United States of America v. Commonwealth of Pennsylvania et al

MOTION for Summary Judgment

M.D. Pa.August 19, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, and the PENNSYLVANIA STATE POLICE, Defendants. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56, and Local Civil Rules 7.4 and 56.1, Defendants hereby move for summary judgment against Plaintiff on all claims in its Complaint. In support of their Motion, Defendants state as follows: 1. Congress enacted a specific provision in Title VII allowing the Attorney General to bring actions against persons, including state and local governments, for pattern or practice discrimination in employment. 42 U.S.C. § 2000e-6(a). This section includes its own jurisdictional provision, id. at § 2000e-6(b). The United States invokes this provision in its Complaint. Doc. No. 1 ^ 2. Civil Action No. 14-1474 (Hon. Sylvia H. Rambo) 1 Case 1:14-cv-01474-SHR Document 83 Filed 08/19/16 Page 1 of 6 The prohibition in Section 2000e-6(a) is based on language demonstrating that Congress intended to reach only intentional discrimination, or disparate treatment. The Complaint, however, is based entirely on allegations of disparate impact, or neutral conduct that has an allegedly discriminatory effect. Accordingly, the controlling statute does not cover the conduct alleged. While a number of non-binding cases have purported to interpret the meaning of Section 2000e-6(a), on July 25, 2015, the Supreme Court of the United States decided Texas Dept. of Housing v. Inclusive Communities. 135 S. Ct. 2507 (2015). The sole issue in Inclusive Communities was whether language in the Fair Housing Act supported disparate impact claims. The similarity of the issues and the controlling status of Inclusive Communities requires that this Court apply the same form of analysis here. That analysis applied to the statutory language here should lead this Court to find that Section 2000e-6(a) does not support disparate impact claims. 2. If the Court denies the foregoing argument, and expressly in the alternative, one element of the US's cause of action requires that it show an alternative employment selection procedure with less alleged disparate impact, that is also job-related and supported by business necessity. The alternative the US has presented relies on different passing standards for 2 Case 1:14-cv-01474-SHR Document 83 Filed 08/19/16 Page 2 of 6 men and women. This alleged alternative and the evidence on which it is based are illegal on their face in light of 42 U.S.C. § 2000e-2(/), which prohibits different cutoff scores for employment- related tests on the basis of sex. 3. Also expressly in the alternative, EEOC Guidelines require that, when there are allegations of disparate impact, employee selection procedures such as the Physical Readiness Tests at issue here, be validated. Validation under the Guidelines and related science mean that the selection procedure is studied and established as job-related. The US's proposed alternative tests were not validated, and their legality has been disavowed by the institution that produced them. For the foregoing reasons, the Court should grant Defendants' Motion for Summary Judgment in its entirety. A proposed order accompanies this Motion. Respectfully submitted, BURNS WHITE LLC s/Patrick Sorek David B. White (Pa. No. 36684) Patrick Sorek (Pa. No. 41827) pro hac vice Stephanie L. Solomon (Pa. No. 208056) 3 Case 1:14-cv-01474-SHR Document 83 Filed 08/19/16 Page 3 of 6 Four Northshore Center 106 Isabella St. Pittsburgh, PA 15212 Tel: (412) 995-3210 Fax: (412)995-3300 Email: dbwhite@burnswhite.com psorek@burnswhite.com slsolomon@burnswhite.com Attorneys for Defendants 4 Case 1:14-cv-01474-SHR Document 83 Filed 08/19/16 Page 4 of 6 Certification Pursuant to Local Rule 7.1 I certify, pursuant to Local Rule 7.1, that, on August 19, 2016, Defendants sought the concurrence of Plaintiff to this motion by and through its counsel. Defendants did not receive Plaintiff's concurrence. s/Patrick Sorek David B. White (Pa. No. 36684) Patrick Sorek (Pa. No. 41827) Stephanie L. Solomon (Pa. No. 208056) Four Northshore Center 106 Isabella Street Pittsburgh, Pennsylvania 15212 (412) 995-3210 Email: dbwhite@burnswhite.com psorek@burnswhite.com slsolomon@burnswhite.com Attorneys for Defendants 5 Case 1:14-cv-01474-SHR Document 83 Filed 08/19/16 Page 5 of 6 CERTIFICATE OF SERVICE The undersigned hereby certifies that on August 19, 2016, Defendants' Motion for Summary Judgment was electronically filed with the Clerk of the Court using the CM/ECF system, which will then send a notification of electronic filing to all counsel of record who have registered to use the Court's CM/ECF system. s/ Patrick Sorek David B. White (Pa. No. 36684) Patrick Sorek (Pa. No. 41827) Stephanie L. Solomon (Pa. No. 208056) Four Northshore Center 106 Isabella Street Pittsburgh, Pennsylvania 15212 (412)995-3210 Email: dbwhite@burnswhite.com psorek@burnswhite.com slsolomon@burnswhite.com Attorneys for Defendants 6 Case 1:14-cv-01474-SHR Document 83 Filed 08/19/16 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA; AND THE PENNSYLVANIA STATE POLICE, Defendants. O R D E R Upon consideration of Defendants' Motion for Summary Judgment, Doc. No. , and Plaintiff's opposition, such Motion is GRANTED in its entirety. The Clerk shall enter judgment in favor of Defendants and against Plaintiff on all its claims. SO ORDERED this day of , 2016. Civil Action No. 1 ;14-cv-1474 (Hon. Sylvia H. Rambo) Sylvia H. Rambo United States District Judge Case 1:14-cv-01474-SHR Document 83-1 Filed 08/19/16 Page 1 of 1