Waisome v. Port Authority of New York and New Jersey Appellants' Reply Brief

    To be argued by 
Eric Schnapper

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

FELIX WAISOME, FREDDIE McMILLAN, RICHARD B. 
KEITH, ELLSWORTH CORUM, JR., HILLARY KING, 
ROBERT L. BETHEA, and RODERICK W. UPSHUR on 
behalf of themselves and all those similarly 
situated,

Plaint if fs-Appe H a n t s ,

v.

THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; 
STEPHEN BERGER; THE BOARD OF COMMISSIONERS; 
HENRY I. DEGENESTE; and THE PORT AUTHORITY 
POLICE BENEVOLENT ASSOCIATION, INC.,

Defendants-Appellees,

GLEN KILDARE, et al.,
Intervenors-Appellees.

Appeal from the United States District Court 
for the Southern District of New York

APPELLANTS' REPLY BRIEF

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900 
Counsel for 
Plaint if fs-Appe Hants



TABLE OF CONTENTS

Argument
Page

1

1



TABLE OF AUTHORITIES
Cases Page

Eubanks v. Pickens-Bond Construction Co.,
635 F . 2d 1341 (8th Cir. 1 9 8 0 ) ......................... 2

Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
104 L.Ed. 2d 733 (1989).................................. 4

Watson v. Fort Worth Bank and Trust,
487 U.S. 977 ( 1 9 8 8 ) ....................................  2

Statutes & Rules

42 U.S.C. § 2000e et seg.....................................  2,6

29 C.F.R. § 1607.4(D) ......................................  4

Equal Employment Opportunity Commission,
Adoption of Questions and Answers to Clarify and 
Provide a Common Interpretation of the Uniform 
Guidelines on Employee Selection Procedures,
Question 21, 44 Fed. Reg. 11996, 11999
(March 2, 1979) ......................................... 6

Other Authorities

D. Baldus & J. Cole, Statistical Proof of Discrimination
§ 9.1, at 179 (Supp. 1987) ...........................  6

Shoben, Differential Pass-Fail Rates in Employment 
Testing: Statistical Proof under Title VII,
91 Harv. L. Rev. 793 (1978 ...........................  5

ii



91-7213

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

FELIX WAISOME, FREDDIE McMILLAN, RICHARD B. 
KEITH, ELLSWORTH CORUM, JR., HILLARY KING, 
ROBERT L. BETHEA, and RODERICK W. UPSHUR on 
behalf of themselves and all those similarly 
situated,

Plaintiffs-Appellants.

v.

THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; 
STEPHEN BERGER; THE BOARD OF COMMISSIONERS; 
HENRY I. DEGENESTE; and THE PORT AUTHORITY 
POLICE BENEVOLENT ASSOCIATION, INC.,

Defendants-Appellees.

GLEN KILDARE, et al.,
Intervenors-Appellees.

Appeal from the United States District Court 
for the Southern District of New York

APPELLANTS' REPLY BRIEF

Ultimately, this case is not about numbers, but about the 

cause of the disparity between black and white promotion rates. 

Many figures are, of course, part of this record. They are not 

disputed. It is uncontested that from 1987 to 1990, applicants for 

positions as sergeant with the Port Authority who were black were 

only half as likely to be promoted as applicants for those same 

positions who were white: 7.93% of black applicants and 14.03% of 

white applicants actually received promotions from the List. It

1



is also uncontested that black applicants received substantially 

lower scores than white applicants on the written component of the 

Port Authority's three-part selection process, and therefore passed 

that test at lower rates than white applicants. Disparate impact, 

as a matter of law, 42 U.S.C. § 2000e et sec. , describes a cause 

and effect relationship:
rCausation must be proved; that is, 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....
[S]tatistical disparities must be sufficiently 
substantial that they raise such an inference of 
causation.

Watson v. Fort Worth Bank and Trust. 487 U.S. 977, 994-95 (1988) 

(O'Conner, J.) (citations omitted; emphasis added). As amicus for 

the Port Authority points out, the pivotal issue is if the observed 

differences "'raise an inference of causation'" or "'if they 

represent only a random result."' Equal Employment Advisory 

Council Brief Amicus Curiae at 10 (citing Watson, 407 U.S. at 995 

(1988)); 21 (citing Eubanks v. Pickens-Bond Construction Co., 635 

F .2d 1341, 1347-48 (8th Cir. 1980)). Thus, the legal question in 

this case is whether the fact that whites were promoted at twice 

the rate of blacks was caused by the test or was merely a result 

of chance.
It is clear that this nearly two-fold difference was not a 

random occurrence. Indeed, none of the over one-hundred pages of 

the Port Authority's briefs and expert affidavits contain any claim 

that random occurrence, and not the written examination, was the 

actual cause of the lower promotion rate of black applicants. The

2



Port Authority does not rebut the only proven or plausible 

explanation for the gross disparities in promotions in this case: 

the racial discrimination of the selection process. Similarly, the 

District Court never made any finding regarding the cause of the 

disparities in both the test and overall promotion rates and never 

asserted that those disparities were a random occurrence.

Like the Port Authority, the District Court suggests that it 

"would appear that there is nothing other than the statistical 

basis for the complaint." J.A. 201. This statement is not a 

description of the breadth of the evidence in this record, but is 

rather a reflection of the Court's mechanistic approach to that 

evidence. Statistical significance and the four-fifths rule of the 

Guidelines are tools for comparing selection rates. As the Port 

Authority has repeatedly explained, proof of either mathematical 

measure does not automatically require a legal conclusion of 

adverse impact. But when, as in this case, black applicants were 

promoted at half the rate of white applicants, the overwhelming 

violation of the Guidelines' four-fifths rule demonstrates that the 

test was in fact the cause of the differences, i.e., it 

demonstrates adverse impact as a matter of law. This conclusion 

is corroborated by the distribution of the over two hundred other 

applicants who completed the selection process and were placed on 

the Eligibility List, relevant evidence ignored by the Court 

below.1

1The Port Authority entirely misses the importance of the 
distribution of the unpromoted black and white applicants on the

3



A breakdown of the selection process dispels any remaining

doubt that chance might have caused the disparity in actual 

promotions. Wards Cove Packing Co. v. Atonio instructs plaintiffs 

not only to examine the "bottom line" promotions but also to 

"demonstrate that it is the application of a specific or particular 

employment practice that has created the disparate impact under 

attack." Wards Cove, 490 U.S. 642, 104 L.Ed.2d 733, 751 (1989)

(emphasis added) . The Port Authority agrees that the oral and 

performance components were not the cause of any disparate impact 

against black applicants. Port Authority Brief at 28-29. 

Plaintiffs contend that the racial discrimination in the Port 

Authority's selection process arose from the written examination, 

which accounted for 55% of the composite score used to rank the 

Eligibility List. Every measure of the results of that written 

test reveals racial disparties that are too great to be explained 

by chance: the mean scores of black and white test takers; the 2

Eligibility List. Plaintiffs do not suggest that employers are 
required to "equalize scores or equalize the probabilities" of 
promotion. See Port Authority Brief at 11. Rather, plaintiffs 
contend that additional evidence of the selection process on 225 
other applicants is precise "evidence concerning the impact of the 
procedure over a longer period of time," and thus that it augments 
the sample of 75 actual promotions. 29 C.F.R. § 1607.4(D). The 
Port Authority does not refute either the Guidelines or the 
substantial precedent establishing that such evidence is relevant 
to a disparate impact inquiry.

2The difference in the 72.03 mean score of black test takers 
and the 79.17 mean score of white test takers can be measured at 
5.0 standard deviations, far beyond any random occurrence. The 
Port Authority's contention that this difference amounts to "2.2 
questions" is irrelevant to causation. Further, the Port 
Authority's naked assertion that 2.2 questions "in practical terms 
... is simply too close to warrant an inference of discriminatory 
impact," is but one of many examples of its undocumented attempts

4



pass rates measured at the cutoff score of 66 ;3 and the written 

performance measured at 76 (the score necessary to have any actual 

opportunity for promotion).4
The two-fold difference in actual promotion rates is legally 

significant, given the facts of this case. Plaintiffs established 

that the difference grossly violates the Guidelines' four—fifths 

standard. Further, plaintiffss isolated the discriminatory 

component of the selection process —  the written test and 

proved that the results of that test, by any measure, cannot be 

explained away by chance. The District Court's piecemeal 

rejections of rule-of-thumb, statistical, and practical measures 

of significance as applied to this case are indefensible for the

to assert "practicality." Port Authority Brief at 32. Cf. infra, 
note 5.

3The 78.13% black pass rate and the 89.57% white pass rate at 
a score of 66 yields a difference of 2.68 standard deviations, 
j .A . 194-95. The District Court recognized that the likelihood of 
this difference occurring by chance was less than one in one 
hundred. J.A. 195.

4The 42.18% rate of black test takers scoring 76 or better is 
drastically less than the 71.65% rate of white test takers at that 
score. J.A. 87-88. The standard deviation for this measure is 
4.77, clearly statistically significant. In the undisputed 
statement of facts, the opinion below, and the briefs before this 
Court, this statistical difference was erroneously recorded as 
2.68, the measure of the standard deviation of the written pass 
rate scored at 66. J.A. 88, 199 ; Appellants' Brief at 7; Port 
Authority Brief at 8, 25. Because the Court below had already 
indicated that it regarded 2.68 standard deviations in the written 
test results as statistically significant, J.A. 195, and because 
it rejected 76 as a relevant measure of the impact of the written 
test, J.A. 199, this undermeasurement does not appear to have 
affected the legal conclusions below. The correct standard 
deviation of 4.77 is calculated from the formula set forth in 
Shoben, Differential Pass-Fail Rates in Employment Testing: 
Statistical Proof under Title VII. 91 Harv. L. Rev. 793, 804-05 
(1978) .

5



reasons stated in the primary Brief of Appellants. Indeed, the 

Port Authority does not defend the District Court's definition of 

practical significance in terms of the effect of hypothetical 

changes on statistical significance; it concedes that "statistical 

significance may not be nullified in such a manner." Port 

Authority Brief at 27 n.12.5 More importantly, the Port 

Authority's Brief makes no attempt to address the central fact of 

this case: the written examination as the cause of the racial 

disparities in promotions.

5The Port Authority offers a new test of practicality that 
focuses on the "magnitude" of the "actual numbers of individuals 
impacted by the process." Port Authority Brief at 27, n.12. The 
District Court, however, made no such holding or finding. A 
construction of Title VII that prohibits discrimination only if 
many people are victimized at one time is directly contrary to the 
statute's express and repeated prohibition of discriminatory acts 
against "any individual." 42 U.S.C. § 2000e-2 et. seg.

In addition, consideration of the Port Authority's brand of 
"magnitude" would allow a court to discount the situation where, 
"if two of the promotees were Black instead of White, a comparison 
of promotion rates would bring the Black promotion rate within 80% 
of the White promotion rate." Port Authority Brief at 31. This 
manipulation of the facts to bring the data within the Guidelines' 
four-fifths rule commits the same error that the District Court's 
use of hypotheticals to alter the measure of statistical 
significance does. Measures of statistical significance already 
account for the sample size. See D. Baldus & J. Cole, Statistical 
Proof of Discrimination § 9.1, at 179 (Supp. 1987) . Similarly, 
while the Guidelines recognize hypothetical changes that completely 
invert the positions of advantaged and disadvantaged racial groups, 
there is no basis for speculating about changes that merely bring 
the selection rates closer to the four-fifths benchmark. See EEOC 
Questions and Answers, Question 21, 44 Fed. Reg. 11996, 11999 
(March 2, 1979). The Port Authority's attempt to shore up _ the 
District Court's indefensible explanations of "practical 
significance" simply fails.

6



For these reasons and those stated in the Brief of Appellants,

the judgment of the District Court should be reversed.

Dated May 31, 1991.

CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Counsel for
Plaintiffs-Appellants

7



CERTIFICATE OF SERVICE

I hereby certify that I have on this 31st day of May, 1991, 

served a copy of Plaintiffs-Appellants' Reply Brief in the Court 

of Appeals for the Second Circuit by placing same in the United 

States mail, postage prepaid, addressed to:

Carlene McIntyre, Esq.
Port Authority of New York and New Jersey 
Law Department, Floor 66N 
One World Trade Center 
New York, NY 10048

Gary Zaslov, Esq.
30 Vesey Street 
New York, NY 10001

Michael Axelrod, Esq.
Axelrod, Cornachio & Famighetti 
98 Willis Avenue 
Mineola, NY 11501

Douglas S. McDowell 
McGuiness & Williams
1015 15th Street, 
Suite 1200 
Washington, D.C.

N.W.