skills. Def. Ex. 31 at 1260, 1037. Whether Murphy possesses these qualifications presents a question of material fact. However, Murphy has offered no evidence to show that any of the positions remained open and that GE continued to seek applicants with Murphy's qualifications. Additionally, even though Murphy has the names of fourteen employees selected for positions for which he was rejected (Def. Ex. 33), Murphy has failed to offer evidence of the qualifications of any of those individuals. Def. Ex. 33. Thus, Murphy failed to establish the fourth prong necessary to demonstrate a prima facie case of failure to rehire in violation of the ADEA.
GE's motion for summary judgment on this ground is granted.
4. Disparate Impact
"Disparate impact . . . results from the use of employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on a protected group and cannot be justified by business necessity." Maresco, 964 F.2d at 115 (internal quotation and alteration omitted) (citations omitted); see also District Council 37, AFSCME, 113 F.3d at 351. Disparate impact age discrimination does not require proof of discriminatory intent. Smith, 196 F.3d at 364 (citing Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)). Rather, the disparate impact theory addresses "[employment] practices that are fair in form but discriminatory in operation." Griggs, 401 U.S. at 431. Although courts of appeals are divided over the viability of the disparate impact theory under the ADEA, this theory of proof remains available in the Second Circuit. See Smith, 196 F.3d at 367 & n. 6.
To recover for disparate impact, a plaintiff must first establish a prima facie case "by identifying a specific employment practice which, although facially neutral, has had an adverse impact on [him or] her as a member of a protected class." Smith, 196 F.3d at 364-65 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)). The burden then shifts to the employer to offer a business necessity for the challenged employment practice. Smith, 196 F.3d at 365. If an employer offers such a business necessity, the burden then returns to the plaintiff to "show that the employer's proffered explanation was merely a pretext for discrimination." Id.
a. Prima Facie Case
GE contends that Murphy's evidence failed to establish a prima facie case as a matter of law because Murphy failed to identify a facially neutral employment practice and the statistical evidence is insufficient to present a question of material fact. Def. Mem. of Law at 33-35; Pl. Mem. of Law at 35, 38-40, 61-64.
i. Facially Neutral Employment Practice
Plaintiffs' initial burden under the disparate impact theory requires, inter alia, that he identify "a specific employment practice which, although facially neutral, has had an adverse impact on" older employees. Smith, 196 F.3d at 364; Gonzalez, 135 F. Supp.2d at 399. Murphy identified the use of subjective performance/promotability codes for the RIF selection process. Pl. Mem. of Law at 38. GE contends that this employment practice was insufficiently specific to satisfy Murphy's burden. Def. Mem. of Law at 33.
The requirement that a plaintiff specify the employment practice which he or she alleges caused the discrimination serves to insure that an employer not be held liable for discrimination simply because a result appears discriminatory numerically. See Smith, 196 F.3d at 367-68; see also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58 (1989). Thus, "a plaintiff generally cannot rely on the overall decision-making process of the employer as a specific employment practice." Smith, 196 F.3d at 367; Meacham v. Knolls Atomic Power Lab., 185 F. Supp.2d 193, 207 (N.D.N.Y. 2002), appeal docketed, No. 02-7378 & -7474 (2d Cir. June 10, 2002).
Viewing the evidence in the light most favorable to Murphy, Murphy's challenge to the use of the performance/promotability codes suffices to establish a facially neutral employment practice. GE assigned a code of 3-B to older employees to facilitate their selection for termination and that they would not be rehired. At oral argument, Murphy also argued that the transfer of older employees to a division already marked for elimination was a facially neutral employment practice. A reasonable juror could conclude here that GE transferred Murphy and other older employees to Outsourcing to facilitate termination. This suffices to identify a facially neutral employment practice.*fn9
GE's motion for summary judgment on this ground is denied.
GE contends that Murphy failed to satisfy his initial burden of demonstrating that any disparate impact on Murphy was caused by age discrimination. Def. Mem. of Law at 34-35. Murphy responds that the statistical evidence offered through his expert witness sufficed to meet this burden. Pl. Mem. of Law at 39-40.
After a plaintiff specifies the employment practice at issue, a plaintiff must then demonstrate, generally through statistical data, that the employment practice caused a significant disparity in outcome between older employees and younger employees. See Smith, 196 F.3d at 365 (citing Watson, 487 U.S. at 994). Where a plaintiff relies on a statistical disparity to meet this burden, that disparity "must be sufficiently substantial to raise an inference of causation." Id.; see also Watson, 487 U.S. at 994 (holding that statistical evidence at this stage must be "of a kind and degree sufficient to" infer discrimination); Gonzalez, 135 F. Supp.2d at 399.
No bright line rules have been established to determine the sufficiency of statistical evidence at this stage. See Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365, 373 (2d Cir. 1989) ("in accordance with Supreme Court pronouncements, we must reject appellants' suggestion that this court announce a rule of law with respect to what level of statistical significance automatically gives rise to a rebuttable presumption of discrimination"); see also Smith, 196 F.3d at 365 ("no bright line rules exist"). However, courts generally require a plaintiff to meet two requirements. First, a "plaintiff must identify the correct population for analysis." Smith, 196 F.3d at 368. Generally, this population will be those employees who were subject to the employment practice in question. See id.; Lander v. Montgomery County Bd. of Commissioners, 159 F. Supp.2d 1044, 1060 (S.D.Ohio 2001); Shah v. N.Y.S.tate Dep't of Civil Serv., No. 94-CV-9193, 2001 WL 839986, at *7, n. 7 (S.D.N.Y. July 25, 2001).
Second, the results must be statistically significant. Ottaviani, 875 F.2d at 371; Smith, 196 F.3d at 366. "Statistical significance" measures "the probability that a disparity is simply due to chance rather than any other identifiable factor." Ottaviani, 875 F.2d at 371. One measure of statistical significance is standard deviation. See Smith, 196 F.3d at 365-66; Ottaviani, 875 F.2d at 371. Standard deviation is a "unit of measurement used to express the probability that an [actual] result is merely a random deviation from a predicted result." Ottaviani, 875 F.2d at 371. Generally, " '[t]he greater the number of standard deviations, the less likely it is that chance is the cause of any difference between the [predicted] and [actual] results.' " Id. (quoting Coates v. Johnson & Johnson, 756 F.2d 524, 536 (7th Cir. 1985)). If the actual result varies from the predicted result by two standard deviations,*fn10 "[courts] generally consider this level of significance sufficient to warrant an inference of discrimination." Smith, 196 F.3d at 366; see also Ottaviani, 875 F.2d at 371-72.
As discussed above, the employment practices which Murphy challenges here were the use of the performance/promotability codes and the transfer of the employees to temporary assignments. See subsection (i) supra. Zellner's 1995 analyses did not test the effect of the performance/promotability codes on the termination rate. Thus, Murphy has failed to present statistical evidence showing that the performance/promotability codes had an adverse impact on older employees. Murphy further failed to present a statistical analysis of the effect of transferring older employees to temporary assignments such as Outsourcing. Murphy has offered his own statistical analysis of the twelve employees in Outsourcing, but his analysis fails to establish a statistically significant deviation. See Pl. Ex. G-1. Thus, Murphy has failed to demonstrate causation.*fn11
GE's motion for summary judgment on Murphy's disparate impact claim in the first cause of action is granted.
WHEREFORE, for the reasons set forth above, it is hereby
1. GE's motion to preclude (Docket No. 53) is GRANTED in part and DENIED in part as set forth above in section II;
2. GE's motion to preclude Murphy's expert report (Docket No. 36) is GRANTED as to Dr. Zellner's report for the year 1996 and DENIED as to Dr. Zellner's report for the year 1995; and
3. GE's motion for summary judgment (Docket No. 41) is GRANTED as to all causes of action except the first cause of action asserting a claim under the ADEA for disparate treatment, as to which the motion is DENIED; and
IT IS FURTHER ORDERED that the Clerk of Court serve a copy of this order, by regular mail, upon all parties to this action.