Relying on Minority Employees at NASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983), defendant suggests that such statistical evidence is only relevant to plaintiff's prima facie case. (Def.'s Reply 16.)
Therefore, statistical data and comparative information concerning an employer's treatment of minorities is relevant evidence in an individual discrimination claim against that employer. Minority Employees at NASA v. Beggs, 723 F.2d 958, 961 (D.C. Cir. 1983). The defendant contends that precedents make plain that statistics have virtually no role to play in a case of this type.
Such evidence can be used ... to show that the employer’s stated reasons for the challenged actions are a pretext for discrimination." Minority Employees at NASA (MEAN) v. Beggs , 723 F.2d 958, 962 (D.C. Cir. 1983) (per curiam). Accordingly, evidence that white employees, or male employees, were disciplined less severely for the sort of behavior for which Cruz was disciplined could create a dispute of material fact about whether FEMA’s justification was a pretext for discrimination.
This circuit recognizes statistical data as relevant in individual discrimination claims. See Minority Employees at NASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983); see also Bell v. EPA, 232 F.3d 546, 553 (7th Cir. 2000); Adams v. Ameritech Servs., Inc., 231 F.3d 414, 423-24, 427 (7th Cir. 2000). Although the Smithsonian showed that several older curators were promoted, this is not dispositive, see O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), and Dr. Forman maintains that the Smithsonian never disputed the overall statistical trend.
The case of Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1981), relied on by West, is inapposite; in that case we were concerned with whether the employer violated procedural due process rights rather than whether plaintiff was the victim of a discriminatory discharge under Title VII. It is well established that an employee is entitled to have the court consider all relevant evidence — whether or not it was presented to the employer — on the issue of whether the employer's stated grounds for discharge were pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); Minority Employees at NASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983). The district court admitted the plaintiff's statistical evidence but stated that because the statistical evidence was unavailable to the employer, it "is not beneficial to Plaintiff in this case."
As part of his or her prima facie case, a plaintiff alleging disparate treatment may introduce statistics tending to demonstrate a "pattern and practice" of discrimination, i.e., evidence "that racial discrimination was the [defendant's] standard operating procedure — the regular rather than the unusual practice." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977); see also, e.g., Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984); Minority Employees at NASA (MEAN) v. Beggs, 723 F.2d 958 (D.C. Cir. 1983). In addition, a disparate treatment plaintiff may employ statistics concerning the employment practices of the defendant to rebut explanatory defenses as pretextual.
Evidence of this type clearly is relevant to the proof of discrimination. See, e.g., Minority Employees at NASA v. Beggs, 723 F.2d 958 at 962 (D.C. Cir. 1983). The court here allowed the parties to argue about the proper weight to be given to the comparisons of salaries, raises, and incentive payments.
“It has been established that comparative information concerning an employer's treatment of individuals is relevant evidence in an individual discrimination claim.” Glenn v. Williams, 209 F.R.D. 279, 281 (D.D.C. 2002); Minority Emps. at NASA (MEAN) v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983) (“It is well established that statistical data and comparative information” showing an employer's treatment of other similarly situated employees is often relevant evidence because it “can be used by a plaintiff to make out a prima facie case of discrimination” or rebut a defense.).
Cf. Cruz v. McAleenan, 931 F.3d 1186, 1192 (D.C. Cir. 2019) (“‘[C]omparative information concerning an employer's treatment of [protected groups] is relevant evidence in an individual discrimination claim against that employer. Such evidence can be used . . . to show that the employer's stated reasons for the challenged actions are a pretext for discrimination.'” (quoting Minority Employees atNASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983) (per curiam))).
"Statistical data and comparative information concerning an employer's treatment of minorities is relevant evidence in an individual discrimination claim against that employer" and may be used "to show that the employer's stated reasons for the challenged actions are a pretext." Minority Employees at NASA (MEAN) v. Beggs , 723 F.2d 958, 962 (D.C. Cir. 1983), citing McDonnell Douglas , 411 U.S. at 804–05, 93 S.Ct. 1817 (holding that statistical evidence concerning an employer's "general policy and practice with respect to minority employment" can be used to prove pretext). Plaintiff contends that defendant's failure to grant tenure to him and to two other African–American professors at a time when it promoted white professors with "weak records of scholarship," Pl.'s Opp. at 1–2, demonstrates "a wealth of 'third party' evidence of disparate treatment."