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10-1904-cv (L) Chin v. Port Auth. of N.Y. & N.J.

United States Court of Appeals
FOR THE SECOND CIRCUIT

August Term 2011

(Argued: October 17, 2011

Decided: July 10, 2012)

Nos. 10-1904-cv(L), 10-2031-cv(XAP) _____________________________________

HOWARD CHIN, RICHARD WONG, SANRIT BOONCOME, MICHAEL CHUNG, Plaintiffs-Appellees–Cross-Appellants,

THE PORT AUTHORITY POLICE ASIAN JADE SOCIETY OF NEW YORK & NEW JERSEY INC., CHRISTIAN ENG, NICHOLAS YUM, ALAN LEW, DAVID LIM, GEORGE
MARTINEZ, STANLEY CHIN, MILTON FONG, Plaintiffs-Appellees,

-v.-

THE PORT AUTHORITY OF NEW YORK & NEW JERSEY, Defendant-Appellant–Cross-Appellee.
_____________________________________

Before: MCLAUGHLIN, CABRANES, and LIVINGSTON, Circuit Judges.

Defendant-appellant the Port Authority of New York and New Jersey, Inc. (“Port Authority”) and plaintiff-appellants Howard Chin, Richard Wong, Sanrit Booncome, and Michael Chung appeal from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, Judge) holding, after a jury trial, that the Port Authority violated Title VII of the Civil Rights Act of 1964 by failing to promote seven plaintiffs, and awarding plaintiffs-appellees Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong back pay, compensatory damages, and equitable relief. We conclude that the pattern-orpractice method of proving liability was not available to plaintiffs in this private, nonclass action and so REVERSE as to the submission of this theory of liability to the jury. We also REVERSE with respect to the district court’s determination

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that pursuant to the plaintiffs’ disparate impact theory, the “continuing violation” doctrine permitted the award of damages and equitable relief in connection with conduct predating the statute of limitations. We therefore VACATE the back pay awards to Eng, Lew, Stanley Chin, and Fong; VACATE the jury’s compensatory damage awards with respect to Eng, Yum, Lew, Lim, Martinez, Stanley Chin, and Fong; VACATE the retroactive promotion of Lew; VACATE the salary and pension adjustments for Lew, Stanley Chin, and Fong; and REMAND to the district court for a new trial on damages as to these plaintiffs and for reconsideration of the equitable relief afforded to them to the extent such relief was premised on failures to promote occurring outside the statute of limitations. With respect to all other issues raised by the parties on appeal, we AFFIRM.
KAREN R. KING (Susanna M. Buergel, on the briefs), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for PlaintiffsAppellees–Cross-Appellants and PlaintiffsAppellees.
KATHLEEN GILL MILLER (Milton H. Pachter & James M. Begley, on the briefs), Port Authority of New York and New Jersey, New York, New York, for Defendant-Appellant–Cross-Appellee.
LIVINGSTON, Circuit Judge:
Plaintiffs-appellees, eleven Asian Americans currently or formerly
employed as police officers by the Port Authority of New York and New Jersey
(“Port Authority”), sued the Port Authority under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., alleging that they were passed over for
promotions because of their race. The plaintiffs asserted three theories of
liability for discrimination: individual disparate treatment, pattern-or-practice
disparate treatment, and disparate impact. After a nine-day trial, a unanimous
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jury found the Port Authority liable for discrimination against seven of the plaintiffs under all three theories and awarded back pay and compensatory damages to each of those seven plaintiffs. The district court (Miriam Goldman Cedarbaum, Judge) also granted equitable relief to certain of the prevailing plaintiffs in the form of retroactive promotions, seniority benefits, and salary and pension adjustments corresponding with the hypothetical promotion dates that the jury apparently selected as a basis for calculating these plaintiffs’ back pay awards.
On appeal, the Port Authority argues: (1) that evidence predating the onset of the statute of limitations should not have been admitted; (2) that the evidence was insufficient to support the jury’s verdict with respect to each of the plaintiffs’ theories; and (3) that the damages and equitable relief were premised on time-barred claims and were otherwise excessive. With regard to the plaintiffs’ individual disparate treatment allegations, we hold that the district court properly admitted background evidence predating the onset of the limitations period and that there was sufficient evidence for a reasonable juror to conclude that the Port Authority discriminated against the seven prevailing plaintiffs within the limitations period. The district court erred, however, in: (1) submitting the pattern-or-practice disparate treatment theory to the jury in this private, nonclass action; and (2) concluding that the “continuing violation”
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doctrine applied to the plaintiffs’ disparate impact theory so that the jury could award back pay and compensatory damages for harms predating the onset of the statute of limitations. We therefore vacate the back pay for four of the plaintiffs, whose awards correspond with hypothetical promotion dates beyond the limitations period, as well as the injunctive relief for three of the same plaintiffs, and we also vacate the award of compensatory damages for all seven prevailing plaintiffs. We remand for a new trial on damages as to all seven prevailing plaintiffs and for reconsideration of equitable relief to the extent such relief was premised on failures to promote occurring outside the limitations period.
The four plaintiffs who did not prevail at trial cross-appeal, arguing that the district court erred by excluding expert testimony from an industrial psychologist. One of these plaintiffs, cross-appellant Howard Chin, further argues that the district court erred in denying the plaintiffs’ motion for sanctions in the form of an adverse inference instruction due to the Port Authority’s destruction of promotion records. Finding no abuse of discretion in the district court’s determinations as to these matters, we affirm.
BACKGROUND The Port Authority is a bi-state transportation agency whose facilities are policed by its Public Safety Department. The eleven plaintiffs-appellees in this case are Asian Americans who were employed by that department as police
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officers. Christian Eng was hired in 1977, David Lim in 1980, Richard Wong in 1983, Milton Fong in 1985, Howard Chin and Alan Lew in 1987, Stanley Chin in 1988, George Martinez and Nicholas Yum in 1993, and Michael Chung and Sanrit Booncome in 1999. All of the plaintiffs were members of the Port Authority Police Asian Jade Society of New York & New Jersey Inc. (“Asian Jade Society”), a nonprofit organization comprised of Port Authority police officers of Asian or Pacific Islander origin, whose stated goal is to “promot[e] understanding, friendship and cooperation among members of the Port Authority police department.”
I. The Port Authority Police Department’s Promotion Process During the period relevant to this case, entry-level police officers in the Port Authority’s police department could be promoted to the rank of Sergeant, the first level in a hierarchy of supervisory positions (followed by Lieutenant, Captain, Inspector, Chief, and finally Superintendent of Police). To become eligible for promotion to Sergeant, a police officer was required (among other requirements) to pass an examination, which would place him on an “eligibility list” for a period of time. When such a list expired, the officer would have to pass the examination again to be placed on the new list. Three lists were in effect during the period relevant to this case: the 1996 List, the 1999 List, and the
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2002 List.1 These lists were “horizontal,” which meant that the lists did not rank the officers, but merely established eligibility for promotion.
Each Port Authority facility’s commanding officer (generally a Captain) was periodically asked to recommend eligible officers for promotion, at their discretion. The Port Authority did not dictate any criteria for recommendation. Moreover, commanding officers were free to make recommendation decisions themselves, solicit input from the police officers’ direct supervisors (generally Sergeants and Lieutenants), or delegate the responsibility entirely to the direct supervisors. A promotion folder was prepared for each recommended officer, which included a performance evaluation by a supervisor, a photograph of the officer, and his record of absences, commendations, awards, and disciplinary history.
Officers recommended in this way were typically considered by the Chiefs’ Board, in which the Chiefs would collectively decide which officers to recommend to the Superintendent. The Chiefs’ Board did not operate under any written
1 The 1996 List was in effect from August 1996 through August 1999, and included 178 officers, 7 of whom were Asian. Twenty-three officers were promoted from the 1996 List, none of whom was Asian. The 1999 List was in effect from August 1999 through August 2002, and included 220 officers, 10 of whom were Asian. Fiftyfive officers were promoted from the 1999 List, 2 of whom were Asian (both of whom were promoted in December 2001). The 2002 List was in effect from August 2002 through the date the complaint was filed (April 15, 2005), and included 352 officers, 16 of whom were Asian. As of April 15, 2005, when the complaint in this case was filed, 45 officers had been promoted from the 2002 List, 1 of whom was Asian.
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guidelines, and from 1996 through September 2001, took no minutes or notes. Each Chief would vote regarding each recommended officer, and any officer who received a majority of votes from the Chiefs’ Board would then be recommended to the Superintendent. This step in the process was not always necessary to promotion, however; for example, Acting Superintendent Joseph Morris did not use the Chiefs’ Board at all during his tenure from September 2001 through April 2002.
The ultimate decision to promote an officer to Sergeant belonged solely to the Superintendent. In fact, the Superintendent occasionally promoted officers whom the Chiefs’ Board had declined to recommend ahead of those recommended by the Board.
As of January 31, 2001, no Asian American had ever been promoted to Sergeant.
II. Procedural History On January 31, 2001, the Asian Jade Society filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on behalf of its members, claiming that the Port Authority had denied Asian American police officers promotions because of their race. On August 29, 2003, the EEOC determined that there was reasonable cause to believe the Port Authority had violated Title VII, and on January 25, 2005, the Department of
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Justice issued a right-to-sue letter to the Asian Jade Society.2 The eleven plaintiffs in this case filed suit on April 15, 2005, alleging that the Port Authority had discriminated against Asian Americans in making promotions to Sergeant.
During discovery, the plaintiffs learned that the Port Authority had not implemented a document retention policy and that, as a result, at least thirtytwo promotion folders used to make promotion decisions between August 1999 and August 2002 had been destroyed. The plaintiffs moved for sanctions, seeking an adverse inference against the Port Authority for spoliation. The district court denied the motion, reasoning that the plaintiffs had ample alternative evidence regarding the relative qualifications of the plaintiffs and that the Port Authority’s destruction of the documents was “negligent, but not grossly so.” Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J. (Port Auth. I), 601 F. Supp. 2d 566, 570 (S.D.N.Y. 2009).
On the eve of trial, the district court granted the Port Authority’s motion to exclude testimony from one of the plaintiffs’ expert witnesses: Dr. Kathleen Lundquist, an industrial psychologist who specializes in analyzing the reliability
2 Ordinarily, a “right to sue” letter must be issued by the EEOC. However, where the respondent to a Title VII discrimination charge is a governmental agency and the EEOC has not dismissed the charge, the Attorney General is responsible for issuing the right-to-sue letter. See 29 C.F.R. § 1601.28(d).
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and validity of employee-selection procedures. Dr. Lundquist had prepared a report opining on the effectiveness of the Port Authority’s promotion process, on whether it included safeguards to prevent bias and discrimination, and on the comparative qualifications of the plaintiffs relative to the qualifications of the officers who had been promoted. Citing Rule 702 of the Federal Rules of Evidence,3 the district court concluded that Dr. Lundquist’s testimony “would not assist the trier of fact” and was therefore excluded.
The nine-day trial began on March 11, 2009, and included testimony from twenty-two fact witnesses and four expert witnesses. All eleven of the plaintiffs testified regarding their personal backgrounds, education, experiences as police officers, attendance and disciplinary records, awards and commendations, and performance evaluations. Six Chiefs, one former Superintendent, the Superintendent at the time of trial, and three other Port Authority managers testified regarding the Port Authority’s promotion procedure. Each side also presented a statistical expert and a damages expert.
3 Federal Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
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Most relevant to this appeal, the plaintiffs’ statistical expert, Dr. Christopher Cavanagh, presented two analyses that, in his view, demonstrated a high probability that Asian Americans had been discriminated against in the Port Authority’s promotion process. In his first study, Cavanagh compared the percentage of white police officers who held a supervisory position (out of all white police officers) with the percentage of Asian Americans who held a supervisory position (out of all Asian American police officers) from 1996 through 2004. For each year, he used a Fisher Exact Test to calculate the likelihood that the difference between Asian American and white representation at the supervisory level (as compared to the representation of these groups at the nonsupervisory level) was due to chance.4 From 1996 through 2000, the likelihood that the disparities were due to chance was about two percent or less; from 2001 through 2004, the likelihoods that the disparities were due to chance were between about five and eleven percent.
Cavanagh’s second analysis compared the promotion rate for whites who were on the eligible lists to the promotion rate for Asian Americans who were on the eligible lists over the period from August 1996 through January 31, 2001 (the date on which the EEOC charge was filed). Of the 259 white officers on the
4 The Fisher Exact Test is a statistical significance test named for its author, R.A. Fisher. See generally R.A. Fisher, On the Interpretation of [Chi-Squared] from Contingency Tables, and the Calculation of P, 85 J. Royal Stat. Soc’y 87 (1922).
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lists over this period, 36 were promoted; of the 12 Asian Americans on the lists,
none were promoted. Using the Fisher Exact Test, Cavanagh calculated that the
likelihood this disparity would occur due to chance was about thirteen percent.
The district court instructed the jury regarding three theories of
discrimination: (1) disparate impact; (2) pattern-or-practice disparate treatment;
and (3) individual disparate treatment. After two-and-a-half days of
deliberation, the jury returned a unanimous verdict, finding that seven of the
eleven plaintiffs—Christian Eng, Milton Fong, Alan Lew, Stanley Chin, Nicholas
Yum, George Martinez, and David Lim—had proven all three of their theories
of liability, and awarding more than $1.6 million in total to those seven
plaintiffs. The back pay awards corresponded precisely to certain hypothetical promotion dates suggested by the plaintiffs’ damages expert.5
On the plaintiffs’ motion, the district court also granted the seven
prevailing plaintiffs equitable relief, including salary adjustments for pension
purposes for Milton Fong, Stanley Chin, Alan Lew, George Martinez, Nicholas
5 Four plaintiffs’ back pay awards corresponded to hypothetical promotion dates of October 31, 1999: Christian Eng was awarded $35,445 in back pay and $250,000 in compensatory damages; Milton Fong was awarded $83,924 in back pay and $100,000 in compensatory damages; Alan Lew was awarded $189,859 in back pay and $75,000 in compensatory damages; and Stanley Chin was awarded $116,636 in back pay and $100,000 in compensatory damages. Three plaintiffs’ back pay awards corresponded to hypothetical promotion dates of September 30, 2002: Nicholas Yum was awarded $141,663 in back pay and $15,000 in compensatory damages; George Martinez was awarded $145,861 in back pay and $15,000 in compensatory damages; and David Lim was awarded $119,234 in back pay and $250,000 in compensatory damages.
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Yum, and David Lim, and retroactive promotions for Alan Lew, George Martinez, and Nicholas Yum. The hypothetical dates the district court used were October 31, 1999, for Fong, Chin, and Lew, and September 30, 2002, for Martinez, Yum, and Lim—corresponding with the hypothetical dates the jury apparently used as a basis for computing back pay. The court also ordered the Port Authority to take certain specific actions to prevent future violations.
The Port Authority filed a motion pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure to set aside the jury’s verdict or, alternatively, for a new trial and for remittitur. The Port Authority argued that: (1) the district court improperly admitted evidence pertaining to events prior to the onset of the statute of limitations period; (2) the jury was improperly instructed to consider events outside the limitations period for purposes of establishing liability; (3) there was insufficient evidence to find the Port Authority liable under any of the plaintiffs’ three theories; (4) the jury instructions were erroneous and confusing with respect to the statute of limitations; and (5) the jury’s damages included time-barred claims and were otherwise excessive.
The district court denied the Port Authority’s motion in its entirety. See Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J. (Port Auth. II), 681 F. Supp. 2d 456 (S.D.N.Y. 2010). As pertinent to this appeal, the district court first held that background evidence from beyond the
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statute of limitations is admissible in support of a timely claim. See id. at 462. Next, the court concluded that the plaintiffs’ individual disparate treatment claims were premised on “discrete acts” and thus that the Port Authority could be liable only for those acts within the statute of limitations. See id at 463. The court concluded that the plaintiffs’ disparate impact and pattern-or-practice disparate treatment theories of liability, however, were premised on the existence of an “ongoing discriminatory policy,” and thus were subject to the “continuing violations” doctrine, so that the plaintiffs could recover for untimely discrete acts so long as they were the product of a discriminatory policy that continued into the statute-of-limitations period. See id. at 463–66. Third, the district court held that although Cavanagh’s statistical evidence did not reach the conventional five-percent level of statistical significance, see Smith v. Xerox Corp., 196 F.3d 358, 366 (2d Cir. 1999) (noting that statistical significance at the five-percent level is generally “sufficient to warrant an inference of discrimination”), the jury had before it other evidence of discrimination sufficient to find for the plaintiffs on each of the theories of liability. See Port Auth. II, 681 F. Supp. 2d at 468–69. Finally, the district court declined to remit the jury’s compensatory damages awards because other judges had upheld similar awards and because the awards did not “shock the judicial conscience.” Id. at 470.
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The Port Authority appeals, and argues before this Court that it is entitled to a new trial with respect to the seven prevailing plaintiffs because: (1) evidence predating the onset of the limitations period should not have been admitted; (2) the evidence at trial was insufficient to support the jury’s verdict with respect to each of the plaintiffs’ theories; and (3) the damages and equitable relief are premised on time-barred claims and are otherwise excessive.
The four plaintiffs who did not prevail at trial—Howard Chin, Richard Wong, Sanrit Booncome, and Michael Chung—cross-appeal, and argue here that they are entitled to a new trial because the district court erred by excluding Lundquist’s testimony. Howard Chin further argues that he is entitled to a new trial because the district court improperly denied the plaintiffs an adverse inference instruction despite the Port Authority’s destruction of promotion records.
DISCUSSION The plaintiffs argue that they are entitled to damages for injuries that occurred before the onset of the statute of limitations period because the “continuing violations” doctrine applies to two of their three theories of liability—pattern-or-practice disparate treatment and disparate impact. We dispose of half of this argument at the outset of this opinion by holding that no such pattern-or-practice theory of liability is available to the private, non-class
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plaintiffs in this case. We next consider and affirm the district court’s judgment with respect to the plaintiffs’ two remaining theories of liability—individual disparate treatment and disparate impact—by holding that background evidence from outside the limitations period was admissible and that the evidence presented at trial was sufficient to sustain the jury’s findings of liability on both theories. We then conclude, however, that the “continuing violations” doctrine does not apply to either theory in this case, and therefore vacate and remand for reconsideration of the damages and equitable relief granted by the district court to the prevailing plaintiffs whose awards correspond (or may correspond) to hypothetical promotion dates preceding the onset of the limitations period. Finally, we consider the plaintiffs’ cross-appeal, and hold that the district court did not abuse its discretion by excluding Lundquist’s testimony or by denying the plaintiffs an adverse inference instruction.
“A motion for a new trial should be granted when, in the opinion of the district court, ‘the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.’” Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (quoting and altering Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)). “The district court’s denial of a Rule 59 motion for a new trial is reviewed for abuse of discretion.” Manganiello v. City of New York, 612 F.3d 149, 165 (2d Cir. 2010). “A district court has abused its discretion if it has
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(1) ‘based its ruling on an erroneous view of the law,’ (2) made ‘a clearly erroneous assessment of the evidence,’ or (3) ‘rendered a decision that cannot be located within the range of permissible decisions.’” Id. (quoting Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)). We review the denial of a motion for judgment as a matter of law de novo. Lore v. City of Syracuse, 670 F.3d 127, 150 (2d Cir. 2012). “[W]hether conducting review de novo or under a less sweeping standard, we must disregard all errors and defects . . . . if there is no likelihood that the error or defect affected the outcome of the case.” Id. (internal quotation marks omitted).
As a prerequisite to filing suit under Title VII, a private plaintiff must first file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Both parties agree that in this case, the plaintiffs’ charge was due “within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Accordingly, because the EEOC charge in this case was filed on January 31, 2001, only an unlawful employment practice that “occurred” after August 2, 2000, may give rise to liability.6
6 Although the district court and the parties appear to agree that 180 days prior to January 31, 2001 is August 3, 2000, by this Court’s calculation the correct date is August 4, 2000, which would mean that only an unlawful employment practice that occurred after August 3, 2000 may give rise to liability. But because the one-day difference is not material to this appeal, we refer to August 2, 2000, as the relevant date throughout this opinion. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a
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I. The Pattern-or-Practice Method of Proof As an initial matter, we address the question whether the method of proof described in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1997), and known as the “Teamsters” or “pattern-or-practice” method, was available to the nonclass private plaintiffs in this case.7 We conclude that it was not and that the judgment as to pattern or practice must for this reason be reversed. We emphasize, however, that evidence that the Port Authority engaged in a pattern or practice of discrimination—in the ordinary sense of those words, rather than in the technical sense describing a theory of liability for discrimination—remains relevant in assessing whether the plaintiffs proved discrimination using the individual disparate treatment and disparate impact methods of proof. The phrase “pattern or practice” appears only once in Title VII—in a section that authorizes the government to pursue injunctive relief against an employer “engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by” the statute. 42 U.S.C. § 2000e-6. Notwithstanding
statute of limitations, is subject to waiver, estoppel, and equitable tolling.”). 7 The parties did not address this issue before the district court and do not raise
it on appeal. Nonetheless, we are not bound by parties’ effective stipulations on questions of law, see U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–48 (1993), and in this case we exercise our discretion to consider this issue in order to provide guidance in a complicated area.
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the Supreme Court’s recognition in Teamsters that this language “was not intended as a term of art, and the words reflect only their usual meaning,” Teamsters, 431 U.S. at 336 n.16, the phrase is often used in a technical sense to refer either to this unique form of liability available in government actions under § 2000e-6, see, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 67–68 n.19, 70, 80 (1984), or to the burden-shifting framework set out in Teamsters and available both to the government in § 2000e-6 litigation and to class-action plaintiffs in private actions alleging discrimination, see, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2552 n.7 (2011).
We begin with § 2000e-6. The building blocks of liability pursuant to this provision—which provides for prospective injunctive relief where the government establishes that an employer is engaged in a “pattern or practice of resistance to the full enjoyment” of rights secured by Title VII—differ from those that provide the foundation for typical, private-party Title VII litigation. To establish an employer’s liability for discrimination in violation of Title VII, a private plaintiff ordinarily must show that an employer took an adverse employment action against him or her because of his or her race, or on account of another protected ground. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009). In § 2000e-6 litigation, by contrast, the government need not
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demonstrate specific losses to specific individuals to establish that injunctive relief is appropriate. The government must “prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts”: it must prove that unlawful discrimination “was the company’s standard operating procedure.” Teamsters, 431 U.S. at 336. Once established, however, “a court’s finding of a pattern or practice justifies an award of prospective relief” even absent proof of losses to specific individuals. Id. at 361.
The parties here use the term “pattern or practice” to refer not to an element of a § 2000e-6 claim, but to the method of proof that the Supreme Court endorsed in Teamsters for the adjudication of such claims. This method of proof, however, originated in the class action context, in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). The Supreme Court in Franks determined that once the private plaintiffs in the class action there “carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the [employer] . . . , the burden [was] upon [the employer] to prove that individuals who reappl[ied] were not in fact victims of previous hiring discrimination.” Id. at 772. The Court in Franks used the phrase “pattern and practice” to refer to the common question of fact (whether the employer had engaged in a practice of discriminatory hiring) to be litigated by class plaintiffs, and apparently viewed its holding as no more than an application of McDonnell
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Douglas’ burden-shifting framework in the class-action context. See Franks, 424
U.S. at 773 (citing McDonnell Douglas, 411 U.S. 792).
The Teamsters Court thereafter determined that the Franks burden-
shifting framework for certain class actions should also apply to government
“pattern or practice” suits brought under § 2000e-6:
Although not all class actions will necessarily follow the Franks model, the nature of a [§ 2000e-6] pattern-or-practice suit brings it squarely within our holding in Franks. The plaintiff in a pattern-or-practice action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. At the initial, “liability” stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. . . .
. . . . When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. The petitioners’ contention in this case is that if the Government has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, “remedial” stage of trial. That basic contention was rejected in the Franks case. . . . The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the
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individual applicant was denied an employment opportunity for lawful reasons. Teamsters, 431 U.S. at 360–62 (internal citation and footnotes omitted). Since Teamsters, this burden-shifting framework has been known as the “Teamsters method of proof” or the “pattern-or-practice method.” See, e.g., Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001) (“A pattern or practice case is not a separate and free-standing cause of action . . . , but is really merely another method by which disparate treatment can be shown.” (internal quotation marks omitted)); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th Cir. 1998) (“The courts of appeals have . . . permitted pattern or practice class action suits using the Teamsters method of proof.”), vacated on other grounds, 527 U.S. 1031 (1999).8 In sum, unlike in a typical individual disparate treatment suit, “a plaintiff’s burden under the pattern-or-practice method requires the plaintiff to prove only the existence of a discriminatory policy rather than all elements of a prima facie case of discrimination”—but “under the pattern-or-practice method, only prospective relief [is] available, unless the
8 Although the Teamsters framework is not a freestanding cause of action, courts—including the Supreme Court—sometimes loosely refer to the Teamsters method of proof as a “pattern-or-practice claim.” See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 n.9 (2002) (“We have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.”).
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plaintiffs offer[] additional proof.” Semsroth v. City of Wichita, 304 F. App’x 707, 716 (10th Cir. 2008) (describing the reasoning in Lowery, 158 F.3d at 761).
Permitting private plaintiffs to use the pattern-or-practice method of proof outside the class action context would require us to extend this method beyond its current application. This we decline to do. Such an extension would allow nonclass private plaintiffs who have shown a pattern or practice of discrimination (but have not made out a disparate impact claim) to shift the burden to employers to prove that they did not discriminate against a particular individual. But this would conflict with the Supreme Court’s oft-repeated holding in the context of disparate-treatment, private nonclass litigation that “[t]he ultimate burden of pursuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To be sure, proof that an employer engaged in a pattern or practice of discrimination may be of substantial help in demonstrating an employer’s liability in the individual case. But such proof cannot relieve the plaintiff of the need to establish each element of his or her claim.
We note that the district court in this case did not instruct the jury that a finding of a pattern or practice of discrimination shifted the burden of persuasion. Rather, the verdict sheet instructed the jury that each individual
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plaintiff was required to prove by a preponderance of the evidence that he was discriminated against as part of the pattern or practice. This instruction only underscores, however, why there was no need for the jury to make a specific finding regarding a pattern or practice of discrimination in this private, nonclass suit, as opposed to determining directly whether each individual plaintiff had been intentionally discriminated against. Where, as here, there are only individual, nonclass disparate-treatment claims, a district court need not and should not instruct the jury that a common pattern of discrimination is an element of liability.
For these reasons, all of our sister circuits to consider the question have held that the pattern-or-practice method of proof is not available to private, nonclass plaintiffs. See Semsroth v. City of Wichita, 304 F. App’x 707, 715 (10th Cir. 2008); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 967–69 (11th Cir. 2008); Bacon v. Honda of Am. Mfg., 370 F.3d 565, 575 (6th Cir. 2004); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355–56 (5th Cir. 2001); Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999); see also Schuler v. PricewaterhouseCoopers, LLP, 739 F. Supp. 2d 1, 6 n.2 (D.D.C. 2010) (“Courts in every other Circuit that has touched on this issue have indicated that an individual plaintiff cannot maintain a pattern and
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practice claim.”) (collecting cases); 1 Lex Larson et al., Employment Discrimination § 8.01[3], at 8-13 (2d ed. 2011) (“[C]ourts have refused to permit individuals to use the pattern or practice proof structure for claims of individual discrimination . . . .”). We have suggested as much, albeit in dicta. See Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998).
For the foregoing reasons, we now hold that the pattern-or-practice method of proof is not available to nonclass, private plaintiffs in cases such as the one before us. Evidence of an employer’s general practice of discrimination may be highly relevant to an individual disparate treatment or to a disparate impact claim. Outside the class context, however, private plaintiffs may not invoke the Teamsters method of proof as an independent and distinct method of establishing liability. The district court erred in submitting this method of proof to the jury as a basis on which it could hold the Port Authority liable.
II. Admissibility and Sufficiency of Evidence A. Admissibility of Evidence from Outside the Limitations Period
Turning to the plaintiffs’ individual disparate treatment and disparate impact claims, the Port Authority argues that the district court improperly admitted evidence of events prior to August 2, 2000, for purposes of liability and damages. It is well established, however, that so long as at least “one alleged adverse employment action . . . occurred within the applicable filing period[,] . . .
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evidence of an earlier alleged retaliatory act may constitute relevant ‘background evidence in support of [that] timely claim.’” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176 (2d Cir. 2005) (quoting and altering Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Such background evidence “may be considered to assess liability on the timely alleged act.” Id. at 177; see also Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (applying this rule in the failure-to-promote context). In particular, we have noted that statistical studies may include data from outside the statute of limitations to prove timely discriminatory acts. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 604 n.5 (2d Cir. 1986).9 Title VII’s statute of limitations therefore did not prohibit admission of the plaintiffs’ evidence of discrimination before August 2, 2000. B. Sufficiency of the Evidence
The Port Authority next argues that the plaintiffs’ evidence of individual disparate treatment and disparate impact was insufficient as a matter of law, and that the district court therefore abused its discretion in declining to set aside the verdict. “In reviewing the sufficiency of the evidence in support of a jury’s
9 To be clear, the district court retains discretion to determine whether evidence predating the onset of the statute of limitations period should be admitted under any applicable rule of evidence. See Jute, 420 F.3d at 177 n.7; Malarkey v. Texaco, Inc., 983 F.2d 1204, 1211 (2d Cir. 1993).
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verdict, we examine the evidence in the light most favorable to the party in whose favor the jury decided, drawing all reasonable inferences in the winning party’s favor.” Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005). We will overturn the verdict here “only if there is ‘such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the [Port Authority] that reasonable and fair minded men could not arrive at a verdict against [the Port Authority].’” Id. at 292 (quoting LeBlancSternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995)) (some internal quotation marks omitted).
With respect to a Title VII individual disparate treatment claim, “[w]hether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148–49 (2000). A plaintiff establishes a prima facie case by showing “(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action
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occurred under circumstances giving rise to an inference of discriminatory intent.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). An employer may then rebut this prima facie case by offering a legitimate, nondiscriminatory business reason for its conduct. See id. A plaintiff ultimately prevails if he proves that the defendant’s employment decision was based in whole or in part on intentional discrimination. See id.
To prevail under the disparate impact theory of liability, a plaintiff must show that the employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This requires a plaintiff to (1) “identify a specific employment practice” or policy, Malave v. Potter, 320 F.3d 321, 326 (2d Cir. 2003); “(2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001). “The statistics must reveal that the disparity is substantial or significant,” and “must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity.” Id. (internal quotation marks omitted). To rebut a plaintiff’s statistics, a defendant may introduce evidence showing that “either no statistically significant disparity in fact exists or the challenged practice did not cause the disparity.” Id. at 161.
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If the trier of fact determines that the plaintiffs have established a disparate impact violation of Title VII, each person seeking individual relief such as back pay and compensatory damages “need only show that he or she suffered an adverse employment decision ‘and therefore was a potential victim of the proved discrimination.’” Id. at 159 (quoting Teamsters, 431 U.S. at 362) (alteration omitted); see id. at 161–62. After such a showing, the employer bears the burden of persuading the trier of fact that its decision was made for lawful reasons; otherwise, the employee is entitled to individualized relief, which may include back pay, front pay, and compensatory damages for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3); see Robinson, 267 F.3d at 159–60.
The Port Authority challenges three aspects of the plaintiffs’ evidence. First, the Port Authority argues that the plaintiffs’ statistical evidence was fatally flawed and that without it the plaintiffs lack sufficient evidence to prove a disparate impact. Second, the Port Authority contends that the plaintiffs did not show that the multiple-step promotion process was “not capable of separation for analysis,” 42 U.S.C. § 2000e-2(k)(1)(B)(i), and therefore the plaintiffs were required but failed to identify the specific promotion practice that caused a disparate impact. Third, the Port Authority contends that the plaintiffs’ anecdotal evidence of intentional discrimination consists of nothing
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more than personal affronts outside of the promotion context, and therefore that the plaintiffs’ individual disparate treatment claims must fail for lack of evidence that any discrimination was intentional.
We disagree with all three of the Port Authority’s arguments and hold that the plaintiffs introduced sufficient evidence to support the jury’s verdict as to plaintiffs’ disparate impact and individual disparate treatment claims.
1. Statistical Evidence The Port Authority argues first that the statistical evidence presented by Dr. Cavanagh, the plaintiffs’ expert witness, was insufficient to prove their disparate impact claim because Dr. Cavanagh’s analyses impermissibly (1) relied on data predating the onset of the statute of limitations, (2) did not focus on the relevant pool of candidates eligible for promotion, and (3) failed to establish statistical significance. We address each of these contentions in turn. First, the Port Authority is incorrect in asserting that Dr. Cavanagh’s statistics were flawed because they relied in part on data predating the onset of the statute of limitations period. In Bazemore v. Friday, 478 U.S. 385 (1986), the Supreme Court stated that evidence predating the 1972 enactment of Title VII was not only admissible but, “to the extent that proof is required to establish discrimination with respect to salary disparities created after 1972, evidence of pre-Act discrimination is quite probative.” Id. at 402 n.13 (internal citation
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omitted). Moreover, we have made clear that a district court errs by “downgrading” statistical studies on the ground that they “relied in part on pre–statute of limitations data.” Rossini, 798 F.2d at 604 n.5.
The Port Authority next argues that Dr. Cavanagh’s year-end demographic statistics were not sufficient to show a disparate impact because they simply compared the percentage of Asian Americans in supervisory positions with the percentage of Asian American officers, rather than looking to the relevant pool for promotion (i.e., the percentage of Asian Americans on the eligible lists). On this point, we agree.
As we have said, “plaintiffs must identify the correct population for analysis. In the typical disparate impact case the proper population for analysis is the applicant pool or the eligible labor pool.” Smith v. Xerox Corp., 196 F.3d 358, 368 (2d Cir. 1999) (emphasis added), overruled on other grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 140 (2d Cir. 2006). “In the context of promotions, we have held that the appropriate comparison is customarily between the [racial] composition of candidates seeking to be promoted and the [racial] composition of those actually promoted,” at least so long as the relevant data are available. Malave, 320 F.3d at 326 (emphasis added). The plaintiffs in this case did not allege that the eligibility test was discriminatory; rather, they alleged that discrimination entered the process at
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the discretionary stage after the eligible lists had already been drawn up. The relevant population for analysis, then, includes only those officers on the eligible lists. Dr. Cavanagh’s year-end demographic analyses include all officers, and therefore do not meet the statistical standards prescribed by law.
Putting aside these demographic analyses, then, we are left with Dr. Cavanagh’s statistical analysis comparing the percentage of Asian Americans on the eligibility lists with the percentage of Asian Americans promoted from 1996 to January 31, 2001 (the date that the EEOC complaint was filed). None of the 12 Asians on the eligible lists were promoted during this period, in contrast to 36 out of 259 whites; according to Dr. Cavanagh’s calculations, this difference would occur due to chance “a bit under 13 percent” of the time. The Port Authority argues that a due-to-chance figure of 13 percent is not statistically significant because “it is generally accepted that statistical significance is at a 5% level or less.”
It is true that “we have . . . looked to whether the plaintiff can show a statistically significant disparity of two standard deviations,” which (in a normal distribution) requires statistical significance at approximately the 5-percent level. Xerox, 196 F.3d at 365. However, we have also said that “[t]here is no minimum statistical threshold requiring a mandatory finding that a plaintiff has demonstrated a violation of Title VII. Courts should take a ‘case-by-case
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approach’ in judging the significance or substantiality of disparities, one that considers not only statistics but also all the surrounding facts and circumstances.” Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d Cir. 1991) (quoting Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365, 372–73 (2d Cir. 1991)); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988) (“[W]e have not suggested that any particular number of ‘standard deviations’ can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination. . . .”); accord Xerox, 196 F.3d at 366.
In many (perhaps most) cases, if there is a 13-percent likelihood that a disparity resulted from chance, it will not qualify as statistically significant. In this case, the plaintiffs offered other evidence that reasonable jurors could have relied upon to find that an 87-percent likelihood that the disparity was not due to chance qualified as significant. First, no Asian Americans were promoted during the relevant period; requiring a statistical showing of 95-percent confidence would make it mathematically impossible to rely upon statistics in a case like this one, in which the relevant population included so few Asian Americans. See Waisome, 948 F.2d at 1379 (“[T]he lack of statistical significance in the ultimate promotion reflects only the small sample size.”). Second, as the Port Authority acknowledges, the plaintiffs presented a substantial amount of
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evidence that reasonable jurors could have relied on to conclude that the plaintiffs were more qualified than some of the white officers who were promoted, including comparing length of service, attendance records, and disciplinary histories. In the context of this case, it would not be unreasonable for a juror to find Dr. Cavanagh’s statistics significant despite only being significant at the 13-percent level.
Finally, despite the Port Authority’s argument to the contrary, Dr. Cavanagh’s choice to limit his time frame to the period from 1996 through January 2001 (rather than, as defendant’s expert did, extending the analysis into 2005) was not unreasonable. The plaintiffs’ theory was that the Port Authority’s failures to promote them caused a disparate impact through 2001, when the EEOC charge in this case was filed. Dr. Cavanagh’s selected time frame was directly relevant to answering this question.
2. Specific Employment Practice The Port Authority next argues that there was insufficient evidence to support the plaintiffs’ disparate impact claim on the ground that plaintiffs either failed to identify a specific promotion practice resulting in a disparate impact on Asian Americans or failed to show that the Port Authority’s promotion process could not be separated into component parts for analysis. According to the Port Authority, the promotion process involved three separate
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steps—recommendation by a commanding officer, approval by the Chiefs’ Board, and selection by the Superintendent—and these steps were wholly capable of being separated from each other for the purpose of statistical analysis. For the following reasons, we disagree.
To make out a disparate impact claim (or, more generally, to rely on statistical evidence), a plaintiff must identify a specific discriminatory employment practice. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2555–56 (2011) (“[R]espondents have identified no ‘specific employment practice’ . . . . Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.”); Watson, 487 U.S. at 994 (“Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”). Title VII, however, expressly provides that “if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). Whether a particular decisionmaking process is capable of separation for analysis largely turns on the details of the specific process and its implementation in a given
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case. See McClain v. Lufkin Indus., 519 F.3d 264, 278 (5th Cir. 2008); cf. Meachem v. Knolls Atomic Power Lab., 381 F.3d 56, 74 (2d Cir. 2004), vacated on other grounds, 544 U.S. 957 (2005).
Here, the evidence amply demonstrated that recommendation by the Chief’s Board could not be separated from the rest of the promotion process for the purpose of statistical analysis. Such recommendation was neither necessary nor sufficient for promotion, and the weight it carried in the process was both unclear and variable. For example, two candidates who were not recommended by the Chiefs’ Board in January 2003 were nonetheless promoted by the Superintendent later that month, even as others who received unanimous recommendations from the Chiefs were not promoted for a year, or two years. Another Superintendent did not bother to use the Chiefs’ Board at all. Recommendation by the Chiefs’ Board was therefore not capable of separation from the rest of the promotion process.
The commanding officers’ recommendations were similarly inseparable from the Superintendent’s ultimate decisions regarding promotions because they played an indeterminate role in the integrated promotion process. For example, former Chief Thomas Farrell testified that he occasionally would ask for performance evaluations of everyone on the eligible list—not just those who were recommended by commanding officers—while other testimony indicated that
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commanding officers’ recommendations were often important in the promotion process. We therefore agree with the district court that these “steps” in the promotion process were not capable of separation for analysis. See Port Auth. II, 681 F. Supp. 2d at 464. Accordingly, the decisionmaking process involved in promotions to Sergeant was properly analyzed as one employment practice.
3. Proof of Intent The Port Authority next argues that it was entitled to judgment as a matter of law on the plaintiffs’ individual disparate treatment claims because many of the plaintiffs’ anecdotes of intentional discrimination were merely “situations involving personal affront as opposed to examples of overt racism,” and moreover, that “[n]one of the specific instances relied upon by plaintiffs took place in the context of promotion.” Appellants’ Reply Br. at 17. Even if we were to accept the Port Authority’s characterization of these accounts of discrimination, however, the plaintiffs also provided evidence that they were better qualified for promotion than several white officers who were promoted instead. In conjunction with the plaintiffs’ statistical evidence, we conclude that this anecdotal evidence of intent was sufficient for a reasonable jury to conclude that the Port Authority intentionally discriminated against the plaintiffs by failing to promote them.
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III. Damages and the Statute of Limitations The Port Authority argues, finally, that it was improperly assessed back pay and compensatory damages for harms that were suffered by the plaintiffs prior to August 2, 2000. The district court disagreed because it believed that the “continuing violation” doctrine applied in the context of plaintiffs’ disparate impact allegations so that damages could properly be awarded for failures to promote that occurred outside the limitations period.10 We agree with the Port Authority and hold that the continuing violation doctrine does not apply to plaintiffs’ disparate impact proof. As a result, we further conclude: (1) that the back pay awards to Eng, Lew, Stanley Chin, and Fong must be vacated, as well as the retroactive promotion of Lew and the salary and pension adjustments for Lew, Stanley Chin, and Fong; and (2) that the jury’s compensatory damage awards with regard to all seven prevailing plaintiffs must also be vacated. We remand to the district court for a new trial on damages and for reconsideration of equitable relief to the extent such relief was premised on failures to promote occurring outside the limitations period.
10 The district court reached a similar conclusion with regard to plaintiffs’ pattern-or-practice allegations but, for the reasons already stated, see supra Part I, we have concluded that this theory of liability was not properly submitted to the jury.
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A. The Continuing Violation Doctrine It has been the law of this Circuit that “[u]nder the continuing violation
exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” Lambert v. Genesse Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated on other grounds by Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329–30 (2011); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004); Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Cornwall v. Robinson, 23 F.3d 694, 703–04 (2d Cir. 1994). Applying this principle, the district court in this case concluded that the Port Authority could be liable, and assessed damages, for discriminatory failures to promote outside the statute of limitations because, pursuant to the plaintiffs’ disparate impact theory, those failures to promote were the product of an ongoing discriminatory policy that continued after August 2, 2000, thus triggering the continuing-violation doctrine. See Port Auth. II, 681 F. Supp. 2d at 463.
* * *
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The Port Authority argues that the continuing-violation doctrine does not apply in this case because (1) the plaintiffs did not identify a specific, ongoing discriminatory policy or custom; and (2) under the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), failures to promote are “discrete acts” of discrimination and thus do not implicate the continuing-violation doctrine. Because we agree with the Port Authority’s second argument, we do not address the first.
In Morgan, the Supreme Court unanimously rejected the Ninth Circuit’s view that a series or pattern of “related discrete acts” could constitute one continuous “unlawful employment practice” for purposes of the statute of limitations. Id. at 111. Rather, the Court held that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113. By a divided vote, however, the Morgan Court distinguished such discrete acts from an allegedly hostile work environment, which it held could be a continuing violation because its “very nature involves repeated conduct.” Id. at 115. “Such claims are based on the cumulative effect of individual acts,” the Court wrote, noting that “a single act of harassment may not be actionable on its own.” Id.
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The plaintiffs argue that Morgan’s analysis of “discrete acts” cannot apply to disparate impact claims because such claims—like hostile work environment claims—are “necessarily based on the cumulative effect of a particular practice over time.” Appellees’ Br. at 28. It is true that Morgan involved only an individual disparate treatment claim premised on a series of related discrete acts, and therefore did not directly address whether the continuing-violation doctrine applies where an ongoing discriminatory policy results in discrete discriminatory acts both before and after the limitation date. See Morgan, 536 U.S. at 107 (noting in passing that in the Ninth Circuit, pre-Morgan, another type of continuing violation could be established by showing “a systematic policy or practice of discrimination that operated, in part, within the limitations period,” but neither endorsing nor repudiating that category of continuing violations); id. at 115 n.9 (“We have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.”). Morgan’s reasoning, however, demonstrates that a plaintiff may recover for a failure to promote—regardless whether it was caused by an ongoing discriminatory policy—only if he files an EEOC charge within 180 or 300 days of that decision.11
11 As Morgan notes, the 300-day limitations period, inapplicable here, applies in those states that have “an entity with the authority to grant or seek relief with respect to the alleged unlawful practice” and where an employee initially files a grievance with that entity. 536 U.S. at 109.
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Morgan established that an employer’s failure to promote is by its very nature a discrete act. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify,” the Court wrote. Id. at 114 (emphasis added); see also Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005), abrogated on other grounds by Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Moreover, each discrete act necessarily “constitutes a separate actionable ‘unlawful employment practice,’” Morgan, 536 U.S. at 114—unlike the incidents that comprise a hostile work environment claim, which may not be individually actionable, id. at 115. Both the employer and the aggrieved party may therefore rely on the clear and predictable statute of limitations when contemplating prospective litigation regarding failures to promote or other discrete acts. As Justice Ginsburg has explained:
A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting). Accordingly, under Morgan, every failure to promote is a discrete act that potentially gives rise to a freestanding Title VII claim with its own filing deadline.
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Discrete acts of this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period. This is the conclusion of every circuit to consider the question after Morgan. Each of our sister circuits has held that an allegation of an ongoing discriminatory policy does not extend the statute of limitations where the individual effects of the policy that give rise to the claim are merely discrete acts. See, e.g., Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (“Nor does [the plaintiff’s] allegation of a 20-year ‘pattern or practice’ of discrimination extend the applicable limitations periods.”); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1185–86 (10th Cir. 2003) (holding that claims cannot be premised on an untimely discrete act “even if the discrete act was part of a company-wide or systemic policy”); cf. Tademe v. St. Cloud State Univ., 328 F.3d 982, 988 (8th Cir. 2003) (“Although [the plaintiff] argues that the district court failed to consider that he was asserting a pattern-or-practice of discrimination, Morgan makes clear that the failure to promote, refusal to hire, and termination are generally considered separate violations.”); Lyons v. England, 307 F.3d 1092, 1107 & n.8 (9th Cir. 2002) (holding that an individual plaintiff’s “assertion that this series of discrete acts flows from a company-wide, or systemic, discriminatory practice will not succeed in establishing the employer’s liability for acts occurring outside
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the limitations period,” but distinguishing and declining to address class-wide pattern-or-practice claims).
This conclusion is not altered by the fact that the plaintiffs employ the disparate impact method of proof. To prevail on a disparate impact claim, a plaintiff must “demonstrate[] that a respondent uses a particular employment practice that causes a disparate impact.” 42 U.S.C. § 2000e-2(k)(1)(A)(i) (emphasis added). In Lewis v. City of Chicago, 130 S. Ct. 2191, 2197–99 (2010), the Supreme Court interpreted this language to mean that every “use” of an employment practice that causes a disparate impact is a separate actionable violation of Title VII with its own 180- or 300-day statute-of-limitations clock. See id. at 2197–99. Accordingly, under Lewis and Morgan, each time the Port Authority failed to promote one of the plaintiffs, that plaintiff had 180 days to challenge the decision.
In an attempt to distinguish Morgan, the plaintiffs argue that they “challenge the process by which the Port Authority made promotion decisions, rather than any specific promotion decision.” Appellees’ Br. at 29. But this argument hurts rather than helps them. In Lewis, the Supreme Court considered the case of an allegedly discriminatory examination used by the City of Chicago to make hiring decisions. The examination’s scores and the City’s plan to hire based on certain cutoff scores were announced outside the
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limitations period, but the actual hiring occurred within the limitations period. See Lewis, 130 S. Ct. at 2195–96. The Supreme Court explained that although “[i]t may be true that the City’s . . . decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparateimpact claim[,] [i]f that is so, the City is correct that since no timely charge was filed attacking it, the City is now entitled to treat that past act as lawful.” Id. at 2198–99 (citation and internal quotation marks omitted). If the process by which the Port Authority promoted police officers from its eligibility lists did not materially change within the limitations period, as the plaintiffs claim, then the Port Authority is entitled to treat the process as lawful. See id. at 2199. The process itself therefore cannot be challenged; rather, only specific failures to promote that occurred within the limitations period are actionable. B. Damages & Equitable Relief
The district court properly instructed the jury regarding the statute of limitations for plaintiffs’ individual disparate treatment claims, and the jury indicated on the verdict sheet its express findings that the Port Authority made discriminatory decisions not to promote Eng, Fong, Lew, Stanley Chin, Yum, Martinez, and Lim “after August 2, 2000.” Pursuant to the district court’s conclusion that the continuing violation doctrine was applicable to plaintiffs’ disparate impact proof, however, the jury was permitted to assess damages for
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failures to promote occurring outside the limitations period.12 With this in mind,
we turn to the Port Authority’s claim that the damages and equitable awards
here were premised on time-barred claims and were otherwise excessive.
1. Back Pay
The jury’s back-pay awards correspond precisely to certain calculations of
the plaintiffs’ damages expert, such that both parties and the district court
agreed below that the jury found that four of the prevailing plaintiffs (Eng, Lew,
Stanley Chin, and Fong) would have been promoted on October 31, 1999, and the
other three (Yum, Lim, and Martinez) would have been promoted on September
30, 2002.
12 We note that the jury was not properly instructed regarding the statute of limitations as it applied to the plaintiffs’ disparate impact proof. “To find disparate impact,” the district court instructed the jury, “you are not required to consider whether the Port Authority intended to discriminate, but whether the Port Authority’s promotion practices were the cause of a disparity, if any, after August 2, 2000.” When the jury asked for clarification regarding the timing, the district court told them simply, “There has to be an effect after August 2, 2000.” This phrasing suggests that the jury could find disparate impact liability where the Port Authority used an employment practice only outside the limitations period that resulted in a disparate effect that then passively persisted into the limitations period. Lewis, however, makes clear that a disparate impact claim requires plaintiffs to plead and prove that defendants, within the limitations period, used an employment practice that had a disparate impact. 130 S. Ct. at 2197–99. In other words, the cause—not merely the effect—must occur within the limitations period. The district court’s instruction was therefore erroneous. The Port Authority, however, does not challenge the jury’s liability finding on this basis, but simply the award of damages and equitable relief for harms occurring before August 2, 2000. Accordingly, we deem the error waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
45

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The Port Authority argues first that the jury could not award back pay to multiple plaintiffs dating back to the same date when fewer than that number of plaintiffs were actually promoted on that date. It points out that there were only three promotions on October 31, 1999, but the jury awarded back pay to four plaintiffs corresponding to a failure to promote on that date. Likewise, there were only two promotions on September 30, 2002, but the jury awarded back pay to three plaintiffs extending back to that date. The Port Authority urges that the back pay awards for this reason “suffer from a fundamental error of law” and must be vacated. Appellants’ Br. at 46.
We disagree. Although in many circumstances an employer may have only a fixed, limited number of possible promotion slots such that relief would be limited accordingly, see Dougherty v. Barry, 869 F.2d 605, 614–15 (D.C. Cir. 1989) (R.B. Ginsburg, J.), that is not the case here. The plaintiffs presented evidence that the Port Authority could and did create new Sergeant-level vacancies. For example, during cross-examination, Chief Farrell conceded that the Superintendent occasionally would not specify the number of new Sergeants he was looking for, and that from time to time the Port Authority created new Sergeant-level vacancies based on staffing needs. A reasonable jury could therefore have concluded that the Port Authority could have promoted three
46

Case: 10-1904 Document: 168-1 Page: 47 07/10/2012 658447 55
officers rather than two on September 30, 2002, and four officers rather than three on October 31, 1999.
Nevertheless, the back pay awards to Christian Eng, Alan Lew, Stanley Chin, and Milton Fong were improper because they were premised on a hypothetical promotion date outside the statute of limitations. As explained earlier, see supra section III.A, the district court should have instructed the jury that the Port Authority could be liable only for discriminatory failures to promote after August 2, 2000, and that individual remedies were limited accordingly. We therefore vacate the back pay awards to these four plaintiffs and remand to the district court for determination of their proper back-pay awards.
2. Compensatory Damages The Port Authority next argues that the jury’s compensatory damages awards were based on discriminatory acts that predated the onset of the statute of limitations period. The plaintiffs do not contest this allegation, but rather embrace it, and defend the awards solely on the basis of the continuing violation theory. See Appellees’ Br. at 48 (“The compensatory damages awards correlate to each Plaintiff’s seniority on the job—and thus, the duration of each Plaintiff’s distress—awarding $250,000 to the two Plaintiffs who each had more than twenty-nine years on the job, $100,000 and $75,000 to the three Plaintiffs who
47

Case: 10-1904 Document: 168-1 Page: 48 07/10/2012 658447 55
had between twenty and twenty-five years on the job, and $15,000 to the two Plaintiffs who had sixteen years on the job.”). “When ‘[i]t is not possible to ascertain what portions of the compensatory and punitive damages awards were attributable’ to claims that were time-barred, the damages awards must be vacated” and remanded for a new trial on damages. Annis v. Cnty. of Westchester, 136 F.3d 239, 248 (2d Cir. 1998) (quoting Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 485 (3d Cir. 1997)). Because the jury may have included time-barred claims with respect to each of the plaintiffs, we vacate all seven prevailing plaintiffs’ compensatory damages awards and remand for a new trial on damages. On remand, the district court should instruct the jury to award damages only for injuries stemming from a discriminatory failure to promote after August 2, 2000.
3. Equitable Relief The Port Authority next argues that the district court’s equitable relief of retroactive promotions and salary and pension adjustments should have been granted only pro rata under the theory that only a limited number of promotions were available on each day. See Dougherty, 869 F.2d at 614–15. But this argument fails with respect to equitable relief for the same reason it fails regarding back pay, see supra section III.B.1; on the evidence presented, a
48

Case: 10-1904 Document: 168-1 Page: 49 07/10/2012 658447 55
reasonable jury could have concluded that the Port Authority could promote more officers on a given date than it chose to.
The equitable relief should not, however, have extended retroactive promotions or salary or pension adjustments beyond the limitations period. The district court’s award of salary and pension adjustments for Milton Fong, Stanley Chin, and Alan Lew, as well as the retroactive promotion of Alan Lew, must be vacated and remanded for reconsideration because the award of such equitable relief was premised on a hypothetical promotion date of October 31, 1999. On remand, the district court should determine the date, after August 2, 2000, that each of these three plaintiffs would have been promoted absent discrimination and may grant appropriate equitable relief accordingly.
IV. Exclusion of Lundquist’s Expert Testimony We now turn to the cross-appeal. The four cross-appealing plaintiffs argue that the district court erred in excluding the expert testimony of Dr. Lundquist, who would have testified that the Port Authority’s promotion procedure was so unstructured and subjective that it fell below professional standards, and who would have compared the qualifications of the plaintiffs with those of the officers who were actually promoted. Expert testimony is admissible if it “(a) will help the trier of fact to understand the evidence or to determine a fact in issue,” so long as “(b) the testimony is based upon sufficient facts or data; (c) the testimony
49

Case: 10-1904 Document: 168-1 Page: 50 07/10/2012 658447 55
is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. A district court’s exclusion of expert testimony is reviewed for abuse of discretion, and “[a] decision to admit or exclude expert scientific testimony is not an abuse of discretion unless it is ‘manifestly erroneous.’” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995)). “Further, an erroneous evidentiary ruling warrants a new trial only when ‘a substantial right of a party is affected,’ as when ‘a jury’s judgment would be swayed in a material fashion by the error.’” Lore v. City of Syracuse, 670 F.3d 127, 155 (2d Cir. 2012) (quoting Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)).
The district court did not abuse its discretion in concluding that it lacked evidence that Dr. Lundquist’s testimony was based on established principles and methods and that, in any event, her testimony would not have provided assistance to the trier of fact beyond that afforded by the arguments of counsel, as required by Rule 702. On appeal, the plaintiffs argue that the district court failed to acknowledge the portion of Dr. Lundquist’s testimony that compared the qualifications of the plaintiffs with those of the white officers who were promoted instead. But Dr. Lundquist’s analysis as to the comparative qualifications of the plaintiffs was both brief and simple, relying mostly on
50

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various officers’ years of experience, commendations, discipline, and absences. For each of the four plaintiffs who did not prevail, Dr. Lundquist merely summed up their qualifications in a few sentences and then compared each of them to two officers who were promoted instead but whose record suggested that they may have been less qualified. For example, she compared both Michael Chung and Sanrit Booncome to a promoted officer named Gary Griffith, whom she described only as having “sixty-seven absences in 2000 alone.”
The district court did not abuse its discretion in concluding that expert analysis was not required to help the jury understand such evidence. Indeed, the plaintiffs’ attorneys made the same points in argument that were made in Dr. Lundquist’s report. Chung and Booncome’s qualifications were established in detail while they were on the stand, and their attorney brought out Gary Griffith’s relative lack of experience and his significant number of absences through questioning of a former Superintendent. The plaintiffs’ attorneys, moreover, emphasized throughout the trial the relative qualifications of the plaintiffs when compared with officers who were promoted. At the trial’s conclusion, the plaintiffs’ summation detailed the qualifications of each of the plaintiffs in almost exactly the same way as Dr. Lundquist’s testimony would have, including occasionally comparing a plaintiff with someone who had been promoted. The district court therefore did not abuse its discretion in
51

Case: 10-1904 Document: 168-1 Page: 52 07/10/2012 658447 55
determining that Dr. Lundquist’s testimony was not relevant expert testimony that would help the jury understand the facts at issue.
V. Sanctions for Spoliation Finally, cross-appealing plaintiff Howard Chin argues that the district court erred in denying the plaintiffs’ motion requesting an adverse inference instruction due to the Port Authority’s destruction of the promotion folders used to make promotions off of the 1999 eligible list.13 See Port Auth. I, 601 F. Supp. 2d 566 (S.D.N.Y. 2009). The Port Authority does not dispute that, upon receiving notice of the filing of plaintiffs’ EEOC charge in February 2001, it had an obligation to preserve the promotion folders yet failed to do so. It argues, however, that the district court did not abuse its discretion in denying an adverse inference instruction. We agree. “[A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”
13 Howard Chin is the only one of the four cross-appealing plaintiffs who claims to have lost relevant evidence due to the Port Authority’s destruction of the promotion folders.
52

Case: 10-1904 Document: 168-1 Page: 53 07/10/2012 658447 55
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted). If these elements are established, a district court may, at its discretion, grant an adverse inference jury instruction insofar as such a sanction would “serve[] [the] threefold purpose of (1) deterring parties from destroying evidence; (2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.” Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001). Our review of a district court’s decision on a motion for discovery sanctions is limited to abuse of discretion, which includes errors of law and clearly erroneous assessments of evidence. See Residential Funding Corp., 306 F.3d at 107. “[A]bsent a showing of prejudice, the jury’s verdict should not be disturbed.” Id. at 112.
Howard Chin argues that the Port Authority’s failure even to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007 amounted to gross, rather than simple, negligence. We reject the notion that a failure to institute a “litigation hold” constitutes gross negligence per se. Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 464–65 (S.D.N.Y. 2010). Rather, we agree that “the better approach is to consider [the failure to adopt good preservation practices]
53

Case: 10-1904 Document: 168-1 Page: 54 07/10/2012 658447 55
as one factor” in the determination of whether discovery sanctions should issue. Orbit Comm’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010). Moreover, as the district court recognized, see Port Auth. I, 601 F. Supp. 2d at 570, a finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction. See Residential Funding Corp., 306 F.3d at 109; Byrnie, 243 F.3d at 108. Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were “relevant,” we have repeatedly held that a “case-by-case approach to the failure to produce relevant evidence,” at the discretion of the district court, is appropriate. Residential Funding Corp., 306 F.3d at 108 (quoting Reilly v. Natwest Mkts. Grp., 181 F.3d 253, 267 (2d Cir. 1999)). In this case, the district court concluded that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process and the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted. See Port Auth. I, 601 F. Supp. 2d at 570–71. At trial, Howard Chin was able to establish his service record and honors, and Chief Charles Torres testified that Howard Chin was very smart and a good employee. Under these circumstances, the district court did not abuse its discretion in concluding that an adverse inference instruction was inappropriate.
54

Case: 10-1904 Document: 168-1 Page: 55 07/10/2012 658447 55
CONCLUSION For the foregoing reasons, we affirm the district court’s conclusion that the Port Authority is liable to Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong under both the individual disparate treatment and disparate impact theories. We also affirm the denial of individual relief to Howard Chin, Richard Wong, Sanrit Booncome, and Michael Chung. Because the district court erred in applying the continuingviolation exception to the plaintiffs’ claims, however, we: (1) vacate the jury’s back pay awards with respect to Christian Eng, Alan Lew, Stanley Chin, and Milton Fong; (2) vacate the jury’s compensatory damage awards with respect to Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong; (3) vacate the retroactive promotion of Alan Lew; and (4) vacate the salary and pension adjustments for Alan Lew, Stanley Chin, and Milton Fong. We remand all of these remedies issues to the district court for a new trial solely on damages and for the reconsideration of equitable relief. On remand, individual relief should be awarded only insofar as it corresponds to discriminatory failures to promote committed after August 2, 2000.
55

Case: 10-1904 Document: 168-2 Page: 1 07/10/2012 658447 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: July 10, 2012 Docket #: 10-1904cv Short Title: The Port Authority Police Asia v. The Port Authority of New York

DC Docket #: 05-cv-3835 DC Court: SDNY (NEW YORK CITY) DC Docket #: 05-cv-3835 DC Court: SDNY (NEW YORK CITY) DC Judge: Cedarbaum

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case: 10-1904 Document: 168-3 Page: 1 07/10/2012 658447 2

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: July 10, 2012 Docket #: 10-1904cv Short Title: The Port Authority Police Asia v. The Port Authority of New York

DC Docket #: 05-cv-3835 DC Court: SDNY (NEW YORK CITY) DC Docket #: 05-cv-3835 DC Court: SDNY (NEW YORK CITY) DC Judge: Cedarbaum

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

Case: 10-1904 Document: 168-3 Page: 2 07/10/2012 658447 2

Case: 10-1904 Document: 168-4 Page: 1 07/10/2012 658447 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

DENNIS JACOBS
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: July 10, 2012 Docket #: 10-1904cv Short Title: The Port Authority Police Asia v. The Port Authority of New York

DC Docket #: 05-cv-3835 DC Court: SDNY (NEW YORK CITY) DC Docket #: 05-cv-3835 DC Court: SDNY (NEW YORK CITY) DC Judge: Cedarbaum

NOTICE OF DECISION
The court has issued a decision in the above-entitled case. It is available on the Court's website http://www.ca2.uscourts.gov. Judgment was entered on July 10, 2012; and a mandate will later issue in accordance with FRAP 41. If pursuant to FRAP Rule 39 (c) you are required to file an itemized and verified bill of costs you must do so, with proof of service, within 14 days after entry of judgment. The form, with instructions, is also available on Court's website.
Inquiries regarding this case may be directed to . 212-857-8560

 
 Case 1:05-cv-03835-MGC Document 122
Case I :05-c'/-03835-MGC Document 121

Filed 05/12/2010 Page 4 of 7 

Filed 04/20/20'10 Page 1 of 12 


UNITED STATl~S DISTRICT COURT SOUTHERN DISTRICT O:F NEW YORK .__•_____ .••• _. __._.____ . ____ •• _._ .,-.---., ._-_.,.------.---X
THE PORT Al1THORITY POLICE ASIAN JADE SOCIETY OF NEW YORK &. NEW JERSEY INC., CHISTIAN ENG, NICHOLAS YUM, ALAN LEW, HOWARD CHIN, DAVID LIM, GEORGE MARTINEZ, STANLEY CHIN, MILTON FONG, RICHARD WONG, SANR1T BOONCOME AND MICI-L;\EL CHUNG,
Plaintiffs,

DA.:fEFlL£D: 05 CIVIL 3835 (MGC)

·against-

JUDGMENT

THE PORTAUTHORITY OF NEW YORK AND
NEW JERSEY, Defendant.
X ••••• '" _" ._ ••••• 0.0 o. __ •• _o. ---. - __•• ___ • _._.' •• _•• o. " ' - -

A Jury Trial before the Honomblc Miriam Goldman Cedarbaum, United States Dislrict Judge, having begun on March iI, 2009, and at the conclusion of the trial, on March 26, 2009,
lhe jury having rendered a verdict in favor of seven of the cleven plaintiffs in the amount of $1,637,622 in back pay and compensatory damages, more specifically, in favor of Christian Eng in the amount of $285,445, in favor of Milton Fang in the amount of $183,924, in favor of Alan
of Lew in the amount of $264,859, in favor of Stanley Chin in the amount of $216,636, in fuvor
Nicholas YUIll in the amount of $156,663, in favor of George MaJ1inez' in the amount of
$160,861, Dnd in fDvor of David Lim in the amount of$369,234; On JanualY 13, 2010, the Court
having denied the Dlotioll of the Port Authority of New York and New Jersey ("Pori Authority~l) to grant j\Jdgmcnt as a matter of law, a m:w trial, or a remittitur; Plaintiffs having moved for an award of fees and costs totaling $2,357,658,63, and lhe matter having eome before this Court, and the Court on April l4, 20l0, having issud its Memorandum Opinion and Order granting the motion in part, awarding Cravnth, Swaine & Moore LLr ("Cravflth") the amounl of$S76,705 for

fees and ~ 152,57!.36 foc costs. awardirlg PaUl. Weiss, Rifkind, Wharton & Garrison LLP (,'raul Weiss") the amollnt of $613,703 for fees and $221,258.74 for costs, ond directing the Clerk of the COUI1 to enter judgment in at:cordance with the Jury Verdict of March 26, 2009, the Order Granting Equitable Relief dated January 13, 20 ID. and the Memorandtl:n Opinion and Order dated Apn I 14, 2010, it js,
ORDERED, ADJUDGED AND DECREED: That pursuant 10 the Jury Verdict
dated March 26, 2009, Order dated January J3, 20 I 0, and Memorandum Opinion and Order dated April J4, 20t 0, judgment is entered as foHows: itl favor of Christian Eng in the amount of $285,445, in favor of Milton Fang in the amount of $183,924, in favor of Alan Lew in the amount of $264,859. ill favor of Stanley Chin in the amount of $416,636, in favor of Nicholas Yum in the amount of $156,663, in favor of George Martinez in the amount of $160,861, and in
. ,
, favor of David Lim in the amollnt of $369,234; the motion of Port Authority to grant judgment as a matter of law, a new trial, or a remittitur is denied; Plaintiffs Illolion for an award of fees Ilnd cosls is granted in part; Cravath is awarded $576,705 Cor fees and $152,57l.36 for costs; and Paul Weiss is awarded S613, 703 for fees and $221,258.74 for costs.

DATED: New York, New York 
 April Iq ,2009 

So Ordered:
/-5/ .
U.S.D.J.

J. MICHAEL McMAHON Clerk of Court
BV: Deputy Clerk

THIS DOCUMENT WAS ENTERED 

ONTHEDOCKETON ________ 


 
 Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

706 F.Supp.2d 537 United States District Court,
S.D. New York.
The PORT AUTHORITY POLICE ASIAN JADE SOCIETY OF NEW YORK & NEW JERSEY INC., Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome and
Michael Chung, Plaintiffs, v.
The PORT AUTHORITY OF NEW YORK and NEW JERSEY, Defendant.
No. 05 Civ. 3835(MGC). | April 15, 2010.
Synopsis Background: Asian-American members of Port Authority Public Safety Department (PSD) brought action against Port Authority of New York and New Jersey for discrimination in violation of Title VII, based on alleged failure to promote Asian-American officers. After jury verdict, successful plaintiffs moved for award of attorney’s fees and costs.
Holdings: The District Court, Cedarbaum, J., held that:
[1] plaintiffs were prevailing parties;
[2] attorney fee rate between $200 and $400 was reasonable;
[3] 36% reduction in award of attorneys fees was appropriate given plaintiffs’ partial success; and
[4] plaintiffs could not recover expert witness fees for witness whose testimony was precluded from being used at trial.
Ordered accordingly.
Attorneys and Law Firms
*538 Paul, Weiss, Rifkind, Wharton & Garrison LLP, by: Karen R. King, Esq., *539 Susanna M. Buergel, Esq., New York, NY, for Plaintiff.
The Port Authority of New York and New Jersey, Milton

H. Pachter, Esq, by: Kathleen Gill Miller, Esq., Caren K. Lee, Esq., New York, NY, for Defendant. Opinion
MEMORANDUM OPINION AND ORDER CEDARBAUM, District Judge.

INTRODUCTION
Familiarity with the detailed history of this Title VII discrimination case is presumed. Jury trial began on March 11, 2009. The jury returned its verdict on March 26, 2009, and awarded seven of the eleven plaintiffs $1,637,622 in back pay and compensatory damages.1 On January 13, 2010, I denied the motion of the Port Authority of New York and New Jersey (the “Port Authority”) to grant judgment as a matter of law, a new trial, or a remittitur. Plaintiffs now move for an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 2000e–5(k).

1

The Port Authority Police Asian Jade Society of New

York and New Jersey, Inc. (the “Asian Jade Society”)

is nominally a plaintiff because the charge before the

Equal Employment Opportunity Commission was filed

in its name. The Asian Jade Society did not present any

claims at trial.

Plaintiffs’ lead counsel, Karen King, began work on the case while associated with the law firm of Cravath, Swaine & Moore LLP (“Cravath”). When Ms. King left Cravath for Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul Weiss”), she brought the matter with her. Plaintiffs seek an award of fees and costs, totaling $2,357,658.63. For the following reasons, the attorneys’ fees and costs are granted in part.

DISCUSSION
[1] Title VII provides that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee (including expert fees) as part of the costs ....” 42 U.S.C. § 2000e–5(k). While the decision to award attorneys’ fees
1

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

and costs is committed to my discretion, fees should be awarded to a prevailing plaintiff “absent special circumstances.” New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980) (citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)).
[2] Plaintiffs Eng, Fong, Lew, Lim, Martinez, Yum, and Stanley Chin are “prevailing parties” because the jury returned a verdict in their favor and awarded them back pay and compensatory damages. See, e.g., Bridges v. Eastman Kodak, 102 F.3d 56, 58 (2d Cir.1996).
I. Attorney’s Fees [3] I calculate the presumptive “reasonable attorney’s fee” that may be awarded under § 2000e–5(k) by determining a “reasonable hourly rate” and multiplying that rate by the “number of hours reasonably expended on the litigation.”
Paul,	  Weiss	   	  	   	  

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).2

2

Hensley addressed a fee award under 42 U.S.C. § 1988,

but it is applicable to fee awards under Title VII

because “cases decided under § 1888 ... are

authoritative in the Title VII context.” Bridges, 102

F.3d at 56 (citing Hensley, 461 U.S. at 433, 103 S.Ct.

1933).

A. Plaintiffs’ Fee Request Plaintiffs request the following fee award:
	  

	  
	  
Name	   	  	   	   Susanna	  Buergel	   	  	   	   Karen	  King	   	  	   	   Moira	  Weinberg	   	  	   	   Jane	  O’Brien	   	  	   	   Dominika	  Tarczynska	   	  	   	   Michael	  Berger	   	  	   	   Allison	  Grodin	  Weiss	   	  	   	   Satyam	  Bee	   	  	  

	  
Position	   	  	   	   Partner	   	  	   	   Associate	  (Class	  of	  2000)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2005)	   	  	   	   Associate	  (Class	  of	  2005)	   	  	   	   Associate	  (Class	  of	  2007)	   	  	   	   Associate	  (Class	  of	  2007)	   	  	  

	  
Hours	   	  	   	   98.7	   	  	   	   968.2	   	  	   	   151.1	   	  	   	   387	   	  	   	   126.5	   	  	   	   245.6	   	  	   	   517.7	   	  	   	   149.9	   	  	  

Hourly	   	  	   	   Rate	   	  	   	   $	  400	   	  	   	   $	  400	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  200	   	  	   	  
$	  200	   	  	  

	  
Total	   	  	   	   $	  39,480	   	  	   	   $	  387,280	   	  	   	   $	  45,330	   	  	   	   $	  116,100	   	  	   	   $	  37,950	   	  	   	   $	  73,680	   	  	   	   $	  103,540	   	  	   	   $	  29,980	   	  	  
2

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	   Chloe	  Clifford	   	  	   	   Grace	  Choi	   	  	   	   Abigail	  Cushing	   	  	   	   Total:	   	  	   	  

	   Paralegal	   	  	   	   Paralegal	   	  	   	   Paralegal	   	  	   	   	  

	   498.9	   	  	   	   488.4	   	  	   	   323.2	   	  	   	   3955.2	   	  	   	  

	   $	  100	   	  	   	   $	  100	   	  	   	   $	  100	   	  	   	   	  

	   $	  49,890	   	  	   	   $	  48,840	   	  	   	   $	  32,320	   	  	   	   $	  964,390	   	  	   	  

	   Cravath	   	  	   	  

	  
	  
Name	   	  	   	   Karen	  King	   	  	   	   Christopher	  Harwood	   	  	   	   Andrew	  Goldsmith	   	  	   	   Eva	  Temkin	   	  	   	   Lauren	  Moskowitz	   	  	   	   Richard	  Tucker	   	  	   	   Varsha	  Karkera	   	  	   	   Christine	  Fung	   	  	   	   Total:	   	  	   	  

	  
Position	   	  	   	   Associate	  (Class	  of	  2000)	   	  	   	   Associate	  (Class	  of	  2003)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2005)	   	  	   	   Associate	  (Class	  of	  2006)	   	  	   	   Paralegal	   	  	   	   Paralegal	   	  	   	   	  

	  
Hours	   	  	   	   435.5	   	  	   	   617.8	   	  	   	   442.1	   	  	   	   257.5	   	  	   	   288.2	   	  	   	   642.3	   	  	   	   1034.5	   	  	   	   472.8	   	  	   	   4190.7	   	  	   	  

Hourly	   	  	   	   Rate	   	  	   	   $	  400	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  200	   	  	   	   $	  200	   	  	   	   $	  100	   	  	   	  
$	  100	   	  	   	  
	  

	  
Total	   	  	   	   $	  174,200	   	  	   	   $	  185,340	   	  	   	   $	  132,630	   	  	   	   $	  77,250	   	  	   	   $	  57,640	   	  	   	   $	  128,460	   	  	   	   $	  103,450	   	  	   	   $	  47,280	   	  	   	   $	  906,250	   	  	   	  
3

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

Grand	  Total:	  

	  

	  	  

	  

(both	  Firms)	  

	  

	  	  

	  

	  

	  

8145.9	   	   	  	   	  

	  
$1,870,640	   	  	   	  

*540 B. Reasonable Hourly Rates [4] [5] The “reasonable hourly rate” is meant to approximate the hourly rate a client would be willing to pay. Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, 522 F.3d 182, 190 (2d Cir.2008). Among the factors relevant when determining what a client would be willing to pay are: the “novelty and difficulty of the questions”; “the skill required to properly” pursue the case; “the results obtained” in the case, “awards in similar cases”; and, whether the client would be able to negotiate a lower rate in light of reputational benefits that may flow to the lawyer from litigating that case. Id., (citing to the twelve factors enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974)) (abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). The reasonableness of the hourly rate is presumptively weighed against prevailing rates in the judicial district where the court sits. Simmons v. New York City Transit Auth., 575 F.3d 170, 175 (2d Cir.2009).
The parties do not dispute that the following hourly rates are reasonable: Ms. Buergel’s fee of $400 per hour, $200 per hour for Ms. Grodin Weiss, Mr. Bee, Ms. Moskowitz, and Mr. Tucker, and $100 per hour for paralegals. The Port Authority proposes that the maximum reasonable fee for the other attorneys who worked on the matter ranges from $375 per hour for Ms. *541 King to $200 per hour for Ms. O’Brien, Ms. Tarczynska, and Mr. Berger, for a difference ranging from $25 per hour to $100 per hour. The principal argument each side presents in favor of its proposed hourly rate is that similar rates have been awarded in similar Title VII cases.
[6] The hourly rates set out in plaintiffs’ request are reasonable in light of the factors set out in Arbor Hill. The case has been pending since April 2005 and culminated in a jury trial that spanned three weeks. In the intervening time, the parties engaged in extensive discovery and took numerous depositions. Each side presented its own expert witnesses and broke down complex statistics. Ultimately, of the eleven plaintiffs who proceeded to trial, seven recovered a total award of $1,637,622 and equitable

relief.
In addition to the factors laid out in Arbor Hill, I am persuaded that plaintiffs’ requested rates are reasonable because they are within the range awarded in similar cases in this district. See, e.g., Robinson v. City of New York, No. 05 Civ. 9545, 2009 WL 3109846, at *4–14, 2009 U.S. Dist. LEXIS 89981, at *13–44 (S.D.N.Y. Sept. 29, 2009) (Lynch, J.) (reasonable rates ranged from $185 to $500 per hour based on experience); Rozell v. Ross–Holst, 576 F.Supp.2d 527, 544–46 (S.D.N.Y.2008) (Francis, M.J.) (reasonable to award $600 per hour for partners, $350 for senior associates, $250 for junior associates, $175 for law clerks; and $125 for paralegals); Heng Chan, 2007 U.S. Dist. LEXIS 33883, at *11 (sixth-year associate awarded $300 per hour because she served as co-lead counsel in the case, associate with less than two years’ experience awarded $200 per hour post-bar admission, $100 pre-bar admission); Simmonds v. New York City Dept. of Corrections, No. 06 Civ. 5298, 2008 WL 4303474, at *4, 2008 U.S. Dist. LEXIS 74539, at *15–18 (S.D.N.Y. September 16, 2008) (awarding $425 per hour for partner, $325 per hour for senior associates, $225–50 per hour for junior associates in a case involving a single plaintiff and no “unusually complicated factual or legal issues.”) Accordingly, the fee award will be calculated based on plaintiffs’ proposed rates.
C. Hours Reasonably Expended The plaintiffs seek an award for a total of 8,145.9 hours of attorney and paralegal time. I conclude that an overall percentage reduction to plaintiffs’ request must be made to reach the “hours reasonably expended.”
[7] [8] [9] The “most critical factor” in assessing the reasonableness of a fee award is the “degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). I may exclude hours spent on unsuccessful claims or plaintiffs, or apply a percentage reduction to account for limited success. Id. at 115, 113 S.Ct. 566; Hensley, 461 U.S. at 434–37, 103 S.Ct. 1933. Here, the jury found that four of eleven plaintiffs, Howard Chin, Richard Wong, Sanrit Booncome and Michael
4

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

Chung, were not discriminated against either as part of the

plaintiffs’ attorneys reveal many instances where hours

Port Authority’s pattern or practice of discrimination or

spent are “excessive, redundant, ... unnecessary” or

individually. The jury awarded those plaintiffs no

inadequately recorded. Hensley, 461 U.S. at 424, 103

damages. Certain background evidence was relevant to all

S.Ct. 1933. A four-elevenths (about 36%) reduction is

claims, for example testimony regarding the Port

required to reach the “hours reasonably expended” in light

Authority’s practices for promotion to Sergeant.

of the four unsuccessful plaintiffs and “as a practical

means of trimming fat from a fee application.” Kirsch v.

Nonetheless, each plaintiff was required to introduce

Fleet Street, Ltd., 148 F.3d 149, 173 (internal quotation

evidence sufficient to prove his own claims. I cannot say

marks and citation omitted).

that the successful and unsuccessful claims were so

entirely “intertwined” that no reduction for the

unsuccessful claims is appropriate. See LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir.1998) (an unsuccessful claim was “intertwined” with successful claims based on identical cause of action *542

D. Fee Award The reasonable attorneys’ fee will be awarded to plaintiffs as follows based on the four-elevenths reduction:

arising out of the same occurrence but against a different

party; “unrelated” claims rested on different occurrences.)

	  

I am further persuaded that an overall percentage

reduction is appropriate because the billing records of

Paul	  Weiss	  

	  	  

	  

	  
	  
Name	   	  	   	   Susanna	  Buergel	   	  	   	   Karen	  King	   	  	   	   Moira	  Weinberg	   	  	   	   Jane	  O’Brien	   	  	   	   Dominika	  Tarczynska	   	  	   	   Michael	  Berger	   	  	   	   Allison	  Grodin	  Weiss	   	  	   	   Satyam	  Bee	   	  	  

	  
Position	   	  	   	   Partner	   	  	   	   Associate	  (Class	  of	  2000)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2005)	   	  	   	   Associate	  (Class	  of	  2005)	   	  	   	   Associate	  (Class	  of	  2007)	   	  	   	   Associate	  (Class	  of	  2007)	   	  	  

	  
Hours	   	  	   	   62.8	   	  	   	   616.1	   	  	   	   96.2	   	  	   	   246.3	   	  	   	   80.5	   	  	   	   156.3	   	  	   	   329.4	   	  	   	   95.4	   	  	  

Hourly	   	  	   	   Rate	   	  	   	   $	  400	   	  	   	   $	  400	   	  	   	  
$	  300	   	  	   	  
$	  300	   	  	   	  
$	  300	   	  	   	   $	  300	   	  	   	   $	  200	   	  	   	   $	  200	   	  	  

	  
Total	   	  	   	   $	  25,124	   	  	   	   $	  246,451	   	  	   	   $	  28,846	   	  	   	   $	  73,882	   	  	   	   $	  24,150	   	  	   	   $	  46,887	   	  	   	   $	  65,889	   	  	   	   $	  19,078	   	  	  
5

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	   Chloe	  Clifford	   	  	   	   Grace	  Choi	   	  	   	   Abigail	  Cushing	   	  	   	   Total:	   	  	   	   	  

	   Paralegal	   	  	   	   Paralegal	   	  	   	   Paralegal	   	  	   	   	  
	  	   	  

	   317.5	   	  	   	   310.8	   	  	   	   205.7	   	  	   	   2516.9	   	  	   	   	  

	   $	  100	   	  	   	   $	  100	   	  	   	   $	  100	   	  	   	   	  
	  

	   $	  31,748	   	  	   	   $	  31,080	   	  	   	   $	  20,567	   	  	   	   $613,703	   	  	   	   	  

	   Cravath	   	  	   	  

	  
	  
Name	   	  	   	   Karen	  King	   	  	   	   Christopher	  Harwood	   	  	   	   Andrew	  Goldsmith	   	  	   	   Eva	  Temkin	   	  	   	   Lauren	  Moskowitz	   	  	   	   Richard	  Tucker	   	  	   	   Varsha	  Karkera	   	  	   	   Christine	  Fung	   	  	   	   Total:	  

	  
Position	   	  	   	   Associate	  (Class	  of	  2000)	   	  	   	   Associate	  (Class	  of	  2003)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2004)	   	  	   	   Associate	  (Class	  of	  2005)	   	  	   	   Associate	  (Class	  of	  2006)	   	  	   	   Paralegal	   	  	   	   Paralegal	   	  	   	   	  

	  
Hours	   	  	   	   277.1	   	  	   	   393.1	   	  	   	   281.3	   	  	   	   163.9	   	  	   	   183.4	   	  	   	   408.7	   	  	   	   658.3	   	  	   	   300.9	   	  	   	   2666.8	  

Hourly	   	  	   	   Rate	   	  	   	   $	  400	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  300	   	  	   	   $	  200	   	  	   	   $	  200	   	  	   	   $	  100	   	  	   	   $	  100	   	  	   	  
	  

	  
Total	   	  	   	   $110,855	   	  	   	   $117,944	   	  	   	   $	  84,401	   	  	   	   $	  49,159	   	  	   	   $	  36,680	   	  	   	   $	  81,747	   	  	   	   $	  65,832	   	  	   	   $	  30,087	   	  	   	   $576,705	  
6

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	  	  

	  	  

	  	  

	  

	  

	  

II. Costs [10] [11] A fee award under Title VII also includes expert fees and “reasonable out-of-pocket expenses” incurred by the attorneys that are “ordinarily charged to their clients.” LeBlanc, 143 F.3d at 763 (quoting United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir.1989)). Computerized legal research expenses may be recovered, although nominally as part of attorneys’ fees and not costs because they are treated as a
Paul	  Weiss	   	  	   	  

*543 “substitute for an attorney’s time.” United States ex rel. Evergreen Pipeline Construction Co. v. Merritt Meridian Construction Corp., 95 F.3d 153, 173 (2d Cir.1996).
Plaintiffs seek costs and computerized legal research fees as set out below:
	  

	   	  	   	  
Cost	   	  	   	   Expert—Dr.	  Buckberg	   	  	   	   “Prof.	  Services”	   	  	   	   Expert—Dr.	  Lundquist	   	  	   	   Expert—Dr.	  Cavanaugh	   	  	   	   “Digiscribe”	   	  	   	   Reporting	   	  	   	   Process	  Servers	  

Item	   	  	   	   Total	   	  	   	   	  	   	  
	  	   	  
$	  102,481.72	   	  	   	   $	  25,682.33	   	  	   	   $	  87.90	   	  	   	   	  	   	  
	  	  

Category	   	  	   	   Total	   	  	   	   $	  100,292.69	   	  	   	   $	  128,251.95	   	  	   	   	  	   	  
	  	   	  
	  	   	  
$	  11,940.13	   	  	   	   $	  1,742.50	  
7

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	  	  

	  

	  

Misc.	  Court	  Expense	  

	  	  

	  	  

	  

	  

Filing	  Fees	  

	  	  

	  	  

	  

	  

Lexis	  

	  	  

	  	  

	  

	  

Westlaw	  

	  	  

	  	  

	  

	  

Library	  Services	  

	  	  

	  	  

	  

	  

Law	  Journal	  Search	  

	  	  

	  	  

	  

	  

Docketing	  Retrieval	  

	  	  

	  	  

	  

	  

Print–Reference	  Materials	  

	  	  

	  	  

	  

	  

Misc.	  Info	  Retrieval	  

	  	  

	  	  

	  

	  

Reproduction	  

	  	  

	  	  

	  

	  

Color	  Copies	  

	  	  

	  	  

	  

	  

Document	  Production	  

	  	  

	  	  

	  

	  

Telephone	  

	  	  

	  	  

	  

	  

Postage	  

	  	  

	  	  

	  

	  	   	   $	  364.45	   	  	   	   $	  1,050.00	   	  	   	   $	  917.30	   	  	   	   $	  19,422.01	   	  	   	   $	  1,343.41	   	  	   	   $	  159.03	   	  	   	   $	  212.80	   	  	   	   $	  21.66	   	  	   	   $	  1,648.16	   	  	   	   $	  48,773.94	   	  	   	   $	  4,638.00	   	  	   	   $	  32.90	   	  	   	   $	  120.24	   	  	   	   $	  99.05	   	  	  
8

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	  

External	  Messenger	  

	  	  

	  	  

	  

	  

FedEx	  

	  	  

	  	  

	  

	  

Doc	  Retrieval	  

	  	  

	  	  

	  

	  

Delivery	  

	  	  

	  	  

	  

	  

Taxi	  

	  	  

	  	  

	  

	  

Paul	  Weiss	  Total	  Costs:	  

	  	  

	  	  

	  

	  

	  	  

	  	  

	  

	  

	   Cravath	   	  	   	  

	   	  
Cost	   	  	   	   “Special	  Disbursements”	   	  	   	   Reporting	   	  	   	   Expert—Dr.	  Lundquist	   	  	  

Item	   	  	   	   Total	   	  	   	   	  
$	  59,702.55	   	  	   	   $	  10,706.81	   	  	  

	   $	  426.00	   	  	   	   $	  752.03	   	  	   	   $	  195.00	   	  	   	   $	  269.78	   	  	   	   $	  1,067.43	   	  	   	   $	  323,740.46	   	  	   	   	  	   	  
Category	   	  	   	   Total	   	  	   	   $	  95,222.00	   	  	   	   	  
	  
9

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	   Expert—Dr.	  Martell	   	  	   	   Outside	  Law	  Libraries	   	  	   	   Outside	  Duplication	   	  	   	   Docket	  Retrieval	   	  	   	   Messenger	   	  	   	   Computer	  Vendors	   	  	   	   Sales	  Tax	   	  	   	   Courier	  /	  Mail	   	  	   	   Duplicating	   	  	   	   Binding	  /	  Graphics	  /	  Video	   	  	   	   Telephone	   	  	   	   Fax	   	  	   	   Computer	  Research	   	  	   	   Misc.	  Other	  Library	   	  	   	   Cravath	  Total	  Costs:	  

	   $	  15,300.00	   	  	   	   $	  110.00	   	  	   	   $	  2,006.08	   	  	   	   $	  2,936.11	   	  	   	   $	  20.08	   	  	   	   $	  4,211.39	   	  	   	   $	  228.98	   	  	   	   	  
	  
	  
	  
	  
	  
	  
	  

	  
	  
	  
	  
	  
	  
	  
$	  3,596.08	   	  	   	   $	  21,829.54	   	  	   	   $	  8,780.00	   	  	   	   $	  98.81	   	  	   	   $	  72.00	   	  	   	   $	  30,841.53	   	  	   	   $	  2,838.21	   	  	   	   $	  163,278.17	  
10

Port Authority Police Asian Jade Soc. of New York &..., 706 F.Supp.2d 537...

	  	  

	  	  

	  

	  

[12] Dr. Lundquist’s fees of $102,481.72 paid by Paul Weiss and $10,706.81 paid by Cravath will be excluded because her testimony was precluded from being used at trial. As such, it is within my discretion under 42 U.S.C. § 2000e–5(k) to eliminate those fees from the costs. BD v. DeBuono, 177 F.Supp.2d 201, 208 (S.D.N.Y.2001) (citations omitted) (a court “may refuse to grant [expert] fee requests that are excessive or redundant.”) Costs will be awarded in the amount of $221,258.74 to Paul Weiss and $152,571.36 to Cravath.

CONCLUSION
For the foregoing reasons, plaintiffs’ motion for attorneys’ fees and costs is granted as detailed above. The Clerk of the Court is directed to enter judgment in accordance with the Jury Verdict of March 26, 2009, my Order Granting Equitable Relief dated January 13, 2010, and this Memorandum Opinion and Order.
SO ORDERED.
	  

11

 
 Port Authority Police Asian Jade Soc. of New York &..., 681 F.Supp.2d 456...

681 F.Supp.2d 456 United States District Court,
S.D. New York.
The PORT AUTHORITY POLICE ASIAN JADE SOCIETY OF NEW YORK & NEW JERSEY INC., Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome and
Michael Chung, Plaintiffs, v.
The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
No. 05 Civ. 3835(MGC). | Jan. 14, 2010.
Synopsis Background: Asian-American members of Port Authority Public Safety Department (PSD) brought action alleging that authority had pattern or practice of intentionally discriminating against Asian-Americans in making promotions to sergeant and that PSD’s practices for promotion to sergeant had disparate impact on them. The District Court, Miriam Goldman Cedarbaum, J., 601 F.Supp.2d 566, denied officers’ motion for sanctions against Port Authority for failure to preserve evidence. After jury returned verdict that seven of eleven plaintiffs had proven discrimination and awarded back pay and compensatory damages to them, Port Authority moved for judgment as matter of law (JMOL) or, in the alternative, for new trial or for remittitur of compensatory damages award.
Holdings: The District Court, Cedarbaum, J., held that:
[1] use of events more than 180 days prior to filing of Equal Employment Opportunity Commission (EEOC) charge as background evidence for indisputably timely claims was not error that required new trial;
[2] disparate impact and pattern or practice claims identified discriminatory policy, and jury was properly permitted to consider acts 180 days or more before filing of EEOC charge under “continuing violations” doctrine;
[3] admission of testimony by employees’ statistical expert did not warrant new trial;

[4] claimed inconsistencies in jury verdict did not merit new trial;
[5] jury did not lack legally sufficient evidentiary basis to return its verdict on disparate impact and pattern or practice claims, and verdict was not against weight of the evidence; and
[6] while $250,000 compensatory damages awarded to two employees were extremely large, they did not shock the conscience and would not be subject to remittitur.
Motion denied.
Attorneys and Law Firms
*459 Paul, Weiss, Rifkind, Wharton & Garrison LLP, by Karen R. King, Esq., Susanna M. Buergel, Esq., Jane B. O’Brien, Esq., Allison Grodin Weiss, Esq., New York, NY, for Plaintiff.
The Port Authority of New York and New Jersey Milton H. Pachter, Esq., by Kathleen Gill Miller, Esq., Kathleen M. Collins, Esq., Caren K. Lee, Esq., New York, NY, for Defendant.
Opinion
OPINION
CEDARBAUM, District Judge.
Plaintiffs sue the Port Authority of New York and New Jersey (“Port Authority”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5, for discriminating against Asian–American officers in making promotions to Sergeant. The jury trial began on March 11, 2009, and the jury returned its verdict on March 26, 2009. The Port Authority now moves for judgment as a matter of law, or in the alternative, for a new trial or for a remittitur of the jury’s compensatory damages award. For the following reasons, the Port Authority’s motion is denied in its entirety.
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BACKGROUND
I. The Parties The Port Authority is a bi-state agency created by compact between the States of New York and New Jersey to develop transportation facilities in the New York metropolitan area. The Port Authority’s thirteen facilities are policed by the Port Authority’s Public Safety Department.
The plaintiffs are eleven Asian–American members of the Port Authority Public Safety Department. All of the plaintiffs began their careers with the Department as Officers. Christian Eng was hired in 1977, David Lim in 1980, Richard Wong in *460 1983, Milton Fong in 1985, Howard Chin and Alan Lew in 1987, and Stanley Chin in 1988. George Martinez and Nicholas Yum joined in 1993, and both Michael Chung and Sanrit Booncome in 1999.
The Port Authority Police Asian Jade Society of New York and New Jersey (“Asian Jade Society”) is a fraternal organization of Port Authority Police officers of Asian or Pacific Islander descent. Each plaintiff is a member of the Asian Jade Society.
II. The Port Authority’s Promotion Process The entry-level rank in the Public Safety Department is Officer. To be eligible for promotion to Sergeant, a police officer must have served two years as an officer or detective as of the date of the Sergeant’s Examination, meet certain attendance requirements, and pass the examination. Beginning in 1996, all officers who passed were equally eligible for promotion without regard to their score. Once the exam was scored, a list of officers eligible for promotion was circulated.
The commanding officers of the various facilities were charged with recommending eligible officers for promotion. Some commanding officers made the recommendations themselves, while others delegated full authority to the officers’ direct supervisors. Still others made the recommendations themselves after receiving advice from the direct supervisors.
The Public Safety Department had no set criteria or protocol for recommendation for promotion. The factors relevant to promotion and the weight assigned to those factors varied among the commanding officers. An officer’s supervisor or commanding officer completed a “Performance Appraisal Form” only after selecting that

officer to be recommended for promotion. The form required the supervisor to rate the officer on a scale from “unacceptable (clearly below standard)” to “outstanding (among the very best).”
From 1996 to 2001, the next step in the promotion process was the so-called Chiefs’ Board, at which the chiefs and deputy chiefs would review the promotion folders of the officers recommended for promotion. During Superintendent Morrone’s tenure, no minutes or notes were taken of meetings of the Chiefs’ Board. Chief Farrell testified that during that time, the chiefs of each command advocated for the candidates put forth from that command. (Trial Tr. 194, March 13, 2009.) The Chiefs’ Board then decided which officers to recommend to the Superintendent, who made the final decision.
Chief Morris assumed the role of Acting Superintendent shortly after Superintendent Morrone was killed on September 11, 2001. Instead of using a Chiefs’ Board, he solicited recommendations for promotions from deputy chiefs, who in turn asked the assistant chiefs to collect recommendations from the commanding officers of each facility. Once the recommendations were made, the assistant chiefs decided among themselves which officers to recommend to the deputy chiefs. The deputy chiefs then reviewed those and made recommendations to Chief Morris for promotion.
Charles DeRienzo became the Superintendent of Police in April 2002. He reinstituted a Chiefs’ Board comprised of all chiefs and the Acting Superintendent, but excluded himself and Chief Morris. At these meetings, the chiefs voted after every candidate was discussed. Officers receiving a majority in favor of promotion were recommended to the Superintendent. A memorandum listed the officers recommended for promotion and those not recommended with the reason why they were not recommended, and, on occasion, the tally of votes for and against each officer.
*461 Superintendent Plumeri again changed the process when he succeeded Superintendent DeRienzo in 2004. He did away with the Chiefs’ Board and made promotion decisions without formal input from the chiefs.
III. Procedural History Before 2001, no Asian–American officer had ever been promoted to Sergeant. On January 31, 2001 the Asian Jade Society, on behalf of its members, filed a Charge of Discrimination with the Equal Employment Opportunity
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Commission (“EEOC”). The Asian Jade Society received a Right to Sue letter on January 25, 2005. On April 15, 2005, the Asian Jade Society and the individual plaintiffs filed the Complaint in this case. The Complaint alleges that the Port Authority intentionally discriminated against Asian–Americans in making promotions to Sergeant, that the Port Authority had a pattern or practice of intentionally discriminating against Asian–Americans in making promotions to Sergeant, and that the Port Authority’s practices for promotion to Sergeant had a disparate impact on Asian–American officers.
After hearing all the evidence, the jury found that the Port Authority’s promotion practices for Sergeant had a disparate impact upon Asian–American police officers. The jury also found that the Port Authority had a pattern or practice of intentional discrimination against Asian–American police officers, and that plaintiffs Christian Eng, Milton Fong, Alan Lew, Stanley Chin, Nicholas Yum, George Martinez, and David Lim had been discriminated against as a part of this pattern or practice. In addition, the jury found that the Port Authority’s decision not to promote those officers was motivated by their ethnicity.
The jury returned a verdict that Howard Chin, Richard Wong, Michael Chung, and Sanrit Booncome had not proven that they were discriminated against either as part of the Port Authority’s pattern or practice of discrimination or individually. The jury awarded back pay and compensatory damages only to Christian Eng, Milton Fong, Alan Lew, Stanley Chin, Nicholas Yum, George Martinez, and David Lim.
The Port Authority now moves for judgment as a matter of law overturning the jury’s verdict for the successful plaintiffs. It also moves in the alternative for a new trial, or a remittitur.

as a matter of law under Fed.R.Civ.P. 50(b). Rule 50(b) permits the jury verdict to be set aside when the jury “would not have a legally sufficient evidentiary basis to find for the [nonmoving] party on that issue.” Fed.R.Civ.P. 50(a)(1). To grant such a motion, there must be “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture” or “such an overwhelming amount of evidence in favor of the movant that [a] reasonable and fair minded” jury could not have returned a verdict in favor of the non-moving party. Fidelity & Guaranty Insurance Underwriters, Inc. v. Jasam Realty Corp., 540 F.3d 133, 142 (2d Cir.2008) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992)). When considering a Rule 50(b) motion, all reasonable inferences are drawn in favor of the non-moving party, evidence may not be weighed or assessed for credibility. Reeves v. Sanderson *462 Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
2. Rule 59 Motion for a New Trial
[3] [4] In the alternative, the Port Authority moves for a new trial under Rule 59(a)(1)(A). A new trial may be granted when “the jury has reached a seriously erroneous result” or when the verdict “is a miscarriage of justice,” that is, when the jury verdict is against the weight of the evidence. DLC Mgmt. v. Town of Hyde Park, 163 F.3d 124, 133–34 (2d Cir.1998) (citing Song, 957 F.2d at 1047 and Metromedia v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992)). Although evidence may be weighed and need not be viewed in the light most favorable to the nonmoving party, I should only grant a new trial if I conclude the jury verdict is “egregious.” DLC Mgmt., 163 F.3d at 134 (citing Song, 957 F.2d at 1047).

DISCUSSION
IV. The Port Authority’s Motions for Judgment as a Matter of Law or a New Trial A. Standard of Review
1. Rule 50(b) Motion for Judgment as a Matter of Law [1] [2] The Port Authority renews its motion for judgment

B. Analysis
1. Statute of Limitations
At trial, the jury was permitted to consider events prior to August 2, 2000 (180 days prior to the filing of the EEOC charge) for two distinct purposes. First, those events could be considered as evidence bearing on whether the Port Authority made a discriminatory decision not to promote a particular plaintiff after August 2, 2000. Second, under
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the “continuing violations” doctrine, the jury was permitted to consider whether events that occurred before August 2, 2000 could give rise to liability if they were part of an “ongoing policy of discrimination” that persisted into the limitations period, that is, after August 2, 2000.
a. Introduction of Evidence that Arose Before August 2, 2000.
[5] [6] The Port Authority first argues that the use of events prior to August 2, 2000 as background evidence for indisputably timely claims was error that requires a new trial. At the outset, this argument confuses the limitations period on a claim with the admissibility of evidence relating to that claim. Otherwise admissible evidence does not become inadmissible if the statute of limitations would have run on a claim that arose on that date. As the Supreme Court commented in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the statute of limitations does not “bar an employee from using ... prior acts as background evidence in support of a timely claim.” Moreover, it is reversible error to preclude otherwise admissible evidence solely because it dated to a time when a claim would have been time-barred. Jute v. Hamilton Sundstrand, 420 F.3d 166, 175 (2d Cir.2005). Evidence from a truly remote period may be precluded under Fed.R.Evid. 403 but only because its probative value is attenuated by the passage of time. The Port Authority’s argument that I erred by permitting the jury to consider events that occurred before August 2, 2000 as background evidence for timely claims is therefore without merit.
b. Substantive Claims
The Port Authority’s second argument is that the verdict cannot stand because the jury was permitted to consider liability for events before August 2, 2000 for the plaintiffs’ pattern and practice and disparate impact claims.
i. The Limitations Period for Title VII Claims
[7] Title VII prohibits certain “employment practices.” 42

U.S.C. §§ 2000e–2(a). To preserve a claim, a plaintiff must file an EEOC charge within 180 or 300 days after the complained-of practice “occurred.” 42 U.S.C. § 2000e–5(c). In determining the timeliness of a Title VII claim two interrelated *463 questions must be considered: “what [is the] ‘unlawful employment practice’ ” at issue, and “when has that practice ‘occurred.’ ” Morgan, 536 U.S. at 110, 122 S.Ct. 2061. As the Supreme Court noted in Morgan, the timeliness of any claim “varies with the practice.” Id.
[8] At one end of the spectrum, certain practices are “discrete acts” that occur at a particular moment in time. Id., at 114, 122 S.Ct. 2061. Almost by definition, an untimely claim based upon them cannot become timely simply because that claim is related to a timely claim based on another discrete act. Id., at 113, 122 S.Ct. 2061.
[9] On the other end, certain practices are “continuing violations.” These claims are based on an “ongoing policy of discrimination,” that is, a single unlawful employment practice comprised of events extended over time. Because such a claim encompasses the entire unlawful employment practice, events outside the statutory period may give rise to liability. Id., at 118, 122 S.Ct. 2061.
The plaintiffs’ individual disparate treatment claims are examples of “discrete act[s].” Each claim is based on a particular, isolated decision (or decisions) not to promote a plaintiff motivated by ethnicity. Thus, the jury was instructed that it could only find the Port Authority liable if the decision (or decisions) in question had been made after August 2, 2000. (Trial Tr. 1307, March 24, 2009; Verdict Form, Part Three, pp. 5–7.)1

1

The jury’s verdict that plaintiffs Eng, Fong, Stanley

Chin, Lew, Martinez, Yum, and Lim were each

discriminated against after August 2, 2000 was by itself

sufficient for the jury to award each of them back pay

and compensatory damages.

The Port Authority proffers two—largely interrelated-reasons why the plaintiffs’ disparate impact and pattern or practice disparate treatment claims are not continuing violations. First, it contends the “continuing violations” doctrine is inapplicable because the plaintiffs failed to identify a discriminatory policy. Second, it asserts that Morgan limits the “continuing violations” doctrine to hostile work environment claims, and requires discriminatory policies to be analyzed as “discrete acts.”

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ii. The plaintiffs’ disparate impact and pattern or practice claims properly challenged a discriminatory
policy.
The plaintiffs’ disparate impact and pattern or practice claims each charged that the Port Authority’s practices for promotion to Sergeant discriminated against Asian–American police officers. Because the unlawful employment practice at issue was an “ongoing discriminatory policy,” each claim is a “continuing violation,” not a discrete act.
A disparate impact claim challenges an employment practice that causes an imbalance in opportunities among protected groups. 42 U.S.C. § 2000e–2(k)(1)(A)(i) (to make out a prima facie case, a plaintiff must show that the employer “uses a particular employment practice that causes a disparate impact”); Gulino v. New York State Dept. of Ed., 460 F.3d 361, 382 (2d Cir.2006) (quoting New York City Tran. Auth. v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (defining “disparate impact” as when “an employment practice has the effect of denying the members of one race equal access to employment opportunities.”)) To press a disparate impact claim, the plaintiffs must identify a particular employment practice. In this case, the plaintiffs identified the Port Authority’s practices for promotion to sergeant. Although the Port Authority’s practices were occasionally altered during the relevant period, the overall policy was continuously maintained from 1996 until at least August 2, 2000.
*464 The Port Authority makes the subsidiary argument that the plaintiffs failed to identify which element of the Port Authority’s promotion practices caused a discriminatory impact. While § 2000e–2(k)(1)(B)(i) provides that a plaintiff must demonstrate that each challenged practice causes a disparate impact, that subsection goes on to provide that “if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.” Id. See also Malave v. Potter, 320 F.3d 321, 327 (2d Cir.2003) (quoting § 2000e–2(k)(1)(B)(i) ..)
[10] The Port Authority’s process for making promotions from the list of eligible officers was comprised of several steps. But these steps cannot be separately analyzed both because records do not exist for every step and because

the causal role of each step is called into doubt by the records that do exist. For example, Superintendent DeRienzo testified that he could not recall ever having promoted someone not recommended by the Chiefs’ Board. (Trial Tr. 261–62, March 13, 2009.) At a Chiefs’ Board in 2003 during his tenure, Plaintiff Nicholas Yum received a unanimous vote in favor of promotion. (Pls.’ Ex. 18.) At another Chiefs’ Board on January 7, 2003, Peter Hernandez was given a “No” recommendation, with five votes against, three for, and the notation “Sick History Record.” (Pls.’ Ex. 17.) Steven Grossi’s vote stalemated at the January 7, 2003 Chiefs’ Board. (Id.) Grossi and Hernandez were promoted on January 24, 2003; Nicholas Yum was not promoted until October 2005. (Pls.’ Ex. 28.) In sum, for many of the plaintiffs, all that could be shown is whether they were recommended and that they were ultimately not promoted.
Because the role of each step cannot be determined, the steps cannot be examined separately to discover whether a particular step causes a disparate impact. The jury was instructed to consider whether the decision making process as a whole caused a disparate impact if the steps of the process could not be separated for analysis. (Trial Tr. 1304, March 24, 2009.) Therefore, the Port Authority’s practices for promotion to Sergeant are properly analyzed as a continuously maintained discriminatory policy that caused a disparate impact on Asian–American police officers.
[11] [12] [13] A pattern or practice claim is a means of challenging a persistent “unlawful employment practice,” that is, an enduring policy or custom of intentional discrimination. See Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 160 (2001) (citing Int’l. Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Pattern or practice claims are defined in opposition to “discrete acts”; a pattern or practice can only be found when the practice is of such a “routine, or of a generalized nature” that it is the defendant’s “standard operating procedure.” Int’l Bhd. of Teamsters, 431 U.S. at 336, n. 16, 97 S.Ct. 1843; Robinson, 267 F.3d at 160. The Port Authority now argues that the plaintiffs failed to identify a specific discriminatory policy or general practice of discrimination. This is incorrect. The plaintiffs consistently argued that intentional discrimination was so pervasive in the Port Authority’s practices for promotion to sergeant that it amounted to a discriminatory policy or custom. This is a sufficient identification to proceed on a pattern or practice theory. Cf., Hazelwood School Dist. v. U.S., 433 U.S. 299, 303, 97 S.Ct. 2736, 53 L.Ed.2d 768
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(1977) (attorney general’s “pattern or practice” suit identified “standardless and highly subjective” hiring practices); *465 Robinson, 267 F.3d at 154 (company-wide policy of delegating discipline and promotion procedures to supervisors allegedly resulted in a pattern or practice of intentional discrimination.) Thus, the plaintiffs’ pattern or practice claim properly challenged a discriminatory policy or custom.
iii. Title VII claims that challenge a discriminatory policy are analyzed as “continuing violations.”
Next, the Port Authority argues that Morgan limits the “continuing violations” doctrine to claims involving a hostile work environment and therefore, both the plaintiffs’ disparate impact and “pattern or practice” claims must be analyzed as “discrete acts.”
The Second Circuit developed the “continuing violations” doctrine to address the problem of longstanding discriminatory policies and customs. In a series of cases, the Court of Appeals rejected the argument that only plaintiffs to whom the policy was applied within the limitations period could sue. Instead, the Court of Appeals held that “a continuously maintained illegal employment policy may be the subject of a valid complaint until a specified number of days after the last occurrence of an instance of that policy” and “all plaintiffs injured by ... adherence to that policy are therefore entitled to relief.” Acha v. Beame, 570 F.2d 57, 65 (2d Cir.1978); The Guardians Association of the New York City Police Department et al. v. Civil Service Commission (Guardians III), 633 F.2d 232, 251 (2d Cir.1980) (citing Acha, 570 F.2d at 65). See also Association Against Discrimination v. Bridgeport, 647 F.2d 256, 274 (2d Cir.1981); Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir.1993) (citing Association Against Discrimination v. Bridgeport, 647 F.2d at 274).
[14] The Port Authority argues that the Supreme Court’s holding in Morgan restricts the Second Circuit’s continuing violations doctrine to cases involving a hostile work environment. In support, the Port Authority points to the Supreme Court’s statement in Morgan that “discrete acts such as termination, failure to promote, denial of transfer ... are easy to identify” and that Title VII “precludes recovery for discrete acts ... that occur outside the statutory time period.” Morgan, 536 U.S. at 105, 114, 122 S.Ct. 2061. From this, the Port Authority concludes that any unlawful employment practice touching on one

of these acts (e.g. promotion, e.g.) is a “discrete act.”
But that is not the holding of Morgan. Morgan did not involve a “pattern-or-practice” claim, or any claim, other than that of a hostile work environment, which would be a proper “continuing violation” under the Second Circuit’s doctrine. The “continuing violation” at issue in Morgan was analyzed under the Ninth Circuit’s “serial violation” theory, which permits a series of “related acts” to be treated as a single “continuing violation.” Morgan, 536 U.S. at 107, 122 S.Ct. 2061. The Supreme Court held that a series of related but ultimately discrete acts could not be treated as a single unlawful employment practice. Id., at 114, 122 S.Ct. 2061. This is in keeping with the Second Circuit’s pre-Morgan precedent. Compare Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir.1993) (multiple similar instances of discrimination cannot form a continuing violation unless they stem from a discriminatory policy or mechanism) with Morgan v. National Railroad Passenger Corporation, 232 F.3d 1008, 1015 (9th Cir.2000) (a continuing violation may be shown by a “series of related acts”).
The contrast Morgan drew was between “discrete acts” on the one hand and ongoing unlawful employment practices, which includes a hostile work environment, on *466 the other. A hostile work environment, the Morgan court noted, “cannot be said to occur on any particular day” and is based on the “cumulative effect of individual acts.” Id., at 116, 122 S.Ct. 2061. Each act that contributed to that environment “encompas[ses] a single unlawful employment practice.” Thus, a hostile work environment claim is timely as long as it is filed within 180 or 300 days of an act that was part of that hostile work environment. Id., at 118, 122 S.Ct. 2061.
The continuing violations at issue in this case demand an analysis analogous to Morgan’s treatment of a hostile work environment. Every act that was part of those discriminatory policies was part of a single, ongoing unlawful employment practice that did “not occur on any particular day.” In a recent § 1983 case, the Second Circuit relied on Morgan for the proposition that the “continuing violation doctrine can be applied when the plaintiff seeks redress for injuries resulting from ‘a series of separate acts that collectively constitute one ‘unlawful act ...’ ‘ ” Shomo v. City of New York, No. 07–1208–cv, 2009 WL 2462213, 2009 U.S.App. LEXIS 23076 (2d Cir. August 13, 2009). Because the plaintiffs’ disparate impact and pattern or practice claims each challenged a single, ongoing unlawful employment practice, the jury was properly permitted to consider acts 180 days or more
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before the filing of the EEOC charge under the “continuing violations” doctrine.

2

Put otherwise, some of Dr. Cavanaugh’s analyses

showed that the observed distribution would occur by

chance more than 5% of the time.

2. Dr. Cavanaugh’s Testimony
[15] The plaintiffs offered the testimony of Dr. Cavanaugh, a statistical expert. The Port Authority now argues that his testimony was inadmissible and a new trial is required to correct this error. At the outset, I note that the Port Authority did not move in limine to preclude Dr. Cavanaugh’s testimony, and that the trial transcript reveals no clear objection to his testimony under Rule 702. Failure to make an objection either in limine or at trial ordinarily constitutes waiver. See United States v. Yu–Leung, 51 F.3d 1116, 1121 (2d Cir.1995); see also Fed.R.Evid. 103.
[16] [17] In any event, the Port Authority’s argument addresses the weight of Dr. Cavanaugh’s testimony, not it admissibility. Under Rule 702, as interpreted by the Supreme Court in Daubert v. Merrell Dow Pharma., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny, expert testimony that will assist the jury in understanding the facts at issue is admissible if the expert uses reliable methods and properly applies them to the facts in the case at hand. The Port Authority’s principal objection to Dr. Cavanaugh’s testimony is that his analyses did not consistently show statistical significance at the 5% level.2 It is correct that statistical significance at the 5% level is generally “sufficient to warrant an inference of discrimination.” Smith v. Xerox Corp., 196 F.3d 358, 366 (2d Cir.1999). But evidence is not inadmissible because it does not itself make out a prima facie case for its proponent. Dr. Cavanaugh presented the results of his analyses to the jury and then explained why, in his opinion, they were significant given the sample size at issue. The Port Authority had a full opportunity to cross-examine Dr. Cavanaugh. Its own expert, Dr. Zellner, disagreed with Dr. Cavanaugh’s choice of groups for comparison, but did not “have any concerns” about his choice of statistical methods or his application of those methods to that data set. (Trial Tr. 986, March 19, 2009). My role is to act as a gatekeeper, and permit evidence that uses accepted statistical methods properly applied to the facts of *467 the case. It is the jury’s role to decide between competing conclusions based on the data and analysis. Therefore, the admission of Dr. Cavanaugh’s testimony does not warrant a new trial.

3. The Jury Verdict and the Verdict Form
a. The Jury Verdict
[18] As noted above, the jury returned a verdict in favor of the Port Authority on the “pattern or practice” claims of plaintiffs Howard Chin, Wong, Chung, and Booncome, and awarded those plaintiffs no damages. The Port Authority asserts that the jury verdict is inconsistent and thus merits a new trial. A jury verdict may be set aside for inconsistency only if it is “ineluctably inconsistent,” that is, when there is no rational means of harmonizing the jury’s answers. Munafo v. Metropolitan Transportation Authority, 381 F.3d 99, 105 (2d Cir.2004).
[19] [20] The first alleged inconsistency is that the jury’s finding that the Port Authority’s promotion practices for Sergeant had a disparate impact upon Asian–American police officers is inconsistent with the jury’s decision not to award any back pay to Howard Chin. The jury was free to conclude that Howard Chin would not have been promoted even absent the disparate impact and therefore was not entitled to back pay. See EEOC v. Joint Apprenticeship Committee, 186 F.3d 110, 122–23 (2d Cir.1999). The Port Authority also attempts to cast the jury’s “pattern or practice” verdict as inconsistent because the jury did not return a verdict for every plaintiff on that claim. This is not inconsistent. Each of the eleven plaintiffs was required to prove, by a preponderance of the credible evidence, that he was discriminated against as part of that pattern or practice. The fact that the jury found that several plaintiffs had not met that burden does not render the verdict inconsistent. Because the jury verdict can be harmonized rationally, it cannot be overturned as inconsistent.
b. Verdict Form
The Port Authority argues that a new trial is required because the jury failed to understand the verdict sheet and
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was “confused as to whether this was a class action.” (Def.’s Mem. at 28.) There is simply no reason to believe that the jury was confused about whether the action was a class action. The jury answered separate questions and evaluated damages separately for each plaintiff. Second, it is understandable that the jury would seek further guidance about the meaning of the complex questions this case presented. The fact the jury asked for clarification does not suggest that the jury failed to understand the verdict sheet. Finally, my instruction that the jury was required to find disparate impact after August 2, 2000 in order to return a verdict for the plaintiffs on that claim accurately states the law and did not “direct a verdict against the Port Authority.”
c. The Jury’s Back Pay Award
The Port Authority maintains that the jury’s back pay award must be vacated because it awarded back pay beginning as early as October 31, 1999. 42 U.S.C. § 2000e–5(g)(1) provides that back pay cannot be awarded from a date earlier than two years prior to the filing of a charge with the EEOC. The plaintiffs’ EEOC charge was filed on January 31, 2001. Two years prior to that date is January 31, 1999. The jury’s back pay award for three plaintiffs exactly matches the back pay plaintiffs’ expert calculated would be due had those plaintiffs been promoted on October 31, 1999. October 31, 1999 is within the two-year statutory period. The Port Authority’s argument that back pay cannot be awarded from a *468 time more than 180 days before the filing of the EEOC charge in effect reargues the statute of limitations issue that I addressed above.
4. Sufficiency and Weight of the Evidence
The Port Authority also moves for judgment as a matter of law on the ground that the jury lacked a legally sufficient evidentiary basis to return its verdict on the plaintiffs’ disparate impact and pattern or practice claims, or for a new trial on those claims on the ground that the verdict is against the weight of the evidence.
[21] [22] The main thrust of the Port Authority’s argument is that the statistical evidence presented by plaintiffs’ expert, Dr. Cavanaugh, was insufficient to support the jury’s findings of disparate impact and a pattern or practice of

intentional discrimination. As the Port Authority points out, statistical significance at the 5% level is generally “sufficient to warrant an inference of discrimination.” Smith, 196 F.3d at 366; see also Ottaviani v. State University of New York at New Paltz, 875 F.2d 365, 371 (2d Cir.1989) (significance at 5% level supports an inference of discrimination); Waisome v. Port Authority, 948 F.2d 1370, 1376 (2d Cir.1991) (statistical disparity of “two or three standard deviations ... is generally highly probative of discriminatory treatment”). That said, the Court of Appeals has cautioned that “where statistics are based on a relatively small number of occurrences, the presence or absence of statistical significance is not a reliable indicator of disparate impact.” Waisome, 948 F.2d at 1379. In such an instance, “other indicia raising an inference of discrimination must be examined.” Id. See also International Brotherhood of Teamsters v. T.I.M.E., Inc., 431 U.S. 324, 340, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (warning that “[the usefulness of] statistics depends on all of the surrounding facts and circumstances”).
At trial, Dr. Cavanaugh presented an analysis comparing the promotion rates of eligible Asian–American officers with that of eligible White officers. Dr. Cavanaugh used the Fisher Exact Test to calculate the likelihood of observing the promotion rates between the two groups under the hypothesis that the observed distribution is due to chance.3 Dr. Cavanaugh determined that between August 1996 and January 31, 2001, the Fisher Exact Test returned a p-value of 13%. (Trial Tr. p. 729, March 17, 2009) According to Dr. Cavanaugh, this means that there is an approximately 13% likelihood of observing by chance the given distribution of Asian–American officers promoted (zero out of twelve) and White officers promoted (36 of 259).(Id.) On cross-examination, Dr. Cavanaugh stated that although his results were not significant at the 5% level, he believed that those results were significant because the small sample size made it impossible to provide statistical evidence at the 5% level “even with perfect discrimination.” (Trial Tr. at 754–55, March 18, 2009.)4

3

See generally, R.M. Fisher, On The Interpretation of

[Chi–Squared] from Contingency Tables, and the

Calculation of P, 85 J. Royal Stat. Soc’y 87 (1922).

4

The Port Authority argues that Dr. Cavanaugh “did not

take into account the small number of Asian police

officers in the entire force.” The factual basis of this

argument is unclear given Dr. Cavanaugh’s testimony

8

Port Authority Police Asian Jade Soc. of New York &..., 681 F.Supp.2d 456...

and the fact that the Fisher Exact Test uses number of officers in each category to calculate the p-value, reflecting the small number of Asian–American officers eligible for promotion.
The Port Authority’s statistical expert, Dr. Zellner, also used the Fisher Exact Test, but instead compared the number of Asian–American officers promoted from all Asian–American officers on eligible lists *469 between August 9, 1996 and April 15, 2005, with the number of all other officers promoted from all other eligible officers during that time period. She concluded that the Fisher Exact Test returned a p-value of 38.5% for that data set, suggesting an over one-in-three chance that the given distribution would be observed due to chance. (Trial Tr. 954–960, March 19, 2009)
The statistical evidence was not sufficient to either prove or disprove the plaintiffs’ claim, and so the jury considered other evidence of discrimination. See Waisome, 948 F.2d at 1379. Each plaintiff testified about his qualifications, service record, awards, commendations, and achievements, and the Port Authority had an opportunity to cross-examine each plaintiff.
The plaintiffs presented evidence that the Port Authority’s promotion process lacked clear standards and guidelines, and that non-Asian-American officers who may have been less-qualified were promoted, sometimes even after one of the plaintiffs had been recommended for promotion by the Chiefs’ Board. The jury deliberated for several days and made a number of requests to review the evidence presented at trial. The jury verdict reflects careful attention to whether each plaintiff had proven his individual claim. Ultimately, I cannot conclude that the verdict could “only have been a result of sheer surmise and conjecture” or that the evidence was so overwhelmingly in favor of the Port Authority that a “reasonable and fair minded” jury could not have returned its verdict. Fid. & Guar. Ins. Underwriters, 540 F.3d at 142.
Although I may weigh evidence and draw inferences against the plaintiffs when considering the Port Authority’s motion for a new trial, I am satisfied that the jury’s verdict is not so erroneous or so contrary to the evidence as to constitute a “miscarriage of justice.” DLC Mgmt., 163 F.3d at 133–34.

II. Remittitur [23] [24] [25] The Port Authority asks that I remit the jury’s compensatory damages award to plaintiffs Christian Eng and David Lim from $250,000 to $50,000; from $100,000 to $25,000 for plaintiffs Milton Fong and Stanley Chin; and for plaintiff Alan Lew from $75,000 to $20,000. Remittitur permits me to put the plaintiffs to a choice between accepting a reduction in the damages awarded or a new trial. Earl v. Bouchard Transp., 917 F.2d 1320, 1328 (2d Cir.1990). When federal law provides the cause of action, remittitur is appropriate when the jury award includes an identifiable error of a quantifiable amount or is so high as to “shock the conscience.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir.1998) (quoting O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.1988)). In the Second Circuit, the preferred method of calculating a remittitur is to reduce an excessive award to the maximum amount that I would sustain as not excessive. Martinez v. Port Authority, 445 F.3d 158, 160 (2d Cir.2006) (citing Earl, 917 F.2d at 1330). Comparison to similar cases can help illuminate whether an award is unconscionably high, but the award in a particular case must be seen in light of the facts and circumstances of that case. As a result, it is difficult to discern a consistent practice, notwithstanding the formula that “garden variety” emotional distress claims merit an award between $30,000 and $100,000. See, e.g, Lynch v. Town of Southampton, 492 F.Supp.2d 197, 207 (E.D.N.Y.2007) (quoting Watson v. E.S. Sutton, Inc., 02 CV 2739, 2005 WL 2170659, 2005 U.S. Dist. LEXIS 31578 (S.D.N.Y. Sept. 6, 2005)).
In certain cases, other judges of this District and of the Eastern District have upheld compensatory damage awards in excess of the $250,000 award to Christian *470 Eng and David Lim, or remitted larger awards to a still substantial amount. See, e.g., Osorio v. Source Enter’s., No. 05 Civ. 10029(JSR), 2007 WL 683985, 2007 U.S. Dist. LEXIS 18725 (S.D.N.Y. March 5, 2007) (upholding a $4 million compensatory damages award in a Title VII and state-law retaliation case); Marchisotto v. City of New York, No. 05 Civ. 2699(RLE), 2007 WL 1098678, at *11, 2007 U.S. Dist. LEXIS 27046, at *37–38 (S.D.N.Y. April 11, 2007) (upholding $300,000 compensatory damages award for retaliation); Quinn v. Nassau County Police Dep’t., 53 F.Supp.2d 347 (E.D.N.Y.1999) ($250,000 compensatory damages award for protracted harassment did not shock the conscience); Quinby v. WestLB AG, No. 04 Civ. 7406(WHP), 2008 WL 3826695, 2008 U.S. Dist. LEXIS 62366 (S.D.N.Y. August 15, 2008) (remitting a compensatory damages award of $500,000 for “garden variety emotional distress” to $300,000.)
9

Port Authority Police Asian Jade Soc. of New York &..., 681 F.Supp.2d 456...

[26] [27] The Port Authority cites Patrolmen’s Benevolent Ass’n v. City of New York, 310 F.3d 43, 55 (2d Cir.2002) for the proposition that an award for emotional damages must be supported by “competent evidence” in addition to the plaintiffs’ testimony. As that case goes on to hold, “competent evidence” is not limited to medical evidence; the award should be considered in light of the “circumstances of the violation itself.” Id. The compensatory damages awarded to Christian Eng and David Lim are extremely large. But, I do not conclude that they “shock the judicial conscience.”

CONCLUSION For the foregoing reasons, the Port Authority’s motion is denied in its entirety.
SO ORDERED.
	  

10

 
 Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 1 of 39

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

i

THE PORT AUTHORITY POLICE ASIAN JADE SOCIETY OF NEW YORK & NEW JERSEY INC., CHRISTIAN ENG, NICHOLAS YUM, ALAN LEW, HOWARD CHIN, DAVID LIM, GEORGE MARTINEZ, WAI MOY, STANLEY CHIN, MILTON FONG, RICHARD WONG, SANRIT BOONCOME and MICHAEL CHUNG,

i u s'.D.C. S.D. N.Y.

!

CASHIERS

JUDGE ffDMW! COMPLAINT

Plaintiffs,

3835

vs.

THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,

Defendant.

Plaintiffs The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome and Michael Chung, for their Complaint against Defendant, the Port Authority of New York and New Jersey, hereby aver, upon knowledge with respect to themselves and upon information and belief as to all other matters, as follows:
NATURE OF ACTION 1. This is an action to redress the deprivation of rights secured to the Plaintiffs pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000(e), as well as

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 2 of 39
42 U.S.C. §1981 and 42 U.S.C. §1983. Plaintiffs are and continue to be victims of racial discrimination in the scope of their employment with Defendant.
PARTIES 2. Plaintiff The Port Authority Police Asian Jade Society of New York & New Jersey Inc. ("AJS") is a not-for-profit corporation organized and existing under the laws of the State of New York. AJS is an organization of police officers of Asian or Pacific Islander origin ("Asian police officers") employed by the Port Authority of New York and New Jersey ("Port Authority"). AJS was incorporated in 1983 with the goal of promoting understanding, friendship and cooperation among members of the Port Authority police department and, as of April 15, 2005, has approximately 33 members. 3. Plaintiff Christian Eng is an individual residing in Hewlett, New York. Christian Eng is and was at all times herein stated, a police officer employed by the Port Authority since 1977. Christian Eng is Asian-American and, as such, is a member of a protected class. 4. Plaintiff Nicholas Yum is an individual residing in Massapequa, New York. Nicholas Yum is and was at all times herein stated, a police officer employed by the Port Authority since 1993. Nicholas Yum is Asian-American and, as such, is a member of a protected class. 5. Plaintiff Alan Lew is an individual residing in Lynbrook, New York. Alan Lew is and was at all times herein stated, a police officer employed by the Port Authority since 1987. Alan Lew is Asian-American and, as such, is a member of a protected class. 6. Plaintiff Howard Chin is an individual residing in New York, New York. Howard Chin is and was at all times herein stated, a police officer employed by the Port

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 3 of 39
Authority since 1987. Howard Chin is Asian-American and, as such, is a member of a protected class.
7. Plaintiff David Lim is an individual residing in Lynbrook, New York. David Lim is and was at all times herein stated, a police officer employed by the Port Authority since 1980. David Lim is Asian-American and, as such, is a member of a protected class.
8. Plaintiff George Martinez is an individual residing in Bayside, New York. George Martinez is and was at all times herein stated, a police officer employed by the Port Authority since 1993. George Martinez is Asian-American and, as such, is a member of a protected class.
9. Plaintiff Wai Moy is an individual residing in Morris Plains, New Jersey. Wai Moy is and was at all times herein stated, a police officer employed by the Port Authority since 1993. Wai Moy is Asian-American and, as such, is a member of a protected class.
10. Plaintiff Stanley Chin is an individual residing in Piscataway, New Jersey. Stanley Chin is and was at all times herein stated, a police officer employed by the Port Authority since 1988. Stanley Chin is Asian-American and, as such, is a member of a protected class.
11. Plaintiff Milton Fong is an individual residing in Chester, New Jersey. Milton Fong is and was at all times herein stated, a police officer employed by the Port Authority since 1985. Milton Fong is Asian-American and, as such, is a member of a protected class.
12. Plaintiff Richard Wong is an individual residing in New York, New York. Richard Wong is and was at all times herein stated, a police officer employed by the Port Authority since 1983. Richard Wong is Asian-American and, as such, is a member of a protected class.

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 4 of 39

13. Plaintiff Sanrit Booncome is an individual residing in Woodside, New York.

Sanrit Booncome is and was at all times herein stated, a police officer employed by the Port

Authority since 1999. Sanrit Booncome is Asian-American and, as such, is a member of a

protected class.

14. Plaintiff Michael Chung is an individual residing in Kew Gardens, New

York. Michael Chung is and was at all times herein stated, a police officer employed by the Port

Authority since 1998. Michael Chung is Asian-American and, as such, is a member of a

protected class.

15. Defendant The Port Authority of New York and New Jersey is a bi-state

transportation agency that manages the bridges, tunnels, bus terminals, airports, Port Authority

Trans-Hudson (PATH) and seaports in the New York metropolitan area. At all relevant times,

the Port Authority is a state actor, has employed over 1000 police officers, and has been

continuously, and is now, doing business in the States of New York and New Jersey.

JURISDICTION AND VENUE 16. This Court has jurisdiction over the subject matter of this action under

28U.S.C. §1331.

17. The Port Authority is subject to personal jurisdiction in this Court pursuant to

N.Y. C.P.L.R. §301.

18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).

Background

FACTUAL ALLEGATIONS

19. The Port Authority maintains an active police force.

20. Port Authority police officers begin their careers as uniformed officers.

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 5 of 39
21. At the discretion of their supervisors, some uniformed Port Authority officers are given "special details" or "preferred assignments" including but not limited to the Applicant Investigation Unit, Inter-agency Task Force, K-9 units, administrative chart positions, plain clothes positions and the Silver Shield program. These assignments are desirable because they confer additional remuneration and/or special benefits upon the police offers assigned and because they lead to advancement opportunities.
22. At the discretion of their supervisors, some Port Authority police officers are given the status of "detective". Port Authority detectives do not have to wear the police uniform and are paid 17.5-25% more than uniformed officers. The status of "detective" is desirable because it confers additional remuneration and/or special benefits and because it leads to advancement opportunities.
23. Both uniformed police officers and detectives are supervised directly by police officers who have obtained the rank of "Sergeant" or "Detective Sergeant".
24. The rank of Sergeant is the first official supervisory level in the leadership hierarchy of the Port Authority police department. Above the rank of Sergeant are the ranks of Detective Sergeant, Lieutenant, Detective Lieutenant, Captain, Inspector, Assistant Chief, Deputy Chief, and Chief of the Department. Each rank in the hierarchy is paid more than the ranks below.
25. Sergeants are paid approximately 20-25% more than uniformed officers. 26. A police officer cannot be promoted to higher ranks without first being promoted to Sergeant.

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 6 of 39
27. In order to qualify for promotion to Sergeant, police officers must pass an examination that is administered approximately every three years ("Sergeant's examination"). The Sergeant's examination is typically composed of a written portion and an oral portion.
28. Anyone with at least two years of service as a Port Authority police officer may take the Sergeant's examination.
29. The written portion of the Sergeant's examination is a three-hour test consisting of multiple choice questions based upon reading material distributed prior to the test.
30. Candidates who pass the written portion of the Sergeant's examination then take the oral portion of the exam. The oral portion of the Sergeant's examination requires candidates to answer three questions selected by two evaluators.
31. Officers who pass the Sergeant's examination are placed on a list of individuals eligible for promotion to Sergeant.
32. Each eligibility list is active for approximately three years. During the lifespan of the list, individuals on the list remain eligible for promotion to Sergeant.
33. Passing the Sergeant's examination does not guarantee promotion to Sergeant.
34. At least seven Asian police officers were eligible for promotion in 1996. At least seven Asian police officers were eligible for promotion in 1997. At least seven Asian police officers were eligible for promotion in 1998. At least 10 Asian police officers were eligible for promotion in 1999. At least 10 Asian police officers were eligible for promotion in 2000.
35. From 1996 to January 31,2001, no Asian police officers were promoted to Sergeant.

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 7 of 39
36. From 1996 to January 31, 2001, there were no Asian police officers in any supervisory ranks in the Port Authority police force. Discrimination
37. From at least 1996 and continuing to the present, qualified Asian police officers including Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong and Richard Wong have requested various special details or preferred assignments but have been consistently and intentionally passed over for such details and/or assignments in favor of non-Asian police officers with less seniority and lesser or inferior qualifications. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted selection criteria for special details or preferred assignments that had a disparate and adverse impact on Asian police officers.
38. From at least 1996 and continuing to the present, certain special details or preferred assignments were not officially announced in order to enable or facilitate the assignment to those positions of certain non-Asian police officers. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted procedures for announcing special details and preferred assignments which had a disparate and adverse impact on Asian police officers.
39. From at least 1996 and continuing to the present, qualified Asian police officers including Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome and Michael Chung have requested selection for detective status but have been consistently passed over in favor of nonAsian police officers with less seniority and lesser or inferior qualifications. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or
7

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 8 of 39
adopted selection criteria for detective status which had a disparate and adverse impact on Asian police officers.
40. The Port Authority's persistent, continuing and systematic failure to select qualified Asian police officers to special details, preferred assignments or detective status had a severe adverse impact on the advancement of Asian police officers, including promotion to Sergeant.
41. From at least 1996 and continuing to the present, Asian police officers including Howard Chin, Wai Moy, George Martinez, David Lim, Nicholas Yum and Christian Eng have been disciplined more severely than their non-Asian counterparts for minor infractions including or such as being "off post", failure to sign in at court, possession of a newspaper, late arrival or inability to work last-minute over-time due to childcare needs. While non-Asian police officers received oral warnings or no discipline at all for these infractions, Asian police officers for the same infractions received written charges which were documented in their employee files. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted disciplinary procedures which had a disparate and adverse impact on Asian police officers.
42. From at least 1996 and continuing to the present, disciplinary charges brought against Asian police officers have been left "pending" longer than charges brought against nonAsian police officers. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted disciplinary procedures which had a disparate and adverse impact on Asian police officers.
43. Resolution of disciplinary charges has been and continues to be expedited for certain non-Asian police officers as a result of favoritism, nepotism and/or racial discrimination
8

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 9 of 39
against Asian police officers. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted disciplinary procedures which had a disparate and adverse impact on Asian police officers.
44. The presence of any pending disciplinary charges in the employee file for a police officer prevents that officer from being considered for promotion to Sergeant.
45. The presence of pending disciplinary charges in the employee files for certain Asian police officers, even though they were for minor infractions for which non-Asian police officers do not receive written charges, was used as a basis for the Port Authority's refusal to promote those Asian police officers.
46. hi some instances, resolution of disciplinary charges for certain Asian police officers was deliberately delayed for the purpose of preventing them from being considered for promotion to Sergeant.
47. hi some instances, disciplinary charges were deliberately brought against Asian police officers, without good cause in fact, for the purpose of preventing them from being considered for promotion to Sergeant.
48. From at least 1996 and continuing to the present, Asian police officers including Plaintiffs have been repeatedly subjected to discriminatory remarks and racial slurs by non-Asian officers, including being called "chink", "gook", "slant-eye" or "fish-head", references to Asian food as "dog" or "cat", derogatory remarks about Asian accents, and mockery of Asian accents over the Port Authority police radio. These derogatory remarks and racial slurs are pervasive and have been made by or heard by Port Authority management employees.

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 10 of 39
49. The derogatory remarks and racial slurs against Asian police officers create a hostile work environment and perpetuate prejudice, disparate treatment and employment discrimination against Asian police officers.
50. Because team effort and backup support are critical to the nature of police work, it is difficult for any police officer to make complaints against his/her fellow officers. Any police officer who makes a complaint risks his/her own safety, being labeled as untrustworthy and/or being ostracized from the police unit.
51. Asian police officers who have complained about derogatory remarks, racial slurs and discriminatory treatment to supervisors were either ignored or subject to retaliatory action including, for example: false disciplinary charges, denial of advancement opportunities, social ostracism and public ridicule.
52. Because the Port Authority ignored complaints from Asian police officers and/or retaliated against them for making complaints, Asian police officers have been reluctant to file formal complaints regarding racist remarks, racial slurs and discriminatory treatment over the years.
53. The dearth of Asian police officers in the supervisory ranks in the Port Authority police force contributes to, encourages and perpetuates the hostile work environment and discriminatory treatment of Asian police officers.
54. From at least 1996 and continuing to the present, Asian police officers including Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong, Sanrit Booncome and Michael Chung, have been eligible for promotion to Sergeant but were consistently and intentionally passed over for non-Asian police officers with less seniority and fewer qualifications. The promotion criteria for Sergeant
10

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 11 of 39
are subjective, not published and not standardized. From year to year, the criteria have been deliberately altered to favor the promotion of certain non-Asian officers. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers. The 1996 Test
55. A Sergeant's examination was administered in May 1996 (the "1996 Test"). The 1996 Test consisted of a written portion and an oral portion.
56. Christian Eng took the 1996 Test and passed both the written portion and the oral portion.
57. Howard Chin took the 1996 Test and passed both the written portion and the oral portion. Howard Chin's score on the oral portion of the 1996 Test was 94.33%.
58. David Lim took the 1996 Test and passed both the written portion and the oral portion.
59. George Martinez took the 1996 Test and passed with a score of 80.25% on the written portion and a score of 96.67% on the oral portion.
60. Stanley Chin took the 1996 Test and passed with a score of 88.89% on the written portion and a score of 81.17% on the oral portion.
61. Milton Fong took the 1996 Test and passed with a score of 87.65% on the written portion and a score of 70.83% on the oral portion. The 1996 List
62. Police officers who passed the 1996 Test were placed on a list of police officers eligible for promotion to Sergeant (the "1996 List").
11

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 12 of 39

63. There were at least seven Asian police officers on the 1996 List, including

Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez, Stanley Chin and Milton

Fong.

64. The 1996 List became active on or about August 9,1996.

65. No police officers were promoted to Sergeant in 1997.

66. In 1998, eight police officers were promoted to Sergeant from the 1996 List.

None of the Asian police officers on the 1996 List was promoted in 1998.

67. Each of Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez,

Stanley Chin and Milton Fong was equally or more qualified for promotion than at least one of

the eight non-Asian police officers promoted to Sergeant in 1998: John F. Flynn, Francis A.

Sabatino, David L. Attard, Jeffrey V. Baumbach, John F. Gilburn, Jr., Joseph C. Macaluso,

Joseph M. McKeever and Robert M. Vargas.

68. As of 1998, Christian Eng had served as a police officer with the Port

Authority for 21 years, had received numerous commendations and awards and had an excellent

attendance record.

69. As of 1998, Howard Chin had served as a police officer with the Port

Authority for 11 years, had received numerous commendations and awards and had an excellent

attendance record.

70. As of 1998, David Lim had served as a police officer with the Port Authority

for 18 years, had received numerous commendations and awards and had an excellent attendance record.

71. As of 1998, George Martinez had served as a police officer with the Port

Authority for five years, had graduated first in his Police Recruit Academy Class (an honor

12

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 13 of 39
which gave him seniority over his classmates) and had a perfect attendance record with no sick days taken.
72. As of 1998, Stanley Chin had served as a police officer with the Port Authority for ten years, had received numerous commendations and awards and had an excellent attendance record.
73. As of 1998, Milton Fong had served as a police officer with the Port Authority for 13 years, had received numerous commendations and awards and had an excellent attendance record.
74. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez, Stanley Chin and Milton Fong would have been promoted to Sergeant by 1998.
75. The promotion of less qualified non-Asian police officers in 1998 in lieu of promoting each of Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez, Stanley Chin and Milton Fong resulted directly from discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
76. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 1998 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
77. In 1999,15 police officers were promoted to Sergeant from the 1996 List. None of the Asian police officers on the 1996 List was promoted in 1999.
13

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 14 of 39
78. Each of Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez, Stanley Chin and Milton Fong was equally or more qualified than at least one of the 15 nonAsian police officers who were promoted to Sergeant in 1999: Michael M. McGarry, Oliver E. White, John M. Collins, Kevin G. Devlin, Reinaldo Gonzalez, Raymond J. Losak, Anthony J. Minero, Edward Spinelli, Jose Aquino, Quentin D. DeMarco, Alan T. DeVona, Christopher J. Farrell, Patric F. Mangieri, John Simms and Brian T. Sullivan.
79. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez, Stanley Chin and Milton Fong would have been promoted to Sergeant by 1999.
80. The promotion of less qualified non-Asian police officers in 1999 in lieu of promoting each of Plaintiffs Christian Eng, Howard Chin, David Lim, George Martinez, Stanley Chin and Milton Fong resulted directly from discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
81. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 1999 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
82. The 1996 List expired in August 1999. 83. None of the Asian police officers who were on the 1996 List was promoted during the three year lifespan of the 1996 List. 1999 Test 84. A Sergeant's examination was administered in May 1999 (the "1999 Test"). The test consisted of a written and an oral portion.
14

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 15 of 39
85. Christian Eng took the 1999 Test and passed both the written portion and the oral portion.
86. Alan Lew took the 1999 Test and passed with a score of 81.33% on the written portion and a score of 99.50% on the oral portion.
87. Nicholas Yum took the 1999 Test and passed with a score of 85.33% on the written portion and a score of 81% on the oral portion.
88. Howard Chin took the 1999 Test and passed both the written portion and the oral portion. Howard Chin's score on the oral portion of the 1999 Test was 91.50%.
89. Wai Moy took the 1999 Test and passed both the written portion and the oral portion. Wai Moy's score on the written portion of the 1999 Test was 72%.
90. George Martinez took the 1999 Test and passed with a score of 76% on the written portion and a score of 85.83% on the oral portion.
91. Stanley Chin took the 1999 Test and passed with a score of 82.67% on the written portion and a score of 71.33% on the oral portion.
92. Milton Fong took the 1999 Test and passed with a score of at least 73% on the written portion and a score of 91.33% on the oral portion. The 1999 List
93. Police officers who passed the 1999 Examination were placed on a list of officers eligible for promotion to Sergeant ("the 1999 List").
94. There were at least ten Asian police officers on the 1999 List including Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy, Stanley Chin and Milton Fong.
95. The 1999 List became active on or about August 10, 1999.
15

Case 1:05-cv-03835-MGC Document 1 Filed 04/15/05 Page 16 of 39
96. In 1999, five police officers were promoted to Sergeant from the 1999 List. None of the Asian police officers on the 1999 List was promoted in 1999.
97. Each of Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy, Stanley Chin and Milton Fong was equally or more qualified for promotion than at least one of the five non-Asian police officers who were promoted to Sergeant in 1999: Henry J. Borawski, Robert Stone, Keith Walcott, Robert Driscoll and John McLoughlin.
98. As of 1999, Christian Eng had served as a police officer with the Port Authority for 22 years, had received numerous commendations and awards and had an excellent attendance record.
99. As of 1999, Nicholas Yum had served as a police officer with the Port Authority for six years, had received numerous commendations and awards and had a perfect attendance record with no sick days taken.
100. As of 1999, Alan Lew had served as a police officer with the Port Authority for 12 years, had received numerous commendations and awards and had a perfect attendance record with no sick days taken.
101. As of 1999, Howard Chin had served as a police officer with the Port Authority for 12 years, had received numerous commendations and awards and had an excellent attendance record.
102. As of 1999, Wai Moy had served as a police officer with the Port Authority for six years, had received numerous commendations and awards and had an excellent attendance record.
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103. As of 1999, George Martinez had served as a police officer with the Port Authority for six years, had graduated first in his Police Recruit Academy Class (an honor which gave him seniority over his classmates) and had an excellent attendance record.
104. As of 1999, Stanley Chin had served as a police officer with the Port Authority for 11 years, had received numerous commendations and awards and had an excellent attendance record.
105. As of 1999, Milton Fong had served as a police officer with the Port Authority for 14 years, had received numerous commendations and awards and had an excellent attendance record.
106. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy, Stanley Chin and Milton Fong would have been promoted to Sergeant by 1999.
107. The promotion of less qualified non-Asian police officers in 1999 in lieu of promoting each of Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy, Stanley Chin and Milton Fong was a direct result of discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
108. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 1999 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
109. In 2000,13 police officers were promoted to Sergeant from the 1999 List. None of the Asian police officers on the 1999 List was promoted in 2000.
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110. Each of Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy, Stanley Chin and Milton Fong was equally or more qualified for promotion than at least one of the 13 non-Asian police officers who were promoted to Sergeant in 2000: Geraldo E. Silva, Lawrence J. Cummings, Thomas F. Fleming, Jay B. Friedman, Joseph Garcia, Lisha T. Harper, Kevin C. Murphy, Peter A. Schillizzi, Herbert Engelmann, Frances M. DeSio, Kevin R. Feeley, Timothy W. McGovem and William B. Ross.
111. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy, Stanley Chin and Milton Fong would have been promoted to Sergeant by 2000.
112. The promotion of less qualified non-Asian police officers in 2000 in lieu of promoting each of Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, Wai Moy, George Martinez, Stanley Chin and Milton Fong was a direct result of discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
113. As of January 31, 2001, there were no Asian police officers in any supervisory rank in the Port Authority police force. EEOC Charge of Discrimination
114. On January 31,2001, AJS filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), on behalf of its members ("EEOC Charge"). A true and correct copy of the January 31, 2001 EEOC Charge is attached hereto as Exhibit 1.
115. In its EEOC Charge, AJS alleged that because of race and/or national origin, its members (both past and present) have been subjected to ongoing disparate treatment including, but not limited to:
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• that Asian police officers have been continuously denied promotions to any responsible positions;
• that there have been no Asians in any supervisory positions in the Port Authority Police Force of approximately 1200 members;
• that Asian police officers who are eligible for promotion to sergeant positions have been consistently bypassed, while non-Asian officers with less qualifications and seniority, were promoted;
• that Asian police officers on the promotional list have been written up for unwarranted and/or minor departmental charges in order to hold them back for advancement;
• that Asian officers, as a class, have been disciplined more frequently and more severely than non-Asian officers for similar or less serious offenses;
• that Asian officers have been bypassed for preferred and/or detailed assignments which lead to advancement opportunities;
• that many times there are no official announcements for preferred and/or detailed assignments;
• that the Port Authority's discriminatory assignment policies and practices have adversely affected the advancement of Asian officers;
• that Asian officers have frequently been subjected to racial slurs and remarks which are heard or made by Port Authority management employees; and
• that Asian officers who have complained internally of discriminatory employment practices are often subjected to retaliation.
116. At the time the EEOC Charge was filed in January 2001, the Port Authority
Police Department had had no Asian police officers in any supervisory rank for at least six years.
117. At the time the EEOC Charge was filed, the Port Authority had failed to promote a single Asian police officer to the rank of Sergeant from either the 1996 or the 1999
Lists.
118. Nonetheless, the Port Authority denied all of the allegations contained in the
January 31, 2001 EEOC Charge.
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Post-EEOC Charge 119. Only after AJS filed the January 31,2001 EEOC Charge and because of an
urgent need for more supervisory officers after the September 11,2001 tragedy, did the Port Authority finally promote two Asian police officers to Sergeant from the 1999 List.
120. Plaintiffs Christian Eng and Milton Fong were promoted to Sergeant in December 2001 after 24 and 16 years on the job, respectively.
121. The average career of a Port Authority police officer is approximately 22 years of service. By promoting only those Asian police officers with many years of service on the police force, the Port Authority limits the upward mobility of Asian police officers in the police force hierarchy. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
122. Despite the fact that Plaintiffs Christian Eng and Milton Fong were promoted after the EEOC Charge, the Port Authority included their promotions in statistics provided to the EEOC on January 24, 2002 in order to mislead the EEOC and hide the Port Authority's unlawful discriminatory practices.
123. Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, Wai Moy, George Martinez, and Stanley Chin were not promoted to Sergeant in 2001. Each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy and Stanley Chin was equally or more qualified for promotion than at least one of the 16 non-Asian police officers who were promoted to Sergeant in 2001: Raymond Bryan, Thomas M. Marten, Jr., Joseph A. Poland, Jr., Pedro Batista, Jr., Christopher C. Bergmann, Kevin W. Cottrell, Robert Greff, Michael T. Lawz, Lawrence G. Oberhofer, Brian Toohey, Lorenzo P. Tyner, Stephen G. Butler, Eugene J. Dubelbeiss, Michael H. Edwards, William Finnie and Richard M. Munnelly.
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124. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy and Stanley Chin would have been promoted to Sergeant by 2001.
125. The promotion of less qualified non-Asian police officers in 2001 in lieu of promoting each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, Wai Moy, George Martinez, and Stanley Chin was a direct result of discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
126. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 2001 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
127. In 2002, nine police officers were promoted to Sergeant from the 1999 List. None of the Asian police officers on the 1999 List was promoted in 2002.
128. Each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy and Stanley Chin was equally or more qualified for promotion than at least one of the nine non-Asian police officers who were promoted to Sergeant in 2002 from the 1999 List: John O'Donnell, Jose Delgado, John Gayson, Raymond Garland, Vernon Johnson, Peter Johnson, Robert Calia, John Frank and Norma Hardy.
129. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy and Stanley Chin would have been promoted to Sergeant by 2002.
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130. The promotion of less qualified non-Asian police officers in 2002 in lieu of promoting each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, George Martinez, Wai Moy and Stanley Chin was a direct result of discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
131. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 2002 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
132. The 1999 List expired on August 10, 2002. 133. Only two Asian police officers on the 1999 List were promoted during the three year lifespan of the list. 2002 Test 134. A Sergeant's examination was administered in April 2002 (the "2002 Test"). The test consisted of a written portion only. 135. Nicholas Yum took the 2002 Test and passed with a score of 88%. 136. Alan Lew took and passed the 2002 Test. 137. Howard Chin took and passed the 2002 Test. 138. David Lim took the 2002 Test and passed with a score of 81 %. 139. Wai Moy took the 2002 Test and passed with a score of 66%. 140. Stanley Chin took the 2002 Test and passed with a score of 90%. 141. George Martinez took the 2002 Test and passed with a score of 93%. 142. Sanrit Booncome took the 2002 Test and passed with a score of 88%.
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143. Michael Chung took the 2002 Test and passed with a score of 81%. The 2002 List
144. Police officers who passed the 2002 Examination were placed on a list of officers eligible for promotion to Sergeant (the "2002 List").
145. There were at least 16 Asian police officers on the 2002 List including Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Sanrit Booncome and Michael Chung.
146. The 2002 List became active on or about August 12,2002. 147. In 2002, three police officers were promoted to Sergeant from the 2002 List. None of the Asian police officers on the 2002 List was promoted in 2002. 148. Each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Sanrit Booncome and Michael Chung was equally or more qualified for promotion than at least one of the three non-Asian police officers who were promoted to Sergeant in 2002 from the 2002 List: George Lorenz, Sean Horan and Derrick Sims. 149. As of 2002, Alan Lew had served as a police officer with the Port Authority for 15 years, had received numerous commendations and awards and had a perfect attendance record with no sick days taken. 150. As of 2002, Nicholas Yum had served as a police officer with the Port Authority for nine years, had received numerous commendations and awards and had a perfect attendance record with no sick days taken.
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151. As of 2002, Howard Chin had served as a police officer with the Port Authority for 15 years, had received numerous commendations and awards and had an excellent attendance record.
152. As of 2002, David Lim had served as a police officer with the Port Authority for 22 years, had received numerous commendations and awards and had an excellent attendance record.
153. As of 2002, George Martinez had served as a police officer with the Port Authority for nine years, had graduated first in his Police Recruit Academy Class (an honor which gave him seniority over his classmates) and had an excellent attendance record.
154. As of 2002, Wai Moy had served as a police officer with the PortAuthority for nine years, had received numerous commendations and awards and had an excellent attendance record.
155. As of 2002, Stanley Chin had served as a police officer with the Port Authority for 14 years, had received numerous commendations and awards and had an excellent attendance record.
156. As of 2002, Sanrit Booncome had served as a police officer with the Port Authority for three years, had received numerous commendations and awards and had an excellent attendance record.
157. As of 2002, Michael Chung had served as a police officer with the Port Authority for four years, had received numerous commendations and awards and had an excellent attendance record.
158. hi 2003, 38 police officers were promoted to Sergeant from the 2002 List. Plaintiff Stanley Chin was the only Asian police officer on the 2002 List who was promoted to
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Sergeant in 2003. Plaintiff Stanley Chin had served 13 years on the job at the time of his promotion.
159. Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung were not promoted to Sergeant in 2003.
160. Each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung was equally or more qualified for promotion than at least one of the 37 non-Asian police officers who were promoted to Sergeant in 2003: Richard Aylmer, Michael Brown, Donald Burns, John Durham, Frank Farfalla, John Farrell, Daniel Francis, Louie Koumoutsos, Nicholas Kowana, Aaron Greenstein, Gary Friggith, James Hall, Nathaniel Harris, Thomas Hering, John Mattiace, Anthony Morris, Mario Petruzziello, Wayne Picone, William Preyer, Nadine Rhem, Josephy Scarano, Kevin Capozzi, Mariella Coleman, John Ferrigno, Stephen Grossi, Kelly Hennessy, Peter Hernandez, Thomas Hoey, Kathleen Jones, Susan Keane, Thomas Kennedy, George Latimer, John McClave, William Savarese, Robert Schmidt, Tracey Vetter and Narize West.
161. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung would have been promoted to Sergeant by 2003.
162. The promotion of less qualified non-Asian police officers in 2003 in lieu of promoting each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung was a direct result of discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally
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discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
163. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 2003 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
164. In 2004, four police officers were promoted to Sergeant from the 2002 List. None of the Asian police officers on the 2002 List was promoted in 2004.
165. Each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung was equally or more qualified for promotion than at least one of the four non-Asian police officers who were promoted to Sergeant in 2004: Scott Glazer, Robert Lipari, Edward McQuade and William Moran.
166. But for the unlawful discriminatory conduct of the Port Authority, Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung would have been promoted to Sergeant by 2004.
167. The promotion of less qualified non-Asian police officers in 2004 in lieu of promoting each of Plaintiffs Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Sanrit Booncome and Michael Chung was a direct result of discrimination based upon race and ethnicity. Through this practice, the Port Authority intentionally discriminated against Asian police officers and/or adopted promotion criteria which had a disparate and adverse impact on Asian police officers.
168. The Port Authority's failure to promote qualified Asian police officers to Sergeant in 2004 also denied those police officers future advancement opportunities to higher ranks in the police force hierarchy.
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169. The 2002 List is expected to expire in summer 2005.
EEOC Determination 170. On or about August 29, 2003, the EEOC issued its Determination of the
matters raised in the January 31, 2001 EEOC Charge ("EEOC Determination"). A true and
correct copy of the August 29, 2003 EEOC Determination is attached hereto as Exhibit 2.
171. In the EEOC Determination, the EEOC found that "there is reasonable cause
to believe [the Port Authority] has violated Title VII of the Civil Rights Act of 1964, as
amended". The EEOC ruled that:
• "Examination of the totality of the documentary and testimonial evidence reveals that highly qualified Asian police officers have repeatedly, over the years, been passed over for numerous promotions to the positions of sergeant."
• "The record has demonstrated that historically, Asian candidates were systemically and unlawfully screened out during the oral examination portion of the sergeant selection process."
• "In the recent sergeant selection process, the record supports the Society's allegation that unwarranted minor charges were deliberately brought against the eligible Asian officers on the promotion eligible list in order to deny them promotion consideration during the time the charges were pending."
• "[The Port Authority's] intent of discrimination is borne out by the records that there was not even one Asian in any supervisory position at the time this charge was filed."
• "The evidence shows that only after the filing of this charge that two Asian police officers were promoted to Sergeant from the recent eligible list."
• "Likewise, the evidence establishes a pattern of discrimination against Asians on training and special assignment opportunities leading to promotion to detectives."
• The Port Authority's behavior "may be construed to be retaliatory, having occurred after an Asian officer disregarded a directive not to file an internal complaint alleging ethnic slurs by another officer."
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172. In its August 29,2003 Determination, the EEOC invited the Port Authority and AJS to join with it in a collective effort toward a just resolution of the matter.
173. In September 2003, AJS made several proposals to the Port Authority in an effort obtain a just resolution to the issues in the EEOC Charge. The Port Authority did not respond to the proposals.
174. In late September 2003, the AJS was informed by the EEOC that all efforts to engage the Port Authority in discussions had failed.
175. On September 26, 2003, the EEOC determined that efforts to conciliate the charge were unsuccessful and forwarded the case to the United States Department of Justice.
176. On January 25,2005, the United States Department of Justice notified AJS of its right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, within 90 days. Plaintiff Christian Eng
177. Notwithstanding Plaintiff Christian Eng's exemplary record, superior qualifications and long service as a police officer with the Port Authority since 1977, he was repeatedly denied promotion to Sergeant and was not promoted to Sergeant until December 2001.
178. But for Defendant's unlawful discriminatory practices, Plaintiff Christian Eng would have received a promotion to the rank of Sergeant by 1998.
179. Because Plaintiff Christian Eng was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Nicholas Yum
180. Notwithstanding Plaintiff Nicholas Yum's exemplary record, superior qualifications and service as a police officer with the Port Authority since 1993, he has been
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repeatedly denied special details, preferred assignments, detective status and promotion to Sergeant.
181. But for Defendant's unlawful discriminatory practices, Plaintiff Nicholas Yum would have received special details, preferred assignments and detective status by 1996 and would have been promoted to Sergeant by 1999.
182. Because Plaintiff Nicholas Yum was not promoted to Sergeant by 1999, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Alan Lew
183. Notwithstanding Plaintiff Alan Lew's exemplary record, superior qualifications and long service as a police officer with the Port Authority since 1987, he has been repeatedly denied special details, preferred assignments, detective status and promotion to Sergeant. Alan Lew was not designated as a detective until November 2003 and has not been promoted to Sergeant.
184. But for Defendant's unlawful discriminatory practice, Plaintiff Alan Lew would have received special details, preferred assignments and detective status by 1996 and would have been promoted to Sergeant by 1999.
185. Because Plaintiff Alan Lew was not promoted to Sergeant by 1999, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Howard Chin
186. Notwithstanding Plaintiff Howard Chin's exemplary record, superior qualifications and long service as a police officer with the Port Authority since 1987, he was repeatedly denied special details and preferred assignments until 2001, and has been denied detective status and promotion to Sergeant.
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187. But for Defendant's unlawful discriminatory practice, Plaintiff Howard Chin would have received detective status by 1996 and would have been promoted to Sergeant by 1998.
188. Because Plaintiff Howard Chin was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff David Lim
189. Notwithstanding Plaintiff David Lim's exemplary record, superior qualifications and long service as a police officer with the Port Authority since 1980, he has been repeatedly denied special details, preferred assignments, detective status and promotion to Sergeant.
190. But for Defendant's unlawful discriminatory practices, Plaintiff David Lim would have received special details, preferred assignments and detective status by 1996 and would have been promoted to Sergeant by 1998.
191. Because Plaintiff David Lim was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff George Martinez
192. Notwithstanding Plaintiff George Martinez's exemplary record, superior qualification and service as a police officer with the Port Authority since 1993, he has been repeatedly denied special details, preferred assignments, detective status and promotion to Sergeant.
193. But for Defendant's unlawful discriminatory practices, Plaintiff George Martinez would have received special details, preferred assignments and detective status by 1996 and would have been promoted to Sergeant by 1998.
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194. Because Plaintiff George Martinez was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Wai Mov
195. Notwithstanding Plaintiff Wai Moy's exemplary record, superior qualification and service as a police officer with the Port Authority since 1993, he has been repeatedly denied special details, preferred assignments, detective status and promotion to Sergeant.
196. But for Defendant's unlawful discriminatory practices, Plaintiff Wai Moy would have received special details, preferred assignments and detective status by 1996 and would have been promoted to Sergeant by 1998.
197. Because Plaintiff Wai Moy was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Stanley Chin
198. Notwithstanding Plaintiff Stanley Chin's exemplary record, superior qualification and long service as a police officer with the Port Authority since 1988, he was repeatedly denied special details, preferred assignments, detective status and promotion to Sergeant, and was not promoted to Sergeant until 2003.
199. But for Defendant's unlawful discriminatory practices, Plaintiff Stanley Chin would have received special details, preferred assignments and detective status by 1996 and would have been promoted to Sergeant by 1998.
200. Because Plaintiff Stanley Chin was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Milton Fong
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201. Notwithstanding Plaintiff Milton Pong's exemplary record, superior qualification and long service as a police officer with the Port Authority since 1985, he was repeatedly denied detective status and promotion to Sergeant, and was not promoted to Sergeant until December 2001.
202. But for Defendant's unlawful discriminatory practices, Plaintiff Milton Fong would have received detective status by 1996 and would have been promoted to Sergeant by 1998.
203. Because Plaintiff Milton Fong was not promoted to Sergeant by 1998, he was also deprived of advancement opportunities to higher ranks starting in that year. Plaintiff Richard Wong
204. Notwithstanding Plaintiff Richard Wong's exemplary record, superior qualification and service as a police officer with the Port Authority since 1983, he has been repeatedly denied special details, preferred assignments and detective status.
205. But for Defendant's unlawful discriminatory practices, Plaintiff Richard Wong would have received special details, preferred assignments and detective status by 1996. Plaintiff Sanrit Booncome
206. Notwithstanding Plaintiff Sanrit Booncome's exemplary record, superior qualifications and service as a police officer with the Port Authority since 1999, he has been repeatedly denied detective status and promotion to Sergeant.
207. But for Defendant's unlawful discriminatory practices, Plaintiff Sanrit Booncome would have received detective status by 2001 and would have been promoted to Sergeant by 2002.
208. Because Plaintiff Sanrit Booncome was not promoted to Sergeant by 2002, he was also deprived of advancement opportunities to higher ranks starting in that year.
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Plaintiff Michael Chung 209. Notwithstanding Plaintiff Michael Chung's exemplary record, superior
qualifications and service as a police officer with the Port Authority since 1998, he has been repeatedly denied promotion to Sergeant.
210. But for Defendant's unlawful discriminatory practices, Plaintiff Michael Chung would have received detective status by 2001 and would have been promoted to Sergeant by 2002.
211. Because Plaintiff Michael Chung was not promoted to Sergeant by 2002, he was also deprived of advancement opportunities to higher ranks starting in that year.
COUNT I VIOLATION OF 42 U.S.C. §2000(e) (TITLE VII) 212. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 211 above. 213. The Plaintiffs are of Asian or Pacific Islander origin or descent and, accordingly, are members of a protected class based on race and ethnicity. 214. Each Plaintiff s job performance was satisfactory or better at all times. 215. Each Plaintiff was and continues to be entitled to advancement opportunities and job promotions including, but not limited to, special details, preferred assignments, detective status and/or promotion to Sergeant. 216. The Port Authority denied and continues to deny Asian police officers special details, preferred assignments, detective status and promotions to Sergeant on the basis of race or ethnicity. 217. The Port Authority intentionally by-passed and continues to by-pass Asian police officers for special details, preferred assignments, detective status and promotion to
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Sergeant in favor of non-Asian police officers with less seniority and lesser or inferior qualifications.
218. The Port Authority intentionally subjected and continues to subject Asian police offers to disciplinary charges without factual basis and to more frequent and more severe disciplinary action in respect of minor infractions than was received by non-Asians in respect of the same or similar infractions.
219. The Port Authority maintained and continues to maintain a racially hostile environment which condones derogatory remarks, racial slurs, prejudice and discriminatory treatment.
220. The Port Authority retaliated against and continues to retaliate against Asian police officers who complain about derogatory remarks, racial slurs, prejudice and discriminatory treatment.
221. The Port Authority has intentionally discriminated and continues to intentionally discriminate against each Plaintiff, and has participated and continues to engage in a pattern and practice of intentional discrimination and disparate treatment against Asian police officers.
222. The employment practices of the Port Authority have had a disparate and adverse impact on Asian police officers.
223. As a result of the foregoing, the Port Authority has violated and continues to violate provisions of Title VII of the 1964 Civil Rights Act, as amended. 42 U.S.C. § 2000(e).
224. As a result of the foregoing, the Plaintiffs have suffered and continue to suffer significant financial and emotional damage including but not limited to lost income,
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diminished prospective earnings, loss of benefits, loss of prestige, humiliation, embarrassment, emotional pain and other distress.
COUNT II VIOLATION OF 42 U.S.C. § 1981 225. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 224 above. 226. The Plaintiffs are of Asian or Pacific Islander origin or descent and, accordingly, are members of a protected class based on race and ethnicity. 227. Each Plaintiffs job performance was satisfactory or better at all times. 228. Each Plaintiff was and continues to be entitled to advancement opportunities and job promotions including, but not limited to, special details, preferred assignments, detective status and/or promotion to Sergeant. 229. The Port Authority denied and continues to deny Asian police officers special details, preferred assignments, detective status and promotions to Sergeant on the basis of race or ethnicity. 230. The Port Authority intentionally by-passed and continues to by-pass Asian police officers for special details, preferred assignments, detective status and promotion to Sergeant in favor of non-Asian police officers with less seniority and lesser or inferior qualifications. 231. The Port Authority intentionally subjected and continues to subject Asian police offers to disciplinary charges without factual basis and to more frequent and more severe disciplinary action in respect of minor infractions than was received by non-Asians in respect of the same or similar infractions.
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232. The Port Authority maintained and continues to maintain a racially hostile environment which condones derogatory remarks, racial slurs, prejudice and discriminatory treatment.
233. The Port Authority retaliated against and continues to retaliate against Asian police officers who complain about derogatory remarks, racial slurs, prejudice and discriminatory treatment.
234. The Port Authority has intentionally discriminated and continues to intentionally discriminate against each Plaintiff, and has participated and continues to engage in a pattern and practice of intentional discrimination and disparate treatment against Asian police officers.
235. Through the above-mentioned activities, the Port Authority has denied Plaintiffs the right to make and enforce contracts, as the term "make and enforce contracts" is defined by 42 U.S.C. § 1981. The harassment, intimidation, retaliation, denial of opportunity, and other differential treatment experienced by Plaintiffs are the direct result of discrimination by the Port Authority based upon race or ethnicity.
236. As a result of the foregoing, the Port Authority has violated and continues to violate 42 U.S.C. § 1981, as amended.
237. As a result of the foregoing, the Plaintiffs have suffered and continue to suffer significant financial and emotional damage including but not limited to lost income, diminished prospective earnings, loss of benefits, loss of prestige, humiliation, embarrassment, emotional pain and other distress.
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COUNT III VIOLATION OF 42 U.S.C. § 1983 238. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 237 above. 239. The Plaintiffs are of Asian or Pacific Islander origin or descent and, accordingly, are members of a protected class based on race and ethnicity. 240. Each Plaintiffs job performance was satisfactory or better at all times. 241. Each Plaintiff was and continues to be entitled to advancement opportunities and job promotions including, but not limited to, special details, preferred assignments, detective status and/or promotion to Sergeant. 242. The Port Authority denied and continues to deny Asian police officers special details, preferred assignments, detective status and promotions to Sergeant on the basis of race or ethnicity. 243. The Port Authority intentionally by-passed and continues to by-pass Asian police officers for special details, preferred assignments, detective status and promotion to Sergeant in favor of non-Asian police officers with less seniority and lesser or inferior qualifications. 244. The Port Authority intentionally subjected and continues to subject Asian police offers to disciplinary charges without factual basis and to more frequent and more severe disciplinary action in respect of minor infractions than was received by non-Asians in respect of the same or similar infractions. 245. The Port Authority maintained and continues to maintain a racially hostile environment which condones derogatory remarks, racial slurs, prejudice and discriminatory treatment.
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246. The Port Authority retaliated against and continues to retaliate against Asian police officers who complain about derogatory remarks, racial slurs, prejudice and discriminatory treatment.
247. The Port Authority has intentionally discriminated and continues to intentionally discriminate against each Plaintiff, and has participated and continues to engage in a pattern and practice of intentional discrimination and disparate treatment against Asian police officers.
248. The Port Authority acts under the color of state law. 249. The Port Authority has violated, and continues to violate, federal law, including the Fourteenth Amendment to the United States Constitution. 250. As a result of the foregoing, the Port Authority has violated and continues to violate 42 U.S.C. § 1983, as amended. 251. As a result of the foregoing, the Plaintiffs have suffered and continue to suffer significant financial and emotional damage including but not limited to lost income, diminished prospective earnings, loss of benefits, loss of prestige, humiliation, embarrassment, emotional pain and other distress.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor and against Defendant as follows: (a) for compensatory damages and back pay including but not limited to lost
income, lost pension, diminished prospective earnings, loss of benefits, loss of prestige, humiliation, embarrassment, emotional pain and other distress, in an amount to be proven at trial; (b) for a declaration that Defendant's conduct is a violation of the statutes alleged herein;
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(c) for injunctive relief requiring Defendant to promote Plaintiffs to the positions to which they are entitled with retroactive seniority and grade;
(d) for injunctive relief prohibiting Defendant from continuing its discriminatory practices and retaliatory treatment against the Plaintiffs;
(e) for costs including attorneys' fees, and interest including pre- and postjudgment interest; and
(f) for such other and further relief as this Court deems proper.
Dated: New York, New York April 15, 2005
CRAVATH, SWAINE & MOORE LLP
by.
RobertHxg|ron (RB-3765) Karen R. King (KK-1413) Eric S. Olney (EO-7324)
Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212)474-1000
ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
Kenneth Kimerling (KK-5762) 99 Hudson Street New York, NY 10013 (212) 966-5932
Counsel for The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Christian Eng, Nicholas Yum, Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome and Michael Chung
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10-1904-cv (L) Chin v. Port Auth. of N.Y. & N.J.

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: ______________

N.Y.S.D. Case # 05cv3835(MGC)

United States Court of Appeals
FOR THE SECOND CIRCUIT

August Term 2011

(Argued: October 17, 2011

Decided: July 10, 2012)

Nos. 10-1904-cv(L), 10-2031-cv(XAP) _____________________________________

HOWARD CHIN, RICHARD WONG, SANRIT BOONCOME, MICHAEL CHUNG, Plaintiffs-Appellees–Cross-Appellants,

THE PORT AUTHORITY POLICE ASIAN JADE SOCIETY OF NEW YORK & NEW JERSEY INC., CHRISTIAN ENG, NICHOLAS YUM, ALAN LEW, DAVID LIM, GEORGE
MARTINEZ, STANLEY CHIN, MILTON FONG,
Plaintiffs-Appellees,

-v.-

THE PORT AUTHORITY OF NEW YORK & NEW JERSEY,
Defendant-Appellant–Cross-Appellee. _____________________________________

Before:

MCLAUGHLIN, CABRANES, and LIVINGSTON, Circuit Judges.

Defendant-appellant the Port Authority of New York and New Jersey, Inc. (“Port Authority”) and plaintiff-appellants Howard Chin, Richard Wong, Sanrit Booncome, and Michael Chung appeal from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman
Cedarbaum, Judge) holding, after a jury trial, that the Port Authority violated Title VII of the Civil Rights Act of 1964 by failing to promote seven plaintiffs, and awarding plaintiffs-appellees Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong back pay, compensatory damages, and equitable relief. We conclude that the pattern-orpractice method of proving liability was not available to plaintiffs in this private, nonclass action and so REVERSE as to the submission of this theory of liability to the jury. We also REVERSE with respect to the district court’s determination

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that pursuant to the plaintiffs’ disparate impact theory, the “continuing violation” doctrine permitted the award of damages and equitable relief in connection with conduct predating the statute of limitations. We therefore VACATE the back pay awards to Eng, Lew, Stanley Chin, and Fong; VACATE the jury’s compensatory damage awards with respect to Eng, Yum, Lew, Lim, Martinez, Stanley Chin, and Fong; VACATE the retroactive promotion of Lew; VACATE the salary and pension adjustments for Lew, Stanley Chin, and Fong; and REMAND to the district court for a new trial on damages as to these plaintiffs and for reconsideration of the equitable relief afforded to them to the extent such relief was premised on failures to promote occurring outside the statute of limitations. With respect to all other issues raised by the parties on appeal, we AFFIRM.
KAREN R. KING (Susanna M. Buergel, on the briefs), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for PlaintiffsAppellees–Cross-Appellants and PlaintiffsAppellees.
KATHLEEN GILL MILLER (Milton H. Pachter & James M. Begley, on the briefs), Port Authority of New York and New Jersey, New York, New York, for Defendant-Appellant–Cross-Appellee.
LIVINGSTON, Circuit Judge:
Plaintiffs-appellees, eleven Asian Americans currently or formerly
employed as police officers by the Port Authority of New York and New Jersey
(“Port Authority”), sued the Port Authority under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., alleging that they were passed over for
promotions because of their race. The plaintiffs asserted three theories of
liability for discrimination: individual disparate treatment, pattern-or-practice
disparate treatment, and disparate impact. After a nine-day trial, a unanimous
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jury found the Port Authority liable for discrimination against seven of the plaintiffs under all three theories and awarded back pay and compensatory damages to each of those seven plaintiffs. The district court (Miriam Goldman Cedarbaum, Judge) also granted equitable relief to certain of the prevailing plaintiffs in the form of retroactive promotions, seniority benefits, and salary and pension adjustments corresponding with the hypothetical promotion dates that the jury apparently selected as a basis for calculating these plaintiffs’ back pay awards.
On appeal, the Port Authority argues: (1) that evidence predating the onset of the statute of limitations should not have been admitted; (2) that the evidence was insufficient to support the jury’s verdict with respect to each of the plaintiffs’ theories; and (3) that the damages and equitable relief were premised on time-barred claims and were otherwise excessive. With regard to the plaintiffs’ individual disparate treatment allegations, we hold that the district court properly admitted background evidence predating the onset of the limitations period and that there was sufficient evidence for a reasonable juror to conclude that the Port Authority discriminated against the seven prevailing plaintiffs within the limitations period. The district court erred, however, in: (1) submitting the pattern-or-practice disparate treatment theory to the jury in this private, nonclass action; and (2) concluding that the “continuing violation”
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doctrine applied to the plaintiffs’ disparate impact theory so that the jury could award back pay and compensatory damages for harms predating the onset of the statute of limitations. We therefore vacate the back pay for four of the plaintiffs, whose awards correspond with hypothetical promotion dates beyond the limitations period, as well as the injunctive relief for three of the same plaintiffs, and we also vacate the award of compensatory damages for all seven prevailing plaintiffs. We remand for a new trial on damages as to all seven prevailing plaintiffs and for reconsideration of equitable relief to the extent such relief was premised on failures to promote occurring outside the limitations period.
The four plaintiffs who did not prevail at trial cross-appeal, arguing that the district court erred by excluding expert testimony from an industrial psychologist. One of these plaintiffs, cross-appellant Howard Chin, further argues that the district court erred in denying the plaintiffs’ motion for sanctions in the form of an adverse inference instruction due to the Port Authority’s destruction of promotion records. Finding no abuse of discretion in the district court’s determinations as to these matters, we affirm.
BACKGROUND The Port Authority is a bi-state transportation agency whose facilities are policed by its Public Safety Department. The eleven plaintiffs-appellees in this case are Asian Americans who were employed by that department as police
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officers. Christian Eng was hired in 1977, David Lim in 1980, Richard Wong in 1983, Milton Fong in 1985, Howard Chin and Alan Lew in 1987, Stanley Chin in 1988, George Martinez and Nicholas Yum in 1993, and Michael Chung and Sanrit Booncome in 1999. All of the plaintiffs were members of the Port Authority Police Asian Jade Society of New York & New Jersey Inc. (“Asian Jade Society”), a nonprofit organization comprised of Port Authority police officers of Asian or Pacific Islander origin, whose stated goal is to “promot[e] understanding, friendship and cooperation among members of the Port Authority police department.”
I. The Port Authority Police Department’s Promotion Process During the period relevant to this case, entry-level police officers in the Port Authority’s police department could be promoted to the rank of Sergeant, the first level in a hierarchy of supervisory positions (followed by Lieutenant, Captain, Inspector, Chief, and finally Superintendent of Police). To become eligible for promotion to Sergeant, a police officer was required (among other requirements) to pass an examination, which would place him on an “eligibility list” for a period of time. When such a list expired, the officer would have to pass the examination again to be placed on the new list. Three lists were in effect during the period relevant to this case: the 1996 List, the 1999 List, and the
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2002 List.1 These lists were “horizontal,” which meant that the lists did not rank the officers, but merely established eligibility for promotion.
Each Port Authority facility’s commanding officer (generally a Captain) was periodically asked to recommend eligible officers for promotion, at their discretion. The Port Authority did not dictate any criteria for recommendation. Moreover, commanding officers were free to make recommendation decisions themselves, solicit input from the police officers’ direct supervisors (generally Sergeants and Lieutenants), or delegate the responsibility entirely to the direct supervisors. A promotion folder was prepared for each recommended officer, which included a performance evaluation by a supervisor, a photograph of the officer, and his record of absences, commendations, awards, and disciplinary history.
Officers recommended in this way were typically considered by the Chiefs’ Board, in which the Chiefs would collectively decide which officers to recommend to the Superintendent. The Chiefs’ Board did not operate under any written
1 The 1996 List was in effect from August 1996 through August 1999, and included 178 officers, 7 of whom were Asian. Twenty-three officers were promoted from the 1996 List, none of whom was Asian. The 1999 List was in effect from August 1999 through August 2002, and included 220 officers, 10 of whom were Asian. Fiftyfive officers were promoted from the 1999 List, 2 of whom were Asian (both of whom were promoted in December 2001). The 2002 List was in effect from August 2002 through the date the complaint was filed (April 15, 2005), and included 352 officers, 16 of whom were Asian. As of April 15, 2005, when the complaint in this case was filed, 45 officers had been promoted from the 2002 List, 1 of whom was Asian.
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guidelines, and from 1996 through September 2001, took no minutes or notes. Each Chief would vote regarding each recommended officer, and any officer who received a majority of votes from the Chiefs’ Board would then be recommended to the Superintendent. This step in the process was not always necessary to promotion, however; for example, Acting Superintendent Joseph Morris did not use the Chiefs’ Board at all during his tenure from September 2001 through April 2002.
The ultimate decision to promote an officer to Sergeant belonged solely to the Superintendent. In fact, the Superintendent occasionally promoted officers whom the Chiefs’ Board had declined to recommend ahead of those recommended by the Board.
As of January 31, 2001, no Asian American had ever been promoted to Sergeant.
II. Procedural History On January 31, 2001, the Asian Jade Society filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on behalf of its members, claiming that the Port Authority had denied Asian American police officers promotions because of their race. On August 29, 2003, the EEOC determined that there was reasonable cause to believe the Port Authority had violated Title VII, and on January 25, 2005, the Department of
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Justice issued a right-to-sue letter to the Asian Jade Society.2 The eleven plaintiffs in this case filed suit on April 15, 2005, alleging that the Port Authority had discriminated against Asian Americans in making promotions to Sergeant.
During discovery, the plaintiffs learned that the Port Authority had not implemented a document retention policy and that, as a result, at least thirtytwo promotion folders used to make promotion decisions between August 1999 and August 2002 had been destroyed. The plaintiffs moved for sanctions, seeking an adverse inference against the Port Authority for spoliation. The district court denied the motion, reasoning that the plaintiffs had ample alternative evidence regarding the relative qualifications of the plaintiffs and that the Port Authority’s destruction of the documents was “negligent, but not grossly so.” Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J. (Port Auth. I), 601 F. Supp. 2d 566, 570 (S.D.N.Y. 2009).
On the eve of trial, the district court granted the Port Authority’s motion to exclude testimony from one of the plaintiffs’ expert witnesses: Dr. Kathleen Lundquist, an industrial psychologist who specializes in analyzing the reliability
2 Ordinarily, a “right to sue” letter must be issued by the EEOC. However, where the respondent to a Title VII discrimination charge is a governmental agency and the EEOC has not dismissed the charge, the Attorney General is responsible for issuing the right-to-sue letter. See 29 C.F.R. § 1601.28(d).
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and validity of employee-selection procedures. Dr. Lundquist had prepared a report opining on the effectiveness of the Port Authority’s promotion process, on whether it included safeguards to prevent bias and discrimination, and on the comparative qualifications of the plaintiffs relative to the qualifications of the officers who had been promoted. Citing Rule 702 of the Federal Rules of Evidence,3 the district court concluded that Dr. Lundquist’s testimony “would not assist the trier of fact” and was therefore excluded.
The nine-day trial began on March 11, 2009, and included testimony from twenty-two fact witnesses and four expert witnesses. All eleven of the plaintiffs testified regarding their personal backgrounds, education, experiences as police officers, attendance and disciplinary records, awards and commendations, and performance evaluations. Six Chiefs, one former Superintendent, the Superintendent at the time of trial, and three other Port Authority managers testified regarding the Port Authority’s promotion procedure. Each side also presented a statistical expert and a damages expert.
3 Federal Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
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Most relevant to this appeal, the plaintiffs’ statistical expert, Dr. Christopher Cavanagh, presented two analyses that, in his view, demonstrated a high probability that Asian Americans had been discriminated against in the Port Authority’s promotion process. In his first study, Cavanagh compared the percentage of white police officers who held a supervisory position (out of all white police officers) with the percentage of Asian Americans who held a supervisory position (out of all Asian American police officers) from 1996 through 2004. For each year, he used a Fisher Exact Test to calculate the likelihood that the difference between Asian American and white representation at the supervisory level (as compared to the representation of these groups at the nonsupervisory level) was due to chance.4 From 1996 through 2000, the likelihood that the disparities were due to chance was about two percent or less; from 2001 through 2004, the likelihoods that the disparities were due to chance were between about five and eleven percent.
Cavanagh’s second analysis compared the promotion rate for whites who were on the eligible lists to the promotion rate for Asian Americans who were on the eligible lists over the period from August 1996 through January 31, 2001 (the date on which the EEOC charge was filed). Of the 259 white officers on the
4 The Fisher Exact Test is a statistical significance test named for its author, R.A. Fisher. See generally R.A. Fisher, On the Interpretation of [Chi-Squared] from Contingency Tables, and the Calculation of P, 85 J. Royal Stat. Soc’y 87 (1922).
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lists over this period, 36 were promoted; of the 12 Asian Americans on the lists, none were promoted. Using the Fisher Exact Test, Cavanagh calculated that the likelihood this disparity would occur due to chance was about thirteen percent.
The district court instructed the jury regarding three theories of discrimination: (1) disparate impact; (2) pattern-or-practice disparate treatment; and (3) individual disparate treatment. After two-and-a-half days of deliberation, the jury returned a unanimous verdict, finding that seven of the eleven plaintiffs—Christian Eng, Milton Fong, Alan Lew, Stanley Chin, Nicholas Yum, George Martinez, and David Lim—had proven all three of their theories of liability, and awarding more than $1.6 million in total to those seven plaintiffs. The back pay awards corresponded precisely to certain hypothetical promotion dates suggested by the plaintiffs’ damages expert.5
On the plaintiffs’ motion, the district court also granted the seven prevailing plaintiffs equitable relief, including salary adjustments for pension purposes for Milton Fong, Stanley Chin, Alan Lew, George Martinez, Nicholas
5 Four plaintiffs’ back pay awards corresponded to hypothetical promotion dates of October 31, 1999: Christian Eng was awarded $35,445 in back pay and $250,000 in compensatory damages; Milton Fong was awarded $83,924 in back pay and $100,000 in compensatory damages; Alan Lew was awarded $189,859 in back pay and $75,000 in compensatory damages; and Stanley Chin was awarded $116,636 in back pay and $100,000 in compensatory damages. Three plaintiffs’ back pay awards corresponded to hypothetical promotion dates of September 30, 2002: Nicholas Yum was awarded $141,663 in back pay and $15,000 in compensatory damages; George Martinez was awarded $145,861 in back pay and $15,000 in compensatory damages; and David Lim was awarded $119,234 in back pay and $250,000 in compensatory damages.
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Yum, and David Lim, and retroactive promotions for Alan Lew, George Martinez, and Nicholas Yum. The hypothetical dates the district court used were October 31, 1999, for Fong, Chin, and Lew, and September 30, 2002, for Martinez, Yum, and Lim—corresponding with the hypothetical dates the jury apparently used as a basis for computing back pay. The court also ordered the Port Authority to take certain specific actions to prevent future violations.
The Port Authority filed a motion pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure to set aside the jury’s verdict or, alternatively, for a new trial and for remittitur. The Port Authority argued that: (1) the district court improperly admitted evidence pertaining to events prior to the onset of the statute of limitations period; (2) the jury was improperly instructed to consider events outside the limitations period for purposes of establishing liability; (3) there was insufficient evidence to find the Port Authority liable under any of the plaintiffs’ three theories; (4) the jury instructions were erroneous and confusing with respect to the statute of limitations; and (5) the jury’s damages included time-barred claims and were otherwise excessive.
The district court denied the Port Authority’s motion in its entirety. See Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J. (Port Auth. II), 681 F. Supp. 2d 456 (S.D.N.Y. 2010). As pertinent to this appeal, the district court first held that background evidence from beyond the
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statute of limitations is admissible in support of a timely claim. See id. at 462. Next, the court concluded that the plaintiffs’ individual disparate treatment claims were premised on “discrete acts” and thus that the Port Authority could be liable only for those acts within the statute of limitations. See id at 463. The court concluded that the plaintiffs’ disparate impact and pattern-or-practice disparate treatment theories of liability, however, were premised on the existence of an “ongoing discriminatory policy,” and thus were subject to the “continuing violations” doctrine, so that the plaintiffs could recover for untimely discrete acts so long as they were the product of a discriminatory policy that continued into the statute-of-limitations period. See id. at 463–66. Third, the district court held that although Cavanagh’s statistical evidence did not reach the conventional five-percent level of statistical significance, see Smith v. Xerox Corp., 196 F.3d 358, 366 (2d Cir. 1999) (noting that statistical significance at the five-percent level is generally “sufficient to warrant an inference of discrimination”), the jury had before it other evidence of discrimination sufficient to find for the plaintiffs on each of the theories of liability. See Port Auth. II, 681 F. Supp. 2d at 468–69. Finally, the district court declined to remit the jury’s compensatory damages awards because other judges had upheld similar awards and because the awards did not “shock the judicial conscience.” Id. at 470.
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The Port Authority appeals, and argues before this Court that it is entitled to a new trial with respect to the seven prevailing plaintiffs because: (1) evidence predating the onset of the limitations period should not have been admitted; (2) the evidence at trial was insufficient to support the jury’s verdict with respect to each of the plaintiffs’ theories; and (3) the damages and equitable relief are premised on time-barred claims and are otherwise excessive.
The four plaintiffs who did not prevail at trial—Howard Chin, Richard Wong, Sanrit Booncome, and Michael Chung—cross-appeal, and argue here that they are entitled to a new trial because the district court erred by excluding Lundquist’s testimony. Howard Chin further argues that he is entitled to a new trial because the district court improperly denied the plaintiffs an adverse inference instruction despite the Port Authority’s destruction of promotion records.
DISCUSSION The plaintiffs argue that they are entitled to damages for injuries that occurred before the onset of the statute of limitations period because the “continuing violations” doctrine applies to two of their three theories of liability—pattern-or-practice disparate treatment and disparate impact. We dispose of half of this argument at the outset of this opinion by holding that no such pattern-or-practice theory of liability is available to the private, non-class
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plaintiffs in this case. We next consider and affirm the district court’s judgment with respect to the plaintiffs’ two remaining theories of liability—individual disparate treatment and disparate impact—by holding that background evidence from outside the limitations period was admissible and that the evidence presented at trial was sufficient to sustain the jury’s findings of liability on both theories. We then conclude, however, that the “continuing violations” doctrine does not apply to either theory in this case, and therefore vacate and remand for reconsideration of the damages and equitable relief granted by the district court to the prevailing plaintiffs whose awards correspond (or may correspond) to hypothetical promotion dates preceding the onset of the limitations period. Finally, we consider the plaintiffs’ cross-appeal, and hold that the district court did not abuse its discretion by excluding Lundquist’s testimony or by denying the plaintiffs an adverse inference instruction.
“A motion for a new trial should be granted when, in the opinion of the district court, ‘the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.’” Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (quoting and altering Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)). “The district court’s denial of a Rule 59 motion for a new trial is reviewed for abuse of discretion.” Manganiello v. City of New York, 612 F.3d 149, 165 (2d Cir. 2010). “A district court has abused its discretion if it has
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(1) ‘based its ruling on an erroneous view of the law,’ (2) made ‘a clearly erroneous assessment of the evidence,’ or (3) ‘rendered a decision that cannot be located within the range of permissible decisions.’” Id. (quoting Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)). We review the denial of a motion for judgment as a matter of law de novo. Lore v. City of Syracuse, 670 F.3d 127, 150 (2d Cir. 2012). “[W]hether conducting review de novo or under a less sweeping standard, we must disregard all errors and defects . . . . if there is no likelihood that the error or defect affected the outcome of the case.” Id. (internal quotation marks omitted).
As a prerequisite to filing suit under Title VII, a private plaintiff must first file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Both parties agree that in this case, the plaintiffs’ charge was due “within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Accordingly, because the EEOC charge in this case was filed on January 31, 2001, only an unlawful employment practice that “occurred” after August 2, 2000, may give rise to liability.6
6 Although the district court and the parties appear to agree that 180 days prior to January 31, 2001 is August 3, 2000, by this Court’s calculation the correct date is August 4, 2000, which would mean that only an unlawful employment practice that occurred after August 3, 2000 may give rise to liability. But because the one-day difference is not material to this appeal, we refer to August 2, 2000, as the relevant date throughout this opinion. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a
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I. The Pattern-or-Practice Method of Proof As an initial matter, we address the question whether the method of proof described in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1997), and known as the “Teamsters” or “pattern-or-practice” method, was available to the nonclass private plaintiffs in this case.7 We conclude that it was not and that the judgment as to pattern or practice must for this reason be reversed. We emphasize, however, that evidence that the Port Authority engaged in a pattern or practice of discrimination—in the ordinary sense of those words, rather than in the technical sense describing a theory of liability for discrimination—remains relevant in assessing whether the plaintiffs proved discrimination using the individual disparate treatment and disparate impact methods of proof. The phrase “pattern or practice” appears only once in Title VII—in a section that authorizes the government to pursue injunctive relief against an employer “engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by” the statute. 42 U.S.C. § 2000e-6. Notwithstanding
statute of limitations, is subject to waiver, estoppel, and equitable tolling.”). 7 The parties did not address this issue before the district court and do not raise
it on appeal. Nonetheless, we are not bound by parties’ effective stipulations on questions of law, see U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–48 (1993), and in this case we exercise our discretion to consider this issue in order to provide guidance in a complicated area.
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the Supreme Court’s recognition in Teamsters that this language “was not intended as a term of art, and the words reflect only their usual meaning,” Teamsters, 431 U.S. at 336 n.16, the phrase is often used in a technical sense to refer either to this unique form of liability available in government actions under § 2000e-6, see, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 67–68 n.19, 70, 80 (1984), or to the burden-shifting framework set out in Teamsters and available both to the government in § 2000e-6 litigation and to class-action plaintiffs in private actions alleging discrimination, see, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2552 n.7 (2011).
We begin with § 2000e-6. The building blocks of liability pursuant to this provision—which provides for prospective injunctive relief where the government establishes that an employer is engaged in a “pattern or practice of resistance to the full enjoyment” of rights secured by Title VII—differ from those that provide the foundation for typical, private-party Title VII litigation. To establish an employer’s liability for discrimination in violation of Title VII, a private plaintiff ordinarily must show that an employer took an adverse employment action against him or her because of his or her race, or on account of another protected ground. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009). In § 2000e-6 litigation, by contrast, the government need not
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demonstrate specific losses to specific individuals to establish that injunctive relief is appropriate. The government must “prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts”: it must prove that unlawful discrimination “was the company’s standard operating procedure.” Teamsters, 431 U.S. at 336. Once established, however, “a court’s finding of a pattern or practice justifies an award of prospective relief” even absent proof of losses to specific individuals. Id. at 361.
The parties here use the term “pattern or practice” to refer not to an element of a § 2000e-6 claim, but to the method of proof that the Supreme Court endorsed in Teamsters for the adjudication of such claims. This method of proof, however, originated in the class action context, in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). The Supreme Court in Franks determined that once the private plaintiffs in the class action there “carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the [employer] . . . , the burden [was] upon [the employer] to prove that individuals who reappl[ied] were not in fact victims of previous hiring discrimination.” Id. at 772. The Court in Franks used the phrase “pattern and practice” to refer to the common question of fact (whether the employer had engaged in a practice of discriminatory hiring) to be litigated by class plaintiffs, and apparently viewed its holding as no more than an application of McDonnell
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Douglas’ burden-shifting framework in the class-action context. See Franks, 424
U.S. at 773 (citing McDonnell Douglas, 411 U.S. 792).
The Teamsters Court thereafter determined that the Franks burden-
shifting framework for certain class actions should also apply to government
“pattern or practice” suits brought under § 2000e-6:
Although not all class actions will necessarily follow the Franks model, the nature of a [§ 2000e-6] pattern-or-practice suit brings it squarely within our holding in Franks. The plaintiff in a pattern-or-practice action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. At the initial, “liability” stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. . . .
. . . . When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. The petitioners’ contention in this case is that if the Government has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, “remedial” stage of trial. That basic contention was rejected in the Franks case. . . . The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the
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individual applicant was denied an employment opportunity for lawful reasons. Teamsters, 431 U.S. at 360–62 (internal citation and footnotes omitted). Since Teamsters, this burden-shifting framework has been known as the “Teamsters method of proof” or the “pattern-or-practice method.” See, e.g., Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001) (“A pattern or practice case is not a separate and free-standing cause of action . . . , but is really merely another method by which disparate treatment can be shown.” (internal quotation marks omitted)); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760 (4th Cir. 1998) (“The courts of appeals have . . . permitted pattern or practice class action suits using the Teamsters method of proof.”), vacated on other grounds, 527 U.S. 1031 (1999).8 In sum, unlike in a typical individual disparate treatment suit, “a plaintiff’s burden under the pattern-or-practice method requires the plaintiff to prove only the existence of a discriminatory policy rather than all elements of a prima facie case of discrimination”—but “under the pattern-or-practice method, only prospective relief [is] available, unless the
8 Although the Teamsters framework is not a freestanding cause of action, courts—including the Supreme Court—sometimes loosely refer to the Teamsters method of proof as a “pattern-or-practice claim.” See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 n.9 (2002) (“We have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.”).
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plaintiffs offer[] additional proof.” Semsroth v. City of Wichita, 304 F. App’x 707, 716 (10th Cir. 2008) (describing the reasoning in Lowery, 158 F.3d at 761).
Permitting private plaintiffs to use the pattern-or-practice method of proof outside the class action context would require us to extend this method beyond its current application. This we decline to do. Such an extension would allow nonclass private plaintiffs who have shown a pattern or practice of discrimination (but have not made out a disparate impact claim) to shift the burden to employers to prove that they did not discriminate against a particular individual. But this would conflict with the Supreme Court’s oft-repeated holding in the context of disparate-treatment, private nonclass litigation that “[t]he ultimate burden of pursuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To be sure, proof that an employer engaged in a pattern or practice of discrimination may be of substantial help in demonstrating an employer’s liability in the individual case. But such proof cannot relieve the plaintiff of the need to establish each element of his or her claim.
We note that the district court in this case did not instruct the jury that a finding of a pattern or practice of discrimination shifted the burden of persuasion. Rather, the verdict sheet instructed the jury that each individual
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plaintiff was required to prove by a preponderance of the evidence that he was discriminated against as part of the pattern or practice. This instruction only underscores, however, why there was no need for the jury to make a specific finding regarding a pattern or practice of discrimination in this private, nonclass suit, as opposed to determining directly whether each individual plaintiff had been intentionally discriminated against. Where, as here, there are only individual, nonclass disparate-treatment claims, a district court need not and should not instruct the jury that a common pattern of discrimination is an element of liability.
For these reasons, all of our sister circuits to consider the question have held that the pattern-or-practice method of proof is not available to private, nonclass plaintiffs. See Semsroth v. City of Wichita, 304 F. App’x 707, 715 (10th Cir. 2008); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 967–69 (11th Cir. 2008); Bacon v. Honda of Am. Mfg., 370 F.3d 565, 575 (6th Cir. 2004); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355–56 (5th Cir. 2001); Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999); see also Schuler v. PricewaterhouseCoopers, LLP, 739 F. Supp. 2d 1, 6 n.2 (D.D.C. 2010) (“Courts in every other Circuit that has touched on this issue have indicated that an individual plaintiff cannot maintain a pattern and
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practice claim.”) (collecting cases); 1 Lex Larson et al., Employment Discrimination § 8.01[3], at 8-13 (2d ed. 2011) (“[C]ourts have refused to permit individuals to use the pattern or practice proof structure for claims of individual discrimination . . . .”). We have suggested as much, albeit in dicta. See Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998).
For the foregoing reasons, we now hold that the pattern-or-practice method of proof is not available to nonclass, private plaintiffs in cases such as the one before us. Evidence of an employer’s general practice of discrimination may be highly relevant to an individual disparate treatment or to a disparate impact claim. Outside the class context, however, private plaintiffs may not invoke the Teamsters method of proof as an independent and distinct method of establishing liability. The district court erred in submitting this method of proof to the jury as a basis on which it could hold the Port Authority liable.
II. Admissibility and Sufficiency of Evidence A. Admissibility of Evidence from Outside the Limitations Period
Turning to the plaintiffs’ individual disparate treatment and disparate impact claims, the Port Authority argues that the district court improperly admitted evidence of events prior to August 2, 2000, for purposes of liability and damages. It is well established, however, that so long as at least “one alleged adverse employment action . . . occurred within the applicable filing period[,] . . .
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evidence of an earlier alleged retaliatory act may constitute relevant ‘background evidence in support of [that] timely claim.’” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176 (2d Cir. 2005) (quoting and altering Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Such background evidence “may be considered to assess liability on the timely alleged act.” Id. at 177; see also Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (applying this rule in the failure-to-promote context). In particular, we have noted that statistical studies may include data from outside the statute of limitations to prove timely discriminatory acts. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 604 n.5 (2d Cir. 1986).9 Title VII’s statute of limitations therefore did not prohibit admission of the plaintiffs’ evidence of discrimination before August 2, 2000. B. Sufficiency of the Evidence
The Port Authority next argues that the plaintiffs’ evidence of individual disparate treatment and disparate impact was insufficient as a matter of law, and that the district court therefore abused its discretion in declining to set aside the verdict. “In reviewing the sufficiency of the evidence in support of a jury’s
9 To be clear, the district court retains discretion to determine whether evidence predating the onset of the statute of limitations period should be admitted under any applicable rule of evidence. See Jute, 420 F.3d at 177 n.7; Malarkey v. Texaco, Inc., 983 F.2d 1204, 1211 (2d Cir. 1993).
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verdict, we examine the evidence in the light most favorable to the party in whose favor the jury decided, drawing all reasonable inferences in the winning party’s favor.” Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005). We will overturn the verdict here “only if there is ‘such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the [Port Authority] that reasonable and fair minded men could not arrive at a verdict against [the Port Authority].’” Id. at 292 (quoting LeBlancSternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995)) (some internal quotation marks omitted).
With respect to a Title VII individual disparate treatment claim, “[w]hether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148–49 (2000). A plaintiff establishes a prima facie case by showing “(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action
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occurred under circumstances giving rise to an inference of discriminatory intent.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). An employer may then rebut this prima facie case by offering a legitimate, nondiscriminatory business reason for its conduct. See id. A plaintiff ultimately prevails if he proves that the defendant’s employment decision was based in whole or in part on intentional discrimination. See id.
To prevail under the disparate impact theory of liability, a plaintiff must show that the employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This requires a plaintiff to (1) “identify a specific employment practice” or policy, Malave v. Potter, 320 F.3d 321, 326 (2d Cir. 2003); “(2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001). “The statistics must reveal that the disparity is substantial or significant,” and “must be of a kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity.” Id. (internal quotation marks omitted). To rebut a plaintiff’s statistics, a defendant may introduce evidence showing that “either no statistically significant disparity in fact exists or the challenged practice did not cause the disparity.” Id. at 161.
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If the trier of fact determines that the plaintiffs have established a disparate impact violation of Title VII, each person seeking individual relief such as back pay and compensatory damages “need only show that he or she suffered an adverse employment decision ‘and therefore was a potential victim of the proved discrimination.’” Id. at 159 (quoting Teamsters, 431 U.S. at 362) (alteration omitted); see id. at 161–62. After such a showing, the employer bears the burden of persuading the trier of fact that its decision was made for lawful reasons; otherwise, the employee is entitled to individualized relief, which may include back pay, front pay, and compensatory damages for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3); see Robinson, 267 F.3d at 159–60.
The Port Authority challenges three aspects of the plaintiffs’ evidence. First, the Port Authority argues that the plaintiffs’ statistical evidence was fatally flawed and that without it the plaintiffs lack sufficient evidence to prove a disparate impact. Second, the Port Authority contends that the plaintiffs did not show that the multiple-step promotion process was “not capable of separation for analysis,” 42 U.S.C. § 2000e-2(k)(1)(B)(i), and therefore the plaintiffs were required but failed to identify the specific promotion practice that caused a disparate impact. Third, the Port Authority contends that the plaintiffs’ anecdotal evidence of intentional discrimination consists of nothing
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more than personal affronts outside of the promotion context, and therefore that the plaintiffs’ individual disparate treatment claims must fail for lack of evidence that any discrimination was intentional.
We disagree with all three of the Port Authority’s arguments and hold that the plaintiffs introduced sufficient evidence to support the jury’s verdict as to plaintiffs’ disparate impact and individual disparate treatment claims.
1. Statistical Evidence The Port Authority argues first that the statistical evidence presented by Dr. Cavanagh, the plaintiffs’ expert witness, was insufficient to prove their disparate impact claim because Dr. Cavanagh’s analyses impermissibly (1) relied on data predating the onset of the statute of limitations, (2) did not focus on the relevant pool of candidates eligible for promotion, and (3) failed to establish statistical significance. We address each of these contentions in turn. First, the Port Authority is incorrect in asserting that Dr. Cavanagh’s statistics were flawed because they relied in part on data predating the onset of the statute of limitations period. In Bazemore v. Friday, 478 U.S. 385 (1986), the Supreme Court stated that evidence predating the 1972 enactment of Title VII was not only admissible but, “to the extent that proof is required to establish discrimination with respect to salary disparities created after 1972, evidence of pre-Act discrimination is quite probative.” Id. at 402 n.13 (internal citation
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omitted). Moreover, we have made clear that a district court errs by “downgrading” statistical studies on the ground that they “relied in part on pre–statute of limitations data.” Rossini, 798 F.2d at 604 n.5.
The Port Authority next argues that Dr. Cavanagh’s year-end demographic statistics were not sufficient to show a disparate impact because they simply compared the percentage of Asian Americans in supervisory positions with the percentage of Asian American officers, rather than looking to the relevant pool for promotion (i.e., the percentage of Asian Americans on the eligible lists). On this point, we agree.
As we have said, “plaintiffs must identify the correct population for analysis. In the typical disparate impact case the proper population for analysis is the applicant pool or the eligible labor pool.” Smith v. Xerox Corp., 196 F.3d 358, 368 (2d Cir. 1999) (emphasis added), overruled on other grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 140 (2d Cir. 2006). “In the context of promotions, we have held that the appropriate comparison is customarily between the [racial] composition of candidates seeking to be promoted and the [racial] composition of those actually promoted,” at least so long as the relevant data are available. Malave, 320 F.3d at 326 (emphasis added). The plaintiffs in this case did not allege that the eligibility test was discriminatory; rather, they alleged that discrimination entered the process at
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the discretionary stage after the eligible lists had already been drawn up. The relevant population for analysis, then, includes only those officers on the eligible lists. Dr. Cavanagh’s year-end demographic analyses include all officers, and therefore do not meet the statistical standards prescribed by law.
Putting aside these demographic analyses, then, we are left with Dr. Cavanagh’s statistical analysis comparing the percentage of Asian Americans on the eligibility lists with the percentage of Asian Americans promoted from 1996 to January 31, 2001 (the date that the EEOC complaint was filed). None of the 12 Asians on the eligible lists were promoted during this period, in contrast to 36 out of 259 whites; according to Dr. Cavanagh’s calculations, this difference would occur due to chance “a bit under 13 percent” of the time. The Port Authority argues that a due-to-chance figure of 13 percent is not statistically significant because “it is generally accepted that statistical significance is at a 5% level or less.”
It is true that “we have . . . looked to whether the plaintiff can show a statistically significant disparity of two standard deviations,” which (in a normal distribution) requires statistical significance at approximately the 5-percent level. Xerox, 196 F.3d at 365. However, we have also said that “[t]here is no minimum statistical threshold requiring a mandatory finding that a plaintiff has demonstrated a violation of Title VII. Courts should take a ‘case-by-case
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approach’ in judging the significance or substantiality of disparities, one that considers not only statistics but also all the surrounding facts and circumstances.” Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d Cir. 1991) (quoting Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365, 372–73 (2d Cir. 1991)); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3 (1988) (“[W]e have not suggested that any particular number of ‘standard deviations’ can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination. . . .”); accord Xerox, 196 F.3d at 366.
In many (perhaps most) cases, if there is a 13-percent likelihood that a disparity resulted from chance, it will not qualify as statistically significant. In this case, the plaintiffs offered other evidence that reasonable jurors could have relied upon to find that an 87-percent likelihood that the disparity was not due to chance qualified as significant. First, no Asian Americans were promoted during the relevant period; requiring a statistical showing of 95-percent confidence would make it mathematically impossible to rely upon statistics in a case like this one, in which the relevant population included so few Asian Americans. See Waisome, 948 F.2d at 1379 (“[T]he lack of statistical significance in the ultimate promotion reflects only the small sample size.”). Second, as the Port Authority acknowledges, the plaintiffs presented a substantial amount of
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evidence that reasonable jurors could have relied on to conclude that the plaintiffs were more qualified than some of the white officers who were promoted, including comparing length of service, attendance records, and disciplinary histories. In the context of this case, it would not be unreasonable for a juror to find Dr. Cavanagh’s statistics significant despite only being significant at the 13-percent level.
Finally, despite the Port Authority’s argument to the contrary, Dr. Cavanagh’s choice to limit his time frame to the period from 1996 through January 2001 (rather than, as defendant’s expert did, extending the analysis into 2005) was not unreasonable. The plaintiffs’ theory was that the Port Authority’s failures to promote them caused a disparate impact through 2001, when the EEOC charge in this case was filed. Dr. Cavanagh’s selected time frame was directly relevant to answering this question.
2. Specific Employment Practice The Port Authority next argues that there was insufficient evidence to support the plaintiffs’ disparate impact claim on the ground that plaintiffs either failed to identify a specific promotion practice resulting in a disparate impact on Asian Americans or failed to show that the Port Authority’s promotion process could not be separated into component parts for analysis. According to the Port Authority, the promotion process involved three separate
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steps—recommendation by a commanding officer, approval by the Chiefs’ Board, and selection by the Superintendent—and these steps were wholly capable of being separated from each other for the purpose of statistical analysis. For the following reasons, we disagree.
To make out a disparate impact claim (or, more generally, to rely on statistical evidence), a plaintiff must identify a specific discriminatory employment practice. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2555–56 (2011) (“[R]espondents have identified no ‘specific employment practice’ . . . . Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.”); Watson, 487 U.S. at 994 (“Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”). Title VII, however, expressly provides that “if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). Whether a particular decisionmaking process is capable of separation for analysis largely turns on the details of the specific process and its implementation in a given
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case. See McClain v. Lufkin Indus., 519 F.3d 264, 278 (5th Cir. 2008); cf. Meachem v. Knolls Atomic Power Lab., 381 F.3d 56, 74 (2d Cir. 2004), vacated on other grounds, 544 U.S. 957 (2005).
Here, the evidence amply demonstrated that recommendation by the Chief’s Board could not be separated from the rest of the promotion process for the purpose of statistical analysis. Such recommendation was neither necessary nor sufficient for promotion, and the weight it carried in the process was both unclear and variable. For example, two candidates who were not recommended by the Chiefs’ Board in January 2003 were nonetheless promoted by the Superintendent later that month, even as others who received unanimous recommendations from the Chiefs were not promoted for a year, or two years. Another Superintendent did not bother to use the Chiefs’ Board at all. Recommendation by the Chiefs’ Board was therefore not capable of separation from the rest of the promotion process.
The commanding officers’ recommendations were similarly inseparable from the Superintendent’s ultimate decisions regarding promotions because they played an indeterminate role in the integrated promotion process. For example, former Chief Thomas Farrell testified that he occasionally would ask for performance evaluations of everyone on the eligible list—not just those who were recommended by commanding officers—while other testimony indicated that
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commanding officers’ recommendations were often important in the promotion process. We therefore agree with the district court that these “steps” in the promotion process were not capable of separation for analysis. See Port Auth. II, 681 F. Supp. 2d at 464. Accordingly, the decisionmaking process involved in promotions to Sergeant was properly analyzed as one employment practice.
3. Proof of Intent The Port Authority next argues that it was entitled to judgment as a matter of law on the plaintiffs’ individual disparate treatment claims because many of the plaintiffs’ anecdotes of intentional discrimination were merely “situations involving personal affront as opposed to examples of overt racism,” and moreover, that “[n]one of the specific instances relied upon by plaintiffs took place in the context of promotion.” Appellants’ Reply Br. at 17. Even if we were to accept the Port Authority’s characterization of these accounts of discrimination, however, the plaintiffs also provided evidence that they were better qualified for promotion than several white officers who were promoted instead. In conjunction with the plaintiffs’ statistical evidence, we conclude that this anecdotal evidence of intent was sufficient for a reasonable jury to conclude that the Port Authority intentionally discriminated against the plaintiffs by failing to promote them.
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III. Damages and the Statute of Limitations The Port Authority argues, finally, that it was improperly assessed back pay and compensatory damages for harms that were suffered by the plaintiffs prior to August 2, 2000. The district court disagreed because it believed that the “continuing violation” doctrine applied in the context of plaintiffs’ disparate impact allegations so that damages could properly be awarded for failures to promote that occurred outside the limitations period.10 We agree with the Port Authority and hold that the continuing violation doctrine does not apply to plaintiffs’ disparate impact proof. As a result, we further conclude: (1) that the back pay awards to Eng, Lew, Stanley Chin, and Fong must be vacated, as well as the retroactive promotion of Lew and the salary and pension adjustments for Lew, Stanley Chin, and Fong; and (2) that the jury’s compensatory damage awards with regard to all seven prevailing plaintiffs must also be vacated. We remand to the district court for a new trial on damages and for reconsideration of equitable relief to the extent such relief was premised on failures to promote occurring outside the limitations period.
10 The district court reached a similar conclusion with regard to plaintiffs’ pattern-or-practice allegations but, for the reasons already stated, see supra Part I, we have concluded that this theory of liability was not properly submitted to the jury.
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A. The Continuing Violation Doctrine It has been the law of this Circuit that “[u]nder the continuing violation
exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” Lambert v. Genesse Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated on other grounds by Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329–30 (2011); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004); Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Cornwall v. Robinson, 23 F.3d 694, 703–04 (2d Cir. 1994). Applying this principle, the district court in this case concluded that the Port Authority could be liable, and assessed damages, for discriminatory failures to promote outside the statute of limitations because, pursuant to the plaintiffs’ disparate impact theory, those failures to promote were the product of an ongoing discriminatory policy that continued after August 2, 2000, thus triggering the continuing-violation doctrine. See Port Auth. II, 681 F. Supp. 2d at 463.
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The Port Authority argues that the continuing-violation doctrine does not apply in this case because (1) the plaintiffs did not identify a specific, ongoing discriminatory policy or custom; and (2) under the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), failures to promote are “discrete acts” of discrimination and thus do not implicate the continuing-violation doctrine. Because we agree with the Port Authority’s second argument, we do not address the first.
In Morgan, the Supreme Court unanimously rejected the Ninth Circuit’s view that a series or pattern of “related discrete acts” could constitute one continuous “unlawful employment practice” for purposes of the statute of limitations. Id. at 111. Rather, the Court held that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113. By a divided vote, however, the Morgan Court distinguished such discrete acts from an allegedly hostile work environment, which it held could be a continuing violation because its “very nature involves repeated conduct.” Id. at 115. “Such claims are based on the cumulative effect of individual acts,” the Court wrote, noting that “a single act of harassment may not be actionable on its own.” Id.
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The plaintiffs argue that Morgan’s analysis of “discrete acts” cannot apply to disparate impact claims because such claims—like hostile work environment claims—are “necessarily based on the cumulative effect of a particular practice over time.” Appellees’ Br. at 28. It is true that Morgan involved only an individual disparate treatment claim premised on a series of related discrete acts, and therefore did not directly address whether the continuing-violation doctrine applies where an ongoing discriminatory policy results in discrete discriminatory acts both before and after the limitation date. See Morgan, 536 U.S. at 107 (noting in passing that in the Ninth Circuit, pre-Morgan, another type of continuing violation could be established by showing “a systematic policy or practice of discrimination that operated, in part, within the limitations period,” but neither endorsing nor repudiating that category of continuing violations); id. at 115 n.9 (“We have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.”). Morgan’s reasoning, however, demonstrates that a plaintiff may recover for a failure to promote—regardless whether it was caused by an ongoing discriminatory policy—only if he files an EEOC charge within 180 or 300 days of that decision.11
11 As Morgan notes, the 300-day limitations period, inapplicable here, applies in those states that have “an entity with the authority to grant or seek relief with respect to the alleged unlawful practice” and where an employee initially files a grievance with that entity. 536 U.S. at 109.
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Morgan established that an employer’s failure to promote is by its very nature a discrete act. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify,” the Court wrote. Id. at 114 (emphasis added); see also Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005), abrogated on other grounds by Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Moreover, each discrete act necessarily “constitutes a separate actionable ‘unlawful employment practice,’” Morgan, 536 U.S. at 114—unlike the incidents that comprise a hostile work environment claim, which may not be individually actionable, id. at 115. Both the employer and the aggrieved party may therefore rely on the clear and predictable statute of limitations when contemplating prospective litigation regarding failures to promote or other discrete acts. As Justice Ginsburg has explained:
A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting). Accordingly, under Morgan, every failure to promote is a discrete act that potentially gives rise to a freestanding Title VII claim with its own filing deadline.
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Discrete acts of this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period. This is the conclusion of every circuit to consider the question after Morgan. Each of our sister circuits has held that an allegation of an ongoing discriminatory policy does not extend the statute of limitations where the individual effects of the policy that give rise to the claim are merely discrete acts. See, e.g., Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (“Nor does [the plaintiff’s] allegation of a 20-year ‘pattern or practice’ of discrimination extend the applicable limitations periods.”); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1185–86 (10th Cir. 2003) (holding that claims cannot be premised on an untimely discrete act “even if the discrete act was part of a company-wide or systemic policy”); cf. Tademe v. St. Cloud State Univ., 328 F.3d 982, 988 (8th Cir. 2003) (“Although [the plaintiff] argues that the district court failed to consider that he was asserting a pattern-or-practice of discrimination, Morgan makes clear that the failure to promote, refusal to hire, and termination are generally considered separate violations.”); Lyons v. England, 307 F.3d 1092, 1107 & n.8 (9th Cir. 2002) (holding that an individual plaintiff’s “assertion that this series of discrete acts flows from a company-wide, or systemic, discriminatory practice will not succeed in establishing the employer’s liability for acts occurring outside
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the limitations period,” but distinguishing and declining to address class-wide pattern-or-practice claims).
This conclusion is not altered by the fact that the plaintiffs employ the disparate impact method of proof. To prevail on a disparate impact claim, a plaintiff must “demonstrate[] that a respondent uses a particular employment practice that causes a disparate impact.” 42 U.S.C. § 2000e-2(k)(1)(A)(i) (emphasis added). In Lewis v. City of Chicago, 130 S. Ct. 2191, 2197–99 (2010), the Supreme Court interpreted this language to mean that every “use” of an employment practice that causes a disparate impact is a separate actionable violation of Title VII with its own 180- or 300-day statute-of-limitations clock. See id. at 2197–99. Accordingly, under Lewis and Morgan, each time the Port Authority failed to promote one of the plaintiffs, that plaintiff had 180 days to challenge the decision.
In an attempt to distinguish Morgan, the plaintiffs argue that they “challenge the process by which the Port Authority made promotion decisions, rather than any specific promotion decision.” Appellees’ Br. at 29. But this argument hurts rather than helps them. In Lewis, the Supreme Court considered the case of an allegedly discriminatory examination used by the City of Chicago to make hiring decisions. The examination’s scores and the City’s plan to hire based on certain cutoff scores were announced outside the
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limitations period, but the actual hiring occurred within the limitations period. See Lewis, 130 S. Ct. at 2195–96. The Supreme Court explained that although “[i]t may be true that the City’s . . . decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparateimpact claim[,] [i]f that is so, the City is correct that since no timely charge was filed attacking it, the City is now entitled to treat that past act as lawful.” Id. at 2198–99 (citation and internal quotation marks omitted). If the process by which the Port Authority promoted police officers from its eligibility lists did not materially change within the limitations period, as the plaintiffs claim, then the Port Authority is entitled to treat the process as lawful. See id. at 2199. The process itself therefore cannot be challenged; rather, only specific failures to promote that occurred within the limitations period are actionable. B. Damages & Equitable Relief
The district court properly instructed the jury regarding the statute of limitations for plaintiffs’ individual disparate treatment claims, and the jury indicated on the verdict sheet its express findings that the Port Authority made discriminatory decisions not to promote Eng, Fong, Lew, Stanley Chin, Yum, Martinez, and Lim “after August 2, 2000.” Pursuant to the district court’s conclusion that the continuing violation doctrine was applicable to plaintiffs’ disparate impact proof, however, the jury was permitted to assess damages for
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failures to promote occurring outside the limitations period.12 With this in mind,
we turn to the Port Authority’s claim that the damages and equitable awards
here were premised on time-barred claims and were otherwise excessive.
1. Back Pay
The jury’s back-pay awards correspond precisely to certain calculations of
the plaintiffs’ damages expert, such that both parties and the district court
agreed below that the jury found that four of the prevailing plaintiffs (Eng, Lew,
Stanley Chin, and Fong) would have been promoted on October 31, 1999, and the
other three (Yum, Lim, and Martinez) would have been promoted on September
30, 2002.
12 We note that the jury was not properly instructed regarding the statute of limitations as it applied to the plaintiffs’ disparate impact proof. “To find disparate impact,” the district court instructed the jury, “you are not required to consider whether the Port Authority intended to discriminate, but whether the Port Authority’s promotion practices were the cause of a disparity, if any, after August 2, 2000.” When the jury asked for clarification regarding the timing, the district court told them simply, “There has to be an effect after August 2, 2000.” This phrasing suggests that the jury could find disparate impact liability where the Port Authority used an employment practice only outside the limitations period that resulted in a disparate effect that then passively persisted into the limitations period. Lewis, however, makes clear that a disparate impact claim requires plaintiffs to plead and prove that defendants, within the limitations period, used an employment practice that had a disparate impact. 130 S. Ct. at 2197–99. In other words, the cause—not merely the effect—must occur within the limitations period. The district court’s instruction was therefore erroneous. The Port Authority, however, does not challenge the jury’s liability finding on this basis, but simply the award of damages and equitable relief for harms occurring before August 2, 2000. Accordingly, we deem the error waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
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The Port Authority argues first that the jury could not award back pay to multiple plaintiffs dating back to the same date when fewer than that number of plaintiffs were actually promoted on that date. It points out that there were only three promotions on October 31, 1999, but the jury awarded back pay to four plaintiffs corresponding to a failure to promote on that date. Likewise, there were only two promotions on September 30, 2002, but the jury awarded back pay to three plaintiffs extending back to that date. The Port Authority urges that the back pay awards for this reason “suffer from a fundamental error of law” and must be vacated. Appellants’ Br. at 46.
We disagree. Although in many circumstances an employer may have only a fixed, limited number of possible promotion slots such that relief would be limited accordingly, see Dougherty v. Barry, 869 F.2d 605, 614–15 (D.C. Cir. 1989) (R.B. Ginsburg, J.), that is not the case here. The plaintiffs presented evidence that the Port Authority could and did create new Sergeant-level vacancies. For example, during cross-examination, Chief Farrell conceded that the Superintendent occasionally would not specify the number of new Sergeants he was looking for, and that from time to time the Port Authority created new Sergeant-level vacancies based on staffing needs. A reasonable jury could therefore have concluded that the Port Authority could have promoted three
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officers rather than two on September 30, 2002, and four officers rather than three on October 31, 1999.
Nevertheless, the back pay awards to Christian Eng, Alan Lew, Stanley Chin, and Milton Fong were improper because they were premised on a hypothetical promotion date outside the statute of limitations. As explained earlier, see supra section III.A, the district court should have instructed the jury that the Port Authority could be liable only for discriminatory failures to promote after August 2, 2000, and that individual remedies were limited accordingly. We therefore vacate the back pay awards to these four plaintiffs and remand to the district court for determination of their proper back-pay awards.
2. Compensatory Damages The Port Authority next argues that the jury’s compensatory damages awards were based on discriminatory acts that predated the onset of the statute of limitations period. The plaintiffs do not contest this allegation, but rather embrace it, and defend the awards solely on the basis of the continuing violation theory. See Appellees’ Br. at 48 (“The compensatory damages awards correlate to each Plaintiff’s seniority on the job—and thus, the duration of each Plaintiff’s distress—awarding $250,000 to the two Plaintiffs who each had more than twenty-nine years on the job, $100,000 and $75,000 to the three Plaintiffs who
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had between twenty and twenty-five years on the job, and $15,000 to the two Plaintiffs who had sixteen years on the job.”). “When ‘[i]t is not possible to ascertain what portions of the compensatory and punitive damages awards were attributable’ to claims that were time-barred, the damages awards must be vacated” and remanded for a new trial on damages. Annis v. Cnty. of Westchester, 136 F.3d 239, 248 (2d Cir. 1998) (quoting Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 485 (3d Cir. 1997)). Because the jury may have included time-barred claims with respect to each of the plaintiffs, we vacate all seven prevailing plaintiffs’ compensatory damages awards and remand for a new trial on damages. On remand, the district court should instruct the jury to award damages only for injuries stemming from a discriminatory failure to promote after August 2, 2000.
3. Equitable Relief The Port Authority next argues that the district court’s equitable relief of retroactive promotions and salary and pension adjustments should have been granted only pro rata under the theory that only a limited number of promotions were available on each day. See Dougherty, 869 F.2d at 614–15. But this argument fails with respect to equitable relief for the same reason it fails regarding back pay, see supra section III.B.1; on the evidence presented, a
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reasonable jury could have concluded that the Port Authority could promote more officers on a given date than it chose to.
The equitable relief should not, however, have extended retroactive promotions or salary or pension adjustments beyond the limitations period. The district court’s award of salary and pension adjustments for Milton Fong, Stanley Chin, and Alan Lew, as well as the retroactive promotion of Alan Lew, must be vacated and remanded for reconsideration because the award of such equitable relief was premised on a hypothetical promotion date of October 31, 1999. On remand, the district court should determine the date, after August 2, 2000, that each of these three plaintiffs would have been promoted absent discrimination and may grant appropriate equitable relief accordingly.
IV. Exclusion of Lundquist’s Expert Testimony We now turn to the cross-appeal. The four cross-appealing plaintiffs argue that the district court erred in excluding the expert testimony of Dr. Lundquist, who would have testified that the Port Authority’s promotion procedure was so unstructured and subjective that it fell below professional standards, and who would have compared the qualifications of the plaintiffs with those of the officers who were actually promoted. Expert testimony is admissible if it “(a) will help the trier of fact to understand the evidence or to determine a fact in issue,” so long as “(b) the testimony is based upon sufficient facts or data; (c) the testimony
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is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. A district court’s exclusion of expert testimony is reviewed for abuse of discretion, and “[a] decision to admit or exclude expert scientific testimony is not an abuse of discretion unless it is ‘manifestly erroneous.’” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995)). “Further, an erroneous evidentiary ruling warrants a new trial only when ‘a substantial right of a party is affected,’ as when ‘a jury’s judgment would be swayed in a material fashion by the error.’” Lore v. City of Syracuse, 670 F.3d 127, 155 (2d Cir. 2012) (quoting Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)).
The district court did not abuse its discretion in concluding that it lacked evidence that Dr. Lundquist’s testimony was based on established principles and methods and that, in any event, her testimony would not have provided assistance to the trier of fact beyond that afforded by the arguments of counsel, as required by Rule 702. On appeal, the plaintiffs argue that the district court failed to acknowledge the portion of Dr. Lundquist’s testimony that compared the qualifications of the plaintiffs with those of the white officers who were promoted instead. But Dr. Lundquist’s analysis as to the comparative qualifications of the plaintiffs was both brief and simple, relying mostly on
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various officers’ years of experience, commendations, discipline, and absences. For each of the four plaintiffs who did not prevail, Dr. Lundquist merely summed up their qualifications in a few sentences and then compared each of them to two officers who were promoted instead but whose record suggested that they may have been less qualified. For example, she compared both Michael Chung and Sanrit Booncome to a promoted officer named Gary Griffith, whom she described only as having “sixty-seven absences in 2000 alone.”
The district court did not abuse its discretion in concluding that expert analysis was not required to help the jury understand such evidence. Indeed, the plaintiffs’ attorneys made the same points in argument that were made in Dr. Lundquist’s report. Chung and Booncome’s qualifications were established in detail while they were on the stand, and their attorney brought out Gary Griffith’s relative lack of experience and his significant number of absences through questioning of a former Superintendent. The plaintiffs’ attorneys, moreover, emphasized throughout the trial the relative qualifications of the plaintiffs when compared with officers who were promoted. At the trial’s conclusion, the plaintiffs’ summation detailed the qualifications of each of the plaintiffs in almost exactly the same way as Dr. Lundquist’s testimony would have, including occasionally comparing a plaintiff with someone who had been promoted. The district court therefore did not abuse its discretion in
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determining that Dr. Lundquist’s testimony was not relevant expert testimony that would help the jury understand the facts at issue.
V. Sanctions for Spoliation Finally, cross-appealing plaintiff Howard Chin argues that the district court erred in denying the plaintiffs’ motion requesting an adverse inference instruction due to the Port Authority’s destruction of the promotion folders used to make promotions off of the 1999 eligible list.13 See Port Auth. I, 601 F. Supp. 2d 566 (S.D.N.Y. 2009). The Port Authority does not dispute that, upon receiving notice of the filing of plaintiffs’ EEOC charge in February 2001, it had an obligation to preserve the promotion folders yet failed to do so. It argues, however, that the district court did not abuse its discretion in denying an adverse inference instruction. We agree. “[A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”
13 Howard Chin is the only one of the four cross-appealing plaintiffs who claims to have lost relevant evidence due to the Port Authority’s destruction of the promotion folders.
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Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted). If these elements are established, a district court may, at its discretion, grant an adverse inference jury instruction insofar as such a sanction would “serve[] [the] threefold purpose of (1) deterring parties from destroying evidence; (2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.” Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001). Our review of a district court’s decision on a motion for discovery sanctions is limited to abuse of discretion, which includes errors of law and clearly erroneous assessments of evidence. See Residential Funding Corp., 306 F.3d at 107. “[A]bsent a showing of prejudice, the jury’s verdict should not be disturbed.” Id. at 112.
Howard Chin argues that the Port Authority’s failure even to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007 amounted to gross, rather than simple, negligence. We reject the notion that a failure to institute a “litigation hold” constitutes gross negligence per se. Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 464–65 (S.D.N.Y. 2010). Rather, we agree that “the better approach is to consider [the failure to adopt good preservation practices]
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as one factor” in the determination of whether discovery sanctions should issue. Orbit Comm’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010). Moreover, as the district court recognized, see Port Auth. I, 601 F. Supp. 2d at 570, a finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction. See Residential Funding Corp., 306 F.3d at 109; Byrnie, 243 F.3d at 108. Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were “relevant,” we have repeatedly held that a “case-by-case approach to the failure to produce relevant evidence,” at the discretion of the district court, is appropriate. Residential Funding Corp., 306 F.3d at 108 (quoting Reilly v. Natwest Mkts. Grp., 181 F.3d 253, 267 (2d Cir. 1999)). In this case, the district court concluded that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process and the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted. See Port Auth. I, 601 F. Supp. 2d at 570–71. At trial, Howard Chin was able to establish his service record and honors, and Chief Charles Torres testified that Howard Chin was very smart and a good employee. Under these circumstances, the district court did not abuse its discretion in concluding that an adverse inference instruction was inappropriate.
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CONCLUSION For the foregoing reasons, we affirm the district court’s conclusion that the Port Authority is liable to Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong under both the individual disparate treatment and disparate impact theories. We also affirm the denial of individual relief to Howard Chin, Richard Wong, Sanrit Booncome, and Michael Chung. Because the district court erred in applying the continuingviolation exception to the plaintiffs’ claims, however, we: (1) vacate the jury’s back pay awards with respect to Christian Eng, Alan Lew, Stanley Chin, and Milton Fong; (2) vacate the jury’s compensatory damage awards with respect to Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong; (3) vacate the retroactive promotion of Alan Lew; and (4) vacate the salary and pension adjustments for Alan Lew, Stanley Chin, and Milton Fong. We remand all of these remedies issues to the district court for a new trial solely on damages and for the reconsideration of equitable relief. On remand, individual relief should be awarded only insofar as it corresponds to discriminatory failures to promote committed after August 2, 2000.
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SDNY CM/ECF Version 6.1.1

CLOSED,CASREF,ECF

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:05-cv-03835-MGC

The Port Authority Police Asian Jade Society of New York & New Date Filed: 04/15/2005

Jersey Inc. et al v. The Port Authority of New York and New Jersey Date Terminated: 02/19/2015

Assigned to: Judge Miriam Goldman Cedarbaum

Jury Demand: Defendant

Referred to: Magistrate Judge Debra C. Freeman (Settlement)

Nature of Suit: 442 Civil Rights: Jobs

Case in other court: US Court of Appeals, Second Circuit, 09-

Jurisdiction: Federal Question

04600-cv

Cause: 42:1981 Job Discrimination (Race)

Plaintiff
The Port Authority Police Asian Jade Society of New York & New Jersey Inc.

represented by Kenneth Kimerling Asian American Legal Defense and Education Fund 99 Hudson Street New York, NY 10013 (212) 966-5932 Fax: 212 966 4303 Email: kkimerling@aaldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Baron Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Fax: (212) 474-3700 Email: rbaron@cravath.com TERMINATED: 08/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanna Michele Buergel Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 212-373-3553 Fax: 212-492-0553 Email: sbuergel@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?969887114097144-L_1_0-1

Karen R. King Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212)-373-3784
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Plaintiff Christian Eng

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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Nicholas Yum

Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Alan Lew

Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Baron

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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Howard Chin

Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Lim

Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Baron (See above for address) TERMINATED: 08/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen R. King

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Plaintiff George Martinez
Plaintiff Wai Moy TERMINATED: 07/06/2006
Plaintiff Stanley Chin

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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert H Baron (See above for address) TERMINATED: 08/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Milton Fong

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represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Richard Wong

Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Baron (See above for address) TERMINATED: 08/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sanrit Booncome

Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Baron

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Plaintiff Michael Chung

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(See above for address) TERMINATED: 08/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen R. King (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Kimerling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert H Baron (See above for address) TERMINATED: 08/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susanna Michele Buergel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen R. King (See above for address) ATTORNEY TO BE NOTICED

V. Defendant The Port Authority of New York and New Jersey
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represented by Angel Kelley The Port Authority of New York and New Jersey 225 Park Avenue South - 14th Floor New York, NY 10003 212-435-3436 Fax: 212-435-3834 Email: akelley@panynj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Gill Miller The Port Authority of New York and New Jersey 225 Park Avenue South - 14th Floor
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New York, NY 10003 (212)435-3434 Fax: (212)435-3834 Email: kmiller@panynj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

04/15/2005

1 COMPLAINT against The Port Authority of New York and New Jersey. (Filing Fee $ 250.00, Receipt Number 540805)Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(es, ) Additional attachment(s) added on 4/21/2005 (gf, ). (Entered: 04/19/2005)

04/15/2005

SUMMONS ISSUED as to The Port Authority of New York and New Jersey. (es, ) (Entered: 04/19/2005)

04/15/2005

Magistrate Judge Debra C. Freeman is so designated. (es, ) (Entered: 04/19/2005)

04/15/2005

Case Designated ECF. (es, ) (Entered: 04/19/2005)

04/15/2005

2 RULE 7.1 DISCLOSURE STATEMENT. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Wai Moy, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(es, ) Additional attachment(s) added on 4/21/2005 (gf, ). (Entered: 04/19/2005)

04/27/2005

3 STIPULATION AND ORDER the time for defendant to appear, answer, or otherwise move in this action is extended to 6/6/05. So Ordered. (Signed by Judge Miriam Goldman Cedarbaum on 4/26/05) (jco, ) (Entered: 04/28/2005)

04/27/2005

Set Answer Due Date purs. to 3 Stipulation and Order as to The Port Authority of New York and New Jersey answer due on 6/6/2005. (jco, ) (Entered: 04/28/2005)

06/06/2005

4 ANSWER to Complaint with JURY DEMAND. Document ﬁled by The Port Authority of New York and New Jersey.(Kelley, Angel) (Entered: 06/06/2005)

09/21/2005

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum : Initial Pretrial Conference held on 9/21/2005. Submitted by: Michael P. Ruocco, Courtroom Deputy. (tb, ) (Entered: 09/28/2005)

10/06/2005

5 PRETRIAL ORDER No. 1: parties shall exchange Rule 26(a)(1) disclosures by 10/6/05; parties shall serve initial interrogatories and document requests; parties shall respond to interrogatories and document requests by 11/7/05; parties may begin to conduct fact depositions by 11/15/05; parties shall conclude all fact discovery by 6/30/05; parties shall exhange expert reports 7/31/06; parties shall conclude expert discovery; parties shall conclude expert discovery. (Signed by Judge Miriam Goldman Cedarbaum on 10/6/05) (dle, ) (Entered: 10/07/2005)

10/06/2005

Set Deadlines/Hearings: Discovery due by 8/30/2006. Pretrial Order due by 9/29/2006. (dle, ) (Entered: 10/07/2005)

05/11/2006

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum : Status Conference held on 5/11/2006. (dle, ) (Entered: 05/16/2006)

07/05/2006

6 ORDER that purs. to FRCP 21 Wai Moy be dropped as a party plaintiff in this action, that

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09/28/2006 09/28/2006 12/28/2006 04/26/2007 08/03/2007 10/23/2007
10/25/2007 11/27/2007 12/13/2007 01/18/2008 03/10/2008
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his name be removed from the caption and that the claims asserted by Mr. Moy are dismissed without prejudice and without costs to any party. (Signed by Judge Miriam Goldman Cedarbaum on 7/5/06) (dle, ) (Entered: 07/06/2006)
7 STIPULATION AND ORDER that the end date for all discovery is hereby adjourned to 3/1/07; the parties shall submit a pretrial order by 4/2/07. (Signed by Judge Miriam Goldman Cedarbaum on 9/28/06) (dle, ) (Entered: 09/29/2006)
Set/Reset Deadlines: Discovery due by 3/1/2007. Pretrial Order due by 4/2/2007. (dle, ) (Entered: 09/29/2006)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum : Status Conference held on 12/28/2006. (cd, ) (Entered: 12/29/2006)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum : Status Conference held on 4/26/2007 at 3:42 pm. (mbe) (Entered: 04/27/2007)
8 STIPULATION AND ORDER: All Discovery is adjourned to 8/31/2007. Parties to submit a Pretrial Order by 9/28/2007. (Signed by Judge Miriam Goldman Cedarbaum on 8/2/07) (db) (Entered: 08/06/2007)
9 NOTICE OF APPEARANCE by Karen R. King on behalf of Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum (King, Karen) (Entered: 10/23/2007)
10 NOTICE OF APPEARANCE by Kathleen Gill Miller on behalf of The Port Authority of New York and New Jersey (Miller, Kathleen) (Entered: 10/25/2007)
11 STIPULATION AND ORDER that the end date for expert discovery is hereby adjourned to 12/21/07 and the parties shall submit a pre-trial order by 1/31/08. (Signed by Judge Miriam Goldman Cedarbaum on 11/27/07) (dle) (Entered: 11/28/2007)
MEMORANDUM TO THE DOCKET CLERK: Discovery Hearing. Remark: Discovery deadline is extended to February 29, 2008. Parties to submit Joint Pre-Trial Order by March 28, 2008. (djc) (Entered: 12/17/2007)
12 TRANSCRIPT of proceedings held on 12/13/07 before Judge Miriam Goldman Cedarbaum. (es) (Entered: 01/18/2008)
13 STIPULATION AND ORDER by and between the undersigned counsel for the parties to this action as follows: Defendant shall serve its report on damages by March 28, 2008. The end date for expert discovery is hereby adjourned to April 30, 2008 with respect to rebuttal reports and depositions; The parties shall submit a pre-trial order by May 30, 2008. SO ORDERED ( Service due by 3/28/2008, Deposition due by 4/30/2008, Discovery due by 4/30/2008, Pretrial Order due by 5/30/2008.) (Signed by Judge Miriam Goldman Cedarbaum on 3/10/2008) (jmi) (Entered: 03/11/2008)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Discovery Hearing held on 7/22/2008, ( Pretrial Order due by 12/1/2008. Final Pretrial Conference set for 12/4/2008 at 10:00 AM before Judge Miriam Goldman Cedarbaum. Jury Trial set for 12/8/2008 at 09:30 AM before Judge Miriam Goldman Cedarbaum.). (js) (Entered: 07/30/2008)
14 TRANSCRIPT of proceedings held on 7/22/08 before Judge Miriam Goldman Cedarbaum. (ama) (Entered: 08/05/2008)
15 ORDER FOR WITHDRAWAL PURSUANT TO LOCAL CIVIL RULE 1.4; that Robert H. Baron is given leave of this Court to withdraw from the above-captioned case. (Signed

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09/18/2008

16 MOTION for Partial Summary Judgment. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 09/18/2008)

09/18/2008

17 RULE 56.1 STATEMENT. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 09/18/2008)

09/18/2008

18 DECLARATION of Deon McNeil in Support re: 16 MOTION for Partial Summary Judgment.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Miller, Kathleen) (Entered: 09/18/2008)

09/18/2008

19 MEMORANDUM OF LAW in Support re: 16 MOTION for Partial Summary Judgment.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 09/18/2008)

10/17/2008

20 MEMORANDUM OF LAW in Opposition re: 16 MOTION for Partial Summary Judgment.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/17/2008)

10/17/2008

21 DECLARATION of Karen King in Opposition re: 16 MOTION for Partial Summary Judgment.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit A - H, # 2 Exhibit I (PT 1), # 3 Exhibit I (PT 2))(King, Karen) (Entered: 10/17/2008)

10/17/2008

22 COUNTER STATEMENT TO 17 Rule 56.1 Statement. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/17/2008)

10/31/2008

23 DECLARATION of Deon McNeil in Support re: 16 MOTION for Partial Summary Judgment.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit I)(Miller, Kathleen) (Entered: 10/31/2008)

10/31/2008

24 REPLY MEMORANDUM OF LAW in Support re: 16 MOTION for Partial Summary Judgment.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 10/31/2008)

11/19/2008

25 MOTION for Sanctions Against Defendant for Spoliation. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(King, Karen) (Entered: 11/19/2008)

11/19/2008

26 MEMORANDUM OF LAW in Support re: 25 MOTION for Sanctions Against Defendant for Spoliation.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 11/19/2008)

11/19/2008

27 DECLARATION of Karen R. King in Support re: 25 MOTION for Sanctions Against Defendant for Spoliation.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade

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Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31)(King, Karen) (Entered: 11/19/2008)

11/20/2008

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Oral Argument held on 11/20/2008. Motion denied. See record of proceedings for oral opinion. The parties are directed to submit the Joint Pretrial Order on February 20, 2009 at noon. The Final Pretrial Conference is scheduled for 3/4/2009 at 10:00 AM and the Jury Trial is scheduled to begin on 3/10/2009 at 09:30 AM before Judge Miriam Goldman Cedarbaum. (mro) (Entered: 11/21/2008)

11/21/2008

28 ORDER denying 16 Motion for Partial Summary Judgment. ENDORSEMENT: Motion Denied. For oral opinion, see record of proceedings. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 11/20/08) (db) (Entered: 11/21/2008)

12/08/2008

29 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - MOTION for Extension of Time to File Response/Reply (As Stipulated and Date For Oral Argument To Be Determined By The Court)(STIPULATION). Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) Modiﬁed on 12/9/2008 (KA). (Entered: 12/08/2008)

12/08/2008

30 TRANSCRIPT of proceedings held on 11/20/08 before Judge Miriam Goldman Cedarbaum. (ama) (Entered: 12/09/2008)

12/09/2008

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Kathleen Gill Miller to E-MAIL pdf copy to judgments@nysd.uscourts.gov Document No. 29 Stipulation for Extension of time. This document is not ﬁled via ECF. (KA) (Entered: 12/09/2008)

12/10/2008

31 STIPULATION; that the defendant's time to answer plaintiffs' spoilation motion is hereby extended up to and including 1/16/2009 and plaintiffs' time to reply is extended to 2/2/2009. Oral argument will be heard on 2/9/2009 at 11 A.M. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 12/9/2008) (tve) Modiﬁed on 1/15/2009 (tve). (Entered: 12/10/2008)

01/16/2009

32 DECLARATION of Kathleen Gill Miller in Opposition re: 25 MOTION for Sanctions Against Defendant for Spoliation.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Miller, Kathleen) (Entered: 01/16/2009)

01/16/2009

33 MEMORANDUM OF LAW in Opposition re: 25 MOTION for Sanctions Against Defendant for Spoliation.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 01/16/2009)

02/02/2009

34 REPLY MEMORANDUM OF LAW in Support re: 25 MOTION for Sanctions Against Defendant for Spoliation.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 02/02/2009)

02/02/2009

35 DECLARATION of Karen R. King in Support re: 25 MOTION for Sanctions Against Defendant for Spoliation.. Document ﬁled by Alan Lew, Howard Chin, David Lim,

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George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 32, # 2 Exhibit 33, # 3 Exhibit 34, # 4 Exhibit 35)(King, Karen) (Entered: 02/02/2009)

02/10/2009

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Oral Argument held on 2/10/2009. Decision is reserved. (mro) (Entered: 02/19/2009)

02/23/2009

36 ENDORSED LETTER addressed to Judge Miriam Goldman Cedarbaum from Kathleen Gill Miller dated 2/12/09 re: Port Authority requests permission to reargue. ENDORSEMENT: Permission to make untimely motion for reconsideration denied. (Signed by Judge Miriam Goldman Cedarbaum on 2/23/09) (cd) (Entered: 02/23/2009)

02/24/2009

37 TRANSCRIPT of proceedings held on 2/10/09 before Judge Miriam Goldman Cedarbaum. (cd) (Entered: 02/25/2009)

02/26/2009

38 MOTION in Limine with Respect to Defendant's Judicial Admissions. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(King, Karen) (Entered: 02/26/2009)

02/26/2009

39 MEMORANDUM OF LAW in Support re: 38 MOTION in Limine with Respect to Defendant's Judicial Admissions.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 02/26/2009)

02/26/2009

40 DECLARATION of Karen R. King in Support re: 38 MOTION in Limine with Respect to Defendant's Judicial Admissions.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(King, Karen) (Entered: 02/26/2009)

02/26/2009

41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 02/26/2009)

02/26/2009

42 MEMORANDUM OF LAW in Support re: 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 02/26/2009)

02/26/2009

43 DECLARATION of Karen R. King in Support re: 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(King, Karen) (Entered: 02/26/2009)

02/27/2009

44 MOTION in Limine with Respect to Relevant Time Period. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong,

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Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(King, Karen) (Entered: 02/27/2009)

02/27/2009

45 MEMORANDUM OF LAW in Support re: 44 MOTION in Limine with Respect to Relevant Time Period.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 02/27/2009)

02/27/2009

46 DECLARATION of Karen R. King in Support re: 44 MOTION in Limine with Respect to Relevant Time Period.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(King, Karen) (Entered: 02/27/2009)

03/04/2009

47 MEMORANDUM OF LAW in Opposition re: 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 03/04/2009)

03/04/2009

48 NOTICE OF APPEARANCE by Susanna Michele Buergel on behalf of Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum (Buergel, Susanna) (Entered: 03/04/2009)

03/05/2009

49 CROSS MOTION in Limine WITH RESPECT TO THE RELEVANT TIME PERIOD. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 03/05/2009)

03/05/2009

50 AFFIDAVIT of Bert Drakes in Support re: 49 CROSS MOTION in Limine WITH RESPECT TO THE RELEVANT TIME PERIOD.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 03/05/2009)

03/05/2009

51 DECLARATION of Kathleen Gill Miller in Support re: 49 CROSS MOTION in Limine WITH RESPECT TO THE RELEVANT TIME PERIOD.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Miller, Kathleen) (Entered: 03/05/2009)

03/05/2009

52 MEMORANDUM OF LAW in Support re: 49 CROSS MOTION in Limine WITH RESPECT TO THE RELEVANT TIME PERIOD.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 03/05/2009)

03/05/2009

53 MEMORANDUM OPINION AND ORDER #97177: For the reasons set forth in this order, plaintiffs motion is denied. (Signed by Judge Miriam Goldman Cedarbaum on 3/4/09) (mme) Modiﬁed on 3/6/2009 (mro). (Entered: 03/06/2009)

03/09/2009

54 REPLY MEMORANDUM OF LAW in Support re: 44 MOTION in Limine with Respect to Relevant Time Period.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 03/09/2009)

03/09/2009

55 PROPOSED VOIR DIRE QUESTIONS. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 03/09/2009)

03/09/2009 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist. Document ﬁled

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03/09/2009

57 DECLARATION of Kathleen Gill Miller in Support re: 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A - part 1, # 2 Exhibit A - part 2) (Miller, Kathleen) (Entered: 03/09/2009)

03/09/2009

58 MEMORANDUM OF LAW in Support re: 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 03/09/2009)

03/09/2009

59 REPLY MEMORANDUM OF LAW in Support re: 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 03/09/2009)

03/09/2009

60 DECLARATION of Karen R. King in Support re: 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 03/09/2009)

03/10/2009

61 REPLY MEMORANDUM OF LAW in Opposition re: 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng. (King, Karen) (Entered: 03/10/2009)

03/10/2009

62 DECLARATION of Jane O'Brien in Opposition re: 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Errata 2) (King, Karen) (Entered: 03/10/2009)

03/11/2009

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial begun on 3/11/2009. (tro) (Entered: 03/25/2009)

03/11/2009

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial adjourned to 3/24/2009 at 10:00 AM before Judge Miriam Goldman Cedarbaum. (tro) (Entered: 03/25/2009)

03/12/2009

63 ORDER It is hereby ordered that Karen R. King, lead attorney for the Plaintiffs, and Kathleen G. Miller, lead attorney for the Defendant, shall be permitted to bring a Blackberry (or cell phone) into the courthouse from March 11, 2009 to March 24, 2009. (Signed by Judge Miriam Goldman Cedarbaum on 3/12/09) (mme) Modiﬁed on 4/1/2009 (mme). (Entered: 03/13/2009)

03/12/2009

66 TRANSCRIPT of proceedings held on 2/10/09 before Judge Miriam Goldman Cedarbaum. (ja) (Entered: 03/20/2009)

03/12/2009

67 TRANSCRIPT of proceedings held on 3/04/09 before Judge Miriam Goldman Cedarbaum. (ama) (Entered: 03/21/2009)

03/12/2009

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial

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held on 3/12/2009. (tro) (Entered: 03/25/2009)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial held on 3/13/2009. (tro) (Entered: 03/25/2009)
64 PROPOSED JURY INSTRUCTIONS. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 03/16/2009)
65 NOTICE of Defendants's Proposed Jury's Verdict sheet. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 03/16/2009)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial held on 3/16/2009. (tro) (Entered: 03/25/2009)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial held on 3/17/2009. (tro) (Entered: 03/25/2009)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial held on 3/18/2009. (tro) (Entered: 03/25/2009)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial held on 3/19/2009. (tro) (Entered: 03/25/2009)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Jury Trial held on 3/20/2009. (tro) (Entered: 03/25/2009)
68 MEMORANDUM OF LAW in Opposition TO PLAINTIFFS MOTION TO AMEND THE JURY CHARGES. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 03/24/2009)
69 ENDORSED LETTER addressed to Judge Miriam Goldman Cedarbaum from Kathleen Gill Miller dated 3/27/2009 re: Requesting that the Port Authority be given an additional two weeks beyond the 10 days provided in Rule59 (b). ENDORSEMENT: Request granted. Submission due no later than April 23, 2009. So ordered. (Signed by Judge Miriam Goldman Cedarbaum on 3/31/2009) (jpo) (Entered: 04/01/2009)
70 TRANSCRIPT of proceedings held on March 18, 19, 20, 23, 24, 25, 2009 before Judge Miriam Goldman Cedarbaum. (mro) (Entered: 04/15/2009)
71 TRANSCRIPT of proceedings held on 3/11/09, 3/12/09, 3/13/09, 3/16/09, 3/17/09 before Judge Miriam Goldman Cedarbaum. (tro) (Entered: 04/20/2009)
72 MOTION to Set Aside Verdict or Granting A New Trial. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 04/23/2009)
73 DECLARATION of Kathleen Gill Miller in Support re: 72 MOTION to Set Aside Verdict or Granting A New Trial.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 04/23/2009)
74 MEMORANDUM OF LAW in Support re: 72 MOTION to Set Aside Verdict or Granting A New Trial.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 04/23/2009)
75 AMENDED MOTION to Set Aside Verdict or Granting New Trial. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 04/24/2009)
76 DECLARATION of Kathleen Gill Miller in Support re: 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 04/24/2009)

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77 MEMORANDUM OF LAW in Support re: 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 04/24/2009)

06/03/2009

78 MEMORANDUM OF LAW in Opposition re: 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 06/03/2009)

06/22/2009

79 REPLY MEMORANDUM OF LAW in Support re: 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 06/22/2009)

07/16/2009

Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Oral Argument held on 7/16/2009. Motion denied. For oral opinion, see record of proceedings. (mro) (Entered: 07/23/2009)

07/22/2009

80 MEMO ENDORSED granting 56 Motion in Limine. For oral opinion, see record of proceedings. SO ORDERED March 12, 2009 (Signed by Judge Miriam Goldman Cedarbaum on 3/12/2009) (jmi) (Entered: 07/22/2009)

07/22/2009

81 MEMO ENDORSED denying 41 Motion in Limine. For oral opinion, see record of proceeding. SO ORDERED (Signed by Judge Miriam Goldman Cedarbaum on 3/11/2009) (jmi) (Entered: 07/22/2009)

07/22/2009

82 MEMO ENDORSED granting in part and denying in part 44 Motion in Limine. For oral opinion see record of proceedings. SO ORDERED(Signed by Judge Miriam Goldman Cedarbaum on 3/4/2009) (jmi) (Entered: 07/22/2009)

07/22/2009

83 MEMO ENDORSED granting in part and denying in part 38 Motion in Limine. For oral opinion see record of proceedings. SO ORDERED (Signed by Judge Miriam Goldman Cedarbaum on 3/4/2009) (jmi) (Entered: 07/22/2009)

07/30/2009

84 MOTION for Equitable Relief. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(King, Karen) (Entered: 07/30/2009)

07/30/2009

85 MEMORANDUM OF LAW in Support re: 84 MOTION for Equitable Relief.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 07/30/2009)

07/30/2009

86 FILING ERROR - DEFICIENT DOCKET ENTRY - (MISSING EXHIBITS, SEE DOCUMENT #92) - DECLARATION of JANE O'BRIEN in Support re: 84 MOTION for Equitable Relief.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (O'Brien, Jane) Modiﬁed on 8/5/2009 (lb). (Entered: 07/30/2009)

07/30/2009

87 DECLARATION of NICHOLAS YUM in Support re: 84 MOTION for Equitable Relief.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1)(Buergel, Susanna) (Entered: 07/30/2009)

07/30/2009 88 MOTION for Attorney Fees. Document ﬁled by Alan Lew, Howard Chin, David Lim,

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George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum.(King, Karen) (Entered: 07/30/2009)
89 MEMORANDUM OF LAW in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 07/30/2009)
90 DECLARATION of SUSANNA M. BUERGEL in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1b, # 3 Exhibit 2)(Buergel, Susanna) (Entered: 07/30/2009)
91 DECLARATION of ROBERT H. BARON in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2A, # 3 Exhibit 2B)(Buergel, Susanna) (Entered: 07/30/2009)
92 DECLARATION of JANE O'BRIEN in Support re: 84 MOTION for Equitable Relief.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(O'Brien, Jane) (Entered: 07/30/2009)
93 TRANSCRIPT of proceedings held on 7/16/09 before Judge Miriam Goldman Cedarbaum. (ldi) (Entered: 08/18/2009)
94 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - PROPOSED MOTION for Extension of Time As Stipulated to By All Parties. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) Modiﬁed on 8/21/2009 (db). (Entered: 08/19/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Kathleen Gill Miller to E-MAIL Document No. 94 Stipulation to judgments@nysd.uscourts.gov. This document is not ﬁled via ECF. (db) (Entered: 08/21/2009)
95 DECLARATION of Kathleen Gill Miller in Opposition re: 88 MOTION for Attorney Fees.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Miller, Kathleen) (Entered: 09/11/2009)
96 FILING ERROR - DEFICIENT DOCKET ENTRY - AFFIDAVIT of Judith A. Bronsther in Opposition re: 88 MOTION for Attorney Fees.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Index, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Errata 15, # 19 Exhibit 16, # 20 Exhibit 17, #

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21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23)(Miller, Kathleen) Modiﬁed on 9/14/2009 (jar). (Entered: 09/11/2009)
97 MEMORANDUM OF LAW in Opposition re: 88 MOTION for Attorney Fees.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 09/11/2009)
98 MEMORANDUM OF LAW in Opposition re: 84 MOTION for Equitable Relief.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 09/11/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Kathleen Miller to RE-FILE Document 96 Afﬁdavit in Opposition to Motion. ERROR(S): Wrong case number listed on document (Case number listed: 05-cv-3838. Correct case number 05-cv-3835). (jar) (Entered: 09/14/2009)
99 AFFIDAVIT of JUDITH A. BRONSTHER in Opposition re: 88 MOTION for Attorney Fees.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Index, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Errata 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23)(Miller, Kathleen) (Entered: 09/14/2009)
100 REPLY MEMORANDUM OF LAW in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 09/25/2009)
101 REPLY MEMORANDUM OF LAW in Support re: 84 MOTION for Equitable Relief.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 09/25/2009)
102 TRANSCRIPT of proceedings held on 10/02/09 before Judge Miriam Goldman Cedarbaum. (ama) (Entered: 10/06/2009)
113 TRANSCRIPT of proceedings held on 10/2/09 before Judge Miriam Goldman Cedarbaum. (ldi) (Entered: 11/02/2009)
103 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/29/2009)
104 DECLARATION of Karen R. King in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(King, Karen) (Entered: 10/29/2009)
105 DECLARATION of Jane B. O'Brien in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey

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Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (O'Brien, Jane) (Entered: 10/29/2009)
106 DECLARATION of Moira E. Weinberg in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/29/2009)
107 DECLARATION of Michael N. Berger in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Berger, Michael) (Entered: 10/29/2009)
108 DECLARATION of Christopher Harwood in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/29/2009)
109 DECLARATION of Andrew E. Goldsmith in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/29/2009)
110 DECLARATION of Dominika Tarczynska in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/29/2009)
111 DECLARATION of Eva Temkin in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (King, Karen) (Entered: 10/29/2009)
112 DECLARATION of Robert H. Baron in Support re: 88 MOTION for Attorney Fees.. Document ﬁled by Alan Lew, Howard Chin, David Lim, George Martinez, Stanley Chin, Milton Fong, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Richard Wong, Sanrit Booncome, Michael Chung, Christian Eng, Nicholas Yum. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(King, Karen) (Entered: 10/29/2009)
114 NOTICE OF APPEAL from plaintiffs equitable relief oral order within the trail transcript of October 2, 2009 at 10:30 A.M. Document ﬁled by The Port Authority of New York and New Jersey. Filing fee $ 455.00, receipt number E 704920. (nd) (Entered: 11/03/2009)
Transmission of Notice of Appeal to the District Judge re: 114 Notice of Appeal. (nd) (Entered: 11/03/2009)
Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 114 Notice of Appeal. (nd) (Entered: 11/03/2009)
115 ENDORSED LETTER addressed to Judge Miriam Goldman Cedarbaum from Kathleen Gill Miller dated 11/10/2009 re: Requesting an extension up to and including November

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23 to respond. ENDORSEMENT: Request granted. (Signed by Judge Miriam Goldman Cedarbaum on 11/12/2009) (jpo) (Entered: 11/13/2009)
116 AFFIDAVIT of Judith A. Bronsther in Opposition re: 88 MOTION for Attorney Fees.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B (part 1 of 3), # 3 Exhibit B (part 2 of 3), # 4 Exhibit B (part 3 of 3))(Miller, Kathleen) (Entered: 11/23/2009)
117 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 88 MOTION for Attorney Fees. as Supplemended by Plaintiffs. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 11/23/2009)
USCA Case Number 09-4600-cv from the US Court of Appeals, Second Circuit assigned to 114 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey. (nd) (Entered: 12/28/2009)
118 ORDER GRANTING EQUITABLE RELIEF: granting in part and denying in part 84 Motion for Equitable Relief. On October 2, 2009, oral argument was heard on plaintiffs' motion for equitable relief. I have further considered the parties' written submissions, oral arguments, and the evidence presented at trial. Plaintiffs' motion is granted in part and denied in part. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 1/13/2010) (tve) (Entered: 01/14/2010)
119 OPINION re: #98453 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial ﬁled by The Port Authority of New York and New Jersey. The Port Authority now moves for judgment as a matter of law, or in the alternative, for a new trial or for a remittitur of the jurys compensatory damages award. For the reasons further set forth in this Opinion, the Port Authoritys motion is denied in its entirety. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 1/13/2010) (tve) Modiﬁed on 1/19/2010 (ajc). (Entered: 01/14/2010)
120 MEMORANDUM OPINION AND ORDER #98832 re: 88 MOTION for Attorney Fees ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Richard Wong, Howard Chin, Sanrit Booncome. For the reasons set forth in this Memorandum Opinion and Order, plaintiffs' motion for attorneys' fees and costs is granted as detailed in this Order. The Clerk of the Court is directed to enter judgment in accordance with the Jury Verdict of March 26, 2009, my Order Granting Equitable Relief dated 1/13/2010, and this Memorandum Opinion and Order. (Signed by Judge Miriam Goldman Cedarbaum on 4/14/2010) (tro) Modiﬁed on 4/16/2010 (ajc). Modiﬁed on 4/16/2010 (ajc). (Entered: 04/15/2010)
Transmission to Judgments and Orders Clerk. Transmitted re: 120 Memorandum & Opinion, to the Judgments and Orders Clerk. (tro) (Entered: 04/15/2010)
121 JUDGMENT #10,0620 That pursuant to the Jury Verdict dated March 26, 2009, Order dated January 13, 2010, and Memorandum Opinion and Order dated April 14, 2010, judgment is entered as follows: in favor of Christian Eng in the amount of $285,445, in favor of Milton Fong in the amount of $183,924, in favor of Alan Lew in the amount of $264,859, in favor of Stanley Chin in the amount of $216,636, in favor of Nicholas Yum in the amount of $156,663, in favor of George Martinez in the amount of $160,861, and in favor of David Lim in the amount of $369,234; the motion of Port Authority to grant judgment as a matter of law, a new trial, or a remittitur is denied; Plaintiffs motion for an award of fees and costs is granted in part; Cravath is awarded $576,705 for fees and $152,571.36 for costs; and Paul Weiss is awarded $613,703 for fees and $221,258.74 for costs. (Signed by Judge Miriam Goldman Cedarbaum on 4/20/10) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 04/20/2010)

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122 NOTICE OF APPEAL from 121 Judgment. Document ﬁled by The Port Authority of New York and New Jersey. Filing fee $ 455.00, receipt number E 903997. (nd) (Entered: 05/12/2010)
Transmission of Notice of Appeal to the District Judge re: 122 Notice of Appeal. (nd) (Entered: 05/12/2010)
Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 122 Notice of Appeal. (nd) (Entered: 05/12/2010)
Appeal Record Sent to USCA (Electronic File). Certiﬁed Indexed record on Appeal Electronic Files for 114 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey, 21 Declaration in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Richard Wong, Howard Chin, Sanrit Booncome, 97 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 38 MOTION in Limine with Respect to Defendant's Judicial Admissions. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 47 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 44 MOTION in Limine with Respect to Relevant Time Period. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 34 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 49 CROSS MOTION in Limine WITH RESPECT TO THE RELEVANT TIME PERIOD. ﬁled by The Port Authority of New York and New Jersey, 8 Stipulation and Order, Set Deadlines/Hearings, 64 Proposed Jury Instructions ﬁled by The Port Authority of New York and New Jersey, 79 Reply Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 31 Stipulation and Order, Set Motion and R&R Deadlines/Hearings, Set Hearings,,, 81 Order on Motion in Limine, 72 MOTION to Set Aside Verdict or Granting A New Trial. ﬁled by The Port Authority of New York and New Jersey, 52 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 119 Memorandum & Opinion,, 63 Order, 95 Declaration in Opposition to Motion, ﬁled by The Port Authority of New York and New Jersey, 118 Order on Motion for Miscellaneous Relief, 27 Declaration in Support of Motion,,, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 55 Proposed Voir Dire Questions ﬁled by The Port Authority of New York and New Jersey, 5 Pretrial Order,, 11 Stipulation and Order, Set Deadlines/Hearings, 50 Afﬁdavit in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 16 MOTION for Partial Summary Judgment. ﬁled by The Port Authority of New York and New Jersey, 2 Rule 7.1 Corporate Disclosure Statement, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, Wai Moy, 73 Declaration in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 59 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin,

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Richard Wong, Sanrit Booncome, 101 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 28 Order on Motion for Partial Summary Judgment, 60 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 117 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 1 Complaint, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, Wai Moy, 19 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 90 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 18 Declaration in Support of Motion, ﬁled by The Port Authority of New York and New Jersey, 108 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 115 Endorsed Letter, Set Deadlines/Hearings,, 22 Counter Statement to Rule 56.1, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 91 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 43 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 40 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 76 Declaration in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 65 Notice (Other) ﬁled by The Port Authority of New York and New Jersey, 111 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 110 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 45 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 9 Notice of Appearance, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 35 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 33 Memorandum of Law in Opposition

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to Motion ﬁled by The Port Authority of New York and New Jersey, 24 Reply Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 92 Declaration in Support of Motion,, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 42 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 87 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 84 MOTION for Equitable Relief. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 85 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 109 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 57 Declaration in Support of Motion, ﬁled by The Port Authority of New York and New Jersey, 6 Order, 122 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey, 46 Declaration in Support of Motion,, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 68 Memorandum of Law in Opposition ﬁled by The Port Authority of New York and New Jersey, 62 Declaration in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 26 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 39 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 69 Endorsed Letter, Set Deadlines/Hearings,, 48 Notice of Appearance, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 51 Declaration in Support of Motion, ﬁled by The Port Authority of New York and New Jersey, 88 MOTION for Attorney Fees. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 77 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 53 Memorandum & Opinion, 98 Memorandum of Law in Opposition to

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Motion ﬁled by The Port Authority of New York and New Jersey, 23 Declaration in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 10 Notice of Appearance ﬁled by The Port Authority of New York and New Jersey, 17 Rule 56.1 Statement ﬁled by The Port Authority of New York and New Jersey, 3 Stipulation and Order, 82 Order on Motion in Limine, 61 Reply Memorandum of Law in Oppisition to Motion, ﬁled by Alan Lew, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 105 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 100 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 4 Answer to Complaint ﬁled by The Port Authority of New York and New Jersey, 116 Afﬁdavit in Opposition to Motion, ﬁled by The Port Authority of New York and New Jersey, 58 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial. ﬁled by The Port Authority of New York and New Jersey, 13 Stipulation and Order, Set Deadlines,,,, 20 Memorandum of Law in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 103 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 89 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 25 MOTION for Sanctions Against Defendant for Spoliation. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 112 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 54 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 80 Order on Motion in Limine, 99 Afﬁdavit in Opposition to Motion,, ﬁled by The Port Authority of New York and New Jersey, 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist. ﬁled by The Port Authority of New York and New Jersey, 106 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 32 Declaration in Opposition to Motion, ﬁled by The Port Authority of New York and New Jersey, 107 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 104 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong,

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David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 78 Memorandum of Law in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 83 Order on Motion in Limine, 7 Stipulation and Order, 36 Endorsed Letter, 15 Order, Add and Terminate Attorneys, 121 Judgment,,,, 120 Memorandum & Opinion,,, 74 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey were transmitted to the U.S. Court of Appeals. (nd) (Entered: 05/12/2010)

05/20/2010

123 NOTICE OF APPEAL from 121 Judgment. Document ﬁled by Howard Chin, Milton Fong, Sanrit Booncome, Michael Chung. Filing fee $ 455.00, receipt number E 904458. (tp) (Entered: 05/20/2010)

05/20/2010

Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 123 Notice of Appeal. (tp) (Entered: 05/20/2010)

05/20/2010

Transmission of Notice of Appeal to the District Judge re: 123 Notice of Appeal. (tp) (Entered: 05/20/2010)

05/20/2010

Appeal Record Sent to USCA (Electronic File). Certiﬁed Indexed record on Appeal Electronic Files for 114 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey, 21 Declaration in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Richard Wong, Howard Chin, Sanrit Booncome, 97 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 38 MOTION in Limine with Respect to Defendant's Judicial Admissions. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 47 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 44 MOTION in Limine with Respect to Relevant Time Period. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 34 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 49 CROSS MOTION in Limine WITH RESPECT TO THE RELEVANT TIME PERIOD. ﬁled by The Port Authority of New York and New Jersey, 8 Stipulation and Order, Set Deadlines/Hearings, 64 Proposed Jury Instructions ﬁled by The Port Authority of New York and New Jersey, 79 Reply Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 31 Stipulation and Order, Set Motion and R&R Deadlines/Hearings, Set Hearings, 81 Order on Motion in Limine, 72 MOTION to Set Aside Verdict or Granting A New Trial. ﬁled by The Port Authority of New York and New Jersey, 52 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 119 Memorandum & Opinion, 63 Order, 95 Declaration in Opposition to Motion, ﬁled by The Port Authority of New York and New Jersey, 118 Order on Motion for Miscellaneous Relief, 27 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 55 Proposed Voir Dire Questions ﬁled by The Port Authority of New York and New Jersey, 29 MOTION for Extension of Time to File Response/Reply As Stipulated and Date For Oral Argument To Be Determined By The Court. ﬁled by The Port Authority of New York and New Jersey, 5 Pretrial Order, 11 Stipulation and Order,

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Set Deadlines/Hearings, 50 Afﬁdavit in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 16 MOTION for Partial Summary Judgment. ﬁled by The Port Authority of New York and New Jersey, 86 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 2 Rule 7.1 Corporate Disclosure Statement, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, Wai Moy, 73 Declaration in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 59 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 101 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 28 Order on Motion for Partial Summary Judgment, 60 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 117 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 1 Complaint, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, Wai Moy, 19 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 90 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 18 Declaration in Support of Motion, ﬁled by The Port Authority of New York and New Jersey, 108 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 115 Endorsed Letter, Set Deadlines/Hearings,, 22 Counter Statement to Rule 56.1, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 91 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 43 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 40 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 76 Declaration in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 65 Notice (Other) ﬁled by The Port Authority of New York and New Jersey, 111 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 110 Declaration in Support of

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Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 45 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 9 Notice of Appearance, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 35 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 33 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 24 Reply Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 92 Declaration in Support of Motion,, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 42 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 87 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 84 MOTION for Equitable Relief. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 85 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 41 MOTION in Limine with Respect to the EEOC Determination Dated August 29, 2003. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 109 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 57 Declaration in Support of Motion, ﬁled by The Port Authority of New York and New Jersey, 6 Order, 122 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey, 46 Declaration in Support of Motion,, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 68 Memorandum of Law in Opposition ﬁled by The Port Authority of New York and New Jersey, 62 Declaration in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 26 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 39 Memorandum of Law in Support of Motion, ﬁled by Alan Lew,

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Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 69 Endorsed Letter, Set Deadlines/Hearings,, 48 Notice of Appearance, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 94 PROPOSED MOTION for Extension of Time As Stipulated to By All Parties. ﬁled by The Port Authority of New York and New Jersey, 51 Declaration in Support of Motion, ﬁled by The Port Authority of New York and New Jersey, 88 MOTION for Attorney Fees. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 77 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 53 Memorandum & Opinion, 98 Memorandum of Law in Opposition to Motion ﬁled by The Port Authority of New York and New Jersey, 23 Declaration in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 10 Notice of Appearance ﬁled by The Port Authority of New York and New Jersey, 17 Rule 56.1 Statement ﬁled by The Port Authority of New York and New Jersey, 3 Stipulation and Order, 82 Order on Motion in Limine, 61 Reply Memorandum of Law in Oppisition to Motion, ﬁled by Alan Lew, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 105 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 96 Afﬁdavit in Opposition to Motion,, ﬁled by The Port Authority of New York and New Jersey, 100 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 4 Answer to Complaint ﬁled by The Port Authority of New York and New Jersey, 116 Afﬁdavit in Opposition to Motion, ﬁled by The Port Authority of New York and New Jersey, 58 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey, 75 AMENDED MOTION to Set Aside Verdict or Granting New Trial. ﬁled by The Port Authority of New York and New Jersey, 13 Stipulation and Order, Set Deadlines, 20 Memorandum of Law in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 103 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 89 Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 25 MOTION for Sanctions Against Defendant for Spoliation. ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 112 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 54 Reply Memorandum of Law in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin,

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George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 80 Order on Motion in Limine, 99 Afﬁdavit in Opposition to Motion,, ﬁled by The Port Authority of New York and New Jersey, 56 MOTION in Limine To Exlude The Testimony Of Dr. Kathleen Lundquist. ﬁled by The Port Authority of New York and New Jersey, 106 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 32 Declaration in Opposition to Motion, ﬁled by The Port Authority of New York and New Jersey, 107 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 104 Declaration in Support of Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, The Port Authority Police Asian Jade Society of New York & New Jersey Inc., Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 78 Memorandum of Law in Opposition to Motion, ﬁled by Alan Lew, Nicholas Yum, Christian Eng, Stanley Chin, George Martinez, Michael Chung, Milton Fong, David Lim, Howard Chin, Richard Wong, Sanrit Booncome, 83 Order on Motion in Limine, 7 Stipulation and Order, 36 Endorsed Letter, 15 Order, Add and Terminate Attorneys, 121 Judgment, 120 Memorandum & Opinion, 123 Notice of Appeal ﬁled by Michael Chung, Milton Fong, Howard Chin, Sanrit Booncome, 74 Memorandum of Law in Support of Motion ﬁled by The Port Authority of New York and New Jersey were transmitted to the U.S. Court of Appeals. (tp) (Entered: 05/20/2010)
124 MOTION to Stay Pursuant To Federal Rule 62. Document ﬁled by The Port Authority of New York and New Jersey.(Miller, Kathleen) (Entered: 08/26/2010)
125 DECLARATION of Kathleen Gill Miller in Support re: 124 MOTION to Stay Pursuant To Federal Rule 62.. Document ﬁled by The Port Authority of New York and New Jersey. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Miller, Kathleen) (Entered: 08/26/2010)
126 MEMORANDUM OF LAW in Support re: 124 MOTION to Stay Pursuant To Federal Rule 62.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 08/26/2010)
127 MEMORANDUM OF LAW in Opposition re: 124 MOTION to Stay Pursuant To Federal Rule 62.. Document ﬁled by Stanley Chin, Christian Eng, Milton Fong, Alan Lew, David Lim, George Martinez, Nicholas Yum. (King, Karen) (Entered: 09/09/2010)
128 MANDATE of USCA (Certiﬁed Copy) as to 114 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey USCA Case Number 09-4600-cv....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 07/16/2010. (nd) (Entered: 09/15/2010)
129 REPLY MEMORANDUM OF LAW in Support re: 124 MOTION to Stay Pursuant To Federal Rule 62.. Document ﬁled by The Port Authority of New York and New Jersey. (Miller, Kathleen) (Entered: 09/29/2010)
130 AMENDED NOTICE OF APPEAL re: 123 Notice of Appeal, 121 Judgment. Document ﬁled by Sanrit Booncome, Howard Chin, Michael Chung, Richard Wong. (nd) (Entered: 10/04/2010)
Transmission of Notice of Appeal to the District Judge re: 130 Amended Notice of Appeal. (nd) (Entered: 10/04/2010)

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Transmission of Amended Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 130 Amended Notice of Appeal. (nd) (Entered: 10/04/2010)
131 MEMO ENDORSEMENT ON NOTICE OF MOTION FOR STAY PURSUANT TO FEDERAL RULE 62. ENDORSEMENT: 124 Motion for Stay of Judgment denied. Motion to dispense with requirement of a supersedeas bond granted. (Signed by Judge Miriam Goldman Cedarbaum on 10/20/10) (djc) Modiﬁed on 10/26/2010 (djc). (Entered: 10/22/2010)
132 SUPERSEDEAS BOND # 019038440 in the amount of $ 3,228,255.00 posted by The Port Authority of New York and New Jersey. (jnm) (Entered: 02/10/2012)
133 TRUE COPY OPINION of USCA as to 122 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey, 130 Amended Notice of Appeal ﬁled by Howard Chin, Richard Wong, Sanrit Booncome, Michael Chung, 123 Notice of Appeal ﬁled by Milton Fong, Howard Chin, Sanrit Booncome, Michael Chung USCA Case Number 10-1904cv(L), 10-2031-cv(xap). IT IS HEREBY ORDERED that the judgment of the District Court is AFFIRMED in part, REVERSED in part, VACATED in part and REMANDED for new trial. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certiﬁed: 07/10/2012. (nd) (Entered: 07/11/2012)
134 MANDATE of USCA (Certiﬁed Copy) as to 122 Notice of Appeal ﬁled by The Port Authority of New York and New Jersey, 130 Amended Notice of Appeal ﬁled by Howard Chin, Richard Wong, Sanrit Booncome, Michael Chung, 123 Notice of Appeal ﬁled by Milton Fong, Howard Chin, Sanrit Booncome, Michael Chung USCA Case Number 101904(L), 10-2031(Xap). Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED in part, REVERSED in part, VACATED in part and the case is REMANDED in accordance with the opinion of this Court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/05/2012. (nd) (Entered: 10/05/2012)
Transmission of USCA Mandate/Order to the District Judge re: 134 USCA Mandate,,. (nd) (Entered: 10/05/2012)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Status Conference began but is adjourned.( Status Conference set for 6/6/2013 at 11:00 AM in Courtroom 14A, 500 Pearl Street, New York, NY 10007 before Judge Miriam Goldman Cedarbaum.). (Daniels, Anthony) (Entered: 06/04/2013)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Status Conference held on 6/6/2013. The parties are directed to submit their proposed verdict forms by no later than 6/28/13. (Daniels, Anthony) (Entered: 06/06/2013)
Minute Entry. Status Conference set for 3/25/2014 at 11:00 AM before Judge Miriam Goldman Cedarbaum. (Daniels, Anthony) (Entered: 02/06/2014)
Minute Entry. Status Conference originally set for 3/25/14 has been adjourned till 4/8/2014 at 02:30 PM in Courtroom 14A, 500 Pearl Street, New York, NY 10007 before Judge Miriam Goldman Cedarbaum. (ml) (Entered: 03/14/2014)
135 ORDER OF REFERENCE TO A MAGISTRATE JUDGE: Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Debra C. Freeman. (Signed by Judge Miriam Goldman Cedarbaum on 4/8/2014) (ajs) (Entered: 04/08/2014)
Minute Entry for proceedings held before Judge Miriam Goldman Cedarbaum: Status Conference held on 4/8/2014. The Court will direct this matter to Magistrate Judge Freeman for settlement. (Court Reporter Patty Nilsen) (ml) (Entered: 04/09/2014)

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Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 4/16/2014. Telephone conference scheduled for 5/20/14 at 2:30 p.m. (aba) (Entered: 04/16/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 5/20/2014. Telephone conference scheduled for 6/30/14 at 2:30 p.m. (aba) (Entered: 05/21/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 6/30/2014. Telephone conference scheduled for 7/3/14 at 2:30 p.m. (aba) (Entered: 07/01/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 7/3/2014. Telephone conference scheduled for 8/7/14 at 3:30 p.m. (aba) (Entered: 07/07/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 8/7/2014. Telephone conference scheduled for 8/29/14 at 2:30 p.m. (aba) (Entered: 08/07/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 8/29/2014. Joint status letter due 9/11/2014. (aba) (Entered: 09/04/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held on 10/7/2014. (aba) (Entered: 10/07/2014)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 12/11/2014. (aba) (Entered: 12/11/2014)
136 STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel for each of the parties, that, pursuant to the terms of a settlement agreement between Plaintiffs Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley Chin, and Milton Fong ("Plaintiffs") and Defendant the Port Authority of New York and New Jersey ("Defendant"), the Complaint and all of Plaintiffs' claims in the above-captioned action against Defendant are voluntarily dismissed with prejudice. (Signed by Judge Miriam Goldman Cedarbaum on 2/19/2015) (kgo) (Entered: 02/19/2015)

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