Smith v. City of Jackson, Miss.

• Decision Date: 13 November 2003
• Docket Number: No. 02-60850.,02-60850.
• Citation: 351 F.3d 183
• Parties: Azel P. SMITH; Jacqueline Butler; Ruthie Porter; Gloria Burns; Willie Allen; et al., Plaintiffs-Appellants, v. CITY OF JACKSON, MISSISSIPPI; Police Department of the City of Jackson, Mississippi, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 183

351 F.3d 183

Azel P. SMITH; Jacqueline Butler; Ruthie Porter; Gloria Burns; Willie Allen; et al., Plaintiffs-Appellants, v. CITY OF JACKSON, MISSISSIPPI; Police Department of the City of Jackson, Mississippi, Defendants-Appellees.

No. 02-60850.

United States Court of Appeals, Fifth Circuit.

Filed November 13, 2003.

Revised December 4, 2003.

Dennis L. Horn (argued), Horn & Payne, Madison, MS, for Plaintiffs-Appellants.

Samuel Lee Begley (argued), Begley Law Firm, Jackson, MS, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit Judges.

KING, Chief Judge:

Plaintiffs-appellants, thirty police officers and public safety dispatchers employed by the defendants-appellees, the City of Jackson and the Police Department of the City of Jackson, appeal the district court's order granting summary judgment in favor of the defendants. The appeal presents an issue of first impression in our circuit regarding whether a disparate impact theory of liability is available to plaintiffs suing for age discrimination under the Age Discrimination in Employment Act of 1967. The district court ruled that, as a matter of law, claims of disparate impact cannot be brought under the Act. We agree and therefore affirm the judgment of the district court as to this issue. However, because the district court granted summary judgment in favor of the defendants on the plaintiffs' disparate treatment claim before addressing pending motions related to the plaintiffs' ability to fully develop the summary judgment record, we vacate the district court's final judgment insofar as it dismissed the plaintiffs' disparate treatment claim.

I. PROCEDURAL HISTORY

On May 14, 2001, thirty police officers and public safety dispatchers — all over the age of forty and all employed by the defendants — filed suit pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (2000). They claimed injuries as a result of an allegedly age-discriminatory performance pay plan ("the plan") implemented by the defendants in order to grant substantially larger salary increases to police officers and public safety dispatchers (collectively "officers") under the age of forty. The plan was implemented by the defendants on October 1, 1998, and revised by the defendants on March 1, 1999. Under the plan, those officers and dispatchers with five or fewer years of tenure with the department received proportionately greater raises when compared to their former pay than those with more than five years of tenure. As stated by the district court:

The plan accordingly created three categories for the purposes of the analysis of this case: 1) those officers and dispatchers with less than five years of tenure, most, if not all, of whom would have been under 40 years of age; 2) those 40 years of age or older, most, if not all, of whom would have had more than five years of tenure, and; 3) those under 40 years of age with more than five years of tenure.

On December 11, 2001, the plaintiffs moved to compel certain fiscal and personnel discovery related to the implementation and revision of the plan; the magistrate judge overseeing disputes related to discovery in this matter granted this motion on January 16, 2002, concluding that "the fiscal and personnel discovery requested by the Plaintiffs is not privileged... and should be produced." On June 5, 2002, the plaintiffs filed a "motion for sanctions, a default judgment, attorneys' fees and expenses, expert witness fees and a continuance," seeking to have the defendants comply with disclosure and discovery obligations as set forth in the Federal Rules of Civil Procedure and the order of the magistrate judge. Two days later, the defendants moved for summary judgment, and the plaintiffs thereafter moved to strike certain exhibits to the defendants' motion, in part because the existence of the documents attached as exhibits had been previously denied by the defendants.

On September 6, 2002, while the plaintiffs' motions were pending, the district court granted summary judgment in favor of the defendants on the plaintiffs' disparate impact and disparate treatment claims and denied the plaintiffs' pending motions as moot. Final judgment was entered on this same date.

The plaintiffs appeal this final judgment, maintaining that: (1) the district court erred in concluding that a disparate impact theory of liability is not cognizable under the ADEA, and (2) the district court erred in improvidently dismissing the plaintiffs' disparate treatment claim pending production by the defendants of requested discovery materials.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo, applying the same standards as did the district court. Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 347, 151 L.Ed.2d 262 (2001). Summary judgment should be granted if there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). In determining if there is a genuine issue of material fact, this court reviews the evidence in the light most favorable to the non-moving party. Daniels, 246 F.3d at 502.

III. THE PLAINTIFFS' DISPARATE IMPACT CLAIM

The plaintiffs raise both disparate treatment and disparate impact theories of liability here. Regarding their disparate treatment claim, the plaintiffs allege that the defendants were motivated by age to implement a plan that discriminated against them intentionally. Regarding their disparate impact theory, the plaintiffs allege that the implementation of the facially neutral plan by the defendants gives rise to liability without a showing of intentional age motivation because the plan resulted in pay increases to officers under forty years of age that were four standard deviations higher than the raises received by officers over forty. In support of their disparate impact theory, the plaintiffs proffered to the district court statistical data demonstrating that the average pay increases made pursuant to the plan differed by age and that older officers received smaller raises than their younger counterparts.

In a disparate treatment case, liability depends on whether the protected trait — here, age — actually motivated the employer's decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The employer may have relied on a facially discriminatory policy requiring adverse treatment of older employees or may have been motivated by age to discriminate against an individual on an ad hoc basis — "[w]hatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Id. Proof of discriminatory motive is thus critical to the success of a plaintiff's discriminatory treatment claim. Id. In contrast, in a disparate impact case, liability may result without a demonstration of discriminatory motive. Id. at 609, 113 S.Ct. 1701. Disparate impact claims arise from "employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).

In 1971, the Supreme Court held that plaintiffs may bring disparate impact claims under Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 430-31, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). This judicial construction of the statute was codified by Congress in 1991 to make clear that such a theory was available to plaintiffs. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75 (adding 42 U.S.C. § 2000e-2(k)).¹ The availability of a disparate impact theory under the ADEA, however, is not so clear. In Hazen Paper Co. v. Biggins, the Supreme Court expressly declined to weigh in on whether the ADEA entitles a plaintiff to bring a disparate impact cause of action, stating that "we have never decided whether a disparate impact theory of liability is available under the ADEA, and we need not do so here." 507 U.S. at 610, 113 S.Ct. 1701 (internal citation omitted).

This express reservation has led to a debate amongst the courts of appeals regarding whether the ADEA, like Title VII, entitles a plaintiff to bring a disparate impact claim. Those courts of appeals extending the holding in Griggs to the ADEA do so based on the textual similarities between the prohibitory sections of the ADEA and Title VII. See Frank v. United Airlines, Inc., 216 F.3d 845, 856 (9th Cir.2000) (stating, post-Hazen, that "[w]e see no reason to depart from our conclusion ... and we again hold that a disparate impact claim is cognizable under the ADEA"); Criley v. Delta Air Lines Inc., 119 F.3d 102, 105 (2d Cir.1997) (following, without discussion, pre-Hazen law in stating that "in our circuit, we have recognized such a[ ] [disparate impact] action"); Smith v. City of Des Moines, 99 F.3d 1466, 1470 (8th Cir.1996) (stating that "even if we believed that Hazen Paper cast doubt on the validity of [pre-Hazen case law], Houghton [a post-Hazen case] represents the law of this Circuit" and must therefore be followed). Those courts of appeals declining to hold that a disparate impact theory is cognizable under the ADEA recognize the significant textual overlap in the prohibitory sections of the ADEA and Title VII, but they also look beyond this similarity, examining the entire ADEA statute (and the purpose behind its enactment) and finding important differences between the ADEA and Title VII that counsel against extending the Griggs holding to the ADEA context. See Adams v. Fla. Power Corp., 255...