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Plaintiff-appellant Jesus Malave, an Hispanic male employee of the United States Postal Service ("Postal Service"), appeals from a summary judgment entered in the Unites States District Court for the District of Connecticut (Eginton, J.) in favor of defendant-appellee, Postmaster General of the Postal Service, dismissing Malave's disparate impact employment discrimination claim. In dismissing Malave's claim, the District Court found that the undisputed statistical analysis provided by Malave's expert failed to establish a prima facie case of disparate impact. In particular, the District Court held that, to make out a prima facie case of disparate impact, Malave's statistical analysis should have focused on the "applicant pool or the eligible labor pool" for the "at-issue" positions, rather than on the "overall number of Hispanics in the Connecticut Postal Service workforce." For the reasons that follow, we hold that such a per se rule is not appropriate in cases (such as this one) where the data concerning the number of qualified Hispanics who applied for the at-issue promotions are not available. Accordingly, we vacate the summary judgment and remand for proceedings consistent with this opinion.


320 F.3d 321 (2003)

Jesus MALAVE, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.

Docket No. 01-6263.

United States Court of Appeals, Second Circuit.

Argued: October 2, 2002.

Decided: February 20, 2003.