United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
United States filed this action against the South Dakota
Department of Social Services (“DSS”) alleging
violations of the provisions of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”). (Docket 26 at p. 1). DSS filed an answer denying
it violated Title VII. (Docket 27). DSS timely filed a motion
for summary judgment, together with its statement of
undisputed material facts, two affidavits with supporting
exhibits and a legal memorandum. (Dockets 41-44 & 49).
The United States filed a response to defendant's
statement of material facts, an affidavit with supporting
exhibits and a brief in resistance to defendant's motion.
(Dockets 53-55). DSS filed a reply brief in support of its
motion for summary judgment. (Docket 57).
same day, the United States timely filed a motion for partial
summary judgment, together with a statement of undisputed
material facts, an affidavit and a legal memorandum. (Dockets
45-48). DSS filed a response to plaintiff's statement of
material facts, an affidavit with supporting exhibits and a
legal memorandum. (Dockets 50-52). Plaintiff filed a reply
brief in support of its motion for partial summary judgment.
on the analysis in this order, defendant's motion for
summary judgment is denied and plaintiff's motion for
partial summary judgment is granted.
2015, the United States filed the complaint against DSS under
Title VII. (Docket 1). In the fall of 2016, the United States
filed an amended complaint. (Docket 26). Count I of the
amended complaint alleges DSS violated Title VII by
individual race discrimination against Cedric Goodman, a
Native American, and other similarly situated Native
Americans by denying them, because of their race, employment
as a Specialist at the DSS Office at Pine Ridge, South
Dakota, during 2007 through 2013. Id. at pp. 4-7.
Count II of the amended complaint alleges DSS violated Title
VII by engaging in a pattern or practice of intentional
discrimination against Native Americans by denying them,
because of their race, employment as a Specialist at the DSS
Pine Ridge Office during 2007 through 2013. Id. at
pp. 4-7 & 9.
denied it discriminated either against individual Native
American applicants for a Specialist position or through a
pattern or practice of racial discrimination. (Docket 27).
Among other defenses, DSS asserted with respect to Mr.
Goodman, and all other allegedly similar applicants, its
“policies, practices and decisions . . . were at all
times based on legitimate, nondiscriminatory business
reasons.” Id. at p. 8. DSS further alleged its
“actions . . . were at all times reasonable and
undertaken in good faith and consistent with applicable
statutes and enforceable regulations.” Id. at
court bifurcated discovery into two stages. (Docket 16 at
p.1). The first stage focused “on (a) the liability, if
any, of the [DSS] for the plaintiff's pattern-or-practice
claim; (b) any defenses asserted by DSS that apply to the
issues to be tried in Stage I; and (c) the relief, if any,
including prospective injunctive relief ordered by the court
on that claim.” Id. A subsequent order
modified the discovery timetable and established a deadline
for submission of Stage I motions. (Docket 40).
motion for summary judgment asserts the United States
“cannot meet its burden to show a prima facie case that
DSS intentionally engaged in a pattern-or-practice of
discrimination.” (Docket 41 at p. 1). The United States
moves for “partial summary judgment on its prima facie
case that [DSS] engaged in a pattern or practice of
intentional discrimination against Native Americans when
hiring Specialists at its Pine Ridge office from 2007 through
2013.” (Docker 45 at p. 1). Both of the parties'
motions for summary judgment will be separately addressed.
Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment
if the movant can “show that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once
the moving party meets its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but
rather must produce affirmative evidence setting forth
specific facts showing that a genuine issue of material fact
exists. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). Only disputes over facts that might affect
the outcome of the case under the governing substantive law
will properly preclude summary judgment. Id. at p.
248. “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Id. at 247-48 (emphasis in original).
dispute about a material fact is genuine, that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, then summary judgment is not
appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving
party failed to “make a sufficient showing on an
essential element of her case with respect to which she has
the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In such a case,
“there can be ‘no genuine issue as to any
material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at p. 323.
determining whether summary judgment should issue, the facts
and inferences from those facts must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). The court is permitted to assume facts as true so
long as they are not blatantly contradicted by the record and
make all reasonable inferences in favor of the non-moving
party regarding any unresolved factual questions. Brown
v. Fortner, 518 F.3d 552, 557-58 (8th Cir. 2008). The
key inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at pp. 251-52.
VII makes it unlawful for employers “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.” 42 U.S.C. § 2000e-2(a)(1).
“All disparate-treatment claims brought under Title VII
turn on one basic issue: whether the employer intentionally
treated ‘some people less favorably than others because
of their race, color, religion, sex, or national origin.'
” Craik v. Minnesota State University Board,
731 F.2d 465, 468-69 (8th Cir. 1984) (citing
International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 335 n.15 (1977)). As indicated
above, Stage I of the case only addresses the pattern or
practice claim of the United States. For plaintiff's
pattern or practice disparate treatment claims, the court
employs the burden-shifting framework outlined in Teamsters.
“The plaintiff in a pattern-or-practice action is the
Government, and its initial burden is to demonstrate that
unlawful discrimination has been a regular procedure or
policy followed by an employer. . . .” Teamsters, 431
U.S. at 360. “At the initial, ‘liability'
stage of a pattern-or-practice suit the Government is not
required to offer evidence that each person for whom it will
ultimately seek relief was a victim of the employer's
discriminatory policy. Its burden is to establish a prima
facie case that such a policy existed.” Id.
“Establishment of the prima facie case in effect
creates a presumption that the employer unlawfully
discriminated against the employee.” Craik, 731 F.2d at
the plaintiff will produce statistical evidence showing
disparities between similarly situated protected and
unprotected employees with respect to hiring . . .
supplemented with other evidence, such as testimony about
specific incidents of discrimination.” Craik, 731 F.2d
at 470. “[B]ecause it alleged a systemwide pattern or
practice of resistance to the full enjoyment of Title VII
rights, the Government ultimately [has] to prove more than
the mere occurrence of isolated or ‘accidental' or
sporadic discriminatory acts. It had to establish by a
preponderance of the evidence that racial discrimination was
the [defendant's] standard operating procedure the
regular rather than the unusual practice.” Teamsters,
431 U.S. at 336. “[I]t [is] unmistakably clear that
‘(s)tatistical analyses have served and will continue
to serve an important role' in cases in which the
existence of discrimination is a disputed issue.”
Id. at 339 (citing Mayor of Philadelphia v.
Educational Equality League, 415 U.S. 605, 620 (1974)).
Statistics are competent evidence for proving employment
discrimination. Id. In recognizing this evidentiary
option, the Supreme Court “caution[ed] only that
statistics are not irrefutable; they come in infinite variety
and, like any other kind of evidence, they may be rebutted.
In short, their usefulness depends on all of the surrounding
facts and circumstances.” Id. at 340.
be legally sufficient, the [government's] statistical
evidence ‘must show a disparity of treatment, eliminate
the most common nondiscriminatory explanations of the
disparity, and thus permit the inference that, absent other
explanation, the disparity more likely than not resulted from
illegal discrimination.' ” Morgan v. United
Parcel Service of America, Inc., 380 F.3d 459, 463-64
(8th Cir. 2004) (citing Hervey v. Little Rock, 787
F.2d 1223, 1228 (8th Cir. 1986) (internal quotation omitted).
“Where gross statistical disparities can be shown, they
alone may in a proper case constitute prima facie proof of a
pattern or practice of discrimination.” Hazelwood
School District v. United States, 433 U.S. 299, 307-08
(1977). The government's evidence of individual
intentional discrimination may be considered to supplement
plaintiff's statistical evidence as anecdotal
“evidence would bring the cold No. convincingly to
life.” Morgan, 380 F.3d at 471 (citing Teamsters, 431
U.S. at 339).
government makes out a prima facie case, “[t]he burden
then shifts to the employer to defeat the prima facie showing
of a pattern or practice by demonstrating that the
Government's proof is either inaccurate or insignificant.
An employer might show, for example, . . . that during the
period it is alleged to have pursued a discriminatory policy
it made too few employment decisions to justify the inference
that it had engaged in a regular practice of
discrimination.” Teamsters, 431 U.S. at 360. “The
defendant, in rebuttal, will attempt to show that the
plaintiff's ‘proof is either inaccurate or
insignificant.' ” Craik, 731 F.2d at 470 (citing
Teamsters, 431 U.S. at 360).
the defendant satisfies its burden of production, the trier
of fact must then determine, by a preponderance of the
evidence, whether the employer engaged in a pattern or
practice of intentional discrimination.” Reynolds
v. Barrett, 685 F.3d 193, 203 (2d Cir. 2012). “If
an employer fails to rebut the inference that arises from the
Government's prima facie case, a trial court may then
conclude that a violation has occurred and determine the
appropriate remedy. Without any further evidence from the
Government, a court's finding of a pattern or practice
justifies an award of prospective relief.” Teamsters,
431 U.S. at 361.
MATERIAL FACTS RELATED TO BOTH MOTIONS
statement of fact is admitted by the opposing party, the
court will only reference the initiating document. For
purposes of resolving both parties' motions for summary
judgment, the following material facts are undisputed.
a governmental agency created pursuant to the laws of the
state of South Dakota. (Docket 26 at p. 2). DSS has offices
throughout South Dakota, including an office on the Pine
Ridge Reservation, which primarily serves Native Americans
living on the reservation. Id. The Pine Ridge
Reservation is home to the Oglala Lakota Sioux Tribe. (Docket
47 ¶ 1). About 90 percent of the Reservation's
population self-identified as Native American in the 2010
decennial census and most of the residents are members of the
Pine Ridge Office has approximately thirty to forty staff
members at a given time, including the regional manager,
supervisors, lead Benefits Specialist, Benefits Specialists,
Employments Specialists, ASA Specialists, and clerical
positions such as secretaries. (Docket 49 ¶ 12). Each
Specialist reports to a supervisor. Id. ¶ 24.
During the relevant time period, the DSS Pine Ridge Office
had one Supervisor of Employment Specialists, one Supervisor
of ASA Specialists, and two Supervisors of Benefits
supervisor reports to a regional manager. Id. ¶
32. There are two regional managers with management
responsibilities for the DSS Pine Ridge Office. Id.
The regional manager for the Division of Economic Assistance
(“DEA Regional Manager”) oversees the Employment
Specialist Supervisor and the Benefits Specialist Supervisor,
along with the Employment Specialists and Benefits
Benefits Specialist processes a client's data to
determine eligibility for government assistance programs such
as the Supplemental Nutrition Assistance Program
(“SNAP”), Electronic Benefits Transfers
(“EBT”), Medicaid, and refers qualified clients
to the Temporary Assistance for Needy Families
(“TANF”) program. Id. ¶ 15. A
Benefits Specialist is primarily engaged in interviewing
clients to obtain the requisite information needed to
determine eligibility, but visits homebound clients to
understand their household. Id. ¶ 16; see also
Docket 55 ¶ 16.
Employment Specialist primarily administers the conditions of
the TANF program. That program requires individuals to spend
approximately twenty hours a week attempting to find
employment, obtaining further education, or performing
community service. (Docket 49 ¶ 17). An Employment
Specialist also attempts to find employment and educational
opportunities for TANF recipients. Id. ¶ 18.
Employment Specialists meet with clients applying for TANF to
identify barriers to employment, and then through referrals,
counseling, and other processes, help the individual to
address those barriers. Id. ¶ 19. Field work
was a substantial portion of an Employment Specialist's
job duties. Id. ¶ 20.
Specialist determines eligibility for in-home services
primarily to the elderly, with the goal of keeping
individuals in their home communities for as long as possible
to avoid nursing home placement. Id. ¶ 21.
Eligibility for ASA services is based on age and income.
Id. ¶ 22. An ASA Specialist spends substantial
time in the field performing in-home visits, delivering
equipment and doing in-person eligibility assessments.
Id. ¶ 23.
Treloar was the DEA Regional Manager from 2003 until October
2015. Id. ¶ 33. Keith Kearns was the Employment
Specialist Supervisor from 1999 to October 2015. Id.
¶ 25. Mr. Kearns replaced Mr. Treloar and remains the
DEA Regional Manager. Id. ¶ 34.
White was a Benefits Specialist Supervisor from 2004 until
her retirement in November 2013. Id. ¶ 26. Ms.
White was replaced by Rhonda Barker, who remains a Benefit
Specialist Supervisor. Id. ¶ 27. Ron Shedeed
was a Benefits Specialist Supervisor from the mid-1990's
until his retirement in 2009. Id. ¶ 29. Michael
Bakley replaced Mr. Shedeed and has been a Benefits
Specialist Supervisor since 2010. Id. ¶¶
Regional Manager for the Division of Adult Services and Aging
(“DASA Regional Manager”) oversees the ASA
Specialist Supervisor and the ASA Specialists. Id.
¶ 35. Tammy Kabris was the DASA Regional Manager from
2011 until 2015. Id. Nancy Sletto was the ASA
Specialist Supervisor from the mid-2000s until 2010.
Id. ¶ 30. Rogine Page replaced Ms. Sletto and
has been the ASA Specialist Supervisor since July 2011.
Id. ¶ 31.
there are a static No. of Specialist positions at the DSS
Pine Ridge Office and the opportunity to hire a new employee
only arises when a vacancy in an existing Specialist position
occurs. Id. ¶ 36. When a vacancy occurs the
supervisor of that position (the “Hiring
Supervisor”) informs the regional manager and prepares
a requisition request asking that the position be advertised.
Id. ¶ 37. DSS assigns each requisition a unique
number. (Docket 47 ¶ 13). The requisition includes the
job title, the position number, to whom the requisition list
should be sent, whether the position was full-time or
part-time, a description of an ideal candidate, a description
of the knowledge, skills and abilities
(“KSA's”) being sought and a list of any
additional requirement questions. (Docket 49 ¶ 38). This
information is incorporated into the formal job posting which
includes a description of the position, the ideal candidate,
the required KSA's and any supplemental questions.
Id. ¶ 39.
postings are advertised through the South Dakota Bureau of
Human Resources (“BHR”), formerly the South
Dakota Bureau of Personnel. Id. ¶ 40.
Application materials are available online for viewing and
printing. Id. ¶ 42. A candidate applying for a
DSS position submits all application materials electronically
to BHR. Id. ¶¶ 41 & 42.
position is advertised, the Hiring Supervisor receives a
certification list and has access through BHR's online
system to the job candidates' application materials and
supporting materials. Id. ¶¶ 43-45. The
Hiring Supervisor considers an applicant's materials in
light of the KSA's and preferred qualifications of higher
education, prior case management experience, and familiarity
with the geography and culture of the Pine Ridge Reservation,
to determine those qualified for an interview. Id.
¶ 48; see also Docket 55 ¶ 48. Depending on the No.
of applicants, a Hiring Supervisor will conduct initial phone
interviews to screen out applicants. (Docket 49 ¶ 46).
If a smaller applicant pool is involved, the Hiring
Supervisor may conduct only in-person interviews.
Id. ¶ 47.
interviews are conducted by the Hiring Supervisor with
assistance from another supervisor and occasionally the
regional manager. Id. ¶ 49. The Hiring
Supervisor creates a list of questions and the interviewers
rotate through the questions with the applicant. Id.
¶ 50. The same questions are asked of each interviewee
in a given requisition, with the interviewers asking
follow-up questions which varied from interview to interview.
Id. ¶ 51; see also Docket 55 ¶ 51.
reviewing the application, completing interviews and
completing reference checks, if there was no applicant the
Hiring Supervisor felt comfortable recommending for hire, the
Hiring Supervisor has the discretion to have BHR cancel a
requisition and re-advertise the position. (Dockets 49
¶ 52 & 55 ¶ 52). If the Hiring Supervisor finds
a qualified applicant who had a successful interview and
reference check, the applicant is recommended to the Regional
Manager for hire. (Docket 49 ¶ 53). The Regional
Manager sends the final selection to the Division Director
who passes the selection onto BHR for final approval.
Id. ¶ 54. While additional clarifications
regarding salary or requests for information are occasionally
requested by the Division Director, there is no evidence a
Hiring Supervisor's recommendation was ever rejected.
Id. ¶ 55.
January 1, 2007 to December 31, 2013, the DSS Pine Ridge
Office hired twenty white applicants and two Native American
applicants as Specialists. (Dockets 49 ¶ 58 & 55
¶ 58). During the same time period, the DSS Pine Ridge
Office posted 35 open and competitive requisitions for
Specialist positions. Id. DSS's applicant-flow data
for each requisition includes a list of all applicants with
each applicant's self-identified racial classification
and each applicant's individual status disposition for
that requisition. Id. DSS maintains its
applicant-flow data with the BHR. (Docket 47 ¶ 35).
MOTION FOR SUMMARY JUDGMENT
addition to the facts stated above, for purposes of
addressing defendant's motion for summary judgment the
following recitation consists of the material facts developed
from the defendant's statement of undisputed material
facts (Docket 49), plaintiff's response to
defendant's statement of undisputed facts (Docket 55),
and other evidence where indicated. Where a statement of fact
is admitted by the opposing party, the court will only
reference the initiating document. These facts are
“viewed in the light most favorable to the [party]
opposing the motion.” Matsushita Elec. Indus. Co., 475
U.S. at 587.
addition to the facts stated above, the undisputed facts
pertinent to defendant's motion for summary judgment are
as follows. In 2010-11, DSS maintained 64 offices within
nearly every county in South Dakota. (Docket 49 ¶ 4). Of
those 64 offices, 35 were full-time offices and 29 were
itinerant offices staffed for a few days each week or month.
Id. In 2010, DSS employed 535 Specialists statewide.
Id. ¶ 6. In 2010, DSS hired 234 new employees,
including 37 new Specialists, statewide. Id. ¶
8. In 2011, DSS had over 1, 800 employees statewide and
employed 516 Specialists. Id. ¶¶ 5 &
7. In 2011, DSS hired 285 new employees statewide including
44 new Specialists. Id. ¶ 9.
to 2014, the individual Hiring Supervisors at the DSS Pine
Ridge Office had discretion to conduct interviews and hiring
in a non-uniform way. (Docket 55 ¶ 57). The Specialist
hiring criteria was individualized to include non-statewide
criteria, such as familiarity with the Native American
significance tests are used to decide whether a disparity,
such as a disparity between the hiring rates of two groups
(e.g., Native American applicants and white applicants), is
or is not likely due to normally-occurring chance
variation.” (Docket 47 ¶ 59). “A disparity
can be described in terms of standard deviations, which
correspond to the likelihood that an observed disparity at
least as large as the one obtained would occur by chance. For
example, a 5% likelihood equates to slightly less than two
(1.96) units of standard deviation.” Id.
¶ 60. “Statisticians and other social scientists
normally consider a disparity to be ‘statistically
significant' if there is a 5% or lower likelihood (i.e.,
probability) that so large a disparity would occur by
chance.” Id. ¶ 61.
United States disclosed an expert report by Dr. Juliet Aiken
to present a statistical analysis of the differences in
hiring rates between Native American and white applicants for
Specialist positions at the DSS Pine Ridge
Office. (Docket 49 ¶ 62). Dr. Aiken separated
her analyses into three periods: (1) 2005-06; (2) 2007-13
(Pre-Competency); and (3) 2014-15 (Post-Competency).
Id. ¶ 63. Dr. Aiken combined her statistical
analyses of the three Specialist positions and concluded the
difference in hiring rates was statistically significant,
3.47 standard deviations, for the Specialist positions in
2007-13. Id. ¶ 64. Dr. Aiken concluded the
disparity was practically significant, projecting that if DSS
had hired Native Americans at the same rate as all
applicants, the DSS Pine Ridge Office would have hired eight
more Native Americans as Specialists during the period of
2007-13. Id. ¶ 65.
disclosed an expert report from Dr. Janet Thornton in which
she identified a No. of criticisms of Dr. Aiken's report.
(Docket 49 ¶ 66). In both her report and in her
deposition testimony, Dr. Thornton acknowledged there were
statistically significant differences in the Native American
composition of the offers extended to those ...