Statistics In Discrimination Cases Are Helpful Only If They Deal With Qualified Applicants

Melinda Carney is an African-American female. After two unsuccessful attempts to become a Denver, Colorado police officer, Carney’s third application was successful, and on January 6, 2003, Carney was appointed to the Denver Police Academy. Just six days later, Carney injured her Achilles tendon and was placed on limited duty with restrictions. The very day she returned to work from limited duty, she participated in a training exercise known as the “Baton Ring of Death,” where she alleged she was “continually struck in the face and on the back of the head.” Carney contended that the Baton Ring of Death resulted in her breaking her ankle.

Carney’s ankle injury became serious enough that the City’s physician concluded that she had become permanently disabled and would never be able to run or jump in the manner expected of police officers. The City placed Carney on “terminal medical leave,” with the intention of medically retiring her. Carney responded by filing a lawsuit against the City alleging that the City’s treatment of her amounted to unlawful race discrimination under Section 1981 of the Civil Rights Act.

A federal Appeals Court dismissed Carney’s lawsuit against the City. The Court found that for the City to be liable for anything that happened to Carney, the actions must have been the result of a municipal custom or policy. Carney attempted to establish the existence of a custom of racial discrimination in the Police Department relying solely on statistical evidence. Carney contended that “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.”

The Court was unconvinced by Carney’s arguments. The Court observed that “first, Carney’s statistical sample is mistakenly limited to black females. Accordingly, one cannot discern from Carney’s statistics whether blacks in general – male and female – are less represented in the City’s Police Department than they are represented in the City’s population as a whole. This is important, as Carney did not allege she was discriminated against because she is a black female; rather, she alleged that she was discriminated against only because she is black. Because Carney’s statistical sample is limited to black females, it has little probative value in establishing a custom of generalized race discrimination against all blacks.

“Second, Carney’s statistical evidence is not limited to a qualified applicant pool. This makes it impossible to discern whether any discrimination has in fact occurred. For example, if black females constituted less than one percent of the qualified applicant pool, then Carney’s testimony would show that, rather than being discriminated against, black females have in fact been over-selected. This is why the proper comparison is between the racial composition of the City’s Police Department and the racial composition of the qualified applicant pool in the relevant labor market.

“Third, Carney’s statistical evidence, if anything, addresses the hiring and promotion practices of the Department. Carney’s claims, however, are not based on an alleged failure to hire or promote, thus again rendering her statistics of little probative value.”

Because of Carney’s failure to prove a custom or practice of race discrimination on the part of the City, the Court dismissed her claims against the City.

Carney v. City and County of Denver, 534 F.3d 1269 (10th Cir. 2008).

This article appears in the November 2008 issue