American Federation of State, County and Municipal Employees, Afl-Cio (Afscme) Civil Service Employees Association, Inc., Region I/local 1000, (Csea) Rita Wallace Rachel Braver Dorothy Garage Linda Kelly Lois Whitely, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees, Odessa Colvin Erna Fluhr Laurie Gillibertie Stephen Goldberg Fred Jordan, Plaintiffs-Counter-Defendants v. County of Nassau Nassau County Executive Nassau County Comptroller Nassau County Board of Supervisors Nassau County Civil Service Commission, Defendants-Counter-Claimants-Appellees-Cross-Appellants
Docket: 1610
Court: Court of Appeals for the Second Circuit; September 26, 1996; Federal Appellate Court
In the case of American Federation of State, County and Municipal Employees (AFSCME) v. County of Nassau, the plaintiffs, which included AFSCME and several individual employees, alleged that Nassau County's job classification system discriminated against women by assigning lower salary grades to jobs predominantly held by women compared to those held by men, violating Title VII of the Civil Rights Act and the Equal Pay Act. The U.S. District Court for the Eastern District of New York initially dismissed the plaintiffs' disparate impact claim but allowed the disparate treatment claim to proceed, which required proving intentional discrimination. After a 16-day bench trial, the court found that while AFSCME did not demonstrate discriminatory intent regarding female-dominated jobs, it did establish that the County intentionally discriminated against female police detention aides by paying them less than their male counterparts in a different position. The court ordered the County to pay $1.6 million in back pay to the affected female employees for the fourteen-year period in question, and no appeal was made against this decision.
The County sought attorney's fees and expert witness fees under 42 U.S.C. 2000e-5(k) after a district court ruling in 1993 deemed AFSCME's claims frivolous, awarding the County $982,407.23 in attorney's fees. The court deferred the decision on expert witness fees pending a Supreme Court case regarding the retroactivity of a 1991 amendment that allowed such fees for prevailing parties. In May 1995, the district court ruled the amendment was retroactive and awarded the County $550,974.66 in expert witness fees. AFSCME appealed both awards.
Under Title VII, attorney's and expert witness fees can only be granted to a prevailing defendant if the plaintiff's claim is "frivolous, unreasonable, or groundless," or if the plaintiff continued litigation after it became clear that the claim was without merit. AFSCME had established a prima facie case of a Title VII violation, presenting statistical evidence that could support its claim, and successfully obtained $1.6 million for discriminatory pay practices against predominantly female police detention aides. The court concluded that AFSCME's claims were not frivolous, thus reversing the district court's award of fees to the County.
Nassau County employs over 19,000 workers across more than 1,500 job titles, with salaries determined by job title, seniority, and a compensation system developed from a job and salary evaluation conducted from 1964 to 1967. This evaluation, known as the "Cresap" process, involved a comprehensive survey and analysis of employee roles, leading to the creation of job specifications and a numerical grading system for salary determination. The County’s ordinance formalizing these job titles and salary grades was enacted in May 1967, with three-quarters of employees still classified under this system at the time of trial.
Between 1967 and 1991, Nassau County modified its job classification system through the creation of new job titles, increases in pay grades for certain titles, and adjustments in pay grades resulting from collective bargaining. The American Federation of State, County and Municipal Employees (AFSCME) filed an amended complaint alleging that the County engaged in sex discrimination in compensation by paying historically female job classifications less than their male counterparts, despite requiring similar or lesser skill, effort, responsibility, and working conditions. This claim was framed as a violation of Title VII and the Equal Pay Act, with "historically female" and "historically male" job classifications defined by the sex representation of over 70% in those positions.
Prior to discovery, the County sought to dismiss AFSCME's claims. On May 17, 1985, the district court dismissed the Equal Pay Act claims of three individual plaintiffs and the Title VII claims based on a disparate impact theory for all plaintiffs, but allowed AFSCME to amend its complaint to strengthen its disparate impact claim, which AFSCME ultimately did not do. On July 13, 1987, the court dismissed the Title VII claims of all male employees for lack of standing, certified a class of female employees in historically female roles, and appointed representatives for the class.
At trial, AFSCME argued two theories: intentional discrimination against all women in historically female roles and specific discrimination against women in three particular positions. AFSCME claimed the County intentionally deviated from its wage-setting methodology to favor male-dominated roles while disadvantaging female-dominated positions, constituting violations of Title VII and the Equal Pay Act. Without amending its complaint for a disparate impact claim, AFSCME needed to prove intentional discrimination to succeed on its disparate treatment theory. AFSCME also highlighted specific instances of wage disparities, such as police communication operators earning less than fire communications technicians, police detention aides earning less than turnkeys, and clerical workers being paid less than correction officers performing clerical tasks.
At trial, AFSCME did not provide direct evidence of intentional discrimination by the County in pay setting but relied on statistical evidence indicating that jobs predominantly held by women were compensated less than those held by men. Expert testimony included Dr. Stephan Michelson, a labor economist, who asserted that the County's pay practices perpetuated disparities, noting a $3000 gap between equivalent jobs after accounting for over 30 gender-neutral variables, which he attributed solely to employee sex. Dr. Donald J. Treiman, a sociologist, contributed two studies: one replicating the 1967 Cresap job classification process, concluding that the County did not apply its evaluative criteria in good faith and systematically discriminated against female-dominated jobs; and another analyzing job classifications based on training, experience, and supervisory responsibilities, reinforcing his earlier findings.
In response, the County presented Dr. David Jones, an industrial psychologist, and Dr. Joan Haworth, a labor economist. Dr. Jones attempted to replicate Dr. Treiman’s study, arguing that disparities could be explained by regional market wages. Dr. Haworth conducted a similar analysis, concluding that salary differences were the result of market forces rather than sex discrimination. Both experts maintained that salary discrepancies were due to efforts to align with market salaries, not discriminatory practices.
On August 24, 1992, the district court ruled that AFSCME failed to prove intentional discrimination by the County in its 1967 pay scale and subsequent practices. The court criticized the studies AFSCME relied upon, particularly Dr. Treiman's study for being poorly structured and Dr. Michelson's for having significant methodological flaws, including selective omissions and lack of market consideration. In contrast, the testimony of Dr. Haworth, which attributed post-1967 pay differences to market forces, was deemed credible and reliable.
AFSCME's claims of discrimination in specific job roles were largely rejected due to insufficient comparability evidence between the positions of police communications operator and fire communications technician, as well as clerical worker and correction officer. However, the court found intentional discrimination regarding the pay disparity between predominantly female police detention aides and predominantly male turnkeys, ordering the County to pay $1.6 million in back-pay to the affected female employees.
No appeals were made regarding liability issues. Subsequently, the County sought attorney's fees, and on June 24, 1993, the court granted $982,407.23 in fees, stating that AFSCME's claims were unreasonable and lacked foundation. The court highlighted that AFSCME's only evidence was unreliable expert testimony, and noted that AFSCME, as a major union, was not disadvantaged economically.
In a case concerning the awarding of expert witness fees under Title VII, the 1991 amendment to 42 U.S.C. § 2000e-5(k) made such fees available to prevailing parties. The determination of retroactivity was critical since the case was tried before the amendment's enactment. The district court deferred its decision on the County's motion for expert fees pending the Supreme Court's resolution of the retroactivity issue in *Landgraf v. USI Film Prods.*, which ultimately ruled that procedural rules could be applied retroactively. The court found that the expert witness fee provision is akin to procedural limitations, allowing for retroactive application, and awarded the County $550,974.66.
AFSCME appealed, arguing that its claims were not "frivolous, unreasonable, or groundless" as defined by *Christiansburg*, which would invalidate the fee award. The court concluded that AFSCME's claims were not frivolous, thus negating the basis for any fee awards under *Christiansburg*, and did not address the retroactivity of the 1991 amendment. The statute allows the court discretion in awarding fees, but the Supreme Court established that while plaintiffs can be awarded fees to encourage the enforcement of federal law, defendants can only receive fees if the plaintiff's actions are deemed frivolous or without merit, not based on mere success in litigation.
District courts are cautioned against post hoc reasoning, which involves concluding that a plaintiff's unsuccessful outcome indicates the action was unreasonable or unfounded. The Christiansburg standard, which governs fee awards to prevailing defendants, has been applied in civil rights cases under 42 U.S.C. § 1983 and other statutes that allow for fee awards. Specific cases illustrate the application of this standard: in Gerena-Valentin v. Koch, a fee award was granted to defendants because the plaintiff failed to present any evidence supporting his claims after unsuccessfully litigating the matter in state court. Similarly, in Eastway Construction Corp. v. City of New York, the court approved a fee award to the defendant when the plaintiff could not demonstrate a violation of any federal rights and had lost a prior state court challenge. In Faraci v. Hickey-Freeman Co., a fee award was also supported when the evidence showed non-discrimination was uncontradicted.
In contrast, AFSCME's claims, while ultimately losing on most points, were not deemed frivolous or without foundation. The organization established a prima facie case of gender-based pay discrimination by presenting statistical evidence of unexplained wage disparities between men and women. Expert testimony indicated that, even after accounting for job characteristics, a significant pay gap persisted, which was acknowledged by a County expert.
The district court dismissed AFSCME's claim as frivolous, disregarding its prima facie case as "meaningless." While a prima facie case of discrimination can rely on minimal evidence, AFSCME presented extensive statistical studies that indicated the salary gap between men and women could not be justified by the Cresap process or other legitimate factors, a point conceded by the County. This evidence raised factual questions about the pay disparity, suggesting potential intentional discrimination. The court's failure to consider this prima facie case in its assessment was an error, as established case law indicates that a lack of rebuttal from the employer could lead to a directed judgment in favor of the claimant. Furthermore, AFSCME was required to prove intentional discrimination after its disparate impact claim was dismissed. The challenge of establishing intent was compounded by the time elapsed since the events occurred. AFSCME's reliance on expert statistical testimony indicated that the salary differences could not be fully explained by job characteristics, supporting an inference of intentional discrimination.
The district court determined that AFSCME's statistical studies were flawed after a thorough analysis and effective cross-examination, leading to a rejection of the testimony of Dr. Treiman, who was deemed evasive and lacking credibility. The court found his methodology unreliable, which contributed to the conclusion that AFSCME's claim was not frivolous at its outset. The County's assertion that AFSCME acted unreasonably by going to trial based on weak evidence was rejected, as the court did not find that AFSCME should have anticipated the outcomes that emerged during the trial. The legal standard requires that a claim must be shown to be frivolous after it becomes clear that it is so, which the County failed to demonstrate. The process of evaluating evidence is the responsibility of the trier of fact; thus, a claim cannot be deemed frivolous simply because certain evidence was disbelieved or disregarded at trial. Case law supports the notion that if any evidence could potentially support a judgment, the awarding of fees is unwarranted.
AFSCME presented sufficient evidence to support its claims, distinguishing this case from prior instances where claims were deemed frivolous due to a lack of evidence. The district court acknowledged that AFSCME could have won if it had been able to effectively counter the defense's statistical analysis. The court noted the strong defense counsel's ability to undermine AFSCME's expert testimony and data. Despite the challenges faced, AFSCME secured a judgment exceeding $1.6 million based on a finding of intentional discrimination regarding salary disparities between police detention aides and turnkeys. While AFSCME did not prevail on all its claims, the significant victory complicates the characterization of the overall lawsuit as meritless. The potential for awarding attorney fees under the Christiansburg standard is limited in this context, particularly given the substantial nature of AFSCME’s successful claim. Consequently, the district court's decision to grant fees to the County was deemed an abuse of discretion and is therefore reversed. Additional notes include evidence that the County considered market factors in salary decisions post-1967 and that the district court had previously denied motions to dismiss AFSCME's claims, which raises questions about the frivolity of those claims.
