The Second Circuit has reversed the grant of summary judgment in a Title VII case, holding in a split decision that the totality of the evidence permits the inference that female job applicant was denied a bricklayer position because of her gender.
The case is Walsh v. New York City Housing Authority, decided on July 7. The job interviewers met with five candidates, including Walsh, the only female candidate. They asked Walsh about her experience working with brick and block. She said he had once constructed a glass block shower at a Home Depot Expo, and had done "little things on her own." The interviewers testified that they were surprised that Walsh had limited experience with brick and block, but she testified that the interviewers did not ask about her extensive experience with tile. No one asked about physical strength. After the interview, the man who oversaw the interview process told Walsh that the interviewers wanted somebody stronger. No woman had ever been hired for the position. Defendants said she was not hired because she lacked experience with brick and block.
Summary judgment was granted for the Housing Authority, but the Court of Appeals (Hall and Calabresi) reverses, ruling that the jury could find that Walsh was denied the job because of her gender. The Court emphasizes that discrimination cases must be examined as a whole, and that "no one piece of evidence need be sufficient, standing alone, to permit a rational finder of fact to infer that defendant's employment decision was more likely than not motivated in part by discrimination." Drawing from the movie My Cousin Vinnie, the Second Circuit says that "plaintiff may satisfy her burden by building a wall out of individual evidentiary bricks."
The following evidence brings this case to a jury: (1) no woman has ever worked for the NYCHA as a bricklayer. The Court reaches this holding for the first time, citing a district court ruling in another case for the proposition that something funny's going on when an agency as large as the Housing Authority never had a woman performing certain tasks, and that "zero is not just another number"; (2) although in failure to hire cases the plaintiff must show her credentials were far superior to the selectees (a legal standard that is rarely satisfied in the Second Circuit), the jury could find Walsh had far superior qualifications than at least two of the men, as she much more experienced as a tile setter, one of the main tasks of a bricklayer; (3) the supervisor -- who "was tasked with facilitating the interview process" and was present when the hiring decisions were made -- told Walsh that the interviewers wanted a stronger person for the position, betraying the stereotype that men are stronger than women. The fact that this party-opponent admission arrives through plaintiff's own testimony does not mean the jury need not believe it. This so-called "self-serving" testimony can suffice at trial.
One side note is that the majority makes passing reference to pretext, even though most disparate treatment cases require proof that the employer's reason for the adverse decision was a knowingly false one. The majority instead looks at the big picture and asks if the jury can find that plaintiff has proven an intent to discriminate. Another side note is that this is the second major case in a year in which the Court of Appeals has emphasized the "totality of the circumstances" approach to discrimination cases. The other was Vega v. Hempstead Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which said plaintiffs can win through "bits and pieces" of evidence that may form a "mosaic" of discrimination.
It occurs to me that federal judges, most of whom did not handle discrimination cases when they were practicing law, have to master the complex burden-shifting scheme governing Title VII and other discrimination statutes without ever having briefed or argued these issues in their prior lives, and without counseling or representing plaintiffs or defendants in this area. Eventually, each judge figures this out quickly, as the federal docket is loaded with these cases. But even under settled legal standards, these cases are often judgment calls. What is discrimination? What inferences can we draw from the evidence? What do we allow jurors to conclude based on the evidence? When do we take the case away from the jury and dismiss the case outright?
I raise this because Judge Livingston turns in a lengthy dissent that says Walsh probably does not even have a prima facie case (as she had no bricklaying experience), and that the majority "comes close to eviscerating the plaintiff's burden at step three of the McDonnell Douglas test" (which asks whether the employer's reason for the adverse action was a pretext). In suggesting Judges Hall and Calabresi have stretched the evidence past the breaking point, Judge Livingston further says, "one is left wondering what the majority means by 'reasonable' and 'inference.'" She even interprets the significance of "My Cousin Vinny" differently. In response, Judge Hall defensively says the Court has not changed the rules governing these cases, writing:
What the dissent perceives as weak evidence or mere scintillae, comprise a set of facts from which, if proven, a reasonable jury could conclude that NYCHA’s proffered reason for not hiring Walsh was a pretext for discrimination. That two members of a panel of this Court view a particular factual record as sufficient to pass muster at the summary judgment stage while the third member views the same record as insufficient does not amount to a change in the substantive underlying law. It is the job of judges to “apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the [decision below] and the record” supporting it. It is inevitable that, some of the time, reasonable judges conducting this process will reach conclusions different from those of their colleagues on the same set of facts.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.