991 F.Supp. 174 (W.D.N.Y. 1998), 95-CV-6096, Wado v. Xerox Corp.

Docket Nº:95-CV-6096L through 95-CV-6101L, 95-CV-6103L through 95-CV-6106L, 95-CV6130L, 95-CV6176L, 95-CV-6189L, 95-CV-6190L and 95-CV-6331L.
Citation:991 F.Supp. 174
Party Name:Harold WADO, Plaintiff, v. XEROX CORPORATION, Defendant. Eugene HOSENFELD, Plaintiff, v. XEROX CORPORATION, Defendant. John S. BERNHARD, Plaintiff, v. XEROX CORPORATION, Defendant. Judith CARUANA, Plaintiff, v. XEROX CORPORATION, Defendant. Robert GUSCIORA, Plaintiff, v. XEROX CORPORATION, Defendant. George HAMANN, Plaintiff, v. XEROX CORPORATION,
Case Date:January 16, 1998
Court:United States District Courts, 2nd Circuit, Western District of New York
 
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Page 174

991 F.Supp. 174 (W.D.N.Y. 1998)

Harold WADO, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Eugene HOSENFELD, Plaintiff,

v.

XEROX CORPORATION, Defendant.

John S. BERNHARD, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Judith CARUANA, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Robert GUSCIORA, Plaintiff,

v.

XEROX CORPORATION, Defendant.

George HAMANN, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Pedro SANTIAGO, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Patricia RAKE, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Julie SCRIBNER, Plaintiff,

v.

XEROX CORPORATION, Defendant.

John B. SMITH, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Dominick MAIORANO, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Phillip D. CUFARI, Plaintiff,

v.

XEROX CORPORATION, Defendant.

A. George DNISTRIAN, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Salvatore J. CATALANO, Plaintiff,

v.

XEROX CORPORATION, Defendant.

Edward LALIK, Jr., Plaintiff,

v.

XEROX CORPORATION, Defendant.

Nos. 95-CV-6096L through 95-CV-6101L, 95-CV-6103L through 95-CV-6106L, 95-CV6130L, 95-CV6176L, 95-CV-6189L, 95-CV-6190L and 95-CV-6331L.

United States District Court, W.D. New York.

Jan. 16, 1998

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Theodore S. Kantor, Bilgore, Reich, Levine, Kroll & Kantor, Rochester, NY, for Judith Caruana, plaintiffs Harold Wado, Eugene Hosenfeld, John S. Bernhard, Judith Caruana, Robert H. Gusciora, George Hamann, Pedro Santiago, Patricia Rake, Julie Scribner, John B. Smith, Dominick J. Maiorano, Edward Lalik, Jr.

Donna Marianetti, Rochester, NY, for plaintiffs Philip D. Cufari, A. George Dnistrian, Salvatore Catalano.

Margaret A. Clemens, Eugene D. Ulterino, Nixon, Hargrave, Devans & Doyle LLP, Rochester, NY, for defendant Xerox Corp.

DECISION AND ORDER

LARIMER, Chief Judge.

These fifteen cases arise out of the fifteen plaintiffs' terminations from employment by defendant Xerox Corporation ("Xerox") in 1994. Plaintiffs assert claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and certain other anti-discrimination laws. Xerox has moved for summary judgment, and it has also moved in limine to exclude the testimony of plaintiffs' expert, Philip A. Smethurst, Ph.D. Because these cases involve many of the same facts and legal issues, for purposes of these motions and this Decision and Order I am consolidating these cases pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, which permits consolidation "of any or all the matters in issue" in "actions involving a common question of law or fact ..."

FACTUAL BACKGROUND

In December 1993, Xerox announced that for financial reasons, it was going to implement a worldwide reduction in force ("RIF") beginning in 1994, which would reduce Xerox's 97,500-employee workforce by some 10,000 employees. Although plaintiffs dispute some of Xerox's assertions about the method by which Xerox determined which employees would be laid off, at least ostensibly each organization within Xerox would determine the number of employees within that organization that would be terminated, and the method of doing so.

In the divisions in which plaintiffs worked, employees were to be ranked by their managers in four areas: work quality, work speed, work orientation, and work skills. The scores were entered onto a form known as a Contribution Assessment Form ("CAF"). When this process was completed, the employees would be stack-ranked against each other, and in general, the lowest-ranking employees would be terminated.

According to defendant, Xerox put in place a number of safeguards to ensure that the RIF was carried out fairly and without disparately affecting any protected categories of employees. Xerox states that senior managers would review employees' contribution assessments for consistency and fairness, and that Xerox's legal department also conducted analyses of the termination recommendations to make sure that they would not have a discriminatory effect.

Plaintiffs deny most of these allegations. Plaintiffs allege that the RIF process was essentially a sham. They contend that their contribution assessment scores were deliberately manipulated by Xerox management in order to achieve Xerox's goal of terminating certain categories of employees, including older employees, for discriminatory and unlawful reasons.

DISPARATE IMPACT CLAIMS

1. Disparate Impact Claims Under the ADEA

Twelve of the fifteen plaintiffs assert claims of age discrimination under theories of

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both disparate treatment and disparate impact. Three female and two male plaintiffs also assert disparate impact claims of sex discrimination and "reverse" sex discrimination respectively. Defendant has moved for summary judgment on all the disparate impact claims, on several grounds.

First, defendant contends that the disparate impact ADEA claims must be dismissed because such claims are not cognizable under the ADEA. Xerox argues that the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), though not directly addressing this issue, by its reasoning implicitly calls into question the continued validity of prior Second Circuit case law holding that disparate impact claims may be brought under the ADEA.

An extensive analysis of the implications of Hazen Paper is unnecessary, however, because after Xerox filed its motion, the Second Circuit handed down its decision in District Council 37, AFSCME v. New York City Dept. of Parks and Recreation, 113 F.3d 347 (2d Cir.1997). In District Council 37, the court noted that "the Supreme Court has not decided whether a disparate impact claim could be made under the ADEA," id. at 351 (citing Hazen Paper, 507 U.S. at 610), but added that since the Second Circuit had recognized such an action in Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir.1992), "despite the Parks Department's argument to the contrary, plaintiffs can make a disparate impact claim under the ADEA." Id.

The Second Circuit's holding in District Council 37 clearly forecloses Xerox's argument in the case at bar. Therefore, I will proceed to consider the merits of plaintiffs' disparate impact ADEA claims.

II. Requirements for Establishing a Disparate Impact Claim

A disparate impact claim is one that alleges a facially neutral policy that affects one class of employees more harshly than another and cannot be justified by business necessity. Maresco, 964 F.2d at 115. Proof of discriminatory intent is unnecessary. See Diehl v. Xerox Corp., 933 F.Supp. 1157, 1164 (W.D.N.Y.1996).

To establish a prima facie case of unlawful discrimination by showing disparate impact, each plaintiff "must first identify a specific employment practice having an adverse impact upon members of the protected class, i.e., 'that the practice excluded him or her, as a member of a protected group, from a job or promotion opportunity.' " Maresco, 964 F.2d at 115 (quoting Waisome v. Port Auth. of New York and New Jersey, 948 F.2d 1370, 1375 (2d Cir .1991)) (citations omitted). Statistical evidence may be used to establish a disparate impact claim, provided that it "reveals a disparity so great that it cannot be accounted for by chance ..." Waisome, 948 F.2d at 1375. In other words, "the statistical disparity must be sufficiently substantial to raise an inference of causation." NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir.1995).

If the plaintiff establishes a prima facie case, the employer then has the burden of coming forward with evidence to "show that the challenged practice had a legitimate purpose. If the employer meets this burden, the plaintiff must prove that the proffered purpose is pretextual." District Council 37, 113 F.3d at 352.

III. Plaintiffs' Disparate Impact Claims

In support of their disparate impact claims, plaintiffs rely entirely upon statistical analysis reports prepared by their expert, Dr. Smethurst. He concludes that the RIF resulted in a statistically significant disparity between the percentages of employees who were laid off in the 40-and-over group and those who were laid off in the below-40 group (and between males and females, with respect to some of the sex discrimination claims).

Xerox has moved in limine under Rules 702 and 403 of the Federal Rules of Evidence to exclude Smethurst's testimony. Defendant contends that Smethurst's methodology is so flawed in several respects that it should be excluded under the principles enunciated by the Supreme Court in Daubert v. Merrell

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Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)

The Court in Daubert held that the Rules of Evidence require the trial judge to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. 509 U.S. at 589. In particular, the Court noted, Rule 702 requires that "[t]he subject of an expert's testimony must be 'scientific ... knowledge,' " and that the expert's testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 589-91. When faced with a proffer of expert scientific testimony, then, the Court stated, the trial judge must make a "preliminary assessment of whether the reasoning or...

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