Luceus v. State of Rhode Island, et al

Filing 71

MEMORANDUM AND ORDER granting 50 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 3/30/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
ERIKA D. LUCEUS,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 15-489 WES
)
)
STATE OF RHODE ISLAND and RHODE
)
ISLAND DEPARTMENT OF LABOR AND
)
TRAINING,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
The

Defendants

State

of

Rhode

Island

and

Rhode

Island

Department of Labor and Training (“DLT” or “Department”) ask the
Court to grant them summary judgment (ECF No. 50) on the claims
outstanding

in

Plaintiff

Erika

D.

Luceus’s

Second

Amended

Complaint (“SAC”) (ECF No. 24). 1 The Court does so for the reasons
that follow.

1

These are a Title VII disparate impact claim (Count I); a
Title VII disparate treatment claim (Count II); and a retaliation
claim under the Civil Rights Act of 1866 (Count IV). See Luceus v.
State of Rhode Island, C.A. No. 15–489ML, 2016 WL 7971311, at *6
(D.R.I. Dec. 13, 2016), adopted by CA NO. 15-489 ML, 2017 WL
318646, at *1 (Jan. 23, 2017).

I.

Background 2
Luceus is an employee at DLT, and a black woman. (SAC 3.)

After taking a bachelor’s degree in political science and master’s
degrees in public administration and in library and information
science, she was hired in February 2009 as a Senior Employment and
Training Interviewer (“SETI”) in DLT’s Call Center. (Id.) She was
still

employed

in

this

capacity

at

the

time

she

filed

her

complaint. (Id.) As a SETI, Luceus provided customer service to
Rhode Island residents seeking unemployment benefits. (Id.)
As in many workplaces, a hierarchy exists among positions in
DLT’s Call Center. (Defs.’ Statement of Undisputed Facts in Supp.
of Their Mot. for Summ. J. (“DSUF”) 1-2, ECF No. 50-1.) DLT has
what it refers to as management positions and union positions.
(Id.) All of the management positions are located ahead of all of
the union positions in the organizational pecking order. (Pl.’s
Obj. to Defs.’ Mot. for Summ. J. (“Pl.’s Obj.”), Ex. 10, 1, ECF
No.

53-10.)

But

not

all

management

positions,

nor

all

union

positions, are of equal prominence. (See id.) Each management
position is located somewhere within the hierarchy of management
positions, and likewise for union positions. (See id.) For example,
the position of Director is the preeminent management position,

2

As it must, this section presents the undisputed facts in
the light most favorable to Luceus. See, e.g., Terry v. Bayer
Corp., 145 F.3d 28, 30 (1st Cir. 1998).
2

whereas Employment and Training Manager is the lowliest. (Id.) On
the union side, Benefit Accuracy Monitor is the highest-ranking
position, and Support Staff is at the bottom. (Id.)
SETI, Luceus’s position, is second from the bottom on the
union side, that is, the second least senior position in all of
DLT, ahead of only Support Staff. (Id.) In her time at DLT, Luceus
has seen numerous employees with less education and experience
than she promoted to positions above SETI in the Call Center. (SAC
3.) Several of these promotions came after Call Center management
had appointed a DLT employee to serve in a temporary capacity in
an

open

position

until

the

formal

hiring

process

produced

a

permanent hire. (Id. at 3-4; Pl.’s Statement of Undisputed Facts
in Supp. of Her Obj. to Defs.’ Mot. for Summ. J. (“PSUF”) 15, ECF
No. 65.)
These temporary appointments are known within the Department
as three-day-rule assignments, after a provision in the relevant
collective-bargaining

agreement

that

requires

DLT

pay

a

temporarily assigned union employee the amount associated with her
temporarily assigned position, if the union employee remains in
that position for at least three days. (DSUF 4-5.) While a threeday-rule assignment is not permanent, there is no limit to the
time an employee may remain temporarily assigned. (Defs.’ Reply
Mem. in Supp. of Their Mot. for Summ. J. (“Defs.’ Reply”), Ex. 6,
21-22, ECF No. 61-6.) Furthermore, DLT does not conduct a formal
3

application process before making a three-day-rule assignment.
(SAC 5.) Rather, Call Center brass exercises its discretion to
appoint someone whom it feels has the requisite experience and
ability to assume the duties of the open position. (DSUF 8-9.)
DLT managers made at least a dozen three-day-rule assignments
to positions in the Call Center from August 23, 2010, to November
4, 2015. (See PSUF 5-15; Defs.’ Reply, Ex. 7, 1-2, ECF No. 61-7.)
And at least five of these assignees were able to parlay their
temporary appointments into permanent promotions, either to the
position to which they were temporarily assigned or to another
management position. (See PSUF 5-15; Pl.’s Obj., Ex. 4, 1, 4-8,
11-14, 19-22, 24-25, ECF No. 64-4; Defs.’ Reply, Ex. 7, 1-2.) For
example, DLT appointed Dyana DiChiro-Bogan acting Employment and
Training Manager (the most junior of the management positions) in
August 2010 and acting Senior Employment and Training Manager in
November

2010.

subsequently

(Pl.’s

promoted

Obj.,
to

Ex.

4,

permanent

1,

4.)

DiChiro-Bogan

Principal

Employment

was
and

Training Manager in September 2011. (Id. at 7.) Similarly, Jeanne
Pezzullo,

Janean

Frederic,

and

Garrett

Tiernan

were

all

temporarily assigned at one point to acting Employment and Training
Manager before becoming permanently hired for that position. (Id.
at 13, 20, 22, 24-25.) Jessica Videira became acting Principal
Employment and Training Officer in November 2010 (id. at 4), and
while the record does not indicate whether she was ever hired
4

permanently for that position, it does show that Videira had been
hired permanently to a more-senior position, Chief of Labor and
Training Operations, by November 2013 (see id. at 15).
DLT also afforded select employees new opportunities to gain
experience through a noncompetitive transfer process. (See, e.g.,
PSUF 8.) Unlike three-day-rule assignments, these transfers did
not result in movement up the hierarchy, and therefore were not
accompanied by increased remuneration. (DSUF 13-15; Defs.’ Reply,
Ex. 7, 1-2.) Nonetheless, these lateral moves presented employees
occasion to learn new skills, making them more competitive for
future promotional opportunities with attendant raises. (Pl.’s
Obj. 38.)
For example, DLT selected a number of employees to be part of
the Consortium Project, whose goal was to modernize the State’s
unemployment

insurance

system,

including

aspects

of

the

Call

Center. (DSUF 15.) Appointment to the Consortium Project was highly
sought after by DLT employees, notwithstanding the fact that it
did not entail an increase in pay or movement up the formal
hierarchy. (DSUF 16; Pl.’s Obj., Ex. 6, Cedroni Aff., 4 (ECF No.
64-6) (“I was selected to work in the Consortium. This was a
coveted assignment.”)) At least one Call Center Employee, Beth
Gordon,

secured

a

permanent

promotion

after

Consortium Project. (Defs.’ Reply, Ex. 7, 1-2.)

5

working

on

the

Luceus has received neither a promotion nor a sought-after
lateral transfer at DLT, despite her more than seven years of
experience at the Department and her bachelor’s and master’s
degrees. (SAC 3.) According to Edward Salabert, an employee who
had worked at DLT for 36 years, Luceus’s resume indicated that she
was

“qualified

to

be

a

manager,”

and

that

“[h]er

education

experience surely merits her being seriously considered for a
management position.” (Pl.’s Obj., Ex. 6, Edward Salabert Aff.,
11-12.) Luceus admittedly lacked managerial experience at DLT, but
so did employees like DiChiro-Bogan, Alyssa Alvardo, and Jason
Bliss-Wohlers,

who

nevertheless

secured

management

positions.

(Pl.’s Obj. 17-20.)
Even

though

Luceus

merited

serious

consideration

for

advancement, she was not always up for employee-of-the-month. As
Luceus

became

disenchanted

by

what

she

felt

was

a

rigged

promotional system, she grew alienated from and frustrated with
some of her co-workers. (DSUF 21-39.) In 2011, for example, Luceus
became involved in a boisterous argument with a colleague, an
argument that required a third-party to physically separate the
combatants. (Id. at 22.) She also refused work assignments and
quit on assignments she had accepted. (Id. at 24-26.)
In 2015, Luceus protested the promotional system by posting
provocative signs in her cubicle. One such sign read “Screw Up and
Move Up,” in reference to Luceus’s conviction that less-than6

qualified DLT employees regularly received promotions. (DSUF 23.)
Rose Lemoine, a senior manager at DLT, testified that this behavior
was the reason Luceus failed to secure a promotion. (Lemoine Dep.
156, ECF No. 50-14 (Luceus “wasn’t considered [for a management
position] after a certain period of time because of her behavior
and her attitude towards the department and her actions as an
employee of the Call Center.”).)
At

times

idiosyncratic.
resigned

disruptive,
Various

over

what

Luceus’s

DLT
they

discontent

employees
considered

complained
a

was

far

from

of

and

even

racist,

nepotistic

promotional system. Monique Perkins, a black former DLT employee,
voluntarily resigned after four-and-a-half years “because [she]
observed that promotions continued to be given primarily to white
individuals who had been selected for acting positions, and based
on factors not related to merit,” and because she did not “believe
there

was

equal

opportunity

for

individuals

of

color

to

be

promoted.” (Pl.’s Obj., Ex. 6, Perkins Aff., 1-2.)
Other former employees – including Steven Cedroni, Doryane
Carter, Sareth Chea, Victoria Alves Salabert, and Margarita Antuna
– all echoed Perkins’s sentiment that DLT’s promotional practices
denied black employees an equal opportunity to advance in the
Department. (See, e.g., id., Antuna Aff., 13-14 (“DLT has a pattern
of creating acting/temporary positions and filling them with white
family and friends of upper management); id., Victoria Alves
7

Salabert Aff., 9-10 (“I have been employed by the [DLT] since 2001.
. . . I am still in the same entry-level position I was in when I
started. . . . I had to train acting managers hired after me.”).)
Cedroni,

a

white

man

and

ex-employee

at

DLT

who

voluntarily

resigned in 2014, described DLT as “a political cesspool,” where
“nepotism is rampant” and where “acting and temporary positions
[were] created and filled with Caucasians who were selected by
management.” (Id., Cedroni Aff., 4-5.)
This feeling, not uncommon, that the Department’s promotional
system was fixed led to a climate of mutual suspicion between
minority and white DLT employees. (See id., Chea Aff., 7 (“On
numerous occasions, when I or an employee of color entered a room
in the workplace in which managers were conversing, I observed the
managers

immediately

cease

speaking.”).)

Worse,

employees

who

complained about the promotional system, including Luceus, were
punished for doing so. For example, DLT management excessively
surveilled and scrutinized Luceus, and even dissuaded co-workers
from

interacting

Department’s

with

promotional

her,

after

practices.

she

complained

(Pl.’s

Obj.

about

the

59-62.)

DLT

management treated Perkins similarly: “It was [her] experience at
DLT that managers were vindictive and retaliatory, and that they
applied heighted scrutiny towards minority employees . . . who
complained about unfair promotional practices.” (Pl.’s Obj., Ex.
6, Perkins Aff., 1-2.) Some even claimed DLT management sabotaged
8

their attempts to find other employment. (See id. Antuna Aff., 14
(“DLT

retaliated

against

me

for

complaining

about

racial

discrimination and lack of equal employment opportunities by not
verifying my date[] of employment at DLT with other perspective
employers.”).)
Slights to complaining employees occurred indirectly too:
after Luceus and Chea filed internal complaints about DLT’s hiring
practices,

management

responded

by

promoting

three

different

minority employees to acting assignments. (See id., Chea Aff., 8.)
As Chea testified: “I believe that Jean Barnes, Janean Frederic[]
and Sandra Bec[]ton-Miller were promoted to acting managers as a
direct consequence of the complaints filed by myself and Erika
Luceus . . . .” (See id.) These promotions leapfrogged Barnes,
Frederic, and Becton-Miller over more-senior minority employees
who had expressed misgivings about DLT’s promotional practices.
(See id., Victoria Alves Salabert Aff., 9 (“Despite the fact that
I had more seniority than . . . Jean Barnes and Janean Frederic
. . . Rose Lemoine did not promote me out of retaliation for my
being vocal about the lack of equal opportunity for minorities.”).)
The Department’s hiring and promotions created the following
statistical picture in the Call Center. As of late 2013, the Call
Center had seventy-one white and thirty-nine minority employees.
(Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), Ex. J, 1, ECF. 50-11.)
But even though white and minority employees made up sixty-five
9

and thirty-five percent of Call Center employees, respectively,
ninety percent of Call Center management positions were occupied
by white employees. (See id.) And at that time, ninety-three
percent of those working on the Consortium Project were white.
(Id.) As of 2016, the Call Center still had seventy-one white
employees, but the number of minority employees had dropped to
thirty-two. (Defs.’ Mot., Ex. K, 1, ECF. 50-12.) At that point,
after

Barnes,

management

Frederic,

positions,

and

Becton-Miller

sixty-nine

percent

of

were
all

promoted
Call

to

Center

employees were white, but white employees made up eighty-three
percent of management and ninety-three percent of those working on
the Consortium Project. (See id.)
II.

Discussion
On October 22, 2014, Luceus filed a discrimination charge

with the Rhode Island Commission for Human Rights. (DSUF 10.) The
Commission

found,

substantiated

her

on

June

allegations

29,
of

2015,

that

Luceus

discrimination.

had

(Id.)

not

Luceus

commenced this action on November 17, 2015. She twice amended her
complaint, resulting in the filing of the now-operative SAC on
August 9, 2016. Defendants now move for summary judgment. 3

3

The defendants have previously moved for judgment on the
pleadings. And in a report and recommendation dated December 13,
2016, Magistrate Judge Lincoln Almond advised the Court to grant
in part Defendants’ motion. See Luceus, C.A. No. 15–489ML, 2016 WL
7971311, at *6. Magistrate Almond found, inter alia, that Luceus
had
“exhausted
her
administrative
remedies
as
to
the
10

A.

Legal Standard

The purpose of summary judgment “is to pierce the boilerplate
of the pleadings and assess the proof in order to determine the
need for a trial.” Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11,
16-17 (1st Cir. 2004). In conducting its summary judgment calculus,
the Court must “scrutinize the evidence in the light most agreeable
to the nonmoving party, giving that party the benefit of any and
all reasonable inferences.” Noviello v. City of Boston, 398 F.3d
76, 84 (1st Cir. 2005). Where, as here, the nonmovant has the
burden of proof, the movant bears the “initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant
fulfills this duty, the burden shifts to the nonmovant to “produce
specific facts, in suitable evidentiary form, to establish the

discrimination theories pled in her Second Amended Complaint.” Id.
at *4. He also found that the Eleventh Amendment required dismissal
of Luceus’s claims against the State under Rhode Island’s Fair
Employment Practices Act and Rhode Island’s Civil Rights Act. Id.
at *5. On January 23, 2017, Judge Mary M. Lisi accepted Magistrate
Almond’s Report and Recommendation in its entirety, leaving the
three live claims in Luceus’s SAC discussed here. Luceus, 2017 WL
318646, at *1. Upon Judge Lisi’s retirement, the case was assigned
to Judge John J. McConnell, Jr., who held a hearing on Defendants’
summary judgment motion on October 2, 2017. Subsequently, on
October 10, 2017, Judge McConnell recused himself, and the case
was reassigned to the undersigned. (Order of Recusal, ECF No. 70.)
11

presence of a trialworthy issue.” Trading Triangle Co. v. Robroy
Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (alteration and
quotation marks omitted). In other words, “the nonmovant may defeat
a summary judgment motion by demonstrating, through submissions of
evidentiary quality, that a trialworthy issue persists.” CordiAllen v. Conlon, 494 F.3d 245, 250 (1st Cir. 2007) (alteration and
quotation marks omitted). But “if the proffer . . . is merely
colorable, or is not significantly probative, summary judgment may
be granted.” Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 8 (1st
Cir. 2004) (quotation marks omitted).
B.

Disparate Impact

Title VII forbids employers from engaging in “‘employment
practices that cause [] a disparate impact on the basis of race’
unless those practices are justified by business necessity.” Jones
v. City of Boston, 752 F.3d 38, 46 (1st Cir. 2014) (quoting 42
U.S.C. § 2000e-2(k)). The purpose of a disparate impact claim is
to target unnecessary employment practices – such as those utilized
to make hiring and promotional decisions – that are neutral in
theory but discriminatory in practice. See Prescott v. Higgins,
538 F.3d 32, 41 (1st Cir. 2008); E.E.O.C. v. S.S. Clerks Union,
Local 1066 (Steamship Clerks), 48 F.3d 594, 601 (1st Cir. 1995)
(“Discrimination may . . . result from otherwise neutral policies
and practices that, when actuated in real-life settings, operate
to the distinct disadvantage of certain classes of individuals.”).
12

A plaintiff bears the burden of getting her disparate impact
claim off the ground. She does so by making out a prima facie case,
which consists of “showing that an employer uses ‘a particular
employment practice that causes a disparate impact on the basis of
race, color, religion, sex, or national origin.’” Abril-Rivera v.
Johnson, 806 F.3d 599, 606 (1st Cir. 2015) (quoting Ricci v.
DeStefano, 557 U.S. 557, 578 (2009)). The gravamen of a plaintiff’s
prima facie case is very often statistical analysis evincing a
significant disparity between the outcomes – resulting from a
particular employment practice – for protected and unprotected
classes. Indeed, as the First Circuit noted in Jones, “The Supreme
Court

has

most

recently

described

a

prima

facie

showing

of

disparate impact as ‘essentially[,] a threshold showing of a
significant statistical disparity . . . and nothing more.’” 752
F.3d at 46 (quoting Ricci, 557 U.S. at 587); accord Tex. Dep’t of
Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.
Ct. 2507, 2523 (2015) (“A plaintiff who fails to . . . produce
statistical evidence demonstrating a causal connection cannot make
out a prima facie case of disparate impact.”); Watson v. Fort Worth
Bank & Tr., 487 U.S. 977, 994 (1988) (finding that, in order to
prove a prima-facie case, “the plaintiff must offer statistical
evidence of a kind and degree sufficient to show that the practice
in question has caused the exclusion of applicants for jobs or

13

promotions because of their membership in a protected group.”
(emphasis added)).
The

human

intuition.

brain

Daniel

is

not

Kahneman,

wired

Thinking

for

reliable

Fast

&

Slow

statistical
5,

13

(1st

paperback ed. 2013) (“We easily think associatively, we think
metaphorically, we think causally,” but “[e]ven statisticians are
not

good

intuitive

therefore

required

statistical

statisticians.”).

Statistical

to

avoid

inferences

help
from

courts
raw

data.

See

analysis

making
Fudge

v.

is

incorrect
City

of

Providence Fire Dep’t, 766 F.2d 650, 658 (1st Cir. 1985) (requiring
statistical tests in disparate impact cases to prevent “wholly
intuitive response” to data); Meditz v. City of Newark, 658 F.3d
364, 374 & n.17 (3d Cir. 2011) (noting that proper statistical
analysis necessitated “calculation of the standard deviation[,]
. . . rather than a subjective view of . . . relative percentages”).
Statistics are particularly important in disparate impact cases to
rule out – or at least substantially diminish – the possibility
that an observable difference between protected and unprotected
classes flowing from an employment practice are due simply to
chance. See Fudge, 766 F.2d at 657 (“Where the use of employment
tests results in differential pass rates for blacks and whites,
even an apparently substantial differential, the discrepancy may
be due to chance.”). Indeed, the First Circuit in Fudge overturned
a disparate impact finding because even though a disparity existed
14

in the data, statistical analysis clearly revealed that “the role
of chance as an explanation [for the observed discrepancy] [was]
far too high.” Id. at 658-59.
There are cases, to be sure, where courts have excused a
plaintiff’s failure to provide statistical analysis. But these are
few, far between, and only where the raw numbers evince the most
egregious disparities. See, e.g., Steamship Clerks, 48 F.3d at
606; Stout v. Baxter Healthcare Corp., 282 F.3d 856, 861 (5th Cir.
2002) (“In certain situations a Title VII plaintiff is relieved of
a burden they would ordinarily bear: the production of statistical
evidence comparing the effects of a challenged policy on protected
and unprotected groups of employees.”). In Steamship Clerks, the
First

Circuit

upheld

a

finding

that

the

Equal

Employment

Opportunity Commission had made out a prima facie case of disparate
impact discrimination despite the Commission’s failure to perform
a statistical analysis of the data. 48 F.3d at 606. This was a
case,

however,

where

the

challenged

employment

practice

had

resulted in no minority union hires in six years. Id. at 605. Given
this “unique factual mosaic,” the unanalyzed data – or as the court
put it, “the unvarnished reality of the situation” – contained
such “logical force” as to make the district court’s conclusion
that plaintiff had carried its initial burden “irresistible.” Id.;
see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 153-54
(2d Cir. 2012) (showing of statistical significance unnecessary
15

where

“no

Asian

Americans

were

promoted

during

the

relevant

period”).
The factual mosaic presented in this case is not compelling
enough to make up for Luceus’s lack of statistical analysis. Unlike
in Steamship Clerks, where plaintiff provided data showing six
years of zero successful minority applicants, the data here show
that there were minorities in management at the Call Center and on
the Consortium Project. (Defs.’ Mot., Ex. J, 1; Defs.’ Mot., Ex.
K, 1.) There are, of course, differences in the number of white
and minority employees in DLT management, but Luceus has made no
effort

to

show

that

these

differences

are

statistically

significant – that is, that they are unlikely to be the result of
chance, but rather suggestive of discrimination. She has not, for
example, provided basic statistical computations such as standard
deviation. 4 See Jones, 752 F.3d at 43-44 (“In disparate impact
cases, standard deviation serves as another way of measuring the
amount by which the observed disparity in outcomes differs from
the average expected result given equal opportunity . . . .”). Nor
has she offered any expert testimony to interpret the data. See
Frazier v. Consol. Rail Corp., 851 F.2d 1447, 1452-53 (D.C. Cir.
1988)

(“Statistical

calculations

4

performed

on

data

in

1.96 standard deviations is the threshold for statistical
significance “commonly used by social scientists [and m]ost
federal courts.” Jones, 752 F.3d at 46-47 & n.9 (collecting cases).
16

discrimination cases are not probative of anything without support
from an underlying statistical theory” that makes them “meaningful
to the finder of fact” thereby “permit[ting] the plaintiffs to
carry

their

burden

of

showing

that

their

statistics

are

significant.”).
Another

fundamental

problem

with

Luceus’s

statistical

evidence is that it does not indicate how many minority union
employees were eligible for promotions, instead assuming that all
were eligible. Cf. Chin, 685 F.3d at 152 (“In the typical disparate
impact case the proper population for analysis is the applicant
pool or the eligible labor pool.”); Frazier, 851 F.2d at 1454
(affirming dismissal of disparate impact claim where plaintiff’s
statistical evidence provided “no basis . . . for comparison
between the number of blacks who were eligible for promotion at
any given time with the number of blacks actually promoted at that
time”). But the undisputed evidence is that management positions
required a skill set unlikely to be found at the lower reaches of
the

union

credentials

totem
set

pole;
her

indeed,

apart

Luceus’s

from

her

argument

colleagues

is

that

her

and

made

her

especially suited for promotion. See Hazelwood Sch. Dist. v. United
States, 433 U.S. 299, 308 n.13 (1977) (“When special qualifications
are required to fill particular jobs, comparisons to the general
population (rather than to the smaller group of individuals who

17

possess the necessary qualifications) may have little probative
value.”).
Thus, without the number of management-ready minority and
white union members, the Court is left without the data necessary
to make a determination as to the overall effect of the Call
Center’s employment practices – much less a determination that any
such effect was statistically significant. See Bennett v. Nucor
Corp.,

656

F.3d

802,

817-18

(8th

Cir.

2011)

(“[P]laintiffs’

statistical evidence was inadequate to create a genuine issue of
material fact . . . [where] plaintiffs failed to show that their
statistical ‘applicant pools’ contained only individuals who were
at

least

minimally

qualified

for

the

promotions

in

question

. . . .”); Mallory v. Booth Refrigeration Supply Co., 882 F.2d
908, 912 (4th Cir. 1989) (finding

evidence of minority employment

in supervisory and clerical positions insufficient where that
evidence “d[id] not disclose how many employees in the pool were
qualified to become supervisors”).
The foregoing defects of Luceus’s evidence compels the Court
to grant Defendants summary judgment on her disparate impact claim.
C.

Disparate Treatment

In addition to prohibiting unjustified employment practices
that disparately impact a protected class, Title VII also “forbids
. . . ‘overt discrimination’ in the form of disparate treatment.”
Steamship Clerks, 48 F.3d at 600 (quoting Griggs v. Duke Power
18

Co., 401 U.S. 424, 431 (1971)). Where, as here, the plaintiff has
not offered direct proof of defendants’ discriminatory animus,
courts rely on the burden-shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
Under this framework, plaintiffs bear the initial burden to
establish a prima face case of discrimination. 5 Udo v. Tomes, 54
F.3d 9, 12 (1st Cir. 1995). Once the plaintiff establishes her
prima facie case, the burden shifts to the defendant to produce
evidence that shows “a legitimate, nondiscriminatory justification
for the adverse employment action.” Ray, 799 F.3d at 113. If the
defendant produces such evidence, the burden of production returns
to

the

plaintiff,

who

must

show

that

the

defendant’s

stated

justification for the adverse employment action was mere pretext.
Udo, 54 F.3d at 12-13. Plaintiff’s evidence on this score “must be
sufficient for a reasonable factfinder to infer that the employer’s
decision was motivated by discriminatory animus.” Id. at 13.
The Court need not conduct a seriatim analysis of Luceus’s
disparate treatment claim: even assuming she has made out a prima
facie

case,

the

Defendants

have

5

produced

evidence

that

the

In racial-discrimination cases where the alleged adverseemployment action consisted of a failure to promote, the
plaintiff’s prima facie case involves showing that “(1) [s]he is
a member of a protected class; (2) [s]he was qualified for the
job; (3) the employer took an adverse employment action against
h[er]; and (4) the position remained open or was filled by a person
with similar qualifications.” Ray v. Ropes & Gray LLP, 799 F.3d 99
(1st Cir. 2015) (quotation marks omitted).
19

Department’s

failure

to

promote

Luceus

was

based

on

nondiscriminatory reasons, and Luceus has failed to counter with
any evidence that these reasons were mere pretext. See Cham v.
Station Operators, Inc., 685 F.3d 87, 95-96 (1st Cir. 2012) (“We
may bypass the prima facie case issue because it is clear that
plaintiff has not mustered enough evidence for a reasonable jury
to conclude that the defendant’s stated reason for the employment
action was pretextual.” (alteration and quotation marks omitted)).
There is evidence in the record to support the Department’s
contention that the reason it did not promote Luceus was because
of her disruptive workplace behavior. For example, Rose Lemoine (a
former manager at DLT) testified that, within two years of Luceus’s
tenure at the Department, she engaged in an altercation with a coworker that required the two be physically separated. (DSUF 2122.) According to the Department, Luceus also has a history of
returning late from work breaks, refusing to collaborate with her
coworkers, and posting signs in her cubicle to provoke management.
(Id. at 21-39.)
In response, Luceus has not introduced sufficient evidence
that

would

allow

a

reasonable

factfinder

to

find

that

the

Department’s “articulated reason [for not promoting her] was a
pretext for discrimination.” Udo, 54 F.3d at 13; see also Ray, 799
F.3d at 113 (“[Employee] must elucidate specific facts which would
enable a jury to find that the reason given is not only a sham,
20

but a sham intended to cover up the employer’s real and unlawful
motive of discrimination.” (quotation marks omitted)). Rather,
Luceus relies on evidence that she was qualified to be a manager
and yet was skipped over when it came to promotions, the same
evidence that would meet her prima facie burden. (Pl.’s Obj. 5859.) She also reasserts the statistical evidence she used to
bolster her disparate impact claim. (Id.)
This is simply not enough to raise a triable issue of fact as
to pretext. For starters, Luceus has not provided evidence that
those promoted over her were “similarly situated to her in all
relevant respects.” Ray, 799 F.3d at 114 (“[W]hile [a] plaintiff’s
case and the comparison cases that he advances need not be perfect
replicas, they must closely resemble one another in respect to
relevant facts and circumstances.” (quotation marks omitted)). She
maintains that DiChiro-Bogan, Alvarado, and Bliss-Wohlers, among
others, were similarly situated in that, prior to their promotions,
they, like Luceus, lacked management experience. (Pl’s. Obj. 1718, 20.) However, Luceus has not pointed to someone promoted in
her stead that had, for example, a comparable history of workplace
recalcitrance. See Ray, 799 F.3d at 114-15 (finding plaintiff’s
comparison cases furnished “too little similarity . . . to furnish
a basis for suspecting racial discrimination,” where negative
comments about plaintiff’s workplace behavior “were distinctively

21

more extreme, and more numerous, than those contained in the
evaluations of any of the comparators he offered.”).
Her numbers, furthermore, do even less here than they did in
the disparate impact context. As the First Circuit observed in
Ray,

“[S]tatistical

evidence

of

a

company’s

general

hiring

patterns, although relevant, carries less probative weight, and in
and of itself, rarely suffices to rebut an employer’s legitimate,
nondiscriminatory rationale for its decision.” 799 F.3d at 116
(quotation

marks

omitted);

see

also

Gay

v.

Waiters’

&

Dairy

Lunchmen’s Union, Local No. 30, 694 F.2d 531, 552 (9th Cir. 1982)
(“It must always be remembered that regardless of how devastating
or reliable the statistics may look, the issue remains in disparate
treatment cases whether a particular isolated historical event was
discriminatory.” (alterations and quotation marks omitted)).
In short, the Court finds that, even when the facts are viewed
in her favor, Luceus has introduced at most de minimis evidence
showing pretext, which is “insufficient for a rational factfinder
to

infer

that

[the

Department]’s

actions

were

based

not

on

[Luceus’s] perceived failings, but on discriminatory animus.” Ray,
799 F.3d at 117 (quotation marks omitted). Accordingly, the Court
will grant the Defendants’ summary judgment motion as to this
claim. And because Luceus has not adduced sufficient evidence of
intentional discrimination, her claims under 42 U.S.C. § 1981

22

necessarily fail, too. See Alexis v. McDonald’s Rests. of Mass.,
Inc., 67 F.3d 341, 346-47 (1st Cir. 1995).
D.

Retaliation

Luceus’s remaining claim is one for retaliation under the
Civil Rights Act of 1866. Her contention is that the Department
punished her for complaining about its allegedly discriminatory
practices to the Rhode Island Commission for Human Rights. (Pl.’s
Obj. 59-62.) Among the alleged retaliatory acts were those by
members of Department management “disrespecting, marginalizing[,]
and ostracizing Plaintiff”. (SAC 15.) For example, Luceus alleges
that management ordered that Luceus’s movements at work, including
to and from the bathroom, be monitored by another employee. (Id.
at 13.)
Her retaliation claim is a nonstarter, whatever truth there
is to these allegations: the Civil Rights Act of 1866 codified an
old version of 42 U.S.C. § 1981 that the Supreme Court ruled “d[id]
not

apply

to

conduct

which

occurs

after

the

formation

of

a

contract.” Patterson v. McLean Credit Union, 491 U.S. 164, 171
(1989), superseded by statute, Civil Rights Act of 1991, Pub. L.
No. 102-166, 105 Stat. 1071, as recognized in CBOCS W., Inc. v.
Humphries, 553 U.S. 442, 449-51 (2008). Therefore, even if the old
version of § 1981 were still operative, it would not provide a
basis for Luceus’s retaliation claim.

23

Moreover, the current version of § 1981 – a result of the
Civil Rights Act of 1991 – similarly lacks a toehold for Luceus.
See Buntin v. City of Boston, 857 F.3d 69, 70, 71 (1st Cir. 2017).
The First Circuit recently held that even though the 1991 Act
overruled Patterson, it did not do the same to Jett v. Dall. Indep.
Sch. Dist., where the Court held “that § 1981 does not provide an
implied

private

right

of

action

for

damages

against

[state

government] officials and that ‘the express cause of action for
damages created by [42 U.S.C.] § 1983 constitutes the exclusive
federal remedy for violation of the rights guaranteed in § 1981 by
state governmental units.’” Buntin, 857 F.3d at 70, 71 (quoting
491 U.S. 701, 733 (1989)).
This dooms Luceus’s retaliation claim. At an earlier stage of
this litigation, the Court struck from her SAC “any claim for
relief brought under Section 1983.” See Luceus, 2016 WL 7971311,
at *3, adopted by 2017 WL 318646, at *1. And without § 1983, any
right Luceus may have under § 1981 is without a remedy. See
Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384 (1918) (“The
distinction between rights and remedies is fundamental. A right is
a well founded or acknowledged claim; a remedy is the means
employed to enforce a right or redress an injury.”). Therefore,
like soup served with a fork, Luceus’s retaliation claim is unable
to reach its intended destination. See Buntin, 857 F.3d 69, 75
(holding that “§ 1983 remains ‘the exclusive federal damages
24

remedy’ for § 1981 violations by state actors,” and affirming
summary judgment against employee on her § 1981 retaliation claim
(quoting Jett, U.S. at 735)).
III. Conclusion
The Court is, of course, troubled by the sworn testimony in
this case describing the Department’s hiring practices as shot
through with nepotism and racism. Insofar as these averments are
credible, DLT management would be well-served to investigate. But
whatever

their

deficiencies

of

merit,

the

Luceus’s

Court

cannot

evidence,

and

overlook
therefore

Defendants’ Motion for Summary Judgment (ECF No. 50).
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: March 30, 2018

25

the

fatal

must

GRANT