Case 1:14-cv-01474-SHR Document 1 Filed 07/29/14 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA HARRISBURG DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

v.

)

)

COMMONWEALTH OF

)

PENNSYLVANIA AND )

PENNSYLVANIA STATE POLICE, )

)

Defendants.

)

Civil Action No.: _______________

COMPLAINT

Plaintiff, the United States of America (“United States”), alleges: 1. This action is brought on behalf of the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended (“Title VII”). As set forth below, the United States alleges that, since 2003 and continuing through the present, Defendants, the Commonwealth of Pennsylvania (“Commonwealth”) and the Pennsylvania State Police (“PSP”), have used and continue to use physical fitness tests to screen and select applicants for entry-level state police trooper positions. Through the use of these physical fitness tests, Defendants have engaged in a

pattern or practice of employment discrimination against women in PSP’s

selection process for entry-level trooper positions in violation of Title VII.

Case 1:14-cv-01474-SHR Document 1 Filed 07/29/14 Page 2 of 10
JURISDICTION AND VENUE 2. This Court has jurisdiction of this action under 42 U.S.C. § 2000e6(b) and 28 U.S.C. §§ 1331, 1343(a)(3), and 1345. 3. Venue is proper in the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1391 because all or a substantial part of the acts or omissions giving rise to this cause of action took place in this judicial district. 4. Defendants Commonwealth and PSP are public employers created pursuant to the laws of the Commonwealth. 5. The Commonwealth is a state government, and PSP is a governmental agency, within the meaning of 42 U.S.C. § 2000e(a). 6. Defendants are “persons” within the meaning of 42 U.S.C. § 2000e(a) and are “employers” within the meaning of 42 U.S.C. § 2000e(b). 7. PSP is a state law enforcement agency that employs entry-level troopers. 8. Defendants are responsible for establishing the terms and conditions of, as well as other practices that relate to, the employment of entry-level troopers. 9. Defendants have maintained and continue to maintain selection procedures by which applicants for entry-level trooper positions are selected.
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FACTS A. Challenged Employment Practices 10. Since 2003, the selection process for entry-level troopers has included the following steps: (1) an application screening; (2) a written examination; (3) an oral examination; (4) ranking on an eligibility list; (5) physical readiness processing, which includes a physical fitness test (“PFT”); (6) a polygraph examination; (7) a background investigation; and (8) medical/psychological processing. Through this lawsuit, the United States challenges the fifth element of Defendants’ entry-level trooper hiring process: the physical readiness processing of applicants, specifically Defendants’ use of PFTs. B. The PFT Used Between 2003-2008 11. From 2003 to 2008, PSP administered and used a PFT (“2003 PFT”) as part of its entry-level trooper selection process. The 2003 PFT consisted of five events: (1) a 300-meter run; (2) sit-ups; (3) push-ups; (4) a vertical jump; and (5) a 1.5-mile run. The 2003 PFT had cut-off scores for each event. 12. PSP required that applicants for entry-level trooper positions pass each event in the 2003 PFT to continue in the selection process for entry-level trooper positions. If an applicant failed an event, s/he failed the 2003 PFT.
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13. From 2003 to 2008, approximately 94% of male applicants passed the 2003 PFT, while only approximately 71% of female applicants passed the 2003 PFT.
14. The difference between the pass rates of female and male applicants from 2003 to 2008 is statistically significant, and the female pass rate is less than 80% of the male pass rate.
15. Considered separately, the female pass rate was lower than the male pass rate for each administration of the 2003 PFT from 2003 to 2008. Moreover, for nearly half of the application periods from 2003 to 2008, the difference in pass rates between female and male applicants is statistically significant, and the female pass rate was less than 80% of the male pass rate.
C. The PFT Used Between 2009 and the Present 16. In 2009, PSP changed the PFT used as part of the entry-level trooper hiring process (“2009 PFT”). The 2009 PFT included new elements. 17. For the 2009 to 2012 application periods, approximately 98% of male applicants passed the 2009 PFT, while approximately 72% of female applicants passed the 2009 PFT. 18. The difference between the pass rates of female applicants and male applicants from 2009 to 2012 is statistically significant, and the female pass rate is less than 80% of the male pass rate.
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Case 1:14-cv-01474-SHR Document 1 Filed 07/29/14 Page 5 of 10
19. Considered separately, the female pass rate was lower than the male pass rate for each administration of the 2009 PFT from 2009 to 2012. Moreover, for a majority of the application periods from 2009 to 2012, the difference in pass rates between female and male applicants is statistically significant, and the female pass rate was less than 80% of the male pass rate.
20. Because female applicants failed the 2003 PFT and 2009 PFT at statistically higher rates than male applicants, female applicants were less likely to proceed through the selection process and thus less likely to be hired as entry-level troopers.
21. If, between 2003 and 2012, female applicants had passed the 2003 PFT and 2009 PFT at the same rate as male applicants, approximately 119 additional women would have been available for further consideration for the position of entry-level trooper, resulting in approximately 45 additional women being hired as entry-level troopers.
22. PSP continues to use the 2009 PFT, or a substantially similar physical fitness test, in the screening and selection of applicants for entry-level trooper positions.
23. PSP’s use of the 2003 PFT and 2009 PFT in the screening and selection of applicants for entry-level trooper positions has had, and is alleged to still have, a disparate impact on women.
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THE UNITED STATES’ PATTERN OR PRACTICE CLAIMS PURSUANT TO SECTION 707 OF TITLE VII
24. Plaintiff re-alleges and incorporates by reference paragraphs 1-23. 25. Defendants’ use of the 2003 PFT and 2009 PFT in the screening and selection of applicants for entry-level trooper positions with PSP has resulted in a disparate impact upon female applicants for those positions. Defendants’ use of both the 2003 and the 2009 PFT is not job-related for the entry-level trooper position, is not consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). 26. There are alternatives, to PSP’s use of the 2003 PFT and 2009 PFT, for screening and selecting applicants for entry-level trooper positions, that have less disparate impact on women and would serve PSP’s legitimate interests. 27. Defendants have used and continue to use policies and practices that discriminate against women and that deprive or tend to deprive women of employment opportunities because of their sex, in violation of Title VII, 42 U.S.C. § 2000e-2, including, among other ways, by:
a. failing or refusing to hire women for entry-level trooper positions on the same basis as men;
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b. using the 2003 PFT and 2009 PFT in the screening and selection of applicants for entry-level trooper positions where such use results in disparate impact on women and is not job-related for the position in question and consistent with business necessity;
c. failing or refusing to take appropriate action to correct the present effects of their discriminatory policies and practices; and
d. failing or refusing to “make whole” those female applicants for the position of entry-level trooper who have been harmed by their unlawful use of the 2003 PFT and 2009 PFT.
28. In accordance with Section 707 of Title VII, 42 U.S.C. § 2000e-6, the United States, through the United States Department of Justice, conducted an investigation of the policies and practices of Defendants regarding the screening and selection of applicants for entry-level trooper positions with PSP and the discriminatory effect of such practices on female applicants. The Department of Justice notified Defendants of that investigation and of the United States’ determination that the policies and practices outlined in paragraphs 10-23 are unlawful.
29. The policies and practices of Defendants outlined in paragraphs 10-23 above constitute a pattern or practice of resistance to the full enjoyment by women of their rights to equal employment opportunities regardless of their
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sex, in violation of Title VII, 42 U.S.C. § 2000e-2. The pattern or practice is of such a nature that it denies the full exercise of the rights secured by Title VII. Unless restrained by an order of this Court, Defendants will continue to use policies and practices that are the same as or similar to those alleged in this Complaint.
30. All conditions precedent to the filing of suit have been performed or have occurred.
PRAYER FOR RELIEF WHEREFORE, the United States prays for an order enjoining Defendants, their officers, agents, employees, successors, and all persons in active concert or participation with them, from engaging in discriminatory employment practices against women based on their sex in violation of Title VII, and specifically from:
a. failing to hire women for entry-level trooper positions with PSP on an equal basis as men;
b. using the 2003 PFT and 2009 PFT in the screening and selection of applicants for entry-level trooper positions where such use results in disparate impact on women and is not job-related for the position in question and consistent with business necessity;
c. failing or refusing to provide make-whole relief, including backpay with interest, offers of employment, retroactive seniority, and other 8

Case 1:14-cv-01474-SHR Document 1 Filed 07/29/14 Page 9 of 10
benefits to women who have suffered losses or will suffer losses as a result of the discriminatory policies and practices alleged in this Complaint; and d. failing or refusing to take other appropriate measures to overcome the effects of their discriminatory policies and practices. Plaintiff United States prays for such additional relief as justice may require, together with its costs and disbursements in this action.
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Case 1:14-cv-01474-SHR Document 1 Filed 07/29/14 Page 10 of 10

Dated: July 29, 2014

DELORA
Em
KAREN
Em
Senior United Civil Em 950 Washington, Telephone: Fax: E-m

Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division United States Department of Justice
By: s/Delora L. Kennebrew_________________ L. KENNEBREW (GA 414320)
Chief ployment Litigation Section
s/Karen D. Woodard_________________ D. WOODARD (MD no number)
Deputy Chief ployment Litigation Section
s/Carol A. Wong______________________ s/Trevor S. Blake II____________________ CAROL A. WONG (IL 6294123) TREVOR S. BLAKE II (DC 974319)
Trial Attorneys States Department of Justice Rights Division ployment Litigation Section Pennsylvania Avenue, NW, PHB
DC 20530 (202) 616-9100 (202) 514-1105 ail: Carol.Wong@usdoj.gov E-mail: Trevor.Blake@usdoj.gov
Attorneys for the United States of America

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

:

Plaintiff

:

:

v.

:

:

COMMONWEALTH OF

:

PENNSYLVANIA, and the

:

PENNSYLVANIA STATE POLICE, :

:

Defendants

:

1:14-CV-1474 Judge Sylvia H. Rambo

M E M O R A N D U M

In this employment discrimination action, the United States Attorney

General sued the Commonwealth of Pennsylvania, alleging that the Commonwealth

of Pennsylvania has engaged in a “pattern or practice” of unlawful discrimination

against females applying for employment as an entry level trooper with the

Pennsylvania State Police, resulting in disparate impact in violation of Title VII of

the Civil Rights Act of 1964. Presently before the court is the Commonwealth of

Pennsylvania’s motion to dismiss, disposition of which requires the court to

determine whether Section 707(a) of Title VII confers authority upon the United

States to assert a disparate impact claim against a state. For the following reasons,

the court determines that such a disparate impact claim is not foreclosed by statute

and concludes that the United States has made a sufficient showing that this court has

subject matter jurisdiction.

I.

Background

The United States initiated this action by filing a complaint on July 29,

2014, asserting that the Commonwealth of Pennsylvania (“Commonwealth”) and the

Pennsylvania State Police (“PSP”) (collectively, “Defendants”) have violated Title

VII of the Civil Rights Act 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). (Doc. 1.) More specifically, the United States alleges that Defendants’ use of physical fitness tests to screen and select applicants for entry-level PSP trooper positions has had an unlawful disparate impact against female applicants, who have passed the physical fitness tests—and thus been hired—at significantly lower rates than male applicants. (Id. at ¶¶ 20-21, 23, 25, 27(b).)
According to the complaint,1 the PSP administered two versions of the physical fitness test between 2003 and 2012. The first version, which was administered between 2003 and 2008 (“2003 PFT”), required applicants to pass five events to continue in the selection process: (1) a 300-meter run; (2) sit-ups; (3) pushups; (4) a vertical jump; and (5) a 1.5-mile run. (Id. at ¶¶ 11-12.) Approximately 94 percent of male applicants and 71 percent of female applicants passed the 2003 PFT. (Id. at ¶ 13.) The PSP revised the test in 2009 (“2009 PFT), and during the 2009 to 2012 application periods in which the 2009 PFT was administered, approximately 98 percent of male applicants and 72 percent of female applicants passed the physical fitness test. (Id. at ¶¶ 16-17.) The United States asserts that the disparity between male and female pass rates on both the 2003 and 2009 PFTs is statistically significant because the female pass rate was less than 80 percent of the male pass rate. (Id. at ¶¶ 14-15, 18-19.) The United States avers that, if female applicants had passed the 2003 and 2009 PFTs at the same rate as male applicants, approximately 119 additional women would have been available for further consideration for the entrylevel trooper position, resulting in approximately 45 additional women being hired.

1

As required when deciding a motion to dismiss, the court will accept as true the

well-pleaded factual averments set forth in the complaint and view them in the light most favorable to

the United States as the nonmoving party.

2

(Id. at ¶ 21.) The PSP continues to use the 2009 PFT, or a substantially similar version, in its screening and selection process for entry-level troopers. (Id. at ¶ 22.)
Defendants have moved to dismiss the United States’ complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 26.) Primarily, Defendants urge the court to dismiss this case under Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that Title VII’s Section 707(a), 42 U.S.C. § 2000e-6(a), pursuant to which the United States filed this suit, only confers authority upon the United States to bring claims for disparate treatment and, therefore, the court lacks subject matter jurisdiction over the instant claim for disparate impact. In the alternative, Defendants argue that the complaint should be dismissed under Rule 12(b)(6) for failure to state a claim, citing insufficient disparities between the male and female PFT pass rates.
The United States filed an opposition to Defendants’ motion on December 22, 2014. (Doc. 32.) In its opposition, the United States contends that Defendants’ argument regarding the United States’ purported lack of authority to bring disparate impact claims rests on an erroneous interpretation of Title VII, as evidenced by both the statute when read as a whole and case law interpreting Section 707(a). In response to Defendants’ alternative argument that the United States has presented insufficient disparities between male and female PFT pass rates, the United States contends that Defendants’ position fails to account for the case’s current posture and the United States’ ultimate burden on that issue.
In a reply filed on January 19, 2015, Defendants assert that dismissal is further warranted due to the inherent conflict between the Commonwealth’s sovereignty and Section 707(a). (Doc. 33.) In support thereof, Defendants argue
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that the United States has sued a constituent sovereign in a manner that implicates the police power reserved to the Commonwealth and that the court, therefore, must not “blithely perpetuate an expansion of federal authority that is not justified by the controlling statutory language.” (Doc. 33 at pp. 2-4 of 17.) In a sur-reply filed on January 26, 2015,2 the United States contends that there exists no authority for applying a heightened scrutiny standard to a Title VII case brought against a state police employer. (Doc. 35-1.)

II.

Legal Standard

Defendants’ motion seeks dismissal of the United States’ claims

pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction, or, in the alternative, pursuant to Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief can be granted. As such, the

court will set forth the standards under both rules.

A. Motion to Dismiss—Rule 12(b)(1) Standard

Defendants seek dismissal of the complaint primarily on the basis that

the court lacks subject matter jurisdiction over the United States’ disparate impact

claim. See Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited jurisdiction

and thus are permitted to adjudicate cases and controversies only as allowed under

Article III of the United States Constitution. U.S. CONST. art. III, § 2. A motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the

jurisdiction of the court to address the merits of the plaintiff’s suit. Fed. R. Civ. P.

2

The court granted the United States’ unopposed motion for leave to file a sur-reply

on January 27, 2015, and accepted the sur-reply as filed. (See Doc. 36.)

4

12(b)(1). When considering a challenge to the court’s jurisdiction pursuant to Rule 12(b)(1), no presumption of truthfulness attaches to the plaintiff’s allegations, see Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977), and the court may go beyond the four corners of the complaint and make factual findings which are decisive to the issue, relying on evidence such as affidavits, depositions, and other testimony, Empl’rs Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990). The plaintiff ultimately bears the burden of persuading the court that it has jurisdiction. Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
B. Motion to Dismiss—Rule 12(b)(6) Standard Defendants also seek dismissal of the complaint on the basis that the United States has failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8 requires that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must therefore “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of
5

the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Further, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (internal citations omitted) (citing Twombly, 550 U.S. at 555, 557). However, this “‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.” West Penn Allegheny Health Sys. Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010) (citing Phillips, 515 F.3d at 234).

III.

Discussion

Title VII endeavors to ensure that workplaces are free of discrimination

and that employment decisions are made based on qualifications rather than on

extraneous factors such as race or color. NAACP v. N. Hudson Reg’l Fire & Rescue,

665 F.3d 464, 476 (3d Cir. 2011) (citing Ricci v. DeStefano, 557 U.S. 557, 580

(2009)). To that end, “Title VII makes it illegal for an employer to ‘limit, segregate,

or classify his employees or applicants for employment in any way which would

deprive or tend to deprive any individual of employment opportunities . . . because of

such individual’s race, color, religion, sex, or national origin’” Id. (quoting 42 U.S.C.

§ 2000e-2(a)(2)). Title VII prohibits both intentional discrimination, known as

disparate treatment discrimination, as well as, in some cases, practices that are not

6

intended to discriminate but in fact have a disproportionately adverse effect on minorities, known as disparate impact discrimination. Ricci, 557 U.S. at 577.
As enacted in 1964, Title VII held employers liable only for disparate treatment, making it “unlawful for an employer to ‘fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’” Id. at 577 (quoting § 2000-2(a)(1)). That section retains its original wording today. Id. Thus, disparate treatment occurs where an employer has “treated [a] particular person less favorably than others because of” a protected trait. Id. (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-86 (1988). A plaintiff in a disparate treatment case must therefore establish “that the defendant had a discriminatory intent or motive” for taking a job-related action. Id.
In contrast, disparate impact discrimination is a brand of “unintentional discrimination,” whereby “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another” are prohibited. Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Although the employer acts without a deliberately discriminatory motive, its actions are functionally equivalent to intentional discrimination. Ladd v. Boeing Co., 463 F. Supp. 2d 516, 521 (E.D. Pa. 2006) (citing Watson, 487 U.S. at 987). Consequently, evidence submitted in disparate impact cases tends to focus on statistical disparities rather than specific incidents, and on competing explanations for those disparities. Id.
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The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that result in a disparate impact. Ricci, 557 U.S. at 578. Rather, the disparate impact theory of discrimination under Title VII was judicially created by the Supreme Court in 1971 in the seminal case of Griggs v. Duke Power Co., 401 U.S. 424 (1971). Recognizing that Congress’ objective in enacting Title VII was to achieve equality and remove barriers in employment, the Court held that Title VII was meant not only to proscribe overt discrimination, but also to prevent “practices that are fair in form, but discriminatory in operation.” Griggs, 401 U.S. at 429-31.
Twenty years after Griggs, Congress codified the prohibition on disparate impact discrimination in the Civil Rights Act of 1991. Ricci, 557 U.S. at 578; see N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477 n.9 (noting that the Civil Rights Act of 1991 reversed a Supreme Court case that had weakened the standard for finding employment practices not a violation of Title VII). Under the statute, the plaintiff must “demonstrate[ ] that a respondent 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. § 2000-e2(k)(1)(A)(i). The employer may then defend against the plaintiff’s prima facie showing of disparate impact only by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Id. Even if the employer meets that burden, however, the plaintiff may still succeed “by showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified.” N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477 (citing 42 U.S.C. § 2000e-2(k)(1)(A)(ii),(C)).
A. The United States’ Authority to Assert a Disparate Impact Claim Under Section 707(a)
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Turning to the matter sub judice, Defendants argue that Section 707(a) does not confer authority upon the United States to bring a suit against a state under the disparate impact theory of discrimination. The court disagrees.
Section 707(a) permits the federal government, either through the Equal Employment Opportunity Commission or the Attorney General of the United States, to bring a civil action directly against an employer charging a pattern or practice of discrimination against a protected group. See 1 Lex K. Larson, Employment Discrimination § 8.01[3], at 8-11 (Matthew Bender 2d ed. 2014). Specifically, Section 707(a) provides that the Attorney General may bring a civil action in the appropriate district court of the United States:
[w]henever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full employment of any of the rights secured by [Title VII], and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described . . . . 42 U.S.C. § 2000e-6(a). As used in this statute, “pattern or practice” is not a term of art. Teamsters, 431 U.S. at 336 n.16. Rather, “the words reflect only their usual meaning,” and were intended to convey “[t]he point . . . that ‘single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice . . . .” Id. (quoting Sen. Hubert Humphrey’s statements in 110 Cong. Rec. 14270 (1964)). A “pattern or practice would be present only where the denial of rights . . . is repeated, routine, or of a generalized nature.” Id. Pointing to the language of Section 707(a) that requires the “pattern or practice of resistance to the full enjoyment of . . . rights secured by [Title VII]” be “intended to deny the full exercise of [those] rights,” 42 U.S.C. § 2000e-6(a) (emphasis supplied), Defendants argue that in order to establish a pattern or practice
9

within the meaning of the statute, the United States must demonstrate an intention to discriminate. It appears well-settled, however, that “[a] ‘pattern or practice’ of discrimination could be either a pattern of disparate treatment of a number of individuals, or the wide-scale application of tests or other neutral factors having disparate impact, or both.” United States v. N.Y.C. Transit Auth., Civ. No. 04-cv4237, 2010 WL 3855191, *14 (E.D.N.Y. Sept. 28, 2010) (citing 1 Lex. K. Larson, Employment Discrimination, § 8.01[3], at 8-11 (Matthew Bender 2d ed. 2010)). Indeed, courts have “uniformly refused to read” a subjective discriminatory intent requirement into Section 707(a), “instead respect[ing] the evident congressional purpose that the statute reach conduct which is intentional in the relatively innocuous sense of advertence.” United States v. City of Yonkers, 609 F. Supp. 1285, (S.D.N.Y. 1984) (listing cases); see also United States v. Jacksonville Terminal Co., 451 F.2d 418, 443 (5th Cir. 1971) (“[P]roof of subjective intent to discriminate is unnecessary; the Government must show only that the defendant intended to perform the discriminatory act.”). For this reason, many courts, including several within the Third Circuit, have employed disparate impact analysis in pattern or practice suits. See Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478 (3d Cir. 1999); see also United States v. City of Erie, 411 F. Supp. 2d 524 (W.D. Pa. 2005); United States v. Delaware, Civ. No. 01-020-KAJ, 2004 WL 609331 (D. Del. Mar. 22, 2004); see also, e.g., United States v. City of Warren, 138 F.3d 1083 (6th Cir. 1998); United States v. Cnty of Fairfax, 629 F.2d 932 (4th Cir. 1980), cert. denied, 449 U.S. 1078 (1981); United States & EEOC v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979); Firefighters Inst. for Racial Equality & United States v. City of St. Louis,
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549 F.2d 506 (8th Cir. 1977), cert. denied, 434 U.S. 819 (1977).3 The court agrees with these courts and finds that the United States is authorized to bring a pattern or practice claim of disparate impact discrimination under 707(a). Indeed, by its very definition, a disparate impact analysis must focus on more than isolated occurrences and therefore lends itself to uncovering a proscribed pattern or practice. City of Yonkers, 609 F. Supp. at 1285.4
Defendants’ second argument focuses on the Commonwealth’s status as a constituent sovereign to which the police power is reserved under the federal system. In this regard, Defendants urge that the Attorney General is without authority to bring a disparate impact claim implicating the police power reserved to the Commonwealth. Although Defendants do not challenge the ability of the United States to bring suits against states, they argue that, absent Congress’ “clear and unmistakable intent” to “affect the balance between the federal government and the

3

Defendants attempt to distinguish those cases that involved private co-litigants from

cases brought solely by the United States. However, whether a case involved a private co-litigant is

irrelevant to the jurisdictional issue before the court. In both contexts, the Third Circuit and other courts

have exercised subject matter jurisdiction over the United States’ Section 707(a) disparate impact claims

and have ruled on their merits. See Lanning, 181 F.3d 478 (3d Cir. 1999). As Defendants recognize,

even if the parties do not raise the issue, a court must sua sponte dismiss a case when it lacks subject

matter jurisdiction. (See Doc. 31, p. 9 of 30); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07

(2006).

4

Similar language used elsewhere in Title VII has also been consistently interpreted

to extend to disparate impact claims. Section 706(g) provides that a court may order backpay, priority

hiring, and other relief when it finds that the employer has “intentionally engaged . . . in an unlawful

employment practice.” 42 U.S.C. §2000e-5(g)(1). Notwithstanding the section’s use of the phrase

“intentionally engaged,” courts have routinely determined that the provision authorizes relief in

disparate impact cases. See, e.g., Ass’n Against Discrimination in Emp’t, Inc. v. City of Bridgeport, 647

F.2d 256, 280 n.222 (2d Cir. 1981) (noting language of intent refers not to discriminatory purpose, but

only that the acts must have been deliberate rather than accidental); see also United States v. City of New

York, 905 F. Supp. 2d 438 (E.D.N.Y. 2012) (awarding backpay and priority hiring after litigated

judgment in disparate impact case); United States v. Massachusetts, 869 F. Supp. 2d 189 (D. Mass.

2012) (same); United States v. New Jersey, Civ. No. 10-91(KSH)(MAS), 2012 WL 3265905 (D.N.J.

June 12, 2012) (same).

11

states on a matter which the Constitution reserves to the states,” the United States’ attempt “to control a state’s use of a physical readiness test of its own police force” via a Section 707(a) lawsuit must fail. (Doc. 33, pp. 3-4.)
Contrary to Defendants’ argument, however, Congress has shown its clear and unmistakable intent to authorize the Attorney General to bring pattern or practice claims of disparate impact discrimination against state employers. Congress was “[u]nquestionably” aware of the Griggs disparate “impact standard applicable to private employers when it amended Title VII in 1972 to include state and local government employers,” United States v. Virginia, 620 F.2d 1018, 1023 (1980), and it did so without exempting state law enforcement employers, see 42 U.S.C. § 2000e(a)-(b); Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 2 (1972)).5 In addition, “the legislative history clearly indicates that the standards to be applied to [state employers] under the 1972 amendments are the same Title VII standards which were earlier made applicable to private employers.” Virginia, 620 F.2d at 1023 (internal citations omitted); see also H.R. Rep. No. 92-38 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2154 (“The expansion of Title VII coverage to State and local government employment is firmly embodied in the pricinples of the Constitution of the United States.”).
Moreover, Congress has not hesitated to act to clarify its intent with respect to Title VII when the courts have been mistaken. See, e.g., Ledbetter v.

5

The court would be remiss not to address Defendants’ reliance on United States v.

North Carolina, 914 F. Supp. 1257 (E.D.N.C. 1996), for its erroneous proposition that “the Supreme

Court has overruled Griggs sub silentio,” (Doc. 33, pp. 8-9 of 17 (citing North Carolina, 914 F. Supp. at

1265)). In the nearly two decades since the opinion was published, no court has relied on North

Carolina for this proposition. Indeed, as recently as 2010, the Supreme Court has both relied on Griggs

and recognized the codification in Title VII of the Griggs disparate impact standard. See Lewis v. City

of Chicago, 560 U.S. 205, 211-12 (2010).

12

Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), superseded by statute, Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2 (2009); Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166 (1991); General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), superseded by statute, Pregnancy Discrimination Act, Pub. L. No. 95-555 (1978). During the decades during which the Attorney General has enforced Title VII’s prohibition of disparate impact discrimination pursuant to Section 707(a), Congress has amended Title VII several times, even codifying the disparate impact theory of liability and legislatively overruling more onerous, judicially imposed burdens of proof for disparate impact claims. See Civil Rights Act of 1991, Pub. L. No. 102166, § 105; 42 U.S.C. § 2000e-2(k). Yet Congress has never limited the Attorney General’s authority to bring disparate impact claims. To the contrary, in the 1991 Amendments to Title VII, Congress identified the Attorney General as among the “complaining parties” authorized to bring a disparate impact claim. See Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 104-105; 42 U.S.C. § 2000e(l); 42 U.S.C. § 2000e-2(k).
Accordingly, the court finds that it has subject matter jurisdiction over Section 707(a) cases brought by the United States against a state claiming that a pattern or practice has a prohibited disparate impact, and will deny Defendants’ motion to dismiss in this regard.6

6

Defendants further argue that the court should be guided by the Supreme Court’s

decision to grant certiorari in a case brought pursuant to the Fair Housing Act (“FHA”), 42 U.S.C. §§

3601, et seq., Texas Department of Housing and Community Affairs v. Inclusive Communities Project,

Inc., 135 S. Ct. 46 (2014). The question presented in Inclusive Communities is whether, based on the

text of the FHA, disparate impact claims are cognizable under the FHA. Brief for Petitioner at 5,

Inclusive Communities, 135 S. Ct. 46 (2014) (No. 13-1371), 2014 WL 1989121 at *1. Because there is

(continued...)

13

B.

The United States’ Prima Facie Case of Disparate Impact

As an alternative basis for dismissal, brought pursuant to Federal Rule

of Procedure 12(b)(6), Defendants argue that the United States has pleaded

insufficient facts to establish a prima facie case of disparate impact discrimination

under Title VII. In response, the United States contends, inter alia, that Defendants’

argument is premature.

Under Title VII’s disparate impact theory of liability, a plaintiff must

establish a prima facie case by demonstrating that application of a facially neutral

standard has resulted in a significantly discriminatory hiring pattern. N. Hudson

Reg’l Fire & Rescue, 665 F.3d at 476. “This prima facie showing requires the

plaintiff to prove a significant statistical disparity and to demonstrate that the

disparity” is the result of a particular employment practice. Id. (internal citations and

quotations omitted). Statistical disparities may show causation “when those

disparities are substantial and the statistical evidence is reliable.” Id. at 477.

Relying primarily on Hazelwood School District v. United States, 433

U.S. 299 (1977), Defendants argue that the court must dismiss the complaint because

the United States has failed to allege the “gross” statistical disparity required for its

disparate impact claim to be viable. However, while a plaintiff in a disparate impact

case must ultimately demonstrate a significant statistical disparity, the burden a

plaintiff must meet to survive a motion to dismiss “is much less onerous.” Ladd, 463

F. Supp. 2d at 523 (citing Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999)

6(...continued) no question that disparate impact claims are cognizable under Title VII, the grant of certiorari in Inclusive Communities is irrelevant. Nothing in Inclusive Communities casts any doubt on the continued vitality of disparate impact cases under Title VII.
14

(explaining the parties’ burdens in a Title VI disparate impact case, which, as the Powell court notes, are the same for a Title VII disparate impact case). Indeed, courts have repeatedly held that defendants are “wrong” to insist that a disparate impact complaint must allege “percentages, statistics, or data demonstrating the disproportionate effect of facially neutral employment policies on a protected group.” McQueen v. City of Chicago, 803 F. Supp. 2d 892, 906 (N.D. Ill. 2011) (listing cases). As the Third Circuit has explained:
the prima facie case under disparate impact analysis is an evidentiary standard—it defines the quantum of proof [a] plaintiff must present to create a rebuttable presumption of discrimination. Under the Federal Rules of Civil Procedure, an evidentiary standard is not a proper measure of whether a complaint fails to state a claim. Powell, 199 F.3d at 394 (quoting Ring v. First Interstate Mortg., Inc., 984 F.2d 924, 926 (8th Cir. 1993)). Therefore, “when a federal court reviews the sufficiency of a complaint . . . the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Ladd, 463 F. Supp. at 523 (quoting Powell, 189 F.3d at 394). At the motion to dismiss stage in a disparate impact case, the plaintiff need only plead that a facially neutral employment practice’s adverse effects fall disproportionately on a group protected by Title VII. Id. Here, the complaint identifies the specific employment practice allegedly creating a disparate impact: the 2003 and 2009 PFTs. The complaint alleges that Defendants’ use of the 2003 and 2009 PFTs has had a disproportionately adverse effect on female applicants for entry-level PSP trooper positions in relation to their male counterparts. Taken together, and drawing all inferences in the United States’ favor, the complaint has adequately alleged that Defendants’ employment
15

practice has had a disparate impact on women. Nothing more is required at this stage.

IV.

Conclusion

For the foregoing reasons, the court concludes that it has subject matter

jurisdiction over a Section 707(a) action brought by the United States to assert a

disparate impact claim against a state. The court further concludes that the complaint

in this case has stated such a claim. Accordingly, Defendants’ motion to dismiss will

be denied.

An appropriate order follows.

s/Sylvia H. Rambo United States District Judge

Dated: May 21, 2015.

16

 
 Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, :

:

Plaintiff,

:

:

v.

:

:

COMMONWEALTH OF

:

PENNSYLVANIA and

:

PENNSYLVANIA STATE POLICE, :

:

Defendants.

:

Civil No. 1:14-cv-1474 Judge Sylvia H. Rambo

M E M O R A N D U M

In this employment discrimination action, the United States of America

sued the Commonwealth of Pennsylvania and the Pennsylvania State Police,

alleging that the Commonwealth of Pennsylvania engaged in a “pattern or

practice” of unlawful discrimination against females applying for employment as

entry level troopers with the Pennsylvania State Police, resulting in disparate

impact in violation of Title VII of the Civil Rights Act of 1964. Specifically, the

United States of America challenges the Commonwealth of Pennsylvania and the

Pennsylvania State Police’s use of the 2003 Physical Readiness Test and the 2009

Physical Readiness Test to screen and select applicants for trooper positions.

Presently before the court are cross-motions for summary judgment. For the

reasons stated herein, the court will grant Plaintiff’s motion for partial summary

judgment and deny Defendants’ motion for summary judgment.

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 2 of 32
I. Background In considering the instant motions, the court relied on the uncontested facts,
or where the facts were disputed, viewed the facts and deduced all reasonable inferences therefrom in the light most favorable to the nonmoving party.
A. Facts The Commonwealth of Pennsylvania (“Commonwealth”) and the Pennsylvania State Police (“PSP”) (collectively “Defendants”) are public employers created by the laws of the Commonwealth of Pennsylvania. Defendants are also persons within the meaning of 42 U.S.C. § 2000e(a); specifically, the Commonwealth is a state government and the PSP is a governmental agency. The parties defined certain terms in their statements of facts, which the court will adopt for ease of reference. “Trooper” refers to the entry-level position for uniformed officers with the PSP, including their time spent as a cadet at the Academy. “Academy” refers to the six-month training program that troopers must complete successfully in order to serve as uniformed officers for PSP. “Physical Readiness Test” or “PRT” refers to a battery of physical fitness events used by Defendants as part of the selection process for the PSP entry-level troopers.1 “2003 PRT” refers to
1 It appears that Defendants previously used the term “physical fitness test,” rather than “physical readiness test” to refer to the physical portion of the trooper selection process. (Compare Docs. 80-1, p. 4 of 24 and 80-4, p. 4 of 13 with Doc. 80-2, p. 4 of 10.) The court will use “physical readiness test” or “PRT” to reference the physical portion of the trooper selection process throughout this memorandum and accompanying order.
2

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 3 of 32
the PRT that the PSP used from May 2003 until April 2009. Finally, “2009 PRT” refers to the PRT that the PSP has used since October 2010.
The PSP provides services including criminal investigations, support of municipal police forces, traffic enforcement, and public safety throughout the entire Commonwealth of Pennsylvania. A trooper’s essential job functions include: making arrests; preparing investigative and other reports; exercising independent judgment; operating law enforcement vehicles including in emergency situations and hazardous conditions; communicating effectively and coherently with the public and when using radio channels; gathering and interpreting information for investigations; pursuing fleeing suspects which could involve lifting, climbing, jumping, and balancing; loading, unloading, aiming and firing different types of firearms in a variety of situations; performing searches of people, vehicles, buildings, and large areas; conducting surveillance; engaging in patrol functions; demonstrating effective communication skills and proper demeanor in court and other formal settings; detecting and collecting evidence; enduring verbal and mental abuse when in an antagonistic environment; performing rescue functions; processing and transporting suspects, prisoners, and committed mental patients; utilizing and operating emergency equipment; and reading and comprehending legal and non-legal documents. (Doc. 85-5, pp. 2-3.)
3

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 4 of 32
PSP trooper applicants must pass all steps of the selection process and then complete a six-month training academy. All residents of the Commonwealth of Pennsylvania between the ages of twenty and forty years old who meet the PSP’s education requirements are eligible to apply to become a PSP trooper. Since 2003, the selection process for troopers has included the following steps: (1) an application screening; (2) a written examination; (3) an oral examination; (4) ranking on an eligibility list; (5) a physical fitness or physical readiness test; (6) a polygraph examination; (7) a background investigation; and (8) medical and psychological processing. Applicants that successfully complete the selection process receive an offer to train as a trooper at the PSP Academy.
Because the physical tasks a trooper performs involve the trooper, other troopers, and the public, the PSP seeks to determine which applicants are likely to possess the ability to perform these physical job functions through its application process. The PSP purportedly uses the PRT as a mechanism for testing the ability of trooper applicants to perform the physical job functions of the trooper position. Prior to May 2003, Defendants used a physical fitness test that had different raw cutoff scores based on age and gender. (Doc. 80-4, p. 4 of 13.) In 2001, Fitness Intervention Technologies (“FIT”) was hired to identify job-related physical fitness tests, standards and programs for the PSP. In 1999, FIT collected data in an abbreviated study regarding the physical tasks of the PSP trooper job through a
4

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 5 of 32

“job task analysis.” FIT used this 1999 data in its 2001 study, which compared data

about the physical job tasks of PSP troopers to similar data from other police

agencies.2 Following FIT’s study, the PSP began administering the 2003 PRT to

applicants between May 2003 and April 2009. The events and cutoff scores for the

2003 PRT are:

2003 PRT

Event

Cutoff Scores

300 meter run

67 seconds

Sit-ups

30 repetitions in one

minute

Push-ups

13 repetitions in one

minute3

Vertical jump

14 inches

1.5 mile run

16 minutes 54 seconds

Prior to March 2006, the PSP contracted with FIT to conduct a validation

study, a study specific to the PSP without using standards from another law

enforcement agency. FIT provided its report, “Physical Fitness Standards

Validation for the Pennsylvania State Police,” to the PSP in March 2006. In

November 2009, the PSP began administering a new physical readiness test, which

implemented the standards proposed in FIT’s report. The administration of the

2 This type of study is called a transportability study.
3 There is conflicting evidence regarding whether the push-ups were timed. (Compare Doc. 80-1, p. 4 of 24, with Doc. 85-9, p. 2 of 3.)
5

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 6 of 32

2009 PRT being challenged in this litigation began on October 17, 2010 and continues through today.4 The events and cutoff scores for the 2009 PRT are:

2009 PRT

Event

Cutoff Scores

Vertical jump

14 inches in 3 attempts

Illinois agility run

23.5 seconds

300 meter run

77 seconds

Push-ups

13 repetitions

1.5 mile run

17 minutes 48 seconds

Both the 2003 PRT and the 2009 PRT have unitary cutoff scores that are not

age or gender based. If an applicant failed any event in either the 2003 or 2009

PRT, then he or she failed the entire PRT. From 2003 through 2008, applicants

who failed the 2003 PRT were permitted to re-take the test once without re-

applying. However, this practice was discontinued around February 2008.

Defendants compiled and provided data to the United States of America

(“Plaintiff” or “United States”) for all applicants who took the 2003 and/or 2009

PRT between May 2003 and February 2015 (hereinafter “PRT database”), and

provided a memorandum detailing the protocol followed to create the database

(hereinafter “PRT database protocol”). The PRT database contains identifying

information for all applicants who signed up to take the 2003 PRT and/or 2009

PRT, including their applicant identification number, first and last name, gender,

birth date, application year, and the last four digits of their Social Security number.

4 It should be noted that the PSP did not administer the Illinois agility run from October 17, 2010 through May 8, 2011. (Doc. 80-3, p. 4 of 15.)
6

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 7 of 32
Additionally, the PRT database specifies the dates on which each applicant was scheduled to take the PRT, whether he or she started the PRT, and the outcomes on the PRT. It further includes records of applicants who were scheduled to take a PRT but did not actually take the PRT on the scheduled date. The parties’ statistical experts relied on the PRT dataset in preparing their expert reports.
B. Procedural History5 Plaintiff initiated this action by filing a complaint in the Middle District of Pennsylvania on July 29, 2014. (Doc. 1.) In its complaint, the United States asserts that Defendants have violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). (Id.) More specifically, the United States alleges that Defendants’ use of physical fitness tests to screen and select applicants for entry-level PSP trooper positions has an unlawful disparate impact against female applicants, who have passed the physical fitness tests—and thus been hired—at significantly lower rates than male applicants. (Id. at ¶¶ 20-21, 23, 25, 27(b).) On November 10, 2014, Defendants filed a motion to dismiss primarily arguing that Title VII’s Section 707(a), pursuant to which the United States filed this suit, only confers authority upon the United States to bring claims for disparate treatment, and, therefore, the court lacks subject matter jurisdiction over Plaintiff’s claim for disparate impact. (Doc. 26.) Once the motion was ripe,
5 The court granted the parties’ request to bifurcate this matter into liability and relief phases on February 9, 2015. (Docs. 38-39.) The liability phase is currently being litigated before the court.
7

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 8 of 32
the court issued a memorandum and order on May 21, 2015 denying Defendants’ motion to dismiss. (Docs. 45-46); United States v. Pennsylvania, 110 F. Supp. 3d 544 (M.D. Pa. 2015). Defendants subsequently answered the complaint on June 18, 2015. (Doc. 52.)
The United States filed a motion for partial summary judgment along with a supporting brief, declaration, and statement of facts on August 19, 2016. (Docs. 79-82.) That same day, Defendants filed their motion for summary judgment, brief in support, and statement of facts. (Docs. 83-85.) Both motions have been fully briefed (Docs. 87-95, 99-100, 106, 109, 116-117) and are ripe for disposition. II. Legal Standard
Federal Rule of Civil Procedure 56 sets forth the standard and procedures for the grant of summary judgment. Rule 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A factual dispute is “material” if it might affect the outcome of the suit under the applicable substantive law, and is “genuine” only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When evaluating a motion for summary judgment, a court “must view the facts in
8

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 9 of 32
the light most favorable to the non-moving party” and draw all reasonable inferences in favor of the same. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex, 477 U.S. at 324. “Once the moving party points to evidence demonstrating no issue of material fact exists, the nonmoving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.” Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). The non-moving party may not simply sit back and rest on the allegations in its complaint; instead, it must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations omitted); see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Summary judgment should be granted where a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden at trial.” Celotex, 477 U.S. at 322-23. “Such affirmative evidence – regardless of whether it is direct or circumstantial – must amount to more than a scintilla, but may amount to less (in the evaluation of
9

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 10 of 32
the court) than a preponderance.” Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). III. Discussion
Title VII endeavors to ensure that workplaces are free of discrimination and that employment decisions are made based on qualifications rather than on extraneous factors such as race or gender. NAACP v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011) (citing Ricci v. DeStefano, 557 U.S. 557, 580 (2009)). To that end, “Title VII makes it illegal for an employer to ‘limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin’” Id. (quoting 42 U.S.C. § 2000e-2(a)(2)). Title VII prohibits both intentional discrimination, known as disparate treatment discrimination, as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, known as disparate impact discrimination. Ricci, 557 U.S. at 577.
Disparate impact discrimination, the type of discrimination alleged in this action, is a brand of “unintentional discrimination,” whereby “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another” are prohibited. Int’l Bhd. of
10

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 11 of 32
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Although the employer acts without a deliberately discriminatory motive, its actions are functionally equivalent to intentional discrimination. Ladd v. Boeing Co., 463 F. Supp. 2d 516, 521 (E.D. Pa. 2006) (citing Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 987 (1988)). Consequently, evidence submitted in disparate impact cases tends to focus on statistical disparities rather than specific incidents, and on competing explanations for those disparities. Id.
The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that result in a disparate impact. Ricci, 557 U.S. at 578. Rather, the disparate impact theory of discrimination under Title VII was judicially created by the Supreme Court in 1971 in the seminal case of Griggs v. Duke Power Co., 401 U.S. 424 (1971). Recognizing that Congress’ objective in enacting Title VII was to achieve equality and remove barriers in employment, the Court held that Title VII was meant not only to proscribe overt discrimination, but also to prevent “practices that are fair in form, but discriminatory in operation.” Griggs, 401 U.S. at 429-31.
Twenty years after Griggs, Congress codified the prohibition on disparate impact discrimination in the Civil Rights Act of 1991. Ricci, 557 U.S. at 578; see N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477 n.9 (noting that the Civil Rights Act of 1991 reversed a Supreme Court case that had weakened the standard for
11

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 12 of 32
finding employment practices not a violation of Title VII). Under the statute, the plaintiff must “demonstrate[] that a respondent 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. § 2000-e2(k)(1)(A)(i). The employer may then defend against the plaintiff’s prima facie showing of disparate impact only by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Id. Even if the employer meets that burden, however, the plaintiff may still succeed “by showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified.” N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477 (citing 42 U.S.C. § 2000e-2(k)(1)(A)(ii),(C)).
Defendants move for summary judgment on three bases: (1) that disparate impact claims are not cognizable under 42 U.S.C. § 2000e-6(a)6 because of Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015); (2) that Title VII on its face prohibits different employment standards based on sex; and (3) that the United States fails the last element of its burden by suggesting the adoption of gender-based fitness tests as an alternative selection device to the PRT. (Doc. 84.) In contrast, Plaintiff argues in favor of partial summary judgment that it has satisfied the first prong of the Title
6 Consistent with the parties’ previous filings and this court’s May 21, 2015 memorandum, the court will refer to this provision by its Statutes at Large section number, Section 707(a).
12

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 13 of 32
VII burden-shifting framework by showing that women pass the 2003 PRT and 2009 PRT at statistically significantly lower rates than men. (Doc. 82.) The court will address each argument in turn.
A. The United States’ Authority to Assert a Disparate Impact Claim Under Section 707(a)
Defendants’ principal argument is that Title VII disparate impact claims are not within the jurisdiction of this court under Section 707(a) because of the Supreme Court’s recent opinion in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. (Doc. 84, pp. 12-22 of 36.) According to Defendants, Inclusive Communities sets forth the proper analysis to “interpret statutes that purport to create a cause of action for disparate impact.” (Id. at 12-13 of 36.) Defendants present a lengthy argument relying on Inclusive Communities to reinterpret Section 707 and conclude that it “cannot validly be interpreted to allow disparate impact claims,” thus, the court lacks jurisdiction. (Id. at 20 of 36.) They further argue that all decisions issued prior to Inclusive Communities are not binding and the court has no basis to rely on anything other than Inclusive Communities. (Id. at 21-22 of 36.)
The Commonwealth and the PSP previously presented this jurisdictional theory in their motion to dismiss. (Docs. 26 & 31.) There, Defendants set forth a nearly identical statutory interpretation argument and relied, in part, on Inclusive Communities in the motion to dismiss even though the Supreme Court had only
13

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 14 of 32
granted certiorari at that time.7 (Doc. 31, pp. 17-24 of 30.) In its May 21, 2015
memorandum denying Defendant’s motion to dismiss and holding that the court
had subject matter jurisdiction under Section 707, the court stated:
Defendants further argue that the court should be guided by the Supreme Court’s decision to grant certiorari in a case brought pursuant to the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601, et seq., Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 46 (2014). The question presented in Inclusive Communities is whether, based on the text of the FHA, disparate impact claims are cognizable under the FHA. Brief for Petitioner at 5, Inclusive Communities, 135 S. Ct. 36 (2014) (No. 13-1371), 2014 WL 1989121 at *1. Because there is no question that disparate impact claims are cognizable under Title VII, the grant of certiorari in Inclusive Communities is irrelevant. Nothing in Inclusive Communities casts any doubt on the continued validity of disparate impact cases under Title VII.
United States v. Pennsylvania, 110 F. Supp. 3d 544, 552 n.6 (M.D. Pa. 2015).
To begin with, Defendants’ contention that their statutory interpretation
argument is a proper motion for summary judgment under Federal Rule of Civil
Procedure 56 is disingenuous. (See Doc. 95, p. 5 of 23.) As Plaintiff indicates,
Defendants essentially request that the court revisit and overturn its May 21, 2015
ruling due to the final decision in Inclusive Communities. (See Doc. 90, pp. 10-11
of 31.) The law of the case doctrine gives the court “the power to revisit prior
7 On June 25, 2015, approximately one month after this court issued its memorandum and order regarding Defendants’ motion to dismiss, the Supreme Court affirmed and remanded Inclusive Communities. Inclusive Cmtys., 135 S. Ct. at 2512.
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Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 15 of 32
decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). This doctrine is a “rule of discretion rather than a limit on authority.” Schneyder v. Smith, 653 F.3d 313, 331 (3d Cir. 2011). The Third Circuit articulated three examples of extraordinary circumstances when the law of the case doctrine does not discourage revisiting a previous order: “(1) new evidence is available; (2) a supervening new law has been announced; or (3) the earlier decision was clearly erroneous and would create manifest injustice.” Id. at 331-32.
While the court recognizes that Inclusive Communities is new law, it is not supervening new law that affects the court’s jurisdiction over Title VII disparate impact cases. Inclusive Communities held that disparate impact claims were cognizable under the Fair Housing Act. Inclusive Cmtys., 135 S. Ct. at 2525. In coming to this conclusion, the Supreme Court considered the history of the two antidiscrimination statutes that preceded the Fair Housing Act, Title VII and the Age Discrimination in Employment Act. Id. at 2516-25. The Supreme Court’s decision in no way changed the legal framework for disparate impact claims under Title VII or the Age Discrimination in Employment Act. Rather, it expanded the disparate impact theory with regards to the Fair Housing Act. Hence, nothing in the Supreme Court’s opinion changes or undercuts the court’s finding that “the United
15

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 16 of 32
States is authorized to bring a pattern or practice claim of disparate impact discrimination under 707(a).” United States, 110 F. Supp. 3d at 551.
Accordingly, the court finds that Inclusive Communities does not provide supervening new law in the Title VII disparate impact context to warrant revisiting the court’s May 21, 2015 decision, and will deny Defendants’ motion for summary judgment in this regard.
B. Prima Facie Showing of Disparate Impact Discrimination In its motion for partial summary judgment, the United States argues that it can establish a prima facie case of disparate impact discrimination under prong one of Title VII’s three-prong burden shifting test. (Doc. 82.) Specifically, Plaintiff avers that it can prove through statistical evidence that Defendants’ use of the 2003 PRT and 2009 PRT have a disparate impact on women. (Id. at 13-28 of 31.) To establish a prima facie case of disparate impact, a plaintiff must identify “the specific employment practice that is challenged”8 and show that the employment practice “causes a disparate impact on the basis of race, color, religion, sex, or national origin.” Watson, 487 U.S. at 994; 42 U.S.C. § 2000e2(k)(1)(A)(i). To show causation, a plaintiff must provide “statistical evidence of a kind and degree sufficient to show that the practice in question has caused exclusion of applicants for jobs or promotions because of their membership in a
8 The parties do not dispute that the United States clearly identifies the employment practices that it is challenging, the 2003 PRT and 2009 PRT.
16

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 17 of 32
protected group.” Watson, 487 U.S. at 944; see also Stagi v. Nat’l R.R. Passenger Corp., 391 F. App’x 133, 136 (3d Cir. 2010); EEOC v. Greyhound Lines, 635 F.2d 188, 193 (3d Cir. 1980).
There is no strict mathematical formula for courts to apply to determine whether a plaintiff has established a prima facie case, but the Supreme Court has “consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation.” Watson, 487 U.S. at 994-95. The disparity needs to be sufficiently large so that “it is highly unlikely to have occurred at random . . . using one of several tests of statistical significance.” Stagi, 635 F.2d at 144. Courts, including the Third Circuit, typically measure statistical significance by probability levels (“p-values”) and standard deviation.9 Id. at 137, 140. Although there is no precise threshold, “a finding of statistical significance with a probability level at or below 0.05, or at 2 to 3 standard deviations or greater, will typically be sufficient” to meet plaintiff’s burden. Id. at 140 (citing Castaneda v. Partida, 460 U.S. 482, 496 n.17 (1977) (“As a general rule for . . . large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the [result] was random would be suspect to a social scientist.”)); see also Waisom v. Port Auth.,
9 P-values are “the probability that the observed disparity is random-the result of chance fluctuation or distribution,” while standard deviation is “a unit of measurement that allows statisticians to measure all types of disparities in common terms.” Stagi, 635 F.2d at 137.
17

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 18 of 32
948 F.2d 1370, 1376 (2d Cir. 1991) (“Social scientists consider a finding of two standard deviations significant, meaning there is about one chance in 20 that the explanation for a deviation could be random and the deviation must be accounted for by some factor other than chance.”). Using statistical significance rather than another method allows “a fact-finder to be confident that the relationship between some rule or policy and some set of disparate impact results was not the product of chance.” Stagi, 391 F. App’x at 145 (citing Watson, 487 U.S. at 994-95).
Some courts have used the Equal Employment Opportunity Commission’s (“EEOC”) Uniform Guidelines on Employee Selection Procedures “80 percent rule” to determine whether a plaintiff has established a prima facie disparate impact case. Id. at 138. However, the “‘80 percent rule’ or ‘four-fifths rule’ has come under substantial criticism, and has not been particularly persuasive, at least as a prerequisite for making out a prima facie disparate impact case.” Id.; see Watson, 487 U.S. at 995 n.3 (“This enforcement standard has been criticized on technical grounds . . . and it has not provided more than a rule of thumb for the courts.”). Thus, to establish a prima facie disparate impact case, a plaintiff does not need to show that the disparate impact ratio satisfies the EEOC’s 80 percent rule. Stagi, 391 F. App’x at 144.
The United States presents Dr. Janice Madden, a labor economist and statistical expert, in support of its prima facie case. (See Doc. 80-11.) Defendants
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provide three experts to rebut Dr. Madden: Dr. Brice Stone, a statistical expert; Dr. William Fairley, also a statistical expert; and Dr. Palmer Morrel-Samuels, an experimental social psychologist. (See Docs. 80-8, 80-9, & 80-10.)
1. Dr. Madden’s Analysis Dr. Madden compared the pass rates of the 2003 PRT and 2009 PRT of female applicants to the pass rates of male applicants. (Doc. 80-11, p. 6 of 37.) She counted an individual as taking the 2003 or 2009 PRT if the individual was described by the PRT database as: (1) having an outcome recorded, such as pass or fail; and (2) having quit or withdrawn from the PRT after starting it. (Id. at 7 of 37 n.2.) Dr. Madden utilized the multiple pools exact test, a widely used statistical significance test, to determine whether any observed disparities in the passing rates of men and women on the 2003 PRT or the 2009 PRT could be attributed to random chance. (Id. at 7-8 of 37.) Using the multiple pools exact test, Dr. Madden analyzed the gender differences in pass rates for the 2003 and 2009 PRTs in three ways: (1) each time an applicant took a PRT (Table 1a); (2) each applicants first time taking a PRT (Table 1b); and (3) each applicant’s last time taking a PRT (Table 1c). (Id. at 9-10, 17 of 37.) Dr. Madden opines that using the results for each time an applicant took a PRT, as detailed in Table 1a of her report, is best for measuring whether there is a gender disparity in PRT outcomes because it uses all the information on test takers, including the results for applicants who took the
19

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 20 of 32

PRT more than one time. (Id. at 9 of 37.) For each of the data sets, Dr. Madden

calculated an overall p-value for the time period in which the 2003 PRT and 2009

PRT were administered and then converted the p-values into equivalent standard

deviations. (Id. at 8 of 37.)10

Dr. Madden’s primary analysis as described in Table 1a, and recreated

below, details the results for each time an applicant took a PRT. (Id. at 17 of 37.)

Years test was
administered

Table 1a

Gender differences in passing the PRT based on all PRT attempts

Women

Men

Standard

Women’s

deviation pass rate as

Number Number Pass Number Number Pass equivalents: percentage

taking passing rate taking passing rate

gender

of men’s

test

test

test

test

difference in pass rate

pass rates

2003-2009 578

318 55% 4,735 4,180 88%

>7.0

62%

2010-2015 572

419 73% 5,363 5241 98%

>7.0

75%

Number of additional women who would have passed with equivalent pass rates by
gender 151.8 123.0

As detailed above, only 55% of women passed the 2003 PRT in comparison to

88% of men. (Id. at 9, 17 of 37.) Based on the multiple pools exact test, the

probability, or p-value, that 318 or fewer female test passers could have occurred at

random or by chance with a gender neutral selection process is

0.00000000000000000000000000000000000000000000000000000000000000001

441, which is equivalent to greater than seven standard deviations. (Id. at 10, 17 of

37.) Dr. Madden concluded that women passed the 2003 PRT at a statistically

significantly lower rate than men. (Id. at 10, 17 of 37.)

10 Dr. Madden did not report units of standard deviations greater than seven because she opines that there is no meaningful distinction after seven units are reached. (Doc. 83-13, p. 33 of 77.)
20

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 21 of 32

Dr. Madden also found that 73% of women passed the 2009 PRT with 98%

of men passing. (Id. at 10, 17 of 37.) Using the multiple pools exact test, the

probability that 419 or fewer female test passers could have occurred at random or

by chance with a gender neutral selection process is

0.00000000000000000000000000000000000000000000000000000000000000000

0000000000000000000507, which is equivalent to greater than seven standard

deviations. (Id. at 11, 17 of 37.) Dr. Madden once again concluded that women

passed the 2009 PRT at a statistically significantly lower rate than men. (Id. at 11,

17 of 37.)

As detailed in the recreated tables below, Dr. Madden also analyzed the

passing rates for each applicants first time taking a PRT (Table 1b), and each

applicant’s last time taking a PRT (Table 1c). (Id. at 17 of 37.)

Years test was
administered

Table 1b

Gender differences in passing the PRT based on first PRT attempt

Women

Men

Standard

Women’s

deviation pass rate as

Number Number Pass Number Number Pass equivalents: percentage

taking passing rate taking passing rate

gender

of men’s

test

test

test

test

difference in pass rate

pass rates

2003-2009 470

268 57% 4,275 3,802 89%

>7.0

64%

2010-2015 525

381 73% 4,901 4,787 98%

>7.0

74%

Number of additional women who would have passed with equivalent pass rates by
gender 122.6 115.1

21

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 22 of 32

Years test was
administered

Table 1c

Gender differences in passing the PRT based on last PRT attempt

Women

Men

Standard

Women’s

deviation pass rate as

Number Number Pass Number Number Pass equivalents: percentage

taking passing rate taking passing rate

gender

of men’s

test

test

test

test

difference in pass rate

pass rates

2003-2009 470

294 63% 4,275 3,927 92%

>7.0

68%

2010-2015 525

390 74% 4,901 4,797 98%

>7.0

76%

Number of additional women who would have passed with equivalent pass rates by
gender 111.4 108.0

These additional analyses resulted in the same conclusion as the primary analysis: pass rates exceeded seven standard deviations, thus, women passed the 2003 PRT and 2009 PRT at statistically significantly lower rates than men. (Id. at 12-13, 17 of 37.)
2. Dr. Stone’s Analysis Dr. Stone, one of Defendants’ experts, analyzed the difference in pass rates between men and women on the 2003 PRT and the 2009 PRT by studying applicant’s “last chronological record” in the PRT database for each year the 2003 or the 2009 PRT was administered.11 (Doc. 80-8, p. 5 of 36.) In his analysis, Dr. Stone removed “duplicate records for each individual,” that is, any instances where an applicant attempted the PRT more than once with the exception of the applicant’s last chronological record. (Id. at 5 of 36.) Dr. Stone states in his report: “It should be noted that the distribution of PRT outcomes for males versus females (presented in Table 3) [for the 2003 to 2014
11 Dr. Stone limited his analysis to those PRTs administered between 2003 and 2014. (Doc. 80-8, p. 5 of 36.)
22

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 23 of 32
time period] were statistically significantly different from one another.” (Id. at 7 of 36.) In his deposition, he testified that the p-value for the difference in male and female pass rates for the 2003 PRT and 2009 PRT is 0.1 or lower. (Doc. 80-15, p. 18 of 53.) He reports that from 2003 to 2008, the average pass rate for males was 96.68 percent, while the pass rate for females was 86.44 percent, which is a statistically significant difference. (Doc. 80-8, p. 8 of 36.) He concludes that the female pass rate is compliant with the 4/5ths rule as compared to the male pass rate, exhibiting a ratio of 0.885. (Id.) For the 2010 to 2014 time period, 98.51 percent of the male applicants passed the PRT with 78.63 percent of the female applicants passing, a statistically significant difference. (Id. at 9 of 36.) This ratio of 0.798 is “slightly less compliant” with the 4/5ths rule as compared to the male pass rate. (Id.) Dr. Stone opines that “rounding this ratio to the first decimal results in a 0.8 ratio, [and is] complaint with the 4/5ths rule.” (Id.)
3. Dr. Fairley’s Analysis As Defendants’ rebuttal expert, Dr. Fairley focuses his attention on critiquing Dr. Madden’s analysis but does not provide any results of his analysis of the PRT database or his early statistical significance testing other than to say that there is a difference in the pass rates. (Id. at 4-13 of 28.) His criticisms include that Dr. Madden’s report is exaggerated, contains false precision of probabilities, and
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assumes a particular and simplified theoretical model of probabilities. (Doc. 80-9, pp. 4-12 of 28; Doc. 88-2.)
As for providing his own statistical analysis, Dr. Fairley declined to so, indicating instead that “[t]here is a difference in pass rates between men and women in each of the test date periods.” (Doc. 80-9, p. 4 of 28.) Dr. Fairley did not calculate a p-value for the difference in pass rates between men and women, indicating that it was “not necessary” because there is “[s]o much data. It’s a foregone conclusion that the p-value is going to be less than .01.” (Doc. 80-16, p. 15 of 56.) Thus, without doing any calculation, he agreed in his deposition that the difference between men and women passing the 2003 and 2009 PRT was statistically significant. (Id.) Dr. Fairley further testified that he did not formally apply any measures of statistical significance, i.e. make a calculation, such as a pvalue or standard deviation, to the PRT database. (Id.) However, prior to the creation of the PRT database, Dr. Fairley used a collection of files from the PSP to run early statistical significance testing and found that there was a statistically significant difference between pass rates of men and women on the 2003 PRT and 2009 PRT. (Id. at 24 of 56.)
4. Dr. Morrel-Samuels’ Analysis Dr. Morrel-Samuels, Defendants’ second rebuttal expert, describes four flaws with Dr. Madden’s report. (Doc. 80-10, pp. 2-14.) He first asserts that
24

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 25 of 32
“counting standard deviations based on an expectation of exact parity is misleading on methodological grounds, and unjustified on statutory grounds.” (Id. at 3 of 14.) Next, Dr. Morrel-Samuels opines that Dr. Madden’s pooling method is flawed because it excludes eleven percent of the test administrations from the dataset, and “pooling gives each day an equal ‘weight’ regardless of numbers and proportions.” (Id. at 4 of 14.) Although Dr. Madden’s used the multiple pools exact test, Dr. Morrel-Samuels states that the Fishers Exact Test is “ill-suited for analyzing the wide variety of circumstances that we encounter in the PSP dataset.” (Id.) Third, Dr. Morrel-Samuels asserts that Dr. Madden’s “error of identifying ‘a shortfall of 3.8 women’ reveals the folly of its computational method” as 3.8 women cannot be harmed by a PRT. (Id. at 5-6 of 14.) Lastly, the most serious flaw in Dr. Madden’s report is the inability to measure the impact of nondiscriminatory factors such as age, weight, height, practice taking the test, and military service. (Id. at 6 of 14.)
5. Comparison of Expert Reports and Analysis While the parties’ respective experts disagree on the appropriate method of statistical analysis, Dr. Madden, Dr. Stone, and Dr. Fairley agree that women pass the 2003 PRT and 2009 PRT at statistically significantly lower rates than men; specifically, at a p-value of 0.1 or lower. Dr. Stone, Defendants’ primary statistics expert, frames his analysis in terms of the 80 percent or four-fifths rule. Defendants argue that the United States is bound to follow this rule, and the court should adopt
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Dr. Stone’s analysis, due to the language in Plaintiff’s complaint.12 (Doc. 87, pp. 10-11 of 28.) The court will not entertain Dr. Stone’s conclusion that the four-fifths rule is satisfied and, therefore, Plaintiff has not met its prima facie burden. As discussed earlier, supra section III(B), the four-fifths rule is a non-statistical standard that courts within the Third Circuit no longer follow. See Stagi, 391 F. App’x at 144.
As Dr. Madden points out in her rebuttal report, Dr. Stone’s analysis removes many PRT test takers by restricting his analysis to the last PRT record for each applicant and by removing all last PRT records that occurred in 2015. (Doc. 80-8, p. 5 of 36; Doc. 80-12, p. 5 of 21.) According to Dr. Madden’s analysis, Dr. Stone eliminated 65 PRT outcomes because the last record occurred in 2015. (Doc. 80-12, pp. 5 & 19 of 21.) He also deleted 774 applicants who took the PRT but whose last record did not include any PRT results. (Id.) Dr. Madden points to several examples of records Dr. Stone erroneously eliminated without any stated reason:
 Tonya Gordon who failed the PRT on August 22, 2008 and did not report for the PRT on December 18, 2008,
 Laura Mykytok who failed the PRT on May 23, 2006 and did not report for the PRT on August 24, 2006,
 Amanda Dunmyer who failed the PRT on June 9, 2008 and did not report for the PRT on August 20, 2008.
12 At several points in the complaint, the United States refers to the difference in pass rates between male and female applicants as statistically significant, and that “the female pass rate is less than 80% of the male pass rate.” (Doc. 1, ¶¶ 14-15, 18-19.)
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Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 27 of 32
(Id. at 5 of 21.) If Dr. Stone had included those 839 records, the four-fifths rule would not have been satisfied. (Id. at 5-7 of 21.)
Because Dr. Stone eliminated the 2015 PRT records from his analysis, Dr. Madden repeated her initial analysis for the 2009 PRT without the PRT outcomes from 2015. (Id. at 7 & 20 of 21.) Her revised results excluding 2015 PRT outcomes were similar to her original results: “The 76% average pass rate for women on the [2009 PRT] as administered between 2010 and 2014 is more than seven standard deviations lower than the 98% average pass rate for men taking the exam on the same day.” (Id. at 7.)
All three of Defendants’ experts agree that there is statistically significant disparity between men and women in passing rates on the 2003 and 2009 PRTs. However, other than Dr. Stone’s four-fifths rule analysis, none of the experts provide any calculations contrary to or disproving Dr. Madden’s probability values and standard deviation results. Rather, Defendants’ experts focus on discrediting Dr. Madden’s method of analysis, but do not suggest a more appropriate method with corresponding calculations. For example, Dr. Morrel-Samuels disapproves of the Fishers Exact Test but does not acknowledge that Dr. Madden used the more conservative multiple pools exact test. Further, Dr. Morrel-Samuels criticizes Dr. Madden because her statistical analysis flows from the assumption that if random chance were operating, men and women would be expected to have the same
27

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 28 of 32
probability of passing the PRT. Courts have noted that in order to determine what
the results would be without the salient variable of gender or race, one must
assume that the group will perform equally well absent discrimination. United
States v. City of New York, 637 F. Supp. 2d 77, 96-97 (E.D.N.Y. 2009). “Statistical
significance testing relies on this assumption of equality in assessing whether
disparities among groups are based upon chance, or rather, upon some other fact,
such as race or national origin.” Id. at 97 (citing Ottaviani v. State Univ. of N.Y. at
New Paltz, 875 F.2d 365 (2nd Cir. 1989)).13
Defendants and their experts also argue that the United States cannot meet
its prima facie burden because Dr. Madden’s analysis did not eliminate other
possible explanations for passing rates. (Doc. 87, pp. 20-22 of 28.) However, in
support of their argument, Defendants rely on numerous cases evaluating disparate
treatment, rather than disparate impact. Specifically, Defendants heavily rely on
Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997), as “a proper
13 The Seventh Circuit Court of Appeals provided a helpful example: If the relevant market is 40% African–American, for instance, one
would expect 40% of hires to be African–American. . . . If the
observed percentage of African–American hires is only 20%, then the statistician will compute the ‘standard deviation’ from the expected norm and indicate how likely it is that race played no part in the decision making. Two standard deviations is normally enough to show that it is extremely unlikely (that is, there is less than a 5% probability) that the disparity is due to chance, giving rise to a reasonable inference that the hiring was not race-neutral; the more standard deviations away [from zero], the less likely the factor in question played no role in the decision making process. Adams v. Ameritech Servs., Inc., 231 F.3d 414, 424 (7th Cir. 2000).
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Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 29 of 32
judicial analysis” for evaluating if Dr. Madden controlled or accounted for other factors besides gender. (Doc. 87, pp. 20-22 of 28.) Reliance on Sheehan and other disparate treatment cases is completely misguided, however, as the standards for evaluating disparate impact and disparate treatment cases are dissimilar. At the prima facie stage, the United States does not have the burden of eliminating all other possible explanations for passing rates – rather, it must simply proffer evidence “of a kind and degree sufficient to show that the practice in question has caused exclusion of applicants for jobs or promotions” because of their gender. Stagi, 391 F. App’x at 144.
The court is satisfied that the United States has met its prima facie burden of disparate impact and there is no genuine issue of material fact regarding this prong of the disparate impact analysis. Dr. Madden provides a comprehensive analysis of data showing women passed the 2003 PRT and 2009 PRT at statistically significantly lower rates than men with probability values far less than 0.5 and standard deviations greater than seven. Dr. Stone, Dr. Fairley, and Dr. MorrelSamuels do not provide convincing evidence, even when viewed in a light most favorable to Defendants, that Dr. Madden’s calculations are faulty or unreliable. Using the PRT database, Defendants’ own dataset, the United States provided sufficient statistical evidence of a kind and degree sufficient to show that the 2003 PRT and 2009 PRT has excluded women from continuing the hiring process to
29

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 30 of 32
become a trooper because of their gender. Accordingly, the court will grant Plaintiff’s motion for partial summary judgment.
C. Business Necessity of the PRT Because the United States has met its prima facie burden, Defendants can only defend this showing of disparate impact by demonstrating that the 2003 and 2009 PRT is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). The Third Circuit has interpreted this to mean “that employers may not use criteria which have a discriminatory effect unless those criteria define the minimum qualifications necessary to perform the job.” N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477 (citing Lanning v. Se. PA. Transp. Auth., 181 F. 3d 478, 489 (3d Cir. 1999) (“[I]n order to show the business necessity of a discriminatory cutoff score an employer must demonstrate that its cutoff measures the minimum qualifications necessary for successful performance of the job in question.”). The Defendants as the employer bear the burdens of production and persuasion and must provide actual reasons why the challenged employment practice, i.e., the 2003 and 2009 PRT, is important to the trooper position. Id. (citations omitted). The “mere assertion of . . . conceivable bases is not sufficient.” Id. (quoting NAACP v. Town of Harrison, N.J., 940 F. 2d 792, 804 (3d Cir. 1991)). Further, the Supreme Court has “refused to accept bare or ‘common-sense’-based
30

Case 1:14-cv-01474-SHR Document 129 Filed 10/02/17 Page 31 of 32
assertions of business necessity and instead required some level of empirical proof that challenged hiring criteria accurately predicts job performance.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 240 (3d Cir. 2007) (referring to multiple Supreme Court opinions including Griggs v. Duke Power, 401 U.S. 424 (1971) and Dothard v. Rawlinson, 433 U.S. 321 (1977)). If an employer cannot provide compelling evidence of business necessity, the plaintiff wins simply by proving a prima facie case. N. Hudson Reg’l Fire & Rescue, 665 F.3d at 477. Conversely, if the employer can present the appropriate evidence of business necessity, the plaintiff can overcome the employer’s defense by “showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified.” Id. (citing 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C)).
In the case at hand, the Commonwealth and the PSP have not moved for summary judgment nor presented any compelling evidence or argument regarding the business necessity of the 2003 PRT and 2009 PRT. Rather, Defendants ignore their burden and try to direct the court’s attention to the third part of the burden shifting test. As the United States aptly points out, Defendants are putting the cart before the horse. Defendants have the burdens of production and persuasion to show the court actual reasons why the 2003 and/or 2009 PRT is job related for the trooper position and consistent with business necessity. Because Defendants have
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not done so, the court need not address their arguments concerning the third prong of the disparate impact analysis. (See Doc. 84, pp. 22-34 of 36.) IV. Conclusion
For the reasons stated herein, the court will grant Plaintiff’s motion for partial summary judgment and deny Defendants’ motion for summary judgment. An appropriate order will issue.

Dated: October 2, 2017

s/Sylvia Rambo SYLVIA H. RAMBO United States District Judge

32

 
 Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 1 of 18
COMPLEX,HBG
United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:14−cv−01474−SHR

United States Of America v. Commonwealth Of Pennsylvania et Date Filed: 07/29/2014

al

Jury Demand: None

Assigned to: Honorable Sylvia H. Rambo

Nature of Suit: 442 Civil Rights: Jobs

Cause: 42:2000e Job Discrimination (Employment)

Jurisdiction: U.S. Government Plaintiff

Plaintiff

United States Of America

represented by Carol A Wong U.S. Department of Justice Civil Rights Division Employment Litigation Division 601 D Street, NW−PHB Washigton, DC 20579 202−514−4286 Email: carol.wong@usdoj.gov TERMINATED: 06/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Delora L. Kennebrew USDOJ, Employment Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−616−9100 Email: Delora.Kennebrew@crt.usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen D. Woodard United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−616−9100 TERMINATED: 03/12/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trevor St. George Blake U.S. Department of Justice 950 Pennsylvania Avenue, NW PHB, Room 4918 Washington, DC 20004 202−514−5034 Email: trevor.blake@usdoj.gov TERMINATED: 08/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara A Schwabauer United States Dept. of Justice − Civil Rights Division 601 D Street NW PHB 4918 Washington, DC 20579 202−305−3034 Email: barbara.schwabauer@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 2 of 18
Candyce D Phoenix U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Avenue, NW, PHB Room 4031 Washington, DC 20579 (202) 616−3871 Email: candyce.phoenix@usdoj.gov TERMINATED: 03/04/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kali J Schellenberg US DOJ Civil Rights Division 601 D St., NW PHB 4236 Washington, DC 20579 (202) 305−3194 Email: kali.schellenberg@usdoj.gov TERMINATED: 04/16/2019 PRO HAC VICE
Karen P Ruckert USDOJ, Civil Rights Division, Employment Litigation Section 601 D Street NW Rm 4030 Washington, DC 20004 202 616−9138 Email: Karen.Ruckert@usdoj.gov ATTORNEY TO BE NOTICED
Lori B Kisch USDOJ, Civil Rights Division, Employment Litigation 150 M Street, NE Washington, DC 20530 (202) 305−4422 Email: lori.kisch@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Robert L Galbreath USDOJ Civil Rights Division, Employment Litigation Section 150 M Street NE, Room 9.1140 Washington, DC 20002 202−353−9731 Email: robert.galbreath@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Sonya L Sacks U.S. DOJ Civil Rights Div., Employment Litigation Section 4 Constitution Square 150 M Street NE Rm 1143 Washington, DC 20530 202−305−7781 Email: sonya.sacks@usdoj.gov TERMINATED: 03/27/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 3 of 18

V. Defendant Commonwealth Of Pennsylvania
Defendant Pennsylvania State Police

represented by Patrick Sorek Burns White Burns White Center 48 26th Street Pittsburgh, PA 15222 412−995−3164 Email: psorek@burnswhite.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary−Jo Rebelo Burns White LLC Burns White Center 48 26th Street Pittsburgh, PA 15222 United Sta (412) 995−3347 Email: mjrebelo@burnswhite.com ATTORNEY TO BE NOTICED
Stephanie L. Solomon Burns White LLC Burns White Center 48 26th Street Pittsburgh, PA 15222 412.995.3095 Email: slsolomon@burnswhite.com TERMINATED: 06/19/2019 ATTORNEY TO BE NOTICED
David B. White BURNS WHITE LLC Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 412.995.3210 Email: dbwhite@burnswhite.com ATTORNEY TO BE NOTICED
represented by Patrick Sorek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary−Jo Rebelo (See above for address) ATTORNEY TO BE NOTICED
Stephanie L. Solomon (See above for address) ATTORNEY TO BE NOTICED
David B. White (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 4 of 18

07/29/2014 07/29/2014 07/29/2014 07/29/2014
07/30/2014 07/30/2014 09/08/2014
09/08/2014 09/08/2014 09/08/2014 09/08/2014 09/08/2014 09/08/2014 09/08/2014 09/09/2014 09/12/2014
09/19/2014

1 COMPLAINT against All Defendants filed by United States Of America. (Attachments: # 1 Civil Cover Sheet)(pjr) (Entered: 07/29/2014)
2 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) filed by Trevor St. George Blake on behalf of United States Of America Attorney Trevor Blake is seeking special admission. (pjr) (Entered: 07/29/2014)
3 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Carol A Wong on behalf of United States Of America Attorney Carol Wong is seeking special admission. (pjr) (Entered: 07/29/2014)
4 Summons Issued as to United States Of America and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e−mail and serve them with the complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (pjr) (Entered: 07/29/2014)
5 SPECIAL ADMISSIONS FORM APPROVED as to Carol Wong.Signed by Honorable Sylvia H. Rambo on 07/30/14. (pjr) (Entered: 07/30/2014)
6 SPECIAL ADMISSIONS FORM APPROVED as to Trevor Blake II.Signed by Honorable Sylvia H. Rambo on 07/30/14. (pjr) (Entered: 07/30/2014)
7 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by David B. White on behalf of Commonwealth Of Pennsylvania, Pennsylvania State Police Attorney Patrick Sorek is seeking special admission. Filing fee $ 50, receipt number 0314−3212563., filed by on behalf of Commonwealth Of Pennsylvania, Pennsylvania State Police.(White, David) (Entered: 09/08/2014)
DOCKET ANNOTATION: Counsel is advised to file the Professional Code of Conduct form for Doc. 7. (pjr) (Entered: 09/08/2014)
DOCKET ANNOTATION: Search of Pennsylvania Bar Directory shows Patrick Sorek as "ACTIVE". (pjr) (Entered: 09/08/2014)
8 NOTICE of Appearance by David B. White on behalf of Commonwealth Of Pennsylvania, Pennsylvania State Police (White, David) (Entered: 09/08/2014)
9 WAIVER OF SERVICE Returned by Commonwealth Of Pennsylvania. Commonwealth Of Pennsylvania waiver sent on 8/6/2014, answer due 10/6/2014. (White, David) (Entered: 09/08/2014)
10 WAIVER OF SERVICE Returned by Pennsylvania State Police. Pennsylvania State Police waiver sent on 8/6/2014, answer due 10/6/2014. (White, David) (Entered: 09/08/2014)
11 NOTICE of Appearance by Stephanie L. Solomon on behalf of Commonwealth Of Pennsylvania, Pennsylvania State Police (Solomon, Stephanie) (Entered: 09/08/2014)
12 Supplement by Commonwealth Of Pennsylvania, Pennsylvania State Police. to 7 Petition for Special Admission − Pro Hac Vice, . (White, David) (Entered: 09/08/2014)
13 SPECIAL ADMISSIONS FORM APPROVED as to Patrick Sorek, Esq. on behalf of Cmnwlth of PA, et al., Signed by Honorable Sylvia H. Rambo on 09/09/14. (ma) (Entered: 09/09/2014)
14 NOTICE of Hearing: A Case Management Conference has been set for 10/22/2014 @ 9:15 AM before Honorable Sylvia H. Rambo.This conference is by phone with the call to be initiated by the pltf. A joint case mgmnt plan is to be filed by 10/15/14 (ma) (Entered: 09/12/2014)
15 STIPULATION re 1 Complaint EXTENSION OF TIME TO RESPOND TO COMPLAINT by Commonwealth Of Pennsylvania, Pennsylvania State Police. (White, David) (Entered: 09/19/2014)

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09/19/2014 10/15/2014 10/29/2014
10/29/2014
11/05/2014 11/06/2014
11/06/2014 11/07/2014 11/07/2014 11/10/2014

16 Order approving the parties' Stipulation 15 to exttm to respond to complaint. Response to complaint due by 11/5/14Signed by Honorable Sylvia H. Rambo on 09/19/14. (ma) (Entered: 09/19/2014)
17 CASE MANAGEMENT PLAN (JOINT) by United States Of America. (Blake, Trevor) (Entered: 10/15/2014)
19 CASE MANAGEMENT ORDER − This case placed on the 1/4/16 trial list and is listed as non−jury. Amended Pleadings and joinder of parties ddl 12/22/2014. Fact Discovery due by 4/20/2015. Pltf Expert Report(s) due by 5/22/2015. Dfts' Expert Report(s) due by 6/22/2015. Trial set for 1/4/2016 following completion of all jury selections beginning at 9:30 AM. Pretrial Memos due by 12/10/2015. A Pretrial Conference has been set for 12/17/2015 @ 10:30 AM before Honorable Sylvia H. Rambo. A date certain for trail may be discussed at this conference. See order for other ddls.Signed by Honorable Sylvia H. Rambo on 10/28/14. (ma) (Entered: 10/29/2014)
20 ORDER: Pltf shall file a mtn for protective order, accompanied by a brsup, on the issues discussed at the case mgmnt conference by 11/17/14. Dfts response and Pltfs reply brief shall be filed in accord with the time lines set forth in the LRs of Court for the MD of PA. Depositions shall be limited to 15, not including expert depositions. Anyone wishing to expand such a limit shall request a conference call. Costs for electronic discovery shall be borne by the respective parties. In the event any party deems a discovery request burdensome, claims privilege to a discovery request, or otherwise objects to a discovery request, the party advancing such a claim shall request a conference call with the court to discuss the issue. Dfts have advised the court that a mtn to dismiss will be forthcoming. Said mtn shall be filed no later than 11/10/14. Signed by Honorable Sylvia H. Rambo on 10/29/14. (ma) (Entered: 10/29/2014)
21 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Barbara A Schwabauer on behalf of United States Of America Attorney Barbara Schwabauer is seeking special admission.. (Schwabauer, Barbara) (Entered: 11/05/2014)
22 ORDER: With respect to the issue regarding the alternative schedule for theexchange of expert reports, the parties are DIRECTED to file a stipulation outlining the procedure and time line agreed for the process. It is suggested that said stipulation be signed by the parties and have a line for the courts approval. With respect to the issue regarding the motion for protective order, the pertinent portion of the 10/29/14 order provided as follows:During the conference, Pltf obj'd to Dfts proposed discovery of the following:(1) on third parties including, but not limited to, other federal agencies that conduct a PFT as part of their hiring process, which Dfts contend would be undertaken for consideration by experts in rendering their opinions; and (2) discovery and depositions of individuals who were involved in the UnitedStates investigation of PSPs entry−level trooper hiring process, which Dftscontend would be undertaken to obtain information about their experience with the application and testing process. Pltf shall file a motion for protective order, accompanied by a supporting brief, on the foregoing issuesby 11/17/14. (Doc. 20.) Based on the representation of Atty Wong that Dfts haveagreed to propound more specific discovery that may alleviate the need for aprotective order, IT IS HEREBY ORDERED that the 11/17/14 ddl for filing a motion for protective order in this regard is SUSPENDED until such time Pltf believes such a motion is necessary. Signed by Honorable Sylvia H. Rambo on 11/6/14. (ma) (Entered: 11/06/2014)
23 SPECIAL ADMISSIONS FORM APPROVED as to Barbara Schwabauer, Esq. on behalf of PltfSigned by Honorable Sylvia H. Rambo on 11/6/14. (ma) (Entered: 11/07/2014)
24 STIPULATION re Discovery by United States Of America. (Attachments: # 1 Exhibit(s) Stipulation, # 2 Proposed Order)(Wong, Carol) (Entered: 11/07/2014)
DOCKET ANNOTATION: Search of the Ohio Bar Directory shows Barbara Schwabauer as "ACTIVE". (pjr) (Entered: 11/07/2014)
25 Order approving Stipulation 24 . Discovery Stipulation is hereby approved by this Court, and the terms of the Discovery Stipulation are incorporated in this Order. Signed by Honorable Sylvia H. Rambo on 11/10/14. (ma) (Entered: 11/10/2014)

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 6 of 18

11/10/2014 11/13/2014 11/13/2014 11/20/2014 11/20/2014
11/24/2014 12/22/2014 01/19/2015 01/23/2015 01/23/2015 01/26/2015 01/27/2015 01/29/2015 02/09/2015 02/09/2015
03/16/2015 03/18/2015

26 MOTION to Dismiss for Lack of Jurisdiction by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(White, David) (Entered: 11/10/2014)
27 STIPULATION on Expert Reporting Schedule by United States Of America. (Schwabauer, Barbara) (Entered: 11/13/2014)
28 Order approving Stipulation on Expert Reporting Schedule 27 Signed by Honorable Sylvia H. Rambo on 11/13/14. (ma) (Entered: 11/14/2014)
29 STIPULATION re Extensions of Time to Respond by United States Of America. (Wong, Carol) (Entered: 11/20/2014)
30 Order approving Stipulation 29 of the parties. Ddls are extended as follows re. Dfts' MOTION to Dismiss 26 . Brief in Support due by 11/24/2014, Brief in Opposition due by 12/22/2014, Reply Brief due by 1/20/2015.Signed by Honorable Sylvia H. Rambo on 11/20/14. (ma) (Entered: 11/20/2014)
31 BRIEF IN SUPPORT re 26 MOTION to Dismiss for Lack of Jurisdiction filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s))(White, David) (Entered: 11/24/2014)
32 BRIEF IN OPPOSITION re 26 MOTION to Dismiss for Lack of Jurisdiction filed by United States Of America.(Wong, Carol) (Entered: 12/22/2014)
33 REPLY BRIEF re 26 MOTION to Dismiss for Lack of Jurisdiction of Defendants in Support of Motion to Dismiss filed by Commonwealth Of Pennsylvania, Pennsylvania State Police.(White, David) (Entered: 01/19/2015)
34 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Karen P Ruckert on behalf of United States Of America Attorney Karen Ruckert is seeking special admission.. (Ruckert, Karen) (Entered: 01/23/2015)
DOCKET ANNOTATION: Petitioning attorney and associate counsel's bar status verified. (aaa) (Entered: 01/29/2015)
35 Unopposed MOTION for Leave to File Sur−reply to Defendants' Motion to Dismiss by United States Of America. (Attachments: # 1 Exhibit(s) Proposed Surreply, # 2 Proposed Order)(Blake, Trevor) (Entered: 01/26/2015)
36 ORDER granting pltf's Unopposed MTN for Leave to File 35 Sur−reply to Dfts' Mtn to Dismiss. Pltfs Sur−Reply to Dfts Reply Brief is accepted as filed.Signed by Honorable Sylvia H. Rambo on 01/27/15. (ma) (Entered: 01/27/2015)
37 SPECIAL ADMISSIONS FORM APPROVED as to Karen Ruckert on behalf of pltf.Signed by Honorable Sylvia H. Rambo on 01/29/15. (ma) (Entered: 01/29/2015)
38 Consent MOTION to Bifurcate Proceedings into Liability and Relief Phases by United States Of America. (Attachments: # 1 Proposed Order)(Schwabauer, Barbara) (Entered: 02/09/2015)
39 ORDER granting pltf's Consent MOTION to Bifurcate Proceedings into Liability and Relief Phases 38 . The Courts Case Mgmnt Order 19 , as modified by the Stipulation on Expert Reporting Schedule 28 , governs only the liability phase of this litigation.Signed by Honorable Sylvia H. Rambo on 02/09/15. (ma) (Entered: 02/09/2015)
40 Joint MOTION for Extension of Time to Complete Discovery by United States Of America. (Attachments: # 1 Exhibit(s) Ex. 1 − Proposed Deadlines, # 2 Proposed Order)(Schwabauer, Barbara) (Entered: 03/16/2015)
41 ORDER granting the joint mtn for exttm 40 . Ddls are amended as follows:Fact Discovery 6/19/15; Pltfs Prong 1 Expert Report & Dfts Prong 2 Expert Report 7/21/15; Pltfs Prong 2 & 3 Expert Report(s) & Dfts Prong 1 Expert Report 8/21/15; Dfts Prong 3 Expert Report & any other supplemental report byany party 9/18/15; Expert Depositions 10/30/15; Dispositive Mtns & Briefs 11/20/15; Mtns In Limine & Briefs 2/9/16, Response 2/19/16, Reply 2/26/16;Pretrial Memoranda, Proposed Voir Dire & Proposed Jury Instructions 3/10/16; Pretrial Conference 3/17/16 at 9:30 a.m.; Trial List 4/4/16 at 9:30 a.m.All other provisions of previous scheduling orders remain

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 7 of 18

03/30/2015
05/20/2015
05/21/2015 05/21/2015 05/21/2015
06/02/2015 06/02/2015 06/03/2015 06/03/2015 06/18/2015 08/14/2015 08/17/2015
09/02/2015 10/07/2015

unaltered.Signed by Honorable Sylvia H. Rambo on 03/18/15. (ma) (Entered: 03/19/2015)
42 ORDER: The U.S. will be permitted to ask questions regarding the additional devises used by the Commonwealth and the Pennsylvania State Police inconjunction with the physical readiness test to screen and select applicants for entry level state police trooper positions. However, the fact depositions taken this week will be limited to six hours per person. In addition, the Commonwealth and PSP will not be required to furnish documents regarding these additional devises during the depositions. A request for production of such documents must be by motion to the court. Signed by Honorable Sylvia H. Rambo on 03/30/15. (ma) (Entered: 03/30/2015)
44 Joint MOTION for Extension of Time to Complete Discovery and Deadlines in the Court's March 18, 2015 Scheduling Order by United States Of America. (Attachments: # 1 Exhibit(s) Parties' Proposed 90−Day Extension of Discovery and Related Deadlines, # 2 Proposed Order Proposed Order)(Ruckert, Karen) (Entered: 05/20/2015)
45 MEMORANDUM re dfts' MOTION to Dismiss for Lack of Jurisdiction 26 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 05/21/15. (ma) (Entered: 05/21/2015)
46 ORDER: In accord with the Memorandum 45 filed this date; Dfts' mtn to dismiss 26 is denied.Signed by Honorable Sylvia H. Rambo on 05/21/15. (ma) (Entered: 05/21/2015)
47 ORDER granting the joint mtn for ext's of discovery ddl. Case mgmnt ddls are amended as follows: Discovery due by 9/17/2015. Pretrial Memos due by 6/9/2016. Bench Trial set for 7/11/2016 @ 9:30 AM in Harrisburg − Courtroom 3 before Honorable Sylvia H. Rambo. The Pretrial Conference continued to 6/16/2016 @ 2:00 PM before Honorable Sylvia H. Rambo. See order for other ddls.Signed by Honorable Sylvia H. Rambo on 05/21/15. (ma) (Entered: 05/21/2015)
48 STIPULATION re 1 Complaint FOR EXTENSION OF TIME TO RESPOND TO COMPLAINT by Commonwealth Of Pennsylvania, Pennsylvania State Police. (White, David) (Entered: 06/02/2015)
49 Order approving Stipulation for exttm 48 . Dfts' responsive pleading due by 6/18/2015.Signed by Honorable Sylvia H. Rambo on 06/02/15. (ma) (Entered: 06/02/2015)
50 Unopposed MOTION to Withdraw as Attorney by United States Of America. (Attachments: # 1 Proposed Order)(Wong, Carol) (Entered: 06/03/2015)
51 ORDER granting the MOTION to Withdraw as Attorney 50 . Atty Carol A Wong terminated.Signed by Honorable Sylvia H. Rambo on 06/03/15. (ma) (Entered: 06/03/2015)
52 Defendants ANSWER to 1 Complaint by Commonwealth Of Pennsylvania.(White, David) (Entered: 06/18/2015)
53 Joint MOTION for Extension of Time to Complete Discovery by United States Of America. (Attachments: # 1 Exhibit(s), # 2 Proposed Order)(Ruckert, Karen) (Entered: 08/14/2015)
54 ORDER granting the joint mtn for exttm 53 as follows: Fact discovery 11/19/15; Pretrial conference 8/18/16 @ 2:00 PM; Pretrial Memoranda, voir dire and jury instructions 8/11/16. Bench trial continued to 9/6/16 beginning at 9:30 AM. See order for other ddls.Signed by Honorable Sylvia H. Rambo on 8/17/15. (ma) (Entered: 08/17/2015)
55 MOTION to Continue Trial by Commonwealth Of Pennsylvania. (Attachments: # 1 Proposed Order)(Solomon, Stephanie) (Entered: 09/02/2015)
56 MOTION for Protective Order by Commonwealth Of Pennsylvania, Pennsylvania State Police.(Sorek, Patrick) (Entered: 10/07/2015)

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10/07/2015 10/07/2015 10/13/2015
10/20/2015 10/21/2015
10/23/2015 11/03/2015 11/04/2015
11/06/2015 11/06/2015 11/09/2015 11/18/2015 11/18/2015 03/29/2016 03/31/2016

57 BRIEF IN SUPPORT re 56 MOTION for Protective Order filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C, # 4 Exhibit(s) Exhibit D)(Sorek, Patrick) (Entered: 10/07/2015)
58 ORDER granting dft's mtn to continue trial 55 . Bench trial continued to 9/19/2016 @ 9:30 AM in Harrisburg − Courtroom 3 before Honorable Sylvia H. Rambo.Signed by Honorable Sylvia H. Rambo on 10/7/15. (ma) (Entered: 10/07/2015)
59 ORDER: Pltf shall respond to the mtn for Protective Order 56 and setforth the relevance for each of the 39 matters identified for which discovery is sought. The parties are advised that this court will enforce the followinglimitations (except for good cause shown): (1) 25 interrogatories (including subparts); (2) 10 depositions, each deposition not to exceed 7 hours; and the period of discovery shall be confined to the years 2003−2012..Signed by Honorable Sylvia H. Rambo on 10/13/15. (ma) (Entered: 10/13/2015)
60 Unopposed MOTION for Extension of Time to Extension of Certain Deadlines in Court's August 17, 2015 Order by Commonwealth Of Pennsylvania. (Attachments: # 1 Exhibit(s) Exhibit 1, # 2 Proposed Order Proposed Order)(White, David) (Entered: 10/20/2015)
61 BRIEF IN OPPOSITION re 56 MOTION for Protective Order filed by United States Of America. (Attachments: # 1 Exhibit(s) July 23 Notice, # 2 Exhibit(s) August 11 Letter, # 3 Exhibit(s) August 20 Letter, # 4 Exhibit(s) October 7 Notice, # 5 Exhibit(s) Relevance of 39 Matters, # 6 Exhibit(s) Defendants' Initial Disclosures, # 7 Exhibit(s) Excerpts of Deposition Testimony)(Schwabauer, Barbara) (Entered: 10/21/2015)
62 ORDER granting dft's mtn for exttm 60 . The ddl for completing depositions of the Comnwlth of PA's reps is ext'd until 30 days after dfts' pending mtn for protective order is decided by this court. A new cmo will issue.Signed by Honorable Sylvia H. Rambo on 10/23/15. (ma) (Entered: 10/23/2015)
64 ORDER denying PSP's mtn for protective order 56 . Pltf may inquire as far back as 1997 for the purpose of developing the basis for the 2001 validity report.Signed by Honorable Sylvia H. Rambo on 11/3/15. (ma) (Entered: 11/03/2015)
65 ORDER: The case mgmnt ddls are amended as follows: Pretrial Memos due by 9/8/2016. Bench Trial set for 10/3/2016 Beginning at 9:30 AM. Pretrial Conference set for 9/15/2016 @ 10:00 AM. See order for other details.Signed by Honorable Sylvia H. Rambo on 11/4/15. (ma) (Main Document 65 replaced on 11/4/2015) (ma). (Entered: 11/04/2015)
66 BRIEF IN SUPPORT of Court's Discovery Restrictions re 56 MOTION for Protective Order filed by Commonwealth Of Pennsylvania.(Sorek, Patrick) (Entered: 11/06/2015)
67 BRIEF IN OPPOSITION re 56 MOTION for Protective Order Regarding Post−2012 Discovery Restrictions filed by United States Of America.(Schwabauer, Barbara) (Entered: 11/06/2015)
68 ORDER: Upon consideration of the parties briefs and arguments regarding post−2012 discovery 66 & 67 , The discovery period shall not exceed beyond 12/31/14.Signed by Honorable Sylvia H. Rambo on 11/9/15. (ma) (Entered: 11/09/2015)
69 Joint MOTION for Extension of Time to Complete Deposition of the Commonwealth by United States Of America. (Attachments: # 1 Proposed Order)(Schwabauer, Barbara) (Entered: 11/18/2015)
70 ORDER granting the joint mtn for exttm 69 to complete deposition. The ddl to complete the deposition of the Commonwealth is 12/11/15.Signed by Honorable Sylvia H. Rambo on 11/18/15. (ma) (Entered: 11/18/2015)
71 Joint MOTION for Extension of Time to Joint Motion for Extension of Discovery and Deadlines by United States Of America. (Attachments: # 1 Exhibit(s), # 2 Proposed Order)(Ruckert, Karen) (Entered: 03/29/2016)
72 ORDER granting the joint mtn for exttm 71 . Ddls are amended as follows:Responses to Supplemental Expert Reports 4/18/16, Expert Deposition Ddl 6/30/16, Settlement Ddl 7/29/16, Dispositive Mtns/Briefs 8/19/16, Opposition to Dispositive Mtns 9/9/16,

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 9 of 18

04/01/2016 04/04/2016 04/05/2016 05/10/2016 05/11/2016 08/10/2016 08/11/2016
08/19/2016 08/19/2016
08/19/2016 08/19/2016 08/19/2016 08/19/2016 08/19/2016
08/22/2016

Reply to Oppositions toDispositive Mtns 9/23/16, Mtns in Limine/Briefs 10/21/16, Mtns in Limine Response 11/11/16, Mtns in Limine Reply 12/1/16, Pretrial Memoranda/Voir Dire/Jury Instructions 01/13/17, Pretrial Conference 02/16/17 at 10 a.m.Trial 3/6/17 at 9:30 a.m.Signed by Honorable Sylvia H. Rambo on 3/31/16. (ma) (Main Document 72 replaced on 3/31/2016) (ma). (Entered: 03/31/2016)
73 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Candyce D Phoenix on behalf of United States Of America Attorney Candyce Phoenix is seeking special admission.. (Phoenix, Candyce) (Entered: 04/01/2016)
DOCKET ANNOTATION: Petitioner, Candyce Phoenix, bar status verified. (pjr) (Entered: 04/04/2016)
74 SPECIAL ADMISSIONS FORM APPROVED as to Candyce Phoenix, Esq. on behalf of U.S.Signed by Honorable Sylvia H. Rambo on 4/5/16. (ma) (Entered: 04/05/2016)
75 Joint MOTION for Extension of Time to Complete Discovery by United States Of America. (Attachments: # 1 Proposed Order)(Phoenix, Candyce) (Entered: 05/10/2016)
76 ORDER granting the joint mtn for exttm 75 . The ddl to complete expert witness depositions is 7/15/16.Signed by Honorable Sylvia H. Rambo on 5/11/16. (ma) (Entered: 05/11/2016)
77 Joint MOTION to Exceed Page Limitation by United States Of America. (Attachments: # 1 Proposed Order)(Ruckert, Karen) (Entered: 08/10/2016)
78 ORDER granting the pltf's mtn to exceed page limit 77 . The word count limit for brsupp of mtns for summary judgment and any responses thereto shall be 15,000 words. IT IS FURTHER ORDERED that the word count limit for anycorresponding replies filed shall be 10,000 words..Signed by Honorable Sylvia H. Rambo on 8/11/16. (ma) (Entered: 08/11/2016)
79 MOTION for Partial Summary Judgment by United States Of America. (Attachments: # 1 Proposed Order)(Schwabauer, Barbara) (Entered: 08/19/2016)
80 DECLARATION by United States Of America re 79 MOTION for Partial Summary Judgment . (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9, # 10 Exhibit(s) 10, # 11 Exhibit(s) 11, # 12 Exhibit(s) 12, # 13 Exhibit(s) 13, # 14 Exhibit(s) 14, # 15 Exhibit(s) 15, # 16 Exhibit(s) 16, # 17 Exhibit(s) 17)(Schwabauer, Barbara) (Entered: 08/19/2016)
81 STATEMENT OF FACTS re 79 MOTION for Partial Summary Judgment filed by United States Of America.(Schwabauer, Barbara) (Entered: 08/19/2016)
82 BRIEF IN SUPPORT re 79 MOTION for Partial Summary Judgment filed by United States Of America.(Schwabauer, Barbara) (Entered: 08/19/2016)
83 MOTION for Summary Judgment by Commonwealth Of Pennsylvania. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 08/19/2016)
84 BRIEF IN SUPPORT Defendants' re 83 MOTION for Summary Judgment filed by Commonwealth Of Pennsylvania.(Sorek, Patrick) (Entered: 08/19/2016)
85 STATEMENT OF FACTS in Support of Motion for Summary Judgment filed by Commonwealth Of Pennsylvania. (Attachments: # 1 Appendix, # 2 Exhibit(s) Christie Declaration, # 3 Exhibit(s) PSP Org Charts, # 4 Exhibit(s) PSP Reg AR4−34, # 5 Exhibit(s) Trooper Essential Functions, # 6 Exhibit(s) Call of Honor, # 7 Exhibit(s) Fit Study March 06, # 8 Exhibit(s) Fit Study July 01, # 9 Exhibit(s) PSP Fitness Standards, # 10 Exhibit(s) PSP Memo, # 11 Exhibit(s) Cadet Readiness, # 12 Exhibit(s) McArdle Report, # 13 Exhibit(s) Cooper Institute, # 14 Exhibit(s) Dropinski Excerpts, # 15 Exhibit(s) Studenroth Excerpts, # 16 Exhibit(s) Smith Excerpts, # 17 Exhibit(s) McArdle Excerpts)(Sorek, Patrick) (Entered: 08/19/2016)
DOCKET ANNOTATION: Counsel is advised to file a certificate of service for Doc. 84. (pjr) (Entered: 08/22/2016)

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08/22/2016 09/09/2016 09/09/2016
09/09/2016 09/09/2016 09/09/2016 09/09/2016
09/23/2016 09/23/2016 09/23/2016
09/23/2016 09/23/2016 10/06/2016 10/07/2016 10/07/2016
10/07/2016
10/11/2016

86 CERTIFICATE OF SERVICE by Commonwealth Of Pennsylvania re 84 Brief in Support of Motion for Summary Judgment (Sorek, Patrick) (Entered: 08/22/2016)
87 BRIEF IN OPPOSITION re 79 MOTION for Partial Summary Judgment filed by Pennsylvania State Police.(Sorek, Patrick) (Entered: 09/09/2016)
88 ANSWER TO STATEMENT OF FACTS re 81 Statement of Facts filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Appendix Appendix in Support of Defendants' Responses to Plaintiff's Statement of Material Facts, # 2 Exhibit(s) A − Fairley Declaration, # 3 Exhibit(s) B − Morrel Samuels Declaration, # 4 Exhibit(s) C − McArdle Report)(Sorek, Patrick) (Entered: 09/09/2016)
89 BRIEF IN OPPOSITION re 79 MOTION for Partial Summary Judgment filed by Commonwealth Of Pennsylvania.(Sorek, Patrick) (Entered: 09/09/2016)
90 BRIEF IN OPPOSITION re 83 MOTION for Summary Judgment by Defendants filed by United States Of America.(Ruckert, Karen) (Entered: 09/09/2016)
91 ANSWER TO STATEMENT OF FACTS re 85 Statement of Facts,, filed by United States Of America.(Ruckert, Karen) (Entered: 09/09/2016)
92 DECLARATION by United States Of America re 91 Answer to Statement of Facts, 90 Brief in Opposition to Motion for Summary Judgment . (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s))(Ruckert, Karen) (Entered: 09/09/2016)
93 ANSWER TO STATEMENT OF FACTS re 88 Answer to Statement of Facts, filed by United States Of America.(Schwabauer, Barbara) (Entered: 09/23/2016)
94 REPLY BRIEF re 79 MOTION for Partial Summary Judgment filed by United States Of America. (Attachments: # 1 Exhibit(s) Exhibit A − Morrel−Samuels' Article)(Schwabauer, Barbara) (Entered: 09/23/2016)
95 REPLY BRIEF re 83 MOTION for Summary Judgment filed by Commonwealth Of Pennsylvania. (Attachments: # 1 Exhibit(s) Brief for Respondent AG in Opposition to J. Bauer Petition for Certiorari, # 2 Exhibit(s) Excerpts from Professional Treatises)(Sorek, Patrick) (Entered: 09/23/2016)
96 MOTION to Compel Discovery by United States Of America. (Attachments: # 1 Exhibit(s) Exhibit A − United States' Subpoena to Dr. William Fairley, # 2 Proposed Order)(Ruckert, Karen) (Entered: 09/23/2016)
97 MOTION to Strike Declarations of Dr. William Fairley and Dr. Palmer Morrel−Samuels (ECF Nos. 88−2 and 88−3) by United States Of America. (Attachments: # 1 Proposed Order)(Ruckert, Karen) (Entered: 09/23/2016)
98 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Kali J Schellenberg on behalf of United States Of America Attorney Kali Schellenberg is seeking special admission.. (Schellenberg, Kali) (Entered: 10/06/2016)
DOCKET ANNOTATION: Petitioner, Kali J. Schellenberg, bar status verified. (dmn) (Entered: 10/07/2016)
99 BRIEF IN SUPPORT re 96 MOTION to Compel Discovery filed by United States Of America. (Attachments: # 1 Exhibit(s) Exhibit A − Emails June 28−July 11, 2016, # 2 Exhibit(s) Exhibit B − Subpoena Response, # 3 Exhibit(s) Exhibit C − Emails July 19−August 19, 2016, # 4 Exhibit(s) Exhibit D − U.S. Request for Production)(Schwabauer, Barbara) (Entered: 10/07/2016)
100 BRIEF IN SUPPORT re 97 MOTION to Strike Declarations of Dr. William Fairley and Dr. Palmer Morrel−Samuels (ECF Nos. 88−2 and 88−3) filed by United States Of America. (Attachments: # 1 Exhibit(s) A Exhibit A − Edited Declaration of William B. Fairley, Ph.D., # 2 Exhibit(s) Exhibit B − Edited Declaration of Palmer Morrel−Samuels, Ph.D.)(Ruckert, Karen) (Entered: 10/07/2016)
101 SPECIAL ADMISSIONS FORM APPROVED as to Kali Schellenberg, AUSASigned by Honorable Sylvia H. Rambo on 10/11/16. (ma) (Entered: 10/11/2016)

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10/21/2016 10/21/2016 10/21/2016 10/21/2016
10/21/2016
10/21/2016 10/21/2016
10/21/2016 10/21/2016 10/21/2016
10/21/2016 10/21/2016

102 MOTION in Limine to Exclude All Data and Information Produced to the US Dated After December 31, 2014 by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 10/21/2016)
103 BRIEF IN SUPPORT re 102 MOTION in Limine to Exclude All Data and Information Produced to the US Dated After December 31, 2014 filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Report of Janice F. Madden, Ph.D.)(Sorek, Patrick) (Entered: 10/21/2016)
104 MOTION in Limine to Exclude Data and Information Produced by the Pennsylvania State Police During Investigation by the Department of Justice by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Sorek, Patrick) (Entered: 10/21/2016)
105 BRIEF IN SUPPORT re 104 MOTION in Limine to Exclude Data and Information Produced by the Pennsylvania State Police During Investigation by the Department of Justice filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Cadet Data, # 2 Exhibit(s) Michael Stephens Deposition Excerpts − March 31, 2015, # 3 Exhibit(s) Schwabauer Email)(Sorek, Patrick) (Entered: 10/21/2016)
106 BRIEF IN OPPOSITION re 97 MOTION to Strike Declarations of Dr. William Fairley and Dr. Palmer Morrel−Samuels (ECF Nos. 88−2 and 88−3) filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Report of Dr. Fairley − February 19, 2016, # 2 Exhibit(s) Deposition Excerpts of Dr. Fairley − May 25, 2016, # 3 Exhibit(s) Report of Dr. Palmer Morrel−Samuels − February 19, 2016, # 4 Exhibit(s) Deposition Excerpts of Dr.Morell−Samuels − July 14, 2016, # 5 Exhibit(s) Dr. Madden Rebuttal Report − March 18, 2016, # 6 Exhibit(s) BMI Definition)(Sorek, Patrick) (Entered: 10/21/2016)
107 MOTION in Limine to Exclude Reports and Testimony of William D. McArdle, Ph.D, by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 10/21/2016)
108 BRIEF IN SUPPORT re 107 MOTION in Limine to Exclude Reports and Testimony of William D. McArdle, Ph.D, filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) McArdle Report − February 19, 2016, # 2 Exhibit(s) McArdle Report − April 18, 2016, # 3 Exhibit(s) McArdle Deposition Excerpts, # 4 Exhibit(s) Cooper Institute Handbook)(Sorek, Patrick) (Entered: 10/21/2016)
109 BRIEF IN OPPOSITION re 96 MOTION to Compel Discovery filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Report of Dr. Fairley − February 19, 2016, # 2 Exhibit(s) Dr. Fairley Deposition Transcripts − May 25, 2016, # 3 Exhibit(s) Declaration, # 4 Exhibit(s) Dr. Madden Articles)(Sorek, Patrick) (Entered: 10/21/2016)
110 MOTION in Limine to Exclude Reports and Testimony of David P. Jones, Ph.D. by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 10/21/2016)
111 BRIEF IN SUPPORT re 110 MOTION in Limine to Exclude Reports and Testimony of David P. Jones, Ph.D. filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Report of Dr. Jones − February 19, 2016, # 2 Exhibit(s) Report of Dr. Jones − April 18, 2016, # 3 Exhibit(s) Excerpt of Deposition Transcript of David P. Jones, # 4 Exhibit(s) Sample Employee Performance Review Form, # 5 Exhibit(s) PA.gov Website Printout, # 6 Exhibit(s) Excerpt of SIOP Principles)(Sorek, Patrick) (Entered: 10/21/2016)
112 MOTION in Limine to Exclude Reports and Testimony of Plaintiff's Expert Janice F. Madden, Ph.D. by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 10/21/2016)
113 BRIEF IN SUPPORT re 112 MOTION in Limine to Exclude Reports and Testimony of Plaintiff's Expert Janice F. Madden, Ph.D. filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Report of Dr. Madden − January 18, 2016, # 2 Exhibit(s) Report of Dr. Madden − March 18, 2016, # 3 Exhibit(s) Report of Dr. Fariley − February 19, 2016, # 4 Exhibit(s) Dr. Fairley

Case: 1:14-cv-1474 As of: 05/04/2020 03:28 PM EDT 12 of 18

11/03/2016
11/03/2016 11/03/2016 11/03/2016 11/09/2016
11/10/2016
11/10/2016 12/01/2016 12/01/2016 12/01/2016 12/01/2016

Declaration, # 5 Exhibit(s) Report of Dr. Morrel−Samuels − February 19, 2016, # 6 Exhibit(s) Dr. Morrel−Samuels Declaration, # 7 Exhibit(s) Dr. Madden Articles, # 8 Exhibit(s) Dr. McArdle Report − February 19, 2016)(Sorek, Patrick) (Entered: 10/21/2016)
114 BRIEF IN OPPOSITION re 104 MOTION in Limine to Exclude Data and Information Produced by the Pennsylvania State Police During Investigation by the Department of Justice filed by United States Of America. (Attachments: # 1 Exhibit(s) Ex. A − U.S. Notice Letters, # 2 Exhibit(s) Ex. B − PSP Discovery Requests, # 3 Exhibit(s) Ex. C − U.S. Discovery Response, # 4 Exhibit(s) Ex. D − U.S. Interrogatories, # 5 Exhibit(s) Ex. E − U.S. Requests for Production, # 6 Exhibit(s) Ex. F − B. Schwabauer email, # 7 Exhibit(s) Ex. G − S. Solomon letter)(Schwabauer, Barbara) (Entered: 11/03/2016)
115 BRIEF IN OPPOSITION re 102 MOTION in Limine to Exclude All Data and Information Produced to the US Dated After December 31, 2014 filed by United States Of America. (Attachments: # 1 Exhibit(s) Ex. A − Rebuttal Report of Janice Madden)(Schwabauer, Barbara) (Entered: 11/03/2016)
116 REPLY BRIEF re 96 MOTION to Compel Discovery filed by United States Of America.(Schellenberg, Kali) (Entered: 11/03/2016)
117 REPLY BRIEF re 97 MOTION to Strike Declarations of Dr. William Fairley and Dr. Palmer Morrel−Samuels (ECF Nos. 88−2 and 88−3) filed by United States Of America.(Ruckert, Karen) (Entered: 11/03/2016)
118 BRIEF IN OPPOSITION re 112 MOTION in Limine to Exclude Reports and Testimony of Plaintiff's Expert Janice F. Madden, Ph.D. filed by United States Of America. (Attachments: # 1 Exhibit(s) Dr. Janice F. Madden's Resume, # 2 Exhibit(s) Steven M. Crunk, Ph.D., & William B. Fairley, Ph.D., Preliminary Rep. on Statistical Evidence, # 3 Exhibit(s) The Evolution of Gender and Motherhood in Contemporary Medicine by Ann Boulis, # 4 Exhibit(s) Janice F. Madden Deposition Excerpts, # 5 Exhibit(s) Dr. William Fairley Deposition Excerpts, # 6 Exhibit(s) Dr. Palmer Morrel−Samuels Deposition Excerpts)(Schellenberg, Kali) (Entered: 11/09/2016)
119 BRIEF IN OPPOSITION re 110 MOTION in Limine to Exclude Reports and Testimony of David P. Jones, Ph.D. filed by United States Of America. (Attachments: # 1 Exhibit(s) January 2016 Carmean Report, # 2 Exhibit(s) Defendants' RFA Responses, # 3 Exhibit(s) February 2016 Jones Report, # 4 Exhibit(s) PSP Trooper Essential Functions, # 5 Exhibit(s) April 2016 Jones Supplemental Report, # 6 Exhibit(s) 30(b)(6) Christie Deposition Excerpt, # 7 Exhibit(s) Stephens Deposition Excerpt, # 8 Exhibit(s) Dropinski Deposition Excerpt)(Blake, Trevor) (Entered: 11/10/2016)
120 BRIEF IN OPPOSITION re 107 MOTION in Limine to Exclude Reports and Testimony of William D. McArdle, Ph.D, filed by United States Of America. (Attachments: # 1 Exhibit(s) Supplemental Report of Gene Carmean, # 2 Exhibit(s) Deposition of William McArdle, Ph.D.)(Ruckert, Karen) (Entered: 11/10/2016)
121 REPLY BRIEF re 110 MOTION in Limine to Exclude Reports and Testimony of David P. Jones, Ph.D. filed by Commonwealth Of Pennsylvania, Pennsylvania State Police.(Sorek, Patrick) (Entered: 12/01/2016)
122 REPLY BRIEF re 107 MOTION in Limine to Exclude Reports and Testimony of William D. McArdle, Ph.D, filed by Commonwealth Of Pennsylvania, Pennsylvania State Police.(Sorek, Patrick) (Entered: 12/01/2016)
123 REPLY BRIEF re 112 MOTION in Limine to Exclude Reports and Testimony of Plaintiff's Expert Janice F. Madden, Ph.D. filed by Commonwealth Of Pennsylvania, Pennsylvania State Police.(Sorek, Patrick) (Entered: 12/01/2016)
124 REPLY BRIEF re 104 MOTION in Limine to Exclude Data and Information Produced by the Pennsylvania State Police During Investigation by the Department of Justice filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Schwabauer Nov, # 2 Exhibit(s) Schwabauer April, # 3 Exhibit(s) 0901 Test Cycle Data, # 4 Exhibit(s) Test Cycle Data Investigation, # 5 Exhibit(s) Stephens Excerpts, # 6 Exhibit(s) PRT Protocol Memorandum, # 7

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12/01/2016 12/08/2016 10/02/2017
10/02/2017 10/02/2017 10/02/2017 10/16/2017

Exhibit(s) PRT Database Notes, # 8 Exhibit(s) Madden Rpt Jan, # 9 Exhibit(s) Madden Rpt March, # 10 Exhibit(s) Fairley Rpt Feb, # 11 Exhibit(s) Palmer Rpt)(Sorek, Patrick) (Entered: 12/01/2016)
125 REPLY BRIEF re 102 MOTION in Limine to Exclude All Data and Information Produced to the US Dated After December 31, 2014 filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) PRT Database Version Notes, # 2 Exhibit(s) PRT Database Protocol Memo, # 3 Exhibit(s) Madden Rebuttal)(Sorek, Patrick) (Entered: 12/01/2016)
127 ORDER: Due to the number of motions filed and the courts upcoming full trialschedule for the coming months, IT IS HEREBY ORDERED that the ddls for the pretrial memorandum, pretrial conference and trial, are stayed until the court rules upon the outstanding motions. Signed by Honorable Sylvia H. Rambo on 12/8/16. (ma) (Entered: 12/08/2016)
128 ORDER Granting in part, and denying in part pltf's mtn to strike 97 as flws: 1) The following is stricken from Dr. William B. Fairleys declaration:a. height, weight, BMI (Body Mass Index), prior law enforcement experience (Doc. 88−2, 10(b), p. 3 of 24);b. or practice time (Doc. 88−2, 10(b), p. 3 of 24);c. These omissions caused Dr. Madden to produce (a) elevated shortfall estimates, (b) depressed passing rates for women compared to men, and (c) inflated standard deviations and significant levels. (Doc. 88−2, 10(b), p. 3 of 24);d. But gender may also be correlated with passing rate for adventitious factors such as differences in age, education, BMI, etc. due to the self−selection of applicants of both genders, or for other reasons, even if men and women as groups do not differ on these characteristics. (Doc. 88−2, 10(c), p. 4 of 24); ande. Paragraph 10(f) is its entirety. (Doc. 88−2, 10(f), p. 4−5 of 24);2) The following is stricken from Dr. Palmer Morrel−Samuels declaration:a. For example, in one study, Black defendants were held in pretrial detention 11% more often than White defendants, but that disparity ceased to be statistically significant once the defendants history of pre−trial flight and violent crime were partialled out using a multivariate test (McIntyre, F., & Baradaran, S., 2013. Race, Prediction, and Pretrial Detention. Journal of Empirical Legal Studies). And the effect can cut in the other direction as well: Stephan Michelsonthe researcher that Gilmartin credits with introducing the multiple pools exact test in Title VII litigationfound no evidence of racial disparity in Connecticuts death penalty sentencing; however, multipleregression controlling for the race, gender, and location of the victim (among other covariates) found that Black defendants convicted of murder received death sentences more often than their White counterparts by a large and statistically significant margin. (Doc. 88−3, 4, p. 3 of 5);b. Donohue, J., 2014. An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? Journal of Empirical Law Studies.) (Doc. 88−3, 4, p. 3 of 5);c. Additional cofounding variables were also excluded from the Report, and they are mentioned briefly below. (Doc. 88−3, 4,p. 4 of 5);d. Paragraph 5 in its entirety (Doc. 88−3, 5, p. 4 of 5);e. Paragraph 6 in its entirety (Doc. 88−3, 6, p. 4 of 5); andf. Paragraph 7 in its entirety (Doc. 88−3, 7, p., 4 of 5).Signed by Honorable Sylvia H. Rambo on 10/2/17. (ma) (Entered: 10/02/2017)
129 MEMORANDUM re Mtns for Summary Judgment 79 and 83 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 10/2/17. (ma) (Entered: 10/02/2017)
130 ORDER: In accord with the accompanying Memorandum 129 . Pltf's mtn for partial summary jgmnt 79 is granted, dfts' mtn for summary jgmnt 83 is denied. Case mgmnt ddls are as follows: Pretrial Memos due by 11/9/2017. Bench Trial set for 12/11/2017 @ 9:30 AM. Pretrial Conference set for 11/16/2017 @ 9:30 AM before Honorable Sylvia H. Rambo.Signed by Honorable Sylvia H. Rambo on 10/2/17. (ma) (Entered: 10/02/2017)
131 ORDER denying pltf's mtn to compel 96 .Signed by Honorable Sylvia H. Rambo on 10/2/17. (ma) (Entered: 10/02/2017)
132 MOTION for Reconsideration re 130 by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 10/16/2017)

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10/17/2017 10/17/2017 10/17/2017
10/18/2017 10/18/2017 10/30/2017 11/08/2017 11/17/2017 11/20/2017
11/22/2017 11/27/2017 11/27/2017 03/02/2018 03/02/2018
03/02/2018

DOCKET ANNOTATION: Counsel is advised to file a Certificate of Concurrence/ Non−Concurrence for Doc. 132. (dmn) (Entered: 10/17/2017)
133 CERTIFICATE of by Commonwealth Of Pennsylvania, Pennsylvania State Police re 132 MOTION for Reconsideration re 130 Order, Terminate Motions, Terminate Deadlines and Hearings, Set Deadlines/Hearings,,,, 128 Order, Terminate Motions,,,,,,,,,,,,,,,,,,,, . (Sorek, Patrick) (Entered: 10/17/2017)
134 ORDER: 1) Dfts mtn in limine to exclude all data and information produced to Pltf dated after 12/31/14 102 is DENIED.2) Dfts mtn in limine to exclude data and information produced by the Pennsylvania State Police during investigation by the Department of Justice 104 is GRANTED IN PART. Specifically, the Cadet Database and MAPPER will be excluded.3) Dfts mtn in limine to exclude reports and testimony of William D. McArdle, Ph.D. 107 is DENIED.4) Dfts mtn in limine to exclude reports and testimony of David P. Jones, Ph.D. 110 is DENIED.5) To the extent the mtn is still relevant in light of the courts rulingon Pltfs mtn for partial summary judgment (Docs. 129−130), vDfts mtn in limine to exclude reports and testimony of Pltfs expert, Janice F. Madden, Ph.D. 112 is DENIED.Signed by Honorable Sylvia H. Rambo on 10/17/17. (ma) (Entered: 10/17/2017)
135 Joint MOTION to Suspend Deadlines by United States Of America. (Attachments: # 1 Proposed Order)(Schwabauer, Barbara) (Entered: 10/18/2017)
136 ORDER granting the joint mtn to suspend ddls 135 . A joint Status Report due by 11/17/2017.Signed by Honorable Sylvia H. Rambo on 10/18/17. (ma) (Entered: 10/18/2017)
137 BRIEF IN SUPPORT of MOTION for Reconsideration 132 filed by Commonwealth Of Pennsylvania, Pennsylvania State Police.(Sorek, Patrick) (Entered: 10/30/2017)
138 BRIEF IN OPPOSITION of MOTION for Reconsideration 132 re 130 filed by United States Of America.(Schwabauer, Barbara) (Entered: 11/08/2017)
139 Joint MOTION to Reopen Expert Discovery and Adopt Proposed Pretrial and Trial Schedule by United States Of America. (Attachments: # 1 Proposed Order)(Phoenix, Candyce) (Entered: 11/17/2017)
140 ORDER Granting the joint mtn to reopen expert discovery and reset trial date 139 . U.S. to Provide New Expert Disclosure and Report by 12/18/17;Dfts to Provide Rebuttal Expert Report by 01/22/18; Close of Expert Discovery/Deposition Ddl 02/16/18; Parties to File Daubert Mtns and Briefs by 03/02/18; Pretrial Memorandum(s) due by 03/19/18; Pretrial Conference scheduled for 03/29/18 at9:30 a.m.; Bench Trial begins 04/09/18.Signed by Honorable Sylvia H. Rambo on 11/20/17. (ma) (Entered: 11/20/2017)
DOCKET ANNOTATION: Counsel is advised to refile Doc. 141 using the event: Civil Events Motions and Related Filings Responses and Replies (Briefs) − Reply Brief. (pjr) (Entered: 11/22/2017)
142 REPLY BRIEF re MOTION for Reconsideration 132 filed by Commonwealth Of Pennsylvania, Pennsylvania State Police.(Sorek, Patrick) (Entered: 11/27/2017)
DOCKET ANNOTATION: Doc. 141 deleted and refiled as Doc. 142. (pjr) (Entered: 11/27/2017)
143 MOTION in Limine TO EXCLUDE REPORT AND TESTIMONY OF ARTHUR WELTMAN, Ph.D. by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Proposed Order)(Sorek, Patrick) (Entered: 03/02/2018)
144 BRIEF IN SUPPORT re 143 MOTION in Limine TO EXCLUDE REPORT AND TESTIMONY OF ARTHUR WELTMAN, Ph.D. filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 Exhibit(s) F, # 7 Exhibit(s) G, # 8 Exhibit(s) H)(Sorek, Patrick) (Entered: 03/02/2018)
145 MOTION to Exclude Certain Opinions of Defendants' Expert Gene Carmean by United States Of America. (Attachments: # 1 Proposed Order)(Phoenix, Candyce) (Entered: 03/02/2018)

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03/02/2018 03/08/2018 03/08/2018 03/12/2018 03/12/2018 03/19/2018 03/22/2018 03/22/2018 03/22/2018 03/22/2018
03/22/2018

146 BRIEF IN SUPPORT re 145 MOTION to Exclude Certain Opinions of Defendants' Expert Gene Carmean filed by United States Of America. (Attachments: # 1 Exhibit(s) Report of Gene Carmean, # 2 Exhibit(s) Report of Arthur Weltman)(Phoenix, Candyce) (Entered: 03/02/2018)
147 MEMORANDUM re dfts' MOTION for Reconsideration 132 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 3/8/18. (ma) (Entered: 03/08/2018)
148 ORDER: In accord with the accompanying Memorandum 147 ; Dfts' mtn for reconsideration 132 is Denied.Signed by Honorable Sylvia H. Rambo on 3/8/18. (ma) (Entered: 03/08/2018)
149 BRIEF IN OPPOSITION re 145 MOTION to Exclude Certain Opinions of Defendants' Expert Gene Carmean filed by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) Carmean Deposition Transcript)(Sorek, Patrick) (Entered: 03/12/2018)
150 BRIEF IN OPPOSITION re 143 MOTION in Limine TO EXCLUDE REPORT AND TESTIMONY OF ARTHUR WELTMAN, Ph.D. filed by United States Of America. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4)(Schwabauer, Barbara) (Entered: 03/12/2018)
151 REPLY BRIEF re 145 MOTION to Exclude Certain Opinions of Defendants' Expert Gene Carmean filed by United States Of America. (Attachments: # 1 Exhibit(s) 1)(Blake, Trevor) (Entered: 03/19/2018)
152 ORDER Granting in part and denying in part pltf's mtn to exclude certain opinions fo expert Carmean 145 . See order for details.Signed by Honorable Sylvia H. Rambo on 3/22/18. (ma) (Entered: 03/22/2018)
153 ORDER Denyhing dfts' mtn to exclude the report and testimony of Arthur Weltman 143 .Signed by Honorable Sylvia H. Rambo on 3/22/18. (ma) (Entered: 03/22/2018)
154 PRETRIAL MEMORANDUM by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Appendix A − Witness List, # 2 Appendix B − Deposition Designations, # 3 Appendix C − Exhibit List, # 4 Appendix D − Rule 16.2 Statement, # 5 Appendix E − Rule 30.10 Certificate)(Sorek, Patrick) (Entered: 03/22/2018)
155 Proposed Findings of Fact by Commonwealth Of Pennsylvania, Pennsylvania State Police. (Attachments: # 1 Exhibit(s) 1 − Declaration of Lisa Christie, # 2 Exhibit(s) 2 − Summary of PSP Statistics, # 3 Exhibit(s) 3 − Call of Honor, # 4 Exhibit(s) 4 − Essential Job Functions, # 5 Exhibit(s) 5 − Generic Job Description Elements Covering Essential Job Functions From Fit Report, # 6 Exhibit(s) 6 − State Police Trooper Position Description, # 7 Exhibit(s) 7 − State Police Trooper Job Description, # 8 Exhibit(s) 8 − Validation of Physical Fitness Standards for the Pennsylvania State Police, July 2001, # 9 Exhibit(s) 9 − Validation of the Physical Fitness Standards for the Pennsylvania State Police, March 2006, # 10 Exhibit(s) 10 − AR 4−34 Cadet Selection Procedures, # 11 Exhibit(s) 11 − Studenroth Deposition Excerpts, # 12 Exhibit(s) 12 − PSP PRT Descriptions, # 13 Exhibit(s) 13 − 2002 Memo Regarding Validated Fitness Standards for Cadets, # 14 Exhibit(s) 14 − CV of Thomas Collingwood, Ph.D., # 15 Exhibit(s) 15 − CV of John "Jay" Smith, # 16 Exhibit(s) 16 − Manning Deposition Excerpts, # 17 Exhibit(s) 17 − Christie Deposition Excerpts, # 18 Exhibit(s) 18 − An Evaluation of the Pennsylvania State Police Applicant Physical Readiness Test Report by Gene Carmean, January 19, 2016, # 19 Exhibit(s) 19 − Collingwood Deposition Excerpts, # 20 Exhibit(s) 20 − Rebuttal of David P. Jones' Report of February 19, 2016 by Palmer Morrel−Samuels, MS.M Phil., Ph.D., March 18, 2016, # 21 Exhibit(s) 21 − Criterion Validation Review of Fitness Standards for the Pennsylvania State Police, June 2004, # 22 Exhibit(s) 22 − Excerpt from Pennsylvania Office of Administration Website, # 23 Exhibit(s) 23 − FR 9−2 Weapons, Qualifications and Proficiency Training, # 24 Exhibit(s) 24 − Fall Proficiency Handout, July 31, 2009, # 25 Exhibit(s) 25 − A Review of the Weltman Report by Gene Carmean, January 22, 2018)(Sorek, Patrick) (Entered: 03/22/2018)
156 PRETRIAL MEMORANDUM by United States Of America. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E, # 6 Attachment F, # 7 Attachment G, # 8 Attachment H, # 9

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03/29/2018 03/30/2018

Attachment I, # 10 Attachment J, # 11 Attachment K, # 12 Attachment L, # 13 Attachment M − Findings of Fact and Conclusions of Law)(Schellenberg, Kali) (Entered: 03/22/2018)
158 ORDER: After discussion and argument on the record during the pretrial conference on 3/29/18, IT IS HEREBY ORDERED as follows:1) The court relied upon and adopted Dr. Janice Maddens pass rates in itssummary judgment opinion 129 , thus, Dr. Maddens testimony to establish these passing rates at trial is not necessary.2) For all confidential exhibits, the parties shall prepare a separate exhibitlist of the confidential documents and a proposed order for the court. Atthe conclusion of trial, the court will enter an order providing that theseexhibits are incorporated into the record but will remain under seal.3) The court will provide a brief recess during trial at the time Dftspresent demonstrative exhibits (identified as exhibits D125 and D126 inDoc. 156−8) depicting the gear and equipment worn by PennsylvaniaState Police (PSP) Troopers for Pltfs review of the same.4) The court will permit the admission of the following exhibits at trial: alljoint exhibits identified in Doc. 156−5; Pltfs exhibits US1, US2, US4, US10−US12, and US163 as identified in Doc. 156−6; and Dfts exhibits D57, D61, D63, D65, D67−D77, D80−D84, D89−D90, D92−D100, D117−D120, D125−D126, and D133.5) The court will permit the admission of Pltfs exhibits US3 andUS13−US162 as identified in Doc. 156−6 at trial giving them such weightas they deserve. Exhibits US13 through US162 are employee performance reviews (EPRs) of 150 PSP incumbent troopers, and exhibit US3 is a summary spreadsheet prepared by Dr. David Jones, one of Pltfs experts. The court has already ruled that Dr. Jones is permitted to testify at trial 102 , and Dr. Jones relied on these EPRs supplied by Defendants in reaching his opinion. To the extent these exhibits need to remain confidential, the parties shall follow the courts ruling regarding exhibits under seal. See supra 2.6) Although Dfts did not yet file the motion to exclude employeeperformance reviews provided to the court and Pltf at the PTC, the court will deny any such mtn as untimely.7) The court will permit the admission of Pltfs exhibits US5−US9 asidentified in Doc. 156−6 at trial. To the extent these exhibits need toremain confidential, the parties shall follow the courts ruling regardingexhibits under seal. See supra 2.8) The court will permit the admission to the record of Dfts exhibitsD1−D7, D9, and D10 as identified in Doc. 156−8 but will not rely on these exhibits trial. Rather, the court will rely upon the live testimony ofthe experts.9) The court will permit the admission of learned treatises at trial only if the parties experts have relied upon the treatises in reaching their opinionsand the treatises comply with Federal Rule of Evidence 803(18).10) Dfts exhibit D128 will be excluded at trial. However, Dfts are permitted to submit one video depicting a demonstration of each PRT task without commentary by the videographer. This video must be provided to Pltf by Wednesday, 4/4/18.11) Dfts exhibits D52, D127, D129 and D130 will be excluded at trial.12) Dfts shall immediately produce to Pltf summary exhibit D66 as identified in Doc. [156−8]. The court will reserve ruling on this exhibits admissibility until the time of trial.13) Dfts shall supply the court with exhibits D54−D56, D58−D89, D78, D86−D87, D91, D101−D116, and D131−D132 by Wednesday, 4/4/18, so that the court can rule on the admissibility of such exhibits prior to trial.14) The court overrules Dfts objection to Ret. Captain Rodney A. Mannings deposition, page 65, lines 16 through page 67, line 5.15) The court will not rule on the deposition designations of Dr. ThomasCollingwood, Estella Monique Baynham, and Tricia Ann Miernicki as these witnesses plan to testify at trial. However, Ms. Baynham will not be permitted to speculate that she would have passed the PRT if she had prepared differently. Likewise, Ms. Miernicki will not be permitted to give improper lay opinion testimony regarding her opinion of the fairness of the PRT.Lastly, the trial will begin promptly at 9:30 a.m. and conclude at 4:30 p.m.,with a lunch break from 12:00 p.m. to 1:00 p.m., each day. However, on 4/10/18, court will begin at 9:00 a.m. and conclude at 4:00 p.m., and on 4/13/18, court will begin at 9:00 a.m. and conclude at 12:00 p.m. Signed by Honorable Sylvia H. Rambo on 3/29/18. (ma) (Entered: 03/29/2018)
159 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Pretrial Conference proceedings held on 3/29/2018, before Judge Rambo. Court Reporter Wendy Yinger, Telephone number 717−440−1535. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/20/2018. Redacted Transcript Deadline set for 4/30/2018. Release of Transcript Restriction set for 6/28/2018. (ctrep7) (Entered: 03/30/2018)

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04/04/2018 04/04/2018
08/10/2018 12/13/2018 03/01/2019 03/04/2019 04/11/2019 04/11/2019 04/16/2019 06/19/2019 06/19/2019 07/17/2019 08/05/2019 08/06/2019 08/06/2019 08/07/2019 08/07/2019 08/08/2019 09/27/2019 09/30/2019

160 Joint MOTION to Stay by United States Of America. (Attachments: # 1 Proposed Order)(Phoenix, Candyce) (Entered: 04/04/2018)
161 ORDER granting the joint mtn to stay proceedings 160 . (1)The trial scheduled to begin on 4/9/18 continued. Case stayed until 7/9/18.(2)The parties shall engage in mediation with a U.S. Magistrate Judge oranother agreed−upon mediator prior to 7/9/18. (3)The Court will hold an in−person status conference on 7/10/18, at 9:30 a.m. to determine whether, and if so when, to return this case to the trial calendar. Absent the consent of both parties to continue mediation, the matter will be returned to the trial calendar.Signed by Honorable Sylvia H. Rambo on 4/4/18. (ma) (Entered: 04/04/2018)
163 RETURN OF SERVICE (Non Summons & Complaint) : USM served subpoena on Thomas Thomas Collinwood, Ph.D 3/29/18; (ep) (Entered: 08/10/2018)
164 Subpoenas Returned Executed as to Rodney Manning and Christy Elias. (Attachments: # 1 )(bg) (Entered: 12/13/2018)
165 NOTICE by United States Of America Attorney Withdrawal (Attachments: # 1 Proposed Order)(Phoenix, Candyce) (Entered: 03/01/2019)
166 ORDER granting the request to withdraw as cnsl 165 by Candyce D Phoenix.Signed by Honorable Sylvia H. Rambo on 3/4/19. (ma) (Entered: 03/04/2019)
167 NOTICE by United States Of America Attorney Withdrawal (Attachments: # 1 Proposed Order)(Schellenberg, Kali) (Entered: 04/11/2019)
168 NOTICE by United States Of America Attorney WIthdrawal (corrected) (Attachments: # 1 Proposed Order)(Schellenberg, Kali) (Entered: 04/11/2019)
169 ORDER Granting the request(s) of cnsl to withdraw appearance 167 and 168 . Attorney Kali J Schellenberg terminated.Signed by Honorable Sylvia H. Rambo on 4/16/19. (ma) (Entered: 04/16/2019)
170 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Stephanie L. Solomon terminated on behalf of Commonwealth of Pennsylvania and the Pennsylvania State Police. (Solomon, Stephanie) (Entered: 06/19/2019)
171 NOTICE of Appearance by Mary−Jo Rebelo on behalf of All Defendants. (Rebelo, Mary−Jo) (Entered: 06/19/2019)
172 NOTICE of Appearance by Robert L Galbreath on behalf of United States Of America. (Galbreath, Robert) (Entered: 07/17/2019)
173 Unopposed MOTION to Withdraw as Attorney by United States Of America. (Attachments: # 1 Proposed Order)(Blake, Trevor) (Entered: 08/05/2019)
174 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Sonya L Sacks on behalf of United States Of America Attorney Sonya Sacks is seeking special admission.. (Sacks, Sonya) (Entered: 08/06/2019)
DOCKET ANNOTATION: Petitioner Sonya Sacks and Associate Counsel − Bar Status Verified. (dmn) (Entered: 08/06/2019)
175 SPECIAL ADMISSIONS FORM APPROVED as to Sonya L. Sacks, Esq. on behalf of USA.Signed by Honorable Sylvia H. Rambo on 8/7/19. (ma) (Entered: 08/07/2019)
176 ORDER granting the mtn to withdraw as cnsl 173 by Attorney Trevor St. George Blake.Signed by Honorable Sylvia H. Rambo on 8/7/19. (ma) (Entered: 08/07/2019)
177 NOTICE of Appearance by Sonya L Sacks on behalf of United States Of America (Sacks, Sonya) (Entered: 08/08/2019)
178 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Lori B Kisch on behalf of United States Of America Attorney Lori Kisch is seeking special admission.. (Kisch, Lori) (Entered: 09/27/2019)
DOCKET ANNOTATION: Petitioner, Lori Kisch, and Associate Counsel bar status verified. (pjr) (Entered: 09/30/2019)

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10/09/2019
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179 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Robert L Galbreath on behalf of United States Of America Attorney Robert Galbreath is seeking special admission.. (Galbreath, Robert) (Entered: 10/09/2019)
DOCKET ANNOTATION: Petitioner, Robert Galbreath, bar status verified. (pjr) (Entered: 10/09/2019)
180 SPECIAL ADMISSIONS FORM APPROVED as to Robert Galbreath, Esq. on behalf of USASigned by Honorable Sylvia H. Rambo on 10/9/19. (ma) (Entered: 10/09/2019)
181 NOTICE of Appearance by Robert L Galbreath on behalf of United States Of America (Galbreath, Robert) (Entered: 10/10/2019)
182 MOTION to Withdraw as Attorney by United States Of America. (Attachments: # 1 Proposed Order)(rw) (Entered: 03/25/2020)
183 ORDER granting the mtn to withdraw as attorney 182 . Attorney Sonya L Sacks terminated.Signed by Honorable Sylvia H. Rambo on 3/27/20. (ma) (Entered: 03/27/2020)