Recently, in Chin v. Port Authority of New York & New Jersey, 2012 U.S. App. LEXIS 14088 (2d Cir. July 10, 2012), the United States Court of Appeals for the Second Circuit made two key holdings involving proof requirements in individual discrimination cases and litigation hold requirements.
First, the Second Circuit held that private plaintiffs may not use the pattern or practice method of proving discrimination outside the class action context. Unlike most discrimination cases where the ultimate burden of proof is always with the plaintiff and the plaintiff must present a prima facie case of discrimination, under a pattern or practice method of proof the plaintiff is only required to prove the existence of an employer's discriminatory policy and then the burden of proof shifts to the employer to demonstrate that it did not discriminate against the plaintiff pursuant to that policy.
Second, the court addressed the consequences of an employer's failure to issue a litigation hold to preserve evidence once it was on notice of potential litigation. Rejecting a high-profile New York federal district court decision (which held that a party's failure to issue a written litigation hold constituted gross negligence per se), the Second Circuit held that a "case by case" approach to the failure to produce evidence must be applied and affirmed the trial court's refusal to issue an adverse inference instruction – despite an admitted loss of evidence.
In Chin, 11 Asian-American police officers who worked for the Port Authority of New York and New Jersey claimed that the Port Authority violated Title VII by failing to promote them due to their race. They did not bring their case as a class action. The plaintiffs asserted three theories of liability for discrimination: individual disparate treatment, pattern-or-practice disparate treatment, and disparate impact. After a nine-day trial, the jury unanimously found the Port Authority liable for discrimination against seven of the plaintiffs under all three theories.
At trial, 22 fact witnesses testified, including all 11 of the plaintiffs who testified about their personal backgrounds, education, experiences as police officers, attendance and disciplinary records, awards and commendations, and performance evaluations. Six chiefs, one former superintendent, the superintendent at the time of trial, and three other Port Authority managers testified regarding the Port Authority's promotional procedure. Each side also presented a statistical expert and a damages expert.
The plaintiffs presented a statistical expert who testified about two analyses that, in his view, demonstrated a high probability that Asian Americans had been discriminated against in the Port Authority's promotion process:
- In his first study, plaintiffs' statistical expert compared the percentage of white police officers who held a supervisory position (out of all white police officers) with the percentage of Asian Americans who held a supervisory position (out of all Asian-American police officers), using an industry-standard test known as the "Fisher Exact Test" to opine whether disparities were due to chance; and
- In his second study, plaintiffs' statistical expert compared the promotion rate for whites who were on the eligible lists to the promotion rate for Asian Americans who were on the eligible lists, again using the Fisher Exact Test to opine whether disparities were due to chance.
On appeal, the Port Authority argued, among other things,1 that the pattern-or-practice disparate treatment theory should not have been submitted to the jury in this private, non-class action.
One of the plaintiffs who did not prevail at trial, Howard Chin, alleged on appeal, among other things,2 that he was entitled to a new trial because the trial court denied plaintiffs' request for an adverse inference instruction even though the Port Authority destroyed certain promotional records and failed to institute a litigation hold upon receiving notice of the plaintiffs' EEOC charge.
The Second Circuit held that the district court should not have permitted non-class action, private plaintiffs to use a pattern or practice method of proof to establish their claims of discriminatory denial of promotion. Yet, the court affirmed the jury's verdict that the Port Authority was liable to the seven plaintiffs who prevailed at trial under both individual disparate treatment and disparate impact theories.3 The Second Circuit explained that it was permissible for the district court to allow the plaintiffs to use statistical evidence of a policy of discrimination to demonstrate the Port Authority's liability in their individual disparate treatment and disparate impact claims; however, the court emphasized that the prevailing plaintiffs had to, and did, demonstrate each required element of their disparate treatment and disparate impact claims.4
The Pattern or Practice Method of Proof Is Unavailable to Non-Class Action Private Plaintiffs
The U.S. Supreme Court originated the pattern or practice method of proof in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) – a class action alleging discriminatory hiring practices. The Court explained the pattern or practice method of proof by stating that once the class action plaintiffs "carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the [employer] . . ., the burden [was] upon [the employer] to prove that individuals who reappl[ied] were not in fact victims of previous hiring discrimination."5 The Court used the phrase "pattern and practice" to describe the common question of fact to be litigated by class plaintiffs (i.e., whether the employer had a discriminatory hiring policy).6 In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62 (1997), the Supreme Court applied the same pattern or practice method of proof used in the class action in Franks to a discrimination claim brought by the government seeking injunctive relief. Consequently, the pattern or practice method of proof is also known as the "Teamsters method of proof."
In Chin, the Second Circuit refused to extend the "Teamsters" or "pattern or practice" method of proof to private, non-class discrimination actions. The court explained that shifting the burden of proof to the employer once the employee showed a policy of discrimination "would conflict with the Supreme Court's oft-repeated holding in the context of disparate-treatment, private non-class litigation that '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'"7 The court explained that evidence of a policy of discrimination can help a plaintiff demonstrate the employer's liability in his or her individual case, but emphasized that a private, non-class plaintiff could not use the "Teamsters" or "pattern or practice" method of proof to establish each required element of his or her discrimination claim.8 The court noted that all other federal appellate courts that had previously considered this issue – including the Fourth, Fifth, Sixth, Seventh, Tenth and Eleventh Circuits – have found that "the pattern-or-practice method of proof is not available to private, non-class plaintiffs."9
The Employer's Failure to Issue a Litigation Hold Did Not Warrant Spoliation Sanctions
During discovery, the plaintiffs learned that the Port Authority had not implemented a document retention policy and that, as a result, at least 32 promotion folders used to make promotion decisions during the relevant time period (August 1999 to August 2002) had been destroyed. Appellant Howard Chin asserted that, pursuant to Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 464-65 (S.D.N.Y. 2010),10 the district court should have subjected the Port Authority to discovery sanctions in the form of an adverse inference instruction to the jury because the Port Authority's failure to issue a litigation hold to prevent the destruction of documents constituted gross negligence per se.11
The Port Authority did not dispute that, upon receiving notice of the filing of the plaintiffs' EEOC charge, it had an obligation to preserve the promotion folders, or that it failed to do so. It argued, however, that the district court did not abuse its discretion in denying an adverse inference instruction based upon that conduct. The Second Circuit agreed, and "reject[ed] the notion that a failure to issue a 'litigation hold' constitutes gross negligence per se." Instead, the Second Circuit held "the better approach is to consider [the failure to adopt good preservation practices] as one factor in the determination of whether discovery sanctions should issue,"12 citing Orbit Comm'ns, Inc. v. Numberx Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010).13
The Second Circuit also reasoned that, even if it assumed arguendo that the Port Authority was grossly negligent and that the destroyed documents were relevant, the Second Circuit has "repeatedly held that a ‘case-by-case approach to the failure to produce relevant evidence,' at the discretion of the district court, is appropriate,"14 thus the district court was permitted, but not required, to give an adverse inference instruction based upon such conduct.
Implications and Recommendations for Employers
- The Chin holding is important because, even in multiple-plaintiff cases, private, non-class plaintiffs bringing federal discrimination claims in the Second Circuit will continue to carry the ultimate burden of proof, even if they show the existence of a policy of discrimination. Each plaintiff must prove all of the elements of a disparate treatment claim. This should make it somewhat more difficult for such plaintiffs to prevail in a case based on an alleged discriminatory policy. However, it is not a panacea. It is notable that the Second Circuit upheld the portion of the jury's verdict that was premised on individual disparate treatment and disparate impact theories, notwithstanding its finding that the district court applied the wrong standard of proof.
- In the Second Circuit, the failure to institute a litigation hold does not warrant the per se imposition of discovery sanctions, especially the severe sanction of an adverse inference instruction to a jury. Instead, Chin reinforces the important role and wide discretion of the trial court in considering how to address the loss of evidence on a "case by case" basis, and the Second Circuit's express requirement that proof of "relevance" and "prejudice" is always required before spoliation sanctions may issue – even if a party acted in a grossly negligent manner. Chin also instructs that, rather than follow the per se standards pronounced in Pension Committee (which was written by one of the most influential judges in the country in the field of e-Discovery), trial courts must consider the totality of the circumstances – including the availability of other evidence (including testimony) – versus bright line rules, when addressing claims of alleged spoliation, similar to the analysis performed by Judge Francis in Orbit One. However, Chin still involved circumstances where the plaintiffs were not prejudiced by the Port Authority's failure to issue a written litigation hold and the consequent destruction of documents. While the Second Circuit's decision is helpful for addressing those circumstances, as a general matter, employers should take steps to institute a comprehensive preservation strategy that includes appropriate written litigation holds when the duty to preserve has been triggered.