The opinion of the court was delivered by: Anita B. Brody, J.
Plaintiffs Sharyn Stagi and Winifred Ladd bring this civil action against the National Railroad Passenger Corporation ("Amtrak"), asserting that a company policy that requires all union employees to have one year of service in their current position before they will be considered for promotion, has a disparate impact on female union employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and the Equal Protection component of the Due Process Clause of the Fifth Amendment. Because the plaintiffs' evidence of disparate impact lacks both statistical and practical significance, the plaintiffs have failed to make out a prima facie case of discrimination under Title VII.
This case concerns an allegedly discriminatory employment policy of the defendant, Amtrak. Amtrak's workforce is broadly divided into two groups of employees: union employees whose transfer and promotion rights within their particular unions are governed by collective bargaining agreements, and management employees, whose transfer and promotion are controlled through Amtrak's own employment policies and procedures. Plaintiffs Sharyn Stagi and Winifred Ladd are long-service employees of the defendant, and have held both union and non-union positions. Stagi began her career with Amtrak in 1973 as an entry-level union employee, in the capacity of reservation and information clerk. In the early 1990s she was promoted to Inventory Control Planner, and again later to System Analyst - a non-union, management position. Ladd had a similar career at Amtrak, also starting as a reservation and information clerk in 1973, and promoted within Amtrak's union ranks until she secured the supervisory management position of Operation Support Specialty in 1986. In April 2002, both Stagi and Ladd were laid off from their management level positions as a result of a corporate-wide management restructuring effort. However, because both plaintiffs had previously held union positions and had retained their union membership, they were entitled to "bump-down," or place bids to take non-management union jobs, albeit with lower pay and benefits. Both plaintiffs took advantage of this policy and secured union positions with Amtrak.*fn1
Within a year of being laid off, Amtrak posted vacancies for management positions. Stagi and Ladd applied to these positions and their applications were rejected.*fn2 Stagi and Ladd were notified that they could not be considered for these management positions because of an Amtrak policy known as PERS-4, which requires all union employees to have worked in their current position for at least one year before being considered for a posted management job (the "one-year rule" or the "Policy"). The Policy states in full:
A non-agreement covered employee may not apply for a posted non-agreement covered position if he or she has not been in his or her current position for at least one year.*fn3 An agreement covered employee may not apply for a posted non-agreement covered position unless he or she has been in his or her current union [sic] for one year.*fn4 However, if these restrictions create a hardship for Amtrak, the employee's supervisor, with the approval of the Human Resources Department, may grant an exception to this rule. (Am. Compl. Ex. A.)
The plaintiffs contend that the portion of the Policy that applies to employees seeking to move from agreement covered (union) jobs to non-agreement covered (management) jobs has a discriminatory impact on female employees because it has the effect of denying management opportunities to a disproportionate number of female employees, relative to male employees, in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, as incorporated into the Fifth Amendment.
Plaintiffs filed their complaint in this action on October 14, 2003. The complaint was amended on May 25, 2004 (Doc. #9). On December 30, 2005, the Court denied Amtrak's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Discovery proceeded and on April 4, 2007, the court held a discovery conference during which the court extended the close of fact discovery, and indicated that ruling on summary judgment would precede ruling on class certification (Doc. #58; see also Doc. #61). On February 29, 2008, the plaintiffs moved for class certification pursuant to Fed. R. Civ. P. 23 (Doc. #70). On April 21, 2008, Amtrak moved for Summary Judgment (Doc. #77). The Court ordered oral argument regarding both class certification and summary judgment, together, on September 8, 2008. Pursuant to the parties' request, oral argument on all motions was postponed until after summary judgment briefing was completed. (See Joint letter from counsel, dated September 4, 2008). On July 21, 2009, the Court heard oral argument and received testimony from the expert witnesses in anticipation of ruling on class certification.*fn5 Both class certification and summary judgment motions are now pending before the court.
II. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir. 1997). A factual dispute is "genuine" if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party "cannot rely merely upon bare assertions, conclusory allegations or suspicions to support its claim." Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence, through affidavits, depositions, or admissions on file, to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The court must draw all reasonable inferences in the non-moving party's favor. Matsushita, 475 U.S. at 587. In a disparate impact employment discrimination case, summary judgment is warranted if the plaintiff fails to make out a prima facie case of discrimination. See Foxworth v. Pennsylvania State Police, 228 Fed. App'x. 151, 155-56 (3d Cir. 2007) (affirming district court's grant of summary judgment where plaintiff's statistical evidence failed to make out a prima facie case of disparate impact).
III. Establishing a Claim of Disparate Impact Gender Discrimination Under Title VII
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits employers from discriminating against any individual with respect to hiring, or the terms and conditions of employment, and from limiting, segregating, or classifying "employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."*fn6 In Griggs v. Duke Power Co., the Supreme Court construed Title VII to proscribe both overt instances of discrimination, and also "practices that are fair in form, but discriminatory in operation." 401 U.S. 424, 431 (1971). Thus, an employment practice that is facially neutral may, in certain cases, be deemed violative of Title VII if it has a disproportionate effect on a protected group. This basis for liability under Title VII is known as "disparate impact" discrimination.
Unlike discrimination cases addressing "disparate treatment," disparate impact cases do not require proof of the employer's subjective intent to discriminate. Griggs, 401 U.S. at 432; Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 645 (1989). A prima facie case of disparate impact discrimination requires that the plaintiff first identify "the specific employment practice that is challenged." Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988). Second, the plaintiff must show "causation"; in other words, that the employment practice "causes a disparate impact on the basis of race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(k)(1)(A)(i). To show causation, the plaintiff must offer "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Watson, 487 U.S. at 994; see also Foxworth, 228 Fed. App'x at156. This means that statistical disparities must be "sufficiently substantial" such that they raise "an inference of causation." Watson, 487 U.S. at 994-95.
There is no "rigid mathematical formula" that satisfies the "sufficiently substantial" standard in the disparate impact analysis, id., however, the Equal Employment Opportunity Commission ("EEOC") has provided some guidance in the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 CFR § 1607.4 (D) (1987). While, the EEOC Uniform Guidelines are not binding on courts, the Supreme Court has indicated that the guidance of this administrative body should be considered with "great deference," and no consensus has developed around any alternative standard. Griggs, 401 U.S. at 433-34; Watson, 487 U.S. at 995 n.3. According to the Guidelines, evidence that a selection rate for any group is "less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest [selection] rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by the Federal enforcement agencies as evidence of adverse impact." 29 CFR § 1607.4 (D) (1987). This standard, known as the "Four-Fifths Rule," is not intended to be an absolute requirement: "Smaller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms or where a user's actions have discouraged applicants." Id. Notwithstanding the EEOC's "rule of thumb," courts have recognized that in the "complex area of employment discrimination," statistics "'come in infinite variety and ... their usefulness depends on all of the surrounding facts and circumstances.'" Watson, 487 U.S. at 995 n.3 (quoting Teamsters v. United States, 431 U.S. 324, 340 (1977)). For this reason, when faced with decisions as to whether the statistical evidence presented demonstrates adverse impact, courts generally evaluate the evidence on a case-by-case basis. Id.
If a plaintiff succeeds in making an initial showing of a specific employment practice and a statistical disparity that raises an inference of causation, the burden shifts to the defendant to show that the challenged practice is "job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Foxworth, 228 Fed. App'x at 156. In this phase, "the employer carries the burden of producing evidence of a business justification for his employment practice." Wards Cove, 490 U.S. at 659. However, the ultimate burden of proving discrimination against a protected group because of a specific employment practice remains with the plaintiff at all times. Id. Thus, if the employer meets the burden of proving that the challenged employment practice is "job related," it falls to the plaintiff to "show that other tests or selection devices, without a similarly undesirable ...