Gould v. Chamberlin
Filing
OPINION, affirmed, by JMcL, JAC, RCW, FILED.[659816] [10-4235]
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10-4208-pr; 10-4235-pr
Reynolds v. Barrett; Gould v. Chamberlin
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Argued: December 6, 2011
Decided: July 11, 2012)
Docket Nos. 10-4208-pr; 10-4235-pr
JERRY REYNOLDS,
Plaintiff-Appellant,
–v.–
DAVE BARRETT, Industrial Superintendent of Elmira
Correctional Facility, LARRY POCCOBELLO, Assistant
Industrial Superintendent of Elmira, JACK RATHBUN, General
Foreman of Elmira Print Industry, TERRY CHAMBERLAIN,
Industrial Training Supervisor of Elmira Print Industry,
FLOYD BENNETT, Superintendent of Elmira Correctional and
Reception Center, GEORGE SARNO, Industrial Training
Supervisor of Elmira Print Industry, JANET KENT, Industrial
Training Supervisor of Elmira Print Industry, DANA M. SMITH,
Deputy Superintendent of Elmira, JAMES P. THOMPSON, Senior
Correction Counselor of Elmira, JOHN CONROY, Director of
Correctional Industry, Individually and in their official
capacities,
Defendants-Appellees.
KHALIB GOULD,
Plaintiff-Appellant,
–v.–
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TERRY CHAMBERLAIN, Industry Training Supervisor, LARRY
POCOBELLO, Industry Assistant Superintendent, DAVE BARRETT,
Industry Superintendent, JACK RATHBIN, Industry Foreman,
JANICE KENT, Industry Training Supervisor, FLOYD BENNETT,
Elmira Correctional Facility's Superintendent,
Defendants-Appellees.*
Before:
McLaughlin, Cabranes, and Wesley, Circuit Judges.
Appeal from an order of the United States District
Court for the Western District of New York (Larimer, J.),
entered on October 4, 2010, granting summary judgment to
defendants-appellees on plaintiffs-appellants’ individual
claims of racial discrimination, denying plaintiffs’ motion
for class certification, and denying plaintiffs’ motion for
leave to amend their complaints. Plaintiffs-appellants’
primary contention on appeal is that the district court
should have assessed the proposed amended class action
complaint, which alleged claims for intentional
discrimination against individual state officials, under the
disparate-impact theory of liability and the pattern-orpractice evidentiary framework used in Title VII actions.
Disparate impact liability is unavailable because the
statutes on which they base their claims require intentional
discrimination. Further, the pattern-or-practice framework
is ill-suited to establish the liability of the individual
state officials named as defendants.
AFFIRMED.
GUY A. TALIA, Thomas & Solomon LLP, Rochester, NY
(J. Nelson Thomas, on the brief), for
Plaintiffs-Appellants.
*
The Clerk of the Court is respectfully directed to amend the official
captions to conform to the above.
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ANDREW B. AYERS, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General,
Andrea Oser, Deputy Solicitor General, on the
brief), for Eric T. Schneiderman, Attorney
General of the State of New York, Albany, NY
for Defendants-Appellees.
WESLEY, Circuit Judge:
Plaintiffs primary argument on appeal presents a
12
question of first impression in our circuit: whether
13
recourse to the pattern-or-practice evidentiary framework is
14
appropriate in a suit against individual state officials
15
brought pursuant to 42 U.S.C. § 1983 for intentional
16
discrimination.
17
18
I. BACKGROUND
This case has as a backdrop prior litigation involving
19
claims of racial discrimination at Elmira Correctional
20
Facility (“Elmira”), a state maximum-security prison in
21
Elmira, New York.
22
782-88 (W.D.N.Y. 1991).
23
(jointly, “minority”) inmates at Elmira commenced a class
24
action for injunctive relief, alleging widespread racial
25
discrimination at the facility in housing, job assignment,
26
and the imposition of discipline.
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bench trial, Judge Larimer found that the plaintiffs had
See Santiago v. Miles, 774 F. Supp. 775,
In 1986, black and Hispanic
3
Id. at 777.
After a
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proven a “pattern of racism” at Elmira.
2
1993, Judge Larimer issued a decision requiring, among other
3
things, that the percentage of black and Hispanic inmates in
4
certain “preferred” jobs, including jobs in the Elmira print
5
shop, correspond to the percentage of black and Hispanic
6
inmates in the general prison population.
7
Id.
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On April 13,
At the time the suits here were filed, inmates employed
8
in the Elmira print shop were paid an hourly wage, which
9
ranged from sixteen cents to sixty-five cents per hour
10
depending on the inmate’s experience and expertise.
11
addition, inmates were eligible to receive an “incentive
12
bonus” as a reward for good work.
13
determined, in their discretion, whether a particular inmate
14
merited promotion and higher pay.
15
supervisors could recommend to the Elmira Program
16
Committee–the entity tasked with assigning and removing
17
inmates from various prison programs–that inmates be
18
terminated from employment in the print shop.
19
matter, an inmate would be removed upon two requests.
20
In
Civilian supervisors
Similarly, these
As a general
In the print shop, inmates were directly supervised by
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civilian “Industrial Training Supervisors.”
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Training Supervisors reported to a general foreman, who in
4
The Industrial
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turn reported to an Assistant Industrial Superintendent and
2
the Industrial Superintendent.
3
Superintendent answered to Elmira’s Superintendent, among
4
other officials.
The Industrial
5
In 1999, plaintiffs-appellants Jerry Reynolds and
6
Khalib Gould (jointly, “plaintiffs”), inmates formerly
7
employed in the Elmira print shop, filed pro se complaints
8
alleging racial discrimination by civilian supervisors and
9
prison administrators.
Two other Elmira inmates, Anthony
10
Mack and Joseph Ponder, commenced similar pro se actions in
11
2000.
12
Reynolds’s pro se complaint asserted claims pursuant to
13
42 U.S.C. §§ 1981, 1983, 1985, and 1986 against Floyd
14
Bennett, Elmira’s Superintendent; David Barrett, Elmira’s
15
Industrial Superintendent; Dana Smith, Elmira’s First Deputy
16
Superintendent; Larry Pocobello, the Assistant Industrial
17
Superintendent; Jack Rathbun, the print shop’s general
18
foreman; Terry Chamberlain, George Sarno, and Janice Kent,
19
at the time all Industrial Training Supervisors; James
20
Thompson, the chair of Elmira’s Program Committee; and John
21
Conroy, Director of Correctional Industry (jointly,
22
“defendants”).
5
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Reynolds alleged that Barrett, Pocobello, Rathbun,
2
Chamberlain, Sarno, and Kent demoted minority inmates more
3
often than white inmates, confined minority inmates to low-
4
paying positions, and unfairly docked the pay of minority
5
inmates.
6
in which Rathbun docked fifty-seven dollars from Reynolds’s
7
pay to reimburse the print shop for a poorly-run print job.
8
Reynolds further alleged that minority inmates employed in
9
the print shop had their pay docked at a much higher rate
10
11
Reynolds specifically complained about an incident
than white inmate-employees.
Gould’s pro se complaint stated, among other things,
12
claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986
13
against Pocobello, Barrett, Rathbun, Chamberlain, Kent, and
14
Bennett.
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actions against him because of his race and retaliated
16
against him for filing grievances.
17
He alleged that they took adverse employment
In November 2000, the district court appointed counsel
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for the plaintiffs in all four actions.
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consolidate the actions and file an amended complaint.
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Finding the proposed amended complaint deficient because it
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lacked detail as to the nature of each plaintiff’s claims
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against each defendant, a magistrate judge directed
6
Counsel moved to
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plaintiffs to file a more detailed amended complaint by
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December 17, 2001.
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consolidate the actions for the purpose of conducting
4
discovery.
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prejudice if plaintiffs filed an amended complaint after
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discovery was completed.
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arrangement.
Instead, the parties agreed to
They further agreed that no party would suffer
The magistrate judge approved the
8
After conducting four years of discovery, plaintiffs
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sought leave to file an amended class action complaint on
10
October 3, 2005.
The proposed complaint defined the class
11
as “all non-Caucasian inmates at [Elmira Correctional
12
Facility] who were employed in the Print Shop from 1994 to
13
the present, as well as all non-Caucasian inmates at [Elmira
14
Correctional Facility] who were deterred from working within
15
the Print Shop because of the discriminatory policies and/or
16
practices set forth in this complaint.”
17
to claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and
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1986, the complaint claimed violations of Judge Larimer’s
19
order in Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y.
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1991), the New York State Human Rights Law, the New York
21
State Constitution, and New York Civil Practice Law and Rule
22
§ 8601.
7
JA 64.
In addition
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The proposed amended class action complaint asserted
2
that racial discrimination was the “standard operating
3
procedure in the Print Shop,” that “incredible statistical
4
disparities” existed between minority and non-minority
5
inmates, and that minority inmates were evaluated more
6
harshly, fired and demoted more often, and paid less than
7
non-minority inmates.
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facially neutral subjective evaluation process used by the
9
defendants, which gave them unfettered discretion when
10
making employment decisions, had a disparate impact on
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minority inmates.
12
The complaint also claimed that the
The proposed complaint provided several examples of
13
purportedly discriminatory acts taken against plaintiffs.
14
It stated that Reynolds had his bonus docked while white
15
inmates did not, and that he “was issued several reprimands
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by defendants Chamberlain, Kent and Sarno in accordance with
17
the discriminatory policies and practices in effect.”
18
95.
19
promotion, demoted, and ultimately removed from the print
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shop on account of his race.
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injunctive relief and monetary damages.
JA
Similarly, the complaint stated that Gould was denied a
The plaintiffs sought both
22
8
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In support of their motion to amend, plaintiffs
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appended the expert report of statistician Michael J.
3
Guilfoyle, which purported to show, for the period between
4
April 1994 and December 1999, that white inmates had longer
5
average periods of employment in the print shop, were paid
6
more than minority inmates, and were demoted less frequently
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than minority inmates.
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his study suggested that “there [was] a strong bias against
9
non-white inmates working [in] the Elmira prison print shop
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when tenure, rate of pay[,] and demotions are examined.” JA
11
157.
12
In Guilfoyle’s view, the results of
On July 1, 2008, with the motion to amend still
13
pending, Judge Larimer ordered the parties to file summary
14
judgment motions no later than August 25, 2008.
15
extension of time was granted, defendants filed a summary
16
judgment motion directed at plaintiffs’ original pro se
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complaints on October 29, 2008.
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motion and moved to certify the class action.
19
After an
Plaintiffs opposed the
Plaintiffs argued that in the event leave to file an
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amended class action complaint was granted and a class
21
certified, the motion for summary judgment against their
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individual complaints would be “irrelevant.”
9
They contended
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that the pattern-or-practice method of proof used in Title
2
VII class actions could be employed in this § 1983 suit
3
against individual defendants.
4
Court has never applied the pattern-or-practice framework to
5
hold individual state actors liable for intentional
6
discrimination, plaintiffs did not give the district court
7
the benefit of their reasoning as to why the framework was
8
well-suited to that task.
Despite the fact that this
9
On October 4, 2010, the district court granted summary
10
judgment to defendants on Reynolds’s and Gould’s individual
11
claims, denied the motion for class certification, and
12
denied the motion for leave to amend the complaint.
13
Reynolds v. Barrett, 741 F. Supp. 2d 416 (W.D.N.Y. 2010).1
14
The district court recognized that “[d]espite the variety of
15
claims asserted, the § 1983 claims lie at the heart of these
16
cases.
17
seek redress against state actors for a wide range of
18
constitutional violations, it is plaintiffs’ equal
19
protection claims that form the core of their § 1983
20
claims.” Id. at 425.
And though § 1983 provides a vehicle by which to
1
The district court denied in part defendants’ summary judgment motion
as to the other two inmates. Both inmates filed motions in this Court
requesting immediate leave to appeal the district court’s denial of class
certification, and we denied their requests. See Mack v. Barrett, U.S.C.A.
Dkt. No. 10-4212, doc. 31 (Motion Order); Ponder v. Chamberlin, U.S.C.A. Dkt.
No. 10-4148, doc. 29 (Motion Order). Thus, only Reynolds and Gould are
parties to this appeal.
10
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The district court analyzed plaintiffs’ individual
2
complaints under the McDonnell Douglas burden-shifting
3
framework generally employed in assessing individual claims
4
of disparate treatment under Title VII.
5
court determined that defendants were entitled to summary
6
judgment on both Reynolds’s and Gould’s individual claims of
7
discrimination.
8
statistical analysis, it concluded that Reynolds had not
9
demonstrated that any adverse action was taken against him
Id. at 426-35.
The
Although the court noted Guilfoyle’s
10
on account of his race.
11
court found no evidence from which a factfinder could
12
reasonably conclude that race was a motivating factor in the
13
adverse employment actions taken against Gould.
14
the court determined that there was abundant evidence that
15
Gould was subject to adverse employment actions “for
16
nondiscriminatory reasons relating to his poor performance.”
17
Id. at 433.
18
Id. at 427-29.
Similarly, the
Instead,
Having granted summary judgment on plaintiffs’
19
individual claims, the district court denied class
20
certification and leave to amend.
21
noted that “[a]t bottom, these cases present issues arising
22
out of discrete acts of alleged discrimination and
11
In particular, the court
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retaliation against two particular inmates.” Id. at 444.
As
2
such, the court held, among other things, that plaintiffs
3
had not met their burden of demonstrating the existence of
4
questions of law or fact common to the proposed class.
Id.
5
The district court then turned to the remaining issues
6
related to plaintiffs’ motion to file an amended complaint.
7
As relevant here, it held that the proposed complaint’s
8
claims under New York law were barred by New York
9
Corrections Law § 24(1).2 Similarly, it found that the
10
proposed §§ 1981, 1985, and 1986 claims were not viable.3
11
Finally, the district court determined that defendants had
12
not violated its prior order in Santiago.4
13
Id. at 445-46.
Reynolds and Gould timely appealed.
2
New York Corrections Law § 24(1) provides:
No civil action shall be brought in any court of the state,
except by the attorney general on behalf of the state, against
any officer or employee of the department . . . in his or her
personal capacity, for damages arising out of any act done or
the failure to perform any act within the scope of the
employment and in the discharge of the duties by such officer
or employee.
3
Specifically, the district court found that (1) the proposed claim
under 42 U.S.C. § 1981 would be subject to dismissal because there was no
contractual relationship between the parties; and (2) the proposed conspiracy
claims under 42 U.S.C. §§ 1985 and 1986 were unsupported. See Reynolds, 741
F. Supp. 2d at 446.
4
The district court noted that the Santiago order did not prohibit
prison authorities from discriminating on the basis of race because such
discrimination is already prohibited by the Equal Protection Clause.
Reynolds, 741 F. Supp. 2d at 445-46. Instead, the Santiago order established
certain rules and procedures to ensure that preferred employment in the prison
would be apportioned among the inmates in ratios that corresponded to the
racial makeup of Elmira’s prison population. Id. On appeal, plaintiffs do
not challenge the district court’s determination on this issue.
12
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II. DISCUSSION
2
On appeal, plaintiffs principally contend that the
3
district court should have examined the proposed amended
4
class action complaint under the pattern-or-practice
5
evidentiary framework and disparate impact theory of
6
liability generally applicable in class actions brought
7
pursuant to Title VII of the Civil Rights Act of 1964, 42
8
U.S.C. § 2000e et seq.5
9
practice framework is appropriate in a suit against
Whether recourse to the pattern-or-
10
individual state officials brought pursuant to 42 U.S.C.
11
§ 19836 for intentional discrimination is a question of
12
first impression in our Circuit.
Indeed, we have not found,
5
Reynolds and Gould also contend that the district court committed other
errors. Specifically, they claim that the district court erred in (1)
determining that New York Corrections Law section 24 barred their proposed
claims under New York law and (2) finding that their conspiracy claims lacked
support. Reynolds and Gould also argue that even if their complaints were
best analyzed under the McDonnell Douglas burden-shifting framework, the
district court erred in applying that framework and granting defendants
summary judgment. We have considered these arguments and find they are without
merit.
6
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer
for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
13
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nor have the parties cited to us, a case squarely addressing
2
3
4
this issue.7
5
action complaint is that there was a “pattern or practice”
6
of racial discrimination in Elmira’s print shop, as
7
evidenced by “incredible statistical disparities within the
8
[p]rint [s]hop between Caucasian and non-Caucasian
9
employees” regarding promotion, demotion, discipline, and
The gravamen of plaintiffs’ proposed amended class
10
pay.
The proposed class action complaint also asserts that
11
Elmira’s facially neutral policy of vesting in the print
12
shop’s civilian supervisors and other prison administrators
13
“unfettered discretion” to make employment decisions
14
resulted in a disparate impact on the print shop’s minority
15
16
17
inmate-employees.
18
impose disparate impact liability on defendants comes up
19
short.
20
employment practices that have a disproportionately adverse
As an initial matter, plaintiffs’ novel attempt to
Under certain circumstances, Title VII prohibits
7
The Seventh Circuit, albeit without much analysis, has suggested that
the pattern-or-practice framework cannot be used to establish the liability of
individual defendants for intentional discrimination. Cf. Chavez v. Illinois
State Police, 251 F.3d 612, 638 n.8, 647-48 (7th Cir. 2001). Though some
cases appear to assume that the framework may be employed to establish
intentional discrimination under § 1983, the cases tend to focus on the
application of the framework to hold an entity liable. See, e.g., Comm.
Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009);
Catlett v. Mo. Highway and Transp. Comm’n, 828 F.2d 1260 (8th Cir. 1987). As
noted above, we have found no case that has employed the framework to hold
individual defendants liable for intentional discrimination.
14
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effect on minorities.
2
DeStefano, 129 S. Ct. 2658, 2672-73 (2009).
3
impact claims “are concerned with whether employment
4
policies or practices that are neutral on their face and
5
were not intended to discriminate have nevertheless had a
6
disparate effect on [a] protected group.”
7
Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir.
8
2001).
9
See 42 U.S.C. § 2000e-2(k); Ricci v.
Disparate
Robinson v.
But equal protection claims under § 1983 cannot be
10
based solely on the disparate impact of a facially neutral
11
policy.
12
discriminatory intent or purpose is required’ to show a
13
violation of the Equal Protection Clause.” City of Cuyahoga
14
Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003)
15
(quoting Vill. of Arlington Heights v. Metro. Hous. Dev.
16
Corp., 429 U.S. 252, 265 (1977)); see Hayden v. Paterson,
17
594 F.3d 150, 162 (2d Cir. 2010).
18
pursuing a claimed violation of § 1981 or a denial of equal
19
protection under § 1983 must show that the discrimination
20
was intentional.”
21
206, 226 (2d Cir. 2004).
8
It is well established that “‘[p]roof of racially
Therefore, “a plaintiff
Patterson v. Cnty. of Oneida, 375 F.3d
Similarly, §§ 19858 and 19869
42 U.S.C. § 1985 provides, in relevant part:
If two or more persons . . . conspire . . . for the purpose
15
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require “some racial, or perhaps otherwise class-based,
2
invidiously discriminatory animus behind the conspirators’
3
action.”
4
see Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 4 (1st Cir.
5
2012).
6
impact theory of liability in their claims brought pursuant
7
to §§ 1981, 1983, 1985, and 1986.
8
Griffen v. Breckenridge, 403 U.S. 88, 102 (1971);
Thus, plaintiffs cannot proceed under a disparate
What remains, then, is plaintiffs’ assertion that the
9
Title VII pattern-or-practice framework10 may be applied to
10
analyze discrimination claims brought pursuant to 42 U.S.C.
11
§ 1983 against individual state officials.
12
employed the framework in such a manner, and we decline to
13
do so here.
We have never
of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; or for the
purpose of preventing or hindering the constituted
authorities of any State or Territory from giving or
securing to all persons within such State or Territory the
equal protection of the laws . . . the party so injured or
deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or
more of the conspirators.
9
42 U.S.C. § 1986 provides a cause of action against anyone “who,
having knowledge that any of the wrongs conspired to be done, and mentioned in
[42 U.S.C. § 1985], are about to be committed, and having power to prevent or
aid in preventing the commission of the same, neglects or refuses so to
do . . . .”
10
The pattern-or-practice burden-shifting framework is sometimes
referred to as the Teamsters framework, referring to International Brotherhood
of Teamsters v. United States, 431 U.S. 324 (1977), the seminal Supreme Court
case in which the framework was first articulated.
16
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It is true that we have previously observed that
2
“[m]ost of the core substantive standards that apply to
3
claims of discriminatory conduct in violation of Title VII
4
are also applicable to claims of discrimination in
5
employment in violation of . . . the Equal Protection
6
Clause.” Patterson, 375 F.3d at 225; see also Annis v. Cnty.
7
of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Jemmott v.
8
Coughlin, 85 F.3d 61, 67 (2d Cir. 1996).
9
occasions involved individual claims of discrimination, and
10
in each we applied either the McDonnell Douglas framework or
11
a hostile work environment analysis.
12
to find that the pattern-or-practice framework is applicable
13
to § 1983 claims against individual state officials,
14
plaintiffs seek a significant extension of our case law.
15
But each of those
By urging this Court
Employers, not individuals, are liable under Title VII.
16
See Patterson, 375 F.3d at 226; Wrighten v. Glowski, 232
17
F.3d 119, 120 (2d Cir. 2000) (per curiam).
18
disparate treatment claims are of two types: (1) individual
19
claims, which follow the familiar McDonnell Douglas burden-
20
shifting framework, and (2) pattern-or-practice claims,
21
which focus on allegations of widespread discrimination and
22
generally follow the Teamsters burden-shifting framework.
23
Robinson, 267 F.3d at 157 n.3.
17
Title VII
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Under the McDonnell Douglas framework, a plaintiff
2
establishes a prima facie case of intentional discrimination
3
by showing that “(1) he is a member of a protected class;
4
(2) he was qualified for the position he held; (3) he
5
suffered an adverse employment action; and (4) the adverse
6
action took place under circumstances giving rise to [an]
7
inference of discrimination.”
8
609 F.3d 486, 491-92 (2d Cir. 2010).
9
establishes a prima facie case of discrimination, the burden
Ruiz v. Cnty. of Rockland,
If the plaintiff
10
shifts to the employer to come forward with a legitimate,
11
nondiscriminatory reason for the adverse employment action.
12
Id. at 492.
13
returns to the plaintiff to demonstrate that race was the
14
real reason for the employer’s adverse action.
15
Importantly, “[t]he ultimate burden of persuading the trier
16
of fact that the defendant intentionally discriminated
17
against the plaintiff remains at all times with the
18
plaintiff.”
19
U.S. 248, 253 (1981).
20
establish an individual disparate treatment claim for a very
21
good reason: the particular plaintiff must establish he was
22
the victim of racial discrimination.
If the employer does so, the burden then
Id.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450
Statistics alone do not suffice to
18
See Hudson v. Int’l
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Bus. Mach. Corp., 620 F.2d 351, 355 (2d Cir. 1980).11
2
In contrast to individual disparate treatment claims,
3
“[p]attern-or-practice disparate treatment claims focus on
4
allegations of widespread acts of intentional discrimination
5
against individuals.”
6
prevail on a pattern-or-practice claim, the plaintiffs must
7
demonstrate that “intentional discrimination was the
8
defendant’s ‘standard operating procedure.’”
9
Teamsters, 431 U.S. at 336).
10
Robinson, 267 F.3d at 158.12
To
Id. (quoting
A pattern-or-practice lawsuit proceeds in two phases.
11
First, during the “liability phase,” the plaintiffs are
12
required to establish “a prima facie case of a policy,
13
pattern, or practice of intentional discrimination against
14
[a] protected group.”
15
treatment claims, “[s]tatistics alone can make out a prima
16
facie case of discrimination [in a pattern-or-practice suit]
17
if the statistics reveal a gross disparity in the treatment
18
of workers based on race.”
19
quotation marks omitted).
Id.
Unlike in individual disparate
Id. (alterations and internal
Anecdotal evidence of
11
Statistics may, however, be used to support an individual disparate
treatment claim. See Stratton v. Dep't for the Aging, 132 F.3d 869, 877 (2d
Cir. 1997).
12
We refer to our recent decision in Chin v. Port Auth. of N.Y. & N.J.,
- - - F.3d - - - -, 2012 WL 2760776, at *6-9 (2d Cir. July 10, 2012), for a
discussion of the history of the pattern-or-practice framework.
19
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1
discrimination may be highlighted to bring “the cold numbers
2
convincingly to life.”
3
Teamsters, 431 U.S. at 339.
Once the plaintiffs make out a prima facie case of
4
discrimination in a pattern-or-practice case, the burden of
5
production shifts to the employer to show that the
6
statistical evidence proffered by the plaintiffs is
7
insignificant or inaccurate.
8
this is accomplished by challenging the “source, accuracy,
9
or probative force” of the plaintiffs’ statistics.
10
Robinson, 267 F.3d at 159 (internal quotation marks
11
omitted).
12
production, the trier of fact must then determine, by a
13
preponderance of the evidence, whether the employer engaged
14
in a pattern or practice of intentional discrimination.
15
If the plaintiffs succeed in proving a pattern or practice
16
of discrimination, the court “may proceed to fashion class-
17
wide injunctive relief.”
18
are “not required to offer evidence that each person [who]
19
will ultimately seek [individualized] relief was a victim of
20
the employer’s discriminatory policy” in order to prevail in
21
the liability phase.
See id. at 360.
Typically,
If the defendant satisfies its burden of
Id.
Id.
Importantly, the plaintiffs
Teamsters, 431 U.S. at 360.
22
20
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1
When plaintiffs seek individualized relief–i.e., back
2
pay, front pay, or compensatory recovery–the case proceeds
3
to the “remedial phase.”
4
this phase, a particular plaintiff “need only show that
5
he . . . suffered an adverse employment decision and
6
therefore was a potential victim of the proved class-wide
7
discrimination.”
8
alteration omitted); see Teamsters, 431 U.S. at 361.
9
employer then bears the burden of persuasion of
Robinson, 267 F.3d at 159.
During
Id. (internal quotation marks and
The
10
demonstrating that the employee was subjected to an adverse
11
employment action for legitimate, nondiscriminatory reasons.
12
Robinson, 267 F.3d at 159-60; see Teamsters, 431 U.S. at
13
361.
14
It bears noting that “[t]he heavy reliance on
15
statistical evidence in a pattern-or-practice disparate
16
treatment claim distinguishes such a claim from an
17
individual disparate treatment claim proceeding under the
18
McDonnell-Douglas framework.”
19
n.5.
20
framework “substantially lessen[s] each class member’s
21
evidentiary burden relative to that which would be required
22
if the employee were proceeding separately with an
Robinson, 267 F.3d at 158
As this Court has recognized, the pattern-or-practice
21
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1
individual disparate treatment claim under the McDonnell
2
Douglas framework.”
3
Id. at 159.
The McDonnell Douglas and Teamsters frameworks differ
4
in important respects.
5
proof of intentional discrimination by an employer is hard
6
to come by, and thus provide carefully calibrated burden-
7
shifting structures designed to determine whether the
8
employer intentionally discriminated against the plaintiffs.
9
See Patterson v. McLean Credit Union, 491 U.S. 164, 186
10
However, both recognize that direct
(1989).
11
As previously noted, proof of discriminatory intent is
12
required to show a violation of the Equal Protection Clause.
13
City of Cuyahoga Falls, 538 U.S. at 194.
14
state nor a state official in his official capacity is a
15
“person” within the meaning of § 1983, see Will v. Mich.
16
Dep’t of State Police, 491 U.S. 58, 71 (1989), the requisite
17
discriminatory intent must be held by the state official in
18
his individual capacity.
19
Protection Clause violation under § 1983 requires personal
20
involvement by a defendant, who must act with discriminatory
21
purpose.
22
“[P]urposeful discrimination requires more than ‘intent as
Because neither a
Thus, liability for an Equal
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
22
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1
volition or intent as awareness of consequences. . . .
2
instead involves a decisionmaker’s undertaking a course of
3
action ‘because of, not merely in spite of, the action’s
4
adverse effects upon an identifiable group.’”
5
Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
6
(1979)).
7
It
Id. (quoting
The pattern-or-practice framework is ill-suited to the
8
task of identifying which individual defendants engaged in
9
purposeful discrimination in cases such as this one.
10
Statistics proffered during the “liability phase” of a
11
pattern-or-practice suit purport to demonstrate that a
12
pattern of discrimination exists at an entity.
13
VII case, these statistics can make out a prima facie case
14
that the employer was engaged in a pattern or practice of
15
discrimination.
16
collective acts of those who do the employer’s bidding
17
bespeak the employer’s motivation.13
18
19
In a Title
This is because an analysis of the
But statistics showing entity-level discrimination shed
little light on whether a particular individual defendant
13
Because statistics introduced in the "liability phase" of a
pattern-or-practice suit that demonstrate widespread discrimination "change[]
the position of the employer to that of a proved wrongdoer," Teamsters, 431
U.S. at 359 n.45, it makes eminent sense to shift the burden of persuasion to
the employer in the "remedial phase" of the litigation. See Hohider v. United
Parcel Serv., Inc., 574 F.3d 169, 179 (3d Cir. 2009).
23
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1
engaged in purposeful discrimination.
2
alone are insufficient to establish a prima facie case under
3
the McDonnell Douglas framework, see Hudson, 620 F.2d at
4
355, statistics demonstrating employer-wide discrimination
5
are insufficient to establish which individual defendants
6
engaged in purposeful discrimination.
7
disparities may be, and often are, attributable to a subset
8
of actors–not to every actor who had an opportunity to
9
discriminate.
10
Just as statistics
Statistical
Cf. Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2555 (2011).
11
Thus, to import the pattern-or-practice framework into
12
the Equal Protection context would substantially circumvent
13
the plaintiffs’ obligation to raise a prima facie inference
14
of individual discriminatory intent.
15
[could] make out a prima facie case of discrimination,”
16
Robinson, 267 F.3d at 158, a § 1983 plaintiff could shift
17
the burden to the defendant without any showing of
18
individual discriminatory intent.
19
to contravene well-established precedent that “[p]roof of
20
racially discriminatory intent or purpose is required to
21
show a violation of the Equal Protection Clause” in a claim
22
brought pursuant to § 1983.
23
U.S. at 194 (internal quotation marks omitted).
If “[s]tatistics alone
Such a result would seem
City of Cuyahoga Falls, 538
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Plaintiffs in this case offer no authority for the
2
proposition that a statistics-based evidentiary framework
3
used to determine the liability of an entity under Title VII
4
is appropriate to establish the liability of individual
5
state officials under § 1983.
6
“individuals can engage in a pattern or practice of
7
discrimination and there is no reason why such
8
discrimination cannot be shown primarily through statistical
9
proof.”
They argue only that
Reynolds Reply Br. 7.
In their view, this is
10
particularly true where the individual defendants “are the
11
only actors whose decisions could have resulted in the
12
statistical disparities.”
13
disagree.
14
show discrimination at an entity and naming as defendants
15
all of the individuals who could possibly be responsible for
16
such discrimination may support an inference that one or
17
more of the named individual defendants committed acts of
18
intentional discrimination.
19
little or no basis for discerning which individual
20
defendants are responsible for the statistical disparities.
21
For example, the Guilfoyle report purports to show
22
statistically significant racial disparities in the average
Reynolds Reply Br. 7-8.
We
Proffering statistical evidence that purports to
But such evidence provides
25
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1
employment tenure, rate of pay, and demotions of inmates in
2
the Elmira print shop during the period between April 1994
3
and December 1999.
4
an Industrial Training Supervisor in the print shop in the
5
fall of 1998.
6
supports the contention that discrimination was occurring in
7
the print shop during the relevant period, the report says
8
very little about whether Kent herself discriminated against
9
minority inmates on account of their race.
Defendant Janice Kent began working as
Even assuming that the Guilfoyle report
In other words,
10
the statistics do not establish that discrimination was
11
Kent’s standard operating procedure.
12
in a Title VII suit against an employer, the statistics
13
proffered here do not place Kent in the position of “a
14
proved wrongdoer,” Teamsters, 431 U.S. at 359 n.45, and thus
15
do not justify shifting the burden of persuasion to Kent to
16
establish that every adverse employment action she took
17
against a class member was animated by legitimate,
18
nondiscriminatory reasons.
19
Unlike the statistics
For the foregoing reasons, the pattern-or-practice
20
framework is ill-suited to establish the liability of the
21
individual defendants named in the proposed amended
26
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1
complaint.14
2
did not err in declining to independently analyze
3
plaintiffs’ proposed class action amended complaint under
4
the pattern-or-practice framework.
5
court’s denial of leave to amend and denial of class
6
certification for substantially the same reasons stated by
7
the district court.
We therefore conclude that the district court
We affirm the district
8
9
14
We need not here determine if the pattern-or-practice framework can
ever be used in a § 1983 suit against a policy-making supervisory defendant,
although we note our considerable skepticism on that question in light of the
Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
In Iqbal, the Supreme Court held that “[b]ecause vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Id. at 676 (emphasis added). In so holding,
the Court explicitly rejected the argument that “a supervisor’s mere knowledge
of his subordinate’s discriminatory purpose amounts to the supervisor’s
violating the Constitution.” Id. at 677. Thus, “each Government official,
his or her title notwithstanding, is only liable for his or her own
misconduct.” Id.
Iqbal has, of course, engendered conflict within our Circuit about the
continuing vitality of the supervisory liability test set forth in Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). See Aguilar v. Immigration &
Customs Enforcement Div., 811 F. Supp. 2d 803, 814 (S.D.N.Y. 2011) (“The Court
of Appeals has not yet definitively decided which of the Colon factors remains
a basis for establishing supervisory liability in the wake of Iqbal, and no
clear consensus has emerged among the district courts within the circuit.”).
But the fate of Colon is not properly before us, and plaintiffs have not
articulated any reason in their briefs to treat individual print shop
supervisors and their policy-making superiors differently in the context of
this suit. “It is a settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived.” Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001)
(internal quotation marks omitted). Because plaintiffs have failed to develop
any argument as to why the pattern-or-practice framework is suitable to
establish the liability of individual supervisory defendants in § 1983 suits,
we deem that argument waived.
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III. CONCLUSION
The district court’s order of October 4, 2010 granting
3
summary judgment to defendants on plaintiffs-appellants’
4
claims of individual discrimination and retaliation, denying
5
leave to amend the complaint, and denying class
6
certification is hereby AFFIRMED.
28
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