United States v. City of New York, No. 11-5113 (2d Cir. 2013)

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The United States brought suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., alleging racial discrimination in the hiring of New York City firefighters. On appeal, the City of New York, Mayor Michael Bloomberg, and former Fire Commissioner Nicholas Scoppetta challenged the district court's order issuing an injunction against the City with respect to the hiring of entry-level firefighters. Intervenors cross-appealed a partial final judgment dismissing their federal and state law claims against Mayor Bloomberg and Commissioner Scoppetta. The City, inter alia, sought review of an order granting Intervenors summary judgment on their disparate treatment claim. The court concluded that (1) summary judgment was improperly entered on Intervenors' disparate treatment claims; (2) the federal and state law claims against Mayor Bloomberg were properly dismissed, as were the state law claims against Commissioner Scopetta, but the federal law claims against Commissioner Scoppetta should be reinstated; (3) most portions of the injunction based on the unchallenged disparate impact finding were within the district court's remedial discretion, but other portions, particularly those portions based on the improper discriminatory treatment ruling, exceeded that discretion; and (4) on remand, the bench trial on the liability phase of the disparate treatment claim against the City should be reassigned to a different district judge. Therefore, the court affirmed in part, vacated in part, and remanded.

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11-5113-cv(L) United States of America v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2011 Heard: June 26, 2012 Decided: May 14, 2013 Docket No. 11-5113-cv(L), 12-491-cv(XAP) - - - - - - - - - - - - - - - - - - - - - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 UNITED STATES OF AMERICA, Plaintiff-Appellee, 27 former Fire Commissioner Nicholas Scoppetta from the December 8, 2011, 28 order of the United States District Court for the Eastern District of THE VULCAN SOCIETY, INC., MARCUS HAYWOOD, CANDIDO NUNEZ, ROGER GREGG, Intervenors-Plaintiffs-Appellees-Cross-Appellants v. CITY OF NEW YORK, MICHAEL BLOOMBERG MAYOR, and NICHOLAS SCOPPETTA, NEW YORK FIRE COMMISSIONER, in their individual and official capacities, Defendants-Appellants-Cross-Appellees, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICE, NEW YORK CITY FIRE DEPARTMENT Defendants.1 - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, WINTER, and POOLER, Circuit Judges. Appeal by the City of New York, Mayor Michael Bloomberg, and 1 The Clerk is directed to amend the official caption to conform to the caption above. 1 New York (Nicholas G. Garaufis, District Judge), issuing an injunction 2 against 3 firefighters, and a cross-appeal by the Intervenors from the February 4 1, 2012, partial final judgment dismissing federal and state law 5 claims against Mayor Bloomberg and former Fire Commissioner Scoppetta. 6 The City s appeal also seeks review of the January 13, 2010, order 7 granting the Intervenors summary judgment on their disparate treatment 8 claim, which alleged intentional discrimination, and, on the appeal 9 from the injunction, seeks reassignment of the case to a different 10 the City with respect to the hiring of entry-level district judge. 11 Summary judgment on the disparate treatment claim against the 12 City is vacated; dismissal of the federal claims against Mayor 13 Bloomberg is affirmed; dismissal of the state law claims against Mayor 14 Bloomberg and Commissioner Scoppetta is affirmed; dismissal of the 15 federal law claims against Commissioner Scoppetta is vacated; the 16 injunction is modified, and, as modified, is affirmed; and the bench 17 trial on the liability phase of the discriminatory treatment claim 18 against the City is reassigned to a different district judge. 19 20 21 22 23 24 25 26 27 Affirmed in part, vacated in part, and remanded. Judge Pooler dissents in part with a separate opinion. Lisa J. Stark, United States Department of Justice, Washington, D.C. (Thomas E. Perez, Dennis J. Dimsey, Holly A. Thomas, United States Department of Justice, Washington, D.C., on the brief), for Appellee. -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Richard A. Levy, Levy Ratner, P.C., New York, NY (Center for Constitutional Rights, New York, NY; Scott + Scott LLP, New York, NY, on the brief), for Plaintiffs-Appellees-CrossAppellants. Deborah A. Brenner, Asst. Corporation Counsel, New York, NY (Michael A. Cardozo, Corporation Counsel of the City of New York, Alan G. Krams, Asst. Corporation Counsel, New York, New York, N.Y., on the brief), for Appellants-Cross-Appellees. (Keith M. Sullivan, Sullivan & Galleshaw, LLP, Queens, NY, for amicus curiae Merit Matters, Inc., in support of Appellants-CrossAppellees.) (Lawrence S. Lustberg, Alicia L. Bannon, Gibbons P.C., Newark, NJ, for amicus curiae International Association of Black Professional Firefighter and Black Chief Officers Committee, in support of PlaintiffsAppellees-Cross-Appellants.) (Rachel Godsil, Kathryn Pearson, Jon Romberg, Andrew Van Houter, Seton Hall University School of Law, Center for Social Justice, Newark, NJ, for amicus curiae American Values Institute, in support of PlaintiffsIntervenors-Appellees.) (ReNika C. Moore, Debo P. Adegbile, Elise C Boddie, Johnathan J. Smith, Ria A. Tabacco, NAACP Legal Defense and Educational Fund, Inc., New York, NY; Joshua Civin, Washington, D.C., for amicus curiae NAACP Legal Defense & Educational Fund, Inc., in support of Appellees.) -3- 1 JON O. NEWMAN, Circuit Judge: 2 This case, brought by the United States pursuant to Title VII of 3 the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg., concerns 4 allegations of racial discrimination in the hiring of New York City 5 firefighters. 6 properly 7 discrimination, whether claims against the City s Mayor and former 8 Fire Commissioner were properly dismissed, whether an injunction, 9 based both on the finding of intentional discrimination and an 10 unchallenged finding of disparate impact arising from entry-level 11 exams, is too broad, and whether, in the event of a remand, the case, 12 or some portion of it, should be reassigned to another district judge. 13 These issues arise on an appeal from the December 8, 2011, order and 14 a cross-appeal from February 21, 2012, partial final judgment of the 15 United States District Court for the Eastern District of New York 16 (Nicholas G. Garaufis, District Judge) in a suit brought by the United 17 States against the City of New York. 18 Vulcans or the Intervenors ), an organization of black2 firefighters, 19 intervened, along with several named firefighters. 20 complaint added as defendants the Fire Department of the City of New 21 York ( FDNY ), the New York City Department of Citywide Administrative 22 Services ( DCAS ), and Mayor Michael Bloomberg and then-New York Fire The principal issues are whether summary judgment was entered against the City 2 on a claim of intentional The Vulcan Society, Inc. ( the The Intervenors We have adopted the form of racial identification (without capitalization) used by the Vulcans. -4- 1 Commissioner Nicholas Scoppetta in their individual and official 2 capacities. 3 The City appeals from the December 8, 2011, order issuing a far- 4 reaching permanent injunction against the City. 5 that this appeal brings up for review the January 13, 2010, order 6 granting 7 disparate treatment claim, which alleged intentional discrimination. 8 The Intervenors cross-appeal from the February 1, 2012, partial final 9 judgment, entered pursuant to Rule 54(b) of the Federal Rules of Civil 10 Procedure, dismissing the Intervenors claims against Defendants Mayor 11 Bloomberg and Fire Commissioner Scoppetta on grounds of Immunity. summary judgment against the City on The City contends the Intervenors 12 We conclude that (1) summary judgment was improperly entered on the 13 Intervenors disparate treatment claim, (2) the federal and state law 14 claims against Mayor Bloomberg were properly dismissed, as were the 15 state law claims against Commissioner Scoppetta, but the federal law 16 claims against Commissioner Scoppetta should be reinstated, (3) most 17 portions of the injunction based on the unchallenged disparate impact 18 finding were within the District Court s remedial discretion, but 19 other portions, particularly those portions based on the improper 20 discriminatory treatment ruling, exceeded that discretion, and (4) on 21 remand, the bench trial on the liability phase of the disparate 22 treatment claim against the City should be reassigned to a different 23 district judge. 24 remand. We therefore, affirm in part, vacate in part, and -5- Background 1 2 The extensive factual and procedural background of this litigation 3 is set forth in detail in United States v. City of New York, 637 F. 4 Supp. 2d 77 (E.D.N.Y. 2009) ( Disparate Impact Op. ). 5 Discrimination history. New York City has a substantial black and 6 Hispanic population. According to the Department of City Planning, in 7 2002, blacks were 25 percent and Hispanics were 27 percent of the 8 population. 9 black was 2.6 and the percentage who were Hispanic was 3.7. At that time, the percentage of firefighters who were The low 10 percentage of minority personnel in the FDNY has persisted for some 11 time. 12 black. When the pending litigation commenced in 2007, the percentages 13 of black and Hispanic firefighters had increased to only 3.4 percent 14 and 6.7 percent, respectively. 15 New York City has been significantly below those for other cities with 16 substantial black population. 17 firefighter 18 percentages were 14 percent in Los Angeles, 17.1 percent in Houston, 19 20.4 percent in Chicago, and 26.3 percent in Philadelphia. The City s 20 black percentage of firefighters has also been significantly below the 21 percentages for other uniformed services in New York City. 22 2000, the percentage of blacks in the FDNY was 3.8 percent; the 23 percentages in the Police Department, the Sanitation Department, and 24 the Corrections Department were 16.6, 24.3, and 61.4, respectively. From 1963 to 1971 only 4 percent of all FDNY employees were percentage for The black firefighter percentage for In 1999, for example, when the black New York -6- City was 2.9 percent, the As of 1 In 1973, the written examination for entry-level New York City 2 firefighters was held to have a discriminatory impact on minority 3 applicants. See Vulcan Society of New York City Fire Dep t, Inc. v. 4 Civil Service Commission, 360 F. Supp. 1265, 1277 (S.D.N.Y.), aff d in 5 relevant part, 490 F.2d 387 (2d Cir. 1973). 6 for firefighters in 1988 and 1992 has a disparate impact on blacks,3 7 although use of these exams was not challenged in court. 8 9 Entry-level exams used Pending litigation - disparate impact claims. In August 2002, the Vulcans filed an unlawful discrimination complaint with the federal 10 Equal Employment Opportunity 11 subsequently referred the complaint to the Department of Justice. 12 May 2007, the United States ( the Government ) sued the City under 13 Title VII, challenging two separate FDNY employment procedures for 14 screening and selecting entry-level firefighters alleged to have an 15 unjustified 16 Specifically, the 17 examinations, No. 18 administered in 2002 (the Exams ), that initially screened applicants 19 on a pass/fail basis. 20 processing of applicants, i.e., establishing a passing score to 21 reflect FDNY needs for new recruits and listing, in order of test disparate impact Government 7029, Commission on black challenged administered ( EEOC ). and Hispanic the in use 1998, of and The EEOC In applicants. two No. written 2043, The Government also challenged the rank-order 3 The percentage of blacks who took the 1988 exam was 10.9; of the 5,000 highest scoring candidates, the black percentage was 2.2, and the percentage hired was 1.3. In 1992, the percentage of blacks taking the exam was 8.5; the percentage hired was less than 2. -7- 1 scores, all applicants above that score. 2 written FDNY Exams and a physical performance test were place on a 3 rank-order eligibility list that was based, in part, on the written 4 examination score. 5 Candidates who passed the The FDNY administered the Exams to more that 34,000 firefighter 6 applicants and hired more than 5,300. 7 Hispanics who took the Exams, the FDNY hired 461 blacks and 184 8 Hispanics. 9 percent and for blacks 60.3 percent. 10 Of the 3,100 blacks and 4,200 For Exam No. 7029, the pass rate for whites was 89.9 For Exam No. 2043, the pass rate for whites was 97.2 percent and or blacks 85.4 percent. 11 The Government s complaint alleged that the Exams were neither job- 12 related nor consistent with business necessity, and sought to enjoin 13 the 14 appropriate 15 discriminatory policies and practices. 16 challenged procedures action to and to correct require the that present the City effects of take its On September 5, 2007, the District Court permitted the Vulcans and 17 several named individuals to intervene.4 18 added as defendants the DCAS, the FDNY, Mayor Bloomberg, and then-Fire 19 Commissioner Scoppetta. The Intervenors complaint After the District Court bifurcated the case 4 The Intervenors had previously filed a complaint without leave of the District Court. That complaint contained a jury demand. In granting the Intervenors leave to file a complaint on September 5, 2007, the District Court noted that the Intervenors and the Defendant, i.e., the City, had waived their right to a jury trial. The Intervenors permitted complaint, filed on September 25, 2007, does not contain a jury demand, and no defendant has made such a demand. -8- 1 into separate liability and relief phases, the Government and the 2 Intervenors moved for partial summary judgment on the disparate impact 3 claim. 4 Federal Rules of Civil Procedure, certified a class consisting of 5 black applicants for the position of entry level firefighters.5 Thereafter, the Court, pursuant to Rule 23(b)(2) of the 6 On July 22, 2009, the District Court granted the Government s and 7 the Intervenors motion for summary judgment on the disparate impact 8 claim. See Disparate Impact Op., 637 F. Supp. 2d at 132. 9 ruled that the Exams and the rank-ordering of The Court results 10 disproportionately impacted black and Hispanic applicants, and that 11 the City had not satisfied its burden of demonstrating that the 12 employment procedures were job-related or consistent with business 13 necessity. Id. at 84-132. 5 The Court s finding of disparate impact The class consists of: All black firefighters or firefighter applicants who sat for either Written Exam 7029 or Written Exam 2043 [and] were harmed by one or more of the following employment practices: (1) Defendants use of Written Exam 7029 as a pass/fail screening device with a cutoff score of 84.75; (2) Defendants rank-order processing of applicants who passed Written Exam 7029; (3) Defendants use of Written Exam 2043 as a pass/fail screening device with a cutoff score of 70.00; and (4) Defendants rank-order processing of applicants who passed Written Exam 2043. United States v. City of New York, 258 F.R.D. 47, 67 (E.D.N.Y. 2009). -9- 1 was based on undisputed statistical evidence showing that black and 2 Hispanic applicants disproportionately failed the Exams and on a 3 meticulous application of this Court s decision in Guardians Ass n of 4 the New York City Police Dep t. Inc. v. Civil Service Commission, 630 5 F.2d 79 (2d Cir. 1980) ( NYC Guardians ), outlining the standards for 6 assessing the job-relatedness of an employment exam. See Disparate 7 Impact Op., 637 F. Supp. 2d at 87-95. 8 using Exam 6019, which the District Court permitted to be used on an 9 interim basis, despite its disparate impact. See United States v. City Thereafter, the City began 10 of New York, 681 F. Supp. 2d 274, 294-95, 300-02. 11 the City an opportunity to have Exam 6019 validated, see id., 681 F. 12 Supp. 2d at 300, and subsequently found, after a hearing in July 2010, 13 that the exam was invalid, see United States v. City of New York, No. 14 07-cv-2067, 2010 WL 4137536, at *5 (E.D.N.Y. Oct. 19, 2010). 15 appeal, the City does not challenge the grant of summary judgment 16 against the City on the disparate impact claim, nor, as far as we can 17 determine, the District Court s ruling on the invalidity of Exam 6019. 18 Pending litigation - disparate treatment claim. In addition to the disparate reasserting 20 complaint, the Intervenors complaint added a discriminatory treatment 21 claim, alleging that the Defendants use of the challenged employment 22 procedures 23 applicants. 24 appeal. intentional claim from the On this 19 constituted impact The Court afforded discrimination Government s against black That claim raises one of the central issues on this -10- 1 On July 25, 2008, the District Court denied the Intervenors motion 2 to augment their discriminatory treatment claim by amending their 3 complaint 4 selection devices used from 1999 to the present. 5 that, at the time that the Intervenors had sought to intervene, they 6 had represented that they were taking pleadings as they find them, 7 and were simply seeking to add the disparate treatment claim. challenge additional discriminatory screening and The Court noted On Sept. 18, 2009, the City moved to dismiss the Intervenors claim 8 9 to of intentional discrimination, and, on October 320, 2009, the 10 Intervenors filed a motion for partial summary judgment on the issue 11 of discriminatory intent. 12 discriminatory 13 Intervenors motion for summary judgment on the disparate treatment 14 claim. treatment The Government, which had not alleged in its complaint, did not join the 15 On January 13, 2010, the District Court issued a comprehensive 16 opinion granting the Intervenors motion for summary judgment on their 17 disparate treatment claim. See United States v. City of New York, 683 18 F. Supp. 2d 225, 255 (E.D.N.Y. 2010) ( Disparate Treatment Op. ). 19 recount the details of that ruling in Part II, infra. 20 opinion, the Court dismissed the Intervenors Title VII claims against 21 Mayor Bloomberg and Commissioner Scoppetta because individuals are not 22 subject to liability under Title VII, id. at 243-44, and dismissed the 23 discriminatory treatment claim against them on the ground that they 24 were entitled to qualified and official immunity, id. at 269-72. -11- We In that 1 Pending litigation - relief. On September 10, 2009, after the 2 Court s July 22, 2009, Disparate Impact Opinion but before its January 3 13, 2010, Disparate Treatment Opinion, the Government submitted a 4 proposed order requesting injunctive and monetary relief to implement 5 the Disparate Impact Opinion. 6 the Disparate Treatment Opinion, the Court issued the first of four 7 orders dealing with relief. 8 the 9 anticipated pursuing, but specifically required the City to develop a parties to monetary On January 21, 2010, eight days after The January 21 order primarily alerted and compliance issues that the Court 10 new testing procedure for entry-level firefighters. 11 future consideration the extent to which the City could continue to 12 use Exam 6019, a test the City first administered in January 2007 and 13 had 14 eligibility list. 15 challenged or adjudicated. 16 used thereafter to generate its most recent It left for firefighter The validity of that test had not previously been On May 26, 2010, the Court issued a second relief order. In that 17 order, the Court stated that, in the absence of needed materials, it 18 could not then determine the validity of Exam 6019 nor determine to 19 what extent the FDNY could use the results of that exam for entry- 20 level hiring of firefighter. 21 relief issues, the Court appointed a Special Master to facilitate the In view of the complexity of pending 22 23 24 -12- 1 Court s assessment of Exam 6109 and to oversee the City s development 2 of a new exam.6 3 On October 19, 2010, the Court issued a third relief order. That 4 order permanently enjoined the City from using Exam 6019, with a 5 limited exception not relevant to the appeal. 6 On December 9, 2010, the Intervenors moved for equitable and 7 monetary relief based on the Court s previous finding, on motion for 8 summary judgment, of disparate treatment. 9 relief, they requested the appointment Among other injunctive of monitor to oversee 10 compliance, enhanced recruitment and advertising to target minority 11 applicants, modification of the FDNY s post-exam screening process, 12 and prevention of retaliation and workplace discrimination against 13 black firefighters. 14 revised proposed relief order, requesting relief based on the Court s 15 disparate impact finding. 16 bench trial to determine appropriate injunctive relief for the City s 17 intentional discrimination. 18 that trial. On February 28, 2011, the Government submitted a In August 2011, the District Court held a The Government did not participate in 19 On September 30, 2011, the Court issued detailed findings of fact, 20 based on the evidence introduced at th bench trial, to support its 6 The Court initially appointed Robert M. Morgenthau as Special Master. On June 1, 2010, after the City objected to the selection of Morgenthau because of the City s disputes with the New York County District Attorney s Office, which he had headed, Morgenthau asked to be relieved, and on the same day the Court appointed Mary Jo White. -13- 1 subsequent grant of injunctive relief. The Court noted that its 2 assessment of the evidence was influenced by the factual record 3 established in earlier stages of the litigation, including the finding 4 that Exams 7029 and 2043 had a disparate impact on black and Hispanic 5 firefighter candidates, the finding of intentional discrimination, and 6 the finding that Exam 6019 was invalid for lack of job validation. 7 United States v. City of New York, No. 07-CV-2067, 2011 WL 766158, at 8 *1 n.1 (E.D.N.Y. Sept. 30, 2011). 9 Court issued a draft remedial order and informed the parties that it 10 intended to appoint a Court Monitor to oversee the City s compliance 11 with this order. 12 opportunity to comment on the draft order. 13 Court issued the injunction that is a principal subject of this 14 appeal. See United States v. City of New York, No. 07-CV-2067, 2011 WL 15 6131136 (E.D.N.Y. Dec. 8, 2011) ( Injunction Op. ). 16 the terms of that injunction will be recounted in Part IV, infra, 17 dealing with the City s objections to several of those terms. Approximately one week later, the The Court permitted the City and its Intervenors an On December 8, 2011, the The details of 18 On February 1, 2012, the District Court, pursuant to Rule 54(b) of 19 the Federal Rules of Civil Procedure, certified for entry of partial 20 summary judgment its ruling dismissing the claims against Mayor 21 Bloomberg and Commissioner Scoppetta on grounds of qualified and 22 official immunity. 23 24 The City filed a timely appeal, and the Intervenors filed a timely cross-appeal, which have been consolidated. -14- Motions for back-pay and 1 damages remain pending in the District Court and are not the subject 2 of this appeal. Discussion 3 4 Before considering any of the issues on appeal, we note that the 5 City has explicitly declined to challenge the District Court s 6 disparate impact ruling, the remedy requiring development of a new 7 entry-level exam, or the appointment of a Special Master. 8 appellate papers also present no challenge to the District Court s 9 third relief order substantially enjoining use of Exam 6019. What the 10 City challenges on its appeal is the granting of summary judgment in 11 favor of the Intervenors on their disparate treatment claim and all 12 aspects of the injunction beyond those requiring development of a new 13 entry-level exam. 14 District Court s dismissal of their claims against Mayor Bloomberg and 15 Commissioner Scoppetta on the ground of qualified immunity. 16 I. Appellate Jurisdiction The City s On the cross-appeal, the Intervenors challenge the 17 All parties acknowledge our jurisdiction to review the December 8, 18 2011, injunction, see 28 U.S.C. § 1292(a)(1), and the February 1, 19 2012, partial final judgment dismissing the claims against Mayor 20 Bloomberg and Commissioner Scoppetta, see Fed. R. Civ. P. 54(b). 21 Intervenors challenge our jurisdiction to review the District Court s 22 January 13, 2012, ruling granting the Intervenors summary judgment on 23 their disparate treatment claim. 24 not a final order and has not been incorporated into a final judgment. The They point out that this ruling is -15- 1 The City responds that we have jurisdiction over the disparate 2 treatment ruling because it is inextricably intertwined, with the 3 injunction. Lamar Advertising of Penn, LLC v. Town of Orchard Park, 4 356 F.3d, 371 (2d Cir. 2004) (internal quotation marks omitted); see 5 also Swint v. Chambers County Commission, 514 U.S. 35, 51 (1995). 6 We agree with the City. exclusively on 7 almost 8 proposed order for injunctive relief, and, in summation during the 9 bench trial on relief, emphasized that broad remedies were needed to disparate treatment their 11 District Court explicitly acknowledged that its findings on which the 12 injunction would later be based were influenced by its disparate 13 treatment finding, and some of the more far-reaching provisions of 14 that injunction appear to be grounded, at least partially if not 15 entirely, on that finding. 16 the injunction and the disparate treatment summary judgment ruling to 17 support pendent appellate jurisdiction over the latter ruling. 18 II. 19 Treatment Claim Judgment More in counteract Summary discrimination. finding 10 The intentional the First, the Intervenors themselves focused significantly, the Sufficient intertwining exists between Ruling on the Intervenors Disparate 20 In considering the District Court s grant of summary judgment to 21 the Intervenors on their disparate treatment claim, which requires an 22 intent to discriminate, we note at the outset that questions of 23 subjective intent can rarely be decided by summary judgment. See 24 Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). -16- The principal issue 1 presented by the summary judgment ruling concerns the nature of a 2 defendant s obligation to respond to a prima facie case presented by 3 a plaintiff class in a pattern-or-practice discriminatory treatment 4 lawsuit. 5 Initiation of a pattern-or-practice claim. Before considering that 6 issue, we first consider how a pattern-or-practice claim arises. A 7 pattern-or-practice claim under Title VII can be asserted either by 8 the United States or by a class of plaintiffs, usually current or 9 prospective employees against whom some adverse employment action has 10 been taken because of an impermissible reason such as race. Section 11 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a), 12 authorizes the Attorney General to bring a civil action whenever that 13 officer has reasonable cause to believe that any person or group of 14 persons is engaged in a pattern or practice of resistence to the full 15 enjoyment of any of the rights secured by [subchapter VI of chapter 16 21], and that the pattern or practice is of such a nature and is 17 intended to deny the full exercise of the rights herein described 18 . . . . 7 19 may also initiate a pattern-or-practice suit. See Cooper v. Federal 20 Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984) ( [T]he 21 elements of a prima facie pattern-or-practice case are the same [as a A group of plaintiffs, entitled to be certified as a class, 7 Section 707 was amended by Section 5 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-6(c), to give the EEOC, rather than the Attorney General, authority to bring patter-orpractice suits against private sector employers. -17- 1 Government-initiated suit under Section 707(a)] in a private class 2 action. ); Franks v. Bowman Transportation Co., 424 U.S., 747, 750-51 3 (1976) (analyzing class action alleging pattern of discriminatory 4 employment practices). 5 Although the pending suit was brought by the United States, the 6 Government did not allege a pattern or practice of discriminatory 7 treatment. 8 2043 had a discriminatory impact on minority applicants for the 9 position of entry-level firefighter. Its claim was solely that the City s use of Exams 7029 and The Intervenors, once certified 10 as a class, have asserted what amounts to claim of pattern-or-practice 11 discriminatory treatment.8 8 The Intervenors complaint did not explicitly assert a claim of a pattern-or-practice. That phrase first entered this litigation rather unobtrusively as one aspect of the prayer for relief in the Intervenors complaint, which, in listing the elements of a requested injunction, asked the Court to appoint entry-level firefighters from among qualified black applicants in sufficient numbers to offset the historic pattern and practice of discrimination against blacks in testing and appointment to that position. Intervenors Complaint, Prayer for Relief ¶ 3(d). The phrase is not mentioned at all in the Intervenors extensive memorandum of law in support of their motion for summary judgment on the disparate treatment claim. Nevertheless, by the time the District Court issued its Disparate Treatment Opinion, the phrase had become prominent. Section IV of that opinion is captioned INTERVENORS TITLE VII PATTERN-OR-PRACTICE DISPARATE TREATMENT CLAIM. 683 F. Supp. 2d at 246. And as the litigation has reached this Court, the phrase appears repeatedly in the briefs of the City and the Intervenors, although it is conspicuously absent from the Government s brief (except for one mention in the description of the District Court s Disparate Treatment Opinion, see Brief for United States at 19). We surmise that the Intervenors are entitled to assert a patternor-practice claim because they sought and were granted class action status and alleged not only the disparate impact of Exams 7029 and -18- 1 Comparison of individual and pattern-or-practice claims. We next 2 compare individual and pattern-or-practice claims. 3 difference between individual and pattern-or-practice discriminatory 4 treatment 5 discriminate, an individual claim requires an intent to discriminate 6 against one person, see, e.g., McDonnell Douglas Corp. v. Green, 411 7 U.S. 792 (1973), and a pattern-or-practice claim requires that racial 8 discrimination was the company s standard operating procedure[,] the 9 regular rather than the unusual practice, International Brotherhood 10 of Teamsters v. United States, 431 U.S., 324, 336 (1977), and that the 11 discrimination was directed at a class of victims, see, e.g., Franks, 12 424 U.S. at 772.9 13 case is not a separate and free-standing cause of action . . ., but is 14 really merely another method by which disparate treatment can be 15 shown. Chin v. The Port Authority of New York and New Jersey, 685 claims is that, although both require The principal an intent to It should be noted that [a] pattern or practice 2043 but also a long-standing pattern of discrimination in hiring firefighters. Their complaint alleged, among other things, that [t]he FDNY has a long history of unlawfully discriminating against blacks in its hiring process and of maintaining the number of black firefighters at its disproportionately low level compared to their representation in the population of the City as a whole, ¶ 31, the FDNY has consistently failed and refused to comply with many of the [City s Equal Employment Practices Commission s] recommendations, particularly with regard to its hiring criteria, ¶ 32, and the City and the FDNY have repeatedly failed and refused to remedy this obviously discriminatory situation, ¶ 33. 9 Cf. EEOC v. Shell Oil Co., 466 U.S. 54, 73 (1984) (requiring an EEOC charge filed by a commissioner to identify the groups of persons that he has reason to believe have been discriminated against ). -19- 1 F.3d 135, 148-49 (2d Cir. 2012) (quoting in a parenthetical Celestine 2 v. Petroleos de Venezuela SA, 266 F.3d 343, 355 (5th Cir. 2001)) 3 (internal quotation marks omitted).10 4 Both types of suits involve a scheme of shifting burdens borne by 5 the contending sides. In both, the plaintiff bears the initial burden 6 of presenting a prima facie case. Both McDonnell Douglas, 411 U.S. at 7 807, and Teamsters, 431 U.S. at 336, refer to the plaintiff s initial 8 burden 9 sufficient as a burden to establish a evidence to create rebuttable a prima facie case, presumption meaning of the 10 existence of the ultimate fact at issue: in McDonnell Douglas, the 11 employer s intent to discriminate against the plaintiff, and in 12 Teamsters, 13 discrimination against the class. The Supreme Court has noted that in 14 general [t]he phrase prima facie case not only may denote the 15 establishment of a legally mandatory, rebuttable presumption, but also 16 may be used by courts to describe the plaintiff s burden of producing 17 enough evidence to permit the trier of fact to infer the fact at 18 issue, Texas Dep t of Community Affairs v. Burdine, 450 U.S. 248, 254 19 n.7 (1981), and has explicitly instructed that in the Title VII 20 context we use prima facie case in the former sense, id. the employer s pervasive practice of intentional 21 10 The Supreme Court has criticized the EEOC for not adopting special regulations more closely tailored to the characteristics of pattern-or-practice cases. Shell Oil Co., 466 U.S. at 67 n. 19. -20- 1 In an individual case, the plaintiff s initial burden consists of 2 the now familiar components of showing (i) that he belongs to a 3 racial minority; (ii) that he applied and was qualified for a job for 4 which the employer was seeking applicants; (iii) that, despite his 5 qualifications, he was rejected; and (iv) that, after his rejection, 6 the 7 applicants from persons of complainant s qualifications. McDonnell 8 Douglas, 411 U.S. at 802. 9 U.S. at 253; indeed, it is minimal, St. Mary s Honor Center v. 10 Hicks, 509 U.S. 502, 506 (1993), or slight, Wanamaker v. Columbian 11 Rope Co., 108 F. 3d 462, 465 (2d Cir. 1997). position remained open and the employer continued to seek This burden is not onerous, Burdine, 450 12 In a pattern-or-practice case, the plaintiff s initial burden is 13 heavier in one respect and lighter in another respect than the burden 14 in an individual case. 15 a 16 discrimination, see Teamsters, 431 U.S. at 336, rather than a single 17 instance of discriminatory treatment. 18 plaintiff 19 particular present or prospective employee. See id. at 360; Chin, 685 20 F.3d at 147. 21 employees are relevant to show a policy of intentional discrimination, 22 they are not required; a statistical showing of disparate impact might 23 suffice. See Hazelwood School District v. United States, 433 U.S. 299, 24 307-08 (1977) ( Where gross statistical disparities can be shown, they prima facie need It is heavier in that the plaintiff must make showing not of a initially pervasive show policy of intentional It is lighter in that the discrimination against any Although instances of discrimination against particular -21- 1 alone may in a proper case constitute prima facie proof of a pattern 2 or practice of discrimination. ). 3 plaintiff s initial burden is only to present a prima facie case that 4 will support a rebuttable presumption of the ultimate fact in issue. 5 Once the McDonnell Douglas plaintiff has established its prima 6 facie case, the burden then shifts to the employer to rebut the 7 presumption of discrimination, Burdine, 450 U.S. at 254. 8 employer need only articulate come legitimate, nondiscriminatory 9 reason for the employee s rejection. Id. at 253 (emphasis added) With both types of cases, the The 10 (quoting McDonnell Douglas, 411 U.S. at 802).11 11 Supreme Court said that the employer responding to a prima facie case 12 in a pattern-or-practice suit has the burden to defeat that case, 13 431 U.S. at 360. 14 stronger that rebut, but the Court s language indicates that the 15 Court means the same thing in both contexts. 16 the court said that the employer may discharge its rebuttal burden by 17 articulat[ing] some legitimate, nondiscriminatory reason for the 18 employee s rejection. 411 U.S. at 802, and in Teamsters, the Court 19 similarly said In Teamsters, the [D]efeat might be thought to imply something that the employer 11 may do In McDonnell Douglas, so by provid[ing] a In this respect, the rebuttal burden on the employer in a discriminatory treatment case is less than the burden in a disparate impact case. In the latter case, the employer bears the burden of proving that the neutral employment policy, such as an exam, shown to have a discriminatory impact, is job-related. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971). -22- 1 nondiscriminatory explanation for the apparently discriminatory 2 result, 431 U.S. at 360 n. 46. 3 called the employer s burden in a McDonnell Douglas case a burden of 4 production, Burdine, 450 U.S. at 255, and has not used that word to 5 describe the employer s burden in a pattern-or-practice case, we think 6 the rebuttal burden in both contexts is one of production. See 7 Reynolds v. Barrett, 685 F.3d 193, 203 (2d Cir. 2012) (noting that in 8 pattern-or-practice case the burden of production shifts to the 9 employer ); Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 159 10 (2d Cir. 2001) (noting that in pattern-or-practice case the burden 11 [of production] then shifts to the employer ) (quoting Teamsters, 431 12 U.S. at 360) (brackets in Robinson), abrogated on other grounds by 13 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2641 (2011).12 Although the Court has explicitly 14 A central issue in the pending case is what showing an employer 15 must make to satisfy its burden of production in a pattern-or-practice 16 case. 17 burden was to defeat the prima facie showing of a pattern or practice 18 by demonstrating that the Government s proof is either inaccurate or 19 insignificant. 431 U.S. at 360 (emphasis added). 20 words raise a question as to whether the Supreme Court thought the 21 employer s rebuttal evidence must be directed at the statistics that In Teamsters the Supreme Court stated that the employer s 12 The emphasized In Teamsters, the Supreme Court had no need to label the nature of the employer s rebuttal burden because the Court was reviewing a case that had been fully tried on the merits. -23- 1 often constitute the prima facie case of discrimination or simply at 2 the rebuttable presumption of discrimination that arises from those 3 statistics. 4 We think the Court meant that the employer must produce any 5 evidence that is 6 discrimination. 7 defendant must produce to rebut a prima facie case by its selection of 8 particular to rebutting the inference of 9 explicitly recognized this obvious point in Teamsters when it stated 10 that, although [t]he employer s defense must, of course, be designed 11 to meet the prima facie case . . . [,] [w]e do not mean to suggest 12 that there are any particular limits on the type of evidence an 13 employer may use. 431 U.S. at 360 n.46. 14 of an employer whose pattern of post-Act hiring was a product pre-Act 15 hiring, id. at 360, an example of evidence that would rebut the 16 inference 17 statistics, but not dispute the statistics themselves. 18 would not demonstrate that the proof of the pattern was inaccurate or 19 insignificant; it would demonstrate that the proof of the pattern was 20 legally irrelevant. No plaintiff can limit the type of evidence that a evidence of relevant to support discriminatory that intent case. The Supreme Court The Court offered an example arising from the plaintiff s That showing 21 Of course, it is always open to a defendant to meet its burden of 22 production by presenting a direct attack on the statistics relied upon 23 to constitute a prima facie case. 24 that the plaintiff s statistics are inaccurate, for example, infected A defendant might endeavor to show -24- 1 with arithmetic errors, or lacking in statistical significance, for 2 example, based on too small a sample. 3 limited. 4 intent by accepting a plaintiff s statistics and producing non- 5 statistical evidence to show that it lacked such an intent. 6 Teamsters, the Supreme Court recognized this means of rebutting a 7 prima facie case by stating that the employer s burden is to provide 8 a nondiscriminatory explanation for the apparently discriminatory 9 result. 431 U.S. at 360 n.46. But the rebuttal need not be so A defendant may rebut the inference of a discriminatory In Again, such an explanation rebuts the 10 inference from a plaintiff s statistics, even though it does not 11 directly challenge the statistics themselves.13 13 Our dissenting colleague contends that we have conflate[d] two distinct tests set out in our disparate treatment jurisprudence, [slip op. __ (dissent at 1)] and that where a plaintiff presents statistics to establish its prima facie case of a pattern or practice or pervasive discrimination, those statistics must necessarily be addressed by the defendant s rebuttal evidence, [slip op. __ (dissent at 5)]. As to the first contention, we have explicitly recognized the crucial difference that a plaintiff endeavoring to present a pattern or practice claim of intentional discrimination must prove a pervasive pattern of such discrimination whereas a plaintiff endeavoring to present only a claim of individual discrimination may succeed by showing that a facially neutral policy had a discriminatory impact. As to the second contention, our dissenting colleague cites Teamsters, 431 U.S. at 360, as stating that an employer rebutting a prima facie pattern or practice case must demonstrate that the plaintiff s statistics were inaccurate or insignificant. [slip op. __ (dissent at 3)]. But the referenced sentence from Teamsters refers to the plaintiff s proof, not the plaintiff s statistics. A defendant, by presenting evidence of its choosing that it lacked a discriminatory intent, satisfies its rebuttal burden of showing that the plaintiff s prima facie proof lacked significance. Furthermore, -25- Some confusion might have been created on this point by a passage 1 2 in the late Professor Arthur Larson s treatise on employment 3 discrimination that this Court quoted in Robinson, 267 F.3d at 159. 4 That passage begins by stating, Three basic avenues of attack are 5 open to the defendant challenging the plaintiff s statistics, namely 6 assault on the source, accuracy, or probative force. 1 Arthur Larson 7 et al., Employment Discrimination § 9.03[2], at 9-23 (2d ed. 2001) 8 (emphasis added). 9 to require an employer to challenge the plaintiff s statistics as This sentence, read in isolation, might be thought 10 such. But that interpretation is dispelled by Prof. Larson s later 11 recognition in the same passage, also quoted in Robinson, 267 F.3d at 12 159, that a defendant may use other non-statistical evidence tending 13 to rebut the inference of discrimination. Larson, supra, § 9.03[2], 14 at 9-24 (emphasis added). 15 Discrimination, compiled by Prof. Larson s son, has rewritten the 16 sentence quoted in Robinson and, more significantly, includes a 17 subsection making it clear that non-statistical evidence, including an 18 employer s affirmative action efforts, are both relevant to and Indeed, the current version of Employment although the dissent suggests that we have ignored Teamsters by permitting a defendant to rebut a prima facie case without directly challenging the plaintiff s statistics, it is the Teamsters opinion itself that says, We do not mean to suggest that there are any particular limits on the type of evidence an employer may use to meet a plaintiff s prima facie case, 431 U.S. at 360 n.46, and also says that the employer s burden in rebutting a prima facie case is to provide a nondiscriminatory explanation for the apparently discriminatory result, id. -26- 1 probative of absence of intent to discriminate. 1 Lex Larson, 2 Employment Discrimination § 9.03[2][c], at 9-20.1 (2d ed. 2011) 3 (footnote omitted). 4 We have recognized that non-statistical evidence, such as a 5 defendant s affirmative action program, is probative of the absence of 6 an employer s intent to discriminate. See Coser v. Moore, 739 F.2d 7 746, 751-52, (2d Cir. 1984); see also EEOC v. Sears, Roebuck & Co., 8 839 F.2d 302, 314 (7th Cir. 1988) ( [S]tatistical evidence is only one 9 method of rebutting a statistical case. ). Although cases such as 10 Coser and Sears, Roebuck were considering evidence available to negate 11 discriminatory intent at trial, we see no reason why a defendant may 12 not proffer such evidence to satisfy its burden of production in 13 advance of trial on the merits.14 14 Our recent opinion in Reynolds v. Barrett stated that the defendant s burden of production is to show that the statistical evidence proffered by the plaintiffs is insignificant or inaccurate. 685 F.3d at 203 (citing Teamsters, 341 U.S. at 360 (substituting statistical evidence for proof, the word used in the relevant passage in Teamsters)). This statement in Reynolds is dictum; the issue in that case was not the required content of a defendant s rebuttal, but whether recourse to the pattern-or-practice evidentiary framework is appropriate in a suit against individual state officials brought pursuant to 42 U.S.C. § 1983 for intentional discrimination. 685 F,3d at 197. Even as dictum, we think this sentence in Reynolds should be understood to offer one way to rebut a prima facie case, but surely not the only way. That broader understanding is required by the recognition in Teamsters that (a) an employer may rebut a prima facie case by offering a nondiscriminatory explanation, 431 U.S. at 360 n.46, and (b) the Supreme Court did not intend to limit the type of evidence an employer may use, id. It is also required by the incontestable point that no plaintiff can limit its adversary s responding evidence by the type of evidence that the plaintiff chooses to present. -27- 1 Teamsters sets a high bar for the prima facie case the Government 2 or a class must present in a pattern-or-practice case: evidence 3 supporting a rebuttable presumption that an employer acted with the 4 deliberate purpose and intent of discrimination against an entire 5 class. 431 U.S. at 358. 6 must have a broad opportunity to present in rebuttal any relevant 7 evidence that shows that it lacked such an intent. An employer facing that serious accusation 8 Continuing with a comparison of the shifting burdens in individual 9 and pattern-or-practice cases, we note that a defendant s burden of 10 production can involve no credibility assessment, Hicks, 509 U.S. at 11 509, and necessarily precedes the credibility-assessment stage, id. 12 (emphasis in original). 13 aspects of the defendant s production burden do not apply to pattern- 14 or practice claims. 15 remaining aspects of the burden-shifting scheme, at least at the 16 liability stage of a trial. 17 plaintiff s 18 unrebutted prima facie case entitles the plaintiff to prevail on the 19 issue of liability and proceed directly to the issue of appropriate 20 relief. See Hicks, 509 U.S. at 509. 21 defendant satisfies its burden of production, the presumption arising 22 from the plaintiff s prima facie case drops out, see id., 509 U.S. 23 at 510-11, and the trier of fact must then determine, after a full 24 trial, whether the plaintiff has sustained its burden of proving by a prima Nothing in Teamsters suggests that these Nor are there differences with respect to the facie If the defendant fails to rebut the case, the -28- presumption arising from an On the other hand, if the 1 preponderance of the evidence the ultimate fact at issue. See United 2 States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 3 (1983) (individual plaintiff must prove intent to discriminate); 4 Teamsters, 431 U.S. at 336 (Government in pattern-or-practice case 5 must 6 standard 7 originally 8 available to contribute to the persuasive force of the plaintiff s 9 proof prove on that intentional operating procedure. ). supported the discrimination the ultimate Of plaintiff s issue. See was course, prima Reeves v. the the facie defendant s evidence case Sanderson that remains Plumbing 10 Products, Inc., 530 U.S. 133, 143 (2000); Burdine, 450 U.S. at 256 11 n.10. 12 At the relief stage, however, a special rule applies in pattern-or- 13 practice cases. Once the Government or a class has proven by a 14 preponderance of the evidence a policy of intentional discrimination 15 and seeks relief for individual victims of that policy, [t]he proof 16 of the pattern or practice supports an inference that any particular 17 employment decision, during the period in which the discriminatory 18 policy was in force, was made in pursuit of that policy. . . . [T]he 19 burden then rests on the employers to demonstrate that the individual 20 applicant was denied an employment opportunity for lawful reasons. 21 Teamsters, 431 U.S. at 362 (citing Franks, 424 U.S. at 773 n.32). 22 Wal-Mart Stores, 131 S. Ct. at 2552 n.7, the inference was explicitly -29- In 1 2 called a rebuttable inference. 15 The Intervenors prima facie case. The statistical disparities 3 supporting the unchallenged finding that the Exams has a racially 4 disparate impact also served to establish a prima facie case on the 5 Intervenors claim of a pervasive pattern of discriminatory treatment, 6 especially in light of the long-standing pattern of low minority 7 participation in the FDNY. See Hazelwood School District, 433 U.S. at 8 307-08 ( Where gross statistical disparities can be shown, they alone 9 may in a proper case constitute prima facie proof of a pattern or 10 practice of discrimination. ). 11 Intervenors presented a prima facie case of discriminatory treatment. 12 The City s rebuttal. The City does not dispute that the The City produced evidence attempting to 13 rebut the inference that it had acted with a discriminatory intent. 14 It articulated a nondiscriminatory reason for using the challenged 15 exams - the fact that they were facially neutral. 16 relied on its contention that the exams had been prepared in an 17 attempt 18 Defendants Statement of Disputed Material Facts ¶ 1. 19 this contention, the City proffered detailed declarations of Matthew 20 Morrongiello, a Tests and Measurement Specialist in the City s DCAS to comply with acceptable 15 test The City also development methods. In support of This rebuttable inference arising at the relief stage, after proof by preponderance of the evidence at the liability stage of the existence of a pattern or practice of intentional discrimination, should not be confused with the rebuttable presumption arising at the threshold of the liability stage, after presentation of only a prima facie case of such a pattern or practice. -30- 1 who analyzed Exam 7029, and Alberto Johnson, a DCAS employee who was 2 primarily responsible for preparing Exam 2043. See Disparate Impact 3 Op., 637 F. Supp. 2d at 100. 4 that they made to develop job-related exams.16 5 to 6 recruitment. 7 its The efforts District to Their affidavits detailed the efforts increase Court s minority rejection of The City also pointed hiring the through City s targeted rebuttal. The 8 District Court s grant of summary judgment to the Intervenors on their 9 pattern-or-practice discriminatory treatment claim might be thought to 10 mean either of two things. 11 concluded 12 production. 13 on the available record, no reasonable fact-finder at trial could fail 14 to find that the City maintained a pervasive policy of intentional 15 discriminatory treatment. 16 latter theory. 17 their motion is captioned THERE IS NO GENUINE ISSUE OF FACT AS TO THE 18 CITY OF NEW YORK S DISPARATE TREATMENT OF PLAINTIFFS-INTERVENORS UNDER 19 TITLE VII, AND PLAINTIFFS-INTERVENORS ARE ENTITLED TO JUDGMENT AS A 20 MATTER OF LAW. Memorandum of Law in Support of Motion for Summary 21 Judgment and in Opposition to Individual Defendants Motion for that the City On the one hand, the Court might have had failed to satisfy its burden of On the other hand, the Court might have concluded that, The Intervenors argued their motion on the One section of their memorandum of law in support of 16 The District Court s ruling against the City on the Government s disparate impact claim discussed these efforts at length. See Disparate Impact Op., 637 F. Supp. 2d at 100-08. -31- 1 Qualified Immunity at 8. That memorandum does not contend that the 2 City failed only to satisfy its burden of production. 3 We think it is clear that the District Court granted summary 4 judgment for the Intervenors because it is believed the City had not 5 satisfied its burden of production. 6 employer fails to respond to plaintiffs prima facie case, or if it 7 fails to carry its burden to dispel the prima facie case, then the 8 court must find the existence of the presumed fact of unlawful 9 discrimination and must, therefore, The Court stated, If the render a verdict for the 10 plaintiff. Disparate Treatment Op., 683 F. Supp. 2d 252 (quoting 11 Hicks, 509 U.S. at 509-10 n.3 (emphases in Hicks)). 12 added: 13 14 15 16 17 18 19 20 21 22 23 The Court then What is important to note is that in either case, although the ultimate question as to the employer s state of mind is technically left unresolved - since the fact-finder has not found by a preponderance of the evidence that the employer acted with discriminatory purpose - the employer s failure to discharge the obligation imposed on it by the burden-shifting framework mandates a finding of unlawful discrimination. Id. (Citing Hicks, 509 U.S. at 506). The District Court deemed the City s rebuttal deficient for four 24 somewhat related reasons. 25 burden 26 Intervenors statistics and faulted the City because it did not 27 attempt to meet or undermine the Intervenors statistical evidence. 28 Disparate Treatment Op., 683 F. Supp. 2d at 253. 29 alone, the Court stated, was a sufficient reason to grant summary of production First, the Court thought that the City s required it -32- specifically to challenge the This failure 1 judgment to the Intervenors. See id. 2 was too narrow a view of how a defendant may rebut a prima facie case. 3 On the Intervenors motion for summary judgment, the issue for the 4 District 5 sufficiently attacking the Intervenors statistics. 6 issue was whether the City s rebuttal was sufficient to satisfy its 7 burden of producing evidence to challenge the inference of intentional 8 discrimination arising from the Intervenors prima facie case. Court was not whether As we have explained above, this the City had produced evidence Instead, the Second, the District Court rejected the evidence the City produced 9 10 to 11 inapposite. Disparate Treatment Op., 683 F. Supp. 2d at 266. 12 Court s 13 supplied in affidavits) was inappropriate. 14 defendant has satisfied its burden of production can involve no 15 credibility assessment. Hicks, 509 U.S. at 509. Furthermore, [t]he 16 defendant need not persuade the court that it was actually motivated 17 by the proffered reasons. Burdine, 450 U.S. at 254. 18 satisfy its burden assessment of of production credibility (an as either incredible assessment of or The information Determining whether a Nor was the City s rebuttal evidence inapposite. All of it was 19 properly presented in an attempt to show that the City lacked a 20 discriminatory 21 disparate impact and were determined by the District Court not to be 22 sufficiently job-related to justify their use, see Disparate Impact 23 Op., 637 F. Supp. 2d at 110-32, the City was entitled to produce 24 whatever intent. evidence it Although had to the rebut -33- Exams the produced prima a facie racially case of 1 discriminatory treatment. That evidence properly included a showing 2 that the Exams were facially neutral, see Raytheon Co. V. Hernandez, 3 540 U.S. 44, 51-52 (2003) (Under the disparate-treatment framework 4 . . . a neutral . . . policy is, by definition, a legitimate 5 nondiscriminatory reason. ), the efforts (albeit unsuccessful) to 6 prepare job-related exams,17 see NYC Guardians, 630 F. 2d at 112 7 (noting employer s extensive efforts to . . . develop a test they 8 hoped would have the requisite validity ).18 and the efforts at 9 minority recruitment, see Washington v. Davis, 426 U.S. 229, 246 17 The District Court expressed the view that the subjective motives of the people who designed the Exams are only circumstantially relevant to the question of whether the City s decision to use the Exams as screening and ranking devices was discriminatory. Disparate Treatment Op., 683 F. Supp. 2d at 254 (emphases in original). But the City was entitled to produce evidence with that circumstantial relevance to rebut the claim that it used the Exams with discriminatory intent. The Intervenors contend that the City s rebuttal evidence concerning the preparation of the challenged exams is irrelevant because the test-makers affidavits do not explain what the Intervenors assert is the adverse action - here, the continued use of the challenged exams. Brief for Intervenors at 128 (internal quotation marks omitted). However, the adverse action, for which the employer must supply a nondiscriminatory reason, is the failure to hire minority firefighters; the use of the Exams is a circumstance that the Intervenors contend shows that the city acted with discriminatory intent. That contention will be available at trial. 18 It defies understanding why the City would think it a virtue that [t]he individuals who were principally responsible for developing Examinations 7029 and 2043, did not, prior to developing the Examinations[,] consult with counsel or review the [NYC] Guardians decision, Defendants Statement of Disputed Material Facts ¶ 2. The District Court characterized NYC Guardians as the governing case in this Circuit for assessing the validity of employment tests. Disparate Impact Op., 637 F. Supp. 2d at 108. -34- 1 (1976) ( [A]ffirmative efforts [of municipal employer] to recruit 2 black 3 discriminated . . . . ). officers . . . negated any inference that [employer] 4 The District Court also appeared to consider the City s evidence 5 inapposite because, in the Court s opinion, the City was not entitled 6 to 7 Treatment Op., 683 F. Supp. 2d at 253. 8 rebuttal burden runs directly counter to the Supreme Court s statement 9 in construct Teamsters a competing that account of the employer s explanation for 10 nondiscriminatory 11 the its behavior. Disparate This view of the City s burden is apparently to provide a discriminatory result. 431 U.S. at 360 n.46. 12 Third, the District Court viewed the City s opposition to the 13 Intervenor s summary judgment motion as an improper effort to dispute 14 the issue of discriminatory intent that the Court said would arise at 15 the end of any Title VII disparate-treatment inquiry. Disparate 16 Treatment Op., 683 F. Supp. 2d at 252 (emphasis in original). 17 was improper, the Court thought, because if defendants were allowed 18 to sustain or circumvent their burden of production by invoking the 19 ultimate issue of intent, the burden-shifting structure would become 20 a nullity. Id. at 253. 21 We disagree. This A defendant seeking to defeat, Teamsters, 431 U.S. 22 at 360, a prima facie case of intentional discrimination at the 23 rebuttal stage has every right to produce evidence to show that it did 24 not have such an intent. Although a conclusory denial will not -35- 1 suffice, evidence that tends to support a denial is always 2 permissible. 3 employer may satisfy its burden of production by provid[ing] a 4 nondiscriminatory 5 result, 431 U.S. at 324 n.46, it was offering an example of evidence 6 that ws not disqualified as a rebuttal just because such evidence was 7 also relevant to the ultimate issue of discriminatory intent.19 When the Supreme Court said in Teamsters that the explanation for the apparently discriminatory 8 Producing at the rebuttal stage some evidence bearing on the 9 ultimate issue of discriminatory intent does not render the burden- 10 shifting structure a nullity. That structure serves the useful 11 purpose of obliging the employer to identify a nondiscriminatory 12 reason for its challenged action. 13 otherwise fails to produce evidence that meets the inference arising 14 from the plaintiff s prima facie case, the employer loses. See Hicks, 15 509 U.S. at 509. 16 prima facie case moves a pattern-or-practice claim on to trial on the 17 merits, at which time the plaintiff has to prove by a preponderance of 18 evidence that the real reason for the challenged action was an intent 19 to discriminate. 20 just because the employer s rebuttal not only meets the prima facie 21 case but is also relevant to the ultimate issue at trial. If the employer fails to do so or On the other hand, producing evidence that meets the The burden-shifting scheme has not been impaired 19 Nothing in The District Court seems to have recognized this point by stating that the presumption arising from the prima facie case obligates the employer to come forward with an explanation or contrary proof. Disparate Treatment Op., 683 F. Supp. 2d at 252. -36- 1 Teamsters obliges an employer to withhold its evidence negating a 2 discriminatory intent until that trial occurs. 3 Fourth, the District Court faulted the City for attempt[ing] to 4 circumvent its burden of production entirely by arguing that the 5 Intervenors have not proved that the City harbored a subjective intent 6 to discriminate against black applicants. Disparate Treatment Op., 7 683 F. Supp. 2d at 251. 8 the Intervenors for failure to produce direct evidence 9 relevant decisionmakers culpable mental state. Id. (emphasis added). The Court understood the City to be faulting of the 10 That was not what the City said. 11 Intervenors 12 treatment claim, the City stated, Plaintiffs-Intervenors have not, 13 either directly or by inference, provided facts which would prove an 14 intent to discriminate. Defendants Memorandum of Law in Opposition 15 to Plaintiffs-Intervenors Motion for Summary Judgment at 2 (emphasis 16 added). 17 facts giving rise to an inference of intentional discriminatory 18 treatment, the City was entitled to contend in rebuttal that the 19 Intervenors had failed to present such facts, even though the District 20 Court had found that their prima facie case was sufficient. motion for summary In its memorandum opposing the judgment on the discriminatory Correctly understanding that a prima facie case requires 21 At trial on the ultimate issue of whether there was a policy of 22 discriminatory intent, the fact-finder will consider, among other 23 things, 24 relatedness of the Exams should have been apparent to the City and whether, as the Intervenors -37- contend, the lack of job- 1 whether the City s use of the Exams, once their racially disparate 2 impact was known, proves, in light of the history of low minority 3 hiring, that the City used the Exams with the intent to discriminate. 4 Prior to that trial, the City provided a sufficient rebuttal to the 5 Intervenors prima facie case, and the granting of the Intervenors 6 motion for summary judgment was error. 7 III. Dismissal of Claims Against Mayor Bloomberg and Commissioner 8 Scoppetta 9 The District Court dismissed the Intervenors Title VII claim 10 against Mayor Bloomberg and former Commissioner Scoppetta for failure 11 to state a claim on which relief could be granted, see Fed. R. Civ. P. 12 12(b)(6); dismissed the Section 1981 and Section 1983 claims against 13 these officials on the ground of qualified immunity; and dismissed the 14 state law claims against these officials on the ground of official 15 immunity. See Disparate Treatment Op., 683 F. Supp. 2d at 243-45, 269- 16 72.20 17 rulings, but not the Rule 12(b)(6) ruling, which was plainly correct, 18 see Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) 19 (individuals, as distinguished from employing entitles, not liable 20 under Title VII). 21 22 On their cross-appeal, the Intervenors challenge the immunity Qualified immunity for federal law claims. The standards for qualified immunity are well settled. See Anderson v. Creighton, 483 20 The District Court certified its dismissal ruling for immediate appeal under Fed. R. Civ. P. 54(b). -38- 1 U.S. 635, 640 (1987); Mitchell v. Forsyth, 472 U.S. 511, 530-36 2 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 3 The District Court began its immunity analysis by observing that 4 to hold a supervisory official liable for violating § 1981 or the 5 Equal Protection Clause, a plaintiff must prove that the defendant 6 acted with discriminatory purpose. Disparate Treatment Op., 683 F. 7 Supp. 2d at 270 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). 8 The Intervenors theory of liability of the Mayor and the Commissioner 9 was that, although neither had responsibility for preparation of the 10 Exams, they both condoned their use, with awareness of their disparate 11 impact, and did so despite warnings from the City s Equal Employment 12 Practices Commission to take corrective action. 13 theory, the District Court stated, The Intervenors have submitted 14 copious evidence from which a reasonable fact-finder could infer that 15 the Mayor and Commissioner harbored an intent to discriminate against 16 black applicants . . . . Id. 17 officials qualified immunity defense because it would not have been 18 clear to them from the governing legal precedent that such conduct 19 violated § 1981 or the Equal Protection Clause. Id. With respect to this Nevertheless, the Court upheld the 20 The Court did not mean that a public official would not have known 21 that the official would violate Section 1981 or the Equal Protection 22 Clause by intentionally taking adverse employment action on the basis 23 of race. That obvious proposition has been clear at least since 1976, 24 see Washington, 426 U.S. at 239-41. -39- What would not be clear to the 1 officials, the District Court stated, was that the Title VII burden- 2 shifting analysis would apply to determine whether an individual, as 3 opposed to a governmental employer, is liable for discrimination under 4 either § 1961 or the Equal Protection Clause. Disparate Treatment 5 Op., 683 F. Supp. 2d at 270 (emphasis in original). 6 In grounding qualified immunity on this rationale the District 7 Court erred. The knowledge of a standard governing the conduct of 8 public officials, required to defeat a claim of qualified immunity, is 9 knowledge of primary conduct - action of an official that would 10 violate constitutional limitations. It has nothing to do with 11 secondary a 12 violation. Cf. Republic of Austria v. Altmann, 541 U.S. 677, 722 13 (2004) (Kennedy, J., with whom Rehnquist, C.J. and Thomas, J., join, 14 dissenting) (distinguishing, for purposes of retroactivity, between 15 statutes that regulate the secondary conduct of litigation and not 16 the underlying primary conduct of the parties ) (quoting Hughes 17 Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 951 18 (1997). 19 current or prospective public employees on the basis of race, the 20 official is not shielded by qualified immunity simply because the 21 official might have been unaware that at trial a burden-shifting 22 scheme would regulate the conduct of ensuing litigation. 23 constitutional right to be clearly established, its contours must be 24 sufficiently clear that reasonable official would understand that what conduct of litigation of claim of constitutional If a public official intentionally acts to the detriment of -40- For a 1 he is doing violates that right. Hope v. Pelzer, 536 U.S 730, 739-41 2 (2002) (emphases added) (internal quotation marks omitted).21 3 Having rejected the District Court s stated reason for dismissing 4 the federal claims on the ground of qualified immunity, we next 5 consider whether the record supports dismissal of these claims on the 6 ground that the Intervenors have not shown a violation of a federal 7 right. 8 immunity, see Siegert v. Gilley, 500 U.S. 226, 232 (1991), accepting 9 instead the opportunity created by Pearson v. Callahan, 555 U.S. 223, 10 236 (2009), to decide first whether the right alleged to have been 11 violated was clearly established. See Disparate Treatment Op., 683 F. 12 Supp. 2d at 270 n. 32. The District Court did not reach that component of qualified 13 In considering whether the record would have permitted dismissal on 14 the ground that the officials had not violated a federal right, we 15 encounter two conflicting statements in the District Court s opinion. 16 On the one hand, the Court referred to copious evidence from which 17 a reasonable fact-finder could infer that the officials harbored an 18 intent 19 Treatment Op., 683 F. Supp. 2d at 270. 20 stated that there was no evidence that directly and unmistakably to discriminate against black 21 applicants. See Disparate On the other hand, the Court In any event, Title VII burden-shifting procedures have previously been applied to suits under both Section 1981, see Hudson v. International Business Machines Corp., 620 F.2d 351, 354 (2d Cir. 1980), and Section 1983, see Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). -41- 1 2 proves that fact. Id. We question both observations. As to the second one, there is no 3 requirement that an intent to discriminate must be proved directly 4 and mistakably. 5 discriminatory intent need be proven only by a preponderance of the 6 evidence. See Teamsters, 431 U.S. at 336. 7 of mind, may be proved by circumstances reasonably supporting an 8 inference of the requisite intent. See, e.g., Blue v. Koren, 72 F.3d 9 1075, 184 (2d Cir. 1995) (requiring particularized evidence of direct 10 or circumstantial facts bearing on improper motive in order to resist 11 defendant s motion for summary judgment). 12 Like any element in a civil case, the element of And intent, like any state At the same time, we cannot agree with the District Court that the 13 record revealed 14 discriminate. 15 [P]urposeful discrimination require more than intent as volition or 16 intent 17 decisionmaker s undertaking a course of action because of, not merely 18 in spite of [the action s] adverse effects upon an identifiable 19 group. Iqbal, 556 U.S. at 676-77 (internal quotation marks and 20 citation omitted; brackets in original); see Personnel Administrator 21 v. Feeney, 442 U.S. 256, 279 (1979) (noting that discriminatory 22 purpose implies not just that the decisionmaker possessed intent as 23 awareness of consequences but that he selected or reaffirmed a 24 particular course of action at least in part because of, not merely in as copious evidence As Supreme awareness the of of Court consequences. -42- the officials has It recently instead intent to observed, involves a 1 spite of, its adverse effects upon an identifiable group ) (internal 2 quotation marks omitted). 3 officials awareness of the disparate impact of the Exams, and they do 4 not dispute such awareness. 5 that they undertook a course of action because of that impact requires 6 further consideration. 7 The record contains ample evidence of the Whether it contains sufficient evidence Most of the evidence cited by the Intervenors to satisfy their 8 burden of resisting the officials motion for summary judgment 9 concerns steps the officials did not take, rather than a course of 10 action they undertook. 11 failure to have the Exams validated prior to their continued use and 12 their failure to move promptly to develop a new valid exam. 13 we do not doubt that the failure of senior officials to act can 14 support an inference of discriminatory intent in some circumstances, 15 particularly 16 unconstitutional 17 Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975) (Corrections 18 Commissioner liable for unwarranted solitary confinement of inmate), 19 we do not believe that the cited omissions of the Mayor or the 20 Commissioner suffice to support a reasonable inference that they 21 declined to act because they wanted to discriminate against black 22 applicants. where they For example, the Intervenors point to the are consequences, in see, a position e.g., to United avoid States Although likely ex rel. 23 The principal evidence of a course of action arguably undertaken 24 for the purpose of discrimination is the decision to continue using -43- 1 the results of the Exams with awareness of their disparate impact. 2 Although we disagree with the District Court that there was copious 3 evidence of the officials intent to discriminate, we cannot say that 4 a reasonable fact-finder might not infer, from all the evidence, that, 5 with respect to the Commissioner heading the FDNY, his involvement in 6 the decision to continue using the results of the Exams indicated an 7 intent to discriminate. 8 draw such an inference, but our task is the more limited one of 9 determining whether such an inference could reasonably be made by the Were the decision ours to make, we would not 10 fact-finder. 11 does 12 inference of intent to discriminate. 13 imposed upon the chief executive officer of a city of eight million 14 people, more evidence would be needed to permit a trier to find that 15 the decision of one municipal department to continue using the results 16 of the Exams supports an inference of discriminatory intent on the 17 part of the Mayor. 18 not With respect to the Mayor, however, we think the record suffice to permit a fact-finder to draw a reasonable In light of the myriad duties Official Immunity for state law claims. The common-law doctrine of 19 official immunity shields public employees from liability for 20 discretionary actions taken during the performance of governmental 21 functions and is intended to ensure that public servants are free to 22 exercise their decision-making authority without interference from the 23 courts. Valdez v. City of New York, 18 N.Y.3d 69, 75-76 (2011) 24 (municipal immunity). Here, as explained by the District Court, -44- 1 Disparate Treatment Op., 683 F. Supp. 2d at 270-72, the decision of 2 two 3 firefighters from eligibility lists based on the Exams involved 4 discretionary decisionmaking. of the City s highest-ranking officials to continue hiring 5 We therefore affirm the District Court s decision to dismiss 6 federal and state law claim against Mayor Bloomberg on the grounds of 7 qualified and official immunity, affirm the decision to dismiss state 8 law claims against Commissioner Scoppetta on the ground of official 9 immunity, but vacate the decision to dismiss federal law claims 10 against Commissioner Scoppetta on the grounds of qualified immunity. 11 IV. Scope of the Injunction 12 [T]he scope of a district court s remedial powers under Title VII 13 is determined by the purposes of the Act. Teamsters, 431 U.S. at 364. 14 Congress enacted Title VII to achieve equal employment opportunities 15 and to eliminate those discretionary practices and devices which have 16 fostered racially stratified job environments to the disadvantage of 17 minority citizens. McDonnell Douglas, 411 U.S. at 800. 18 deliberately gave the district courts broad authority under Title VII 19 to fashion the most complete relief possible. Local 28 Sheet Metal 20 Workers International Ass n v. EEOC, 478 U.S. 421, 465 (1986). 21 liability for racial discrimination has been established, a district 22 court has the duty to render a decree that will eliminate the 23 discretionary 24 discrimination in the future. See Albemarle Paper Co., 422 U.S. at effects of past discrimination -45- and Congress prevent Once like 1 418; Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 2 1149 (2d Cir. 1991). 3 relief is not unlimited, see Bridgeport Guardians, 933 F.2d at 1149, 4 we have held that, when it appear that the employer has discriminated 5 prior to the use of the challenged selection procedure, then it may 6 also be appropriate to fashion some form of affirmative relief, on an 7 interim 8 Guardians, 630 F.2d at 108. 9 The and Although a court s power to fashion appropriate long-term District Court basis, to expressed remedy the view past that violations, its NYC conclusion 10 concerning the need for close and continuing supervision is as 11 applicable to City s violation of the disparate impact provisions of 12 Title VII as it is to the City s intentional discrimination against 13 black firefighter candidates. City of New York, 2011 WL 4639832, at 14 *11 (E.D.N.Y. Oct. 5, 2011). 15 somewhat extending it, suggest that we should uphold all provisions of 16 the injunction solely on the basis of the unchallenged disparate 17 impact ruling. The City contends that the District court exceeded its 18 discretion by entering an injunction that goes beyond the scope of the 19 Title VII disparate impact violation. 20 provisions of the injunction that may be sustained as relief for its 21 disparate impact liability are those that require a lawful method of 22 testing and a limitation on interim hiring until a valid exam is The Intervenors endorse this view and, -46- In the City s view, the only 1 prepared.22 2 warranted in the absence of a valid finding of a pattern or practice 3 of intentional discrimination, and perhaps not even then. 4 Any more intrusive remedies, the City argues, are not We disagree with the positions of both sides. We think that in 5 some respects the injunction contains provisions that go beyond what 6 would be appropriate to remedy only the disparate impact liability, 7 and, because we have vacated the ruling granting summary judgment for 8 the Intervenors on the disparate treatment claim, we will uphold only 9 those provisions of the injunction that are appropriate as relief for 10 the City s liability on the Government s disparate impact claim. 11 the other hand, whatever the dimensions of an appropriate remedy for 12 a straightforward case involving only the disparate impact of a hiring 13 exam, considerably more relief is warranted in this case in light of 14 the distressing pattern of limited FDNY minority hiring. 15 the 1973 determination that a hiring exam was invalid because of a 16 racially disparate impact, see Vulcan Society of New York City Fire 17 Dep t, 360 F. Supp. at 1269, the City s percentage of black entry- 18 level firefighters has remained at or below 4 percent for several 19 decades, and the current percentage of 3.4 percent compares woefully 20 to the 16.6 percent achieved by the city s Police Department and the 21 61.4 percent achieved by the City s Corrections Department. 22 On Even after Although We note that the District Court recently approved the City s use of the results of a new exam for entry-level firefighters. See United States v. City of New York, No. 07-CV-2067, 2012 WL 4503253 (Sept. 28, 2012). -47- 1 some provisions of the injunction cannot be justified in the absence 2 of a finding of discriminatory intent, many provisions are well within 3 the District Court s discretion as a remedy for discriminatory impact 4 liability in view of the history of minority hiring by the FDNY and 5 the City s recalcitrance in undertaking remedial steps. 6 The General Terms of the Injunction enjoin the use of the 7 challenged exams and prospectively prohibit discrimination against 8 black 9 firefighter. or Hispanic See applicants Injunction for Op., the 2011 position WL of 6131136, at entry-level *4. The 10 Specific Remedial Measures section of the Injunction focuses on five 11 substantive areas: Firefighter Test Development and Administration, 12 Firefighter Candidate Recruitment, Attrition Mitigation Plan and 13 Reassessment of Entry-Level Firefighter Selection, Post-Examination 14 Firefighter Candidate Screening, and EEO Compliance Reform. Id. at *4- 15 *13. 16 We describe the specific provisions of the injunction in 17 abbreviated form.23 Paragraph 1424 bars the use of Exams 7029, 2043, 18 and 6019,25 and paragraph 15 bars the use of any exam with a disparate 19 impact against blacks or Hispanics that is not job-related. 23 The wording of these summary statements is not to be understood as varying the specific terms of the injunction. 24 Paragraphs 1-13 define terms used in the injunction. 25 The injunction s prohibition of the use of Exam 6019 replaces the interim permission previously given to use that exam. -48- 1 2 Paragraph 16 requires approval of the Monitor before taking any step in the hiring process. 3 Paragraph 4 discrimination. 5 Hispanic firefighter candidates. 6 requires 7 discrimination; the second sentence requires the elimination of all 8 policies and practices that have a discriminatory impact on black and 9 Hispanic firefighter candidates. 10 11 17 the Paragraph 20 bars retaliation for complaining against Paragraph 18 bars discrimination against black or elimination requires The first sentence of paragraph 19 of all compliance vestiges with the of intentional instuction of the Monitor. 12 Paragraph 21 specifies, with certain exceptions, that all required 13 submissions be signed by the fire Commissioner and the Corporation 14 Counsel and be reviewed and approved by the Mayor. 15 Paragraphs 22-24 require prior notice to the Monitor and the 16 parties concerning new hiring and details of the preparation of new 17 eligibility lists. 18 Paragraphs 25-30 require recruitment efforts, including the hiring 19 of a recruitment consultant, the preparation of a recruitment report, 20 and either compliance with the consultant s recommendations or an 21 explanation for not following them. 22 23 24 Paragraphs 31-36 require steps to mitigate attrition during the selection process. Paragraphs 37-46 require various steps to be taken after exams are -49- 1 administered. Paragraphs 37 and 38 require a detailed written record 2 of any oral conversations that concern a candidate. 3 requires designation of a senior official to enforce the writing 4 requirement. 5 conducting background investigations of candidates. Paragraph 39 Paragraphs 40 and 41 require written procedures for 6 Paragraphs 47-51 require various steps, including appointment of an 7 EEO consultant, to assure compliance with equal employment opportunity 8 requirements. 9 Paragraphs 52 and 53 require development of and compliance with a 10 document retention policy. Paragraphs 54 and 55 require discovery 11 through document production and deposition availability to assure 12 compliance with the injunction. 13 Paragraph 56 authorizes sanctions for noncompliance. 14 Paragraphs 57-77 appoint Mark S. Cohen as Monitor, specify his 15 16 duties, and authorize necessary staff. Paragraphs 78-80 provide for the retention of jurisdiction until at 17 least January 1, 2022. Paragraphs 81 and 82 require the City to pay 18 costs, attorney s fees, and all expenses. 19 After reviewing these provisions in light of the unchallenged 20 disparate impact finding, the absence (as yet) of a proper disparate 21 treatment finding, the FDNY s record of minimal minority hiring, and 22 the 23 fashioning appropriate 24 components of District Court s the broad, relief, but injunction we are -50- not limitless, conclude that appropriate, but discretion the in principal that several 1 modifications must be made. 2 In addition to proscribing use of the invalid exams and preparation 3 of valid exams, the District Court was entirely warranted in ordering 4 significant affirmative relief (although declining to order any hiring 5 quota), including appointing a Monitor to oversee the FDNY s long- 6 awaited progress toward ending discrimination, ordering development of 7 policies to assure compliance with anti-discrimination requirements, 8 requiring efforts to recruit minority applicants, ordering steps to 9 lessen minority attrition, ordering a document retention policy, and 10 requiring comprehensive review of the entire process of selecting 11 entry-level firefighters. However, we believe several provisions must 12 be modified or deleted, primarily because of our vacating the grant of 13 summary judgment on the disparate treatment claim. 14 Paragraph 19 must be modified to delete the first sentence, which 15 is based on a finding of intentional discrimination that we have 16 vacated subject to further proceedings. The second sentence generally 17 barring policies and practices with a disparate impact must also be 18 modified to bar only those policies and practices not job-related or 19 required by business necessity. 20 Paragraph 21 must be modified to eliminate approval of submissions 21 by the Corporation Counsel, who is not a party to this litigation, and 22 the 23 understand the District Court s concern in litigation against the City 24 to have the City s chief executive officer and chief legal officer Mayor, whose dismissal we have -51- affirmed. Although we can 1 assume direct responsibility for all submissions, these requirements 2 are an excessive intrusion into the duties of officials charged with 3 citywide responsibilities, in the absence of either their liability or 4 an indication that imposing requirements on the head of the relevant 5 department will be inadequate. Paragraphs 26-29 must be modified to eliminate the requirement of 6 7 an outside recruitment consultant and, instead, to assign the 8 consultant s tasks to appropriate City employees. Although the record 9 warrants performance of these tasks, it does not require burdening the 10 City with the extra expenses of an outside consultant. In the event 11 that the Monitor determines that designated City employees are not 12 adequately performing their functions, he may apply to the Court for 13 designation of an outside consultant. 14 modified, for the same reason applicable to paragraph 21, to eliminate 15 the requirement of the Mayor s approval. Paragraph 29 must be further 16 Paragraphs 34-36 must be modified, for the same reason applicable 17 to paragraph 21, to eliminate the Mayor s obligations and substitute 18 those of the Fire Commissioner. 19 Paragraphs 37-39 must be eliminated. The requirement of 20 contemporaneous written records of all communications concerning 21 hiring is far too intrusive, at least in the absence of a finding of 22 intentional discrimination. 23 24 Paragraphs 40 and 41 must be modified to eliminate, as too intrusive, the detailed requirements for CID and PRB policies and -52- 1 procedures; the requirement of developing written procedures that are 2 subject to the Monitor s approval remains. 3 4 Paragraph 42 must be eliminated, for the same reason applicable to paragraphs 26-29. 5 Paragraph 43 must be eliminated as imposing too great a burden on 6 the Monitor, although the Monitor will remain eligible to attend any 7 PRB meeting. 8 Paragraph 45 must be modified, for the same reason applicable to 9 paragraph 21, to eliminate the requirement of the Mayor s signature 10 and certification. 11 Paragraphs 47-51 must be modified, for the same reason applicable 12 to Paragraphs 26-29, to eliminate the requirement of an outside EEO 13 consultant and to assign the consultant s tasks to the FDNY s EEO 14 Office. In the event that the Monitor determines that designated City 15 employees are not adequately performing their functions, he may apply 16 to the Court for designation of an outside consultant. 17 must be further modified, for the same reason applicable to Paragraph 18 21, 19 certification. 20 21 to eliminate the requirement of the Mayor s Paragraph 50 signature and Paragraph 54 must be modified to change any additional document to any non-privileged documents. 22 Paragraphs 66 and 68 must be modified to change short notice to 23 reasonable notice, and paragraph 67 must be modified to change one 24 week to 30 days. -53- 1 Paragraph 71 must be modified to add The City may apply to the 2 Court, upon reasonable notice to the parties, to end the employment of 3 some 4 demonstration that the City has satisfied its burden of proof as 5 specified in modified Paragraph 78. 6 or all of the Monitor s staff and consultants upon a Paragraph 78 must be modified to change and nor to nor in 7 subparagraph (a), and to eliminate 8 subparagraphs (e) and (f) concerning intentional discrimination. 9 Paragraph 79 must be modified in subparagraph (a) to change 2022" 10 to 2017, , and subparagraph (b) must be modified to change second of 11 the City s next two civil service hiring lists to City s next civil 12 service hiring list. 13 warranted in the absence of a finding of intentional discrimination.26 14 Paragraph 80 must be eliminated. The City is entitled to undertake 15 to satisfy its burden of proof to be relieved of the injunction s 16 prospective requirements whenever it believes it can do so. An extended retention of jurisdiction is not 17 Paragraph 83 must be modified to change and disparate treatment 18 claims that were in line 3 to claim that was, ; to change and 19 Disparate Treatment Opinions in lines 4-5 to Opinion ; and, to 26 We note that the District Court previously stated, If after the bench trial the court concludes that the City has shown that, among other things, it has ended its discriminatory hiring practices and taken sufficient affirmative measures to end the policies and practices that have perpetuated the harmful effects of those discriminatory hiring practices and procedures, the court will relinquish jurisdiction. City of New York, 2011 WL 4639832, at *15. -54- 1 change those claims in line 8 to that claim. 2 Although we have made several modifications, primarily in view of 3 the fact that a proper finding of intentional discrimination has not 4 been made, we leave in place the many provisions that the District 5 Court has wisely required in order not only to remedy the disparate 6 impact of the challenged exams and but also to put the FDNY on a 7 course toward future compliance with Title VII. 8 As modified, the injunction is affirmed.27 9 V. The City s Claim for Reassignment to a Different Judge 10 The City contends that, in the event of a remand, the case should 11 be reassigned to a different district judge because of what it alleges 12 is bias on the part of Judge Garaufis. 13 rarely imposed, see United States v. Jacobs, 955 F.2d 7, 10 (2d Cir. 14 1992) (reassignment is an extraordinary remedy reserved for the 15 extraordinary 16 occasionally warranted, even in the absence of bias, to avoid an 17 appearance 18 Reapportionment v. Griffin, 958 F.2d 24, 26 (2d Cir. 1992) ( firmness 19 of 20 appearance of justice ); United States v. Robin, 553 F.2d 8, 10 (2d 21 Cir. 22 reassignment is advisable to preserve the appearance of justice 23 . . . . ). judge s 1977) of case ) partiality, views (in (internal see warranted banc) That is an extreme remedy, quotation Hispanics reassignment ( Absent proof 27 of marks for on omitted), Fair & remand personal but Equitable to bias assure . . . We assume the District Court will enter a new injunction reflecting the modifications we have required. -55- 1 Although the District Judge expressed several criticisms of the 2 FDNY, we see no basis to require reassignment of the entire case to a 3 different judge. 4 case thus far warrants a limited form of reassignment. 5 summary judgment ro the Intervenors on their pattern-or-practice 6 discriminatory treatment claim, Judge Garaufis stated that the City s 7 rebuttal evidence in opposition to that claim was either incredible 8 or inapposite. Disparate Treatment Op., 683 F. Supp. 2d at 266. 9 However, one aspect of the Judge s handling of the This assessment is cause for concern for two reasons. In granting First, in 10 considering the sufficiency of the City s rebuttal evidence, the 11 District Court s task was only to determine whether the City s 12 rebuttal evidence satisfied the City s burden of production. 13 Court went beyond that task and granted summary judgment to the 14 Intervenors. Although summary judgment at the preliminary stage might 15 be proper in a rare case, the Intervenors have not cited any case, and 16 we have found none, in which an employer s rebuttal evidence in a 17 discriminatory treatment case resulted in a summary judgment for the 18 plaintiff. 19 District Court to make any assessment of credibility in considering 20 the sufficiency of the City s rebuttal to the Intervenors prima facie 21 case. See Hicks, 509 U.S. at 509 (determining whether a defendant has 22 satisfied 23 assessment ). The Court not only assessed credibility but did so after 24 considering only affidavits. But the Second, and more important, it was improper for the its burden of production -56- can involve no credibility 1 We have no doubt that Judge Garaufis is an entirely fair-minded 2 jurist who could impartially adjudicate the remaining issues in this 3 case, but we think a reasonable observer would have substantial doubts 4 whether the judge, having branded the City s evidence incredible, 5 could thereafter be impartial in assessing the truth of conflicting 6 evidence at a bench trial, the parties having waived a jury trial. 7 course, if any judge were to find a witness s testimony incredible 8 when appropriately acting as a bench trial finder of fact, that would 9 not prevent that judge from determining the facts at future bench 10 trials at which that same witness will testify, even though a similar 11 assessment of the witness s credibility would be likely. 12 relying on the same witness in a succession of separate bench trials 13 are not entitled to a succession of different trial judges just 14 because their witness was disbelieved at the first trial. 15 as here, a judge makes an unwarranted venture into fact-finding at a 16 preliminary stage and brands a party s evidence as incredible 17 without hearing any witnesses, an objective observer would have a 18 reasonable basis to question the judge s impartiality in assessing 19 that evidence at trial.28 See Pescatore v. Pan American World Airways, 20 Inc., 97 F.3d 1, 21 (2d Cir. 1996) ( To reassign a case on remand, we 21 need not find actual bias or prejudice, but only that the facts might 28 Of Defendants But where, We note that this is the unusual case where the risk of an appearance of partiality is identified on an interlocutory appeal at a preliminary stage of the litigation and can be avoided prospectively without undoing a proceeding already concluded. -57- 1 reasonably cause an objective observer to question [the judge s] 2 impartiality. ) (internal quotation marks omitted). 3 This conclusion, however, does not warrant the City s requested 4 relief of reassigning the entire case to a different judge. The 5 appearance of impartiality would be limited to Judge Garaufis s 6 conduct of a bench trial on the liability phase of the Intervenors 7 remanded disparate treatment claim, and it is only that phase of the 8 future proceedings that needs to be conducted by a different judge. 9 This reassignment of a portion of the case to a different judge 10 will potentially create an issue as to implementation of injunctive 11 relief. 12 of the portions of the injunction we have affirmed with respect to the 13 Government s disparate impact claim and, if the Intervenors pursue and 14 prevail on their disparate treatment claim, (2) fashion any additional 15 relief that might be warranted and supervise the implementation of any 16 such relief. 17 the appropriate supervision role or roles of Judge Garaufis and/or 18 whichever judge is assigned to preside at the trial of the liability 19 phase of the disparate treatment claim. 20 these two judges cannot agree on their appropriate roles, any party 21 may apply to this Court for further relief. 22 of the Intervenors on their disparate treatment claim, if pursued, 23 Judge Garaufis may continue supervising implementation of the portions 24 of the injunction we have affirmed. The District Court will need to (1) supervise implementation We leave to the District Court the task of determining -58- In the unlikely event that Pending a ruling in favor 1 The federal rules permit separate trials of separate issues, see 2 Fed. R. Civ. P. 42(b), and we see no obstacle to having a second judge 3 try a separate issue where a bench trial of that issue by the first 4 judge risks an appearance of partiality.29 Conclusion 5 6 The grant of summary judgment to the Intervenors on their disparate 7 treatment claim is vacated; the dismissal of the federal and state law 8 claims against Mayor Bloomberg is affirmed, as is the dismissal of the 9 state law claims against Commissioner Scoppetta; the dismissal of the 10 federal law claims against Commissioner Scoppetta is vacated; the 11 injunction is modified and, as modified, is affirmed; and the case is 12 remanded with directions that the bench trial on the liability phase 13 of the Intervenors disparate treatment claim against the City will be 14 reassigned to a different district judge. 15 Affirmed in part, vacated in part, and remanded. 29 Dividing aspects of a single case between two judge of the same court is doubtless unusual, but our Court has taken the even more unusual course of sending bifurcated issues in a single case to two different courts. When the Temporary Emergency Court of Appeals ( TECA ) existed for handling appeals concerning issues arising under the Economic Stabilization Act ( ESA ), our Court divided appeals containing such issues and sent the ESA issues to the TECA court and kept the remaining issues (often antitrust issues) in our Court. See Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179, 186-87 (2d Cir. 1979). -59- POOLER, Circuit Judge, dissenting: I concur in the majority opinion in its statements of the controlling law and conclusions in Parts I, III, IV, and V. I respectfully dissent however, as to Part II, because I believe that the majority incorrectly applies the standard for cases involving an individual Title VII violation to this pattern-or-practice case. By requiring the City merely to articulate some legitimate, nondiscriminatory reason for the adverse action as set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), rather than demand it demonstrat[e] that the [plaintiff s] proof is either inaccurate or insignificant as required by International Brotherhood of Teamsters v. United States (Teamsters), 431 U.S. 324, 360 (1977), the majority conflates the two distinct tests set out in our disparate treatment jurisprudence.1 I. Two Different Burden-Shifting Frameworks: McDonnell Douglas and Teamsters The Supreme Court has devised a series of shifting evidentiary burdens for the different types of disparate treatment claims under Title VII that are intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988) (internal citation and quotation marks omitted). In McDonnell Douglas, 411 U.S. at 802, the Court set out the burdens for individual claims, and in Teamsters, 431 U.S. at 336, it established the analysis for pattern-or-practice claims. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 157 n.3 (2d Cir. 2001). The McDonnell Douglas and Teamsters frameworks differ in important respects. Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012). Although their structures are essentially the same, 1 Concluding the district court correctly applied Teamsters in its grant of summary judgment, I believe reassignment to a different district judge is unnecessary, however, I nonetheless concur with the majority opinion s conclusion in Part V. 1 the content of the specific stages of these frameworks are different. Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir. 1985). These differences exist to address the distinct purposes of the separate types of claims. Individual suits aim to uncover discrimination where a plaintiff has been subjected to disparate treatment because of his race. Furnco Constr. Corp v. Waters, 438 U.S. 567, 582 (1979) (Marshall, J., concurring in part, dissenting in part). Under the McDonnell Douglas framework the individual plaintiff is required to show that (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to [an] inference of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir. 2010); see also McDonnell Douglas, 411 U.S. at 802. If the plaintiff establishes its prima facie case, the burden then shifts to the employer who need only articulate some legitimate, nondiscriminatory reason for the employee s rejection. McDonnell Douglas, 411 U.S. at 802. If the employer is able to satisfy that burden, the inquiry then returns to the plaintiff, to demonstrate that the proffered reason is a pretext for discrimination. Id. at 804. In contrast, the Supreme Court announced in Teamsters that pattern-or-practice claims brought under Section 707 of Title VII2 aim to thwart widespread procedures that fall harshly on one racial group rather than mere isolated instances. Teamsters, 431 U.S. at 336 n.16. Unlike McDonnell Douglas, the plaintiff must make a prima facie showing of pattern-or-practice under 2 Pattern-or-practice claims originate from section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a), which states where persons [are] engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights the Attorney General may bring a civil action. 2 Teamsters that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. Teamsters, 431 U.S. at 360. If the plaintiff meets its initial burden, the employer must then defeat that showing by demonstrating that the Government s proof is either inaccurate or insignificant. Id. (emphasis added). If the employer fails to satisfy its burden of production, the suit then concludes the liability phase and enters the remedial phase. Id. at 361. If the defendant satisfies the burden of production, the district court must then determine, by a preponderance of the evidence, whether the employer engaged in a pattern or practice in order for it to fashion class-wide injunctive relief. Reynolds, 685 F.3d at 203 (internal quotation marks and citations omitted). Teamsters detailed scheme differs from that of McDonnell Douglas in two important respects with regards to this case. First, unlike a plaintiff bringing an individual claim under McDonnell Douglas, a plaintiff establishing a prima facie case of pattern-or-practice is often required to use statistics. Id. at 339 (stating statistics have and will continue to serve an important role in pattern-or-practice cases); see also Robinson, 267 F.3d at 157 n.3. Second, in a pattern-or-practice case governed by Teamsters, the defendant must also satisfy a more difficult burden by responding to the plaintiffs prima facie case. Thus, where a plaintiff used statistical evidence to prevail, a Teamsters defendant may not merely articulate some legitimate, nondiscriminatory reason for the alleged discrimination, as required under McDonnell Douglas, 411 U.S. at 802, instead the employer must meet the Government s proof, Teamsters, 431 U.S. at 360 n.46, by demonstrating the plaintiff s statistics were inaccurate or insignificant. Id. at 3 360.3 Thus, the burdens of proof for both plaintiff and defendant are heavier under Teamsters.4 To understand the reasoning underlying Teamsters more demanding standards for plaintiffs and defendants, in comparison to that under McDonnell Douglas, we need only observe the separate types of discrimination they aim to end. In an individual claim, the targeted behavior involves instances of discrimination against a particular plaintiff. Reynolds, 685 F.3d at 203-04. Thus, statistical evidence is not necessary or, in fact, helpful in establishing these particular occurrences. Id.; see also Hudson v. Int l Bus. Mach. Corp., 620 F.2d 351, 355 (2d Cir. 1980). In general, the plaintiff s prima facie burden under McDonnell Douglas has been characterized as not onerous. Tex. Dep t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 3 The majority claims this sentence incorrectly substitutes the word statistics for proof. Maj. Op. at 25-26 n.13. However, I agree that Teamsters requires the defendant meet the Government s proof and have stated this point above. Rather than incorrectly replace proof with the word statistics this sentence only reveals the further logical deduction that the defendant must meet the plaintiff s statistical proof. It explains this point in the context of the paragraph s syllogism. The syllogism proceeds from Teamsters as follows: 1) Under Teamsters a defendant has the rebuttal burden of showing that the plaintiff s prima facie proof lacked significance, a point with which the majority agrees, Maj. Op. at 25-26 n.13; 2) In pattern-orpractice cases the plaintiff s proof is often composed of statistics, as was the case here. Ergo, 3) in such cases the defendant s obligation is to meet that proof, by defeating the meaning of those statistics. Thus the use of statistics rather than proof in this context is a far cry from a conflation and instead is the result of a logical conclusion. 4 In addition to these two main differences, to remedy the particular harm at which they are aimed, pattern-or-practice claims authorize a specific form of injunctive relief against an employer to the full enjoyment of any of the rights secured by the statute. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146-48 (2d Cir. 2012) (citing 42 U.S.C. § 2000e-6) (internal quotation marks omitted). If the district court can fashion class-wide prospective relief, including an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions and file periodic reports with the court, or any other order necessary to ensure the full enjoyment of the rights protected by Title VII. Teamsters, 431 U.S. at 361 (internal quotation marks omitted). Thus, pattern-or-practice plaintiffs seek different relief, unlike plaintiffs seeking individualized relief who assert back pay, front pay, or compensatory recovery. Reynolds, 685 F.3d at 203 (internal citation and quotation marks omitted). 4 (1981). Similarly, a McDonnell Douglas defendant s burden is less demanding being able to merely present a legitimate neutral reason where there are no statistics to controvert. For example, it is sufficient if the defendant s evidence simply sets forth the reasons for the plaintiff s rejection. Id. at 255. In contrast, the essence of pattern-or-practice claims is different because they aim to end discrimination of a different kind. These claims address cases where the employer treated all members of the class in the same way, so the manner of proving [and defeating] the claim usually relies heavily on statistical evidence, bolstered as necessary with anecdotal evidence. 1 Arthur Larson et al., Employment Discrimination § 8.02, at 8-15 (2d ed. 2012) (hereinafter Larson ). As the Supreme Court underscored in Teamsters, statistical evidence is often necessary in proving pattern-or-practice cases because plaintiffs must prove more than mere sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant s standard operating procedure. Robinson, 267 F.3d at 158 (quoting Teamsters, 431 U.S. at 336). Once the plaintiff has used statistical evidence to make out its prima facie case, the employer must then defeat the prima facie showing by addressing those statistics. Teamsters, 431 U.S. at 360. Although there are no limits on the type of evidence an employer may use, because the employer must meet the plaintiff s case and demonstrate that it is inaccurate or insignificant, id. at 360 n.46, if statistics were used, those statistics must necessarily be addressed. The Teamsters burden on the employer is carefully calibrated to identify widespread discriminatory acts; thus, an employer s noncompliance with this test is an attempt to evade its purposes. The burden shifting framework is a procedural device, designed . . . to establish an 5 order and proof of production, and, like other procedural rules, [it] subjects noncompliant parties to default regardless of the objective merit of their claims or defenses. Dist. Ct. Op. at 36 (quoting St. Mary s Honor Ctr. v. Hicks, 509 U.S. 502, 522 (1993) (emphasis in original)). Similarly, as it fails to address the pattern-or-practice concerns, using the ill-suited McDonnell Douglas pattern of proof is likewise inappropriate. Robinson, 267 F.3d at 157 n.3 (quoting 1 Arthur Larson et al., Employment Discrimination § 8.01[4], at 8-13 (2d ed. 2001)). As one Court put it: In a complex class action, utilizing statistical proof and counterproof, the value of the [McDonnell Douglas] sequence to highlight the issues in contrast is about as relevant as a minuet is to a thermonuclear battle. Vuyanich v. Republic Nat l Bank, 521 F. Supp. 656, 661 (N.D. Tex. 1981), vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984). Thus, an employer who attempts to displace the Teamsters requirement with McDonnell Douglas proof must fail. Courts have continuously acknowledged these differences between Teamsters and McDonnell Douglas. For example, the year following its opinion in Teamsters, the Supreme Court reiterated the distinction between McDonnell Douglas and Teamsters in Title VII cases. Waters, 438 U.S. at 575. In Waters, a suit brought by three individuals the Court found that it was necessary to apply the approach . . . contained in McDonnell Douglas because it was not a pattern or practice case like Teamsters v. United States . . . . Id. at 575 & n.7; see also Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984) (distinguishing Teamsters and McDonnell Douglas in a case contemplating additional proceedings to determine the scope of individual relief). 6 This Circuit has authoritatively held that Teamsters establishes the approach for patternor-practice cases, distinct from that of McDonnell Douglas.5 In Robinson, this Circuit enunciated that Title VII disparate treatment claims are of two types, either individual claims to be analyzed under McDonnell Douglas or pattern-or-practice claims brought under Teamsters. Reynolds, 685 F.3d at 202 (citing Robinson, 267 F.3d at 157 n.3). We have since reiterated Robinson s holding that Teamsters established the distinct test for pattern-or-practice claims in subsequent cases. See Reynolds, 685 F.3d at 202; Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146-50 (2d Cir. 2012). Lower courts in this Circuit have also diligently adopted our approach, see, e.g., Lomotey v. Conn., Dep t of Transp., 2012 WL 642763, at *12 (D. Conn. Feb. 28, 2012) (stating that Teamsters is distinguishable from McDonnell Douglas framework); EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 468 (S.D.N.Y. 2011) (same); United States v. N.Y.C. Transit Auth., 2010 WL 3855191, at *23 (E.D.N.Y. Sept. 28, 2010) (applying Teamsters to this pattern-or-practice case and stating that the McDonnell Douglas framework does not apply in Section 707 cases ); United States v. City of New York, 631 F. Supp. 2d 419, 427 (S.D.N.Y. 2009) (collecting cases for the proposition that individuals cannot bring pattern-orpractice cases), and at least one other Circuit has recognized Robinson s change to our law, see, e.g., Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 179 n.11 (3rd Cir. 2009) (noting that more recently courts of appeals have used the Teamsters two-stage framework to analyze 5 Although our earlier cases immediately following Teamsters applied both the McDonnell Douglas and Teamsters tests to pattern-or-practice cases without distinguishing them, Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365, 370 (2d Cir. 1989); Woodbury v. N.Y.C. Transit Auth., 832 F.2d 764, 768-69 (2d Cir. 1987); Ste. Marie v. E. R.R. Ass n., 650 F.2d 395, 397 (2d Cir. 1981), this Court subsequently allayed any concerns over confusion between the two by definitively holding that the Teamsters framework sets distinct standards for pattern-or-practice claims. Robinson, 267 F.3d at 159-60. 7 pattern-or-practice claims brought as private-plaintiff class actions under Title VII and citing to Robinson, 267 F.3d at 158-60). In addition to recognizing these general differences, this Court went even further in Reynolds v. Barrett and underscored that Robinson also adopted one of the most predominant differences between the tests: unlike the McDonnell Douglas burden-shifting framework, the employer under Teamsters must show that the statistical evidence proffered by the plaintiffs is insignificant or inaccurate. Reynolds, 685 F.3d at 203. Typically, this is accomplished by challenging the source, accuracy, or probative force of the plaintiffs statistics. Id. (internal quotation marks and citation omitted). Thus, the prudent defendant will follow all three routes if possible, presenting its own version of the numbers game, attempting to undermine the plaintiffs version with specific attacks on the validity of the plaintiffs statistics, and garnering non-statistical evidentiary support as well. Robinson, 267 F.3d at 159 (internal citation and alterations omitted). Robinson thus emphasized the two differing aspects of the employer s burden under Teamsters that are at issue today. First, the requirement that the employer show insignificance or inaccuracy is a much more difficult bar than merely proffering some non-pretextual reason for discrimination as required by McDonnell Douglas. Second, also unlike McDonnell Douglas, this more difficult task under Teamsters must often be achieved by responding to the plaintiff s statistical proof. In essence, there is a statistical bind inherent in pattern-or-practice cases. Because the plaintiff s proof will often be composed of statistics, and the employer must demonstrat[e] that the [prima facie] proof is either inaccurate or insignificant, Teamsters, 431 8 U.S. at 360, the employer is often required to defeat the plaintiff s statistical evidence.6 Consistent with our interpretation in Robinson and Reynolds, our sister Circuits have similarly upheld Teamsters distinct analysis. Indeed, every Circuit, save the First and Federal Circuits, has decided cases specifically quoting that the employer s burden under Teamsters is to demonstrate that the plaintiff s offered proof is inaccurate or insignificant. See Hohider, 574 F.3d at 177-78; Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 463-64 (8th Cir. 2004); Beck v. Boeing Co., 60 F. App x 38, 39 (9th Cir. 2003); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001); EEOC v. Joe s Stone Crab, Inc., 220 F.3d 1263, 1287 n.22 (11th Cir. 2000); Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1285 (5th Cir. 1994); EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 308 (7th Cir. 1988); Ardrey v. United Parcel Serv., 798 F.2d 679, 683 (4th Cir. 1986); Segar v. Smith, 738 F.2d 1249, 1300-01 (D.C. Cir. 1984); Alexander v. Aero Lodge No. 735, Int l Ass n of Machinists and Aerospace Workers, 565 F.2d 1364, 1382 n.11 (6th Cir. 1977), superceded by statute on other grounds. II. The District Court Correctly Applied Teamsters Thus, adhering to this unanimous recognition of Teamsters by this Circuit and others, the district court in this case faithfully applied the distinct pattern-or-practice test and found the City did not meet its more difficult burden. To begin its discussion, the district court announced that 6 This Court s prescriptions in Reynolds and Robinson acknowledge the statistical bind that most employers will face. In these cases, the Court stated that challenging the statistical proof would be [t]ypical[] or the basic form of rebuttal. Reynolds, 685 F.3d at 203; Robinson, 267 F.3d at 159 (internal citation omitted). Thus, Reynolds and Robinson recognize that Teamsters allows for non-statistical evidence, but these cases also recognize that the employer s proof will rarely, if ever, be exclusively non-statistical. They notice that in most pattern-or-practice cases the plaintiff s proof will need to consist of statistics to show widespread discrimination, Teamsters, 431 U.S. at 339-40 n.20, and therefore the employer will have to answer that evidence with more than just non-statistical proof. 9 the Intervenors clearly met their burden by presenting sufficient undisputed statistical evidence to support a prima facie case that the City had a pattern or practice of discriminating against black applicants. Dist. Ct. Op 28-29.7 Not only did the statistics bear out that the City s use of its two Exams on a pass/fail basis and the rank order processing yielded statistically significant adverse effects on black candidates, id. at 29, but the Intervenors also supplemented their statistical showing with extensive historical, anecdotal, and testimonial evidence that the intentional discrimination was the City s standard operating procedure for several decades, id. at 31 (internal quotation marks omitted). Finding the prima facie burden had been met, the district court then moved on to the Teamsters requirement enunciated in Robinson that the City bears the burden of demonstrating that the [Intervenors ] proof is either inaccurate or insignificant by attacking its source, accuracy, or probative force. Id. at 33 (citing Robinson, 267 F.3d at 159). Having failed to dispute either the accuracy or practical significance of Plaintiffs statistical analyses, id. at 7, the district court found the City to have abjured [its Teamsters] responsibility entirely, id. at 33. The court stated, [t]he City has not offered a competing statistical summary treatment of the protected class, has not attempted to undermine the Intervenors statistics with specific attacks on their validity, and has garnered no anecdotal or other non-statistical evidence tending to rebut the inference of discrimination. Id. (internal alterations and citations omitted). 7 For example, the court found plaintiffs proved their burden by showing that (1) the application of the pass/fail policy to Exam 7029 and Exam 2403 had a net effect of eliminating between 607 and 684 black applicants who would not have failed the Exams but for the disparity and also kept 144 black firefighters from gaining appointments they would have otherwise received, and (2) the rank-ordering of the examinations had the net effect of denying 112 black applicants approximately 34 years worth of wages and seniority that they would have received absent the policy s disparate effects. Dist. Ct. Op. at 29-30. 10 Thus, despite Robinson s suggestion that the prudent defendant will follow all three routes, 267 F.3d at 159 (internal citation omitted), here, the lower court correctly found that the City attempted to circumvent its burden of production entirely. Dist. Ct. Op. at 33. Rather than responding to the statistical evidence, the City only argu[ed] that the Intervenors ha[d] not proved that the City harbored a subjective intent to discriminate against black applicants. Id. In essence, the City ignored the inevitable conclusion of the statistics and tried to focus on intent. But, [a]t this stage, lack of direct proof regarding the employer s mental state is simply immaterial to the question of whether the City can rebut the presumption of unlawful discrimination created by the Intervenors prima facie showing. Id. at 37. Despite the City s correct assertion that what actually motivate[s] the employer s decision is relevant, Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), departure from the Teamsters framework is fatal where the motivation did not address the statistical evidence. Dist. Ct. Op. at 35. In the face of the district court s faithful application of the law, the majority not only overrules that well-reasoned decision but also confuses the distinct pattern-or-practice standard by incorrectly conflating the employer s burden in Teamsters with the one set out in McDonnell Douglas. See Maj. Op. at 23-25. While the majority asserts that the City need only provide a nondiscriminatory explanation under Teamsters, id. at 22, 25, 30, I think the City was required both under the law of this Circuit and the Supreme Court to show more. At the outset, the majority recognizes that [i]n a pattern-or-practice case, the plaintiff s initial burden is heavier, id. at 21, however, it fails to recognize that a similarly heavy burden also exists for the defendant-employer under Teamsters. 11 III. The Majority Failed to Notice Teamsters Insignificant or Inaccurate Burden is Higher than that in McDonnell Douglas. First, the majority incorrectly tries to pare down the employer s higher bar in Teamsters to the one set out in McDonnell Douglas. Under Teamsters, the employer may only satisfy its heavy burden if its defense meet[s] the prima facie case and proves it is insignificant or inaccurate. Teamsters, 431 F.3d at 360 n.46. The majority tries to evade Teamsters more difficult insignificant or inaccurate burden by characterizing the language in Reynolds as dictum. Maj. Op. at 27 n.14. I find this characterization confounding. There is no reasonable reading of Reynolds, which can classify this language as dicta, especially because, as the majority admits, the Supreme Court in Teamsters clearly stated that the employer has the burden to defeat the prima facie case. Id. at 22-23. The employer s burden to defeat the prima facie case as insignificant or inaccurate can certainly not be said to be the same as McDonnell Douglas requirement that the employer simply rebut the plaintiff s evidence with the offer of a nondiscriminatory reason. Still, the majority tries to lessen Teamsters more stringent language by stating that although [d]efeat might be thought to imply something stronger than [McDonnell Douglas requirement to] rebut, the Court s language means the same thing in both contexts. Id. at 23. This argument clearly disregards the plain language of not only Teamsters, but also the law of this Circuit that is binding on subsequent panels. Not only were the separate meanings of defeat and rebut intended by the Supreme Court s separate use of these two distinct words, but the separate meanings are underscored in the different standards requiring a demonstration that the plaintiff s proof is inaccurate or insignificant versus 12 showing some neutral legitimate reason.8 Additionally, the majority tries to convince us a lower bar can be met by quoting Teamsters recitation of the McDonnell Douglas standard. Insofar as stating that Teamsters may recognize the McDonell Douglas standard is relevant, the majority is in fact correct. Teamsters does state that the employer may provid[e] a nondiscriminatory explanation for the apparently discriminatory result. Id. at 23. However, Teamsters does not state this will fully satisfy the employer s duty to meet the inaccurate or insignificant standard. As explained by the D.C. Circuit, [t]he bare articulation of a nondiscriminatory explanation, while sufficient to rebut an individual plaintiff s low-threshold McDonnell Douglas showing, generally will not suffice as a rebuttal to a typical class-wide showing of pervasive discrimination. . . . in both individual and class action contexts the defendant faces the same rebuttal burden; it must present sufficient evidence to permit the trier of fact to decline to draw the inference of discrimination from the plaintiffs proof. But in the class action pattern or practice case the strength of the evidence sufficient to meet this rebuttal burden will typically need to be much higher than the strength of the evidence sufficient to rebut an individual plaintiff s low-threshold McDonnell Douglas showing. Segar, 738 F.2d at 1269-70 (discussing applicability of Teamsters as opposed to McDonnell Douglas to pattern-or-practice claims). In other words, the majority ignores the fact that in cases with substantial statistical proof in the prima facie case, a McDonnell Douglas offering of a nondiscriminatory reason will not satisfy the employer s burden under the higher Teamsters bar. See Hazelwood School Dist. v. United States, 433 U.S. 299, 308-12 (1977) (detailing how 8 Beyond disregarding the clear distinction in the separate instances of these words and suggesting that the Supreme Court doesn t intend to use the word defeat when it uses it, the majority seems to misconstrue the law even when the plain meaning of these words reveals differences. The Oxford English Dictionary defines defeat as To unmake, undo, do away with; to ruin, destroy in comparison to rebut as to provide a counter-argument to. Oxford English Dictionary (online ed. March 2012). 13 alternate statistics were necessary to rebut statistical prima facie showing). Instead, the McDonnell Douglas standard is relevant only to the extent that Teamsters encompasses McDonnell Douglas, but Teamsters burden still requires more beyond it. IV. The Majority Failed to Recognize Teamsters Method of Proof is More Difficult than McDonnell Douglas In addition to paring down the employer s burden under Teamsters, the majority also inaccurately describes the method of proof required. The majority is correct that Teamsters states the employer s proof need not be limited to statistics alone. However, as previously explained, because pattern-or-practice suits usually focus on widespread discrimination, statistics will often be necessary to make such a case.9 Where a plaintiff presents such evidence as part of its prima facie case, Teamsters requires the employer to counter with a different method of proof than that which would be sufficient under McDonnell Douglas; it requires the employer to address the cold hard numbers. Larson, § 9.03[2][a], at 9-18 to -19. The majority disagrees. It admits the passage from Larson stating, the employer has three avenues of attack to challenge the plaintiff s statistics, quoted by this Court in Robinson, might be thought to require an employer to challenge the plaintiff s statistics, but the majority abandons that interpretation. Maj. Op. at 26. Instead, the majority cites to the portion of Larson s treatise, which states that a defendant may use other non-statistical evidence tending 9 Statistics showing racial or ethnic imbalance are probative in [disparate treatment cases], Teamsters, 431 U.S. at 340 n.20, and although anecdotal evidence may be useful to bring the cold numbers convincingly to life, id. at 339, statistical evidence is often necessary and often sufficient to establish a prima face case, id. See also Reynolds, 685 F.3d at 203 (stating statistics alone can make out a prima facie case of discrimination in a pattern-orpractice suit if the statistics reveal a gross disparity in the treatment of workers based on race ) (internal citation, quotation marks and alterations omitted). 14 to rebut the inference of discrimination. Id. As stated above, this quotation does not present a contradiction; while use of non-statistical evidence is relevant, it is often not sufficient if it does not meet the prima facie evidence. Although Larson s treatise goes on to state, in a section called Other Rebuttal Techniques, that one Seventh Circuit case found exclusive nonstatistical evidence of an employer s affirmative action efforts may be relevant, Larson, § 9.03[2][c], at 9-20.1, this case is atypical. Larson s presentation of this case as an exception suggests that the defendant s rebuttal burden will often not be sufficient unless it defeats the plaintiff s statistical evidence or at the very minimum attacks those statistics. See Larson, § 9.03[2][a], [b]. As Larson states, defendant s burden is to come forward with evidence sufficient to rebut the prima face case based on statistics. Larson, § 9.03[2], at 9-16. This means the employer s rebuttal will often be composed of targeting flaws in the plaintiff s [statistical] evidence. Larson, § 9.03[2][a], at 9-17. In fact, Larson goes even further and states that the Supreme Court s decision in Bazemore v. Friday, 478 U.S. 385 (1986), has been interpreted to imply that the defendant must do more than merely point out possible flaws in the plaintiff s statistical analysis, the defendant must also show that consideration of the missing factors would make a difference in the analytical outcome. Larson, § 9.03[2][b], at 9-19. Thus the defendant is often required to present[] its own statistics to the court which a defendant will wish to argue . . . are more finely tuned and have more probative force because they take into consideration a variety of relevant factors that the plaintiff s statistics ignore. Larson, § 9.03[2][b], at 9-19. 15 In addition to arguably misinterpreting Professor Larson s treatise, the majority disregards this Circuit s actual case law by claiming Reynolds language on the method of proof, recognized in Robinson, is dictum. Maj. Op. at 27 n.14. Moreover, the majority looks over the logical conclusion in Robinson and Reynolds that statistics are not always but often required because [s]tatistics proffered during the liability phase of a pattern-or-practice suit purport to demonstrate that a pattern of discrimination exists at an entity. Reynolds, 685 F.3d at 204 (emphasis in original). As the Court stated, In a Title VII case, these statistics can make out a prima facie case that the employer was engaged in a pattern or practice of discrimination. This is because [statistics or] an analysis of the collective acts of those who do the employer s bidding bespeak the employer s motivation. Id. This Court s prescriptions in Robinson and Reynolds acknowledge the most basic or common situation that the rebuttal will be statistical not because they have misread Teamsters as stating the evidence must be exclusively statistical but because statistics will most often be necessary for the plaintiff to show the entity engaged in a pattern-or-practice. Teamsters, 431 U.S. at 339-40 n.20. Thus, as stated by Larson in his treatise, non-statistical proof may be relevant to disproving those statistics but it most often will not be sufficient. See Larson, § 9.03[2][a], [b], at 9-16 to -20. Regardless, whatever the plaintiff s proof is statistical or otherwise if the defendant does not show that proof to be inaccurate or insignificant it has not carried its burden of proof and summary judgment must be granted in favor of the plaintiffs. In undermining our caselaw on the employer s method of proof, the majority also ignores the law of our sister Circuits that have held the same rule. It is well recognized among other Circuits that the employer must defeat the Government s statistical proof. See Hohider, 574 F.3d 16 at 183 ( The Teamsters framework was judicially promulgated as a method of proof for pattern-or-practice claims brought by the government under Title VII, as that statute authorizes it provides a means by which courts can assess whether a particular form of statutorily prohibited discrimination exists, just as the McDonnell Douglas framework does for individual claims of disparate treatment. ); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 356 (5th Cir. 2001) (indicating the Teamsters method of proof [is] an independent method of proof ); Davoll v. Webb, 194 F.3d 1116, 1148 (10th Cir. 1999) (noting the Supreme Court has recognized that the specifics of the McDonnell Douglas framework are inapplicable in certain factual situations, including when the government has brought a broad-based pattern and practice action and citing to Teamsters, 431 U.S. at 358-60); Segar, 738 F.2d at 1267-69 (discussing applicability of Teamsters method of proof as opposed to McDonnell Douglas to pattern-orpractice claims). The Intervenors proof in this case, as in most pattern-or practice cases, was in fact statistical. Thus, the City s method of proof was required to be directed toward those statistics. The majority s classification of these differences in method proof as dictum and its choice not to apply Teamsters and thus be satisfied by the City s facially neutral evidence, give no response to Intervenors statistics that show a clear pattern and practice of discrimination. Whatever the proof, under Teamsters, the city was obligated to defeat it. Any other argument is contrary to the law of this Circuit and the Supreme Court. V. Applying Teamsters the City Failed to Meet Its Burden In this case, there is no dispute that the Intervenors claim alleges that the New York City Fire Department engaged in a pattern-or-practice for decades that led to black and other minority 17 firefighters being severely underrepresented in the Department. See Dist. Ct. Op. at 2; see also Maj. Op. at 6-8. As the district court stated, at the time this claim was filed, only 3.4% of the Department s force was composed of black firefighters despite black residents making up 25.6% of New York City s population. Dist. Ct. Op. at 2. In other words, in a city of over eight million people, and out of a force with 8,998 firefighters, the Department only employed 303 black firefighters. Id. Perhaps most egregious is that in an otherwise esteemed Department, this one persistent stain has remained an essentially unchanged practice since at least the 1960s.10 Id. In accord with this pattern-or-practice case, the Intervenors presented copious statistical evidence. Id. at 6, 28. The district court found that the Intervenors met their burden,11 id. at 28, but regardless, we need not reach that issue here, where, in fact, all parties agree the Intervenors 10 In fact, as the district court found, the FDNY s rate of black firefighters has actually gone down: At the time of the [original] Vulcan Society litigation, blacks and Hispanics constituted 32% of the City s population, but only 5% of the Department. In 1990, almost two decades later, blacks made up 29% of the City s population, but only 4% of firefighters. In 2002, 25% of the City s residents were black, compared to only 2.6% of its firefighters. Between 1991 and 2007, black firefighters never constituted more than 3.9% of the force, and by the time this case was filed in 2007, the percentage of black firefighters in the FDNY had dropped to 3.4%. Dist. Ct. Op. at 16 (internal citations omitted). 11 As previously stated, the Intervenors met their burden by showing that black candidates disproportionately failed Written Exams 7029 and 2043 because of the pass/fail and rank ordering policies. Dist. Ct. Op. at 29-30. Additionally, the district court noted that this was not the first time the City had been brought to federal court for its discriminatory use of firefighter examinations. Id. at 11 (citing Vulcan Soc y of N.Y.C. Fire Dep t, Inc. v. Civil Serv. Comm n, 360 F. Supp. 1265, 1269 (S.D.N.Y. 1973), affirmed in relevant part by 490 F.2d 387 (2d Cir. 1973)). This showing was more than adequate to make out a prima facie case. Dist. Ct. Op. at 30 (citing Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d Cir. 1991)). 18 met their prima facie case under Teamsters. Maj. Op. at 30. The only question that remains is whether the City defeated the statistical evidence proffered by the plaintiffs as insignificant or inaccurate. See Teamsters, 431 U.S. at 360. To carry its burden, the City proffered what the majority characterized as a nondiscriminatory reason for using the test. Maj. Op. at 30-31. The City s response was that the test designers did not intend to discriminate against any protected group, Dist. Ct. Dkt. 359 at 5, and that there is no evidence that the Mayor and the Fire Commissioner intended to discriminate, id. at 6-7. The City also stated that the FDNY made recruitment efforts to increase minority hiring. Id. at 9; see also Maj. Op. at 31.12 In essence, the City stated that it had prepared the tests with acceptable test development methods. Id. Applying Teamsters more difficult burden to the City s offering, the district court deemed it deficient because the City s evidence did not sufficiently attack the Intervenors statistics. Maj. Op. at 33. Thus, the lower court found that even if the City offered evidence sufficient for a McDonnell Douglas method of proof, it didn t defeat the Intervenors evidence 12 The City points us to more detailed evidence about its recruiting, Appellants Br. at 1314, as well as an attrition plan meant to reduce minority candidate dropouts during the application process. It also points to evidence in the record that that both exams were constructed in accordance with standard job analytic and test development procedures. Id. at 19. The City also points us again to the increased EMT promotional exams. Id. at 20. Additionally, the City also enlisted Columbia University s School of International and Public Affairs to analyze and recommend improvements to its diversity initiative ( the Columbia Study ). The Columbia Study arose in conjunction with the FDNY s Strategic Plan to rebuild and strengthen after 9/11, which identified enhancing diversity as one of its top six priorities. Id. Finally, the City points us to proof that it created an FDNY High School for Fire and Life, which is a 99% minority high school [that] incorporates firefighting and EMT studies with a traditional educational curriculum. Id. As Intervenors note, none of this evidence was called to the attention of the district court. Intervenors Br.at 118-20. Even considering these facts, the City s argument still fails. 19 under Teamsters. The district court therefore granted summary judgment to the Intervenors on their pattern-or-practice case. On appeal, the City tried to evade Teamsters heavy burden by arguing that its offer of proof was sufficient according to Raytheon Co. v. Hernandez, 540 U.S. 44 (2003). In Raytheon, the Supreme Court held that an employer s proffer of [a] neutral . . . policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for the challenged action. Id. at 53. However, Raytheon, unlike the present case, involved an individual s non-class claim. Hence the City, in this pattern-or-practice case, tried to evade the demanding burden by claiming Teamsters is but a mere gloss for McDonnell Douglas. Having established that Teamsters is distinct and applies a more difficult burden for employers, I conclude the City was required to defeat the Intervernors proof as inaccurate or insignificant. Here it did not. Moreover, where the City merely offered non-statistical proof, in the face of overwhelming statistics proving its discriminatory intent, the City failed to meet the prima facie case. Here the City rebutted with affidavits, non-statistical proof, that its employees created the Exams without a discriminatory motive. Although intent is crucial in Title VII cases, here where statistics are proof of the entity s discriminatory intent12 the employer s burden is to defeat those statistics. The employer must show that the statistics, which show intent, are incorrect. The employer may not merely counter that it had no ill-motives. 12 See Larson § 9.03[1], at 9-13 (stating that [t]he ultimate burden in any disparate treatment case is to convince the fact finder that the defendant s actions were discriminatorily motivated and that in a pattern or practice suit the plaintiff may depend on two forms of circumstantial evidence: 1) statistical proof aimed at establishing the defendant s past treatment of the protected group and 2) testimony from protected class members ). 20 Moreover, it may not disprove the entity s intent by merely stating the employees making the exam did not have a discriminatory motive. Instead, the statistics must be challenged. Even if non-statistical evidence is probative, the City did not present sufficient non-statistical evidence. Offering declarations that the designers of the Exams did not intend to create a discriminatory test in no sense goes to whether use of that test was discriminatory, as Intervernors proved. Even if the tests were not designed to discriminate against minorities, the use of them undisputedly did through the pass/fail and rank-ordering policies. Still, the majority tries to argue that the City s method of proof was sufficient because it challenged the inference of intentional discrimination arising from the Intervenors prima facie case. Maj. Op. at 33. As already stated, although intent is key in Title VII cases when dealing with pattern-orpractice cases, mere proof of nondiscriminatory motivations in the creation of a test are not the end of the intent analysis. As this Court has previously stated, [p]ersistent use of exams with disparate racial effects would support an inference of intentional discrimination if proper test construction were not even attempted. Guardians Ass n of the N.Y.C. Police Dep t, Inc. v. Civil Serv. Comm n, 630 F.2d 79 (2d Cir. 1980). Thus, if wishing to rely merely on non-statistical proof, the City was still obligated to raise some facts explaining why its knowing continued use of those tests was not evidence of discrimination. As the district court stated, the trouble is not the existence of the Exams per se but the City s policy or practice of subsequently using those Exams as pass/fail and rank-ordering devices. Dist. Ct. Op. at 38. For this reason, I fully agree with the district court s conclusion that the subjective motives of the people who designed the Exams are only circumstantially relevant to the question of whether the City s decision to use the Exams as screening and ranking devices was 21 discriminatory. Id. As hypothetically stated by the district court, a showing that the Exams were applied and reapplied with a nondiscriminatory intent would be highly relevant to the City s defense because it would support an inference that the City s actual intent in enforcing [and reenforcing] the pass/fail and rank-ordering policies was to select the best candidates. Id. at 38-39. But the mere initial motivation of the test designers doesn t reach the issue of whether the City s ex post use of those tests was discriminatory. Additionally, although intent may be relevant to the question of imposing injunctive relief under a disparate impact theory, see Berkman v. City of New York, 705 F.2d 584, 595 (2d Cir. 1983) (stating affirmative relief may be required where, for example, the defendant has intentionally or egregiously engaged in a practice of discrimination ), that issue is not relevant at this initial stage under disparate treatment.13 Where persistent use of the tests bear out evidence of discriminatory intent and without more proof addressing the Intervenors statistics, the City cannot be said to have defeated the prima facie case. Similarly, I find the fact that the City engaged in minority recruitment does not help to defeat the Intervenors case because all the potential black and Hispanic firefighters that were recruited would still have been subjected to the challenged procedures. As the district court stated, once the Intervenors made out the prima facie case that the City s Exams discriminated against black applicants, proof of recruitment only proved more blacks were taking the exam and thus more blacks were being illegally harmed, and the City s evidence is relevant only to 13 Moreover, our Circuit has already determined in Ass n Against Discrimination in Emp t, Inc. v. City of Bridgeport, 647 F.2d 256, 280 n.22 (2d Cir. 1981) that the requirement that an employer have discriminated intentionally in order for the provisions of 706(g) to come into play means not that there must have been a discriminatory purpose, but only that the acts must have been deliberate, not accidental. 22 the scope of the injury, not its source. Dist. Ct. Op. at 39. The majority cites to Washington v. Davis, 426 U.S. 229, 246 (1976), to argue affirmative efforts to recruit black officers negates the inference of intent, Maj. Op. at 34-35, but recruitment efforts simply do not satisfy the defendant s burden to meet the plaintiff s case under Teamsters. Instead, what matters under Teamsters is (1) whether the City has policies of screening and ranking applicants based on how well they perform the required task, (2) what effect those policies have on black applicants, and (3) why the City decided to adopt those policies. Dist. Ct. Op. at 38. Because the evidence of recruitment has no bearing on the challenged use of the Exams, because the City does not provide a sufficient nondiscriminatory explanation where statistics showed a discriminatory result, and because any recruits would ultimately face the discriminatory Exams, this evidence cannot serve to show that Intervernors evidence was inaccurate or insignificant. In this context, the City completely failed to meet Intervenors proof, as required by Teamsters, and it did not even approach raising a material question of fact about whether the Intervenors proof was inaccurate or insignificant on appeal. Thus, the City s apparent disinterest in fixing what it has known to be a problem for more than four decades and its apparent disinterest in defending itself now according to the Teamsters standard is precisely the type of disregard the Teamsters test was meant to protect against. For the foregoing reasons, I am unable to agree with the majority s conclusion that the City met its burden because the City may not meet its requirements by supplanting Teamsters with the McDonnell Douglas standard, and it is unreasonable to understand the language in Robinson and Reynolds as mere dicta. Accordingly, the Intervenors were entitled to summary judgment on their pattern-or-practice claim and I DISSENT from that part of the majority s opinion that holds otherwise. 23

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