196 F.3d 358 (2nd Cir. 1999), 98-7178, Smith v Xerox Corporation

Docket Nº:98-7178(L), 98-7182(CON), 98-7184(CON), 98-7186 (CON), 98-7188(CON), 98-7196(CON), 98-7198(CON), 98-7202(CON), 98-7204(CON), 98-7206(CON), 98-7208(CON), 98-7212(CON)
Citation:196 F.3d 358
Party Name:JOHN B. SMITH, HAROLD WADO, JOHN S. BERNHARD, PHILIP D. CUFARI, SALVATORE CATALANO, ROBERT H. GUSCIORA, PATRICIA RAKE, PEDRO SANTIAGO, JUDITH CARUANA, EDWARD LALIK, JR., EUGENE HOSENFELD and GEORGE HAMANN, Plaintiffs-Appellants, v. XEROX CORPORATION, Defendant-Appellee.
Case Date:November 05, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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196 F.3d 358 (2nd Cir. 1999)

JOHN B. SMITH, HAROLD WADO, JOHN S. BERNHARD, PHILIP D. CUFARI, SALVATORE CATALANO, ROBERT H. GUSCIORA, PATRICIA RAKE, PEDRO SANTIAGO, JUDITH CARUANA, EDWARD LALIK, JR., EUGENE HOSENFELD and GEORGE HAMANN, Plaintiffs-Appellants,

v.

XEROX CORPORATION, Defendant-Appellee.

Nos. 98-7178(L), 98-7182(CON), 98-7184(CON), 98-7186 (CON), 98-7188(CON), 98-7196(CON), 98-7198(CON), 98-7202(CON), 98-7204(CON), 98-7206(CON), 98-7208(CON), 98-7212(CON)

United States Court of Appeals, Second Circuit

November 5, 1999

November 30, 1998, Argued

Decided

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Theodore S. Kantor, Bilgore, Reich, Levine, Kroll & Kantor, Rochester, NY for Plaintiffs-Appellants Smith, Wado, Lalik, Bernhard, Caruana, Hosenfeld, Hamann, Gusciora, Rake and Santiago.

Donna Marianetti, Rochester, NY for Plaintiffs-Appellants Cufari and Catalano. Margaret A. Clemens, Nixon, Hargrave, Devans & Doyle LLP, Rochester, NY for Defendant-Appellee.

BEFORE: NEWMAN, LEVAL, PARKER, Circuit Judges.

PARKER, Circuit Judge:

Plaintiffs-appellants appeal from a final judgment of the United States District Court for the Western District of New York (David G. Larimer, Chief Judge) entered January 16, 1998, granting summary judgment for Xerox Corporation ("Xerox") on the plaintiffs' employment discrimination claims based on both disparate treatment and disparate impact theories.

I. BACKGROUND

A. Facts

The facts of this case are more fully set forth by the district court in its decision, see Wado v. Xerox Corp., 991 F.Supp. 174 (W.D.N.Y. 1998); therefore, we will repeat only those facts particularly pertinent to the issues which we address in detail.

In late Fall 1993, Xerox announced plans for a world-wide involuntary reduction in force ("IRIF") which would reduce its 97,500 member workforce by about 10,000 persons over the next two to three years. Each decentralized organization within Xerox was responsible for determining whether and by how much its workforce would be reduced. The organizations that chose to eliminate positions utilized the same decision-making process to determine which employees to retain.

In each work-unit an immediate supervisor ranked each employee in Work Quality, Work Speed, Work Orientation, and Work Skills, entering the scores on a Contribution Assessment Form ("CAF"). The Work Quality category purported to measure reliability and accuracy, as well as use of methods, tools, and processes. The Work Speed category was intended to measure the employee's ability to plan, prioritize, execute a plan, and meet due dates. Work Orientation included action orientation, business orientation, team orientation, and customer orientation. Work Skills were assessed as to adequacy, self-development, and continuous learning. The employee was given a score of 0-5 in each of the four areas, for a total of 0-20 points. A group of senior managers then reviewed the CAFs from each work-unit for fairness and consistency and made any adjustments deemed warranted.

Subsequent to receiving a final score of 0-20, the employees were stack-ranked on a matrix against other employees from their respective work-units. The vertical axis of the matrix represented the employee's total CAF score and the horizontal axis represented years of service at Xerox, either less than 20 years or greater than or equal to 20 years. Selections for termination were then made in a pattern of assessment score/tenure combinations that favored workers with greater years, with the exception of certain employees with special skills. For example, out of two employees each receiving a CAF score of 12, the employee with less than twenty

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years with the company was chosen for termination before the employee with more than twenty years at Xerox. A certain percentage of the lowest ranking persons from each unit was selected for termination which became effective January 18, 1994.

B. Proceedings Below

Fifteen Xerox employees selected for termination as part of the 1994 wave of the IRIF each filed suit against Xerox in federal district court pursuant to a Right to Sue letter issued to each complainant by the Equal Employment Opportunity Commission ("EEOC"). In their respective complaints the plaintiffs asserted various theories of employment discrimination under the following: (1) the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), (3) the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and (4) the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL").1

Xerox moved for summary judgment against all plaintiffs on April 21, 1997. The court consolidated the actions pursuant to Fed. R. Civ. P. 42(a) since they involved common questions of law and fact. The court heard oral argument on December 5, 1997 and granted the defendant's motion for summary judgment on January 16, 1998. In its ruling on the defendant's summary judgment motion, the court first addressed the disparate impact claims brought by thirteen2 of the plaintiffs under the ADEA and brought by two female plaintiffs and two male plaintiffs alleging sex discrimination in violation of Title VII. Xerox moved to exclude the reports of plaintiffs' statistician expert, Dr. Philip A. Smethurst, arguing that he had inappropriately grouped work-units together and that he had neglected to conduct multiple regression analyses3 on the data. The district court denied the motion. However, the court ultimately decided that Smethurst's conclusions were of little probative value for the reasons stated by the defendant in its motion to exclude and thus held that the plaintiffs failed to establish a prima facie case of disparate impact based on either age or gender. See Wado, 991 F.Supp. at 183-86. The court also held that the statistics did not support any plaintiff's disparate treatment claim. See id. at 214.

The court next addressed the non-statistical evidence presented by each plaintiff to prove the respective disparate treatment claims. The court assumed that each plaintiff had made out a prima facie case of discrimination and focused on whether each plaintiff raised a genuine issue of material fact as to whether Xerox's legitimate nondiscriminatory reason

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for the termination, namely, the need for a reduction-in-force, was merely a pretext for discrimination. The court decided that no plaintiff presented facts that, even when viewed in their most favorable light, could prove that Xerox had used the IRIF as a pretext to discriminate against any employee on the basis of age or sex. See Wado, 991 F.Supp. at 214.

Plaintiff Pedro Santiago also raised a retaliation claim under Title VII, contending that Xerox had terminated him because he had previously complained that he was being discriminated against because he is Hispanic. Noting that the plaintiff's most recent complaint was made four years before he was terminated, the court held that the plaintiff had not established any causal connection between his protected activity under Title VII and his termination. Id. at 202.

Three plaintiffs, Philip Cufari, Eugene Hosenfeld, and Patricia Rake, also asserted below that Xerox had discriminated against them because they were disabled. The court found as to all three of them that they failed to connect their disabilities to their terminations in any manner, as required by the ADA. See id. at 196, 200, 209-210. The court further held as to Cufari that he did not make out a prima facie case because he failed to show that he was disabled within the meaning of the ADA. See id. at 209-210.

Twelve of the plaintiffs timely filed a notice of appeal.

II. DISCUSSION

On appeal, the plaintiffs contend that the district court erred in finding that their statistical evidence was not probative of either disparate impact or disparate treatment. In addition, each plaintiff argues that he or she presented sufficient non-statistical evidence to support a jury finding that Xerox used the IRIF as a pretext to discriminate on the basis of age or gender. This Court reviews a district court's grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998). Having carefully reviewed the record, we affirm the district court's holding that no plaintiff presented sufficient evidence to raise a triable issue of fact as to whether Xerox's proffered reason for the termination of employment was merely a pretext for discrimination under the ADEA, the ADA or Title VII, for substantially the same reasons as stated by the district court in its thorough opinion. See Wado, 991 F.Supp. at 187-202, 204-14. We write only to address the appropriate use of statistics in this case, particularly with respect to the disparate impact claim.

A. Disparate Impact Claims in General

Ten of the twelve appellants claim that the IRIF disparately impacted certain groups of workers, specifically, employees 40 years of age or older under the ADEA, and either men or women under Title VII, depending on which plaintiff made the claim. A plaintiff need not prove discriminatory intent to make out a claim of disparate impact. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 28 L.Ed. 2d 158, 91 S.Ct. 849 (1971). Instead, disparate impact theory targets "practices that are fair in form, but discriminatory in operation." Id. at 431. A plaintiff establishes a prima facie case of disparate impact by identifying a specific employment practice which, although facially neutral, has had an adverse impact on her as a member of a protected class.4 See...

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