Waisome v. Port Authority of New York and New Jersey

• Citation: 948 F.2d 1370
• Decision Date: 19 November 1991
• Docket Number: D,No. 1673,1673
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 567, 57 Empl. Prac. Dec. P 41,094, 60 USLW 2403 Felix WAISOME; Freddie McMillan; Richard B. Keith; Robert L. Bethea; Ellsworth Corum, Jr.; Hillary King; Roderick W. Upshur on behalf of themselves and all those similarly situated, Plaintiffs-Appellants, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY; the Board of Commissioners; Stephen Berger; Henry I. Degeneste; the Port Authority Police Benevolent Association, Incorporated, Defendants- Appellees. ocket 91-7213.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1370

948 F.2d 1370

57 Fair Empl.Prac.Cas. (BNA) 567,

57 Empl. Prac. Dec. P 41,094, 60 USLW 2403

Felix WAISOME; Freddie McMillan; Richard B. Keith; Robert L. Bethea; Ellsworth Corum, Jr.; Hillary King; Roderick W. Upshur on behalf of themselves and all those similarly situated, Plaintiffs-Appellants, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY; the Board of Commissioners; Stephen Berger; Henry I Degeneste; the Port Authority Police Benevolent Association Incorporated Defendants- Appellees.

No. 1673, Docket 91-7213.

United States Court of Appeals Second Circuit.

Argued June 27, 1991.

Decided Nov. 19, 1991.

Eric Schnapper, New York City (Julius L. Chambers, Charles Stephen Ralston, NAACP Legal Defense and Educational Fund, Inc., of counsel), for plaintiffs-appellants.

Carlene V. McIntyre, New York City (Arthur P. Berg, Philip A. Maurer, James Begley, Milton H. Pachter, of counsel), for defendants-appellees The Port Authority of New York and New Jersey.

Samuel A. Marcosson, Washington, D.C. (Donald R. Livingston, Gwendolyn Young Reams, Vincent J. Blackwood, E.E.O.C., of counsel), for The E.E.O.C. as amicus curiae.

Douglas S. McDowell, Washington, D.C. (Robert E. Williams, Edward E. Potter, Garen E. Dodge, McGuiness & Williams, of counsel), for The Equal Employment Advisory Council as amicus curiae.

Before CARDAMONE, MINER and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal is from a dismissal of a Title VII action alleging disparate impact. To prove its claim, the plaintiff class relied on statistics. Although Holmes predicted that "the man of the future is the man of statistics," O.W. Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897), his prophecy has proved overly optimistic. Lawyers and judges working with statistical evidence generally have only a partial understanding of the selection processes they seek to model, they often have incomplete or erroneous data, and are laboring in an alien and unfamiliar terrain. Yet, the statistical evidence in this record evidences a disparity significant enough to suggest a violation of Title VII.

We must determine on this appeal whether the procedures used by the Port Authority of New York and New Jersey (Port Authority) to promote police officers to the rank of sergeant had a disparate impact on black candidates. Plaintiff class--all 64 of the black candidates seeking such promotion and all of whom participated in the promotion process (plaintiffs or appellants)--appeals from a judgment of the United States District Court for the Southern District of New York (Duffy, J.), entered January 29, 1991 granting the Port Authority's motion for summary judgment dismissing plaintiffs' complaint in its entirety.

Plaintiffs urge that the district court erred when it concluded the class had failed to demonstrate that the Port Authority's promotion procedures had a disparate impact on black candidates compared to white candidates sufficient to prove the existence of discrimination. We think it did, hence we remand this case to the district court for further proceedings.

FACTS

The events leading up to commencement of this suit are more fully set forth in the district court's thorough opinion, Waisome v. Port Auth. of New York and New Jersey, 758 F.Supp. 171 (S.D.N.Y.1991), with which we assume the reader's familiarity. We recount only those facts relevant to resolution of the issues before us. On July 11, 1986 the Port Authority announced the beginning of an examination process to establish a vertical list of officers and detectives eligible for promotion to the rank of sergeant. The list was to expire three years after it was issued. Candidates for promotion were required to be employed as police officers as of the date of the first test, have two years in grade as a Port Authority police officer including Academy training, and undergo the examination process.

That process had three steps: first, a written test designed to gauge a candidate's knowledge of the law, of police supervision, and of social and psychological problems at work; second, those who passed the written test took an oral test designed to measure judgment and personal qualifications; candidates who succeeded on the second step proceeded to the third and final step--a performance appraisal based on a supervisory performance rating and the candidate's attendance record.

Candidates completing the examination process were placed on an "Eligible List" by rank according to the weighted composite score achieved on the written and oral tests and on the performance appraisal. The written test accounted for 55 percent of the composite score, the oral test for 35 percent, and the performance appraisal for the final 10 percent. After the list was issued, the Port Authority promoted candidates to the rank of sergeant, as need required, starting with those achieving the highest total score, and proceeding down the list in order of rank. It was made clear that no candidates below the 120th position on the list could expect promotion.

A total of 617 candidates took part in the examination process, of whom 508 were white, 64 were black and 45 were in other groups. The passing score for the written part of the test was 66. The number passing the written examination was 539--of whom 455 were white and 50 were black. White candidates had therefore a pass rate of 89.57 percent and black candidates 78.13 percent. The rate at which black candidates passed the written examination was All but eight of the 539 applicants, that is, 531 of those who had passed the written test went on to take the oral test. Of these, 448 were white and 49 were black. The passing score on the oral examination, 69.9 percent, was achieved by 310 candidates, including 258 whites and 33 blacks. The pass rate for white applicants was 57.58 percent and that of black applicants was 67.35 percent. Thus, the pass rate of blacks was 116.97 percent of the white pass rate. All candidates who passed the oral test underwent a performance appraisal. Also undergoing the performance appraisal were six white officers who were "grandfathered" from a pre-existing list into the pool of applicants that successfully completed the written and oral examinations. No minimum score was required for a candidate to be placed on the Eligibility List. The mean score of whites on the performance appraisal was 94.37 and that of blacks was 94.17.

                87.23 percent that of the white test-takers.   The statistical measure of the difference between the pass rates is 2.68 standard deviations.   The mean score of blacks on the written examination was 72.03 percent and whites scored 79.17 percent, yielding a difference of 5.0 standard deviations.   The term "standard deviation," discussed more fully later in this opinion, refers to the probability that a result is a random one
                

The 316 candidates who underwent the performance appraisal were placed in order of their composite scores from the three steps of the examination process on the Eligibility List on March 30, 1987. Promotions were made from the top of the list moving downward, and during its three year life the 85th candidate was reached. These 85 candidates included 78 whites, 5 blacks, and 2 members of other groups. Four of the white candidates declined the promotions, two retired before being offered promotions, and two were among those grandfathered onto the list, leaving a net of 70 white officers actually promoted through the examination process. Fourteen (14) percent of all the white candidates who took the written test (70 of 501) were actually promoted. The comparable figure for black candidates was 7.9 percent (5 of 63). The success rate for the promotion of black candidates was therefore 55.52 percent of the rate for white candidates. The difference in selection rates is computed at 1.34 standard deviations.

Plaintiffs point out that 76 was the minimum score a candidate could achieve on the written component and still be within the top 85 candidates. According to plaintiffs and amicus curiae, the U.S. Equal Employment Opportunity Commission (EEOC), 42.2 percent of black candidates scored at least 76 on the written test while 78.1 percent of white candidates attained at least that score. Hence, the rate at which black candidates achieved a score of 76 was 58.9 percent of the rate at which white candidates did so. There is some confusion as to how many standard deviations this disparity amounted to, though the most accurate figure appears to be 4.77 standard deviations.

The named plaintiffs brought this class action on behalf of all 64 of the black candidates for sergeant who participated in the promotion process. Plaintiffs' original complaint alleged the promotion procedure had a discriminatory impact on black candidates in violation of Title VII of the Civil Rights Act of 1964, § 703, 42 U.S.C. § 2000e et seq (1988). On February 26, 1987 plaintiffs filed an amended complaint adding a claim that the procedure was adopted and administered with a discriminatory motive in violation of Title VII, the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1983, and the Fourteenth Amendment.

Named as defendants in plaintiffs' amended complaint were the Port Authority, its Executive Director and Board of Commissioners, the Superintendent of Police, and the Port Authority Police Benevolent Association, Inc. With the parties' consent the district court permitted 31 non-minority candidates to intervene. Plaintiffs sought injunctive relief enjoining the Port Authority from using the Eligibility List for promotions and requiring them to use non-discriminatory procedures in the future, and affirmative relief to redress the effects of the testing procedure. Because the district court believed plaintiffs had The parties entered into a stipulation, approved by the court on November 21, 1989, narrowing the scope of the issues to be litigated. Under the terms of the stipulation plaintiffs agreed...