Reynolds v. Barrett, No. 10-4208 (2d Cir. 2012)
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In 1986, minority inmates commenced a class action, alleging racial discrimination in housing, job assignment, and discipline. The trial judge found a “pattern of racism” and, in 1993, issued a decision requiring that the percentage of minority inmates in “preferred” jobs, including jobs in the print shop, correspond to the percentage of minority inmates in the general prison population. In 1999, plaintiffs, inmates formerly employed in the print shop, filed complaints alleging racial discrimination by civilian supervisors and prison administrators. After four years of discovery, plaintiffs sought to file an amended class action complaint. In addition to claims under 42 U.S.C. 1981, 1983, 1985, and 1986, the complaint claimed violations of the earlier order, and the state Human Rights Law and constitution. Plaintiffs contended that the pattern-or-practice method of proof used in Title VII class actions could be employed against individual defendants. The court denied class certification and leave to amend and analyzed plaintiffs’ individual complaints under the McDonnell Douglas burden-shifting framework generally employed in assessing individual disparate treatment claims under Title VI and granted defendants summary judgment on individual claims. The Second Circuit affirmed; the pattern-or-practice framework is ill-suited to establish liability of individual defendants named in the proposed amended complaint.
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10-4208-pr; 10-4235-pr Reynolds v. Barrett; Gould v. Chamberlin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 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. 2 1 2 3 4 5 6 7 8 9 10 11 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. 27 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 1 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. 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 21 civilian Industrial Training Supervisors. 22 Training Supervisors reported to a general foreman, who in 4 The Industrial 1 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 1 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. 15 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 18 for the plaintiffs in all four actions. 19 consolidate the actions and file an amended complaint. 20 Finding the proposed amended complaint deficient because it 21 lacked detail as to the nature of each plaintiff s claims 22 against each defendant, a magistrate judge directed 6 Counsel moved to 1 plaintiffs to file a more detailed amended complaint by 2 December 17, 2001. 3 consolidate the actions for the purpose of conducting 4 discovery. 5 prejudice if plaintiffs filed an amended complaint after 6 discovery was completed. 7 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 9 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 18 1986, the complaint claimed violations of Judge Larimer s 19 order in Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y. 20 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 1 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. 8 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 11 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 16 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 20 shop on account of his race. 21 injunctive relief and monetary damages. JA Similarly, the complaint stated that Gould was denied a The plaintiffs sought both 22 8 1 In support of their motion to amend, plaintiffs 2 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 7 than minority inmates. 8 his study suggested that there [was] a strong bias against 9 non-white inmates working [in] the Elmira prison print shop 10 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 17 complaints on October 29, 2008. 18 motion and moved to certify the class action. 19 After an Plaintiffs opposed the Plaintiffs argued that in the event leave to file an 20 amended class action complaint was granted and a class 21 certified, the motion for summary judgment against their 22 individual complaints would be irrelevant. 9 They contended 1 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 1 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 1 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 1 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 1 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 1 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 1 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 1 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 1 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 1 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 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 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 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 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 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 24 1 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 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 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. 27 1 2 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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