Munoz v. Bd. of Educ.

Second Circuit

Munoz v. Bd. of Educ.

Court of Appeals for the Second Circuit·Decided January 28, 2021·No. 19-1162·Unpublished

Opinion

19-1162 Munoz v. Bd. of Educ.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of January, two thousand twenty-one.

Present:

ROBERT A. KATZMANN,

RAYMOND J. LOHIER, JR.,

SUSAN L. CARNEY,

Circuit Judges.

Victoria Munoz, Plaintiff - Appellee,

Elsa Gulino, Mayling Ralph, Peter Wilds, Nia Greene, on behalf of themselves and all others similarly situated,

Plaintiffs,

v. 19-1162 * Board of Education of the City School District of the City of New York, Defendant - Appellant,

New York State Education Department,

Defendant.

*

Pursuant to this Court’s Case Management Order, issued on June 3, 2019, this summary order applies to the above-captioned appeal as well as to the other appeals considered in tandem, which are listed by docket number in Attachment A.

For Plaintiff-Appellee: JOSHUA S. SOHN (Dina Kolker, Francis C.

Healy, Robert A. Mantel, Stroock & Stroock & Lavan LLP, New York, NY; Rachel V.

Stevens, DLA Piper LLP, New York, NY, on the brief).

For Defendant-Appellant: AARON M. BLOOM, Assistant Corporation Counsel (Richard Dearing, Claude S.

Platton, and Kevin Osowski on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.

Appeal from 347 judgments of the United States District Court for the Southern District of New York (Wood, J.). See Attachment A.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

This is the third appeal in a nearly twenty-five-year-old class action brought by African-

American and Latino public school teachers against the Board of Education of the City School District of the City of New York (“BOE”). The plaintiffs challenged, inter alia, BOE’s use of a certification test called the Liberal Arts and Sciences Test (“LAST”) as discriminatory under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. In a prior stage of this litigation, plaintiffs prevailed on their claim that the LAST had an impermissible racial disparate impact. 1 BOE now appeals from the first 347 individual class-member judgments entered by the U.S. District Court for the Southern District of New York (Wood, J.), see Attachment A, primarily asserting errors in the district court’s method of calculating damages. We assume the parties’ familiarity with the underlying facts, the extensive procedural history of the case, and the issues on appeal.

1 BOE cursorily asks us in this appeal to revisit that prior holding. But we have no basis for doing so. As a prior panel in this case has held, BOE’s liability argument, which has already been rejected by two panels of this Court, is forfeited, barred by the law of the case doctrine, and incorrect on the merits. See Gulino v. Bd. of Educ., 555 F. App’x 37, 39–40 (2d Cir. 2014) (summary order) (citing Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 380 (2d Cir. 2006)).

BOE’s main contention on appeal is that the district court erred in its method of calculating class members’ damages. Specifically, BOE challenges the district court’s method, developed in conjunction with a duly appointed Special Master, of adjusting each award of damages to reasonably reflect (1) the possibility that a class member would not have been appointed to a BOE teaching position even if that class member had passed the LAST (the “probability of appointment”); and (2) the possibility that a class member would not have remained a BOE teacher through retirement or judgment (the “probability of attrition”). We review a district court’s fashioning of a Title VII backpay remedy for abuse of discretion. See Rios v. Enter. Ass’n Steamfitters Local Union 638, 860 F.2d 1168, 1175 (2d Cir. 1988). A district court abuses its discretion when “(1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision . . . cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001). 2 The thrust of BOE’s argument is that the district court abused its discretion by accounting for the probabilities of appointment and attrition on an individualized basis, rather than through a classwide pro-rata damages reduction. 3 BOE relies on a line of cases, primarily from our sister circuits, holding that classwide backpay calculations are most appropriate where determining individualized damages is “impossibl[e]” or “impractical.” Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 260–62 (5th Cir. 1974). As most of these cases recognize, however, and as we ourselves have held, “class-wide, rather than individualized, assessment[] of monetary relief . . . is the exception, not the rule.” Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 161 n.6 (2d Cir.

2 All emphases, internal quotation marks, citations, alterations, and footnotes are omitted in language quoted from caselaw unless otherwise indicated.

3 The plaintiffs argue that the majority of BOE’s arguments on appeal, including this one, have been either waived or forfeited. Because we conclude that BOE’s arguments are unpersuasive on the merits, we do not address the question of waiver or forfeiture.

2001). Accordingly, the district court’s decision to individually determine whether a class member would have been hired, as well as that class member’s counterfactual end date, was an application of the default rule that “[w]here possible, there should be a determination on an individual basis as to which class members are entitled to recovery and the amount of such recovery.” Id.

Contrary to BOE’s suggestion, application of this default rule here was not an abuse of discretion. Certainly, there were some reasons to believe that individualized determinations of the probabilities of appointment and attrition would be difficult in this case, such as the length of the class period and the size of the class. See Pettway, 494 F.2d at 261. But other factors support the district court’s conclusion that individualized determination of these probabilities was neither “impossibl[e]” nor “impractical.” Id. at 260, 262. For example, even on BOE’s terms, the vast majority of class members would have been hired, rendering individualized appointment determinations more feasible than in other cases where a large number of applicants were competing for a limited number of opportunities. See, e.g., United States v. City of Miami, 195 F.3d 1292, 1299–1300 (11th Cir. 1999) (finding classwide pro rata reductions appropriate where thirty-five officers were eligible for two promotions). Further, the Special Master identified numerous sources of evidence that could facilitate individualized end date determinations, such as “testimony of intent, proof of continued employment to date, evidence of familial employment patterns, actual cessation of employment, disability, personal needs,” and more. Joint App’x 2035. Such factors indicate that the district court’s decision that individualized determinations were feasible was located well “within the range of permissible decisions.” Zervos, 252 F.3d at 169. 4

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