Tuesday, July 17, 2012

2nd Circuit Holds Pattern-of-Practice Theory of Discrimination Not Applicable to Private Nonclass Plaintiffs

--Chin v The Port Authority of New York & New Jersey, Nos. 10-1904-cv(L), 10-2031-cv(XAP), (2nd Cir., July 10, 2012): Court of Appeals for the Second Circuit, in reversing district court, held that the pattern-or- practice method of proving liability was not available to plaintiffs in this private, nonclass action, as it was submitted to the jury which awarded plaintiffs back pay, compensatory damages, and equitable relief after filing suit under Title VII claiming they were passed up for promotion based on their race.  The 2nd Circuit also reversed the district court with respect to the district court’s determinationthat pursuant to the plaintiffs’ disparate impact theory, the “continuing violation” doctrine permitted the award of damages and equitable relief in connection with conduct predating the statute of limitations.

In declining to allow plaintiffs to use the pattern-or-practice method of proving discrimination, the Court stated:
Permitting private plaintiffs to use the pattern-or-practice method of proof outside the class action context would require us to extend this method beyond its current application. This we decline to do. Such an extension would allow nonclass private plaintiffs who have shown a pattern or practice of discrimination (but have not made out a disparate impact claim) to shift the burden to employers to prove that they did not discriminate against a particular individual. But this would conflict with the Supreme Court’s oft-repeated holding in the context of disparate-treatment, private nonclass litigation that “[t]he ultimate burden of pursuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To be sure, proof that an employer engaged in a pattern or practice of discrimination may be of substantial help in demonstrating an employer’s liability in the individual case. But such proof cannot relieve the plaintiff of the need to establish each element of his or her claim.
However, the Court did state that the pattern-or-practice theory of liability may be highly relevant to an individual disparate treatment or to a disparate impact claim. Outside the class context, however, private plaintiffs may not invoke the Teamsters method of proof as an independent and distinct method of establishing liability. 

The Court also held that the continuing-violation doctrine does not apply to disparate impact theories of discrimination because of the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which held that failures to promote are “discrete acts” of discrimination and thus do not implicate the continuing-violation doctrine. 

The 2nd Circuit remanded the case back to the district court for a new trial on damages which is heart-aching considering the previous jury awarded more than $1.6 million in total to those seven plaintiffs.

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