Chin v. Port Authority of New York & New Jersey

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

United States Court of Appeals
FOR THE SECOND CIRCUIT

August Term 2011

(Argued: October 17, 2011 Decided: July 10, 2012)

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

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

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

-v.-

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

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

Defendant-appellant the Port Authority of New York and New Jersey, Inc.
(“Port Authority”) and plaintiff-appellants Howard Chin, Richard Wong, Sanrit
Booncome, and Michael Chung appeal from a judgment of the United States
District Court for the Southern District of New York (Miriam Goldman
Cedarbaum, Judge) holding, after a jury trial, that the Port Authority violated
Title VII of the Civil Rights Act of 1964 by failing to promote seven plaintiffs,
and awarding plaintiffs-appellees Christian Eng, Nicholas Yum, Alan Lew,
David Lim, George Martinez, Stanley Chin, and Milton Fong back pay,
compensatory damages, and equitable relief. We conclude that the pattern-or-
practice method of proving liability was not available to plaintiffs in this private,
nonclass action and so REVERSE as to the submission of this theory of liability
to the jury. We also REVERSE with respect to the district court’s determination
that pursuant to the plaintiffs’ disparate impact theory, the “continuing
violation” doctrine permitted the award of damages and equitable relief in
connection with conduct predating the statute of limitations. We therefore
VACATE the back pay awards to Eng, Lew, Stanley Chin, and Fong; VACATE the
jury’s compensatory damage awards with respect to Eng, Yum, Lew, Lim,
Martinez, Stanley Chin, and Fong; VACATE the retroactive promotion of Lew;
VACATE the salary and pension adjustments for Lew, Stanley Chin, and Fong;
and REMAND to the district court for a new trial on damages as to these plaintiffs
and for reconsideration of the equitable relief afforded to them to the extent such
relief was premised on failures to promote occurring outside the statute of
limitations. With respect to all other issues raised by the parties on appeal, we
AFFIRM.

KAREN R. KING (Susanna M. Buergel, on the
briefs), Paul, Weiss, Rifkind, Wharton & Garrison
LLP, New York, New York, for Plaintiffs-
Appellees–Cross-Appellants and Plaintiffs-
Appellees.

KATHLEEN GILL MILLER (Milton H. Pachter &
James M. Begley, on the briefs), Port Authority of
New York and New Jersey, New York, New York,
for Defendant-Appellant–Cross-Appellee.

LIVINGSTON, Circuit Judge:

Plaintiffs-appellees, eleven Asian Americans currently or formerly

employed as police officers by the Port Authority of New York and New Jersey

(“Port Authority”), sued the Port Authority under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., alleging that they were passed over for

promotions because of their race. The plaintiffs asserted three theories of

liability for discrimination: individual disparate treatment, pattern-or-practice

disparate treatment, and disparate impact. After a nine-day trial, a unanimous

2
jury found the Port Authority liable for discrimination against seven of the

plaintiffs under all three theories and awarded back pay and compensatory

damages to each of those seven plaintiffs. The district court (Miriam Goldman

Cedarbaum, Judge) also granted equitable relief to certain of the prevailing

plaintiffs in the form of retroactive promotions, seniority benefits, and salary

and pension adjustments corresponding with the hypothetical promotion dates

that the jury apparently selected as a basis for calculating these plaintiffs’ back

pay awards.

On appeal, the Port Authority argues: (1) that evidence predating the

onset of the statute of limitations should not have been admitted; (2) that the

evidence was insufficient to support the jury’s verdict with respect to each of the

plaintiffs’ theories; and (3) that the damages and equitable relief were premised

on time-barred claims and were otherwise excessive. With regard to the

plaintiffs’ individual disparate treatment allegations, we hold that the district

court properly admitted background evidence predating the onset of the

limitations period and that there was sufficient evidence for a reasonable juror

to conclude that the Port Authority discriminated against the seven prevailing

plaintiffs within the limitations period. The district court erred, however, in: (1)

submitting the pattern-or-practice disparate treatment theory to the jury in this

private, nonclass action; and (2) concluding that the “continuing violation”

3
doctrine applied to the plaintiffs’ disparate impact theory so that the jury could

award back pay and compensatory damages for harms predating the onset of the

statute of limitations. We therefore vacate the back pay for four of the plaintiffs,

whose awards correspond with hypothetical promotion dates beyond the

limitations period, as well as the injunctive relief for three of the same plaintiffs,

and we also vacate the award of compensatory damages for all seven prevailing

plaintiffs. We remand for a new trial on damages as to all seven prevailing

plaintiffs and for reconsideration of equitable relief to the extent such relief was

premised on failures to promote occurring outside the limitations period.

The four plaintiffs who did not prevail at trial cross-appeal, arguing that

the district court erred by excluding expert testimony from an industrial

psychologist. One of these plaintiffs, cross-appellant Howard Chin, further

argues that the district court erred in denying the plaintiffs’ motion for sanctions

in the form of an adverse inference instruction due to the Port Authority’s

destruction of promotion records. Finding no abuse of discretion in the district

court’s determinations as to these matters, we affirm.

BACKGROUND

The Port Authority is a bi-state transportation agency whose facilities are

policed by its Public Safety Department. The eleven plaintiffs-appellees in this

case are Asian Americans who were employed by that department as police

4
officers. Christian Eng was hired in 1977, David Lim in 1980, Richard Wong in

1983, Milton Fong in 1985, Howard Chin and Alan Lew in 1987, Stanley Chin

in 1988, George Martinez and Nicholas Yum in 1993, and Michael Chung and

Sanrit Booncome in 1999. All of the plaintiffs were members of the Port

Authority Police Asian Jade Society of New York & New Jersey Inc. (“Asian Jade

Society”), a nonprofit organization comprised of Port Authority police officers of

Asian or Pacific Islander origin, whose stated goal is to “promot[e]

understanding, friendship and cooperation among members of the Port

Authority police department.”

I. The Port Authority Police Department’s Promotion Process

During the period relevant to this case, entry-level police officers in the

Port Authority’s police department could be promoted to the rank of Sergeant,

the first level in a hierarchy of supervisory positions (followed by Lieutenant,

Captain, Inspector, Chief, and finally Superintendent of Police). To become

eligible for promotion to Sergeant, a police officer was required (among other

requirements) to pass an examination, which would place him on an “eligibility

list” for a period of time. When such a list expired, the officer would have to pass

the examination again to be placed on the new list. Three lists were in effect

during the period relevant to this case: the 1996 List, the 1999 List, and the

5
2002 List.1 These lists were “horizontal,” which meant that the lists did not rank

the officers, but merely established eligibility for promotion.

Each Port Authority facility’s commanding officer (generally a Captain)

was periodically asked to recommend eligible officers for promotion, at their

discretion. The Port Authority did not dictate any criteria for recommendation.

Moreover, commanding officers were free to make recommendation decisions

themselves, solicit input from the police officers’ direct supervisors (generally

Sergeants and Lieutenants), or delegate the responsibility entirely to the direct

supervisors. A promotion folder was prepared for each recommended officer,

which included a performance evaluation by a supervisor, a photograph of the

officer, and his record of absences, commendations, awards, and disciplinary

history.

Officers recommended in this way were typically considered by the Chiefs’

Board, in which the Chiefs would collectively decide which officers to recommend

to the Superintendent. The Chiefs’ Board did not operate under any written

1
The 1996 List was in effect from August 1996 through August 1999, and
included 178 officers, 7 of whom were Asian. Twenty-three officers were promoted
from the 1996 List, none of whom was Asian. The 1999 List was in effect from August
1999 through August 2002, and included 220 officers, 10 of whom were Asian. Fifty-
five officers were promoted from the 1999 List, 2 of whom were Asian (both of whom
were promoted in December 2001). The 2002 List was in effect from August 2002
through the date the complaint was filed (April 15, 2005), and included 352 officers, 16
of whom were Asian. As of April 15, 2005, when the complaint in this case was filed,
45 officers had been promoted from the 2002 List, 1 of whom was Asian.

6
guidelines, and from 1996 through September 2001, took no minutes or notes.

Each Chief would vote regarding each recommended officer, and any officer who

received a majority of votes from the Chiefs’ Board would then be recommended

to the Superintendent. This step in the process was not always necessary to

promotion, however; for example, Acting Superintendent Joseph Morris did not

use the Chiefs’ Board at all during his tenure from September 2001 through

April 2002.

The ultimate decision to promote an officer to Sergeant belonged solely to

the Superintendent. In fact, the Superintendent occasionally promoted officers

whom the Chiefs’ Board had declined to recommend ahead of those

recommended by the Board.

As of January 31, 2001, no Asian American had ever been promoted to

Sergeant.

II. Procedural History

On January 31, 2001, the Asian Jade Society filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”)

on behalf of its members, claiming that the Port Authority had denied Asian

American police officers promotions because of their race. On August 29, 2003,

the EEOC determined that there was reasonable cause to believe the Port

Authority had violated Title VII, and on January 25, 2005, the Department of

7
Justice issued a right-to-sue letter to the Asian Jade Society.2 The eleven

plaintiffs in this case filed suit on April 15, 2005, alleging that the Port

Authority had discriminated against Asian Americans in making promotions to

Sergeant.

During discovery, the plaintiffs learned that the Port Authority had not

implemented a document retention policy and that, as a result, at least thirty-

two promotion folders used to make promotion decisions between August 1999

and August 2002 had been destroyed. The plaintiffs moved for sanctions,

seeking an adverse inference against the Port Authority for spoliation. The

district court denied the motion, reasoning that the plaintiffs had ample

alternative evidence regarding the relative qualifications of the plaintiffs and

that the Port Authority’s destruction of the documents was “negligent, but not

grossly so.” Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth.

of N.Y. & N.J. (Port Auth. I), 601 F. Supp. 2d 566, 570 (S.D.N.Y. 2009).

On the eve of trial, the district court granted the Port Authority’s motion

to exclude testimony from one of the plaintiffs’ expert witnesses: Dr. Kathleen

Lundquist, an industrial psychologist who specializes in analyzing the reliability

2
Ordinarily, a “right to sue” letter must be issued by the EEOC. However,
where the respondent to a Title VII discrimination charge is a governmental agency
and the EEOC has not dismissed the charge, the Attorney General is responsible for
issuing the right-to-sue letter. See 29 C.F.R. § 1601.28(d).

8
and validity of employee-selection procedures. Dr. Lundquist had prepared a

report opining on the effectiveness of the Port Authority’s promotion process, on

whether it included safeguards to prevent bias and discrimination, and on the

comparative qualifications of the plaintiffs relative to the qualifications of the

officers who had been promoted. Citing Rule 702 of the Federal Rules of

Evidence,3 the district court concluded that Dr. Lundquist’s testimony “would

not assist the trier of fact” and was therefore excluded.

The nine-day trial began on March 11, 2009, and included testimony from

twenty-two fact witnesses and four expert witnesses. All eleven of the plaintiffs

testified regarding their personal backgrounds, education, experiences as police

officers, attendance and disciplinary records, awards and commendations, and

performance evaluations. Six Chiefs, one former Superintendent, the

Superintendent at the time of trial, and three other Port Authority managers

testified regarding the Port Authority’s promotion procedure. Each side also

presented a statistical expert and a damages expert.

3
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if: (a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.

9
 Most relevant to this appeal, the plaintiffs’ statistical expert, Dr.

Christopher Cavanagh, presented two analyses that, in his view, demonstrated

a high probability that Asian Americans had been discriminated against in the

Port Authority’s promotion process. In his first study, Cavanagh compared the

percentage of white police officers who held a supervisory position (out of all

white police officers) with the percentage of Asian Americans who held a

supervisory position (out of all Asian American police officers) from 1996 through

2004. For each year, he used a Fisher Exact Test to calculate the likelihood that

the difference between Asian American and white representation at the

supervisory level (as compared to the representation of these groups at the non-

supervisory level) was due to chance.4 From 1996 through 2000, the likelihood

that the disparities were due to chance was about two percent or less; from 2001

through 2004, the likelihoods that the disparities were due to chance were

between about five and eleven percent.

Cavanagh’s second analysis compared the promotion rate for whites who

were on the eligible lists to the promotion rate for Asian Americans who were on

the eligible lists over the period from August 1996 through January 31, 2001

(the date on which the EEOC charge was filed). Of the 259 white officers on the

4
The Fisher Exact Test is a statistical significance test named for its author,
R.A. Fisher. See generally R.A. Fisher, On the Interpretation of [Chi-Squared] from
Contingency Tables, and the Calculation of P, 85 J. Royal Stat. Soc’y 87 (1922).

10
lists over this period, 36 were promoted; of the 12 Asian Americans on the lists,

none were promoted. Using the Fisher Exact Test, Cavanagh calculated that the

likelihood this disparity would occur due to chance was about thirteen percent.

The district court instructed the jury regarding three theories of

discrimination: (1) disparate impact; (2) pattern-or-practice disparate treatment;

and (3) individual disparate treatment. After two-and-a-half days of

deliberation, the jury returned a unanimous verdict, finding that seven of the

eleven plaintiffs—Christian Eng, Milton Fong, Alan Lew, Stanley Chin, Nicholas

Yum, George Martinez, and David Lim—had proven all three of their theories

of liability, and awarding more than $1.6 million in total to those seven

plaintiffs. The back pay awards corresponded precisely to certain hypothetical

promotion dates suggested by the plaintiffs’ damages expert.5

On the plaintiffs’ motion, the district court also granted the seven

prevailing plaintiffs equitable relief, including salary adjustments for pension

purposes for Milton Fong, Stanley Chin, Alan Lew, George Martinez, Nicholas

5
Four plaintiffs’ back pay awards corresponded to hypothetical promotion dates
of October 31, 1999: Christian Eng was awarded $35,445 in back pay and $250,000 in
compensatory damages; Milton Fong was awarded $83,924 in back pay and $100,000
in compensatory damages; Alan Lew was awarded $189,859 in back pay and $75,000
in compensatory damages; and Stanley Chin was awarded $116,636 in back pay and
$100,000 in compensatory damages. Three plaintiffs’ back pay awards corresponded
to hypothetical promotion dates of September 30, 2002: Nicholas Yum was awarded
$141,663 in back pay and $15,000 in compensatory damages; George Martinez was
awarded $145,861 in back pay and $15,000 in compensatory damages; and David Lim
was awarded $119,234 in back pay and $250,000 in compensatory damages.

11
Yum, and David Lim, and retroactive promotions for Alan Lew, George

Martinez, and Nicholas Yum. The hypothetical dates the district court used

were October 31, 1999, for Fong, Chin, and Lew, and September 30, 2002, for

Martinez, Yum, and Lim—corresponding with the hypothetical dates the jury

apparently used as a basis for computing back pay. The court also ordered the

Port Authority to take certain specific actions to prevent future violations.

The Port Authority filed a motion pursuant to Rules 50 and 59 of the

Federal Rules of Civil Procedure to set aside the jury’s verdict or, alternatively,

for a new trial and for remittitur. The Port Authority argued that: (1) the

district court improperly admitted evidence pertaining to events prior to the

onset of the statute of limitations period; (2) the jury was improperly instructed

to consider events outside the limitations period for purposes of establishing

liability; (3) there was insufficient evidence to find the Port Authority liable

under any of the plaintiffs’ three theories; (4) the jury instructions were

erroneous and confusing with respect to the statute of limitations; and (5) the

jury’s damages included time-barred claims and were otherwise excessive.

The district court denied the Port Authority’s motion in its entirety. See

Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. &

N.J. (Port Auth. II), 681 F. Supp. 2d 456 (S.D.N.Y. 2010). As pertinent to this

appeal, the district court first held that background evidence from beyond the

12
statute of limitations is admissible in support of a timely claim. See id. at 462.

Next, the court concluded that the plaintiffs’ individual disparate treatment

claims were premised on “discrete acts” and thus that the Port Authority could

be liable only for those acts within the statute of limitations. See id at 463. The

court concluded that the plaintiffs’ disparate impact and pattern-or-practice

disparate treatment theories of liability, however, were premised on the

existence of an “ongoing discriminatory policy,” and thus were subject to the

“continuing violations” doctrine, so that the plaintiffs could recover for untimely

discrete acts so long as they were the product of a discriminatory policy that

continued into the statute-of-limitations period. See id. at 463–66. Third, the

district court held that although Cavanagh’s statistical evidence did not reach

the conventional five-percent level of statistical significance, see Smith v. Xerox

Corp., 196 F.3d 358, 366 (2d Cir. 1999) (noting that statistical significance at the

five-percent level is generally “sufficient to warrant an inference of

discrimination”), the jury had before it other evidence of discrimination sufficient

to find for the plaintiffs on each of the theories of liability. See Port Auth. II, 681

F. Supp. 2d at 468–69. Finally, the district court declined to remit the jury’s

compensatory damages awards because other judges had upheld similar awards

and because the awards did not “shock the judicial conscience.” Id. at 470.

13
 The Port Authority appeals, and argues before this Court that it is entitled

to a new trial with respect to the seven prevailing plaintiffs because: (1) evidence

predating the onset of the limitations period should not have been admitted; (2)

the evidence at trial was insufficient to support the jury’s verdict with respect

to each of the plaintiffs’ theories; and (3) the damages and equitable relief are

premised on time-barred claims and are otherwise excessive.

The four plaintiffs who did not prevail at trial—Howard Chin, Richard

Wong, Sanrit Booncome, and Michael Chung—cross-appeal, and argue here that

they are entitled to a new trial because the district court erred by excluding

Lundquist’s testimony. Howard Chin further argues that he is entitled to a new

trial because the district court improperly denied the plaintiffs an adverse

inference instruction despite the Port Authority’s destruction of promotion

records.

DISCUSSION

The plaintiffs argue that they are entitled to damages for injuries that

occurred before the onset of the statute of limitations period because the

“continuing violations” doctrine applies to two of their three theories of

liability—pattern-or-practice disparate treatment and disparate impact. We

dispose of half of this argument at the outset of this opinion by holding that no

such pattern-or-practice theory of liability is available to the private, non-class

14
plaintiffs in this case. We next consider and affirm the district court’s judgment

with respect to the plaintiffs’ two remaining theories of liability—individual

disparate treatment and disparate impact—by holding that background evidence

from outside the limitations period was admissible and that the evidence

presented at trial was sufficient to sustain the jury’s findings of liability on both

theories. We then conclude, however, that the “continuing violations” doctrine

does not apply to either theory in this case, and therefore vacate and remand for

reconsideration of the damages and equitable relief granted by the district court

to the prevailing plaintiffs whose awards correspond (or may correspond) to

hypothetical promotion dates preceding the onset of the limitations period.

Finally, we consider the plaintiffs’ cross-appeal, and hold that the district court

did not abuse its discretion by excluding Lundquist’s testimony or by denying the

plaintiffs an adverse inference instruction.

“A motion for a new trial should be granted when, in the opinion of the

district court, ‘the jury has reached a seriously erroneous result or . . . the verdict

is a miscarriage of justice.’” Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.

1992) (quoting and altering Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363,

370 (2d Cir. 1988)). “The district court’s denial of a Rule 59 motion for a new

trial is reviewed for abuse of discretion.” Manganiello v. City of New York, 612

F.3d 149, 165 (2d Cir. 2010). “A district court has abused its discretion if it has

15
(1) ‘based its ruling on an erroneous view of the law,’ (2) made ‘a clearly

erroneous assessment of the evidence,’ or (3) ‘rendered a decision that cannot be

located within the range of permissible decisions.’” Id. (quoting Sims v. Blot, 534

F.3d 117, 132 (2d Cir. 2008)). We review the denial of a motion for judgment as

a matter of law de novo. Lore v. City of Syracuse, 670 F.3d 127, 150 (2d Cir.

2012). “[W]hether conducting review de novo or under a less sweeping standard,

we must disregard all errors and defects . . . . if there is no likelihood that the

error or defect affected the outcome of the case.” Id. (internal quotation marks

omitted).

As a prerequisite to filing suit under Title VII, a private plaintiff must first

file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). Both

parties agree that in this case, the plaintiffs’ charge was due “within one

hundred and eighty days after the alleged unlawful employment practice

occurred.” 42 U.S.C. § 2000e-5(e)(1). Accordingly, because the EEOC charge in

this case was filed on January 31, 2001, only an unlawful employment practice

that “occurred” after August 2, 2000, may give rise to liability.6

6
Although the district court and the parties appear to agree that 180 days prior
to January 31, 2001 is August 3, 2000, by this Court’s calculation the correct date is
August 4, 2000, which would mean that only an unlawful employment practice that
occurred after August 3, 2000 may give rise to liability. But because the one-day
difference is not material to this appeal, we refer to August 2, 2000, as the relevant
date throughout this opinion. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982) (“[F]iling a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a

16
 I. The Pattern-or-Practice Method of Proof

As an initial matter, we address the question whether the method of proof

described in International Brotherhood of Teamsters v. United States, 431 U.S.

324 (1997), and known as the “Teamsters” or “pattern-or-practice” method, was

available to the nonclass private plaintiffs in this case.7 We conclude that it was

not and that the judgment as to pattern or practice must for this reason be

reversed. We emphasize, however, that evidence that the Port Authority

engaged in a pattern or practice of discrimination—in the ordinary sense of those

words, rather than in the technical sense describing a theory of liability for

discrimination—remains relevant in assessing whether the plaintiffs proved

discrimination using the individual disparate treatment and disparate impact

methods of proof.

The phrase “pattern or practice” appears only once in Title VII—in a

section that authorizes the government to pursue injunctive relief against an

employer “engaged in a pattern or practice of resistance to the full enjoyment of

any of the rights secured by” the statute. 42 U.S.C. § 2000e-6. Notwithstanding

statute of limitations, is subject to waiver, estoppel, and equitable tolling.”).
7
The parties did not address this issue before the district court and do not raise
it on appeal. Nonetheless, we are not bound by parties’ effective stipulations on
questions of law, see U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S.
439, 446–48 (1993), and in this case we exercise our discretion to consider this issue
in order to provide guidance in a complicated area.

17
the Supreme Court’s recognition in Teamsters that this language “was not

intended as a term of art, and the words reflect only their usual meaning,”

Teamsters, 431 U.S. at 336 n.16, the phrase is often used in a technical sense to

refer either to this unique form of liability available in government actions under

§ 2000e-6, see, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 67–68 n.19, 70, 80 (1984),

or to the burden-shifting framework set out in Teamsters and available both to

the government in § 2000e-6 litigation and to class-action plaintiffs in private

actions alleging discrimination, see, e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S.

Ct. 2541, 2552 n.7 (2011).

We begin with § 2000e-6. The building blocks of liability pursuant to this

provision—which provides for prospective injunctive relief where the

government establishes that an employer is engaged in a “pattern or practice of

resistance to the full enjoyment” of rights secured by Title VII—differ from those

that provide the foundation for typical, private-party Title VII litigation. To

establish an employer’s liability for discrimination in violation of Title VII, a

private plaintiff ordinarily must show that an employer took an adverse

employment action against him or her because of his or her race, or on account

of another protected ground. See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973); Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 80

(2d Cir. 2009). In § 2000e-6 litigation, by contrast, the government need not

18
demonstrate specific losses to specific individuals to establish that injunctive

relief is appropriate. The government must “prove more than the mere

occurrence of isolated or ‘accidental’ or sporadic discriminatory acts”: it must

prove that unlawful discrimination “was the company’s standard operating

procedure.” Teamsters, 431 U.S. at 336. Once established, however, “a court’s

finding of a pattern or practice justifies an award of prospective relief” even

absent proof of losses to specific individuals. Id. at 361.

The parties here use the term “pattern or practice” to refer not to an

element of a § 2000e-6 claim, but to the method of proof that the Supreme Court

endorsed in Teamsters for the adjudication of such claims. This method of proof,

however, originated in the class action context, in Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976). The Supreme Court in Franks

determined that once the private plaintiffs in the class action there “carried their

burden of demonstrating the existence of a discriminatory hiring pattern and

practice by the [employer] . . . , the burden [was] upon [the employer] to prove

that individuals who reappl[ied] were not in fact victims of previous hiring

discrimination.” Id. at 772. The Court in Franks used the phrase “pattern and

practice” to refer to the common question of fact (whether the employer had

engaged in a practice of discriminatory hiring) to be litigated by class plaintiffs,

and apparently viewed its holding as no more than an application of McDonnell

19
Douglas’ burden-shifting framework in the class-action context. See Franks, 424

U.S. at 773 (citing McDonnell Douglas, 411 U.S. 792).

The Teamsters Court thereafter determined that the Franks burden-

shifting framework for certain class actions should also apply to government

“pattern or practice” suits brought under § 2000e-6:

Although not all class actions will necessarily follow the
Franks model, the nature of a [§ 2000e-6] pattern-or-practice suit
brings it squarely within our holding in Franks. The plaintiff in a
pattern-or-practice action is the Government, and its initial burden
is to demonstrate that unlawful discrimination has been a regular
procedure or policy followed by an employer or group of employers.
At the initial, “liability” stage of a pattern-or-practice suit the
Government is not required to offer evidence that each person for
whom it will ultimately seek relief was a victim of the employer’s
discriminatory policy. . . .
....
When the Government seeks individual relief for the victims
of the discriminatory practice, a district court must usually conduct
additional proceedings after the liability phase of the trial to
determine the scope of individual relief. The petitioners’ contention
in this case is that if the Government has not, in the course of
proving a pattern or practice, already brought forth specific evidence
that each individual was discriminatorily denied an employment
opportunity, it must carry that burden at the second, “remedial”
stage of trial. That basic contention was rejected in the Franks
case. . . .
The proof of the pattern or practice supports an inference that
any particular employment decision, during the period in which the
discriminatory policy was in force, was made in pursuit of that
policy. The Government need only show that an alleged individual
discriminatee unsuccessfully applied for a job and therefore was a
potential victim of the proved discrimination. As in Franks, the
burden then rests on the employer to demonstrate that the

20
 individual applicant was denied an employment opportunity for
lawful reasons.

Teamsters, 431 U.S. at 360–62 (internal citation and footnotes omitted). Since

Teamsters, this burden-shifting framework has been known as the “Teamsters

method of proof” or the “pattern-or-practice method.” See, e.g., Celestine v.

Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001) (“A pattern or

practice case is not a separate and free-standing cause of action . . . , but is really

merely another method by which disparate treatment can be shown.” (internal

quotation marks omitted)); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760

(4th Cir. 1998) (“The courts of appeals have . . . permitted pattern or practice

class action suits using the Teamsters method of proof.”), vacated on other

grounds, 527 U.S. 1031 (1999).8 In sum, unlike in a typical individual disparate

treatment suit, “a plaintiff’s burden under the pattern-or-practice method

requires the plaintiff to prove only the existence of a discriminatory policy rather

than all elements of a prima facie case of discrimination”—but “under the

pattern-or-practice method, only prospective relief [is] available, unless the

8
Although the Teamsters framework is not a freestanding cause of action,
courts—including the Supreme Court—sometimes loosely refer to the Teamsters
method of proof as a “pattern-or-practice claim.” See, e.g., Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 n.9 (2002) (“We have no occasion here to consider
the timely filing question with respect to ‘pattern-or-practice’ claims brought by
private litigants as none are at issue here.”).
21
plaintiffs offer[] additional proof.” Semsroth v. City of Wichita, 304 F. App’x 707,

716 (10th Cir. 2008) (describing the reasoning in Lowery, 158 F.3d at 761).

Permitting private plaintiffs to use the pattern-or-practice method of proof

outside the class action context would require us to extend this method beyond

its current application. This we decline to do. Such an extension would allow

nonclass private plaintiffs who have shown a pattern or practice of

discrimination (but have not made out a disparate impact claim) to shift the

burden to employers to prove that they did not discriminate against a particular

individual. But this would conflict with the Supreme Court’s oft-repeated

holding in the context of disparate-treatment, private nonclass litigation that

“[t]he ultimate burden of pursuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To

be sure, proof that an employer engaged in a pattern or practice of

discrimination may be of substantial help in demonstrating an employer’s

liability in the individual case. But such proof cannot relieve the plaintiff of the

need to establish each element of his or her claim.

We note that the district court in this case did not instruct the jury that

a finding of a pattern or practice of discrimination shifted the burden of

persuasion. Rather, the verdict sheet instructed the jury that each individual

22
plaintiff was required to prove by a preponderance of the evidence that he was

discriminated against as part of the pattern or practice. This instruction only

underscores, however, why there was no need for the jury to make a specific

finding regarding a pattern or practice of discrimination in this private, nonclass

suit, as opposed to determining directly whether each individual plaintiff had

been intentionally discriminated against. Where, as here, there are only

individual, nonclass disparate-treatment claims, a district court need not and

should not instruct the jury that a common pattern of discrimination is an

element of liability.

For these reasons, all of our sister circuits to consider the question have

held that the pattern-or-practice method of proof is not available to private,

nonclass plaintiffs. See Semsroth v. City of Wichita, 304 F. App’x 707, 715 (10th

Cir. 2008); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 967–69 (11th

Cir. 2008); Bacon v. Honda of Am. Mfg., 370 F.3d 565, 575 (6th Cir. 2004);

Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355–56 (5th Cir. 2001);

Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990); Lowery v. Circuit

City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on other grounds, 527

U.S. 1031 (1999); see also Schuler v. PricewaterhouseCoopers, LLP, 739 F. Supp.

2d 1, 6 n.2 (D.D.C. 2010) (“Courts in every other Circuit that has touched on this

issue have indicated that an individual plaintiff cannot maintain a pattern and

23
practice claim.”) (collecting cases); 1 Lex Larson et al., Employment

Discrimination § 8.01[3], at 8-13 (2d ed. 2011) (“[C]ourts have refused to permit

individuals to use the pattern or practice proof structure for claims of individual

discrimination . . . .”). We have suggested as much, albeit in dicta. See Brown

v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998).

For the foregoing reasons, we now hold that the pattern-or-practice

method of proof is not available to nonclass, private plaintiffs in cases such as

the one before us. Evidence of an employer’s general practice of discrimination

may be highly relevant to an individual disparate treatment or to a disparate

impact claim. Outside the class context, however, private plaintiffs may not

invoke the Teamsters method of proof as an independent and distinct method of

establishing liability. The district court erred in submitting this method of proof

to the jury as a basis on which it could hold the Port Authority liable.

II. Admissibility and Sufficiency of Evidence

A. Admissibility of Evidence from Outside the Limitations Period

Turning to the plaintiffs’ individual disparate treatment and disparate

impact claims, the Port Authority argues that the district court improperly

admitted evidence of events prior to August 2, 2000, for purposes of liability and

damages. It is well established, however, that so long as at least “one alleged

adverse employment action . . . occurred within the applicable filing period[,] . . .

24
evidence of an earlier alleged retaliatory act may constitute relevant

‘background evidence in support of [that] timely claim.’” Jute v. Hamilton

Sundstrand Corp., 420 F.3d 166, 176 (2d Cir. 2005) (quoting and altering Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Such background

evidence “may be considered to assess liability on the timely alleged act.” Id. at

177; see also Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (applying this

rule in the failure-to-promote context). In particular, we have noted that

statistical studies may include data from outside the statute of limitations to

prove timely discriminatory acts. See Rossini v. Ogilvy & Mather, Inc., 798 F.2d

590, 604 n.5 (2d Cir. 1986).9 Title VII’s statute of limitations therefore did not

prohibit admission of the plaintiffs’ evidence of discrimination before August 2,

2000.

B. Sufficiency of the Evidence

The Port Authority next argues that the plaintiffs’ evidence of individual

disparate treatment and disparate impact was insufficient as a matter of law,

and that the district court therefore abused its discretion in declining to set aside

the verdict. “In reviewing the sufficiency of the evidence in support of a jury’s

9
To be clear, the district court retains discretion to determine whether evidence
predating the onset of the statute of limitations period should be admitted under any
applicable rule of evidence. See Jute, 420 F.3d at 177 n.7; Malarkey v. Texaco, Inc., 983
F.2d 1204, 1211 (2d Cir. 1993).

25
verdict, we examine the evidence in the light most favorable to the party in

whose favor the jury decided, drawing all reasonable inferences in the winning

party’s favor.” Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005). We will

overturn the verdict here “only if there is ‘such a complete absence of evidence

supporting the verdict that the jury’s findings could only have been the result of

sheer surmise and conjecture, or such an overwhelming amount of evidence in

favor of the [Port Authority] that reasonable and fair minded men could not

arrive at a verdict against [the Port Authority].’” Id. at 292 (quoting LeBlanc-

Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995)) (some internal quotation

marks omitted).

With respect to a Title VII individual disparate treatment claim,

“[w]hether judgment as a matter of law is appropriate in any particular case will

depend on a number of factors. Those include the strength of the plaintiff’s

prima facie case, the probative value of the proof that the employer’s explanation

is false, and any other evidence that supports the employer’s case and that

properly may be considered on a motion for judgment as a matter of law.” Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148–49 (2000). A plaintiff

establishes a prima facie case by showing “(1) that he belonged to a protected

class; (2) that he was qualified for the position he held; (3) that he suffered an

adverse employment action; and (4) that the adverse employment action

26
occurred under circumstances giving rise to an inference of discriminatory

intent.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). An employer

may then rebut this prima facie case by offering a legitimate, nondiscriminatory

business reason for its conduct. See id. A plaintiff ultimately prevails if he

proves that the defendant’s employment decision was based in whole or in part

on intentional discrimination. See id.

To prevail under the disparate impact theory of liability, a plaintiff must

show that the employer “uses a particular employment practice that causes a

disparate impact on the basis of race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(k)(1)(A)(i). This requires a plaintiff to (1) “identify a specific

employment practice” or policy, Malave v. Potter, 320 F.3d 321, 326 (2d Cir.

2003); “(2) demonstrate that a disparity exists; and (3) establish a causal

relationship between the two.” Robinson v. Metro-North Commuter R.R. Co., 267

F.3d 147, 160 (2d Cir. 2001). “The statistics must reveal that the disparity is

substantial or significant,” and “must be of a kind and degree sufficient to reveal

a causal relationship between the challenged practice and the disparity.” Id.

(internal quotation marks omitted). To rebut a plaintiff’s statistics, a defendant

may introduce evidence showing that “either no statistically significant disparity

in fact exists or the challenged practice did not cause the disparity.” Id. at 161.

27
 If the trier of fact determines that the plaintiffs have established a

disparate impact violation of Title VII, each person seeking individual relief such

as back pay and compensatory damages “need only show that he or she suffered

an adverse employment decision ‘and therefore was a potential victim of the

proved discrimination.’” Id. at 159 (quoting Teamsters, 431 U.S. at 362)

(alteration omitted); see id. at 161–62. After such a showing, the employer bears

the burden of persuading the trier of fact that its decision was made for lawful

reasons; otherwise, the employee is entitled to individualized relief, which may

include back pay, front pay, and compensatory damages for “emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life, [or] other

nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3); see Robinson, 267 F.3d at 159–60.

The Port Authority challenges three aspects of the plaintiffs’ evidence.

First, the Port Authority argues that the plaintiffs’ statistical evidence was

fatally flawed and that without it the plaintiffs lack sufficient evidence to prove

a disparate impact. Second, the Port Authority contends that the plaintiffs did

not show that the multiple-step promotion process was “not capable of

separation for analysis,” 42 U.S.C. § 2000e-2(k)(1)(B)(i), and therefore the

plaintiffs were required but failed to identify the specific promotion practice that

caused a disparate impact. Third, the Port Authority contends that the

plaintiffs’ anecdotal evidence of intentional discrimination consists of nothing

28
more than personal affronts outside of the promotion context, and therefore that

the plaintiffs’ individual disparate treatment claims must fail for lack of

evidence that any discrimination was intentional.

We disagree with all three of the Port Authority’s arguments and hold that

the plaintiffs introduced sufficient evidence to support the jury’s verdict as to

plaintiffs’ disparate impact and individual disparate treatment claims.

1. Statistical Evidence

The Port Authority argues first that the statistical evidence presented by

Dr. Cavanagh, the plaintiffs’ expert witness, was insufficient to prove their

disparate impact claim because Dr. Cavanagh’s analyses impermissibly (1) relied

on data predating the onset of the statute of limitations, (2) did not focus on the

relevant pool of candidates eligible for promotion, and (3) failed to establish

statistical significance. We address each of these contentions in turn.

First, the Port Authority is incorrect in asserting that Dr. Cavanagh’s

statistics were flawed because they relied in part on data predating the onset of

the statute of limitations period. In Bazemore v. Friday, 478 U.S. 385 (1986), the

Supreme Court stated that evidence predating the 1972 enactment of Title VII

was not only admissible but, “to the extent that proof is required to establish

discrimination with respect to salary disparities created after 1972, evidence of

pre-Act discrimination is quite probative.” Id. at 402 n.13 (internal citation

29
omitted). Moreover, we have made clear that a district court errs by

“downgrading” statistical studies on the ground that they “relied in part on

pre–statute of limitations data.” Rossini, 798 F.2d at 604 n.5.

The Port Authority next argues that Dr. Cavanagh’s year-end demographic

statistics were not sufficient to show a disparate impact because they simply

compared the percentage of Asian Americans in supervisory positions with the

percentage of Asian American officers, rather than looking to the relevant pool

for promotion (i.e., the percentage of Asian Americans on the eligible lists). On

this point, we agree.

As we have said, “plaintiffs must identify the correct population for

analysis. In the typical disparate impact case the proper population for analysis

is the applicant pool or the eligible labor pool.” Smith v. Xerox Corp., 196 F.3d

358, 368 (2d Cir. 1999) (emphasis added), overruled on other grounds by

Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 140 (2d Cir. 2006). “In the

context of promotions, we have held that the appropriate comparison is

customarily between the [racial] composition of candidates seeking to be

promoted and the [racial] composition of those actually promoted,” at least so

long as the relevant data are available. Malave, 320 F.3d at 326 (emphasis

added). The plaintiffs in this case did not allege that the eligibility test was

discriminatory; rather, they alleged that discrimination entered the process at

30
the discretionary stage after the eligible lists had already been drawn up. The

relevant population for analysis, then, includes only those officers on the eligible

lists. Dr. Cavanagh’s year-end demographic analyses include all officers, and

therefore do not meet the statistical standards prescribed by law.

Putting aside these demographic analyses, then, we are left with Dr.

Cavanagh’s statistical analysis comparing the percentage of Asian Americans

on the eligibility lists with the percentage of Asian Americans promoted from

1996 to January 31, 2001 (the date that the EEOC complaint was filed). None

of the 12 Asians on the eligible lists were promoted during this period, in

contrast to 36 out of 259 whites; according to Dr. Cavanagh’s calculations, this

difference would occur due to chance “a bit under 13 percent” of the time. The

Port Authority argues that a due-to-chance figure of 13 percent is not

statistically significant because “it is generally accepted that statistical

significance is at a 5% level or less.”

It is true that “we have . . . looked to whether the plaintiff can show a

statistically significant disparity of two standard deviations,” which (in a normal

distribution) requires statistical significance at approximately the 5-percent

level. Xerox, 196 F.3d at 365. However, we have also said that “[t]here is no

minimum statistical threshold requiring a mandatory finding that a plaintiff has

demonstrated a violation of Title VII. Courts should take a ‘case-by-case

31
approach’ in judging the significance or substantiality of disparities, one that

considers not only statistics but also all the surrounding facts and

circumstances.” Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d

Cir. 1991) (quoting Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365,

372–73 (2d Cir. 1991)); see also Watson v. Fort Worth Bank & Trust, 487 U.S.

977, 995 n.3 (1988) (“[W]e have not suggested that any particular number of

‘standard deviations’ can determine whether a plaintiff has made out a prima

facie case in the complex area of employment discrimination. . . .”); accord Xerox,

196 F.3d at 366.

In many (perhaps most) cases, if there is a 13-percent likelihood that a

disparity resulted from chance, it will not qualify as statistically significant. In

this case, the plaintiffs offered other evidence that reasonable jurors could have

relied upon to find that an 87-percent likelihood that the disparity was not due

to chance qualified as significant. First, no Asian Americans were promoted

during the relevant period; requiring a statistical showing of 95-percent

confidence would make it mathematically impossible to rely upon statistics in

a case like this one, in which the relevant population included so few Asian

Americans. See Waisome, 948 F.2d at 1379 (“[T]he lack of statistical significance

in the ultimate promotion reflects only the small sample size.”). Second, as the

Port Authority acknowledges, the plaintiffs presented a substantial amount of

32
evidence that reasonable jurors could have relied on to conclude that the

plaintiffs were more qualified than some of the white officers who were

promoted, including comparing length of service, attendance records, and

disciplinary histories. In the context of this case, it would not be unreasonable

for a juror to find Dr. Cavanagh’s statistics significant despite only being

significant at the 13-percent level.

Finally, despite the Port Authority’s argument to the contrary, Dr.

Cavanagh’s choice to limit his time frame to the period from 1996 through

January 2001 (rather than, as defendant’s expert did, extending the analysis

into 2005) was not unreasonable. The plaintiffs’ theory was that the Port

Authority’s failures to promote them caused a disparate impact through 2001,

when the EEOC charge in this case was filed. Dr. Cavanagh’s selected time

frame was directly relevant to answering this question.

2. Specific Employment Practice

The Port Authority next argues that there was insufficient evidence to

support the plaintiffs’ disparate impact claim on the ground that plaintiffs either

failed to identify a specific promotion practice resulting in a disparate impact on

Asian Americans or failed to show that the Port Authority’s promotion process

could not be separated into component parts for analysis. According to the Port

Authority, the promotion process involved three separate

33
steps—recommendation by a commanding officer, approval by the Chiefs’ Board,

and selection by the Superintendent—and these steps were wholly capable of

being separated from each other for the purpose of statistical analysis. For the

following reasons, we disagree.

To make out a disparate impact claim (or, more generally, to rely on

statistical evidence), a plaintiff must identify a specific discriminatory

employment practice. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2555–56 (2011) (“[R]espondents have identified no ‘specific employment

practice’ . . . . Merely showing that Wal-Mart’s policy of discretion has produced

an overall sex-based disparity does not suffice.”); Watson, 487 U.S. at 994

(“Especially in cases where an employer combines subjective criteria with the

use of more rigid standardized rules or tests, the plaintiff is in our view

responsible for isolating and identifying the specific employment practices that

are allegedly responsible for any observed statistical disparities.”). Title VII,

however, expressly provides that “if the complaining party can demonstrate to

the court that the elements of a respondent’s decisionmaking process are not

capable of separation for analysis, the decisionmaking process may be analyzed

as one employment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). Whether a

particular decisionmaking process is capable of separation for analysis largely

turns on the details of the specific process and its implementation in a given

34
case. See McClain v. Lufkin Indus., 519 F.3d 264, 278 (5th Cir. 2008); cf.

Meachem v. Knolls Atomic Power Lab., 381 F.3d 56, 74 (2d Cir. 2004), vacated

on other grounds, 544 U.S. 957 (2005).

Here, the evidence amply demonstrated that recommendation by the

Chief’s Board could not be separated from the rest of the promotion process for

the purpose of statistical analysis. Such recommendation was neither necessary

nor sufficient for promotion, and the weight it carried in the process was both

unclear and variable. For example, two candidates who were not recommended

by the Chiefs’ Board in January 2003 were nonetheless promoted by the

Superintendent later that month, even as others who received unanimous

recommendations from the Chiefs were not promoted for a year, or two years.

Another Superintendent did not bother to use the Chiefs’ Board at all.

Recommendation by the Chiefs’ Board was therefore not capable of separation

from the rest of the promotion process.

The commanding officers’ recommendations were similarly inseparable

from the Superintendent’s ultimate decisions regarding promotions because they

played an indeterminate role in the integrated promotion process. For example,

former Chief Thomas Farrell testified that he occasionally would ask for

performance evaluations of everyone on the eligible list—not just those who were

recommended by commanding officers—while other testimony indicated that

35
commanding officers’ recommendations were often important in the promotion

process. We therefore agree with the district court that these “steps” in the

promotion process were not capable of separation for analysis. See Port Auth.

II, 681 F. Supp. 2d at 464. Accordingly, the decisionmaking process involved in

promotions to Sergeant was properly analyzed as one employment practice.

3. Proof of Intent

The Port Authority next argues that it was entitled to judgment as a

matter of law on the plaintiffs’ individual disparate treatment claims because

many of the plaintiffs’ anecdotes of intentional discrimination were merely

“situations involving personal affront as opposed to examples of overt racism,”

and moreover, that “[n]one of the specific instances relied upon by plaintiffs took

place in the context of promotion.” Appellants’ Reply Br. at 17. Even if we were

to accept the Port Authority’s characterization of these accounts of

discrimination, however, the plaintiffs also provided evidence that they were

better qualified for promotion than several white officers who were promoted

instead. In conjunction with the plaintiffs’ statistical evidence, we conclude that

this anecdotal evidence of intent was sufficient for a reasonable jury to conclude

that the Port Authority intentionally discriminated against the plaintiffs by

failing to promote them.

36
 III. Damages and the Statute of Limitations

The Port Authority argues, finally, that it was improperly assessed back

pay and compensatory damages for harms that were suffered by the plaintiffs

prior to August 2, 2000. The district court disagreed because it believed that the

“continuing violation” doctrine applied in the context of plaintiffs’ disparate

impact allegations so that damages could properly be awarded for failures to

promote that occurred outside the limitations period.10 We agree with the Port

Authority and hold that the continuing violation doctrine does not apply to

plaintiffs’ disparate impact proof. As a result, we further conclude: (1) that the

back pay awards to Eng, Lew, Stanley Chin, and Fong must be vacated, as well

as the retroactive promotion of Lew and the salary and pension adjustments for

Lew, Stanley Chin, and Fong; and (2) that the jury’s compensatory damage

awards with regard to all seven prevailing plaintiffs must also be vacated. We

remand to the district court for a new trial on damages and for reconsideration

of equitable relief to the extent such relief was premised on failures to promote

occurring outside the limitations period.

10
The district court reached a similar conclusion with regard to plaintiffs’
pattern-or-practice allegations but, for the reasons already stated, see supra Part I, we
have concluded that this theory of liability was not properly submitted to the jury.

37
A. The Continuing Violation Doctrine

It has been the law of this Circuit that “[u]nder the continuing violation

exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC

charge that is timely as to any incident of discrimination in furtherance of an

ongoing policy of discrimination, all claims of acts of discrimination under that

policy will be timely even if they would be untimely standing alone.” Lambert

v. Genesse Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated on other grounds by

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329–30

(2011); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004);

Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001); Van Zant v. KLM

Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Cornwall v. Robinson, 23

F.3d 694, 703–04 (2d Cir. 1994). Applying this principle, the district court in

this case concluded that the Port Authority could be liable, and assessed

damages, for discriminatory failures to promote outside the statute of limitations

because, pursuant to the plaintiffs’ disparate impact theory, those failures to

promote were the product of an ongoing discriminatory policy that continued

after August 2, 2000, thus triggering the continuing-violation doctrine. See Port

Auth. II, 681 F. Supp. 2d at 463.

* * *

38
 The Port Authority argues that the continuing-violation doctrine does not

apply in this case because (1) the plaintiffs did not identify a specific, ongoing

discriminatory policy or custom; and (2) under the Supreme Court’s decision in

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), failures to

promote are “discrete acts” of discrimination and thus do not implicate the

continuing-violation doctrine. Because we agree with the Port Authority’s

second argument, we do not address the first.

In Morgan, the Supreme Court unanimously rejected the Ninth Circuit’s

view that a series or pattern of “related discrete acts” could constitute one

continuous “unlawful employment practice” for purposes of the statute of

limitations. Id. at 111. Rather, the Court held that “discrete discriminatory acts

are not actionable if time barred, even when they are related to acts alleged in

timely filed charges. Each discrete discriminatory act starts a new clock for

filing charges alleging that act.” Id. at 113. By a divided vote, however, the

Morgan Court distinguished such discrete acts from an allegedly hostile work

environment, which it held could be a continuing violation because its “very

nature involves repeated conduct.” Id. at 115. “Such claims are based on the

cumulative effect of individual acts,” the Court wrote, noting that “a single act

of harassment may not be actionable on its own.” Id.

39
 The plaintiffs argue that Morgan’s analysis of “discrete acts” cannot apply

to disparate impact claims because such claims—like hostile work environment

claims—are “necessarily based on the cumulative effect of a particular practice

over time.” Appellees’ Br. at 28. It is true that Morgan involved only an

individual disparate treatment claim premised on a series of related discrete

acts, and therefore did not directly address whether the continuing-violation

doctrine applies where an ongoing discriminatory policy results in discrete

discriminatory acts both before and after the limitation date. See Morgan, 536

U.S. at 107 (noting in passing that in the Ninth Circuit, pre-Morgan, another

type of continuing violation could be established by showing “a systematic policy

or practice of discrimination that operated, in part, within the limitations

period,” but neither endorsing nor repudiating that category of continuing

violations); id. at 115 n.9 (“We have no occasion here to consider the timely filing

question with respect to ‘pattern-or-practice’ claims brought by private litigants

as none are at issue here.”). Morgan’s reasoning, however, demonstrates that

a plaintiff may recover for a failure to promote—regardless whether it was

caused by an ongoing discriminatory policy—only if he files an EEOC charge

within 180 or 300 days of that decision.11

11
As Morgan notes, the 300-day limitations period, inapplicable here, applies in
those states that have “an entity with the authority to grant or seek relief with respect
to the alleged unlawful practice” and where an employee initially files a grievance with
that entity. 536 U.S. at 109.

40
 Morgan established that an employer’s failure to promote is by its very

nature a discrete act. “Discrete acts such as termination, failure to promote,

denial of transfer, or refusal to hire are easy to identify,” the Court wrote. Id.

at 114 (emphasis added); see also Forsyth v. Fed’n Emp’t & Guidance Serv., 409

F.3d 565, 572 (2d Cir. 2005), abrogated on other grounds by Ledbetter v.

Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Moreover, each discrete act

necessarily “constitutes a separate actionable ‘unlawful employment practice,’”

Morgan, 536 U.S. at 114—unlike the incidents that comprise a hostile work

environment claim, which may not be individually actionable, id. at 115. Both

the employer and the aggrieved party may therefore rely on the clear and

predictable statute of limitations when contemplating prospective litigation

regarding failures to promote or other discrete acts. As Justice Ginsburg has

explained:

A worker knows immediately if she is denied a promotion or
transfer, if she is fired or refused employment. And promotions,
transfers, hirings, and firings are generally public events, known to
co-workers. When an employer makes a decision of such open and
definitive character, an employee can immediately seek out an
explanation and evaluate it for pretext.

Ledbetter, 550 U.S. at 649 (Ginsburg, J., dissenting). Accordingly, under

Morgan, every failure to promote is a discrete act that potentially gives rise to

a freestanding Title VII claim with its own filing deadline.

41
 Discrete acts of this sort, which fall outside the limitations period, cannot

be brought within it, even when undertaken pursuant to a general policy that

results in other discrete acts occurring within the limitations period. This is the

conclusion of every circuit to consider the question after Morgan. Each of our

sister circuits has held that an allegation of an ongoing discriminatory policy

does not extend the statute of limitations where the individual effects of the

policy that give rise to the claim are merely discrete acts. See, e.g., Williams v.

Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (“Nor does [the plaintiff’s]

allegation of a 20-year ‘pattern or practice’ of discrimination extend the

applicable limitations periods.”); Davidson v. Am. Online, Inc., 337 F.3d 1179,

1185–86 (10th Cir. 2003) (holding that claims cannot be premised on an

untimely discrete act “even if the discrete act was part of a company-wide or

systemic policy”); cf. Tademe v. St. Cloud State Univ., 328 F.3d 982, 988 (8th Cir.

2003) (“Although [the plaintiff] argues that the district court failed to consider

that he was asserting a pattern-or-practice of discrimination, Morgan makes

clear that the failure to promote, refusal to hire, and termination are generally

considered separate violations.”); Lyons v. England, 307 F.3d 1092, 1107 & n.8

(9th Cir. 2002) (holding that an individual plaintiff’s “assertion that this series

of discrete acts flows from a company-wide, or systemic, discriminatory practice

will not succeed in establishing the employer’s liability for acts occurring outside

42
the limitations period,” but distinguishing and declining to address class-wide

pattern-or-practice claims).

This conclusion is not altered by the fact that the plaintiffs employ the

disparate impact method of proof. To prevail on a disparate impact claim, a

plaintiff must “demonstrate[] that a respondent uses a particular employment

practice that causes a disparate impact.” 42 U.S.C. § 2000e-2(k)(1)(A)(i)

(emphasis added). In Lewis v. City of Chicago, 130 S. Ct. 2191, 2197–99 (2010),

the Supreme Court interpreted this language to mean that every “use” of an

employment practice that causes a disparate impact is a separate actionable

violation of Title VII with its own 180- or 300-day statute-of-limitations clock.

See id. at 2197–99. Accordingly, under Lewis and Morgan, each time the Port

Authority failed to promote one of the plaintiffs, that plaintiff had 180 days to

challenge the decision.

In an attempt to distinguish Morgan, the plaintiffs argue that they

“challenge the process by which the Port Authority made promotion decisions,

rather than any specific promotion decision.” Appellees’ Br. at 29. But this

argument hurts rather than helps them. In Lewis, the Supreme Court

considered the case of an allegedly discriminatory examination used by the City

of Chicago to make hiring decisions. The examination’s scores and the City’s

plan to hire based on certain cutoff scores were announced outside the

43
limitations period, but the actual hiring occurred within the limitations period.

See Lewis, 130 S. Ct. at 2195–96. The Supreme Court explained that although

“[i]t may be true that the City’s . . . decision to adopt the cutoff score (and to

create a list of the applicants above it) gave rise to a freestanding disparate-

impact claim[,] [i]f that is so, the City is correct that since no timely charge was

filed attacking it, the City is now entitled to treat that past act as lawful.” Id.

at 2198–99 (citation and internal quotation marks omitted). If the process by

which the Port Authority promoted police officers from its eligibility lists did not

materially change within the limitations period, as the plaintiffs claim, then the

Port Authority is entitled to treat the process as lawful. See id. at 2199. The

process itself therefore cannot be challenged; rather, only specific failures to

promote that occurred within the limitations period are actionable.

B. Damages & Equitable Relief

The district court properly instructed the jury regarding the statute of

limitations for plaintiffs’ individual disparate treatment claims, and the jury

indicated on the verdict sheet its express findings that the Port Authority made

discriminatory decisions not to promote Eng, Fong, Lew, Stanley Chin, Yum,

Martinez, and Lim “after August 2, 2000.” Pursuant to the district court’s

conclusion that the continuing violation doctrine was applicable to plaintiffs’

disparate impact proof, however, the jury was permitted to assess damages for

44
failures to promote occurring outside the limitations period.12 With this in mind,

we turn to the Port Authority’s claim that the damages and equitable awards

here were premised on time-barred claims and were otherwise excessive.

1. Back Pay

The jury’s back-pay awards correspond precisely to certain calculations of

the plaintiffs’ damages expert, such that both parties and the district court

agreed below that the jury found that four of the prevailing plaintiffs (Eng, Lew,

Stanley Chin, and Fong) would have been promoted on October 31, 1999, and the

other three (Yum, Lim, and Martinez) would have been promoted on September

30, 2002.
12
We note that the jury was not properly instructed regarding the statute
of limitations as it applied to the plaintiffs’ disparate impact proof. “To find
disparate impact,” the district court instructed the jury, “you are not required
to consider whether the Port Authority intended to discriminate, but whether
the Port Authority’s promotion practices were the cause of a disparity, if any,
after August 2, 2000.” When the jury asked for clarification regarding the
timing, the district court told them simply, “There has to be an effect after
August 2, 2000.” This phrasing suggests that the jury could find disparate
impact liability where the Port Authority used an employment practice only
outside the limitations period that resulted in a disparate effect that then
passively persisted into the limitations period. Lewis, however, makes clear that
a disparate impact claim requires plaintiffs to plead and prove that defendants,
within the limitations period, used an employment practice that had a disparate
impact. 130 S. Ct. at 2197–99. In other words, the cause—not merely the
effect—must occur within the limitations period. The district court’s instruction
was therefore erroneous. The Port Authority, however, does not challenge the
jury’s liability finding on this basis, but simply the award of damages and
equitable relief for harms occurring before August 2, 2000. Accordingly, we
deem the error waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998).
45
 The Port Authority argues first that the jury could not award back pay to

multiple plaintiffs dating back to the same date when fewer than that number

of plaintiffs were actually promoted on that date. It points out that there were

only three promotions on October 31, 1999, but the jury awarded back pay to

four plaintiffs corresponding to a failure to promote on that date. Likewise,

there were only two promotions on September 30, 2002, but the jury awarded

back pay to three plaintiffs extending back to that date. The Port Authority

urges that the back pay awards for this reason “suffer from a fundamental error

of law” and must be vacated. Appellants’ Br. at 46.

We disagree. Although in many circumstances an employer may have only

a fixed, limited number of possible promotion slots such that relief would be

limited accordingly, see Dougherty v. Barry, 869 F.2d 605, 614–15 (D.C. Cir.

1989) (R.B. Ginsburg, J.), that is not the case here. The plaintiffs presented

evidence that the Port Authority could and did create new Sergeant-level

vacancies. For example, during cross-examination, Chief Farrell conceded that

the Superintendent occasionally would not specify the number of new Sergeants

he was looking for, and that from time to time the Port Authority created new

Sergeant-level vacancies based on staffing needs. A reasonable jury could

therefore have concluded that the Port Authority could have promoted three

46
officers rather than two on September 30, 2002, and four officers rather than

three on October 31, 1999.

Nevertheless, the back pay awards to Christian Eng, Alan Lew, Stanley

Chin, and Milton Fong were improper because they were premised on a

hypothetical promotion date outside the statute of limitations. As explained

earlier, see supra section III.A, the district court should have instructed the jury

that the Port Authority could be liable only for discriminatory failures to

promote after August 2, 2000, and that individual remedies were limited

accordingly. We therefore vacate the back pay awards to these four plaintiffs

and remand to the district court for determination of their proper back-pay

awards.

2. Compensatory Damages

The Port Authority next argues that the jury’s compensatory damages

awards were based on discriminatory acts that predated the onset of the statute

of limitations period. The plaintiffs do not contest this allegation, but rather

embrace it, and defend the awards solely on the basis of the continuing violation

theory. See Appellees’ Br. at 48 (“The compensatory damages awards correlate

to each Plaintiff’s seniority on the job—and thus, the duration of each Plaintiff’s

distress—awarding $250,000 to the two Plaintiffs who each had more than

twenty-nine years on the job, $100,000 and $75,000 to the three Plaintiffs who

47
had between twenty and twenty-five years on the job, and $15,000 to the two

Plaintiffs who had sixteen years on the job.”). “When ‘[i]t is not possible to

ascertain what portions of the compensatory and punitive damages awards were

attributable’ to claims that were time-barred, the damages awards must be

vacated” and remanded for a new trial on damages. Annis v. Cnty. of

Westchester, 136 F.3d 239, 248 (2d Cir. 1998) (quoting Rush v. Scott Specialty

Gases, Inc., 113 F.3d 476, 485 (3d Cir. 1997)). Because the jury may have

included time-barred claims with respect to each of the plaintiffs, we vacate all

seven prevailing plaintiffs’ compensatory damages awards and remand for a new

trial on damages. On remand, the district court should instruct the jury to

award damages only for injuries stemming from a discriminatory failure to

promote after August 2, 2000.

3. Equitable Relief

The Port Authority next argues that the district court’s equitable relief of

retroactive promotions and salary and pension adjustments should have been

granted only pro rata under the theory that only a limited number of promotions

were available on each day. See Dougherty, 869 F.2d at 614–15. But this

argument fails with respect to equitable relief for the same reason it fails

regarding back pay, see supra section III.B.1; on the evidence presented, a

48
reasonable jury could have concluded that the Port Authority could promote

more officers on a given date than it chose to.

The equitable relief should not, however, have extended retroactive

promotions or salary or pension adjustments beyond the limitations period. The

district court’s award of salary and pension adjustments for Milton Fong,

Stanley Chin, and Alan Lew, as well as the retroactive promotion of Alan Lew,

must be vacated and remanded for reconsideration because the award of such

equitable relief was premised on a hypothetical promotion date of October 31,

1999. On remand, the district court should determine the date, after August 2,

2000, that each of these three plaintiffs would have been promoted absent

discrimination and may grant appropriate equitable relief accordingly.

IV. Exclusion of Lundquist’s Expert Testimony

We now turn to the cross-appeal. The four cross-appealing plaintiffs argue

that the district court erred in excluding the expert testimony of Dr. Lundquist,

who would have testified that the Port Authority’s promotion procedure was so

unstructured and subjective that it fell below professional standards, and who

would have compared the qualifications of the plaintiffs with those of the officers

who were actually promoted. Expert testimony is admissible if it “(a) will help

the trier of fact to understand the evidence or to determine a fact in issue,” so

long as “(b) the testimony is based upon sufficient facts or data; (c) the testimony

49
is the product of reliable principles and methods; and (d) the expert has reliably

applied the principles and methods to the facts of the case.” Fed. R. Evid. 702.

A district court’s exclusion of expert testimony is reviewed for abuse of

discretion, and “[a] decision to admit or exclude expert scientific testimony is not

an abuse of discretion unless it is ‘manifestly erroneous.’” Amorgianos v. Nat’l

R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting McCullock v.

H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995)). “Further, an erroneous

evidentiary ruling warrants a new trial only when ‘a substantial right of a party

is affected,’ as when ‘a jury’s judgment would be swayed in a material fashion by

the error.’” Lore v. City of Syracuse, 670 F.3d 127, 155 (2d Cir. 2012) (quoting

Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007)).

The district court did not abuse its discretion in concluding that it lacked

evidence that Dr. Lundquist’s testimony was based on established principles and

methods and that, in any event, her testimony would not have provided

assistance to the trier of fact beyond that afforded by the arguments of counsel,

as required by Rule 702. On appeal, the plaintiffs argue that the district court

failed to acknowledge the portion of Dr. Lundquist’s testimony that compared

the qualifications of the plaintiffs with those of the white officers who were

promoted instead. But Dr. Lundquist’s analysis as to the comparative

qualifications of the plaintiffs was both brief and simple, relying mostly on

50
various officers’ years of experience, commendations, discipline, and absences.

For each of the four plaintiffs who did not prevail, Dr. Lundquist merely

summed up their qualifications in a few sentences and then compared each of

them to two officers who were promoted instead but whose record suggested that

they may have been less qualified. For example, she compared both Michael

Chung and Sanrit Booncome to a promoted officer named Gary Griffith, whom

she described only as having “sixty-seven absences in 2000 alone.”

The district court did not abuse its discretion in concluding that expert

analysis was not required to help the jury understand such evidence. Indeed,

the plaintiffs’ attorneys made the same points in argument that were made in

Dr. Lundquist’s report. Chung and Booncome’s qualifications were established

in detail while they were on the stand, and their attorney brought out Gary

Griffith’s relative lack of experience and his significant number of absences

through questioning of a former Superintendent. The plaintiffs’ attorneys,

moreover, emphasized throughout the trial the relative qualifications of the

plaintiffs when compared with officers who were promoted. At the trial’s

conclusion, the plaintiffs’ summation detailed the qualifications of each of the

plaintiffs in almost exactly the same way as Dr. Lundquist’s testimony would

have, including occasionally comparing a plaintiff with someone who had been

promoted. The district court therefore did not abuse its discretion in

51
determining that Dr. Lundquist’s testimony was not relevant expert testimony

that would help the jury understand the facts at issue.

V. Sanctions for Spoliation

Finally, cross-appealing plaintiff Howard Chin argues that the district

court erred in denying the plaintiffs’ motion requesting an adverse inference

instruction due to the Port Authority’s destruction of the promotion folders used

to make promotions off of the 1999 eligible list.13 See Port Auth. I, 601 F. Supp.

2d 566 (S.D.N.Y. 2009). The Port Authority does not dispute that, upon

receiving notice of the filing of plaintiffs’ EEOC charge in February 2001, it had

an obligation to preserve the promotion folders yet failed to do so. It argues,

however, that the district court did not abuse its discretion in denying an

adverse inference instruction. We agree.

“[A] party seeking an adverse inference instruction based on the

destruction of evidence must establish (1) that the party having control over the

evidence had an obligation to preserve it at the time it was destroyed; (2) that

the records were destroyed with a culpable state of mind; and (3) that the

destroyed evidence was relevant to the party’s claim or defense such that a

reasonable trier of fact could find that it would support that claim or defense.”

13
Howard Chin is the only one of the four cross-appealing plaintiffs who claims
to have lost relevant evidence due to the Port Authority’s destruction of the promotion
folders.

52
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.

2002) (internal quotation marks omitted). If these elements are established, a

district court may, at its discretion, grant an adverse inference jury instruction

insofar as such a sanction would “serve[] [the] threefold purpose of (1) deterring

parties from destroying evidence; (2) placing the risk of an erroneous evaluation

of the content of the destroyed evidence on the party responsible for its

destruction; and (3) restoring the party harmed by the loss of evidence helpful

to its case to where the party would have been in the absence of spoliation.”

Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001). Our review of a

district court’s decision on a motion for discovery sanctions is limited to abuse

of discretion, which includes errors of law and clearly erroneous assessments of

evidence. See Residential Funding Corp., 306 F.3d at 107. “[A]bsent a showing

of prejudice, the jury’s verdict should not be disturbed.” Id. at 112.

Howard Chin argues that the Port Authority’s failure even to issue a

litigation hold regarding the promotion folders at any point between 2001 and

2007 amounted to gross, rather than simple, negligence. We reject the notion

that a failure to institute a “litigation hold” constitutes gross negligence per se.

Contra Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs.,

LLC, 685 F. Supp. 2d 456, 464–65 (S.D.N.Y. 2010). Rather, we agree that “the

better approach is to consider [the failure to adopt good preservation practices]

53
as one factor” in the determination of whether discovery sanctions should issue.

Orbit Comm’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.N.Y. 2010).

Moreover, as the district court recognized, see Port Auth. I, 601 F. Supp. 2d at

570, a finding of gross negligence merely permits, rather than requires, a district

court to give an adverse inference instruction. See Residential Funding Corp.,

306 F.3d at 109; Byrnie, 243 F.3d at 108. Even if we assume arguendo both that

the Port Authority was grossly negligent and that the documents here were

“relevant,” we have repeatedly held that a “case-by-case approach to the failure

to produce relevant evidence,” at the discretion of the district court, is

appropriate. Residential Funding Corp., 306 F.3d at 108 (quoting Reilly v.

Natwest Mkts. Grp., 181 F.3d 253, 267 (2d Cir. 1999)). In this case, the district

court concluded that an adverse inference instruction was inappropriate in light

of the limited role of the destroyed folders in the promotion process and the

plaintiffs’ ample evidence regarding their relative qualifications when compared

with the officers who were actually promoted. See Port Auth. I, 601 F. Supp. 2d

at 570–71. At trial, Howard Chin was able to establish his service record and

honors, and Chief Charles Torres testified that Howard Chin was very smart

and a good employee. Under these circumstances, the district court did not

abuse its discretion in concluding that an adverse inference instruction was

inappropriate.

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 CONCLUSION

For the foregoing reasons, we affirm the district court’s conclusion that the

Port Authority is liable to Christian Eng, Nicholas Yum, Alan Lew, David Lim,

George Martinez, Stanley Chin, and Milton Fong under both the individual

disparate treatment and disparate impact theories. We also affirm the denial

of individual relief to Howard Chin, Richard Wong, Sanrit Booncome, and

Michael Chung. Because the district court erred in applying the continuing-

violation exception to the plaintiffs’ claims, however, we: (1) vacate the jury’s

back pay awards with respect to Christian Eng, Alan Lew, Stanley Chin, and

Milton Fong; (2) vacate the jury’s compensatory damage awards with respect to

Christian Eng, Nicholas Yum, Alan Lew, David Lim, George Martinez, Stanley

Chin, and Milton Fong; (3) vacate the retroactive promotion of Alan Lew; and (4)

vacate the salary and pension adjustments for Alan Lew, Stanley Chin, and

Milton Fong. We remand all of these remedies issues to the district court for a

new trial solely on damages and for the reconsideration of equitable relief. On

remand, individual relief should be awarded only insofar as it corresponds to

discriminatory failures to promote committed after August 2, 2000.

55