Wednesday, July 10, 2013

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so
Margerum v City of Buffalo, 2013 NY Slip Op 05104, Appellate Division, Fourth Department

Firefighters employed by City of Buffalo Department of Fire sued the City contending that it had discriminated against them  (Fire Department), commenced this action alleging that defendants discriminated against by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that these firefighters [plaintiffs] who were next in line for promotion, were Caucasian.

Previously, the Appellate Division had held that [1] the action taken by the City was subject to strict scrutiny and [2] the plaintiffs had failed to establish "the absence of a compelling interest," particularly because " a sufficiently serious claim of discrimination' may constitute a compelling interest to engage in race-conscious remedial action."

A short time later the United States Supreme Court decided Ricci v DeStefano (557 US 557), holding that, "before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious discriminatory action."

Following Ricci, the Appellate Division affirmed an order that granted those parts of plaintiffs' motion for partial summary judgment on liability with respect to the Fire Department and the City, determining that defendants "did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire."

Supreme Court then conducted a nonjury trial on the issue of damages, and the City appeal from an order that awarded a total amount of $2,510,170 in economic damages and a total amount of $255,000 in emotional distress damages to the remaining plaintiffs.

The City appealed and the Appellate Division ruled that Supreme Court's awards for emotional distress were proper, but that the court erred with respect to its awards for economic damages.

The Appellate Division explained that that plaintiffs the established that their damages were proximately caused by the City's failure to promote them from the 2002 eligibility list. Thus, it its view, the plaintiffs met their burden of establishing that they would have been promoted but for the City's action in allowing the promotion eligibility lists to expire and suffered economic damages because they were not promoted.

As to the amounts of damages, the Appellate Division concluded that each amount of damages awarded for emotional distress is reasonable. However, it found that as to the awards for economic damages, Supreme Court “applied the wrong burden of proof and erred in relying on assumptions not supported by the record.”

Supreme Court had placed the burden of proof on the City to establish plaintiffs' economic damages. This was error as a plaintiff seeking, e.g., damages for loss of future earnings must "provide evidence demonstrating the difference between what he [or she] is now able to earn and what he [or she] could have earned" in the absence of discrimination.

Noting that recovery for lost earning capacity may be based on future probabilities and is not limited to actual past earnings and that a plaintiff is not required to establish loss of earnings with absolute certainty, the Appellate Division said that it is a "fundamental premise that loss of earnings or earning capacity must be established with reasonable certainty . . . and will be reduced if based upon mere speculation."

The Appellate Division then considered the evidence and expert testimony offered on the issue of economic damages and modified the Supreme Court’s determinations in whole or in part.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_05104.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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