on the omitted CBA criteria were unavailable and (2) they used a
reliable proxy. They have not. To begin with, Plaintiffs have not established that
the data necessary to establish the im pact on CBA-qualified workers were
unavailable. Plaintiffs acknowledge that variables such as crew, position, and
shop are relevant to qualification for overtim e under the CBA but claim that they
cannot be held responsible for including them in their statistical analysis because
“Boeing did not m aintain electronic data on any of the omitted variables.” Rep.
Aplts. Br. at 35. But data m ay be available in nonelectronic form . Electronic
data are undeniably m ore convenient, especially for use in statistical studies, but
inconvenience does not excuse failure to collect the data. Plaintiffs have
-31-
presented no reason why the omitted inform ation could not have been procured
through other m ethods, such as depositions or interrogatories. It appears that they
were sim ply satisfied with Boeing’s indication that the data w ere unavailable in
their electronic payroll records.
Furtherm ore, even were we convinced that the data are unavailable,
Plaintiffs have failed to dem onstrate that the variables in the Siskin Study’s
statistical analysis produce a reliable surrogate for qualifications for overtim e;
that is, that the results accurately reflect comparisons between individuals who
were equally eligible for overtim e assignm ents under the CBA. Plaintiffs m ake
the bald claim that the “grade” and “budget code” variables used by the Siskin
Study are equivalent to the omitted variables “crew,” “position,” and “shop.” See
Rep. Aplts. Reply Br. at 5 (“[I]n the absence of specific electronic data
m aintained by Boeing identifying employees’ ‘shops’ or ‘crews,’ [Dr. Siskin]
closely tracked this inform ation by using as a proxy budget codes and grade
levels that reflected their area and level of w ork.”). But they m ake no attem pt to
explain the basis of this claim . W e cannot agree that those relationships are as
self-evident as Plaintiffs apparently believe them to be. The record does not even
indicate what a “budget code” is. Plaintiffs’ “m ere assertion” will not suffice.
See York, 95 F.3d at 955. Accordingly, we agree with the district court that the
Siskin Study was insufficient to establish a prim a facie disparate-im pact case.
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Plaintiffs rely on Bazemore v. Friday, 478 U.S. 385, 400 (1986), and
Bullington, 186 F.3d at 1314, to argue that failure to define perfectly the
population of qualified employees does not prevent the Siskin Study from
establishing their claim . Both decisions are distinguishable, however, because
the m issing variables considered by the two courts did not relate to m inimal,
objective qualifications. A jury could decide that the m issing variable in those
cases w as not likely to affect the exercise of discretion to a significant extent— a
rather different matter from ignoring a factor that disqualifies a candidate before
discretion comes into play.
In Bazemore the United States and others brought a pattern-or-practice suit
against the North Carolina Agricultural Extension Service, alleging racial
discrim ination in salaries; the plaintiffs offered statistical evidence that controlled
for race, education, tenure, and job title. See 478 U.S. at 398. The court of
appeals had upheld the district court’s rejection of the statistical evidence, ruling
that “‘the regression analysis presented here must be considered unacceptable as
evidence of discrim ination,’” because it “‘om itted . . . variables which ought to be
reasonably viewed as determ inants of salary,’” id. at 399-400 (quoting Bazemore
v. Friday, 751 F.2d 662, 672 (4th Cir. 1984)), particularly geographic variations
in salary, Bazemore, 478 U.S. at 399. The Supreme Court disagreed. Introducing
its analysis it noted that “if the defendants have not succeeded in having a case
dism issed on the ground that plaintiffs have failed to establish a prim a facie case,
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and have responded to the plaintiffs’ proof by offering evidence of their own, the
factfinder then must decide whether the plaintiffs have dem onstrated a pattern or
practice of discrim ination by a preponderance of the evidence.” Id. at 398. It
then said, “[I]t is clear that a regression analysis that includes less than ‘all
m easurable variables’ m ay serve to prove a plaintiff’s case . . . . W hether, in fact,
such a regression analysis does carry the plaintiff’s ultim ate burden will depend
in a given case on the factual context of each case in light of all the evidence
presented by both the plaintiff and the defendant.” Id. at 400 (internal citation
om itted). The Court remanded for consideration of the particular characteristics
of the regression analysis to determ ine whether it was sufficiently probative. A s
we understand the opinion, the regression analysis was not used to establish the
prim a facie case, but to prove discrim ination once the presence of a prim a facie
case was established, or at least uncontested. The prim a face case required a
showing that qualified blacks were receiving lower salaries than qualified whites.
The regression analysis then exam ined whether other factors— such as education,
tenure, and job title— could account for this difference. Failure to take into
account all potential factors did not necessarily render the regression analysis
unprobative.
M oreover, there was no question in Bazem ore, as there is here, regarding
whether the data concerned persons who were not qualified or eligible for the
benefit at issue— namely, a higher salary. The statistical study compared salaries
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of persons employed by the extension service. The issue was whether discretion
in setting salaries was exercised in a discrim inatory m anner. The statistical study
took into account som e factors that m ight influence the exercise of discretion and
om itted others; but there is no indication that it om itted any factor that was a
nondiscretionary determ inant of salary (such as a maxim um salary established for
a specific job title).
Bullington considered a disparate-impact claim of gender discrim ination in
the hiring of airline flight officers. See 186 F.3d at 1312. The plaintiff offered
statistics indicating that the interview pass rate for wom en was only 60% of the
pass rate for m en. See id. The district court rejected the statistical study and
granted sum m ary judgm ent to the airline, because the pass rates were not adjusted
for hypothesized differences in aeronautical experience betw een m en and wom en.
Id. at 1312-13. W e reversed, concluding that the statistics were “sufficiently
reliable” because the study was properly lim ited to individuals who were
m inim ally qualified for the positions (otherwise they would not have been given
an interview in the first place). Id. at 1314. Again, the statistical study examined
only the exercise of discretion— this tim e in the interview process. A jury can
weigh whether om ission of a factor that could affect the exercise of discretion
renders an analysis unpersuasive. But no one could disagree that an objective
eligibility requirem ent is a necessary com ponent of the analysis.
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Thus, the variables om itted from the regression analyses in both Bazemore
and Bullington related to characteristics that did not affect whether the population
studied was “m inimally qualified” for the benefit sought. The geographic
variations in salary at issue in Bazem ore had nothing to do with whether a
particular individual was m inim ally qualified to receive a higher salary. See 478
U.S. at 398. In Bullington the level of aeronautical experience was certainly a
perm issible consideration in the interview process, but it was only one of m any
factors considered in a subjective determ ination, not a mandatory criterion for
being hired. In contrast, the Siskin Study did not confine itself to the persons
eligible for an overtim e assignm ent. See Ortega, 943 F.2d at 1245 (statistics not
probative because they did not take into account qualifications for the jobs
available).
Our conclusion is not undermined by the “m assive overtim e disparities”
that Plaintiffs allege are revealed by the Siskin Study’s analysis. Rep. Aplts. Br.
at 38. They contend that these disparities are so large that a substantial disparity
would certainly be present even if the statistical analysis were adjusted to account
for the CBA requirements. Plaintiffs argue:
Boeing’s expert report affirm atively demonstrated that the gender of
the employee regularly assigned to the machine or position for which
overtim e w ork w as needed w as largely irrelevant to the overtim e
disparities. Boeing’s expert determ ined that, for 78% of overtim e
opportunities, m ore than one em ployee was eligible to work the
overtim e. Thus, even if there had been reason to believe that more
m en than wom en were the sole employees regularly assigned to the
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m achine or position for which overtim e work was required, less than
25% of the overtim e opportunities studied by Siskin would have been
affected by his om ission of this variable. Viewed in the light m ost
favorable to plaintiffs, this fact casts grave doubt on whether the
om ission of this variable explains the massive overtim e disparities
found by Siskin, precluding the district court from rejecting Siskin’s
analysis on this ground.
Id. at 37-38 (record citation om itted). As we now proceed to explain, however,
this argum ent misapprehends the statistical evidence by confusing the magnitude
of the disparities w ith their level of statistical significance, as m easured in
standard deviations.
There is no dispute that the Siskin Study’s regression analysis reflected a
difference in the amount of overtim e worked by men and wom en that was m any
standard deviations removed from equality. The Siskin Study computed
departures from equal treatm ent of m en and wom en whose statistical significance
ranged from 7.95 standard deviations (weekend overtim e during 2002) to 38.03
(weekday overtim e during 1999). That statistical significance, however, does not
necessarily m ean that the departure from equality was large. For example, the
Siskin Study calculated that wom en worked an average of 19% fewer hours of
weekday overtim e in 1999, 17% fewer in 2000 and 2001, and 11% fewer in 2002.
For weekend overtim e it calculated that wom en worked an average of 18% fewer
overtim e hours in 1999, 19% fewer in 2000, 18% fewer in 2001, and 10% fewer
in 2002. Although notable, these are not what m ost would call “massive
disparities”— it is nothing like men receiving proportionately even twice as m uch
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overtim e as wom en. Indeed, guidelines from the Equal Em ploym ent Opportunity
Com m ission draw a line (albeit not a rigid one) at a 20% disparity:
A selection rate for any race, sex, or ethnic group which is less than
four-fifths (4/5)(or eighty percent) of the rate for the group with the
highest rate will generally be regarded by the Federal enforcement
agencies as evidence of adverse impact, while a greater than four-
fifths rate will generally not be regarded by Federal enforcement
agencies as evidence of adverse im pact.
29 C.F.R. § 1607.4(D); accord 28 C.F.R. § 50.14(4)(D) (Departm ent of Justice
Guidelines); see Smith, 196 F.3d at 365 (treating “four-fifths” guideline as
persuasive); Thom as v. M etroflight, Inc., 814 F.2d 1506, 1511 n.4 (identifying the
EEOC guideline as “[o]ne possible index of substantial disparity”); cf.
M aldonado, 433 F.3d at 1305 (“EEOC guidelines, while not controlling upon the
courts by reason of their authority, do constitute a body of experience and
inform ed judgm ent to which courts and litigants m ay properly resort for
guidance.” (internal quotation m arks om itted)).
W hat the large num ber of standard deviations m eans is that the departure
from equality, w hatever its magnitude, is highly unlikely to be random. Of
course, when there are m assive disparities, the difference m ay be m any standard
deviations. But when, as here, there is a great deal of data, even a relatively
sm all difference m ay be highly statistically significant (that is, unlikely to be
random). Consider an experim ent involving 1,000,000 flips of a coin. The
canonical result, of course, would be 500,000 heads and 500,000 tails. Say, the
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results were 510,000 heads and 490,000 tails. Although the magnitude of the
difference is sm all, only about 4% m ore heads than tails, the odds of such a
difference occurring in the absence of a weighted coin are exceedingly sm all— the
departure from equality is 20 standard deviations. The difference strongly
indicates som e influence on the results other than the operation of pure chance.
Likewise, under the Siskin Study’s analysis, it is very, very unlikely that
the difference in the assignm ent of overtim e to m en and w om en w ith the sam e
job, grade, budget code, and shift is a random event. As the Siskin Study
observed, “Clearly, som ething in the overtime process consistently results in
males obtaining more overtime and working more overtime than females.” R.
Doc. 346 at 23. The large number of standard deviations tells us nothing about
what that “som ething” is, however, other than that it is not based on differences
in job, grade, budget code, or shift.
As a result, it could be very im portant, contrary to Plaintiffs’ brief, that
nearly a quarter of the overtim e opportunities were in work done by only one
person if, as im pliedly assum ed in the above-quoted passage from Plaintiffs’
brief, men disproportionately held those positions or the offers of overtim e w ere
concentrated in such positions held by m en. (In such situations there is very
little, if any, supervisor discretion in the assignm ent of overtim e, because the
CBA provides that the person who norm ally perform s the work should be offered
it first.) Similarly, it could be quite im portant if men are disproportionately
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em ployed in crew s in w hich overtime is available to everyone in the unit. Of
course, such gender disparities in these positions could indicate discrim ination in
hiring for those jobs, but that is not the claim m ade by Plaintiffs. See Price v.
City of Chicago, 251 F.3d 656, 661 (7th Cir. 2001) (plaintiff’s statistical showing
that eligibility test may produce disparate im pact could not establish prim a facie
case w hen the test’s use is not the em ploym ent practice com plained of).
An illustration m ay m ake this proposition clearer. Boeing’s expert,
Dr. W ard, conducted a study on overtime assignments that controlled for the CBA
criteria by surveying individual managers about the actual offers m ade to eligible
employees. For each overtim e assignm ent, Dr. W ard’s study determ ined who was
eligible under the CBA and then m easured whether m en were disproportionately
selected for the overtim e. These data were collected for only a portion of the
W ichita facility and only for a two-m onth period in 2003, so the study is hardly
dispositive of whether discrim ination occurred. But the results are instructive.
W hen only one employee norm ally perform ed the work and was eligible for
the overtim e assignm ent, wom en received 14% (76 of 535) of the overtim e offers,
precisely what would be expected (according to the report) given their
representation in the jobs from which those overtim e assignm ents were m ade.
W hen multiple workers were eligible under the CBA for the assignm ent, wom en
received 23% (430 of 1855) of the offers, very slightly more than would be
expected. Overall, w om en received 21% (506 of 2390) of the overtim e offers.
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From these data it appears likely that wom en were significantly underrepresented
in those jobs for w hich only one w orker w as eligible for particular overtim e
assignm ents, and even though those jobs accounted for only 22% (535 of 2390) of
the overtim e assignm ents studied, this underrepresentation decreased wom en’s
percentage of overtim e offers from 23% (when more than one em ployee was
eligible) to 21% (the overall rate). That is approxim ately a 9% reduction in the
offer rate to wom en (21 is 91% of 23). In other words, contrary to what one
would expect if the above-quoted argum ent of Plaintiffs were valid, wom en
received 9% fewer offers than one would expect if one looked only at positions
for which more than one worker was eligible.
Dr. W ard’s study illustrates how disparities of the m agnitude of those
found in the Siskin Study could result solely from underrepresentation of wom en
in jobs for w hich only one em ployee is eligible for overtim e assignm ents.
Likew ise, even in situations in w hich several employees are eligible to w ork
overtim e, wom en could be underrepresented in the crews m ost likely to receive
calls for overtim e work. Yet, Plaintiffs have not shown how the Siskin Study
parameters would account for such underrepresentation.
W e do not mean to m ake too m uch of Dr. W ard’s study. W e certainly are
not saying that it disproves Plaintiffs’ allegations of disparate im pact. But that
study clearly shows the flaws in the reasoning of Plaintiffs’ brief— that the large
num ber of standard deviations calculated in the Siskin Study m akes it
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unnecessary to determ ine whether the parameters used in that study are good
proxies for the CBA eligibility requirements. To repeat, the very large number of
standard deviations does not m ean that the gross difference in the amount of
overtim e worked by men and wom en is itself large; it just m eans that the
difference is very unlikely to be random. But since the CBA requirements not
included in the Siskin Study m odel are not random, and may well im pact m en and
wom en differently (as Dr. W ard’s study suggests), the results of the Siskin Study
are consistent with the CBA requirem ents being the cause of the disparity in
overtim e assignm ents— at least in the absence of evidence that the Siskin Study’s
parameters are reliable proxies for the CBA requirements. There being no such
evidence, the Siskin Study does not satisfy Plaintiffs’ burden to establish a prim a
facie case.
IV . C L AIM S OF D E A N P L AINT IFFS
Also on appeal are claim s by the Dean Plaintiffs. They ask us to review the
district court’s denial of reconsideration of their removal as class representatives
and denial of their m otion for recusal of Judge Brown. The district court included
these rulings in its certification of a final judgm ent under Fed. R. Civ. P. 54(b).
W e review the rulings on both m otions for an abuse of discretion. See Price v.
Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (m otion to reconsider is
reviewed for abuse of discretion regardless of whether it is construed as raised
under Fed. R. Civ. P. 59 or 60); Fymbo v. State Farm Fire and Cas. Co., 213 F.3d
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1320, 1321 (10th Cir. 2000) (finding that individual is not adequate class
representative is subject to abuse-of-discretion review); Higganbotham v.
Oklahoma ex rel. Oklahoma Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003)
(denial of m otion to recuse is reviewed for abuse of discretion). Neither decision
by the district court was incorrect, let alone an abuse of discretion.
The district court based its initial ruling removing the Dean Plaintiffs as
class representatives on their ongoing demand to be paid a “consultant’s fee” of
15% of any attorney fees obtained by class counsel. In its denial of their m otion
to reconsider, the court stated that the Dean Plaintiffs’ repeated public references
to privileged conversations with class counsel only strengthened its initial
conclusion that they put their own interests above those of the class. Given such
conduct, we agree with the district court that the Dean Plaintiffs w ould not “fairly
and adequately protect the interests of the class” as required by Rule 23(a)(4).
See Rutter & W ilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir.
2002) (“Resolution of two questions determ ines legal adequacy: (1) do the named
plaintiffs and their counsel have any conflicts of interest with other class
m embers and (2) will the named plaintiffs and their counsel prosecute the action
vigorously on behalf of the class?” (internal quotation m arks om itted)).
Sim ilarly, the district court did not err in denying the D ean Plaintiffs’
m otion for recusal. As the court thoroughly explained in its order, their
“unsubstantiated suggestions, speculations, [and] opinions,” are insufficient to
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establish even the appearance of any bias, prejudice, or m isconduct that would
warrant judicial recusal. Rep. Aplts. Supp. App. Vol.1 at 73 (Dist. Ct. Order of
1/7/2004); see Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648,
659-60 (10th Cir. 2002) (discussing the standards for recusal). “[A] judge . . . has
as strong a duty to sit when there is no legitim ate reason to recuse as he does to
recuse when the law and facts require.” Bryce, 289 F.3d at 659 (internal
quotation m arks om itted). The district judge correctly recognized his duty to
continue to sit in this case.
V. C O N C L U SIO N
For the reasons stated above, Plaintiffs’ petition for perm ission to appeal is
DISM ISSED. The district court’s sum mary judgm ent and its denial of Plaintiffs’
m otion to reconsider that decision (04-3334) are A FFIRM ED. The district court’s
disposition of the m otions by the Dean Plaintiffs (04-3350) is AFFIRM ED.
Boeing’s cross-appeal (04-3351) is DISM ISSED as m oot.
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