D) Disparate Impact
Plaintiffs also assert a "disparate impact" theory of age discrimination. Disparate impact describes a facially neutral policy or test that impacts one class of employees more harshly than another and cannot be justified by business necessity. Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir. 1992). Proof of discriminatory intent is not necessary. See Diehl v. Xerox Corp., 933 F. Supp. 1157, 1164 (W.D.N.Y. 1996).
Tektronix moves to dismiss this claim as a matter of law, asserting that recent case developments have rejected the disparate impact theory as a viable cause of action under the ADEA. Tektronix further asserts that even if the claim can be made, plaintiffs have failed to establish a prima facie case of disparate impact discrimination.
The United States Court of Appeals for the Second Circuit has upheld use of the disparate impact theory in age discrimination cases. See Maresco, 964 F.2d at 115. While Tektronix asserts that recent Supreme Court case law casts such holding into doubt -- citing Hazen Paper v. Biggins, 507 U.S. 604, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993) and O'Connor v. Consolidated Coin Caterers Corporation, 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996) --, these cases have not definitively overruled Maresco. Thus, I am bound to allow plaintiffs' claim for disparate impact to remain. Until the Second Circuit pronounces otherwise, disparate impact claims may be asserted under the ADEA and district courts such as this one must recognize them. See Diehl v. Xerox Corp., 933 F. Supp. 1157, 1165-66 (W.D.N.Y. 1996); Krueger v. New York Telephone Co., 1993 U.S. Dist. LEXIS 9988, 1993 WL 276058 (S.D.N.Y. 1993).
I now turn to the merits of plaintiffs' disparate impact claim. In order to establish a prima facie case of disparate impact discrimination, plaintiffs must demonstrate that a "specific employment practice [has] an adverse impact upon members of the protected class, ... and then show causation, ..., i.e., 'that the practice excluded him or her, as a member of a protected group, from a job or promotion opportunity.'" Maresco, 964 F.2d at 115 (citations omitted).
Plaintiffs assert that Tektronix "maintained a discriminatory policy and/or practice of terminating older individuals within the protected class in the sales force, to achieve an overall younger sales force." Complaint at P 70. Plaintiffs further assert that "[Tektronix'] discriminatory policy and/or practice of terminating older employees had a disparate impact" on each of the plaintiffs. Complaint at P 72-75.
Tektronix asserts that these claims cannot constitute the basis for a disparate impact claim for the reason that they essentially restate the plaintiffs' disparate treatment claims. I agree. These allegations identify an intentionally discriminatory policy and then assert that the policy had a disparate impact. They cannot be the bases for a disparate impact claim. See Maresco, 964 F.2d at 115 (dismissing a disparate impact claim where the plaintiff's "facially neutral employment practice ... coalesces with the discharge which he claims to have constituted disparate treatment"); see also Verney v. Dodaro, 872 F. Supp. 188, 193 (M.D.Pa. 1995)(where court found "nonsensical" plaintiff's contention that her employer's alleged policy of intentionally discriminating against women caused a disparate impact on women), aff'd, 79 F.3d 1140 (3d Cir. 1996).
In their responsive memorandum, plaintiffs contend that the specific employment practice "at issue" is Tektronix' layoff policy. However, plaintiffs do not allege that the policy itself, applied as written, causes a disparate impact. They allege that it is Tektronix' failure to follow the policy that causes a disparate impact. This too is nonsensical. To the extent the plaintiffs assert that Tektronix has diverged from the policy and used unauthorized criteria in layoff determinations, then their claim merges with their disparate treatment theory that Tektronix intended to discharge the older employees in favor of the new ones. Plaintiffs' disparate impact claim is dismissed.
Finally, Tektronix moves for sanctions pursuant to Fed. R. Civ. P. 56(g).
The plaintiffs initially responded to Tektronix' motion with, inter alia, an attorney affidavit ("Dolin Affidavit") authored by Lonny H. Dolin, Esq., which purported to describe the plaintiffs' case in significant detail, including each of the plaintiff's allegations. Tektronix moved to strike the Dolin Affidavit on the grounds that it contained statements not made on personal knowledge. Tektronix also moved for sanctions pursuant to Fed. R. Civ. P. 56(g). I granted Tektronix' motion to strike,
but reserved on its application for sanctions.
Fed. R. Civ. P. 56(g) states as follows:
Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.