United States District Court, M.D. Pennsylvania
October 4, 2005.
DIANE STACKHOUSE, Plaintiff
PENNSYLVANIA STATE POLICE and COMMONWEALTH OF PENNSYLVANIA, Defendants.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court for judgment is the disparate impact
claim of plaintiff, Diane Stackhouse ("Stackhouse").
Stackhouse, a Lieutenant with the Pennsylvania State Police
("PSP"), instituted the above-captioned case in November 2001,
alleging claims of disparate impact, disparate treatment, and
retaliation under Title VII of the Civil Rights Act ("Title
VII"), 42 U.S.C. § 2000e-2(a). Specifically, Stackhouse contended
that PSP's promotions process from the rank of lieutenant to
captain had a disparate impact on women, and that she was a
victim of disparate treatment and of retaliation. In November
2004, summary judgment was granted in favor of defendants on the
retaliation claim. In September 2005, the disparate impact and
disparate treatment claims went to trial. Following four days of
testimony, the jury returned a verdict for defendants on the
disparate treatment claim, and an advisory verdict for defendants
on the disparate impact claim. See 42 U.S.C. § 1981a(a)(1), (c)
(providing right to jury trial for disparate treatment cases and
where compensatory or punitive damages, rather than equitable relief,
is at issue); Pollard v. Wawa Food Market, 366 F. Supp. 2d 247,
254 (E.D. Pa. 2005) (noting no right to jury trial under
disparate impact theory because it provides for equitable
relief). While recognizing that the findings of an advisory jury
are not binding,*fn1 upon review of the evidence and
testimony of record the court agrees that plaintiff has failed to
prove her disparate impact claim.
Title VII makes unlawful those employment practices that,
although not adopted with discriminatory intent, result in the
treatment of a protected class that is equivalent to intentional
discrimination. See Healey v. Southwood Psychiatric Hosp.,
78 F.3d 128, 131 (3d Cir. 1996). To establish this "disparate
impact," a plaintiff must prove that the employer's practice or
selection method has a substantial or significantly adverse
impact on a protected class. See
42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Newark Branch, N.A.A.C.P. v.
City of Bayonee, 134 F.3d 113, 121 (3d Cir. 1998). Causation
between the practice and the impact on the protected class is
typically established through the use of statistical evidence,
which must be "sufficiently substantial" to raise such an
inference. Newark Branch, 134 F.3d at 121; see also Watson
v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988).
Statistical evidence may be sufficiently substantial to raise an inference of disparate impact when the probability of the
observed result occurring randomly is less than 5%. See
Wilmore v. City of Wilmington, 699 F.2d 667, 670 (3d Cir.
1983); Commonwealth of Pennsylvania v. Rizzo,
466 F. Supp. 1219, 1231 (E.D. Pa. 1979).
In the matter sub judice, plaintiff challenged promotions
from PSP's 1998 promotions list. The 1998 promotions list
identified forty-eight candidates "immediately" eligible for
promotion to the rank of captain. Of the forty-eight candidates,
forty-two were men and six were women. Seven people were promoted
to the rank of captain from that list. All seven were men.
Both parties proffered expert opinion testimony regarding the
significance of the difference in the promotion rate of men and
women to the rank of captain. Plaintiff presented the opinion of
Dr. Charles Nielsen Brasher ("Dr. Brasher"). Dr. Brasher holds a
B.A., M.A., and Ph.D. in political science, and is a professor in
the department of political science at Shippensburg University.
Dr. Brasher took classes in quantitative methods as part of his
doctoral program, and his dissertation utilized statistical
analysis. He has taught classes in research and quantitative
methods including applied statistics and has published
several articles related to analyzing quantitative data.
Dr. Brasher testified that he could not conduct a statistical
analysis of the 1998 promotions list because it contained too few
candidates and too few women. Instead, he aggregated the 1998
promotions list with a 1996 promotions list, providing a total
pool of candidates large enough to perform an analysis under the Gamma and difference of proportions tests. According to Dr.
Brasher, these tests revealed that 33% of men were promoted,
compared with only 10% of women, and that these comparative rates
were statistically significant, having only a 3% chance of
Defendant presented the opinion of Dr. Christopher K. McKenna
("Dr. McKenna"), a recently retired Pennsylvania State University
professor. Dr. McKenna holds a B.A. and M.A. in mathematics, and
an M.A. and Ph.D. in Operations Research a field that includes
statistics, economics, and mathematical model building. From 1971
through 2002, Dr. McKenna taught undergraduate and graduate
courses in statistics, advanced statistics, research designs,
advanced research designs, survey methods, advanced multi-variate
methods, operations management, management information systems,
and computer applications statistics. His doctoral dissertation
utilized statistical analysis, and he is the author of a textbook
on quantitative methods, several statistics-related articles, and
a number of statistics-related reports prepared for various state
and federal agencies.
Dr. McKenna testified that the appropriate method for
performing a statistical analysis on the 1998 promotions is to
utilize the Fisher's Exact test, which is designed to analyze
statistical significance in small samples. Using the Fisher's
Exact test, Dr. McKenna found that there was no statistical
significance between the promotion rates of men and women and, in
fact, the promotion rate was the likely outcome, having a 36.6% chance of occurring
randomly.*fn2 Dr. McKenna also performed the Fisher's Exact
test on the combined 1996 and 1998 tests, and found that the
probability of the aggregated promotion rate occurring by chance
was not statistically significant, having a 12.2% chance of
The court finds Dr. McKenna's testimony and opinions
statistically more sound and more credible than Dr. Brasher's
opinions. Dr. McKenna testified that when an analysis involves
two outcomes (e.g., male and female) or a numerically small
sample, the Fisher's Exact test is the appropriate method for
assessing statistical significance. He cogently testified that
the analysis employed by Dr. Brasher was overly broad and useful
only when sufficient sample sizes are present.*fn4 Although Dr. Brasher testified that he believed
that his methods of analyses were preferred over the Fisher's
Exact test, Dr. Brasher did not offer any support for this
assertion. Indeed, he admitted that Fisher's Exact test was
designed for testing small sample sizes such as the one at
issue in this case and that under such a test the 1998
promotion rates were not statistically significant.
Accordingly, the court finds that Dr. McKenna's proffered
Fisher Exact test calculations are the correct method for
analyzing statistical significance in this case. While promotions
from the 1998 list to the rank of captain infer an imbalance in
the promotions process, application of the Fisher Exact test
reveals that the actual disparity between the promotion rates of
men and women is not statistically significant and hence
insufficient to infer causation for a disparate impact claim.
See e.g., E.E.O.C. v. Greyhound Lines, Inc., 635 F.2d 188,
192 (3d Cir. 1980) ("[N]o violation of Title VII can be grounded
on the disparate impact theory without proof that the questioned
policy or practice has had a disproportionate impact on the
[protected class]. . . . there can be no disparate impact unless
there is disparate impact."). Judgment will therefore be entered
for defendants and against plaintiff. An appropriate order will issue. ORDER
AND NOW, this 4th day of October, 2005, upon consideration of
the complaint (Doc. 1), and following a trial, and for the
reasons set forth in the accompanying memorandum, it is hereby
1. The Clerk of Court is directed to enter JUDGMENT
on all claims in favor of defendants Pennsylvania
State Police and Commonwealth of Pennsylvania and
2. The Clerk of Court is directed to CLOSE this case.
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