of the administration at OMRDD. See id.
The statements of these Directors raise a question as to whether Commissioner Webb received impermissible recommendations from them. In fact, Commissioner Webb need not know that the Directors based their recommendations to terminate the Chiefs on impermissible criteria. All that needs to be shown is that Commissioner Webb relied on the impermissible recommendations when implementing the RIF. This would be sufficient to show that age played an impermissible role in the selection of the Chiefs for the RIF. The court finds that, independent of evidence of Commissioner Webb's and Deputy Commissioner Howe's age based animus, evidence that Directors, who made recommendations to Commissioner Webb to terminate the Chiefs, maintained an age based animus raises a significant question as to whether the age of the Chiefs played an impermissible role in the RIF.
To summarize, the court finds that the "cumulative weight of circumstantial evidence" is sufficient to create a genuine issue of material fact as to whether age played an impermissible role in the decision to terminate the Chiefs as part of the RIF. See Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Accordingly, defendants' motion with respect to plaintiffs' claim for disparate treatment is denied.
b. Disparate Impact
Defendants additionally move for summary judgment on plaintiffs' disparate impact cause of action contending that disparate impact theory is not applicable to ADEA claims since the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 617-18, 113 S. Ct. 1701, 1710, 123 L. Ed. 2d 338 (1993) ("Hazen Paper"). See Def. Mem. at 19-21; Def. Reply Mem. at 21-23. As defendants point out, the viability of a disparate impact theory pursuant to the ADEA has been questioned. See Hazen Paper, 507 U.S. at 617-18, 113 S. Ct. at 1710 (dicta); Ellis v. United Airlines Inc., 73 F.3d 999 (10th Cir.), cert. denied, 517 U.S. 1245, 135 L. Ed. 2d 191, 116 S. Ct. 2500 (1996); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732-734 (3d Cir.), cert. denied, 516 U.S. 916, 133 L. Ed. 2d 210, 116 S. Ct. 306 (1995); Equal Employment Opportunity Comm'n v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994). On the other hand, however, the viability of a disparate impact theory pursuant to the ADEA has been confirmed. See Graffam v. Scott Paper Co., 870 F. Supp. 389, 393-94 (D. Me. 1994), aff'd, 60 F.3d 809 (1st Cir. 1995); Lyon v. Ohio Education Ass'n & Prof'l Staff Union, 53 F.3d 135, 139 n. 5 (6th Cir. 1995); Houghton v. SIPCO, Inc., 38 F.3d 953, 958 (8th Cir. 1994); Abbott v. Federal Forge, Inc., 912 F.2d 867, 872 (6th Cir. 1990). The Second Circuit has not addressed the issue since the Supreme Court's decision in Hazen Paper. See Johnson v. New York, 49 F.3d 75, 78 (2d Cir. 1995) (the "Supreme Court has not decided whether disparate impact theory of liability is available under ADEA"). However, prior to Hazen Paper, the Second Circuit held that the disparate impact doctrine is viable under the ADEA. See Maresco v. Evans Chemetics, 964 F.2d 106, 115 (2d Cir. 1992) ("The disparate impact doctrine, developed under Title VII, is also applicable to cases under the ADEA."); Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1369 (2d Cir. 1989). The Maresco decision has not been overruled nor has its rationale been abandoned and "the district courts in this Circuit to reach the issue have followed the Circuit's precedent allowing such a claim." E.g., Diehl v. Xerox Corporation, 933 F. Supp. 1157, 1166 (W.D.N.Y. 1996) (citing authority). Thus, the court will allow plaintiffs to go forward with their disparate impact claim. See, e.g., Diehl, 933 F. Supp. at 1166 ("Until this Circuit rules otherwise, this Court is bound to follow Second Circuit precedent allowing disparate impact claims under the ADEA."); Hunt v. Tektronix, Inc., 952 F. Supp. 998, 1009 (W.D.N.Y. 1997) ("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.").
Disparate impact claims arise from the allegation that a facially neutral employment practice impacts more harshly on a protected group and cannot be justified by business necessity. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-336, 97 S. Ct. 1843, 1854-1855, 52 L. Ed. 2d 396 (1977); Maresco, 964 F.2d at 115. Disparate impact claims differ from disparate treatment claims in that disparate impact claims do not require proof of discriminatory motive. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); but cf. Deborah E. Moore, Note, Disparate Treatment Versus Disparate Impact: A Distinction Without a Difference, 41 Syracuse L. Rev. 965, 983 (1991) (noting the distinction between the two theories is "effectively obliterated" because both disparate treatment and disparate impact employees must ultimately "meet the same standard of proof.").
In order to establish a prima facie disparate impact claim under the ADEA, plaintiff must identify a specific employment practice having an adverse impact upon members of the protected class, and then show causation. See Maresco, 964 F.2d at 115. "Statistical evidence may be used to establish a disparate-impact claim, provided that it 'reveals a disparity so great that it cannot be accounted for by chance.'" Renaldi v. Manufacturers & Traders Trust Co., 954 F. Supp. 614, 619 (W.D.N.Y. 1997) (quoting Waisome v. Port Auth. of New York and New Jersey, 948 F.2d 1370, 1375 (2d Cir. 1991)). "In other words, 'the statistical disparity must be sufficiently substantial to raise an inference of causation.'" Id. (quoting NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995)). A plaintiff may establish his prima facie case "by showing either a gross statistical disparity, or a statistically significant adverse impact coupled with other evidence of discrimination." Waisome, 948 F.2d at 1375. The court is mindful that there is "no minimum statistical threshold" and that "courts should take a 'case-by-case approach' in judging the significance or substantiality of disparities, one that considers not only the statistics but also the surrounding facts and circumstances." Id. at 1376 (citations omitted).
Upon plaintiffs' showing of a prima facie case, the burden shifts to defendants to demonstrate that the facially neutral policy or practice has a "manifest relationship" to the employment in question. See NAACP v. Town of East Haven, 70 F.3d at 225. "If the employer makes such a showing, 'the plaintiff may nonetheless prevail if he can suggest alternative tests or selection methods that would meet the employer's legitimate needs while reducing the . . . disparate impact of the employer's practices.'" Renaldi, 954 F. Supp. at 619 (quoting Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1147 (2d Cir. 1991)).
In the instant case, defendants are not entitled to summary judgment on plaintiffs' disparate impact claim. Plaintiffs have identified the RIF as the specific employment practice that had a disparate impact upon them. Through its statistical evidence, plaintiffs demonstrated that this practice had an adverse impact on defendants' older employees. As more fully discussed supra, plaintiffs have shown that the disparity found is statistically significant in that their expert Dr. Greenberg attested that the chance of the disparate impact occurring on the protected class by chance is less than one in 1000. See Greenberg Aff. at PP 10-11 (the disparity found "was extremely unlikely to have arisen by chance or through the use of any age neutral criterion."); see also Waisome, 948 F.2d at 1376 (a finding of one in 384 by chance that the result is random is "generally highly probative of discriminatory treatment."). While this statistical disparity alone could possibly establish plaintiffs' prima facie case, when coupled with the other evidence of discrimination contained in the record, plaintiffs have established their prima facie case. Id. at 1375.
In rebuttal, defendants have offered no statistical reports or expert opinions. Defendants maintain that the RIF was necessitated by the budgetary crisis and that the statistical disparity is explained by the fact that the Chiefs are all management level and that the 1985 earmarking continued to allow the Chiefs to age without the hiring of younger Chiefs. As discussed, there are genuine issues of material fact with respect to the trustworthiness of defendants' business justification that precludes summary judgment at this stage. Accordingly, the court also denies defendants' motion for summary judgment on plaintiffs' disparate impact claim.
For the foregoing reasons, the court DISMISSES plaintiffs' fifth cause of action under the New York Human Rights Law for lack of subject matter jurisdiction. The court DENIES defendants' motion for summary judgment on the remaining causes of action. Finally, the court DENIES defendants' motion for costs and sanctions and to preclude the introduction of evidence, as well as their motions to dismiss certain members of the opt-in class.
IT IS SO ORDERED.
Dated: November 5, 1997
Syracuse, New York
Neal P. McCurn
Senior United States District Judge