Equal Employment Opportunity Commission v. Mavis Discount Tire, Inc. (129 F. Supp. 3d 90, 2015)

United States District Court for the Southern District of New York 2015-09-11

Citations

Full opinion text

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Equal Employment Opportunity Commission (the “EEOC”), initiated this action in January 2012, alleging that Defendants Mavis Discount Tire, Inc., d/b/a Mavis Tire Supply Corp., Mavis Tire NY, Inc., and Cole Muffler, Inc. (collectively, “Defendants” or “Mavis”) engaged in a pattern or practice of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S,C. §§ 2000e to 2000e-17. The EEOC alleges that Defendants discriminated against the charging party, Nicole Haywood, and other similarly qualified female applicants during the 2008 to 2012 time period, in favor of hiring less qualified men for positions in their branch stores. The EEOC also alleges that Defendants failed to comply with the record-keeping requirements of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c). The EEOC has now moved for summary judgment on its pattern-or-practice and record-keeping claims, and separately has moved to bifurcate the trial in this action in the event summary judgment is not granted. For the reasons set forth below, the EEOC’s motion for summary judgment is denied in its entirety, and the EEOC’s motion for a bifurcated trial is granted in part and denied in part.

BACKGROUND

A. Factual Background

1. Mavis’s Business

Mavis is a family-owned, independent tire dealer. (Def. 56.1 ¶¶ 207, 211). In addition to tire sales, Mavis store locations also offer automotive parts and services including brakes, alignments, suspension, shocks, struts, oil changes, battery replacement, and exhaust work. (Id. at ¶ 212).

In 1987, Mavis was comprised of approximately 11 store locations; it has grown significantly since then. (Def., 56.1 ¶213). Most notably, in 2008, Mavis acquired approximately 50 stores from Cole Muffler, Inc. (Id. at ¶ 214). Today, Mavis operates more than 140 store locations in New York, Connecticut, Massachusetts, and Pennsylvania. (Id.).

Stephen Andre, currently the Vice President of Operations for Mavis, first joined the Company in 1987. (Def. 56.1 ¶213). Andre was ultimately responsible for all hires at Mavis during the relevant time period, having either made or approved every offer of employment. (Pl. 56.1 ¶ 159). But although Andre retained the final authority for hiring, he did not make Mavis’s personnel decisions alone. In 2008, in response to company growth, Mavis created the position of Regional Training Manager (“RTM”). (Id. at ¶ 217). RTMs are responsible for overseeing between eight and fifteen stores that fall within their assigned regions. (Id. at ¶ 218; PI. 56.1 Response ¶ 218). For each store within a particular region, an RTM controls the payroll, trains the store managers, ensures profitability, performs human resources functions, and recruits qualified applicants. (Id. at ¶ 219).

Every application submitted at a store location is given to the appropriate RTM for review. (Def. 56.1 ¶ 233). If the RTM determines there is a need for a particular position, the RTM determines whether to interview any of the applicants. (Id. at ¶235). If the decision is made‘to interview, the RTM checks the applicant’s references and confirms that the information provided in the application is accurate. (Id. at ¶ 237). If, after conducting the interview, checking the references, and confirming the accuracy of the information set forth in the application, the RTM decides to offer the position to the applicant, the RTM makes a recommendation to Andre to hire the applicant. (Id, at ¶ 238; Andre 30(b)(6) Dep. 223). Based on his review of the information presented by the RTM as well as Mavis’s budget, Andre decides whether to hire the applicant. (Def. 56.1 ¶ 239). The Mavis personnel involved in hiring testified that they do not actively seek to hire a certain group of applicants; rather, Mavis seeks to hire the most qualified applicants. (Id, at ¶242).

There are four available positions at each Mavis store location: (i) Store Manager; (ii) Assistant Manager; (ii) Mechanic; and (iv) Tire Installer/Alignment Technician (“Technician”). (Def. 56.1 ¶ 216). From 2008 to 2012,-Mavis hired 80 Store Managers, 655 Mechanics, and 1,688 Technicians. None of these individuals was female. (Pl. 56.1 ¶¶ 46-51). During this same period of time, Mavis hired 288 Assistant Managers, only one of whom was female. (Id.). After the EEOC filed its lawsuit in January 2012, Mavis hired its first female Store Manager (id. at ¶ 47), and-its second female Assistant Manager (id. at ¶ 49).

2. Unsuccessful Female Applicants a. Nicole Haywood

Nicole Haywood unsuccessfully applied on multiple occasions to work at Mavis. (Pl. 56.1 ¶ 112; Def. 56.1 Response ¶ 112). At the time of her initial application in 2008, Haywood had approximately 15 years of experience working at Sears Automotive as a customer service representative; for approximately nine of those years, she performed managerial duties, including 'scheduling technicians, delegating their work, handling customer complaints, and receiving shipments. (Pl. 56.1 ¶¶ 113-14). In 2008, Mavis hired three male Sears Automotive employees. (See id. at ¶¶ 115 — 22). Significantly, all three had been trained by Haywood while at Sears Automotive. (See Haywood Dep. 33, 81, 132-33). After she learned of these hires, Haywood attempted to renew her application to Mavis at various stores and through various channels. (See Pl. 56.1 ¶¶ 116-22).

Eventually, Haywood was interviewed by Andre for 15 to 30- minutes. (Pl. 56.1 ¶¶ 123-24; Def. 56.1 Response ¶ 124). According to Andre, the interview went poorly. (See generally Andre Dep. 73-76). He testified that Haywood arrived 15 minutes late for the interview; displayed a poor attitude; and disparaged her then-current employer. (Def. 56.1 Response ¶ 124). Following the interview, André contacted Jim Dubois, a Store Manager for Mavis who had previously supervised Haywood at Sears Automotive, to ask whether Dubois would recommend offering Haywood a position with Mavis. (Id.). Based, on both his observations during the interview and Dubois’s comments, Andre decided not to extend an offer of employment to Haywood. (Id.).

b.Krystal Murnane

Krystal Murnane, who at the time of her 2009 application to Mavis had approximately six years’ experience performing basic maintenance on cars, was told by Mavis employees at its Bayshore, New York location that she would not be hired by Mavis because she was a woman. (See Murnane Dep. 79 (testifying that a Mavis employee said: “[D]on’t get your hopes up, you’re a chic[k]. These guys are old school.”); id. at 80 (testifying that a Mavis employee told her, “a girl can’t do a guy’s job”); id. (“[T]he manager [at Mavis] told me that all the guys would stare at me”)). Murnane applied to work at Mavis on three or four occasions between 2009 and 2010. (Pl. 56.1 ¶ 132). Mavis did not hire here and, indeed, never contacted her. (Id.).

c. Pyper Braly

Pyper Braly, a tire technician with two years’ experience changing tires in a pit crew during NASCAR races and another nine months’ experience as a mechanic, applied to work at Mavis’s Huntington Station, New York store, but when she handed in her application, the male manager who took the application was rude and dismissive. (Pl. 56.1 ¶ 125). Mavis never called Braly in for an interview and did not hire Braly. (Id. at ¶ 126).

d. Amber Luby

Amber Luby, who had worked for roughly six months as a'tire technician with Goodyear, applied to work for Mavis at the East' Greenbush, New York store in October 2009. (Pl. 56.1 ¶ 127). When Luby returned to Mavis to follow up on her initial application, she was told that Mavis did not have a record of her application. (Id. at ¶ 128). She completed a second application, but never heard back from Mavis and was not hired. (Id.). In the summer of 2012, Luby applied a third time to Mavis, but again was not hired. (Id. at ¶ 130).

e. Julie Griffin

Julie Griffin worked as a Head Service Advisor at a Honda dealership for four years when she first applied to work at Mavis. (Pl. 56.1 ¶ 133). She was interviewed by a Mavis Store Manager, who told her that he wanted to hire her, but needed approval from-his RTM. (Id. at ¶ 134). Griffin eventually learned that the RTM decided to hire the Store Manager’s friend for the position. (Def. 56.1 Response ¶ 135).

f. Ashley Jackson

Ashley Jackson, who, at the time of her application to Mavis had 17 months of automotive experience, applied twice to work for Mavis. (Pl. 56.1 ¶ 136). Jackson called Mavis after each of' her two job applications to follow up on her applications. She testified that she was “brushed off,” and told that Mavis was not hiring. (See id. at ¶ 137; Def. 56.1 Response ¶ 137).

g. Barbara Evans

Barbara Evans, who at the time of her application to Mavis had managed a repair shop for over six years, submitted an online application to work at Mavis. (Pl. 56.1 ¶ 139). Evans contacted Mavis to follow up on her online application and was told that if she submitted an application online, Mavis would have received it. Although she provided Mavis with her contact information, she never heard anything back either confirming receipt of her application or advising her about its status. (Id. at ¶ 140).

h. May Menawi

May Menawi applied for employment with Mavis in 2008 to be- an Assistant Manager at its Tarrytown, New York location, (Pl. 56.1 ¶ 142)) At that time, she worked as a service writer' at Sears Automotive in White Plains. (Id. at ¶ 143). Days after Menawi completed an application at the Tarrytown location, the Store Manager interviewed Menawi for approximately 30 to 60 minutes. (Def. 56.1 Response ¶ 143)) Following. the interview, Menawi was not hired. (Id.).

i. Miranda Cooper and Adeline Van Dyke

In similar fashion, Miranda Cooper and Adeline Van Dyke applied to Mavis but were not hired. (Pl. 56.1 ¶¶ 144-48). At the time Cooper applied, she had a Board of Cooperative Educational Services (“BOCES”) certification for general automotive repairing, and a work "history at various automotive shops. (Id. at ¶¶ 144-45). Van Dyke had automotive training and knowledge and had performed supervisory responsibilities at her husband’s auto body shop. (Id. at ¶¶ 149-50).

In total, there are 42 female applicants whose “credentials on paper” make them well-qualified candidates, according to the EEOC, for Mavis employment. (PI. 56.1 ¶91). The EEOC has also identified a number of male applicants Mavis hired during the 2008 to 2012 time period who had equal or less experience than the unsuccessful female applicants. (See id. at ¶¶ 151-58).

3. Mavis’s Record-Keeping

The EEOC has also expressed concerns about Mavis’s record-keeping practices. By way of background, Mavis contends that it had an application retention process in place, during 2008 through 2012. (Def. 56.1 ¶¶ 220-24). Store Managers were told to collect the applications received in-person at store locations in a manila envelope; RTMs were responsible for collecting those application's from each store and providing them to Human Resources on a weekly basis. (Pl. 56.1 Response ¶ 220). This application retention process was not memorialized or communicated to store management in writing. (Id.). Instead, RTMs conveyed this policy to Store Managers verbally. (Id.; Def. 56.1 ¶229). Applications that weré submitted via email were forwarded to Andre and retained in electronic forrh indefinitely. (See Def. 56.1 ¶ 226-29).

Each of the unsuccessful female applicants identified by the EEOC during the 2008 to 2012 time period testified that she submitted application forms for employment,, but Defendants have been unable to locate all of these applications. (See Pl. 56.1 ¶[¶ 164-76). The EEOC contends that the inability to locate these applications, along with testimony from Mavis employees, demonstrates that Defendants’ record-keeping policy was not effective at retaining all applications. (See id. at ¶¶ 177-200). Defendants counter that, although their employees “could hot testify under oath that every application submitted to [their] 140 + locations were kept and delivered to Human Resources, [they] did not cherry pick applications and throw them away.” (E.g., Def. 56.1 Response ¶ 187).

4. The Experts’ Statistical Analyses

The EEOC’s expert economist, Dr. Marc Bendick, Ph.D., issued an initial report (the “Bendick Report” (Dkt. # 97-1)) on October 25, 2013. (PL 56.1 ¶5). In relevant part, Dr. Bendick. opined that:

• Because of Mavis’s incomplete retention of applications and the possible chilling of female applicants, it was not appropriate to rely on Mavis’s records of applications received to determine the expected representation of women in Mavis’s hiring. (Bendick Report ¶7(8)).

• Based on widely-accepted public data from the U.S. Census Bureau, the EEOC, and similar sources, a reasonable, conservative estimate of the expected representation of women in Mavis’s hiring for in-store positions is 13.3% for Store Managers, 12.4% for Assistant Managers, 2.2% for Mechanics, and 5.9% for Technicians. (Id. at ¶ 7(b)).

• Throughout 2008 to 2012, the number of women employed by Mavis was substantially lower than the expected employment of women. This shortfall was present in each job category in every year examined. (Id. at ¶ 7(c)).

• The shortfall in female employees observed between 2008 and 2012 included employment of zero women in all years among Technicians; zero women in all years among Mechanics; zero women among Store Managers; and one. female Assistant Manager. (Id. at ¶7(0).

• Comparing these figures with those that would be expected in Mavis’s workforce, the number of Mavis’s “missing” female employees can be calculated as between: 7.4 to 16.3 Store Managers per year; 11.5 to 22.3 Assistant Managers per year; 1.9 to 4.0 Mechanics per year; and 13.0 to 26.9 Technicians per year. (Id. at ¶¶38-41).

• Throughout 2008 to 2012, the difference between the expected employment of women in Mavis stores and their actual employment was far too large to have arisen by chance alone. With the exception of the under-representation, of women among Mechanics, where the expected number of female employees was too small for meaningful calculation of statistical significance, the under-representation of women in every job category in every year from 2008 through 2012 was statistically significant at levels ranging from 2.9 standard deviations to 5.4 standard deviations. These numbers of standard deviations mean that the probability that the observed under-representation arose by chance alone varied from less than one chance in 100 to less than one chance in ten million. (Id. at ¶ 7(d)).

Defendants retained their own expert economist, Paul F. White, Ph.D., to review the Bendick Report, discuss any concerns with Dr. Bendick’s methodology and conclusions, and conduct an analysis of Mavis’s hiring practices for the 2008 to 2012 time period. (Def. 56.1 ¶ 245). Dr. White issued his report (the “White Report” (Dkt. #97-4)) on January 17, 2014. In relevant part, Dr. White opined that the Bendick Report was flawed in three ways:

• Dr. Bendick should have compared Mavis’s hiring to a universe no broader than that of “Tire Dealers.” Instead, Dr. Bendick inappropriately compared the Mavis workforce to that found in other industries whose primary purpose is different from that of a tire retailer.- Because some of the industries included in Dr. Bendick’s analysis had higher proportions of female workers, his methodology resulted in an overstatement of the number of “missing” females at Mavis. (See White Report 1-2,12-16).

• Dr. Bendick did not analyze the number of “hires” at Mavis during 2008 to 2012. Instead, he compared the number of females he believes should have been present each year in the Mavis workforce with Mavis’s incumbent workforce for that year. (Id. at 1, 16-17).

• Dr. Bendick did not analyze female applicant availability among the applications that Mavis maintained. His decision not to analyze the applicant flow data was based on a mere “possibility” that some applications may not be accounted for and would result in a distortion of the female availability rate. Dr. Bendick should have examined the applicant flow data in order to (at the very least) provide a range of potential availability measures. (Id. at 2, 24).

Dr. White performed his own statistical analysis, using the number of individuals hired for the four positions and comparing the number of females hired with the number of females expected to be hired by companies considered Tire Dealers. (White Report 27-29). Notably, Dr. White looked at the number of “missing” female hires (and calculated the standard deviation) on a year-by-year basis rather than for the entire five-year period. (See, e.g., id. at 28). In doing so, Dr. White concluded that the shortfall in female hiring per position, per year, was 0.82 to 2.08 for Store Managers; 2.18 to 8.51 for Assistant Managers; 2.28 to 3.57 for Mechanics; and 5.32 to 8.47 for Technicians. (See id. at 27-29). Using the shortfalls in hiring on a per-year basis, Dr. White calculated the statistical significance to be between 0.95 standard deviations and 3.07 standard deviations. (Id.).

Dr. Bendick issued a rebuttal report (the “Bendick Rebuttal” (Dkt. # 97-7)) on February 18, 2014. (PL 56.1 ¶5). First, Dr. Bendick responded to Dr. White’s criticism of the use of incumbent rather than hiring data. As it turns out, he claimed, the EEOC had requested hiring data from Defendants early on during discovery, but Defendants had not provided this data until after the Bendick Report was issued (and, indeed, not until after the White Report had been completed). (See Ben-dick Rebuttal ¶¶ 8 — 10). With the hiring data now at his disposal, Dr. Bendick modified his statistical analysis to focus on the employees hired by Mavis during 2008 to 2012, rather than on the number of incumbent employees. (Id. at ¶ 10). Notably, Dr. Bendick concluded that “the shortfall results in the ‘hiring analysis’ are generally more statistically significant than those in the‘incumbent employees’ analysis because the number of hiring transactions over 2008-2012 is larger than the number of incumbent employees in individual years during that period.” (Id. at ¶ 11; see also id. at ¶ 10 (reporting standard deviations ranging from 3.5 to 10.3)).

Second, the Bendick Rebuttal addressed Dr. White’s opinion that the correct comparator pool consists of “Tire Dealers” rather than a broader set of employers. (Bendick Rebuttal ¶¶ 13-20). Dr. Bendick disagreed with White’s- assessment, but nonetheless repeated his analysis using Dr. White’s suggested pool of Tire Dealers. Dr. Bendick concluded that even relying on “this inappropriate estimate of availability,' statistically significant shortfalls of women’s hiring during 2008-2012 are still universally documented.” (Id. at 19; see also id. (reporting standard deviations ranging from 2.8 to 5.7)).

Third, Dr. Bendick addressed his rejection of Defendants’ applicant flow data as unreliable, a rejection that Dr. White had criticized. (Bendick Rebuttal ¶ 21). Specifically, using Dr. White’s tabulation -of the number of applications from female applicants in Mavis’s possession, Dr. Ben-dick concluded that the number of applications was substantially lower than the number of applications from female candidates that one would expect. He concluded this using both his own estimate of the percentage of females in the workforce and Dr. White’s, estimated percentage of female workers at Tire Dealers. (Id. at ¶¶ 25-26). Using his own estimates, Dr. Bendick concluded that Mavis’s application records contain: (i) 39.8% as many female applicants as expected for the Store Manager position; (ii) 69.3% as many female applicants as expected for the Assistant Manager position; (iii) 68.2% as many female applicants as expected for the Mechanic position; and (iv) 20.3% as many female applicants as expected for .' the Technician position. (Id. at ¶ 25). In contrast, using Dr. White’s estimated percentage of females in the workforce, Dr. Ben-dick concluded that Mavis’s application records contain: (i) 58.2% as many female applicants as expected for the Store Manager position; (ii) 86.9% as many female applicants as expected for the Assistant Manager position; (iii) 65.2% as many female applicants as expected for the Mechanic position; and (iv) 63.2% as many female applicants as expected for the Technician position. (Id. at ¶ 26). Dr. Bendick concluded that these discrepancies make “it is extremely likely that [an] undercount [of female applicants] actually exists” in Mavis’s application records. (Id. at ¶ 28 (emphasis in original)).

Finally, putting aside his reservations about the reliability' of the applicant flow data, Dr. Bendick performed a statistical analysis’ based on the applicant flow data and the number of hires per year. (Bendick Rebuttal ¶ 29). In other words, Dr. Bendick assumed for the sake of analysis that the percentage of Mavis’s actual female applicants would equal the percentage of female employees Mavis hired for each position, and multiplied the number of hires by the percentage of female applicants to come up with the expected number of female hires. (See,id.). Dr. Ben-dick concluded that “even ... applying] availability figures computed from Mavis’s incomplete application records, statistically significant shortfalls of women’s hiring during 2008-2012 are still universally documented.” (Id. (reporting standard deviations ranging from 2.1 to 5.0)).

One key difference between the experts’ approaches is that Dr. Bendick aggregated the hiring data before computing statistical significance, as represented in the number of- standard deviations, while Dr. White looked a( the data in each year separately. (Compare Bendick Rebuttal ¶¶ 12, 20 (“combining five years’ hiring data before computing statistical significance”), with White Report 27 (calculating the standard deviation based on “the shortfall number of ... hires for each job during each year”)). This difference was addressed in the Bendick Rebuttal, as well as in the depositions of the experts. Dr. Bendick explained that he initially utilized a year-by-year analysis when he performed a comparison based on incumbent employee data “only because the continued employment of individuals from one year to the next makes it statistically inappropriate to add together all years’ workforces as though each year’s workforce is independent of the .workforce in previous years.” (Bendick Rebuttal ¶ 11 n. 10). However, Bendick opined that “no such issue of lack of independence arises when hiring decisions are analyzed, so that it is appropriate to analyze all years’ hiring decision together, not separately for individual years.” (Id. (emphasis added); see also Bendick Dep. 329 (“The hypothesis I was assigned to test was that there was a pattern and practice applying across [a] five-year period of under hiring women compared to their expected representation. The statistical test that corresponds to that hypothesis is the one that ... look[s] at the total corpus of hires across the five years[.]”); id. at 332 (“The hires in individual years are independent essentially of hires in other years.”)).

Dr. White was questioned extensively during his deposition on his decision to analyze the data and report statistical significance on a year-by-year basis. In his answers, Dr. White disagreed with Dr. Bendick’s decision to report only aggregate data for the entire time period. (White Dep. 30). Specifically, Dr. White contended that “[b]ecause ... the hiring decisions from- one year can affect the demand for employees the next year, ... they’re [not] totally independent decisions— It affects the number of hires from one year to the next. It can.” (Id. at 30-31). When pressed to explain the practical import of analyzing the data in the aggregate, or on a year-by-year basis, Dr. White offered the following summary: When the data is aggregated, “for each of the four jobs across all years there is a statistically significant finding. For'some of the years it’s not statistically significant on a year-to-year basis, and for some of the jobs it’s ... statistically significant on a year-to-year basis.” (Id: at 45). Dr. White acknowledged that “[w]ith smaller numbers of observations in [a year-by-year] analysis it takes a larger difference between the actual and expected outcome to generate a statistically significant finding.” (Id. at 33). He testified, however, that in his experience, “the most common approach is to report [statistical significance] both ways” — that is, in the aggregate and on a year-by-year basis — “[a]nd to then let attorneys and the court decide the implications from it.” (Id. at 32).

B. Procedural Background

On January 26, 2009, Nicole Haywood filed an EEOC charge of discrimination, alleging that Mavis failed to hire her because of her sex. (Pl. 56.1 ¶ 162). On February 9, 2009, the EEOC provided notice to Mavis of Haywood’s charge of discrimination. (Id. at ¶ 163). On November 3, 2010, the EEOC issued a request for information to Mavis, asking that it provide a list of all employees identified by them name, sex, as well as other information; all applications for employment and resumes submitted to Mavis; and a list of all persons hired by Mavis. (Id. at ¶ 164). Thereafter, on August 5, 2011, the EEOC issued a letter of determination that stated, in part, that the EEOC had determined that: (i) “there [wa]s reasonable cause to believe that [Mavis] violated Title VII by failing .to ... hire [Haywood] and a class of females because of their sex”; and (ii) Mavis “failfed] to preserve employment applications for one year and, once the subject charge was filed, ... fail[ed] to preserve application^] until the final disposition of the charge.” (Id. at ¶ 165).

The EEOC brought this action on January 31, 2012. (Dkt. # 1). Defendants filed their Answer on April 1, 2012. (Dkt. # 7). At the close of discovery, the EEOC and Defendants indicated their intent to file cross-motions for summary judgment. (Dkt. #65, 66). On November 25, 2014, the Court held a pre-motion conference to discuss the anticipated motions for summary judgment, as well as the EEOC’s motion to bifurcate the trial. (See November 25, 2015 Conference Transcript (“Nov. 25 Tr.”) (Dkt. # 75)). Although both parties argued that the: trial in this action should be bifurcated and proceed in two phases, the parties did not agree as to whether the issue of punitive damages should be decided by a jury during the liability phase (“Phase I”) or during the remedial phase (“Phase II”). (See id. at 6-10, 14-16; see generally Discussion Sec. A(2), infra (describing the liability and remedial phases of a pattern-or-practice case)). Following the pre-motion conference, the EEOC filed its motion for summary judgment and for bifurcation of the trial on February 13, 2015. (Dkt. #94-97). Defendants, opting not to file the summary judgment motion they previously anticipated, filed their opposition on March 27, 2015. (Dkt. # 101-04). The motions were fully briefed upon the filing of the EEOC’s reply on April 13, 2015. (Dkt. # 106-07).

DISCUSSION

A. Applicable Law

1. Summary Judgment Motions Generally

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct 2548, 91 L.Ed.2d 265 (1986) (internal citation and quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is. such that a reasonable jury could return, a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). The movant may discharge this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of. an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir.2013) (finding summary judgment appropriate where the non-moving party fails to “come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential element' of a claim” (internal quotation marks omitted)).

If the moving party meets this burdén, the nonmoving party must “set out specific facts showing a genuine issue for trial” using affidavits or otherwise, and cannot rely on the “mere allegations or denials” contained in the pleadings. Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir.1985)). Furthermore, “[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of-material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995)) (internal quotation marks and citations omitted); see also Vargas v. Transeau, 514 F.Supp.2d 439, 442 (S.D.N.Y.2007) (observing that “the mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment (internal quotation marks and citations omitted)), aff'd sub nom. Vargas v. Pfizer, Inc., 352 Fed.Appx. 458 (2d Cir.2009) (summary order).

“When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve, all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d. 775, 780 (2d Cir.2003). However, in considering “what may reasonably be inferred” from witness, testimony, the court should not accord the non-moving party the benefit of “unreasonable inferences, or inferences at war with undisputed facts.” Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F.Supp.2d 334, 342 (S.D.NY.2005) (citing County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 (2d Cir.1990)).

2. Title YII Pattern-or-Practice Discrimination

“Title VII ... prohibits various forms of employment discrimination on the basis of race, color, religion, sex, or national origin.” E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 802, 809 (S.D.N.Y.2013) (quotations marks and citation omitted). Title VII prohibits both intentional discrimination — known as disparate treatment — and unintentional discrimination practices that have a disproportionately adverse effect on a protected class — known as disparate impact. United States v. City of New York, 713 F.Supp.2d 300, 316 (S.D.N.Y.2010). (citing Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)). This is a disparate treatment case for sex discrimination in Defendants’ hiring practices.

A pattern-or-practice claim is a particular vehicle to bring a Title VII case. “Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination' against individuals. To succeed on a pattern-or-practice claim, plaintiffs must prove inore than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s ‘standard operating procedure.’” Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.2001) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)), abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). In light of all the circumstances of the case, discrimination must be proven by a preponderance of the evidence to be the defendant’s “regular” policy. Teamsters, 431 U.S. at 336, 97 S.Ct. 1843; accord United States v. City of New York, 717 F.3d 72, 88 (2d Cir.2013).

There is a “manifest” difference between claims of- individual discrimination and claims of a pattern or practice of discrimination. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). In part, this is because the Supreme Court has cautioned that isolated or individual instances of discrimination, even if true, should not be construed to turn every Title VII case into “a potential companywide class action.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Indeed, “courts considering what evidence is necessary'to show that an employer routinely and purposely discriminated have also required substantial proof of the practice.” King v. Gen. Elec. Co., 960 F.2d 617, 624 (7th Cir.1992); see also In re W. Dist. Xerox Litig., 850 F.Supp. 1079, 1085 (W.D.N.Y.1994) (“[T]he burden of establishing a pattern or practice of discrimination is not an easy one to carry”).

Pattern-or-practice cases proceed in two phases: a liability phase and a remedial phase. Robinson, 267 F.3d at 158. In the liability phase, with which the instant motion for summary judgment is concerned, “plaintiffs must produce sufficient evidence to establish a prima facie case of a policy, pattern, or practice of intentional, discrimination against the protected group.” Id. The Second Circuit has recognized that Supreme Court precedent “sets a high bar for the prima facie case the Government or a class must present in a pattern-or-practice ease: evidence supporting a rebuttable presumption that an employer acted with the deliberate purpose and intent of discrimination against an entire class.” City of New York, 717 F.3d at 87.

To establish, liability, plaintiffs’ cases alleging a pattern or practice of discrimination are characterized by a “heavy reliance-on statistical evidence.” Reynolds v. Barrett, 685 F.3d 193, 203 (2d Cir.2012) (quoting Robinson, 267 F.3d at 158 n. 5); see also Attenborough v. Constr. & Gen. Bldg. Laborers’ Local 79, 691 F.Supp.2d 372, 388 (S.D.N.Y.2009) (“[S]tatistical evidence is critical to the success pf a pattern- or-practice disparate treatment claim.”). “[T]he liability phase is largely preoccupied with class-wide statistical evidence directed at establishing an overall pattern or practice of intentional . discrimination.” Robinson, 267 F.3d at 168. Statistics are so central to pattern-or-practice cases that they “alone can make out a prima facie case of discrimination if the statistics reveal a gross disparity” in employee treatment. Id. at 158 (internal quotation marks and citation omitted); see also Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (“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.”).

Statistics, however, “are not irrefutable,” and they must be viewed in light of all of the circumstances of the case. Teamsters, 431 U.S. at 339, 97 S.Ct. 1843. A pattern-or-practice claim usually in-eludes “a combination of strong statistical evidence of disparate impact coupled with anecdotal evidence of the employer’s intent to treat the protected class unequally." Mozee v. Am. Comm’l Marine Serv. Co., 940 F.2d 1036, 1051 (7th Cir.1991); see also Robinson, 267 F.3d at 158.

Anecdotal evidence normally serves a distinct purpose: It brings “the cold numbers convincingly to life.”' Teamsters, 431 U.S. at 339, 97 S.Ct. 1843. “To the extent that evidence-regarding specific instances of alleged discrimination is relevant during the liability stage, it simply provides ‘texture’ to the statistics.” Robinson, 267 F.3d at 168; see O’Donnell Constr. Co. v. Dist. of Columbia, 963 F.2d 420, 427 (D.C.Cir.1992) (“Anecdotal evidence is most useful as a supplement to strong statistical evidence[.]”). Therefore, “[w]hile anecdotal evidence may suffice to prove individual claims of discrimination, rarely, if ever, can such evidence, shew a systemic pattern of discrimination.” Middleton v. City of Flint, 92 F.3d 396, 405 (6th Cir.1996) (quoting O’Donnell, 963 F.2d at 427) (emphasis in Middleton).

Once a prima facie case has been established, the burden then shifts to the employer to rebut the prima facie case, that is, to - demonstrate that plaintiffs’ “proof is either inaccurate or insignificant.” City of New York, 717 F.3d at 85 (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843) (emphases omitted). Defendants may “assault .the source, accuracy, or, probative force” of plaintiffs’ proof. Id. at 86 (citation omitted). In this setting, the employer’s burden is one of production — not persuasion. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“This burden is one of production, not persuasion; it can involve no credibility assessment.” (internal quotation marks and citation omitted)); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“[T]he Title VII plaintiff at all times bears the ultimate burden of persuasion” (internal quotation marks and citation omitted)); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (“If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted[.]”); City of New York, 717 F.3d at 85 (“[T]he rebuttal burden in [a pattern- or-practice case] is one of ‘production.’” (collecting eases)).

Finally, the Second Circuit has admonished that

[while] it is always open to a[n] [employer] to meet its burden of production by presenting a direct attack on the statistics relied upon to constitute a prima facie case[,] ... the rebuttal need not be so limited. A defendant may rebut the inference of a discriminatory intent by accepting a plaintiffs statistics and producing non-statistical evidence to show that it lacked such an intent.

City of New York, 717 F.3d at 85; see also id. at 90 (“[T]he employer may satisfy its burden of production by ‘providing] a nondiscriminatory explanation for the apparently. discriminatory result.’” (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843)).

B. Analysis

1. The EEOC May Bring Its Pattern-or-Practice Claim Under Section 706

As a threshold matter, Defendants argue that the EEOC does not have the authority to bring a “pattern or practice” claim under Section 706 of Title VII, 42 U.S.C. § 2000e-5(b). (Def.Opp. 3-8). Instead, they argue that Section 707 of Title VII, 42 U.S.C. § 2000e-6, which explicitly references “pattern or practice” suits, provides the EEOC’s only avenue for maintaining such a claim. (See Def. Opp. 7). Compare Section 706 (authorizing the “[EEOC] to eliminate ... unlawful, employment practice by informal methods of conference, conciliation, and persuasion,” and providing that where “the [EEOC] has been unable to secure from the respondent a conciliation agreement ,, the [EEOC] may bring a civil action against [the] respondent”), with Section 707 (authorizing the EEOC to “bring a civil action” against a private entity when it “has reasonable cause to believe that any person ór group of persons is engaged in a pattern or practice of resistance to the "full enjóymfent of any of the rights secured by this subchapter”).

Whether the EEOC may bring a pattern-or-practice claim under Section 706 is significant, Defendants argue, because of (i) the different burden-shifting frameworks between the two provisions and (ii) the different remedies available. (See Def. Opp. 7-8). On the issue of burden-shifting, Defendants argue that Section 707 claims must proceed under the Teamsters burden-shifting framework, see 431 U.S. at 336, 97 S.Ct. 1843, whereas Section 706 claims proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). (See Def. Opp. 5-6). With respect to the available. remedies, Defendants note that Section 707 provides for equitable relief only, whereas Section 706 also provides for compensatory and punitive damages. (Id. at 6-7). In sum, Defendants claim that “the EEOC is attempting to avail itself of -the more advantageous Teamsters burden-shifting framework applicable to [Section] 707 claims and seek compensatory and punitive damages, which are only available under [Section] 706.” (Id. at 7).

The Second Circuit has not addressed the specific question of whether the EEOC can bring a pattern-or-practice claim under Section 706. Indeed, the parties have not cited (and this Court could not find) a single district court within the Second Circuit to weigh in on this particular issue. However, before addressing the merits of the parties’ arguments as to whether the EEOC can bring a pattern-or-practice claim under Section 706, the Court must briefly address Defendants’ reliance on two particular" district court cases to support their argument.

Defendants asseverate that: (i) “[Section] 706 does not permit claims alleging a ‘pattern or practice’ of discrimination” (Def. Opp. 5 (emphasis in original)); and (ii) a “[Section] 706 and 707 ‘hybrid action’ is simply not permitted under Title VII” (id. at 7). As support for these propositions, Defendants cite the district court’s opinions in EEOC v. Bass Pro Outdoor World, LLC, No. 11 Civ. 3425(KPE) (“Bass Pro II”), 2013 WL 1124063, at *2 n. 3 (S.D.Tex. Mar. 18, 2013), and EEOC v. Bass Pro Outdoor World, LLC (“Bass Pro III”), 35 F.Supp.3d 836, 841 (S.D.Tex.2014).’ (See Def. Opp. 5, 7). As the EEOC points out in its reply (PI. Reply 3), Defendants’ citation to Bass Pro II and III for support is highly misleading, since the district court in that case ultimately rejected the arguments Defendants now espouse.

The district court in Bass Pro III explicitly endorsed the EEOC’s maintenance of a pattern-or-practice claim under Section 706 and granted the EEOC’s motion for reconsideration on this very issue — thereby reversing course from its earlier pronouncements in EEOC v. Bass Pro Outdoor World, LLC (“Bass Pro I”), 884 F.Supp.2d 499, 520 (S.D.Tex.2012), and Bass Pro II. (See Pl. Reply 2-3). Indeed, the district court in Bass Pro III could not have been clearer on this point, indicating that “[u]pon exhaustive review of Title VII’s statutory scheme and the cases interpreting it, ... [the court] was wrong to summarily conclude in [Bass Pro I] that § 706 claims cannot be proven using the Teamsters framework.” Bass Pro III, 35 F.Supp.3d at 859 (emphasis added). Notably, the portion of Bass Pro III that Defendants quote in their opposition is not native to Bass Pro III; it was originally in Bass Pro I, and was repeated in Bass Pro III only as part of a recap of the procedural history of the litigation. (See Def. Opp. 7 (quoting Bass Pro III, 35 F.Supp.3d at 841)).

Ordinarily, the Court would chalk up Defendants’ reliance on Bass Pro II and Bass Pro III to oversight. However, given Defendants’ citation to another obsolete district court opinion, it may represent more of a strategic choice on their part. Defendants chastise several district courts for “somehow ignoring]” the “critical distinction[s]” between Section 706 and 707. (Def. Opp. 7 (referring to the EEOC’s position as “untenable” given “long-recognized jurisprudence” to the contrary)). To that end, Defendants cite Serrano v. Cintas Corp. (“Serrano I”), 711 F.Supp.2d 782 (E.D.Mich.2010), as an example of an opinion in which a court stood fast against such obliviousness and, in the process, “den[ied] the EEOC the right to utilize the Teamsters burden-shifting framework in a § 706 case.” (Def.Opp. 7), What Defendants fail to acknowledge, and what the EEOC is understandably quick to point out (Pl. Reply 3), is that, the district court’s decision in Serrano I was promptly vacated and remanded by the Sixth Circuit. Serrano v. Cintas Corp. (“Serrano II”), 699 F.3d 884, 896 (6th Cir.2012), cert. denied, — U.S. -, 134 S.Ct. 92, 187 L.Ed.2d 254 (2013). Once again, the district court decision Defendants cite was explicitly overruled, and the very argument Defendants advance before this Court was rejected. Id. (“[W]e hold that the district court erred in concluding that the EEOC may not pursue a claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested in § 706 of Title VII”).

The Court draws attention to Defendants’ citation to defunct iterations of Bass Pro and Serrano to explain why, if reliance on these decisions was indeed a strategic choice on Defendants’ part, it was a poor one. Where, as here, there is no Second Circuit precedent that controls this Court’s decision, Defendants had an opportunity to persuade the Court that Bass Pro III, Serrano II, and their progeny, were wrongly decided. By vociferously championing decisions that are no longer good law, Defendants have squandered that opportunity.

Turning to the merits of the debate, the Court notes the clarity of Second Circuit law that 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.” City of New York, 717 F.3d at 83 (quoting Chin v. Port Authority of N.Y. & N.J., 685 F.3d 135, 148-49 (2d Cir.2012)). As such, the pattern or practice method of proof has been found to be available in some types of discrimination actions, but not others. Compare Franks v. Bowman Transp. Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) (holding that class action plaintiffs may “carr[y] their burden [by] demonstrating the existence of a discriminatory hiring pattern and practice”), Teamsters, 431 U.S. at 362, 97 S.Ct. 1843 (permitting the Government to rely on “proof of the pattern or practice” to “support[ ][the] inference” of discrimination under Section 707), and Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 69 (2d Cir.2015) (finding that “in the context of a putative class action alleging employment discrimination under § 1981 and/or the Equal Protection Clause,” “in certain circumstances[,] • • • statistics alone may be sufficient” “to warrant a plausible inference of discriminatory intent if they show a pattern or practice that cannot be explained except on the basis of intentional discrimination”); with Chin, 685 F.3d at 150 (holding that “the-pattern-or-practice method of proof is not available to non-class, private plaintiffs” (emphasis added)).

The Court finds the opinions in Serrano II and Bass Pro III to be persuasive on the issue of whether the EEOC can use the pattern or, practice method of proof in suits brought under Section 706. To the extent the Court- draws liberally from these opinions, it is because they are thorough and well-reasoned. Reliance on these decisions also makes a great deal of practical sense, as the courts in Serrano II and Bass Pro III considered and rejected each of the arguments that Defendants propound here, and, as noted supra, Defendants have not given the -Court any reason to think they were wrongly decided.

First, permitting the EEOC to bring pattern-or-practice cases under Section 706 does not “render § 707 meaningless or ... superfluously]” (Def.Opp: 7). As the court in Bass Pro III explained, there are at least three circumstances under which the EEOC might initiate an action under Section 707 instead of under Section 706: (i) where the EEOC “has ‘reasonable cause’ to believe such a suit necessary” but where no individual has “file[d] a charge against the employer,” 35 F.Supp.3d at 852 (citations omitted); (ii) where the EEOC wishes to avoid “intervention as of right by parties aggrieved,” id. at 852-53; and (iii) where the EEOC intends “to request a three-judge district court in [a] case[] of ‘general -public importance,’ and to appeal a ruling by- such a court directly to the Supreme Court,”’ id. at 853. These differences vitiate- the argument that Section 707 will be rendered superfluous if the EEOC can maintain a pattern-or-practice claim under Section 706. See generally Skilling v. United States, 561 U.S. 358, 413 n. 45, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (“Overlap with other federal statutes does not render [a statute] superfluous.”).

Second, and more fundamentally, the Court does not view an interpretation that results in statutory overlap as running contrary to Congress’s intent. (See Def. Opp. 7-8). The Court finds it perfectly rational that, “in an effort to ensure that the EEOC could prevent unlawful employment practices, Congress opted to give the EEOC broad and overlapping authority.” EEOC v. Pitre, Inc., 908 F.Supp.2d 1165, 1173 (D.N.M.2012) (internal citation omitted). The conclusion that “Sections 706 and 707 clearly overlap, providing the EEOC with multiple routes to bring employers who engage in unlawful discrimination to justice,” id. at 1173-74, is unsurprising. Indeed “legislative enactments in [the] area [of employment discrimination] have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); see, e.g., Anderson v. Conboy, 156 F.3d 167, 180 (2d Cir.1998) (“[W]ith respect to race discrimination, Title VII and Section 1981 coexist despite partially overlapping coverage.” (citation omitted)).

Third, the Court disagrees with Defendants that any unfairness inures to employers from the application of the Teamsters burden-shifting framework rather than the McDonnell Douglas framework. (See Def.Opp. 7 (arguing that the EEOC is seeking to “avail itself of the more advantageous Teamsters burden-shifting framework applicable to § 707”)). As the Sixth Circuit has explained,

This argument is based on a mistaken premise. The Teamsters framework is not an inherently easier standard of proof; it is simply a different standard of proof. Indeed, under Teamsters, the plaintiffs initial burden to make out a prima facie ease is heightened—[U]nder Teamsters the plaintiff must demonstrate the existence of a discriminatory procedure or policy. This is no simple task, as the plaintiff must prove that discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.... Thus, the EEOC must always weigh the risks — as well as the benefits — of proceeding under the Teamsters framework, for doing so involves a greater chance of losing at the prima facie stage.

Serrano II, 699 F.3d at 896 (internal citations and quotation marks omitted); see also City of New York, 717 F.3d at 87 (“Teamsters sets a high bar for the prima facie case the Government or a class must present in a pattern-or-practice case[,]”). This argument also glosses over the fact that the Teamsters framework is routinely-used in pattern-or-practice cases under Section 706 brought as private class actions. See Chin, 685 F.3d at 148 (noting that the pattern or practice “method of proof ... .originated in the class action context, in Franks”); see also Bass Pro III, 35 F.Supp.3d at 849 (finding “no principled reason why a private class action may employ Teamsters and an EEOC class action may not”).

Finally, the Court rejects Defendants’ argument that Congress, in amending Title VII to make compensatory and punitive damages available under Section 706 but not Section 707, “expressly chose to leave equitable relief the only remedy for the EEOC pattern[-]or[-]practice claims.” (Def.Opp. 6-7). As the court in Bass Pro III noted, “[t]his argument misses the mark”:

Congress did intend to make compensatory and. punitive damages available to victims of - a discriminatory pattern or practice, it just required that they — or the EEOC — seek them in a § 706 suit. Simple logic bears this out. Wherever there is a pattern or practice of discrimination, it is axiomatic that there are individual victims who have been discriminated against. These are the same individuals that could bring their own § 706 suit or whose rights the. EEOC could- seek to vindicates in its own § 706 action. Consequently, to hold ... that the EEOC cannot seek ..; damages for victims of a discriminatory pattern or practice would be to place these individuals in a worse position than those who are discriminated against in a series of isolated incidents. [It] is impossible to believe [that is what] Congress intended.

Bass Pro III, 35 F.Supp.3d at 853 (emphases in original, footnote and internal quotation marks omitted). Accordingly, .the Court finds that the EEOC may maintain a pattern-or-practice claim under Section 706 as well as under Section 707.

2. Summary Judgment on the EEOC’s Pattern-or-Practice Claim Is Denied,

Turning now to the merits, the EEOC has moved for summary judgment on its pattern-or-practice claim, contending that its expert’s findings of Defendants’ statistically significant hiring shortfalls of female employees, the presence of an “inexorable zero” of female hires, and the anecdotal evidence from female applicants “conclusively show that Mavis engaged in a pattern or practice of discrimination against hiring women.” (Pl. Bn. 19). Defendants respond that genuine issues of material fact remain, such that summary judgment is inappropriate. (See Def. Opp. 14). Specifically, Defendants maintain that Mavis’s “decentralized hiring practice ... diminished [the] significance of any statistical shortfalls” (id. at 16); the “disagreement between the parties’ respective experts” regarding whether to aggregate data before computing statistical significance “confirms that issues of fact ... exist” (id. at 21); and anecdotal evidence of those who applied to Mavis “only highlight[s] the multitude of disputed issues of fact” because at least some of the claimants “candidly testified that they did not believe gender had anything to do with why they were denied employment with Mavis until the EEOC contacted them ” (id. at 23 (emphasis in original)). In reply, the EEOC argues that Defendants have failed to rebut the EEOC’s prima facie case grounded in statistical evidence. (Pl. Reply 8-9). Although this presents a very close case, the Court is persuaded that Defendants have (albeit barely) met their burden of production under the Teamsters framework. Summary judgment is therefore inappropriate, and the issue of Defendants’ liability must go to trial.

As a preliminary matter, the Court notes that both sides would have been better served making arguments more directly aimed at their respective burdens under the Teamsters framework. Defendants, while understandably trying to draw attention to the existence of genuine issues of material fact, largely ignore the burden they face on summary judgment — namely that of rebutting the EEOC’s prima facie case. The EEOC, while justifiably confident that it has stated a prima facie case, fails to argue why precisely it believes that Defendants have failed to meet their countervailing burden of production under Teamsters.

Within the Teamsters framework, the EEOC has presented an incontestably strong prima facie case. As with most pattern-or-practice cases, the Court begins with an analysis of the EEOC’s statistical evidence of hiring disparities. The Court is mindful that “[n]ot all disparities ... are probative of discrimination. Before a deviation from a predicted outcome can be considered probative, the deviation must be ‘statistically significant.’ ” Ottaviani v. State Univ. of N.Y. at New Paltz, 875 F.2d 365, 371 (2d Cir.1989). “A finding of two standard deviations corresponds approximately to a one-in-twenty, or five percent, chance that a disparity is merely a random deviation from the norm, and most social scientists accept two standard deviations as a threshold level of ‘statistical significance.’ ” Id. While courts have rejected the finding of two standard deviations as “a formal ‘litmus’ test for assessing the legitimacy of Title VII claims[,] ... [i]t is certainly true that'a finding of two to three standard deviations can be highly probative of discriminatory treatment.” Id. at 372 (citations omitted).

Here, the EEOC has presented statistical evidence that demonstrates the disparities in hiring female employees by Defendants is exceedingly unlikely to have been caused by chance. Dr. Bendick frequently refers to the disparities he identifies as “statistically significant,” and he is- correct. In each of Dr. Bendick’s analyses, for each of the-four positions, he calculates a standard deviation of two or more. When Dr. Bendick looked at Defendants’ incumbent employee data (before Defendants had produced their hiring data), he reported standard deviations of between 2.9 and -5.4; when he focused on their hiring data, he found disparities even more severe, - between 3.5 and 10.3; when he limited his approach to consider the workforce only of “Tire Dealers,” as per Dr. White’s preference, he still found standard deviations ranging from 2.8 to 5.7; and, finally, when he considered Defendants’ actual applicant flow data, he reported standard deviations ranging from 2.1 to 5.0. This statistical evidence, which has been “finely tuned to the relevant labor pool,” would likely be sufficient to establish a prima facie case without other evidence. Segar v. Smith, 738 F.2d 1249, 1278 (D.C.Cir.1984) (“When ... statistical evidence is ... finely tuned to the relevant labor pool, gross disparities need not be shown to permit an inference of discrimination.”); see also Hazelwood, 433 U.S. at 307-08, 97 S.Ct. 2736 (“[G]ross statistical disparities .,. may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”); City of New York, 717 F.3d at 84 (“[I]nstances of discrimination against particular employees are relevant to show a policy of intentional discrimination, [but] they are not required; a statistical showing of disparate impact might suffice[.]”).

To the extent there was any doubt as to the sufficiency of the EEOC’s prima facie case, however, the statistical analysis is buttressed by the undisputed fact that Defendants hired zero female Store Managers, Mechanics, or Technicians from 2008 to 2012, during which time they hired 80 male Store Managers, 655 male Mechanics, and 1,688 male Technicians. “[F]ine tuning of the statistics could not have obscured the glaring absence” of female employees hired for these positions. Teamsters, 431 U.S. at 342 n. 23, 97 S.Ct. 1843; see, e.g., Victory v. Hewlett-Packard Co., 34 F.Supp.2d 809, 823-24 (E.D.N.Y.1999) (finding that plaintiff had raised “inference of gender discrimination” based in part on “the troubling fact that -nary a single female sales representative ha[d] ever been promoted to a managerial position”).

The Court is hesitant to embrace fully the EEOC’s argument regarding “the inexorable zero” of female hires. See Teamsters, 431 U.S. at 342 n. 23, 97 S.Ct. 1843 (“[T]he inference, of discrimination came not from a misuse of statistics but from ‘the inexorable zero.’ ”); e.g., Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 662 (5th Cir.1983) (“To the noble theoretician predicting the collisions -of weightless elep