Munoz v. Bd. of Educ.

Second Circuit

Munoz v. Bd. of Educ.

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 28, 2021

Docket19-1162

StatusUnpublished

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Bluebook

Munoz v. Bd. of Educ., (2d Cir. 2021).

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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.

1 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)).

2 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.

3 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.

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