Mandala v. NTT Data, Inc. ( 2021 )

19-2308-cv
Mandala v. NTT Data, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 23rd day of February, two thousand twenty-one.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
GEORGE MANDALA, CHARLES
BARNETT, individually and on behalf of
all others similarly situated,
Plaintiffs-Appellants,
v. 19-2308-cv
1
NTT DATA, INC.,
Defendant-Appellee.
_____________________________________
For Plaintiffs-Appellants: Ossai Miazad, Lewis M. Steel, Christopher
M. McNerney, Outten & Golden LLP, New
York, NY; Rachel Bien, Outten & Golden
LLP, Los Angeles, CA; Sherrilyn A. Ifill,
Janai S. Nelson, Samuel Spital, Rachel M.
Kleinman, NAACP Legal Defense &
Educational Fund, Inc., New York, NY;
Catherine Meza, NAACP Legal Defense &
Educational Fund, Inc., Washington, DC.
For Defendant-Appellee: Jacqueline Phipps Polito, Jessica F.
Pizzutelli, Littler Mendelson P.C., New
York, NY.
Following disposition of this appeal on September 21, 2020, Plaintiffs-
Appellants filed a petition for rehearing en banc and an active judge of the Court
requested a poll on whether to rehear the case en banc. A poll having been
conducted and there being no majority favoring en banc review, the petition for
rehearing en banc is hereby DENIED.
Richard J. Sullivan and William J. Nardini, Circuit Judges, joined by Debra
Ann Livingston, Chief Judge, and José A. Cabranes and Michael H. Park, Circuit
Judges, concur by opinion in the denial of rehearing en banc.
Rosemary S. Pooler, Circuit Judge, joined by Denny Chin, Raymond J. Lohier,
Jr., and Susan L. Carney, Circuit Judges, dissents by opinion from the denial of
rehearing en banc.
Denny Chin, Circuit Judge, joined by Rosemary S. Pooler, Robert A.
Katzmann, Raymond J. Lohier, Jr., and Susan L. Carney, Circuit Judges, dissents by
opinion from the denial of rehearing en banc.
2
Raymond J. Lohier, Jr., Circuit Judge, joined by Rosemary S. Pooler, Robert
A. Katzmann, Denny Chin, and Susan L. Carney, Circuit Judges, dissents by
opinion from the denial of rehearing en banc.
Peter W. Hall, Circuit Judge, took no part in the consideration or decision of
the petition.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
RICHARD J. SULLIVAN and WILLIAM J. NARDINI, Circuit Judges, joined by DEBRA ANN
LIVINGSTON, Chief Judge, and JOSÉ A. CABRANES and MICHAEL H. PARK, Circuit
Judges, concurring in the order denying rehearing en banc:
Unsurprisingly, we concur in the order denying rehearing en banc – we are,
after all, the members of the majority that voted to affirm the district court’s
dismissal of the complaint in this matter. We add this brief concurrence only to
explain our belief that the dissents misapprehend the nature and consequences of
the panel majority opinion, which reflects a heartland application of the
plausibility pleading standard that has been the law of this Circuit for more than
a decade. Put simply, we see no reason to fear that requiring Title VII plaintiffs to
allege a plausible link between their chosen statistics and the qualified labor pool
for the jobs in question will fundamentally alter the existing Title VII architecture.
The thrust of the dissents’ argument is that statistics concerning the general
population can be used to “nudge” a disparate impact claim “across the line from
conceivable to plausible” at the pleading stage. Post, Chin, J., dissenting from
denial of rehearing en banc, at 6 (internal quotation marks and brackets omitted);
see also post, Pooler, J., dissenting from denial of rehearing en banc, at 3. As a
general proposition, we agree. See Mandala v. NTT Data, Inc., 975 F.3d 202, 210–11
(2d Cir. 2020). But courts are not called on to announce general propositions; they
are tasked with deciding particular cases based on specific pleadings. And the
specific pleadings here do not plausibly allege that the general population is likely
to be representative of the qualified labor pool for the jobs in question. In fact, the
allegations in the complaint suggest that the general population is unlikely to be
representative of the qualified labor pool.
At the pleading stage, a Title VII disparate impact complaint must plausibly
allege that (i) a specific employment practice or policy exists, (ii) a disparity exists,
and (iii) there is a causal connection between the two. Id. at 207–09. While
reference to statistics frequently satisfies this pleading burden, both caselaw and
common sense make clear that not just any statistics will do. Id. at 209–11. After
all, “statistics come in infinite variety and . . . their usefulness depends on all of the
surrounding facts and circumstances.” Malave v. Potter, 320 F.3d 321, 327 (2d
Cir. 2003) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 996 n.3 (1988)).
In the disparate impact context, this means, among other things, that a plaintiff’s
chosen statistics must focus on disparities between appropriate comparator
groups – that is, the individuals holding the jobs at issue and “the qualified
population in the relevant labor market.” Mandala, 975 F.3d at 210 (footnote
omitted) (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650 (1989),
superseded by statute on other grounds, 42 U.S.C. § 2000e–2(k)).
2
Naturally, information about these particular groups may be difficult to
obtain during discovery, let alone at the pleading stage. So we often allow
plaintiffs to rely on surrogate statistics to prove disparities between comparator
groups that they otherwise could not measure directly. In many cases, this
includes statistics for the general population. Mandala, 975 F.3d at 210–11; see also
Malave, 320 F.3d at 326. But not always.
As the panel majority opinion concludes, general population statistics may
be used only when there is reason to think that they will reflect the qualified labor
pool for the positions in question. See Mandala, 975 F.3d at 211 (citing Dothard v.
Rawlinson, 433 U.S. 321, 330 (1977); Malave, 320 F.3d at 326; and EEOC v. Freeman,
961 F. Supp. 2d 783, 798 (D. Md. 2013), aff’d, 778 F.3d 463 (4th Cir. 2015)); see also
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.13 (1977) (explaining that
“[w]hen special qualifications are required to fill particular jobs, comparisons to
the general population . . . may have little probative value”). Not only is this rule
consistent with precedent, it makes good sense. If there is no plausible link
between the alleged disparate impact and the statistics that the plaintiff uses to
plead his case, then those statistics are at most merely consistent with liability.
And “[w]here a complaint pleads facts that are merely consistent with a
3
defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” 1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).
Of course, as Judge Chin’s dissent indicates, and as the panel majority
opinion acknowledges, “at the pleading stage, a plaintiff need not prove the
accuracy of a statistical study’s findings or the rigor of its methodology; he need
only generally allege the facts that, accepted as true, make his alleged injury
plausible.” Post, Chin, J., dissenting from denial of rehearing en banc, at 13–14
(brackets omitted) (quoting John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 737 (2d
Cir. 2017)); see also Mandala, 975 F.3d at 209–10 (citing John, 858 F.3d at 737). But
one must be careful not to elide the distinction between testing the soundness of a
statistical study, and determining whether that study and its statistics, if taken as
true, make the plaintiff’s claim plausible. While John concerns the former, 858 F.3d
1 The Supreme Court’s decision in Dothard v. Rawlinson does not counsel otherwise. To be sure,
the plaintiffs in Dothard were permitted to rely on national height and weight data even though
the defendants argued that the only relevant data was that of the Alabama-based pool of
applicants for the corrections-officer position in question. 433 U.S. at 329–30; see also post, Chin,
J., dissenting from denial of rehearing en banc, at 12. But that was only because “there was no
reason to suppose that physical height and weight characteristics of Alabama men and women
differ markedly from those of the national population.” Dothard, 433 U.S. at 330; see also Wards
Cove Packing, 490 U.S. at 651–52 (rejecting the plaintiffs’ proffered statistics because there was no
reason to believe that those statistics were representative of the qualified applicant pools for the
positions in question).
4
at 737, the panel majority opinion turns on the latter. Put differently, John stands
for the unremarkable proposition that, at the pleading stage, we accept as true the
findings of statistical studies. But that does not mean that we must take as true
every inference that a plaintiff asks us to draw from those findings no matter how
attenuated.
In affirming the dismissal of Plaintiffs’ complaint, the panel majority
opinion reasoned that Plaintiffs had failed to provide any connective tissue
between their proffered statistics and the qualified labor pool in question (indeed,
just the opposite). The dissents assert that the panel majority opinion arrived at
this conclusion by impermissibly drawing inferences against Plaintiffs. Not so.
To start, Judge Chin’s dissent suggests that the panel majority opinion’s
conclusion was premature because “the applicant pool . . . has not yet been
defined,” post, Chin, J., dissenting from denial of rehearing en banc, at 23, and
because we don’t yet know whether the “Salesforce developer” and “web
developer” positions at issue here require specialized training or education not
shared among the general population, id. at 24–25. 2 But Plaintiffs’ complaint says
2Judge Chin’s dissent also suggests that the panel majority opinion overlooks the fact that
Plaintiffs’ claims apply to positions other than just Salesforce developer and web developer. Post,
Chin, J., dissenting from denial of rehearing en banc, at 5, 24–25. But the complaint contains factual
5
otherwise. For one thing, “the positions’ titles alone . . . reflect that they require at
least some educational or technical experience that is not shared by the general
population.” Mandala, 975 F.3d at 211–12. For another, the complaint goes out of
its way to highlight Plaintiffs’ educational and technical credentials – including
Charles Barnett’s “Masters of Science in Computer Science Technology,” J. App’x
at 14 – which indicates that those credentials are relevant to the jobs in question.
Importantly, Plaintiffs never allege that those credentials are shared by the general
population.
Next, the dissents suggest that, even if the qualified labor pool in question
is more educated than the general population, that does not prohibit Plaintiffs
from pleading a plausible claim based only on general population statistics. Post,
Chin, J., dissenting from denial of rehearing en banc, at 25–26; post, Pooler, J.,
dissenting from denial of rehearing en banc, at 3–7. Again, we disagree.
Conviction rates and educational attainment are nearly certain to be
inversely correlated on an absolute basis. See Mandala, 975 F.3d at 212 (reasoning
that “it is not much of a stretch to imagine that arrest and conviction rates are
negatively correlated with education (at least to some degree)”). This is not to
allegations about only those two jobs; it does not identify any other positions that NTT offers. See
Mandala, 975 F.3d at 212 n.6.
6
suggest any particular causal relationship between education and a decrease in
conviction rates; there is simply a longstanding link between the two. In other
words, the conviction rates for African Americans (and, for that matter,
individuals of any race) will fall as we control for higher educational attainment.
This conclusion is not, as Judge Pooler’s dissent suggests, “a negative
inference [drawn] against the complaint that was not in the record.” Post, Pooler,
J., dissenting from denial of rehearing en banc, at 4. “The determination of whether
a complaint states a plausible claim for relief is ‘a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.’” EEOC
v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 258 (2d Cir. 2014) (quoting Iqbal, 556 U.S.
at 679). Here, common sense dictates that highly educated individuals can be
expected to have lower conviction rates than the general population – indeed,
Judge Pooler’s dissent acknowledges as much. See post, Pooler, J., dissenting from
denial of rehearing en banc, at 5. The panel majority opinion simply applied that
understanding in considering whether the allegations in the complaint stated a
plausible claim for relief. In other words, the panel majority opinion simply
concluded that Plaintiffs were asking the district court to draw inferences that,
7
based on common sense, were too attenuated from the supplied statistics to be
plausible.
Of course, as Judge Chin’s dissent points out, that absolute conviction rates
will fall as we consider more highly educated segments of the population does not
mean that the disparity between the conviction rates for African Americans and
whites will necessarily disappear. Post, Chin, J., dissenting from denial of
rehearing en banc, at 26. But what it does mean is that, based on the allegations in
the complaint, we have no idea what the difference between African American
and white conviction rates will be once we limit our focus to highly educated
individuals. And that is precisely the point. All we know is that, for highly
educated individuals of any race, their conviction rates are unlikely to look like
the rates for the general population. Without more, then, the disparities observed
in general population statistics are merely consistent with Plaintiffs’ disparate
impact theory and do not make their claim plausible. 3
3Judge Chin’s dissent asserts that the panel majority opinion simply invented this “confounding
variable” rationale on its own. See post, Chin, J., dissenting from denial of rehearing en banc,
at 4 n.1. Again, not so. That the general population statistics in question do not single-handedly
render Plaintiffs’ claims plausible was addressed in the district court’s opinion, see Mandala v.
NTT Data, Inc., No. 18-cv-6591 (CJS), 2019 WL 3237361, at *3 (W.D.N.Y. July 18, 2019) (reasoning
that “[t]he statistics Plaintiffs cite in the complaint do not indicate whether the individuals in the
general population cited shared qualifications that would make them viable candidates for either
of the positions offered to Plaintiffs”), in NTT’s brief, see NTT Br. at 20–21, 21 n.10 (arguing that
8
As the panel majority opinion was careful to explain, this does not mean
that national statistics can never be used in disparate impact cases involving
skilled positions. Plaintiffs simply need to “provide additional allegations to
explain why their chosen national statistics are in fact likely to be representative
of [the] qualified applicant pool” in question. Mandala, 975 F.3d at 212. Here, that
could have taken the form of additional national statistics indicating that, even as
education levels increase, racial disparities between conviction rates remain. But
Plaintiffs failed to provide such allegations. It is for that limited reason that the
panel majority opinion affirmed the district court’s dismissal of Plaintiffs’
complaint for failure to state a claim.
While that is sufficient to resolve the matter, it bears noting that new facts
introduced by an amicus brief filed in support of rehearing the case confirm this
conclusion and underscore the limited impact of the panel majority opinion.
Specifically, a brief submitted by several criminology and sociology professors,
Dkt. No. 146, identifies a study indicating that “Black men with some college
education have imprisonment risks that are seven times greater than white men
with some college education (4.9% for Black men compared to 0.7% for white
“general population statistics have no application to Plaintiffs[’] claims” because “only qualified
individuals” are subject to the at-issue policy), and at length during oral argument.
9
men),” post, Chin, J., dissenting from denial of rehearing en banc, at 9 (quoting
Kurlychek Amicus Br. at 9); see also post, Pooler, J., dissenting from denial of
rehearing en banc, at 6. In other words, the very figures that might have rendered
Plaintiffs’ claims plausible not only exist but also are publicly available; Plaintiffs
simply failed to include them in their pleadings. See Port Auth. of N.Y. & N.J., 768
F.3d at 258 (noting that “imprecise pleading is particularly inappropriate where
the plaintiffs necessarily had access, without discovery, to specific information
from which to fashion a suitable complaint” (internal quotation marks and
alterations omitted)).
As a result, we see no reason to believe that the panel majority opinion will
become “a dangerous precedent” that shuts the courthouse door to disparate
impact claims. Post, Chin, J., dissenting from denial of rehearing en banc, at 28.
The fact that such publicly available statistics exist indicates that there is ample
factual material on which future litigants may rely to plead plausible disparate
impact claims.
* * *
To be clear, we do not take issue with the dissents’ descriptions of the
significance of Title VII. See, e.g., post, Pooler, J., dissenting from denial of
10
rehearing en banc, at 7–8. Indeed, just the opposite. But even on matters of great
importance, we are required to apply the pleading standards as set forth by the
Supreme Court and this Court, and under those standards, Plaintiffs’ complaint
falls short.
For decades, Title VII claims – just like all other claims – were subject to a
plaintiff-friendly notice pleading standard. See Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002). That changed with the Supreme Court’s announcement of the
plausibility pleading standard in Twombly and Iqbal. For better or for worse, that
standard made it harder for all plaintiffs, not just Title VII plaintiffs, to state a claim
for relief. Although one can surely debate the merits of this approach, neither the
Supreme Court nor this Court has ever suggested that Title VII claims are
somehow exempt from the plausibility standard. See Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (applying the plausibility standard to a
Title VII disparate treatment claim); Littlejohn v. City of New York, 795 F.3d 297, 311
(2d Cir. 2015) (same). The panel majority opinion simply held Plaintiffs to that
burden and agreed with the district court that they had failed to meet it in this
particular case. Accordingly, we concur in the order denying rehearing en banc.
11
ROSEMARY S. POOLER, Circuit Judge, joined by DENNY CHIN, RAYMOND J. LOHIER,
JR., and SUSAN L. CARNEY, Circuit Judges, dissenting from the order denying
rehearing en banc:
I join fully in Judge Chin’s thorough and compelling dissent from the
order denying rehearing en banc. I write separately to emphasize two key issues.
First, the panel opinion takes the wrong approach to Federal Rule of Civil
Procedure 12(b)(6)’s plausibility standards by making inferences favoring the
Defendants while declining to make obvious inferences for Plaintiffs that would
rebut the central basis of the panel majority’s reasoning. Second, they take this
flawed approach in the context of a Title VII lawsuit, undercutting one of the
most important pieces of legislation in this country’s history.
The principal flaw in the panel opinion is its inversion of the traditional
standard applied to pleadings at the motion to dismiss stage. As our court has
once before, this panel opinion has imposed a heightened standard for
employment discrimination against the instructions of the Supreme Court. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (“[I]mposing the Court of
Appeals’ heightened pleading standard in employment discrimination cases
conflicts with Federal Rule of Civil Procedure 8(a)(2).”). This case rests on a
simple question—whether a blanket policy of excluding individuals with felony
convictions from employment at NTT has a disparate impact on black applicants.
To any person with a cursory understanding of America’s troubled racial history,
the answer is clearly yes. Most Americans understand that the criminal justice
system has quite clear racial biases that create disparate outcomes for black
Americans. 1
These beliefs are accurate reflections of the state of criminal justice in this
country. We should be clear. Black Americans are more likely to be arrested,
convicted, and sentenced more harshly than are whites. In 2019, black Americans
represented 13.4% of the U.S. population but 26.6% of all arrests by law
enforcement, whereas whites represented about 76.3% of the population and
69.4% of arrests. 2 The panel opinion does not deny this but instead uses a
statistical sleight of hand to hide the clear implications of NTT’s blanket policy.
1 See, e.g., Drew Desilver, Michael Lipka & Dalia Fahmy, 10 Things We Know About
Race and Policing in the U.S., Pew Rsch. Ctr. (Jun. 3, 2020),
https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-
race-and-policing-in-the-u-s/ (“Majorities of both black and white Americans say
black people are treated less fairly than whites in dealing with the . . . criminal
justice system as a whole. . . . 87% of blacks and 61% of whites said the U.S.
criminal justice system treats black people less fairly.”)
2 See U.S. Census Bureau, QuickFacts: Population Estimates (July 1, 2019),
https://www.census.gov/quickfacts/fact/table/US/PST045219; Fed. Bureau
2
Plaintiffs in this case offered general statistical studies showing the
disparate conviction rates among the general population between black and
white individuals. Joint App’x at 15. In Wards Cove Packing Co. v. Atonio, the
Supreme Court recognized that “where figures for the general population might .
. . accurately reflect the pool of qualified candidates, . . . we have . . . permitted
plaintiffs to rest their prima facie cases on such statistics.” 490 U.S. 642, 651 n.6
(1989) (citations and internal quotation marks omitted), superseded by statute on
other grounds, 42 U.S.C. § 2000e-2(k), as recognized in Texas Dep’t of Hous. & Cmty.
Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 542 (2015). This is not a
particularly difficult standard, and it seems clear that general population
statistics “might” reflect the pool of qualified candidates here. At the motion to
dismiss stage, it is certainly plausible that the general population statistics are
reflective of the pool of applications to NTT.
In response, the panel majority points to only one salient distinction
between the general population and the applicant pool: education levels. See
Mandala v. NTT Data, Inc., 975 F.3d 202, 211–12 (2d Cir. 2020). On this basis, the
Investigation, Uniform Crime Reports, Arrests by Race and Ethnicity (2019),
https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/table-43.
3
panel majority argues that the complaint failed to adequately allege that general
population statistics are an appropriate proxy for the qualified applicant pool at
issue here, reasoning that “it is not much of a stretch to imagine that arrest and
conviction rates are negatively correlated with education (at least to some
degree). So, while Plaintiffs’ statistics show that African Americans are on
average more likely to have been convicted of a crime than whites, that does not,
without more, make it plausible that an African American web developer with
the educational and technical qualifications to work at NTT is more likely to have
been convicted of a crime than his Caucasian counterpart.” Id at 212. This
paragraph, critical to the panel majority’s reasoning, is where the majority takes a
wrong turn.
The panel majority explicitly acknowledges that it assumes what the data
will show regarding education levels. In stating it is “not much of a stretch to
imagine that arrest and conviction rates are negatively correlated with education
(at least to some degree),” the majority draws a negative inference against the
complaint that was not in the record. While statistics provided in amicus briefs
reveal that the panel majority is likely correct that as education levels rise arrest
and conviction rates fall, it is not clear why the panel majority considered it
4
appropriate to amend the record nostra sponte. Nor does the opinion concurring
in the denial of rehearing en banc offer further insight as to where this
determination may be found in the record. Instead, the opinion assures us that
the court is “nearly certain” about this relationship, “there is simply a
longstanding link between the two” factors, and “conviction rates for African
Americans . . . will fall as we control for higher educational attainment.”
Concurring Op. at 6. The concurrence concludes that this judicial determination
was merely a matter of “common sense.” Id. at 7.
I am quite willing to agree that education levels and conviction rates are
likely negatively correlated. However, I am equally certain that racial disparities
will continue to exist even after education levels are considered. It is “nearly
certain” that this disparity will continue to exist, given the longstanding link
between conviction rates and race across education levels, and conviction rates
for black Americans remains higher than for whites as we control for higher
educational attainment. While the concurrence argues that its assumptions
regarding the relationship between education levels are a matter of “common
sense,” that ability to use common sense and judicial experience to draw
conclusions is absent once race enters the equation. In the next paragraph the
5
concurring judges profess ignorance of how race will interact with education,
“[B]ased on the allegations in the complaint, we have no idea what the difference
between African American and white conviction rates will be once we limit our
focus to highly educated individuals. . . . All we know is that, for highly
educated individuals of any race, . . . conviction rates are unlikely to look like the
rates for the general population.” Concurring Op. at 8. Applying the same
common sense that most Americans exercise in their views of the criminal justice
system and our judicial experience overseeing that system, we know more than
this. We know that racial disparities in conviction and arrest rates will persist
across all education levels. Indeed, as set forth in another amicus brief, the data is
quite clear on this point. See Brief for Megan C. Kurlychek et al. as Amici Curiae
Supporting Appellants, Mandala v. NTT Data, Inc., 975 F.3d 202 (2d Cir. 2020)
(No. 19-2308) at 8-9 (noting “[b]lack men with some college education have
imprisonment risks that are seven (7) times greater than white men with some
college education”).
If the panel majority felt comfortable making its own assumptions
regarding how education levels interacted with arrest and conviction rates, it is
unclear why they did not feel comfortable making the equally obvious
6
assumption that racial gaps remain as education levels increase. I see no valid
principle that permits the court to draw one inference but not the other,
particularly at the motion to dismiss stage, all reasonable inferences must be
drawn to favor plaintiffs. Our precedent clearly required the panel majority to
either make both assumptions or neither, but the majority elected instead to
employ its own standards to dismiss this case.
The concurrence notes that the availability of statistics regarding the
interaction between race, education, and conviction rates offer sufficient facts for
future litigants to successfully plead plausible disparate impact claims. I
encourage both future litigants to bring such cases and the Plaintiffs here to
move under Rule 60 for relief from the district court’s judgment in order to file
an amended complaint that includes statistics incorporating the continued racial
gaps in conviction rates as education levels rise. While I hope the district court
will allow such amendments and other courts will hear similar cases
incorporating these statistics, it should not fall to litigants to correct for the panel
majority’s failure to apply the proper standards.
The flaws in the panel opinion are particularly important for our Court to
remedy because they undercut Title VII. Title VII may be this century’s most
7
important piece of remedial legislation. Title VII struck a body blow to the race-
based caste system that defined this country for centuries, and its promise of fair
treatment has now thankfully been extended to the LGBT community. See Bostock
v. Clayton County, --- U.S. ---, 140 S. Ct. 1731 (2020). By employing an eccentric
and heightened pleading standard in this case, and importing facts from outside
the record, the panel majority and concurrence suggest our Court will find ways
to shut the door on litigants seeking to vindicate their civil rights. That is not the
message we should send to litigants, especially in these troubled times.
After months of protests, violence, and threats to the Nation’s most
storied institutions and principles, more citizens than ever have questioned how
different standards of treatment under law for black and white Americans have
persisted from our founding to today. Instead of following our precedents and
allowing this case to proceed for an examination of the consequences of these
inequities, our Court has implemented a novel approach to shut the courthouse
doors on plaintiffs. I respectfully dissent.
8
DENNY CHIN, Circuit Judge, joined by ROSEMARY S. POOLER, ROBERT A.
KATZMANN, RAYMOND J. LOHIER, JR., and SUSAN L. CARNEY, Circuit Judges,
dissenting from the order denying rehearing en banc:
By denying the petition for rehearing en banc, the Court ignores a
question of exceptional importance: the adverse impact of an absolute
convictions bar on individuals seeking employment -- an impact
disproportionately borne by African Americans. The heightened pleading
standard created by the panel majority for disparate impact cases brought
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
("Title VII"), presents a risk that many meritorious civil rights cases will not be
reached on the merits. This is particularly troubling now in light of the
implications for the struggle for racial equality that Title VII reflects, as the
nation continues to address the issue of systemic racism.
As the panel majority observes, "[f]acts are stubborn things," see
Mandala v. NTT Data, Inc., 975 F.3d 202, 205 (2d Cir. 2020), and the statistics cited
by plaintiffs in this case highlight an indeed "stubborn" -- and sobering -- fact:
significant racial disparities in arrest, conviction, and incarceration rates persist
in this country, disparities that have resulted in unfair and unnecessary barriers
to employment. By acquiescing to the panel majority's use of a heightened
pleading standard, the Court weakens Title VII, and threatens to "shut[] the
courthouse door" to those who may have valid disparate impact claims. Petition
for Rehearing at 16.
As alleged in their complaint, plaintiffs-appellants George Mandala
and Charles Barnett were offered jobs by defendant-appellee NTT Data, Inc.
("NTT") -- Mandala a position as a software consultant in New York and
Massachusetts, and Barnett a position as a web developer in Kentucky. NTT
withdrew the offers, however, after learning that Mandala and Barnett had
previously been convicted of crimes. NTT did so pursuant to its blanket policy
of denying employment to job applicants based solely on the fact of a prior
conviction, without considering individual factors such as the nature and
circumstances of the crime, its age, its bearing (if any) on the applicant's ability to
perform the job sought, and evidence of rehabilitation and post-conviction good
conduct.
Mandala and Barnett, who are African American, brought this
action, alleging that NTT's policy of rejecting applicants for employment because
of prior convictions without individualized consideration has a disparate impact
on African Americans seeking employment, in violation of Title VII. Plaintiffs
2
supported the allegations in their class action complaint with statistics showing
that, on a national basis, "African Americans are arrested and incarcerated for
crimes at higher rates than Whites, relative to their share of the national
population." Joint App'x at 15.
The district court granted NTT's motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court rejected
plaintiffs' reliance on national statistics, holding that the statistics "do not
indicate whether the individuals in the general population cited shared
qualifications that would make them viable candidates for either of the positions
offered to Plaintiffs." Joint App'x at 70.
The panel majority affirmed. It largely adopted the district court's
reasoning, holding that plaintiffs "provide no allegations to demonstrate that
national arrest or incarceration statistics are in any way representative of the pool
of potential applicants qualified for a position at NTT." 975 F.3d at 211. The
panel majority rejected plaintiffs' reliance on national statistics, speculating that
education is a "confounding variable" and musing that it is "not much of a stretch
to imagine that arrest and conviction rates are negatively correlated with
education (at least to some degree)." Id. at 211-12. The panel majority thus
3
presumes that the applicant pool for NTT is more highly educated than the
nationwide population as a whole, and it surmises that racial disparities in arrest
and conviction rates dissipate with increased education. Id. 1
To support its reasoning, the panel majority observes that "[a]
simple example of this pitfall would be to apply national height averages to
certain subgroups of the population, say NBA players and horse-racing jockeys."
Id. at 211. But this case does not involve unique subgroups such as NBA players
and horse-racing jockeys, elite athletes who indisputably are at opposite
extremes of the height scale. Rather, the case involves two everyday individuals
who received job offers for the not uncommon positions of software consultant
and web developer, in different parts of the country, from a company with some
18,000 employees in North America and over twenty offices in the United States.
1 Notably, the concept of a "confounding variable" formed the core of the panel
majority's original decision. See 975 F.3d at 211. Yet, this was the panel majority's own
creation. Indeed, even though NTT had access to data about its own qualified applicant
pool, it did not argue in its brief on appeal that its pool of qualified applicants was more
educated on average than the national population. See Appellee's Brief at 10-11
(arguing only that "qualified individuals" were at issue, that is, those NTT circularly
defined as individuals who "applied for, were qualified for, and received an offer of
employment with NTT"). Moreover, confounding variables are, by definition, variable.
By declining to rehear the panel decision, the Court allows to stand a ruling that gives
district judges discretion, before any discovery has been conducted, to select
confounding variables that can proscribe the use of otherwise relevant general
population statistics, and that permits appellate judges to inject such variables on their
own initiative into the analysis on appeal.
4
While NTT's applicant pool may be different in some respects from the
nationwide general population, it is certainly plausible that the workforce at NTT
is not substantially different from the general population, and that any
differences that do exist are not so significant as to render the national statistics
irrelevant. The panel majority concludes otherwise -- even though the issue
arose at the pleading stage, before any discovery, when information about NTT's
applicant pools was not available.
Even assuming, as the panel majority suggests, that the relevant
applicant pool should be limited solely to the web developer and software
consultant positions (which is likely unwarranted given the policy's blanket
nature and geographic reach), it is certainly plausible -- even probable, as
explained below -- that the racial disparity in conviction rates does not dissipate
with education. And even if education serves to narrow the racial gap in
conviction rates, there is no basis to conclude that education eliminates that
disparity.
In hypothesizing that NTT's applicant pool is so different from the
general population that national arrest and conviction statistics must be
inapposite, the panel majority draws an inference against plaintiffs, disregarding
5
governing pleading standards, controlling caselaw, and the well-settled principle
that "[o]n a motion to dismiss, the question is not whether a plaintiff is likely to
prevail, but whether the well-pleaded factual allegations plausibly give rise to an
inference of unlawful discrimination, i.e., whether plaintiffs allege enough to
'nudge[ ] their claims across the line from conceivable to plausible.'" Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citations omitted);
accord Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015). And in doing
so, the panel majority imposes a heightened pleading standard for Title VII
disparate impact cases, requiring something distinctly more than mere
plausibility.
For these and the further reasons discussed below, I respectfully
dissent.
I. The National Statistics
As plaintiffs plausibly allege and national statistics show, "African
Americans are arrested and incarcerated for crimes at higher rates than Whites,
relative to their share of the national population." Joint App'x at 15. The
complaint cites statistics from the Federal Bureau of Investigation (the "FBI"), the
6
U.S. Department of Justice, the U.S. Census Bureau, the U.S. Equal Employment
Opportunity Commission (the "EEOC"), and scholars, as follows:
● as of 2010, 40% of prisoners in the United States
were African American, while African Americans represented only
13% of the overall U.S. population (Prison Policy Initiative study) 2;
● some 26.9% of arrests are of African Americans,
double their percentage of the general population (FBI and Census
statistics);
● projections based on recent trends in
incarceration estimate that one out of every three Black males born
today will go to prison, compared to just one out of every seventeen
White males, see Marc Mauer, Addressing Racial Disparities in
Incarceration, 91 Prison J. 87S, 88S (2011);
● audit studies conducted by researchers at
Harvard and Princeton found that African Americans with criminal
records were particularly disadvantaged in the job market compared
to Whites with criminal records, Joint App'x at 15 (citing scholarly
journals); and
● the Department of Justice found that Blacks are
arrested and convicted at higher rates than Whites, leading the
EEOC to conclude that "[n]ational data . . . supports a finding that
criminal record exclusions have a disparate impact based on race
and national origin." Joint App'x at 15.
2 The Prison Policy Initiative study reports racial disparities in incarceration rates
not just nationally but in every state. See Leah Sakala, Breaking Down Mass Incarceration
in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity, Prison Pol'y
Initiative (May 28, 2014) (https://www.prisonpolicy.org/reports/rates.html).
7
Department of Justice statistics, noted in the EEOC Enforcement
Guidance, show that, as of 2010, Black men were incarcerated at almost seven
times the rate of White men: Black men were imprisoned at the rate of 3,074 per
100,000, while White men were imprisoned at the rate of 459 per 100,000. 3 And
much of this disparity cannot be attributed to the conduct of the individuals
subjected to incarceration. For example, studies show that White and Black
Americans are equally likely to use drugs and that White Americans are more
likely to deal them; yet, Black Americans are arrested for drug crimes at far
higher rates. See Am. Civil Liberties Union, A Tale of Two Countries: Racially
Targeted Arrests in the Era of Marijuana Reform, at 28-29 (2020)
(https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-
marijuana-reform); Christopher Ingraham, White People Are More Likely to Deal
Drugs, But Black People Are More Likely to Get Arrested For It, Wash. Post (Sept. 30,
2014) (https://www.washingtonpost.com/news/wonk/wp/2014/09/30/white-
people-are-more-likely-to-deal-drugs-but-black-people-are-more-likely-to-get-
3 See EEOC Enforcement Guidance on Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, (April
25, 2012) (https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-
arrest-and-conviction-records-employment-decisions) (citing U.S. Dep't of Just., Bureau
of Just. Stat., Prisoners in 2010, at 27 tbl.14 (2011) (https://bjs.gov/content/pub/pdf/
p10.pdf)).
8
arrested-for-it/); see also Kurlychek Amicus Brief at 11 ("[W]hite youth are more
likely than minority youth to use marijuana, [but] studies continually show that
minority youth are more likely to be arrested for such crimes, particularly
marijuana possession.").
While the panel majority speculates that the applicant pools for NTT
are more highly educated than the general population and that racial disparities
in arrest and conviction rates will decrease with education (drawing the
inferences against plaintiffs), see 975 F.3d at 212, as amici point out, "[t]here are no
available statistics to show that racial disparities in criminal conviction rates
decrease, much less disappear, with increased education." Kurlychek Amicus
Brief at 8-9. To the contrary, statistics show otherwise. For example, one study
shows that "Black men with some college education have imprisonment risks
that are seven times greater than white men with some college education (4.9%
for Black men compared to 0.7% for white men)." Id. at 9. And even assuming
the disparities lessen with increased education, there is no reason to assume that
9
they disappear altogether. Indeed, it is far more reasonable, at the pleadings
stage, to infer that they do not. 4
Statistics also show that a criminal record has a substantially larger
impact on Black Americans than on White Americans. See Devah Pager, The
Mark of a Criminal Record, 108 Am. J. Soc. 937, 959 (2003) ("The effect of a criminal
record is . . . 40% larger for blacks than for whites."); Devah Pager, Bruce
Western, & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing
Young Black and White Men with Criminal Records, 623 Annals Am. Acad. Pol. &
Soc. Sci. 195, 196 (2009) (finding "a significant negative effect of a criminal record
on employment outcomes, and one that appears substantially larger for African
Americans"). Some states, including New York, recognize the harm that blanket
criminal history screens can cause, forbidding companies from denying
4 As amici note, Black Americans have disproportionately more contact with
police officers than White Americans in the context of stop-and-frisks and traffic stops --
situations where the educational level of the person being stopped or pulled over is not
apparent. See Kurlychek Amicus Brief at 8-9. Amici also point to several examples of
prominent, highly educated African Americans who have experienced disparate
treatment based on race -- Professors Ronald S. Sullivan and Henry Louis Gates, Jr., of
Harvard University and South Carolina Senator Tim Scott, who has reported that he has
been pulled over by police seven times in one year. See id. at 8-10 & n.14 (citing Tanzina
Vega, For Affluent Blacks, Wealth Doesn’t Stop Racial Profiling, CNN (July 14, 2016)
(https://money.cnn.com/2016/07/14/news/economy/wealthy-blacks-
racialprofiling/index.html)).
10
employment solely because a job applicant has a criminal record, and instead
requiring employers to engage in an individualized consideration. 5 As the
Eighth Circuit recognized many years ago:
We cannot conceive of any business necessity that would
automatically place every individual convicted of any offense,
except a minor traffic offense, in the permanent ranks of the
unemployed. This is particularly true for blacks who have suffered
and still suffer from the burdens of discrimination in our society. To
deny job opportunities to these individuals because of some conduct
which may be remote in time or does not significantly bear upon the
particular job requirements is an unnecessarily harsh and unjust
burden.
Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1298 (8th Cir. 1975). These
observations still hold true today.
5 The New York statute, for example, provides that an employer may not deny
employment because of an individual's prior conviction unless (1) there is "a direct
relationship" between the offense and the position sought or (2) the granting of
employment would present an "unreasonable risk" to property, specific individuals or
the general public. N.Y. Correct. Law § 752 (McKinney 2019). In making this
determination, the employer "shall consider," inter alia, the "bearing, if any," the offense
will have on the applicant's fitness or ability to perform his duties, the time elapsed
since the conviction, the applicant's age at the time the offense was committed, and
information concerning rehabilitation and good conduct. N.Y. Correct. Law § 753(McKinney 2019); see also N.Y. Exec. Law § 290 et seq. (McKinney 2019); N.Y. Correct.
Law § 750 et seq. (McKinney 2019). As a New York resident, Mandala asserted state law
claims, but the district court did not reach them.
11
II. Plaintiffs Properly Relied on National Statistics
As the majority acknowledges, national statistics can be probative of
whether a challenged policy has a disparate impact. Mandala, 975 F.3d at 210. In
Dothard v. Rawlinson, for example, the Supreme Court observed that "[t]here is no
requirement . . . that a statistical showing of disproportionate impact must be
based on analysis of the characteristics of actual applicants." 433 U.S. 321, 330
(1977). There, the plaintiffs were permitted to rely on national height and weight
data for men and women, even though the defendant argued that the only
relevant data was that of the applicant pool for corrections-officer positions in
Alabama. Id. at 329-30. Indeed, the Supreme Court specifically rejected the
defendant's argument that "a showing of disproportionate impact on women
based on generalized national statistics should not suffice to establish a prima
facie case," id. at 330, the very principle that forms the basis of the panel
majority's holding here.
Likewise, in Malave v. Potter, this Court rejected the district court's
holding, on a summary judgment motion, that plaintiffs were required to
provide statistical information as to "the applicant pool or the eligible labor
pool." 320 F.3d 321, 325-26 (2d Cir. 2003). We rejected the district court's
12
"adoption of a rule that the lack of statistical information as to an applicant pool
always renders it impossible to establish a prima facie disparate impact case." Id.
at 327. We remanded for the district court to determine, inter alia, "the most
appropriate labor pool," and reminded the district court of "the Supreme Court's
teaching that 'statistics come in infinite variety and . . . their usefulness depends
on all of the surrounding facts and circumstances.'" Id. (quoting Watson v. Fort
Worth Bank & Tr., 487 U.S. 977, 995 n.3 (1988)); see also EEOC v. Joint
Apprenticeship Comm. of Joint Indus. Bd. of Elec. Indus., 164 F.3d 89, 97 (2d Cir. 1998)
(at summary judgment, plaintiff's prima facie case can include "studies based on
general population data"). And in Wards Cove Packing Co. v. Atonio, the Supreme
Court recognized that "where 'figures for the general population might . . .
accurately reflect the pool of qualified candidates,' . . . we have even permitted
plaintiffs to rest their prima facie cases on such statistics as well." 490 U.S. 642,
651 n.6 (1989) (citation omitted and emphasis added).
In the context of a motion to dismiss, a plaintiff has even more
latitude in relying on national statistics. We have held that "[a]t the pleading
stage, [a plaintiff] need not prove the accuracy of [a statistical study's] findings or
the rigor of its methodology; he need only generally allege the facts that,
13
accepted as true, make his alleged injury plausible." John v. Whole Foods Mkt.
Grp., Inc., 858 F.3d 732, 737 (2d Cir. 2017); see also id. ("a facial attack on the
pleadings is not the proper stage to determine whether [the Department of
Consumer Affairs'] sampling methods justified its declaration of widespread
overcharging"); Brown v. City of N.Y., No. 16 Civ. 1106, 2017 WL 1102677, at *6
(E.D.N.Y. Mar. 23, 2017) ("[S]tatistics that may ultimately prove insufficient can
nevertheless support a plausible inference of disparate impact on a motion to
dismiss.").
Numerous courts have applied these principles to deny motions to
dismiss disparate impact claims that rely on general population statistics to
challenge such policies, concluding that plaintiffs plausibly stated a disparate
impact claim under Title VII. 6 And the EEOC has specifically found that national
6 See, e.g., Chaidez v. Ford Motor Co., 937 F.3d 998, 1007 (7th Cir. 2019)
("'Disparate-impact plaintiffs are permitted to rely on a variety of statistical methods
and comparisons to support their claims,'" and "'at the pleading stage, some basic
allegations of this sort will suffice.'" (citation and alterations omitted)); Smith v. Home
Health Sols., Inc., No. 17 Civ. 30178, 2018 WL 5281743, at *3 (D. Mass. Oct. 24, 2018)
(denying motion to dismiss disparate impact claim where plaintiffs alleged African
Americans "are arrested in numbers disproportionate to their representation in the
general population," citing "national data"); Williams v. Compassionate Care Hospice, No.
16 Civ. 2095, 2016 WL 4149987, at *4-5 (D.N.J. Aug. 3, 2016) (denying motion to dismiss
disparate impact claim where plaintiffs alleged "blanket criminal background check" led
to a "disproportionate impact on African Americans," relying on national statistics);
14
data "supports a finding that criminal record exclusions have a disparate impact
based on race and national origin." EEOC Enforcement Guidance, supra.
Here, plaintiffs did not rely solely on general population statistics
nor did they rely on statistics in a conclusory or abstract fashion. Rather, they
alleged specific facts and circumstances showing that NTT's blanket convictions
bar had an adverse impact on them personally.
Mandala applied for a salesforce developer position while residing
in Rochester, New York, and he was offered a position as an application software
development senior principal consultant in Wellesley, Massachusetts (to work
remotely). Barnett applied for a web developer position while residing in
Williams v. Wells Fargo Bank, N.A., No. 4-15-cv-38, 2015 WL 13753220, at *1 (S.D. Iowa
Aug. 6, 2015) (denying motion to dismiss claim brought by seven African American
plaintiffs alleging that bank's hiring and background check policy "disproportionately
affected minorities"); McCain v. United States, No. 14 Civ. 92, 2015 WL 1221257, at *17 (D.
Vt. Mar. 17, 2015) (denying motion to dismiss disparate impact claim challenging
"blanket" background check policy, relying on national statistics); see also Lee v. Hertz
Corp., 330 F.R.D. 557, 561 (N.D. Cal. 2019) ("Since Plaintiffs aver Latinos were arrested
and convicted of crimes at more than double the rates of whites, it is plausible that
Defendants' Screening Policy has a disparate impact on Latinos by tending to deprive
them of employment opportunities because of their race or national origin."); Houser v.
Pritzker, 28 F. Supp. 3d 222, 248-49 (S.D.N.Y. 2014) (certifying class of applicants denied
employment because of criminal histories due to blanket criminal screen); Gregory v.
Litton Sys., Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (criminal arrest screen "has the
foreseeable effect of denying black applicants an equal opportunity for employment"),
aff'd as modified, 472 F.2d 631 (9th Cir. 1972).
15
Frankfort, Kentucky, and was offered employment designing websites for the
Kentucky Department of Education. Both received offers of employment from
NTT, but had their offers withdrawn once NTT learned that they had prior
convictions. NTT never asked Mandala and Barnett for information about their
convictions, rehabilitation, or post-conviction conduct. Barnett, for example, had
obtained two degrees, including a master's in computer science technology --
after his conviction. He also worked for four years for the Commonwealth of
Kentucky doing technology and administrative work -- after his convictions.
NTT did not consider these post-conviction developments because of its blanket
policy.
Mandala and Barnett were clearly qualified for the NTT positions --
they were offered employment -- but the policy barred them from employment
without any individualized consideration of the circumstances of their
convictions, the relationship between their criminal history and their ability to
perform the jobs, or their efforts to rehabilitate and post-conviction conduct.
Both were impacted by NTT's policy even though they lived in different parts of
the country and applied for different jobs. After Barnett's offer was withdrawn,
he "sought to apply for other positions with NTT," but NTT would not consider
16
him for any position because of its policy. Joint App'x at 14. Mandala and
Barnett are striking examples of the adverse impact a blanket convictions bar can
have on individuals and their families.
In addition to these specific individual allegations, the complaint
asserted broader allegations: NTT's policy "systematically eliminates qualified
African American applicants based on their race, color or national origin"
throughout the United States, Joint App'x at 8, and NTT is a "global" information
technology services company with some 18,000 employees in North America and
over twenty offices in the United States. In light of the breadth of NTT's blanket
policy -- it applies to all jobs, at all levels, all across the country -- plaintiffs'
reliance on national statistics at the pleadings stage was eminently reasonable,
and the national statistics surely made plaintiffs' claims of disparate impact
discrimination even more plausible.
III. The Panel Majority Misapplied the Pleading Standards
On a disparate impact claim, a plaintiff is required only to prove that
"a facially neutral employment policy or practice has a significant disparate
impact" on members of a protected group -- the plaintiff need not prove intent to
discriminate. Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998); see Ricci
17
v. DeStefano, 557 U.S. 557, 577-78 (2009); Griggs v. Duke Power Co., 401 U.S. 424,
431 (1971) (Title VII prohibits "not only overt discrimination but also practices
that are fair in form, but discriminatory in operation"); 42 U.S.C. § 2000e-
2(k)(1)(A)(i). If the plaintiff shows that a facially neutral employment policy has
a disparate impact and thereby "establishes a prima facie violation," the
employer may defend by demonstrating that the policy is job-related and
consistent with business necessity. See Ricci, 557 U.S. at 578. If the employer
does so, the plaintiff can still prevail by showing that the employer's legitimate
interests can be served by an alternative that has less of a disparate impact. See
id.At the pleadings stage, a plaintiff is required only to allege facts
giving rise to a plausible inference of a disparate impact based on race -- a
plausible inference that an employment practice "has the effect of denying
members of a protected class equal access to employment opportunities."
M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, 689 F.3d 263, 273 (2d Cir. 2012). On a
motion to dismiss for failure to state a claim, "the question is not whether a
plaintiff is likely to prevail, but whether the well-pleaded factual allegations
plausibly give rise to an inference of unlawful discrimination, i.e., whether
18
plaintiffs allege enough to 'nudge[ ] their claims across the line from conceivable
to plausible.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir.
2015) (citations omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511
(2002) ("under a notice pleading system, it is not appropriate to require a plaintiff
to plead facts establishing a prima facie case"). 7 Until now, we have consistently
recognized that at the pleadings stage, without discovery, a proper record
usually has not yet been developed. Accordingly, the plausibility standard
"simply calls for enough fact to raise a reasonable expectation that discovery will
7 Our cases have held that a plaintiff in an employment discrimination case has
only a "'minimal burden' of alleging facts 'suggesting an inference of discriminatory
motivation.'" Vega, 801 F.3d at 85 (quoting Littlejohn v. City of New York, 795 F.3d 297,
310 (2d Cir. 2015)). The panel majority contends that this "minimal burden" language
applies only to disparate treatment cases and not to disparate impact cases. Mandala,
975 F.3d at 209 n.3. First, this novel legal view was first raised by the panel majority, as
neither party argued that the pleading burden for Title VII cases depends on whether a
claim alleges disparate impact or disparate treatment discrimination. See Appellants'
Brief at 16-17 (arguing that "this Court has repeatedly rejected attempts to heighten the
pleading standard in discrimination cases" (emphasis added)); Appellee's Brief at 13-14
(citing to two disparate treatment cases -- to argue that "[i]n the context of a Title VII
claim," to survive a motion to dismiss, a plaintiff must plead facts that plausibly
support a prima facie case (citations omitted)). Second, there is nothing in the language
of Title VII to suggest that disparate treatment and disparate impact cases should be
treated differently in the way the panel majority contemplates. Hence, I am not
persuaded that there is any basis to distinguish in this respect between Title VII
disparate treatment claims and Title VII disparate impact cases. See Petition for
Rehearing at 8-9. While I do not believe that whether the "minimal burden" language
applies to disparate impact cases makes a difference here, again, by declining to hear
the case en banc the Court dodges an opportunity to resolve an important issue.
19
reveal evidence of illegal[ity]." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 556 (2007));
accord Citizens United v. Schneiderman, 882 F.3d 374, 380 (2d Cir. 2018) (for
plaintiffs to "'nudge[ ] their claims across the line from conceivable to plausible,'
they must 'raise a reasonable expectation that discovery will reveal evidence' of
the wrongdoing alleged, 'even if it strikes a savvy judge that actual proof of these
facts is improbable'") (quoting Twombly, 550 U.S. at 570, 556)). 8
Here, the district court misapplied the standards applicable to Rule
12(b)(6) motions to dismiss. Although it acknowledged the "plausibility
standard" in discussing the "general legal principles," Joint App'x at 67-68, in
determining whether the complaint stated a plausible claim, the district court
relied on a decision setting forth the standards for proving -- not pleading -- a
8 There is, of course, a lack of precision as to what is "plausible" for purposes of
Federal Rule of Procedure 12(b)(6), and different panels of this Court have interpreted
the standard in different ways. By denying the petition for rehearing en banc, the Court
also misses an opportunity to resolve whatever intra-circuit conflicts exist among these
decisions regarding the standard. What is clear is that the plain meaning of "plausible"
is, inter alia, appearing worthy of belief, or superficially fair or reasonable, or credible --
not "probable" or likely to succeed. See, e.g., Plausible, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/plausible?src=search-dict-hed. The fact
that several of my colleagues and I believe that plaintiffs have plausibly asserted a claim
of disparate impact discrimination would suggest that, indeed, the claim of disparate
impact discrimination is credible, at least superficially fair or reasonable, and crosses
the line from "conceivable to plausible."
20
disparate impact case, Joint App'x at 69 (citing Robinson v. Metro-North Commuter
R.R., 267 F.3d 147 (2d Cir. 2001)). The district court then rejected plaintiffs'
reliance on national statistics, holding that plaintiffs' national statistics did not
"indicate whether the individuals in the general population cited shared
qualifications that would make them viable candidates for either of the positions
offered to Plaintiffs." Joint App'x at 70. The district court held that "general
statistics are inadequate," and that plaintiffs were required instead to provide
statistics as to conviction rates with respect to "the pool of applicants who are
Caucasian versus African Americans," Joint App'x at 70-71, the precise statistical
evidence they would have to offer to prove their claim at trial. The district court
reached these conclusions without identifying the relevant applicant pool, and
before plaintiffs had an opportunity to take discovery.
By affirming the district court's decision, the panel majority adopts
the district court's deeply flawed reasoning that plaintiffs were required to
provide, at the pleadings stage and before discovery, statistics as to conviction
21
rates for NTT's specific applicant pool. 9 In doing so, the panel majority makes
numerous fundamental errors:
First, it rejects plaintiffs' reliance on national statistics, when
numerous courts -- including this Court and the Supreme Court -- have held that
national statistics can support a disparate impact claim. At the pleadings stage in
particular, plaintiffs are to be given some latitude in relying on statistics. See, e.g.,
John, 858 F.3d at 737.
Second, the panel majority ignores the likelihood that, even if
specific applicant pool statistics turn out to be more precise in the end, general
population statistics would still be relevant and a logical starting point for the
analysis. See Williams, 2016 WL 4149987, at *5 ("Although the Court agrees with
Defendant that the [national] statistics are not tailored to the New Jersey counties
9 See, e.g., 975 F.3d at 206 ("Notably, however, the complaint contains no
allegations about racial disparities in NTT's existing workforce or the demographics of
qualified applicants that NTT has rejected as a result of its hiring policy."), 211
("Plaintiffs provide no allegations to demonstrate that national arrest or incarceration
statistics are . . . representative of the pool of potential applicants qualified for a position
at NTT."), 212 (Plaintiffs did not provide statistics "mak[ing] it plausible that an
African-American web developer with the educational and technical qualifications to work at
NTT is more likely to have been convicted of a crime than his Caucasian counterpart."
(emphasis added)).
22
in which Defendant does business, the Court finds that they lend sufficient
support to Plaintiff's allegations to survive the Motion to Dismiss.").
Third, the majority holds that plaintiffs should have provided
statistics pertaining to NTT's applicant pool -- "more granular data," Mandala, 975
F.3d at 212 -- when the applicant pool (assuming the relevant applicant pool is
something other than the national workforce) has not yet been defined and
plaintiffs have not yet had discovery. Even assuming that statistics as to a
specific applicant pool, e.g., salesforce developers in upstate New York, software
consultants in Massachusetts, web developers in Kentucky, or -- in the majority's
words -- applicants "representative of the pool of potential applicants qualified
for a position at NTT," id. at 211, turn out to be more accurate in the end, the
absence of such statistics at the motion-to-dismiss stage should not be fatal to
plaintiffs' claims, as the appropriate applicant pool cannot be defined until after
discovery, when more details about NTT's job requirements and applicant pools
would become available. Indeed, as the panel majority acknowledges, see id. at
212 (recognizing that plaintiffs are "undoubtedly working from an informational
23
disadvantage at this early point in the proceedings"), some of this information
surely is only in NTT's possession and not publicly available. 10
Fourth, the panel majority fails to acknowledge the reasonable
likelihood that the relevant applicant pool is the national workforce, given that
plaintiffs sought employment with NTT in different parts of the country and for
different positions, NTT is a global company, with some 18,000 employees and
twenty offices in the United States, and its blanket policy applies to all jobs, at all
levels, all across the country. The panel majority focuses on "salesforce
developer" and "web developer" positions, jobs it speculates "require at least
some educational or technical experience that is not shared by the general
population." Id. at 211-12. It is not apparent, however, that "salesforce
developer" and "web developer" positions, whatever they may be, require such
specialized training or education as to make general population statistics
10 Discovery would shed light on, for example, the following questions: what were
the positions in question? what were the qualifications necessary for those positions?
what was "the pool of qualified candidates?" what was the appropriate geographic area
to be considered? was NTT considering applicants on a national basis because
successful candidates would work remotely? what are the contours of NTT's criminal
history screen? what were the demographics of the individuals in the pool of qualified
candidates? what were the demographics of those who applied? were there
individuals who did not apply because of the blanket policy? and what were their
demographics?
24
inapplicable. Moreover, the panel majority's focus on the two positions ignores
plaintiffs' allegations that after Barnett's offer was rescinded for the "web
developer" position, he "sought to apply for other positions with NTT" but was
told he would not be considered for "other positions because of his felony
convictions." Joint App'x at 13-14. Plaintiffs' claims are not limited to salesforce
developer and web developer positions, but the panel majority chooses simply to
ignore this fact.
Fifth, the panel majority speculates that NTT's applicant pool is
more educated than the national population, when it is plausible, given NTT's
size and geographic reach, that any differences in education levels are
insignificant.
Sixth, the panel majority assumes the existence of a "confounding
variable" and "imagine[s]" that "arrest and conviction rates are negatively
correlated with education (at least to some degree)," without acknowledging the
likelihood that racial disparities will continue to exist to some degree within the
qualified applicant pool, even as the level of education increases. 975 F.3d at 211-
12. While the panel majority's assumptions would mean that the qualified
applicant pool would have lower conviction rates, those assumptions would not
25
necessarily eliminate, or even reduce, the disparities in conviction rates within the
pool, that is, disparities based on race between similarly educated groups. Even
assuming that NTT's applicant pool is more educated than the general
population, it is unlikely that the racial disparities in arrest and incarceration
rates that exist nationally and in every state somehow disappear at NTT.
Seventh, the panel majority surmises that the national statistics do
not, "without more, make it plausible that an African-American web developer
with the educational and technical qualifications to work at NTT is more likely to
have been convicted of a crime than his Caucasian counterpart," id. at 212, when
it is perfectly plausible, in light of the statistics discussed above (and, indeed, the
experience of the two plaintiffs in this case), that a college-educated African
American applying for a position at NTT is more likely to have been convicted of
a crime than his college-educated Caucasian counterpart.
And finally, instead of drawing the reasonable inferences in favor of
plaintiffs, the panel majority draws inferences against them, and chooses the
inferences it prefers. See Menaker v. Hofstra Univ., 935 F.3d 20, 31 n.38 (2d Cir.
2019) (plaintiff must show discrimination is "one of several possible inferences,"
not "the most plausible" inference (internal quotation marks omitted)).
26
In short, the panel majority holds plaintiffs to a heightened pleading
standard, requiring them to provide statistics relating to a specific applicant pool,
even though a specific applicant pool has not yet been defined and plaintiffs
have not yet had access to NTT's records. In concluding that plaintiffs failed to
state a plausible claim of disparate impact discrimination, the panel majority
rejects national statistics that clearly are a logical starting point for the analysis,
because of its assumption that education is a "confounding variable" and its
surmise that racial disparities in arrest and conviction rates dissipate as
education increases.
At the end of the day, after discovery and an opportunity to be
heard, plaintiffs' claims may ultimately fail. But in light of the national statistics
as well as plaintiffs' allegations with respect to their specific circumstances and
their allegations with respect to NTT generally, their claim -- that NTT's blanket
policy of denying employment to job applicants based solely on the fact of a
prior conviction, without considering individual circumstances, has a disparate
impact on African Americans -- is anything but implausible.
27
IV. Conclusion
Our Court has long recognized the importance of Title VII and the
rights it protects. 11 By denying the petition for rehearing en banc, the Court is
now leaving in place a decision that will become, I am afraid, a dangerous
precedent, as it will permit courts to dismiss what may be meritorious disparate
impact civil rights claims because plaintiffs, who may be working "from an
informational disadvantage," 975 F.3d at 212, are not able to provide "granular
data" that is only in the possession of the employer, id., for an applicant pool that
has not yet been defined, based on speculation that general statistics are
irrelevant because the plaintiffs do not account for all purportedly "confounding
variable[s]," id. at 211, all at the pleadings stage of a lawsuit.
We should rehear this case en banc, vacate the judgment, and
remand for plaintiffs to proceed with their claims.
11 See Matthew Diller & Alexander A. Reinert, The Second Circuit and Social Justice,
85 Fordham L. Rev. 73, 110 (2016) (reviewing Second Circuit's social justice case law and
observing that "the deeper significance of the Second Circuit's jurisprudence is its
nuance and sensitivity to fundamental power inequality . . . . In 1951, Chief Judge
Learned Hand captured the Second Circuit's tradition with brevity and eloquence: 'If
we are to keep our democracy, there must be one commandment: Thou shall not ration
justice.'").
28
RAYMOND J. LOHIER, JR., Circuit Judge, joined by ROSEMARY S. POOLER, ROBERT A.
KATZMANN, * DENNY CHIN, and SUSAN L. CARNEY, Circuit Judges, dissenting from
the order denying rehearing in banc:
Although I have very rarely voted to proceed in banc, for the reasons
expressed by Judge Chin and Judge Pooler in their opinions dissenting from the
denial of rehearing in banc, I dissent. The majority suggests that this case is
about no more than applying the plausibility pleading standard set by Iqbal and
Twombly to disparate impact cases under Title VII, and that substantive rights
under Title VII itself remain unaffected. But a pleading is the key to the
courthouse door. When, as here, the standard for pleadings is raised arbitrarily
high or subjected almost entirely to the uneven vagaries of judicial “experience”
and “common sense,” then those substantive rights that reside just behind the
door wither and die.
Mark the panel majority’s decision as one that will need to be revisited and
corrected by us, or by Congress, in the future.
*Judge Katzmann concurs in Judge Lohier’s view that: “When, as here, the
standard for pleadings is raised arbitrarily high or subjected almost entirely to
the uneven vagaries of judicial ‘experience’ and ‘common sense,’” corrective
action by the courts or Congress is in order.
1