Case addresses scope of EEOC charge, too
The Sixth Circuit has issued an opinion involving a number of class action and employment issues in a case arising out of an unusual fact pattern and convoluted procedural history. The most important of these involve the use of small statistical samples and potential defects in the EEOC charges, but despite the odd history, there are other worthwhile holdings as well. We’ll skip over the contorted history and focus on just the parts of interest.
The decision in Peeples v. City of Detroit, Case No. 17-1222/1250 (6th Cir. June 1, 2018), arose out of the city of Detroit’s 2012 bankruptcy and its resulting layoffs of firefighters. On the eve of the city’s bankruptcy, it announced the need to lay off more than 2,000 workers in various departments. Pursuant to the terms of its labor agreement with the firefighters’ union, the city sent a notice containing a list of 22 firefighters to be laid off. Although the list was ranked by seniority – a seemingly objective basis – a dispute arose with the union over how that seniority should be calculated, resulting in a class action grievance filed by the union. The city capitulated and eventually laid off 27 firefighters based on the list the union advocated, which contained a higher number of minority firefighters than the city’s did. Less than three months later, the union changed its mind and agreed that the city’s initial list was correct. The city and union settled, or at least it seemed they had settled, the claims of those individuals for back pay. Approximately 10 of the affected individuals, however, contended that they were selected based on their race or national origin and filed suit against both the union and the city. The district court ultimately granted summary judgment against the plaintiffs on both procedural and merits grounds.
The Sixth Circuit considered several challenges to the district court’s order. Among the issues it addressed was the plaintiffs’ attempt to use what the court described skeptically as “statistical evidence” (quotes in original) in the form of a table comparing the minority makeup of the competing lists. The court first noted that the small statistical sample – a list of 27 – was itself suspect. It then noted problems with the claimed analysis. While the plaintiffs focused on the 27 layoffs, they presented no analysis of the overall impact on the Detroit Fire Department’s much larger population. The court concluded that the “[p]laintiffs’ statistical evidence is not probative” because it simply did not make the existence of discrimination more likely.
The court also had concerns regarding the scope of the plaintiffs’ EEOC charges. There were timeliness problems with several of them, and the only timely charge raised allegations of national origin, not race, discrimination. The court found that this charge did not alert the city that it was being accused of race discrimination. Thus, those plaintiffs alleging race discrimination could not “piggyback” on charges alleging national origin discrimination to make their claims timely.
The court also made additional significant holdings that included:
- The plaintiffs could not rely on hearsay, or possibly multiple hearsay, evidence that a union official said that he wanted to “save” white firefighter jobs.
- The plaintiffs did not need to establish a breach of the duty of fair representation (DFR) before asserting discrimination claims against the union.
Ultimately, the Sixth Circuit remanded the case as to the union only. Significantly, it did so largely because the union itself had argued primarily that the plaintiffs had to establish a DFR before proceeding, an argument the court rejected. Based on the court’s analysis, summary judgment may still be available on remand for much the same reasons as the employer.
The Peeples case is significant for its refusal to rely on smaller statistical samples and the appropriate analysis when using number comparisons with multiple claims. Its narrowing of the case’s scope to the claims alleged in the timely charges may also be of help to employers defending class action claims. What makes this case especially helpful in the, at times, ideologically divided Sixth Circuit is that it was decided by a panel of judges typically viewed as favoring plaintiffs.
The bottom line: Cases based on smaller statistical comparisons will likely fail absent some compelling analysis.