EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. FAPS, INC.

Filing 145

OPINION. Signed by Judge Joel A. Pisano on 9/26/2014. (jjc)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
FAPS, INC.,
Defendant.

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Civil No. 10-3095 (JAP)(DEA)
OPINION

PISANO, District Judge.
Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), filed this action
against Defendant Foreign Auto Preparation Service, Inc. (“FAPS”) after a member of the EEOC
filed a charge alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et seq. Generally, the complaint alleges that FAPS engaged in a company-wide
pattern or practice of discrimination against African Americans in recruiting and hiring.
Before the Court are several motions brought by FAPS and the EEOC. FAPS has filed a
motion for summary judgment on the EEOC’s Title VII claims [ECF No. 107]. FAPS has also filed
a motion to exclude the testimony of the EEOC’s expert witnesses [ECF No. 123]. Likewise, the
EEOC has filed a motion to exclude the testimony of FAPS’s expert witness [ECF No. 113]. These
motions are based almost exclusively on the grounds that the testimony of these experts fails to
meet the standards delineated by the United States Supreme Court in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993). For the reasons set forth below, the Court grants FAPS’s
summary judgment motion in part, and denies it in part. The Court denies FAPS’s motions to

exclude the testimony of the EEOC’s expert witnesses, and grants the EEOC’s motion to exclude
the testimony of FAPS’s expert witness.
I.

Background
FAPS is a New Jersey corporation with principal offices in Port Newark, New Jersey. FAPS

operates a large auto processing facility, which processes automobiles moving through Port
Newark. FAPS is owned and operated by two brothers, Gary and August LoBue, the grandsons of
founder August LoBue. FAPS provides a wide range of services, from the short-term storage of
vehicles to be transported to dealerships to the customization of luxury cars.
On October 18, 2007, Stuart Ishimaru, a member of the EEOC, filed a Commissioner’s
Charge, alleging violations of Title VII by FAPS. After an investigation, the Commission found
reasonable cause to believe that FAPS engaged in a company-wide pattern or practice of
discrimination against African Americans in recruiting and hiring from at least 2004 until the
present. Arising out of this investigation, the Commission also found reasonable cause to believe
that FAPS made improper pre-employment disability-related inquires in its application forms, in
violation of the ADA.
The facts of this case are strongly disputed by both sides. The EEOC alleges that, from
2003–2008, FAPS hired hundreds of workers, the majority of whom are unskilled or semi-skilled
workers. FAPS, however, disputes that it was hiring or looking to hire unskilled or semi-skilled
workers; rather, it argues that from 2003 to 2013, when it did hire, it focused on hiring and
recruiting employees for skilled job positions. The parties also dispute the various qualifications
that FAPS required in its potential employees, and whether or not FAPS will train and/or cross-train
its employees for other jobs at FAPS. FAPS also disputes that it was hiring hundreds of workers
during the relevant time period; rather, FAPS emphasizes that the automobile industry was going

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through turmoil at this time, and it was forced to lay off 200 employees. In certain years, FAPS
contends that it did not make any recruiting efforts; for example, in 2007 and 2008 it asserts it only
hired individuals that were mandatory hires from Nissan in order to obtain an account from Nissan,
or Mazda employees as a condition of an acquisition deal of certain Mazda work. Other than these
hires, FAPS asserts that it did not recruit or hire in 2008. The EEOC disputes this contention, and
has supplied evidence of certain job postings by FAPS from these years.
The EEOC has alleged that FAPS relied primarily on word of mouth to recruit its workers
from 2003 through 2008. It is undisputed that FAPS did not have an official policy promoting or
encouraging word-of-mouth recruiting. FAPS management was aware that FAPS workers would
spread the word in its “small community” when there were job openings at FAPS. While FAPS did
not generally advertise externally, it would often post a hiring announcement near the employee
time clock. Seemingly as a result, FAPS would receive a large number of “walk-in” applicants, at
times almost every day, for these positions. After 2010, FAPS broadened its recruitment process,
and starting using online services such as Craigslist, technical schools, and the Newark OneStop
Program.
Julie Lynch, the current Human Resources Manager, has admitted that FAPS did not
undertake any efforts to recruit African Americans in 2007, 2008, or 2009. Where the race of FAPS
workers can be determined, between 2003 and 2008 FAPS only hired twelve African American
unskilled or semi-skilled workers, whereas it hired 263 non-African Americans. Over 10 years,
FAPS hired only 16 African Americans out of 339 new hires in what the EEOC has alleged are
unskilled or semi-skilled positions. As discussed more fully below, the EEOC’s expert labor
economist, Dr. Robert LaJeunesse, has concluded that there is essentially a zero percent probability
that such a low hiring rate for African Americans would occur by chance.

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FAPS has, at least in part, described any alleged failure to hire or recruit African Americans
on both its lack of hiring during the relevant years, the mandatory hiring of employees from Nissan
and Mazda, and the skill level of the employees for which it was searching. FAPS also argues that
the Waterfront Commission of New York Harbor (“Waterfront Commission”) and the International
Longshoremen’s Association, Local 1478 (the “Union”) are “inextricably woven in the selection
and hiring process at FAPS,” which impacts the discretion that FAPS has in hiring applicants for
job openings. See Def.’s Br. at 4–6. First, under the rules of the Waterfront Commission, any
applicant for a job in which he or she will come into contact with waterborne freight must obtain a
waterfront card from the Waterfront Commission. An applicant cannot apply to the Waterfront
Commission for a waterfront card without a “sponsorship letter” from an employer. Accordingly,
people seeking to work at FAPS would go to its office, fill out an application, and then be
interviewed by Lynch. The FAPS job application seeks basic information about work experience
and training. It also asks questions about how the applicant was referred to FAPS and whether the
applicant has a criminal background. Lynch reviews the application on the spot, conducts a basic
interview, which usually covers work experience or background, and then discusses work hours and
pay. Lynch would then present the application to William Mazur. Mazur is the Vice-President and
General Manager of FAPS, and has worked at FAPS for 30 years. Mazur signs off on whether the
applicant is given a sponsorship letter for the Waterfront Commission. The denial of a sponsorship
letter by FAPS is effectively a denial of employment. In other words, while a sponsorship letter is
not a promise of employment, when FAPS gives someone a sponsorship letter it usually means that
FAPS has a job for that person and that the applicant will be hired. If FAPS provides a sponsorship
letter, the applicant then seeks a waterfront card from the Waterfront Commission.

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Generally, the process of applying for a waterfront card involves filing out an application,
paying a fee, and providing documentation. Upon receiving an application, the Waterfront
Commission conducts a background check and determines whether the applicant meets certain
standards. The Waterfront Commission has complete discretion to determine to disqualify a
registration applicant because of a prior bad act or conviction. The Waterfront Commission will
also consider a list of factors relevant to the holistic consideration of an application, including prior
criminal behavior, history of workplace violence, theft, fraud, and other “bad acts” such that he
should not be permitted to work at the Port. According to Jeffrey Schoen, the Director of Law and
Licensing for the Waterfront Commission, it is not the conviction or the arrest per se that is the
grounds for denying an application, but rather the facts and circumstances of the underlying act that
is significant to the Waterfront Commission when making a determination. There appears to be a
dispute between the parties with regards to how long the Waterfront Commission would take to
review an application. FAPS has asserted that it was experiencing long delays in hiring because of
this application process, because the process was taking up to 8 to 12 weeks. The EEOC disputes
the significance of this, as these delays allegedly did not start until 2010. Once the waterfront card
is issued, the applicant returns to FAPS and can start working. FAPS cannot hire anyone before a
waterfront card is issued by the Waterfront Commission.
FAPS has also asserted that the Union is a significant presence in the employment practices
at FAPS. Under the collective bargaining agreement (“CBA”), FAPS is required to notify the
Union of any employment opportunities, and interview all potential employees referred to FAPS by
the Union. FAPS has asserted that the CBA governs the terms and conditions of employment at
FAPS, including the method of selection and other conditions of recruitment and hiring. However,
FAPS witnesses have admitted that the CBA places no limitations or restrictions on FAPS’s ability

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to recruit and hire applicants of its choosing, other than to interview any Union referrals.
Furthermore, FAPS’s witnesses and Union officials have testified that FAPS is under no obligation
whatsoever under the terms of the CBA to hire any of Union members. FAPS, however, argues that
the Union has effectively told FAPS how and when to hire employees, or else it may face
“slowdowns” by the Union. It is disputed whether or not any issues of animosity or other like
problems arise when FAPS does not hire a Union referrals.
After a failed attempt at conciliation, the EEOC filed a Complaint against FAPS on June 17,
2010. The Complaint alleges, inter alia, that since at least 2004, FAPS has engaged in a pattern or
practice of failing or refusing to hire African Americans, in violation of Title VII. FAPS filed this
current motion for summary judgment, arguing that the EEOC has failed to establish that FAPS
uses “word-of-mouth” recruiting for what it describes as its semi-skilled and skilled workforce. It
also argues that the external barriers of the Waterfront Commission and the Union on its recruitment
and hiring preclude any liability for FAPS. The EEOC argues that it has provided evidence of
FAPS’s alleged systematic efforts to exclude African Americans through its recruitment,
application and hiring process, creating a pattern or practice of intentional race discrimination. It
also argues that it has supplied sufficient evidence to establish that FAPS used word-of-mouth
recruiting to maintain an all-White workforce, creating a disparate impact violation of the law.
FAPS also moves for summary judgment on the EEOC’s alleged failure to engage in conciliation in
good faith. Finally, FAPS argues that certain applicant claims are time barred. The Court
addresses these arguments below.
II.

Motion to Exclude Expert Testimony
Before moving to the summary judgment motion, the Court will first address the preliminary

issue of whether any of the three proffered expert’s opinions should be excluded.

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In order to prove its case, the EEOC has attempted to offer two witnesses, Dr. Robert LaJeunesse
and Dr. Palmer Morrel-Samuels, as experts pursuant to Federal Rule of Evidence 702. FAPS has
attempted to offer one witness, Donald Conway, as an expert pursuant to Rule 702. Both EEOC
and FAPS has moved to exclude the other side’s experts.
A.

Daubert Standard

Federal Rule of Evidence 702 obligates judges to ensure that any scientific testimony or
evidence admitted is relevant and reliable. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
589 (1993). Rule 702 provides that where
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702. The party offering the expert testimony has the burden of proving admissibility
by a preponderance of the evidence. Daubert, 509 U.S. at 592; In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 743–44 (3d Cir. 1994). Courts act as a gatekeeper, performing a “screening function” to
ensure the required relevance and reliability of the opinion testimony. See Daubert, 509 U.S. at 592
(“Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the
outset, pursuant to Rule 104(a) [of the Federal Rules of Evidence] whether the expert is proposing
to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a
fact in issue.”); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
The Third Circuit has explained that Rule 702 “embodies a trilogy of restrictions on expert
testimony: qualification, reliability, and fit.” Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)
(citing In re Paoli, 35 F.3d 717, 741-43 (3d Cir. 1994)). In order for a witness to be deemed

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qualified to testify as an expert, the witness must possess specialized knowledge, training, or skill.
This requirement has been interpreted liberally. See Schneider, 320 F.3d at 404 (explaining that the
Third Circuit have allowed a “broad range of knowledge, skills, and training” to qualify an expert)
(quoting Paoli II, 35 F.3d at 740–41). For testimony to be considered sufficiently reliable, “it ‘must
be based on the ‘methods and procedures of science’ rather than on ‘subjective belief or
unsupported speculation’; the expert must have ‘good grounds' for his on her belief.” Id. (quoting
Paoli II, 35 F.3d at 742 (quoting Daubert, 509 U.S. at 590)). Finally, the expert’s testimony must
“fit” or “be relevant for the purposes of the case and must assist the trier of fact.” Calhoun v.
Yamaha Motor Corp., U.S. A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider, 320 F.3d at
405); see also Paoli II, 35 F.3d at 743 (“[A]dmissibility depends in part on the proffered connection
between the scientific research or test result to be presented and particular disputed factual issues in
the case.”) (quotation omitted). While the standard for “fit” is higher than basic relevance, it is not
that high. See Paoli II, 34 F.3d at 735. Overall, Rule 702 embodies a liberal policy of
admissibility. Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).
B.

The Experts
1.

Dr. Robert LaJeunesse

Dr. Robert LaJeunesse is offered by the EEOC as an expert in the field of labor economics.
He has analyzed a variety of information and data provided by FAPS and external sources to assess
the racial neutrality of FAPS’s hiring decisions relative to labor market benchmarks. Dr.
LaJeunesse conducted a statistical study of FAPS’s hiring patterns from 1999 through 2013, and
concluded that, from 1999 to 2008, FAPS hired fewer African Americans than would be expected,
given the available labor market. Dr. LaJeunesse found that the z-score for this period, -9.16,

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indicates that the aggregate shortfall is statistically significant, and that there is effectively zero
probability that this outcome could have occurred by chance.
FAPS does not challenge the qualifications of Dr. LaJeunesse; rather, it argues that his
testimony and conclusions are unreliable. Dr. LaJeunesse compared the actual numbers of hires of
African Americans by FAPS to the number expected from a local labor market to assess the
neutrality of FAPS’s hiring. In some instances, an employer’s hiring can be compared to the
proportion of workers in the flow of applications for vacant positions if the applications pool can be
considered reliable. Dr. LaJeunesse, however, did not find that FAPS’s applicant flow data was
reliable for several reasons. First, he found that FAPS only provided applications for less than half
of known hires, and only provided applications for a little more than half of a known group of
applicants referred to the Waterfront Commission. Next, he found that the African American
representation rate of the extant FAPS applications is significantly lower than the labor force
participation rate of African Americans in the local labor market. According to Dr. LaJeunesse, the
African American representation rate of the application pool at FAPS is 11.4%, while the Census
data for the overall labor force in Essex and Union counties in New Jersey estimates a
representation rate for African Americans of 31%. The African American representation rate for
the occupations at issue in this litigation is 29.9% in the 2000 Census, and 19.9% in the 2006–2010
Census. Dr. LaJeunesse combined three race-related data sources,1 eliminating any double
counting, and ascertained the race of 442 applications. Fifty-two of these applicants identified as
African American, leading to the African American representation rate of 11.4%. The absence of

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Because the applications of FAPS does not reflect the race of an applicant, Dr. LaJeunesse had to use other sources to
ascertain the race of the applicants. The Waterfront Commission list contained information about the race of the
applicants, but only 211 individuals on this list appeared in FAPS’s application database. From FAPS’s HR data or
other self-reported race sheets that were completed by FAPS employees, Dr. LaJeunesse could ascertain the race of 192
hires. Finally, from Dr. Morrel-Samuels’s survey, Dr. LaJeunesse was given the race of 155 applicants. Combined,
there were 442 applicants, out of 1,123, of whom Dr. LaJeunesse could ascertain the race.

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African American applicants to FAPS relative to the local workforce not only indicated to Dr.
LaJeunesse that the collection of applications he was given was unreliable, but also that the
positions were not sufficiently advertised to the diverse labor force in the vicinity of FAPS.
Dr. LaJeunesse also found that application database was not reliable as an indicator of the
true availability of African Americans to work at FAPS in the relevant positions because of certain
non-race data contained in the applications. For example, the ability to speak Portuguese is greater
among the applicants than the general population in Essex and Union counties, and higher among
the applicant-hires than the applicant non-hires. Further, Dr. LaJeunesse found that more than onethird of the applicants answered that they had a friend or relative employed at FAPS, and more than
76% listed that they heard about a vacant position at FAPS from a friend. Only 4% reported that
they heard about a vacant position from newspaper advertisements, and 20% reported other means.
Dr. LaJeunesse concluded that this data suggested that applicants were made aware of job vacancies
via insider knowledge.
Because Dr. LaJeunesse found that the application database was not reliable, he had to use a
different proxy for the workforce that would have applied under “conditions of normal labor
supply” at FAPS. See Expert Report of Dr. Robert LaJeunesse Report (“LaJeunesse Report”) at 5.
He used the US Census Bureau’s Special EEO Data Tabulation, and used both the 2000 and the
newer 2006–2010, for Essex and Union Counties. Dr. LaJeunesse chose these counties because
nearly two-thirds of the employees on FAPS’s payroll in 2007–2013 list a zip code that is located
within these counties, and he also analyzed commuting patterns in the data to choose the counties.
In choosing the relevant job categories in the Census data, Dr. LaJeunesse relied on job applications
and FAPS’s own computerized data where FAPS entered the position into which it hired an
individual. He also relied on the testimony of FAPS officials, which led Dr. LaJeunesse to the

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conclusion that FAP hired predominately “low skilled individuals minimally educated,” Deposition
of Dr. Robert LaJeunesse (“LaJeunesse Dep.”) 42:2–3, for “unskilled, entry-level positions.”
LaJeunesse Report at 6. Using the FAPS data, he chose a mix of job categories to identify an
appropriate benchmark in the Census data, and he chose the most relevant job categories from the
descriptive choices. Accordingly, based on the “position” data in the HR hires and the coded
applications database and the department data listed in the ADP database, Dr. LaJeunesse weighted
the Census benchmark as follows to represent the work performed at FAPS: 45% laborers and
freight, stock and material movers; 35% miscellaneous assemblers and fabricators; and 20%
miscellaneous motor vehicle operators.
Dr. LaJeunesse then compared FAPS’s hiring patterns to the Census benchmark for Essex
and Union counties and concluded that FAPS hired fewer African American employees than would
be expected based on their availability in the local labor market. These shortfalls were statistically
significant every year in which more than 10 employees were hired. Dr. LaJeunesse further
observed that FAPS’s hiring patterns changed after FAPS had notice of the EEOC’s Complaint in
this matter. While in the period of 1998–2008 FAPS hired 74 fewer African Americans than
expected from the Census benchmark during the entire period, FAPS’s record improved after 2009
and it hired more African Americans than expected in 2011 and 2012.
Having reviewed the arguments contained within FAPS’s motion and the briefs therein, the
Court finds that Dr. LaJeunesse’s reports and testimony are admissible. The testimony of Dr.
LaJeunesse rests on sound methodology and will assist the trier of fact. See Floorgraphics, Inc. v.
News Am. Mktg. In-Store Servs., Inc., 546 F. Supp. 2d 155, 168 (D.N.J. 2008) (citing In re Paoli, 35
F.3d at 742). FAPS argues that Dr. LaJeunesse’s testimony is unreliable because it is based on
unreliable facts and data. FAPS’s arguments, however, concern its assertion that Dr. LaJeunesse’s

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testimony has failed to establish that FAPS is liable for the employment discrimination claims
brought against it. The evidentiary requirements for admissibility of an expert, however, are lower
than the requirements for proving liability. See In re Paoli, 35 F.3d at 744. At this stage, the
proponent of an expert’s testimony need not even prove that the assessments of its expert are
correct; rather, they need only demonstrate that the expert’s opinions are reliable. See id. (citing
Bourjaily v. United States, 483 U.S. 171, 175 (1987)). As the Third Circuit has made clear, “an
expert’s opinion is reliable if it is based upon the methods and procedures of science rather than on
subjective belief or unsupported speculation.” Floorgraphics, 546 F. Supp. at 168 (quoting In re
Paoli, 35 F.3d at 742). Here, Dr. LaJeunesse’s opinion is clearly based on reliable methodology.
FAPS has also offered a list of facts that Dr. LaJeunesse supposedly did not consider in
making his analysis. These arguments that FAPS has advanced relate to questions of credibility or
weight, not to the issue of admissibility. See Walker v. Gordon, 46 F. App'x 691, 695–96 (3d Cir.
2002) (“An expert is, nonetheless, permitted to base his opinion on a particular version of disputed
facts and the weight to be accorded to that opinion is for the jury.”) (citing Stecyk v. Bell Helicopter
Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002)). The court’s gate-keeping function extends to
evaluating whether the methodology used by the expert is reliable, not to weigh the evidence relied
upon by the expert or determine if it agrees with the conclusions reached therein. See Breidor v.
Sears, Roebuck and Co., 722 F.2d 1134, 1138–39 (3d Cir. 1983) (“Where there is a logical basis for
an expert’s opinion testimony, the credibility and weight of that testimony is to be determined by
the jury, not the trial judge.”). FAPS’s disagreement with the conclusions that Dr. LaJeunesse has
drawn, and the inferences he has made to reach these conclusions, are not grounds for excluding his
opinion. Rather, FAPS may appropriately challenge these conclusions and inferences during crossexamination. See Stecyk, 295 F.3d at 414 (“Rule 705, together with Rule 703, places the burden of

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exploring the facts and assumptions underlying the testimony of an expert witness on opposing
counsel during cross-examination.”); see also Potoski v. Wilkes Univ., 3:06-CV-2057, 2010 WL
3811973, at *5–6 (M.D. Pa. Sept. 22, 2010). Here, the Court has reviewed Dr. LaJeunesse’s reports
and testimony and finds that they are supported by sufficiently reliable evidence. Accordingly,
FAPS’s motion to exclude the testimony of Dr. LaJeunesse is denied.
2.

Dr. Palmer Morrel-Samuels

Dr. Palmer Morrel-Samuels is a research psychologist and an expert in surveys. He was
retained by the EEOC to ascertain the race of as many applicants as possible, using scientificallyvalid data collection techniques, because the application forms produced by FAPS did not reflect
the race of the applicants. Dr. Morrel-Samuels was asked to collect information on the race of all
FAPS job applicants between January 1, 2004 and November 7, 2011, which required him to
construct and administer a survey to collect the missing race data of applicants from the applicants
himself. Dr. Morrel-Samuels was provided a dataset of 926 names of FAPS applicants by the
EEOC. Dr. Morrel-Samuels sorted the dataset and determined that 851 individuals corresponded
with one social security number, which he used to obtain the most current addresses and telephone
numbers for those 851 applicants.
Dr. Morrel-Samuels and his research assistances administered their survey by following the
model developed by the U.S. Census Bureau. Dr. Morrel-Samuels simplified the U.S. Census
Bureau questions by aggregating several less common racial categories (such as Samoans) to
minimize the burden on respondents. Dr. Morrel-Samuels and his research assistants first
administered the survey by mail, then re-administered it by telephone. The survey that was mailed
to all 851 applicants included an introductory letter that, inter alia, explained the purpose of the
survey, how to respond, and listed the two survey questions themselves. The survey package also

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included a preaddressed return envelope and a $10 check as a nominal thank-you to participants.
Five days after mailing the initial invitation letter, Dr. Morrel-Samuels sent a brief reminder to the
851 applicants. In designing the survey, Dr. Morrel-Samuels drew on published research on survey
methodology and followed best practices for enhancing response rates while maximizing data
quality. If the research team received a mailed survey package that was returned unopened by the
United States Post Office as undeliverable, they followed the guidelines recommended by the
American Association for Public Opinion Research (AAPOR) and dropped the individual from the
list of eligible responders.
Dr. Morrel-Samuels’s research assistant also attempted to administer the survey by
telephone. To conduct the telephone survey, the interviewers used a computer to guide and
standardize the interview process but used a flexible interview protocol to avoid sounding overly
mechanical. The methodology used is a standard methodology called CATI (Computer Assisted
Telephone Interviews). Because English comprehension was a prerequisite for completing the
telephone interview, individuals who did not speak English were dropped from the list of eligible
respondents. Individuals who had a disconnected or wrong telephone number were also dropped
from the list of eligible respondents. This is consistent with the AAPOR’s guidelines on computing
response rates. Consistent with the literature on research methodology as a means for evaluating
the extent of agreement in data from the mailed surveys and telephone surveys, the research team
re-administered the telephone survey in a limited, randomly-selected, number of cases.
Dr. Morrel-Samuels concluded that the agreement between the mail and telephone surveys
was nearly identical. Dr. Morrel-Samuels also evaluated the data from the two research assistants
who conducted the telephone survey, and concluded that the two research assistants gathered the
data in a nearly identical manner. The construct validity of the method was tested by comparing

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survey results and the independently gathered race identification in FAPS’s hiring database, thus
comparing the efficacy of the two methods, finding a p-value of less than .00001. There is an
exceptionally rare chance that such a degree of agreement could occur by chance, and validates the
survey.
After excluding the necessary applicants, Dr. Morrel-Samuels had 491 eligible respondents.
He received 155 mailed or telephonic responses to the survey, and calculated the response rate to be
32%, which is a rate entirely consistent with current research on response rates in the United States.
This rate is actually higher than the average rate of 20% for this type of survey. Dr. Morrel-Samuels
concluded that 22 FAPS applicants out of the 155 survey respondents (or 14.2% of respondents)
identified their race as African American. This information was provided to Dr. LaJeunesse, who
incorporated it into his applicant database.
Like with Dr. LaJeunesse, FAPS does not argue about the qualifications of Dr. MorrelSamuels but rather disputes the reliability of his testimony and report.2 First, FAPS argues that Dr.
Morrel-Samuels misrepresented the response rate of the survey respondents as 32% when it is really
18%. FAPS has simply reported the wrong math in the calculation: 155 people actually responded
to Dr. Morrel-Samuels’s survey out of 491 potential respondents, or 18%. FAPS also argues that
Dr. Morrel-Samuels did not actually know if all 14% were African Americans, because the survey
asked the respondents to self-identify their race. “Self-identification” of race is an approved
method, endorsed by the U.S. Census and social science literature. See, e.g., United Stated Census
Bureau, About Race (July 8, 2013), https://www.census.gov/topics/population/race/about.html.
FAPS has also argued that Dr. Morrel-Samuels’s testimony and report should be excluded because the EEOC failed to
identify Dr. Morrel-Samuels as required by Federal Rule of Civil Procedure 26. Under Rule 26(a)(2)(D), expert
disclosures must be made “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). FAPS
implies that it was not aware that a report from an expert like Dr. Morrel-Samuels would be presented, but the EEOC
has supplied evidence indicating that FAPS was aware that the EEOC would be designating a psychologist to assist in
surveying applicants on or about March 13, 2013. Further, the EEOC sent Dr. Morrel-Samuels’s report on August 15,
2013, the same day it served Dr. LaJeunesse’s report. The deadline for expert disclosures in this case was August 15,
2013. Accordingly, FAPS’s motion to exclude Dr. Morrel-Samuels’s report and testimony under Rule 26 is denied.
2

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The Court finds that FAPS’s other arguments regarding the reliability of Dr. MorrelSamuels lack merit. FAPS asserts that the surveys were not performed correctly; however, Dr.
Morrel-Samuels used the same survey methodology that the U.S. Census Bureau uses, which is
widely respected for its methodological rigor and straightforward comprehensibility. Dr. MorrelSamuels followed the techniques recommended by the AAPOR in excluding certain people from his
list of eligible respondents. Dr. Morrel-Samuels also created a proper survey universe, consisting of
851 individuals who applied for a job at FAPS and for whom he was trying to discern race so Dr.
LaJeunesse could conduct his statistical analysis. See Citizens Fin. Grp., Inc. v. Citizens Nat. Bank
of Evans City, 383 F.3d 110, 118–19 (3d Cir. 2004) (explaining that a survey of the “wrong
universe” has little probative value). Surveys that are conducted in accordance to accepted
principles and sufficiently reliable should be admitted; concerns about “‘mere technical flaws’ in
methodology go to ‘the weight accorded a survey, not its admissibility.’” Fancaster, Inc. v.
Comcast Corp., 832 F. Supp. 2d 380, 402 (D.N.J. 2011) (quoting Citizens Financial, 383 F.3d at
121. Overall, FAPS’s criticisms largely appear to address whether or not Dr. Morrel-Samuels’s
survey discerned the number of alleged discriminatory acts by FAPS. See Def.’s Br. at 34. Dr.
Morrel-Samuels never attempts to draw conclusions in regards to whether the African Americans
who answered his survey were discriminated against; his survey was simply to provide more
information about the race of applicants for FAPS employment. On the very limited conclusion that
Dr. Morrel-Samuels does actually reach, his method is reliable. Accordingly, FAPS’s motion to
exclude Dr. Morrel-Samuels’s report and testimony is denied.
3.

Mr. Donald Conway

Mr. Donald Conway has been proposed by FAPS to rebut the report of Dr. LaJeunesse. Mr.
Conway is a certified public account (“CPA”) whose area of expertise is in bankruptcy litigation

16

and valuation, and as an operating bankruptcy trustee. He has over 40 years of professional
experience in accounting, finance, and union relations, and has provided accounting and financial
services for numerous corporations, not-for-profit organizations and quasi-governmental entities
through New York and New Jersey. He also served as a financial executive with the New York
Mets Baseball Club, as the executive director of the United States Tennis Association (“USTA”),
and has been a chief operating officer at various companies. He was retained by FAPS to analyze
their business, financial, and human resources records relating to their recruitment and hiring
practices, and the actual impact on these practices resulting from the contractual and/or regulatory
requirements imposed by the Union and the Waterfront Commission.
The EEOC argues that Mr. Conway’s opinions and testimony is unreliable and speculative,
and should not be admitted. It is well-established that expert testimony that is based upon
unsupported speculation is unreliable and inadmissible. See Oddi v. Ford Motor Co., 234 F.3d 136,
158 (3d Cir. 2000) (“An expert’s opinion must be based on the methods and procedures of science
rather than on subjective belief or unsupported speculation.”) (quoting Paoli II, 35 F.3d at 742)
(internal quotation omitted). Statistical proof that creates an inference of discrimination may not be
rebutted by “mere conjecture or assertion that some missing factor would explain the existing
disparities.” Contractors Ass’n of E. Pennsylvania, Inc. v. City of Philadelphia, 6 F.3d 990, 1006–
07 (3d Cir. 1993) (quoting Palmer v. Shultz, 815 F.2d 84, 101 (D.C. Cir. 1987) (internal quotation
omitted); see also Bazemore v. Friday, 478 U.S. 385, 403 n.14 (1986) (noting that the defendants
“declared simply that many factors go into making up an individual employee’s salary” but made no
attempt—“statistical or otherwise—to demonstrate that when these factors were properly organized
and accounted for there was no significant disparity between the salaries of blacks and whites”). In
other words, “[w]hen challenging the admissibility of Plaintiff’s expert testimony, a party must

17

move beyond empty criticisms and demonstrate that a proposed alternative approach would yield
different results.” Floorgraphics, 546 F. Supp. 2d at 172 (relying on Bazemore).
Here, in his report and testimony, Mr. Conway purports to discuss the nature of FAPS’s
business and obligations to the Union and the Waterfront Commission and the real-world impact it
has had on FAPS’s hiring policies. In doing so, Mr. Conway lists out various factors that he asserts
demonstrate that Dr. LaJeunesse misconstructs the Census data and/or miscalculates the appropriate
groups to use in constructing his benchmark. Mr. Conway alleges that these “business necessity”
factors change or distort the analysis done by Dr. LaJeunesse so as to make his calculations
unreliable. For example, Mr. Conway opines that the Waterfront Commission application process
results in discouraging “potential candidates applying to obtain a Waterfront Card” because of
costs, the length of the wait, and processing delays, including delays take place when applicants
have “less than clean [criminal] records.” Report of Mr. Donald Conway (“Conway Report”) at 8.
Mr. Conway opines that Dr. LaJeunesse “should have considered the number of applicants who
would drop out because of the intimidating process of the Waterfront Commission.” See Deposition
of Mr. Donald Conway (“Conway Dep.”) T152:21–T153:2. While Mr. Conway’s report does not
express an opinion on whether these factors would affect the relevant applicant pool on the basis of
race, he explained at his deposition that “there’s perhaps a strong possibility that the number of
African Americans who would apply for that position would have had some incident with law
enforcement, whoever it be, drugs, or whatever” and that he “just think[s] that there’s a higher
propensity for that possibility among African Americans.” Conway Dep. T152. It was Mr.
Conway’s opinion that anyone with a criminal record had a high probability of being disqualified
and would therefore be discouraged and remove themselves from the application process. Id. at
T151–52.

18

Mr. Conway also opines that Dr. LaJeunesse committed an error by ignoring that the CBA
between FAPS and the Union effectively limits FAPS’s ability to freely choose its own workforce
and, consequently, the racial composition of its workforce. Mr. Conway explains that the
requirement to interview Union members “limits the racial makeup of the group [of potential
candidates], because basically you have the union as your base of hiring people, and it’s a wellknown fact that in the unions for the longshoremen, there are a limited number of African
Americans.” Conway Dep. T190:16–25. Based on his experience with unions, Mr. Conway
believes that Dr. LaJeunesse erred in not considering that, even though the CBA did not mandate
the hiring of Union members, FAPS had to hire Union members because a failure to do so would
run the risk of slowdowns or strikes. See id. at T191, 199–200. Therefore, Mr. Conway concludes
that there are errors in Dr. LaJeunesse’s benchmark because FAPS “must draw some of its
workforce” from the Union, which has a predetermined racial composition that it has no control
over. See Conway Report at 6–7, 20. Mr. Conway also argues that Dr. LaJeunesse failed to provide
“more weight to potential employees with access to private automobile transportation” because
FAPS is located in Port Newark, an area that has limited public transportation. Mr. Conway opined
that there is data that shows an alleged significant percentage of those without access to automobiles
are African Americans, and states that Dr. LaJeunesse should have “factored it in somehow,” but
that he didn’t know what type of methodology to use to factor this in. See Conway Dep. T132.
The conclusions that Mr. Conway makes in his report and testimony are clearly speculative
and fail to reach the standard established in Bazemore as construed by the Third Circuit. For
example, Mr. Conway speculates that the Waterfront Commission process discourages potential
applicants from applying, and that this process disproportionately affects the labor pool of African
Americans. He bases this, however, on no scientific evidence, no surveys, or no data of any type.

19

He is not a psychologist, and has no training that would indicate that he is otherwise qualified to
speak to motivational factors of potential applicants. Indeed, Mr. Conway never conducted any
tests or otherwise demonstrated that any of the factors that he listed as potentially affecting Dr.
LaJeunesse’s benchmark would actually have an effect on the labor benchmark. See Calhoun v.
Yamaha Motor Corp., U.S.A., 350 F.3d 316, 322 (3d Cir. 2003) (finding an expert’s testimony to be
“speculative and unreliable” when “[t]here was no literature confirming this theory, nor
demonstrable tests”); Oddi, 234 F.3d at 158 (finding an proposed expert’s testimony to be
unreliable when he “conducted no tests” and appeared to use “little, if any, methodology beyond his
own intuition”). Mr. Conway himself has stated that his purpose as a purported expert was “to point
out factors that, in my opinion, should have been considered and were not considered.” Conway
Dep. T119–20. Mr. Conway’s testimony cannot, however, be admitted to rebut Dr. LaJeunesse’s
statistical proof when it is simply “mere conjecture or assertion that some missing factor would
explain the existing disparities.” Contractors Ass’n of E. Pennsylvania, 6 F.3d at 1006–07. While
the Daubert standard does not require a “paradigm” of scientific inquiry or detailed scientific study,
“it does more than the haphazard, intuitive inquiry that [Mr. Conway] engaged in.” Oddi, 234 F.3d
at 156. Consequently, because Mr. Conway’s report is based on the type of “subjective belief or
unsupported speculation” that is barred under Daubert, see Paoli II, 35 F.3d at 742, the Court must
grant the EEOC’s motion to exclude the expert opinion of Mr. Conway.
III.

Legal Standard
A.

Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that “a court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The substantive law identifies

20

which facts are material. “Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact raises a “genuine” issue “if the evidence is
such that a reasonable jury could return a verdict” for the non-moving party. Healy v. N.Y. Life Ins.
Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988).
The Court must consider all facts and their logical inferences in the light most favorable to
the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
The Court shall not “weigh the evidence and determine the truth of the matter,” but need determine
only whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. While the moving
party bears the initial burden of showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party to “set forth specific facts showing that
there is a genuine issue for trial.” Id. at 250. If the nonmoving party has failed “to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial, . . . there can be no genuine issue of material fact, since a
complete failure of proof concerning an essential element of the nonmoving party's case necessarily
renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir.
1992) (quotation omitted). If the non-moving party fails to demonstrate proof beyond a “mere
scintilla” of evidence that a genuine issue of material fact exists, then the Court must grant summary
judgment. Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1363 (3d Cir. 1992).
B.

Proving Title VII Claims

Title VII of the Civil Rights Act of 1964, Section 703(a), 42 U.S.C. § 2000e et seq.,
prohibits various forms of employment discrimination on the basis of race, color, religion, sex, or

21

national origin. This general proscription against discrimination in employment practices is set
forth in 42 U.S.C. § 2000e–2(a), which provides:
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his 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.
42 U.S.C. § 2000e–2(a). “Title VII prohibits both intentional discrimination (known as ‘disparate
treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have
a disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v.
DeStefano, 557 U.S. 557, 577 (2009).
1.

Pattern or Practice of Disparate Treatment

A pattern or practice action is a particular way to bring a discrimination claim under Title
VII. To substantiate a claim of pattern or practice of violating Title VII, a party must provide
“more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Int'l
Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977). Rather, a party must “establish by a
preponderance of the evidence that racial discrimination was the company's standard operating
procedure the regular rather than the unusual practice.” Id. In other words, a company engages in a
pattern or practice of discrimination when it “regularly and purposefully” engages in less favorable
treatment of some group in some aspect of its employment practices. Teamsters, 431 U.S. at 335;
see also Sperling v. Hoffmann-La Roche, Inc., 924 F. Supp. 1346, 1357 (D.N.J. 1996). As stated in
Teamsters, the discrimination must be proven to be the company’s “standard” policy in light of all
the circumstances of the case. See Teamsters, 431 U.S. at 336. In this way, there is a “crucial

22

difference” between a pattern or practice of discrimination and an individual claim because “the
focus often will not be on individual hiring decisions, but on a pattern of discriminatory
decisionmaking.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984) (quotation
and citation omitted). Accordingly, “courts considering what evidence is necessary to show that an
employer routinely and purposely discriminated have also required substantial proof of the
practice.” King v. Gen. Elec. Co., 960 F.2d 617, 624 (7th Cir.1992).
Generally, a pattern or practice suit is divided into two phases: liability and remedial. See
id. at 360–62; see also Dillon v. Coles, 746 F.2d 998, 1004 (3d Cir. 1984). At this initial “liability”
stage, plaintiffs must produce sufficient evidence “that discrimination was the employer's standard
practice.” Dillon, 746 F.2d at 1004; see also Teamsters, 431 U.S. at 360. Once a plaintiff
establishes a prima facie case that the employer intentionally discriminated against the protected
group, the burden shifts to the employer to show that the EEOC’s “proof is either inaccurate or
insignificant.” Teamsters, 431 U.S. at 360. Defendants may “assault . . . the source, accuracy, or
probative force” of plaintiff’s proof. Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 159
(2d Cir. 2001) (quoting 1 Arthur Larson et al., Employment Discrimination § 9.03[2], at 9–23 to 9–
24). “Any nondiscriminatory justification offered by the company will be subject to further
evidence by the Government that the purported reason for an applicant's rejection was in fact a
pretext for unlawful discrimination.” Teamsters, 431 U.S. at 362 n. 50. If the plaintiffs are
successful with proving liability, they are “entitled to an injunction barring continuation of the
discriminatory practice.” Dillon, 746 F.2d at 1004. “When the Government seeks individual relief
for the victims of the discriminatory practice, a district court must usually conduct additional
proceedings after the liability phase of the trial to determine the scope of individual relief.”
Teamsters, 431 U.S. at 361. This case is currently at the liability phase.

23

In order to establish liability under a disparate treatment theory, “proof of the employer’s
discriminatory motive is critical.” E.E.O.C. v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990).
A party may show discriminatory intent “by direct evidence or through indirect or circumstantial
evidence.” Id. at 347 (internal citations omitted); see also Teamsters, 431 U.S. at 335 n. 15 (“Proof
of discriminatory motive is critical, although it can in some situations be inferred from the mere fact
of differences in treatment.”); Green v. USX Corp., 843 F.2d 1511, 1526 (3d Cir. 1988) (“In our
view, a showing of discriminatory intent does not require the explicit demonstration by a plaintiff of
an employer's ‘invidious purpose’ or ‘hostile motive.’”). Because plaintiffs must show that
discrimination was the standard operating procedure, “the liability phase is largely preoccupied with
class-wide statistical evidence directed at establishing an overall pattern or practice of intentional
discrimination.” Robinson, 267 F.3d at 168. “Statistics alone can make out a prima facie case of
discrimination if the statistics reveal ‘a gross disparity in [the] treatment of workers based on race.’”
Id. at 158 (quoting Lopez v. Laborers Int'l Union, Local No. 18, 987 F.2d 1210, 1214 (5th Cir.1993)
(internal quotation marks omitted); see also Bell v. E.P.A., 232 F.3d 546, 553 (7th Cir. 2000) (“In a
pattern and practice disparate treatment case, statistical evidence constitutes the core of a plaintiff's
prima facie case.”).
However, “statistics are not irrefutable; they come in infinite variety and, like any other kind
of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts
and circumstances.” Teamsters, 431 U.S. at 340. If the statistical disparity is insufficient to
establish a prima facie case alone, “the plaintiff may get over his or her initial hurdle by combining
statistics with historical, individual, or circumstantial evidence.” Carroll v. Sears, Roebuck & Co.,
708 F.2d 183, 190 (5th Cir. 1983). Ordinarily, therefore, plaintiffs prove their case “through a
combination of strong statistical evidence of disparate impact coupled with anecdotal evidence of

24

the employer's intent to treat the protected class unequally.” Mozee v. Am. Comm'l Marine Serv.
Co., 940 F.2d 1036, 1051 (7th Cir.1991); see also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d
1263, 1274 (11th Cir. 2000) (explaining that plaintiffs normally prove that discrimination is a
company’s standard operating procedure through a combination of statistics and anecdotes);
Carroll, 708 F.2d at 190 (explaining that statistics may be buttressed with “evidence of a history of
discrimination practiced by the employer, individual instances of discrimination, and opportunities
to discriminate in the employer's decision-making processes”). Such anecdotal evidence will not
normally be sufficient to prove a pattern or practice of discrimination; rather “it simply provides
‘texture’ to the statistics.” Robinson, 267 F.3d at 168; see also Teamsters, 431 U.S. at 339 (stating
that anecdotal evidence of personal experiences with a company bring “the cold numbers
convincingly to life”).
2.

Disparate Impact

A disparate impact violation under Title VII, on the other hand, “is made out when an
employer is shown to have used a specific employment practice, neutral on its face but causing a
substantial adverse impact on a protected group, and which cannot be justified as serving a
legitimate business goal of the employer.” Metal Serv. Co., 892 F.2d at 346. Unlike the disparate
treatment theory of liability, “[p]roof of discriminatory motive . . . is not required under a disparateimpact theory.” Teamsters, 431 U.S. at 335 n.15.
Accordingly, to establish a prima facie case of disparate impact discrimination, “a plaintiff is
required to demonstrate that application of a facially neutral standard has resulted in a significantly
discriminatory hiring pattern.” Newark Branch, N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d
792, 798 (3d Cir. 1991). A plaintiff must make “a threshold showing that some employment
practice causes a significant statistical disparity, or has the effect of denying members of one race

25

equal employment opportunities.” Nat'l Ass'n for the Advancement of Colored People v. N. Hudson
Reg'l Fire & Rescue, 742 F. Supp. 2d 501, 511 (D.N.J. 2010) aff'd sub nom. N.A.A.C.P. v. N.
Hudson Reg'l Fire & Rescue, 665 F.3d 464 (3d Cir. 2011) (citing Ricci, 557 U.S. at 587).
Proof of causation is essential for a prima facie case; a plaintiff must “demonstrate that the
disparity they complain of is the result of one or more of the employment practices that they are
attacking here, specifically showing that each challenged practice has a significantly disparate
impact on employment opportunities for whites and nonwhites.” Wards Cove Packing Co., Inc. v.
Atonio, 490 U.S. 642, 657 (1989); see also N. Hudson Reg'l Fire, 665 F.3d at 476–77. “To prove
causation through statistical evidence alone, the statistics must be ‘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.’” Newark Branch, N.A.A.C.P. v. City of
Bayonne, N.J., 134 F.3d 113, 121 (3d Cir. 1998) (quoting Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 994–95 (1988)). The relevant comparison in showing statistical disparity is “between the
racial composition of those qualified persons in the relevant labor market and that of those in the
jobs at issue.” Town of Harrison, 940 F.2d at 798.
If a plaintiff establishes a prima facie case of disparate impact discrimination, the company
may defend against liability by demonstrating that the practice is “job related for the position in
question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). The Third
Circuit has “interpreted the business-necessity defense to mean that employers may not use criteria
which have a discriminatory effect unless those criteria define the minimum qualifications
necessary to perform the job.” N. Hudson Reg'l Fire, 665 F.3d at 477.

An employer “must assert

actual reasons why the challenged employment practice is important to the position; the mere

26

assertion of conceivable bases is not sufficient.” Id. (quotation and citation omitted). If the
employer successfully makes a business-necessity defense, a plaintiff can still succeed “by showing
that alternative practices would have less discriminatory effects while ensuring that candidates are
duly qualified.” N. Hudson Reg’l Fire, 665 F.3d at 477 (citing 42 U.S.C. § 200e-2(k)(1)(A)(ii),
(C)).
III.

Analysis
FAPS has moved for summary judgment on both claims for discrimination brought by the

EEOC. The crux of FAPS’s motion is that the EEOC has failed to establish that it engaged in wordof-mouth recruitment, and accordingly its claims for violations of Title VII must fail. FAPS has
also moved for summary judgment, on the basis that the EEOC failed to satisfy its statutory
conciliation obligations prior to filing suit. The Court addresses these arguments below.
A.

EEOC’s Obligation to Conciliate

Because FAPS argues that the EEOC has failed to satisfy its conciliation requirements, a
mandatory prerequisite to filing suit, the Court addresses this issue first. In the Court’s
accompanying Opinion today, the statutory requirement of conciliation and the current Circuit split
regarding whether and to what extent a court may enforce EEOC’s mandatory duty to conciliate
discrimination claims before filing suit is discussed in detail. As relevant here, the Third Circuit has
yet to address this issue. Courts in this Circuit, however, have implicitly found that the EEOC’s
conciliation efforts are subject to judicial review, and have scrutinized the conciliation process to
see if the EEOC’s efforts met a minimum level of good faith. See, e.g., E.E.O.C. v. Hugin Sweda,
Inc., 750 F. Supp. 165, 168 (D.N.J. 1990) (staying a matter where there was a lack of good faith
conciliation effort on the EEOC’s part); E.E.O.C. v. Rhone-Poulenc, Inc., 677 F. Supp. 264, 266
(D.N.J. 1988) aff’d, 876 F.2d 16 (3d Cir. 1989) (finding that the EEOC made an adequate attempt to

27

conciliate after reviewing evidence of the conciliation conference); E.E.O.C. v. Sears, Roebuck &
Co., 391 F. Supp. 2d 317, 320 (D.N.J. 2005) (reviewing the conciliation efforts of the EEOC and
finding that the EEOC conciliated in good faith, but refusing to review the “form and substance” of
the conciliation proposal); EEOC v. Equicredit Corp. of Am., No. 02-CV-844, 2002 WL 31371968,
at *3–4 (E.D. Pa. Oct. 8, 2002) (finding that the record indicated that the EEOC “made a sincere
and reasonable effort to negotiate in good faith, thereby fulfilling its obligations”); E.E.O.C. v.
LifeCare Mgmt. Servs., LLC, 02: 08-CV-1358, 2009 WL 772834, at *5 (W.D. Pa. Mar. 17, 2009)
(“The issue of whether the EEOC attempted to conciliate the underlying charge in good faith is a
legal matter for the Court to determine, not the jury.”); E.E.O.C. v. Bimbo Bakeries USA, Inc., CIV.
1:09-CV-1872, 2010 WL 598641 (M.D. Pa. Feb. 17, 2010) (staying the action for a conciliation
conference where the court found that there was no good faith effort to conciliate by the EEOC);
E.E.O.C. v. U.S. Steel Corp., CIV.A. 10-1284, 2013 WL 625315, at *7–11 (W.D. Pa. Feb. 20,
2013).
However, the Court need not address what level of scrutiny it would afford to the EEOC’s
efforts here, because FAPS has inappropriately disclosed conciliation materials in violation of 42
U.S.C. § 2000e-5(b). Title VII expressly states:
Nothing said or done during and as a part of such informal endeavors may be made
public by the Commission, its officers or employees, or used as evidence in a
subsequent proceeding without the written consent of the persons concerned. Any
person who makes public information in violation of this subsection shall be fined
not more than $1,000 or imprisoned for not more than one year, or both.
42 U.S.C. § 2000e-5(b). As part of its argument that the EEOC has failed to conciliate in good
faith, FAPS has disclosed and used evidence describing in detail the correspondences the parties
exchanged during the conciliation process, undeniably without the written consent of the EEOC.
Under the plain language of the statute, disclosure of this information is prohibited, with no

28

exceptions, and the persons concerned have the discretion to consent or not to consent to such
disclosure. See LifeCare Management, 2009 WL 772934, at *4. Here, the EEOC has objected to
the disclosure of this confidential information. FAPS’s disclosure of this information is clearly
forbidden, and the Court accordingly cannot consider it in making its determination regarding the
EEOC’s efforts at conciliation. “[V]irtually every case holding that the EEOC failed to satisfy the
Title VII prerequisites brought before this Court's attention has delved into the details of the
conciliation process.” U.S. Steel, 2013 WL 625315, at *10. Lacking such details, the Court cannot
appropriately determine whether or not the EEOC appropriately fulfilled its conciliation
requirements. Therefore, the Court denies FAPS’s motion for summary judgment on these grounds,
and proceeds to the merits of the EEOC’s Title VII claims.3
B.

Disparate Impact Discrimination Claim

The EEOC has alleged that FAPS’s use of word-of-mouth recruiting, a facially neutral
practice, has caused a substantial adverse impact on the number of African Americans FAPS has
hired. FAPS has moved for summary judgment, arguing that the EEOC has failed to establish a
prima facie case because it has failed to show that a particular employment practice (here, the use of
word-of-mouth recruiting) has created the disparate impact. See Wards Cove, 490 U.S. at 656–57.
The Court agrees.
In support of its prima facie case, the EEOC has supplied statistical evidence that it argues
demonstrates that FAPS’s word-of-mouth recruiting adversely impacted the number of African
Americans hired. See Pl.’s Opp. Br. at 29. Specifically, the EEOC has submitted the expert report
of Dr. LaJeunesse. As discussed in detail above, Dr. LaJeunesse found that, for the period of 1999

To the extent that the EEOC has moved for summary judgment on the grounds that there is no general “failure to
conciliate” defense, the Court denies this motion. Not only is it unnecessary for the Court to make this determination in
this case, but, as discussed, courts in this Circuit (and the vast majority of other Circuits) have consistently held that
such judicial review exists.
3

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to 2008, FAPS hired few African Americans than would be expected given the available labor
market and that there was virtually a zero percent chance that the shortfall of African American
hiring at FAPS resulted by chance. Dr. LaJeunesse also found that “a staggering 76% of 951
applicants that listed a referral source heard about vacant positions at FAPS from a friend,” and that
less than 5% of FAPS applicants listed “advertisement” as the source of their knowledge about a
job. See LaJeunesse Report at 5. Dr. LaJeunesse also found that “the African American
representation rate of the extant FAPS applications is significantly lower than the labor force
participation rate of African Americans in the local labor market,” leading him to find that “the
positions were not sufficiently advertised to the diverse labor force in the vicinity of FAPS.” Id. at
4–5. This led him to conclude that the application database was “suggestive of word-of-mouth
advertising.” Id. at 5.
While Dr. LaJeunesse did not attempt to determine whether word-of-mouth recruitment was
an employment practice employed by FAPS, he did find evidence of “insider knowledge in terms of
identifying potential job openings.” LaJeunesse Dep. 102:14–17. To Dr. LaJeunesse, “insider
knowledge” exists when the primary way a potential job applicant would become aware of an
opening in a company is through a “relative or family member that works there or [if they] have
some link to the labor union,” id. at 63:22–64:2 Dr. LaJeunesse later clarified that “insider
knowledge” is the “very definition of word-of-mouth recruiting. . . .” Reply Expert Report of Dr.
Robert LaJeunesse (“LaJeunesse Rep. Report”) at 4–5. It is undisputed that, under the terms of the
CBA, FAPS had an obligation to notify the Union when it was recruiting. Because Union
application were guaranteed an interview, Union members applying to FAPS would indicate on
their application that they were referred by the Union. As referenced above, Dr. LaJeunesse’s
definition of “insider knowledge” encompassed those applicants who learned of a job opening at

30

FAPS through a Union connection. See LaJeunesse Dep. 103:4–20. Accordingly, all individual
applications reflecting referrals to FAPS by Union officials were included as “evidence of insider
knowledge” by Dr. LaJeunesse. Id. at 108:5–8. Dr. LaJeunesse, however, could not quantify the
effect of this contractual obligation as to the statistical influence on recruitment and hiring by
FAPS.
Consequently, while the EEOC has submitted statistical evidence that shows a disparity in
the number of African American hires at FAPS, it has failed to make a prima facie showing of
discrimination as a result of word-of-mouth recruiting. The EEOC has simply not shown that wordof-mouth recruiting, “independent of other factors that may affect the racial balance in the
workplace, is causally related to the discrimination in the number of blacks hired.” Carroll, 708
F.2d at 189. By failing to quantify the effect of that FAPS’s contractual obligation to notify and
interview the Union of potential job openings as to the statistical influence on recruiting or hiring at
FAPS, the EEOC has failed to “isolat[e] and identify[] the specific employment practices that are
allegedly responsible for any observed statistical disparities.” Wards Cove, 490 U.S. at 656
(quoting Watson, 487 U.S. at 994 (O'Connor, J., concurring)). “[A] Title VII plaintiff does not
make out a case of disparate impact simply by showing that, ‘at the bottom line,’ there is a racial
imbalance in the work force.” Wards Cove, 490 U.S. at 657. “The EEOC here, in essence, is
attacking [FAPS’s] overall hiring procedure by pointing to the ‘bottom line’ results; it has not made
the more focused allegation required by Wards Cove that a specific, affirmative employment
practice caused the disparity.” E.E.O.C. v. Chicago Miniature Lamp Works, 947 F.2d 292, 305 (7th
Cir. 1991). Because the EEOC has failed to isolate the discriminatory effect of the practice it is
challenging, it has failed to “show that the specific factor challenged under the disparate impact
model results in the discriminatory impact.” Carroll, 708 F.2d at 190.

31

There is also another reason why the EEOC has failed to establish disparate impact
discrimination. The EEOC has submitted facts showing the limited ways that FAPS would
advertise during the relevant time and that FAPS would notify its workforce when it was hiring by
posting hiring announcements next to the employee time clocks. The record also indicates that,
while FAPS management was aware that its workers would spread the word about job openings at
FAPS, there was no active encouragement and/or company policy with respect to the use of wordof-mouth recruitment. There is no allegation that FAPS has affirmatively engaged in word-ofmouth recruiting by telling, encouraging, or actively promoting its employees to refer applicants to
open jobs. Rather, the proof establishes that FAPS “passively waited for applicants who typically
learned of opportunities from current [FAPS] employees.” Chicago Miniature Lamp Works, 947
F.2d at 305. This behavior is not considered to be an employment practice for the purposes of
disparate impact liability because “[t]he practices here are undertaken solely by employees.” Id.
Overall, the undisputed record establishes that the EEOC has failed to establish the essential
element of causation in its disparate impact claim. Specifically, it has failed to prove that word-ofmouth recruiting, “independent of other factors that may affect the racial balance in the workplace,”
caused the observed racial imbalance at FAPS. See Carroll, 708 F.2d at 189. Therefore, summary
judgment will be entered for FAPS on the EEOC’s disparate impact claim.
C.

Pattern or Practice of Disparate Treatment

On the other hand, FAPS has failed to show that there is no genuine issue of material fact
with regard to the EEOC’s claim for pattern or practice of disparate treatment discrimination.
Rather, the parties’ briefs and the record in general demonstrate multiple factual disputes that
prevent summary judgment from being entered.

32

The EEOC has supplied both statistical and anecdotal evidence to establish a prima facie
case of pattern or practice of disparate treatment. First, as discussed, the EEOC has supplied the
expert report of Dr. LaJeunesse as statistical evidence of hiring discrimination at FAPS. Once
again, Dr. LaJeunesse found that, from 1999 to 2008, FAPS hired fewer African Americans than
would be expected, given the available labor market. These shortfalls were statistically significant
every year in which more than 10 employees were hired. Overall, Dr. LaJeunesse concluded that
there was virtually a zero percent chance that the shortfall of African Americans at FAPS resulted
by chance. Such statistical evidence, revealing an apparent “gross disparity in [the] treatment of
workers based on race,” Robinson, 267 F.3d at 158, is the “core” of a prima facie case of
discrimination. See Bell, 232 F.3d at 553.
In an attempt to discredit this report, FAPS argues that Dr. LaJeunesse failed to consider
certain elements of its hiring and recruiting processes erroneously (specifically, the job skills of its
potential employees) or failed to consider them at all (the Union’s influence on hiring and the
Waterfront Commission process). FAPS appears to contend that because the EEOC’s claim is
premised on “nearly exclusive reliance” upon this report, and because this report is “meritless,” the
EEOC has failed to prove its claim and summary judgment should be entered. See Def.’s Br. at 21–
22. As discussed with FAPS’s motion to exclude Dr. LaJeunesse’s testimony, the major problem
with FAPS’s argument is that these issues all relate to the weight to be afforded to the conclusions
made by Dr. LaJeunesse. During summary judgment, the Court may not determine whether or not
it agrees with the expert’s conclusions. Rather, such determinations regarding what Dr. LaJeunesse
did and did not rely on in making his determinations goes to the weight that the jury should afford
his testimony. See Breidor, 722 F.2d at 1139 (explaining that, once an expert’s report has been
deemed admissible, any issues of the credibility or weight of an expert’s testimony “is to be

33

determined by the jury, not the trial judge”). FAPS may appropriately bring out such arguments
exploring the facts and assumptions of Dr. LaJeunesse’s testimony during cross-examination.4 See
Stecyk, 295 F.3d at 414. Accordingly, while FAPS may adamantly disagree with some of Dr.
LaJeunesse’s determinations, its arguments are ill-suited for this stage of the proceedings.
The EEOC has buttressed its statistical evidence with anecdotal evidence in order to show
discriminatory animus on the part of FAPS. For example, FAPS’s owner, Gary LoBue, explained
that it failed to provide sponsorship letters to African Americans applying for jobs at FAPS because
a “good part” of the African Americans that are qualified to work at FAPS “have a criminal
background record” and therefore could not get a waterfront card. See Deposition of Gary LoBue
(“LoBue Dep.”) 119:20-120:10. LoBue credited FAPS’s success in recruiting more African
Americans because it has lowered its skill requirements and because they are hiring younger
African Americans whom he says have not gotten a criminal record yet. See id. at 121:12-25.
Considering the facts in the light most favorable to FAPS, such testimony allows for an
inference that FAPS had a discriminatory animus towards African Americans. FAPS’s argument is
premised on the Waterfront Commission “vetting out” applicants with a criminal background. The
EEOC, however has supplied disputing FAPS’s contention that a criminal record is an automatic
disqualifier for an applicant seeking a waterfront card. For example, Jeffrey Schoen, the Director of
Law and Licensing for the Commission, has testified 75% of applicants who are flagged for having
a criminal record or some other prior bad act are issued a waterfront card. See Deposition of Jeffrey
Schoen (“Schoen Dep.”) 101:5-9. Because the Waterfront Commission reviews each license
request on a case-by-case basis, a criminal conviction is not a per se disqualification from receiving
a waterfront license, and the Waterfront Commission does not require or suggest that employers
One of the biggest disputes here relates to Dr. LaJeunesse’s finding that FAPS was hiring unskilled or semi-skilled
workers during the relevant time period. FAPS strongly disputes this finding. The Court, however, cannot
appropriately resolve this factual debate.
4

34

pre-screen job applicants for a criminal record. See Deposition of William Mazur (“Mazur Dep.”)
137:10-16, 143:10-17; Schoen Dep. 81:20-82:1; Deposition of Julie Lynch (“Lynch Dep.”) 289:1620. While the Court agrees with FAPS that there is nothing inherently discriminatory about
refusing to employ someone with a criminal background, the EEOC has certainly raised facts that
support an inference that FAPS was refusing to sponsor African Americans based upon a
discriminatory presumption that an African American applicant must have a criminal record.
Furthermore, the EEOC has supplied individual testimony from African American claimants
in this case who attempted to apply to FAPS. Such testimony helps bring “the cold numbers
convincingly to life . . . .” Teamsters, 431 U.S. at 339. While Human Resources Director Lynch
testified that she reviewed all job applications and spoke with each applicant to determine their
relevant skills and experience,5 the claimants reported that Lynch did not review the information on
their job applications, did not ask questions about their background or experience, and did not
provide a sponsorship letter or advise them that they needed to obtain a Waterfront card from the
Commission. For example, one of these claimants testified that he was told that FAPS was not
hiring when he asked if he could fill out an application—allegedly at the same time a white
Hispanic applicant was sitting in the reception area filling out an application. Such anecdotal
evidence certainly provides texture to EEOC’s claim of discriminatory bias on behalf of FAPS
while determining whether to issue sponsorship letters to African American applicants.

5

FAPS has also argued in its moving brief that the EEOC has failed to prove that FAPS knew the potential claimants
belonged to a protected group, part of its prima facie case. FAPS argues that the EEOC has failed to produce any
evidence that it knew the applicants identified as African Americans because FAPS’s application does not include any
questions about or otherwise indicate the applicant’s race or gender. However, the determination of whether FAPS
knew that the potential claimants belonged to the protected group is based on FAPS’ perception of the applicants’ race.
See Perkins v. Lake County Dep’t of Utilities, 860 F. Supp. 1262, 1277 (N.D. Ohio 1994); Eriksen v. Allied Waste Sys.,
Inc., 06-13549, 2007 WL 1003851, at *5 (E.D. Mich. Apr. 2, 2007) (quoting Bennun v. Rutgers State Univ., 941 F.2d
154, 173 (3d Cir. 1991)). Accordingly, because the record has established that FAPS directly observed the race of the
applicants when they handed in their job applications and when Lynch interviewed them, such an argument is meritless.

35

FAPS also argues that there is no evidence that it used word-of-mouth recruiting, which it
describes as the “heart of the EEOC’s case.” Def.’s Reply Br. at 15. In support of this claim, FAPS
points to testimony by three company officials, all of which testified that word-of-mouth
recruitment is not actively encouraged or promoted at FAPS. The EEOC, however, has supplied
evidence that supports an argument that FAPS does rely on word-of-mouth recruiting. For
example, one of the first steps that FAPS took when hiring was to notify its existing workforce by
posting a job opening announcement next to the employee time clock. LoBue was aware that its
employees would tell their friends and family that FAPS was hiring. FAPS had a lot of walk-in
applicants. FAPS also did very little to publicize job openings beyond the Port; in general, FAPS
rarely placed job advertisements in newspapers for unskilled or semi-skilled jobs.6 Approximately
60% of FAPS’s employees are Spanish/Portuguese speaking, and FAPS did place advertisements in
two Spanish language newspapers seeking security guards and auto mechanics from 2000–2007.
Additionally, the FAPS job application, which was drafted by LoBue and Lynch, twice asks an
applicant who referred him to FAPS. The responses on these applications reveal that most
applicants heard about the job by word-of-mouth, and that there was little advertising to track. Dr.
LaJeunesse, in his report, found that 76% of 951 applications that listed a referral source heard
about a vacant position at FAPS from a friend, while less than 5% of FAPS applicants listed
“advertisement” as the source of their knowledge about the job. Combined with the lack of
advertising and the low composition of African American applicants, Dr. LaJeunesse was led to the
conclusion that FAPS practices were “suggestive of word-of-mouth advertising.” See LaJeunesse
Report at 4–5. Considering these facts in the light most favorable to the EEOC, as the non-moving

Once again, according to FAPS, it had no need for and did not hire any “unskilled” workers during the relevant time
period. The EEOC, on the other hand, asserts that FAPS was hiring such workers.
6

36

party, the EEOC has supplied enough evidence that FAPS could have used word-of-mouth
recruiting.
While the EEOC has failed to supply evidence to prove that word-of-mouth recruiting was
the cause of a disparate impact on African American hiring, there is evidence that suggests that
FAPS relied, at least in part, on word-of-mouth recruiting for hiring. When combined with the
small number of African American applicants and hires during the relevant time period, evidence of
this method of recruiting must be considered “circumstantial evidence which help to establish a
reasonable inference of an employer’s discriminatory treatment of blacks as a class.” Metal Serv.
Co., 892 F.2d at 350. As the Third Circuit has explained, when an employer that relies primarily
upon its existing workplace to refer potential employees, it is not surprising that historic racial
imbalances in the workplace are perpetuated because “existing white employees tend[ ] to
recommend their own relatives, friends and neighbors, who would likely be of the same race.”
Metal Serv. Co., 892 F.2d at 350 (quoting Parham v. Sw. Bell Tel. Co., 433 F.2d 421, 426 (8th Cir.
1970)). While the Court agrees with FAPS that the general use of word-of-mouth recruiting is not,
in itself, a per se violation of the law, see, e.g., E.E.O.C. v. Consol. Serv. Sys., 989 F.2d 233, 236
(7th Cir. 1993), the Court is constrained at this time to view the evidence supporting the possibility
of word-of-mouth recruiting as circumstantial evidence of FAPS’s discriminatory treatment of
African Americans.
Overall, the Court finds that the EEOC has produced enough evidence at this stage of the
proceedings to establish that “discrimination was the employer’s standard practice.” Dillon, 746
F.2d at 1004. The EEOC has provided evidence to prove FAPS’s discriminatory intent, a critical
element for a pattern or practice disparate treatment claim. First, and most significantly, the EEOC
has supplied statistical evidence which reveals a clear disparity in the recruiting and hiring of

37

African Americans by FAPS, which is directed at proving that FAPS “routinely and purposely”
discriminated against African Americans. King, 960 F.2d at 624; see also Teamsters, 431 U.S. at
335. Next, the EEOC has provided evidence meant to prove that FAPS relied on word-of-mouth
recruiting, and that such recruitment resulted in a relatively small number of minority applicants.
At this stage of the proceedings, such evidence must be considered “circumstantial evidence which
helps establish a reasonable inference of an employer’s discriminatory treatment of blacks as a
class.” Metal Services, 892 F.3d at 350. The EEOC has bolstered this evidence with anecdotal
evidence, all of which is directed at proving that FAPS “routinely and purposely” discriminated
against African Americans. King, 960 F.2d at 624; see also Teamsters, 431 U.S. at 335.
While FAPS has presented several business justifications for any disparate treatment of
African Americans, the EEOC has provided facts that create a factual issue pertaining to whether
these purported reasons for the alleged pattern or practice of disparate treatment are in fact a pretext.
See Teamsters, 431 U.S. at 361 n.50. Generally, FAPS argues that the realities of its business
combined with the barriers presented by the Waterfront Commission and the Union are what led to
the lack of African Americans recruited or hired by FAPS, rather than any discriminatory intent.
For example, FAPS argues that it is constrained in its ability to hire African Americans because the
Waterfront Commission will not approve an applicant who has a criminal background. As
discussed above, the EEOC has supplied evidence that suggests that the Waterfront Commission
does not automatically deny an application of someone with a criminal background. Further, FAPS
appears to assume that African American applicants are likely to have a criminal background,
indicative of a discriminatory intent. FAPS has also argued that the Union is responsible for the
recruiting and hiring decisions at FAPS. While this may be true, there is evidence that indicates that
the Union did not impose restrictions on how FAPS recruited. Likewise, Union officials testified

38

that FAPS was under no obligation to hire members. Finally, FAPS argues that it was only hiring
skilled workers, who had specialized training, during the relevant time. As discussed throughout
this Opinion, whether FAPS was hiring skilled or unskilled workers during this period is strongly
debated by the parties. Accordingly, while FAPS’s arguments pertaining to non-discriminatory
justifications for a lack of African American hires may prove meritorious, the EEOC has provided
sufficient evidence that would allow a reasonable juror to find these reasons to be merely pretextual.
The Court stresses that this does not mean that the EEOC will win this case; the Court’s
ruling here is simply based upon the numerous factual disputes that preclude summary judgment.
From the dispute over whether FAPS was hiring during the relevant time period, to what skill-level
of workers it was hiring, to the actual impact the Union and the Waterfront Commission had on its
hiring process, to the weight to be given to Dr. LaJeunesse’s testimony, and to whether FAPS
engaged in actual intentional discrimination against the African American community,7 FAPS’s
motion asks the Court to draw too many factual conclusions. Accordingly, summary judgment on
the EEOC’s pattern or practice of disparate treatment claim must be denied.
D.

Time-Barred Claims

Finally, the Court moves to FAPS’s other motion for summary judgment. This motion

7

As the Seventh Circuit has explained:
Discrimination is not preference or aversion; it is acting on the preference or aversion. If the most
efficient method of hiring, adopted because it is the most efficient (not defended because it is
efficient-the statute does not allow an employer to justify intentional discrimination by reference to
efficiency, 42 U.S.C. § 2000e-2(k)(2), just happens to produce a work force whose racial or religious
or ethnic or national-origin or gender composition pleases the employer, this is not intentional
discrimination. The motive is not a discriminatory one. Knowledge of a disparity is not the same thing
as an intent to cause or maintain it. Or if, though the motives behind adoption of the method were a
mixture of discrimination and efficiency, [the company] would have adopted the identical method of
recruitment even if [it] had no interest in the national origin of his employees, the fact that [it] had
such an interest would not be a “but for” cause of the discriminatory outcome and again there would
be no liability.

E.E.O.C. v. Consol. Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993). In other words, the EEOC must establish that FAPS
“is biased in favor of [the favored group] or prejudiced against any group underrepresented in [its] work force.” Id.

39

requires the Court to determine whether the “charge-filing” period set forth in Section 706(e)(1) of
Title VII, 42 U.S.C. § 2000e–5(e)(1), applies to bar claims that accrued prior to the filing of the
Commission’s Charge in this case. Specifically, the Court must determine if the EEOC may seek
relief for individuals who were denied employment more than 300 days before the filing of the
Commissioner’s Charge on October 18, 2007.
It is undisputed here that the EEOC filed a Commissioner’s Charge against FAPS on
October 18, 2007, alleging that FAPS engaged in an on-going pattern or practice of race and sex
discrimination against African Americans and female applicant and employees from at least 2004
through 2007. The Charge was brought by the EEOC and stated that “[t]he persons aggrieved
include all persons who have been, continue to be, and will in the future be adversely affected by
the unlawful practices complained of herein.” See FAPS’s Statement of Undisputed Facts (“FAPS
Facts”) ¶¶ 209–12. Based upon the EEOC’s subsequent investigation of these charges, the EEOC
filed this lawsuit on June 17, 2010. The Complaint asserts that, from at least 2004 until the present,
FAPS engaged in an ongoing pattern or practice of race discrimination against African Americans
in recruiting and hiring in violation of Title VII. Compl. ¶¶ 7–10. In its Complaint, the EEOC
seeks “to provide appropriate relief to a class of potential and actual class applicants who were
adversely affected” by FAPS’s alleged wrongful actions. Compl. at 1.
Under section 706 of Title VII, the EEOC may file a charge against a private employer on
behalf of a “person or persons aggrieved” by an unlawful employment practice. 42 U.S.C. § 2000e5(f)(1). Under section 707 of Title VII, the EEOC may file a charge against an employer that the
EEOC has reason to think engaged in a “pattern or practice” of discrimination. Id. § 2000e-6. As is
obvious from the instant action, the EEOC is empowered to sue if conciliation or other forms of
voluntary compliance is unsuccessful. See id. § 2000e-5(f)(1).

40

Under section 706, the EEOC’s enforcement authority is subject to several procedural
requirements. Section 707 requires the EEOC to “investigate and act on a charge of a pattern or
practice of discrimination . . . in accordance with the procedures set forth in [section 706].” Id. §
2000e-6(e). Of particular relevance here, Section 706 sets forth a “charge-filing” requirement,
providing:
A charge under this section shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred . . . except that in a case of an
unlawful employment practice with respect to which the person aggrieved has
initially instituted proceedings with a State or local agency with authority to grant or
seek relief from such practice . . . such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after the alleged unlawful employment
practice occurred . . . .
Id. § 2000e-5(e)(1). In other words, an individual seeking to challenge an employment practice
must first file a charge with the EEOC within 180 or 300 days (in New Jersey, 300 days) after the
alleged unlawful practice occurred. “A claim is time barred if it is not filed within these time
limits.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
The question here, then, is whether Section 707 incorporates the charge-filing period of
section 706. FAPS argues that Section 706(e)(1) limits the class of individuals for whom the EEOC
can seek relief to those individuals who were allegedly subjected to unlawful employment practices
during the 300 days before the date of the Commissioner’s Charge. The EEOC argues that it is not
bound by the 300-day charge-filing period set forth in Section 706 when it brings suit pursuant to its
authority under Section 707 based upon its “explicit statutory imperative to correct unlawful
employment policies and practices . . . .” Pl.’s Opp. Br. at 30.
There has yet to be a court of appeals to address the issue of whether the EEOC may
permissibly seek relief under Section 707 for individuals who were allegedly subjected to a
discriminatory act more than 300 days prior to the filing of an administrative charge and district

41

courts that have addressed the issue are split. Some courts, including one in this District, have held
that the plain language of the statute mandates that Section 706’s “charge-filing” requirement
applies. See, e.g., E.E.O.C. v. Princeton Healthcare Sys., CIV.A. 10-4126, 2012 WL 5185030, at
*3–4 (D.N.J. Oct. 18, 2012); EEOC v. Presrite Corp., No. 11 CV 260, 2012 WL 3780351, at *2
(N.D. Ohio Aug. 30, 2012); EEOC v. Global Horizons, Inc., No. CV11–3045–EFS, 2012 WL
3095577, at *6–7 (E.D. Wash. July 27, 2012); U.S. Steel, 2012 WL 3017869, at *5–5; EEOC v.
PBM Graphics Inc., 877 F. Supp. 2d 334, 351–53 (M.D.N.C. 2012); EEOC v. Bass Pro Outdoor
World, LLC, 884 F.Supp.2d 499, 522–23 (S.D. Tex. 2012); E.E.O.C. v. Kaplan Higher Educ. Corp.,
790 F. Supp. 2d 619, 622-23 (N.D. Ohio 2011); E.E.O.C. v. Bloomberg L.P., 751 F. Supp. 2d 628,
645–47 (S.D.N.Y. 2010); EEOC v. Freeman, No. RWT 09cv2573, 2010 WL 1728847, at *3–5 (D.
Md. Apr.27, 2010); EEOC v. Burlington Med. Supplies, Inc., 536 F. Supp. 2d 647, 658–59 (E.D.
Va. 2008); EEOC v. Custom Co., Inc., No. 02 C 3768, 2004 WL 765891, at *2–11 (N.D. Ill. Apr. 7,
2004); EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539 545–47 (W.D.Va.2001); EEOC v. Sears,
Roebuck & Co., 490 F. Supp. 1245, 1259–61 (M.D. Ala. 1980).
Other courts have found that the 300-day limitations period is inapplicable to the EEOC.
See, e.g., EEOC v. Sterling Jewelers, Inc., No. 08–CV–706, 2010 WL 86376, at *3–5 (W.D.N.Y.
Jan.6, 2010); EEOC v. LA Weight Loss, 509 F. Supp. 2d 527, 535 (D. Md. 2007); EEOC v. Scolari
Warehouse Mkts., Inc., 488 F. Supp. 2d 1117, 1136 (D. Nev. 2007); EEOC v. Dial Corp., 156 F.
Supp. 2d 926, 966–67 (N.D. Ill. 2001); EEOC v. Mitsubishi Motor Mfg. of Am., 990 F. Supp. 1059,
1085–93 (C.D. Ill. 1998); E.E.O.C. v. Rymer Foods, Inc., 88 C 10680, 1989 WL 88243, at *2 (N.D.
Ill. July 31, 1989); EEOC v. Cont'l Oil Co., 393 F. Supp. 167, 169–70 (D. Colo. 1975).
Like the majority of the courts that have reviewed this issue, the Court is convinced that
Section 706 applies to claims brought by the EEOC. The plain language of Section 706(e)(1)

42

clearly precludes the EEOC from seeking relief for individuals who could not have filed an EEOC
charge during the filing period. See 42 U.S.C. § 2000e–5(e)(1) (“[A] charge shall be filed by or on
behalf of the person aggrieved within three hundred days after the alleged unlawful employment
practice occurred . . . .”). This language is expressly incorporated into Section 707 via subsection
(e), precluding the EEOC from seeking relief for individuals who were not subjected to an unlawful
employment practice during the 300 days before the filing of the triggering charge. See, e.g.,
Princeton Healthcare, 2012 WL 5185030, at *2–4; U.S. Steel, 2012 WL 3017869, at *4–6;
Freeman, 2010 WL 1728847, at *4. While the EEOC argues that this case is distinguished from
Princeton Healthcare because it relates to an EEOC’s Commissioner’s charge alleging a pattern or
practice of unlawful discrimination, the Court sees no reason to make such a distinction. “Nothing
in the text of Section 706 or 707 suggests that the EEOC can recover for individuals whose claims
are otherwise time-barred. If Congress intended to make an exception for the EEOC to revive stale
claims under Sections 706 and 707, it should have said so.” U.S. Steel, 2012 WL 3017869, at *5
(quoting Freeman, 2010 WL 1728847, at *4).
The EEOC also argues that limiting the EEOC’s pattern or practice claims to the procedural
requirements of Section 706 impairs its broad authority and responsibility of rooting out “systematic
discrimination.” See Pl.’s Opp. Br. at 31 (quoting LA Weight Loss, 509 F. Supp. 2d at 535). The
Court points out, however, that the EEOC is only “barred…from seeking relief based on stale
claims; it remains free to pursue injunctive remedies, as well as equitable and monetary relief for
individuals who did or could have filed charges within 300 days of the filing of the triggering
charge.” Freeman, 2010 WL 1728847, at *5. Furthermore, just as nothing in the statute indicates
that an EEOC commissioner is exempt from the procedural requirements of Section 706, “nothing
in the statute indicates that Congress intended to allow the EEOC to revive otherwise stale

43

individual damage claims.”8 Bloomberg, 751 F. Supp. 2d at 645. Like any limitations period, the
timely charge requirement incorporates other policy and fairness considerations; specifically “[t]his
procedure services an important purpose: it provides repose for employers and prevents them from
having to defend against long-stale claims.” Id. (citing Occidental Life Ins. Co. v. EEOC, 432 U.S.
355, 371–72 (1977)); see also Freeman, 2010 WL 1728847, at *5 (finding that “concerns of openended liability and the need for prompt notification of the asserted violations to the employer” also
weight in favor of applying the timely charge requirement to claims brought under Section 707 by
the EEOC). While the EEOC clearly has an important mission, it still “must play on the same field
subject to the same rules as individuals.” Freeman, 2010 WL 1728847, at *5.
The EEOC attempts to evade the charge-filing requirement by arguing that the “continuing
violation” doctrine applies here. The Court disagrees. “‘When a defendant’s conduct is part of a
continuing practice, an action is timely so long as the last act evidencing the continuing practice
falls within the limitations period; in such an instance, the court will grant relief for the earlier
related acts that would otherwise be time barred.’” Princeton Healthcare, 2012 WL 5185030, at *4
(quoting Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295
(3d Cir. 1991)). The continuing violations exceptions, however, does not apply to discrete
discriminatory acts, “even when they are related to acts alleged in timely filed charges.” Morgan,
536 U.S. at 113; see also id. at 112 (“This Court has also held that discrete acts that fall within the
statutory time period do not make timely acts that fall outside the time period.”).9 Rather, every
discriminatory discrete act “constitutes a separate actionable unlawful employment practice,” id. at

The statute, however, does not bar the EEOC “from using the prior acts as background evidence in support of a timely
claim.” Morgan, 536 U.S. at 113.
9
"Morgan was not a pattern or practice claim and declined to consider the timely filing question of pattern or practice
claims brought by private litigants. The definitions it sets forth for discrete claims and its discussion of the continuing
violations doctrine, however, are valuable.” Princeton, 2012 WL 5185030, at *4 n.1 (quoting U.S. Steel, 2012 WL
3017869, at *6 n.11 (quoting Kaplan, 790 F. Supp. 2d 619, 624 n.5)).
8

44

114, and “therefore starts a new clock for filing charges alleging that act.” Id. at 113. In other
words, “[t]he charge, therefore, must be filed within the 180- or 300-day time period after the
discrete discriminatory act occurred.” Id. at 113. Examples of discrete acts include “termination,
failure to promote, denial of transfer, or refusal to hire.” Id. at 114.
Here, the Court agrees with the reasoning of the Freeman Court, which found that the
continuing violation doctrine should not generally be permitted to expand the class of individuals
for whom the EEOC may seek relief. As that Court explained:
[T]he continuing violation permits the inclusion of additional, but otherwise timebarred, claims—not the inclusion of otherwise time-barred parties. This equitable
exception to the 300-day filing period allows an individual who filed a timely charge
to recover for acts outside the filing period if the nature of the claim involves
repeated conduct constituting a single unlawful employment practice. It does not,
however, excuse a complainant from adhering to the statutory time limits for filing a
charge.
Freeman, 2010 WL 1728847, at *5 (emphasis in original). The Court agrees. Here, the EEOC is
seeking to provide relief for individuals who did not experience any discriminatory acts during the
filing period. To use the continuing violation doctrine in such a way expands the doctrine beyond
its traditional boundaries, where the doctrine equitably allows claims “composed of a series of
separate acts that collective constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at
117 (emphasis added). In these cases, “[i]t does not matter that some component acts of the claim
fall outside the statutory time period” because the claim is “based on the cumulative effect of
individual acts.” Id. Accordingly, the Court is of the opinion that the continuing violation doctrine
should not be expanded to cover such individuals. See Freeman, 2010 WL 1728847, at *6.
On the other hand, employment practices that involve “discrete acts” are different from the
sort of amorphous conduct that makes up a claim like a hostile work environment case. Such
practices occur on an identifiable date, and a charge may only be filed to cover such discrete acts

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“that ‘occurred’ within the appropriate time period.” Morgan, 536 U.S. at 114; see also O’Connor
v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (“[C]auses of action that can be brought
individually expire with the applicable limitations period.”). This case involves discrete acts; it is
not the sort of case where the violation is “composed of a series of separate acts that collective
constitute one unlawful employment practice.” Id. at 117. A pattern or practice of allegedly failing
to hire African American applicants does not constitute a continuing violation because the refusal to
hire an applicant is a discrete act of discrimination. See Morgan, 536 U.S. at 114. “Linking
together a series of decisions not to hire under the label of a pattern or practice does not change the
fact that each decision constituting the pattern or practice is discrete.” Freeman, 2010 WL
1728847, at *6; see also Princeton Healthcare, 2012 WL 5185030, at *4 (refusing to apply the
continuing violation doctrine to a Section 707 claim of pattern or practice discrimination because
“the discrete decisions to terminate employment cannot be linked together to create a continuing
violation, as a termination occurs on an identifiable date”); Bloomberg, 751 F. Supp. 2d at 647
(“The fact that this section 707 action alleges a sort of serial violation involving discrete acts does
not convert related discrete acts into a single unlawful practice for purposes of timely filing.”)
(quotation omitted). Therefore, the Court rules that the continuing violation does not apply to
discrete acts of unlawfully failing to hire a particular applicant if the decision not to hire is made
outside the limitations period. Accordingly, applicants for employment who FAPS did not hire
before December 22, 2006 are not members of the class for whom the EEOC may seek relief. The
Court will dismiss any such claims as they relate to hiring decisions made before this date.
V.

Conclusion
For the foregoing reasons, FAPS’s motion for summary judgment is granted in part and

denied in part. Specifically, judgment will be entered in favor of FAPS as to the EEOC’s Title VII

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disparate impact claim, and all claims relating to hiring decisions prior to December 22, 2006 are
dismissed. FAPS’s motion to exclude the testimony of the EEOC’s expert witnesses is denied. The
EEOC’s motion to exclude the testimony of FAPS’s expert witness is granted. An appropriate
order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: September 26, 2014

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