recognizing that plaintiff's failure to accept a substantially equivalent job offered by the defendant will toll the accrual of back pay liability by the defendant employer, although "the plaintiff's obligation in this regard [is] not absolute"
How later courts described this case
- recognizing that plaintiff's failure to accept a substantially equivalent job offered by the defendant will toll the accrual of back pay liability by the defendant employer, although "the plaintiff's obligation in this regard [is] not absolute"
- ruling that “in individual disparate treatment cases such as this, statistical evidence, which may be helpful, though ordinarily not dispositive, need not be [as] finely tuned” as in the class action — systemic employment practices — cases
- holding that even though the plaintiffs statistics did not account for the mimmum objective qualifications for the positions into which transfer or promotion was possible, they are relevant evidence of pretext
- noting that statistical evidence in individual disparate treatment cases “need not be ... finely tuned” and that “the usefulness of statistics will depend primarily upon their relevance to the specific decision affecting the individual plaintiff’ (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
GREENBERG, Circuit Judge,
dissenting.
I respectfully dissent. Bruno’s three statistical studies of transfers and promotions, new hires, and terminations had no probative value because they failed to take into consideration the “minimum objective qualifications” necessary for the positions at issue. The Supreme Court has concluded that statistical analyses offered into evidence in employment discrimination cases which do not take into consideration the special qualifications which may be necessary for the positions at issue are fundamentally flawed.
In Hazelwood School District v. United States, 433 U.S. 299 , 97 S.Ct. 2736 , 53 L.Ed.2d 768 (1977), a Title VII case in which the government alleged racial discrimination in the hiring of teachers, “the Court of Appeals rejected the trial court’s analysis of the statistical data as resting on an irrelevant comparison of Negro teachers to Negro pupils,” and “directed judgment for the Government.” Id. at 304-06 , 97 S.Ct. at 2740-41 . While it vacated the judgment of the court of appeals, 1 the Supreme Court observed that
the District Court’s comparison of Hazel-wood’s teacher work force to its student population fundamentally misconceived the role of statistics in employment discrimination cases. The Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood’s teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.
Id. at 308 , 97 S.Ct. at 2741-42 .
Although recognizing that work-force/general population comparative statistics may *773 be “highly probative ... [when] the job skill involved ... [ — such as] the ability to drive a truck — is one that many persons possess or can fairly readily acquire,” id. at 308 n. 13, 97 S.Ct. at 2742 n. 13 (discussing International Bhd. of Teamsters v. United States, 431 U.S. 324 , 339-340 & n. 20, 97 S.Ct. 1843 , 1856 & n. 20, 52 L.Ed.2d 396 (1977)), the Court stated that “[w]hen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13. 2
The Supreme Court in Hazelwood referred to Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 , 94 S.Ct. 1323 , 39 L.Ed.2d 630 (1974), as an example of a case “in which the racial-composition comparisons failed to take into account special qualifications for the position in question.” 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13 (citing Educational Equality League, 415 U.S. at 620-21 , 94 S.Ct. at 1333-34 ). In Educational Equality League , the plaintiffs alleged that the mayor of Philadelphia had violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against blacks in making appointments to the city’s panel charged with submitting nominees to him to fill vacancies on the city’s school board. The Supreme Court reversed the finding of racial discrimination by the court of appeals because it was based, in part, on “racial-composition percentage comparisons [of the panel’s racial composition to that of Philadelphia’s population] that we think were correctly rejected by the District Court as meaningless.” The Court stated that “this type of proof is too fragmentary and speculative to support a serious charge in a judicial proceeding.” 415 U.S. at 621 , 94 S.Ct. at 1333 . 3
In another Supreme Court Title VII case, Bazemore v. Friday, 478 U.S. 385 , 106 S.Ct. 3000 , 92 L.Ed.2d 315 (1986), the plaintiffs had attempted to introduce into evidence statistical studies based on multiple regression analyses designed to show that employee salary levels were affected by the employer’s racial discrimination. The district court held that, although the regressions used four variable factors, consisting of race, education, tenure, and job title, the failure to use other factors, including pay increases which varied by county, precluded their introduction into evidence. See id. at 398-99 , 106 S.Ct. at 3008 .
The district court’s decision to exclude this evidence was upheld by the court of appeals. However, the Supreme Court held that
[t]he Court of Appeals erred in stating that petitioners’ regression analyses were ‘unacceptable as evidence of discrimination,’ because they did not include ‘all measurable variables thought to have an effect on salary level.’ The court’s view of the evidentiary value of the regression analyses was plainly incorrect. While the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors ‘must be considered unacceptable as evidence of discrimination.’ Normally, failure to include variables will affect the analysis’ probativeness, not its admissibility.
*774 Id. at 400 , 106 S.Ct. at 3009 (emphasis added) (citation omitted).
It is significant that the Court added in a footnote that “[t]here may, of course, be some regressions so incomplete as to be inadmissible as irrelevant; but such was clearly not the case here.” Id. at 400 n. 10, 106 S.Ct. at 3009 n. 10.
In Bazemore , the Supreme Court addressed a statistical study which, although not including “all measurable variables,” included all “major factors.” Id. at 400 , 106 S.Ct. at 3009 . The statistical studies submitted by Bruno, however, were apparently not controlled for any factor other than age. 4 Furthermore, the plaintiffs in Bazemore had “presented evidence to rebut [defendants’] contention that county to county variations in contributions to salary explain the established disparity between black and white salaries.” Id. at 402 , 106 S.Ct. at 3010 . In this case, Bruno did not produce evidence to refute the defendants’ assertion that her statistical studies would show no disparities based on age if they had taken into consideration the minimum objective qualifications of the positions at issue.
Relying on Hazelwood, the United States Court of Appeals for the District of Columbia Circuit, in a Title VII case, noted that
[t]he most common nondiscriminatory explanation for a systemic disparity in treatment is a lack of qualifications among the minority group members. A plaintiff’s statistical evidence must therefore focus on eliminating this nondiscriminatory explanation by showing dispari-
ties in treatment between individuals with comparable qualifications for the positions at issue.
... [B]oth the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination.
... To ensure that a plaintiff’s methodology has eliminated the common nondiscriminatory explanation of a lack of qualifications, this circuit has developed a requirement that statistical evidence of disparities account for the minimum objective qualifications for the positions at issue.
Segar v. Smith, 738 F.2d 1249, 1274 (D.C.Cir.1984) (citing Hazelwood, 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13) (citation omitted), 5 cert. denied, 471 U.S. 1115 , 105 5.Ct. 2357, 86 L.Ed.2d 258 (1985); see Simpson v. Midland-Boss Corp., 823 F.2d 937 , 943-44 (6th Cir.1987) (ADEA); Palmer v. Shultz, 815 F.2d 84 , 91 & n. 6 (D.C.Cir.1987) (Title VII); Valentino v. United States Postal Serv., 674 F.2d 56, 69 (D.C.Cir.1982) (same); Grano v. Department of Dev., 637 F.2d 1073 , 1078-79 (6th Cir.1980) (same). 6
In its charge to the jury in this case, the district court, after discussing expert witnesses in general, referred to statistical evidence and stated that
in order for a statistical analyses [sic ] of an employer’s personnel decisions to reveal an apparent age bias not produced by chance or other nondiscriminatory factors in those personnel decisions, the analyses must utilize accepted methods
*775 and formulas and must account for the minimum objective qualifications for the positions filled by those personnel decisions.
Statistical analyses which apparently reveal an age bias in personnel decision making but which do not control for the minimum objective qualifications necessary for the positions studied are for all intents and purposes meaningless.
So you should scrutinize closely the statistics, the basis for them and recall the various apples and oranges, apples and apples arguments in looking at the statistics to see that they are of some assistance to you in reaching a proper result in this case.
App. at 379-80.
The difficulty with this charge, though a correct statement of the law, is that it required the jury to determine whether the statistical evidence was “meaningless,” ie., irrelevant, since devoid of probative value under Fed.R.Evid. 401 and 402. Although the district court properly charged the jury that in considering the value of the experts’ testimony it should take into account the facts on which their opinions were based and whether “their facts are in fact facts,” app. at 378, the court should have excluded the statistical evidence itself. 7 While a jury makes factual determinations, it surely does not undertake to make the legal determination of whether an analysis controls for “minimum objective qualifications.” What happened here is clear. Prejudicial irrelevant evidence was admitted which the jury was told to disregard if it made findings of law going not simply to weight but to admissibility. Here the only charge to the jury regarding the statistical evidence that would have been correct would have been an instruction to disregard it. The district court in this case wrongfully relinquished its function as the judge of the law, which includes the obligation to pass on the admissibility of evidence, to the jury. The threshold question of the admissibility of statistical evidence is simply not subject to conditional admissibility under Fed.R.Evid. 104(b).
I agree with the majority’s observation that while this is an individual disparate treatment case, it has been in class action disparate impact or disparate treatment cases in which the law regarding statistical evidence has largely developed. Majority op. at 766-67. The majority further points out that in an individual disparate treatment case statistical evidence, though helpful, will ordinarily not be dispositive, and with this I also agree, as in an individual treatment case the evidence will focus on the particular plaintiff rather than an overall class.
However, I part company with the majority’s conclusion that statistical evidence, irrelevant because inherently unreliable, can, somehow, in a different context, be relevant. The point is that the statistical evidence, whether introduced in a class action disparate treatment or impact case or an individual disparate treatment case, has the same purpose: to support the position of a party in a case involving a claim of discrimination. Thus, here the district court instructed the jury in its charge that Bruno’s statistical evidence was offered in support of her case. At most, the distinction between class actions and individual disparate treatment cases could be the basis for a harmless error analysis when flawed statistical evidence is admitted, but on the record here the evidence was not harmless and the majority does not undertake a harmless error analysis. Rather, it writes:
The statistical evidence in this case is being used to bolster the plaintiff’s case that the defendants’ articulated reason for an individual employment decision is a pretext. Even though it does not account for the minimum objective qualifications of the positions into which transfer or promotion was possible, we conclude that the studies are ‘relevant.’
Majority op. at 767.
Liability in this case was sharply disputed, and the outcome clearly could have *776 been a verdict for the defendants. The door is now open in this circuit to the admission of plainly irrelevant statistical evidence in individual disparate treatment cases. What else can be concluded from an opinion upholding the admission of statistical evidence which is acknowledged not to account “for the minimum objective qualifications of the positions into which transfer or promotion was possible”?
I have not ignored the majority’s conclusion that the defendants’ objections to the statistical studies were not properly preserved. Majority op. at 767. The majority, however, reaches this conclusion only with respect to the new hires and termination studies inasmuch as it reaches the merits of the defendants’ objections to the transfer and promotion study of persons over 40 as compared to those under 40.
In any event, the termination and new hire studies, even if valid, are of remote interest at best in this case. While there can be no doubt that Bruno’s prior position as Director of the Central Order Processing Department was terminated, that was because it was eliminated as a result of a management decision not in issue here. Bruno’s complaint is that she should have been given the position of Manager of Clinics Fulfillment, the position awarded to Dietrich. Accordingly, Bruno complains of a transfer decision. Thus, the transfer and promotion study is quite germane to this case while the new hires and termination studies have significantly less probative value.
Furthermore, as the majority acknowledges, even the new hires and termination studies were challenged by the defendants in a motion in limine. Majority op. at 767. The majority, however, finds this presentation insufficient to preserve the issue because the district court did not rule on the motion, and thus “there could be no reliance factor in this case,” majority op. at 768, meaning that the defendants could not have relied on an earlier ruling thereby to excuse their failure to object when the evidence was presented. I simply cannot agree with this analysis. The district court knew full well what the defendants’ position was on this issue. In fact, in its opinion on the defendants' renewed objections to the statistical evidence in their post-trial motion for a judgment notwithstanding the verdict or for a new trial, the district court simply wrote:
Defendants also argue that Dr. Sullivan’s studies were deficient. ‘Statistical evidence is an appropriate method for establishing disparate impact as indirect evidence of age discrimination.’ Blum v. Witco Chemical Corp., 829 F.2d at 372. Defendant's argument goes to the weight of the evidence, which, of course, is an issue for the jury alone to decide. See: Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 113 (3d Cir.), cert. denied, 484 U.S. 953 , 108 S.Ct. 156 , 98 L.Ed.2d 111 (1987).
App. at 517. 8
The district court thus did not suggest that the objection to the statistical evidence had been waived. Furthermore, even Bruno does not contend that the defendants waived their objections to admission of the statistical evidence on the basis of relevancy for in her brief on this appeal she states the following:
Defendants’ objection to the admission of Plaintiff’s statistical proofs is also waived since it is little more than a request for this Court to judge the credibility of competing expert witnesses. Such ‘sufficiency’ arguments, though presented as ‘relevance’ objections, were waived by non-inclusion in Defendants’ directed verdict motion.
Brief at 27-28 (emphasis added).
Clearly, a failure to argue on a motion for a directed verdict that certain evidence is insufficient to support a position is not a waiver of a prior objection that the evidence was not relevant.
I dissent for a second reason as well. As the Supreme Court pointed out in Ford Motor Co. v. EEOC, 458 U.S. 219 , 102 S.Ct. *777 3057 , 73 L.Ed.2d 721 (1982), in a Title YII case a plaintiffs duty to minimize her damages includes the requirement that she accept a substantially equivalent job offered by the defendant, failing which the accrual of back pay liability will be tolled. 9 This duty, however, does not require her to settle her claim against the employer in whole or in part, and thus she need not accept an offer contingent on compromising her claim against her employer.
Here the jury found that although Bruno was offered a position of Manager, Inventory Planning and Control, at Bellmawr, New Jersey, which was superior or substantially equivalent to the position of Manager of Clinics Fulfillment, she acted as a reasonable person in the circumstances in rejecting the offer. The majority indicates that the relevant interrogatory was designed “to address the question whether the offer ... was conditioned on Bruno dropping her age discrimination claim.” Majority op. at 770. This is an understandable conclusion inasmuch as the district court in denying the defendants’ argument in their post-trial motion that Bruno failed to mitigate her damages relied solely on her testimony that the Bellmawr position offer was contingent on her dropping her ADEA claim. This offer was made in October 1985, when Bruno was still employed as Director of the Central Order Processing Department. The majority explains that the jury was justified in its conclusion because Bruno testified that she was told that she had to drop her claim if she took the job and she took that to mean that “you better do it or they’re gonna find a way to get rid of you.” Majority op. at 770.
The problem is, as the majority recognizes, majority op. at 770, that Bruno subsequently was told in a written memorandum from William Wright of December 16,1985, that the Bellmawr job offer “is not, and never was, conditioned on dropping your claim.” 10 Bruno received this memorandum while the offer remained open and well before her May 1986, lay off. Accordingly, Bruno, at her option, could have been continuously employed by the defendants at a position at least substantially equivalent to that which she was losing. Therefore, it was her own intransigence which caused her damages.
The majority disposes of the defendants’ contention on this issue by indicating that the memorandum “merely presents a question of credibility. Notwithstanding the memo, the record contains sufficient evidence to support the jury’s conclusion.” Majority op. at 770-71. In a footnote the majority indicates that “[t]he defendants make no suggestion that Wright’s memo gave rise to any new duty on Bruno’s part.” Majority op. at 771 n. 9.
The question of Bruno’s continuing employment with the defendants, however, was subject to ongoing discussions and the defendants clearly contend that both before and after the December 16,1985, memorandum the Bellmawr position was available to Bruno. Although the defendants claim that at most there was originally a misunderstanding regarding the terms of this offer, as they never made it conditional on Bruno’s dropping her claim, I will assume that the offer was initially conditioned on her doing so. Nevertheless, the indisputable fact remains that while Bruno was still employed by the defendants, the Bellmawr position was open to her and she was told in writing that she could have it and still pursue her discrimination claim.
It is absolutely beyond my understanding how this written statement can be weighed against an earlier conversation and dismissed on a credibility basis. While I will not import the parol evidence rule into this opinion, I will simply say that obviously the written memorandum was controlling. *778 Surely in light of that memorandum, even ignoring other questions concerning the validity of compromises of ADEA claims, 11 it cannot seriously be contended that if Bruno had taken the Bellmawr position the defendants, on the basis of an alleged compromise, could have successfully moved for dismissal of her ADEA claim. Furthermore, I am not impressed with Bruno’s statement that she thought she would be fired if she took the new job and continued to press her claim. To start with, that understanding came from the original oral offer which was superseded by the December 16, 1985, memorandum. In any event, if she were fired because she would not drop her claim, she would have had a new claim based on the retaliation. While I recognize that such a claim would be subject to proof problems, the same was true for her original claim. 12
I have one final point with regard to the memorandum. Although it may well be that it was written on the basis of legal advice, what precluded the defendants from amending a previously unlawful offer to make it lawful? I should think that employers should be encouraged to amend conditional offers so as to come into compliance with the law. Cf. Ford Motor Co. v. EEOC, 458 U.S. at 229 , 102 S.Ct. at 3064 (in a Title VII case defendants should be encouraged to make curative, unconditional job offers to claimants to bring themselves into voluntary compliance and end discrimination far more quickly than in litigation).
I have dissented on two bases. As the first, if adopted by the court, would lead to a new trial and the second to the entry of a judgment for the defendants, my dissent leads me to vote for entry of an order remanding the matter for entry of a judgment for the defendants.
. The Court held that
the Court of Appeals erred in disregarding the post-Act hiring statistics in the record, and that it should have remanded the case to the District Court for further findings as to the relevant labor market area and for an ultimate determination of whether Hazelwood engaged in a pattern or practice of employment discrimination after May 24, 1972.
433 U.S. at 313 , 97 S.Ct. at 2744.
. In two recently decided Title VII cases, the Supreme Court has reaffirmed the Hazelwood requirement that statistical studies purporting to provide evidence bearing on employment discrimination take into account the qualifications required for the positions at issue. See Wards Cove Packing Co. v. Atonio, — U.S.-, 109 S.Ct. 2115, 2121-22 , 104 L.Ed.2d 733 (1989); Watson v. Fort Worth Bank and Trust, 487 U.S. -,-, 108 S.Ct. 2777, 2790 , 101 L.Ed.2d 827 (1988).
. The Court observed that "assuming, arguendo, that percentage comparisons are meaningful in a case involving discretionary appointments, the relevant universe for comparison purposes consists of the highest ranking officers of the categories of organizations and institutions specified in the city charter, not the population at large.” 415 U.S. at 620-21 , 94 S.Ct. at 1333 .
. Bruno does not contend, nor could she in the face of her expert witness’s trial testimony to the contrary, that the statistical studies were controlled for specific job qualifications. See app. at 603-623.
. In Anderson v. Group Hospitalization, Inc., 820 F.2d 465 (D.C.Cir.1987), a Title VII case where the employer’s promotion practices were at issue, the court observed that, although in the usual case "no inference of unlawful racial animus can be drawn from a statistical comparison that fails to account for relevant job qualifications,” taking into account such qualifications was unnecessary where the employer had established "no objective critera governing promotions.” Id. at 469, 470 ; see Davis v. Califano, 613 F.2d 957, 964-65 (D.C.Cir.1979). However, here there is ample evidence, including Bruno's testimony and documentary evidence concerning defendants' personnel policy, including job posting, see, e.g., app. at 880, 895, 897, 900-900h, showing that at least some of the positions which were the subject of the statistical studies required particular qualifications.
. The standard for relevancy should be the same whether the statistical evidence is offered to rebut the employer’s evidence that the employment decision was non-discriminatory and thus legitimate, as it apparently was in this ADEA case, or as part of the employee’s attempt to establish prima facie employer discrimination, typically in Title VII disparate impact cases.
. Although Bruno contends that defendants presented no evidence concerning the minimum qualifications of the positions covered by the studies, she herself testified at trial about the skills required for some of these positions. See app. at 588-601. In any case, the party seeking to introduce evidence has the burden of demonstrating that it is relevant so as to be admissible. See 22 C. Wright & K. Graham, Federal Practice and Procedure § 5166, at 69 n. 20 (1978).
. This post-trial opinion treating arguments directed to the deficiency in the studies as going to weight rather than admissibility is consistent with its charge which gave the jury the function of making threshold admissibility determinations.
. I agree with the majority and the parties that Ford Motor Co. applies to ADEA actions.
. The germane paragraph in the memorandum reads in its entirety as follows:
(4) The Bellmawr job offer is not, and never was, conditional on dropping your claim. If it was, the condition would necessarily have been stated in writing. In the absence of such, the state agency would have to decide whether acceptance of the job had bearing on the claim. This is not the Company’s prerogative. I do not understand how your perception of this matter evolved.
. See, e.g., Chillo v. Arco Chemical Co., 862 F.2d 448 (3d Cir.1988).
. I realize that the position Bruno accepted and then rejected required a somewhat longer commute than the position awarded Dietrich. But that did not stop Bruno from finding it acceptable, because, as the majority points out, she first took the position but changed her mind four weeks later. Majority op. at 763. Obviously, the distance was no problem then. Furthermore, there was evidence that the Bellmawr commute was 45 minutes and thus the additional time for that commute over that to the Clinics Fulfillment position in Philadelphia could not have been substantial. Indeed, the majority does not even discuss the possibility that the commuting distance would have justified Bruno in turning down the Bellmawr position. In any event, if the jury could have made its finding that Bruno acted reasonably in rejecting the Bellmawr position because of the commuting distance, a new trial should be granted because the jury might nevertheless have made its finding that Bruno reasonably rejected the Bell-mawr position on the basis of the offer being conditional on her dropping her claim. See Bone v. Refco, 774 F.2d 235, 242 (8th Cir 1985).