Erika D. Luceus v. State of Rhode Island; Rhode Island Department of Labor and Training

United States Court of Appeals
For the First Circuit
No. 18-1377
ERIKA D. LUCEUS,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND; RHODE ISLAND DEPARTMENT OF
LABOR AND TRAINING,
Defendants, Appellees,
ROBERT LANGLAIS; KATHY CATANZARO; ROSE LEMOINE;
JESSICA JOHNSON; JASON BLISS WOHLERS,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,
and Lipez, Circuit Judge.
Casby Harrison, III for appellant.
Katherine Connolly Sadeck, Special Assistant Attorney
General, with whom Michael W. Field, Assistant Attorney General,
was on brief, for appellees.
 Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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May 8, 2019

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SOUTER, Associate Justice. Erika Luceus, an employee of
the call center of the Rhode Island Department of Labor and
Training, sued the Department and the State of Rhode Island for
discrimination in violation of Title VII of the Civil Rights Act
of 1964. See 42 U.S.C. § 2000e-2. Luceus claimed that the
Department's promotion practices have a disparate impact on
minority employees, and that the Department has declined to promote
her because she is black. The District Court granted summary
judgment to the defendants, from which Luceus appeals. We affirm.
I
Summary judgment is warranted if "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). We review
the District Court's grant of summary judgment de novo. Jones v.
City of Boston, 752 F.3d 38, 46 (1st Cir. 2014).
A
We begin with Luceus's claim of disparate impact. Title
VII bars the use of facially neutral "'employment practices that
cause[] a disparate impact on the basis of race' unless those
practices are justified by business necessity." Id. (quoting 42
U.S.C. § 2000e-2(k)). Luceus alleges that the Department's use of
"three-day-rule assignments" as a first step leading to promotion
of lower-level employees at the call center has a disparate impact
on minority employees. A three-day-rule assignment is a temporary

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appointment made by the Department to fill a vacant position. 1 The
Department, however, sometimes makes such appointments permanent.
Luceus alleges that three-day-rule assignments are awarded more
often to white employees than minority employees, and that white
employees thus are more likely to receive permanent promotions.
The record shows that between 2009 and September 2014 (when she
first complained to the Department's human resources office), only
one minority employee received a three-day-rule assignment, as
compared with seven white employees. Luceus also provides
affidavits from eight coworkers who attest that minority employees
are less likely to receive three-day-rule assignments.
This evidence, however, is not enough by itself to make
a prima facie showing of disparate impact. Except in unusual cases
of overwhelming evidence, intuition is not to be trusted, and in
order to reach the required prima facie threshold a plaintiff
ordinarily must demonstrate that there is "a significant
statistical disparity" between the employment outcomes for white
and non-white employees. Ricci v. DeStefano, 557 U.S. 557, 587
(2009). To be sure, "the absence of such analyses, by itself,
does not automatically doom the plaintiff's efforts." EEOC v.
1 The term "three-day-rule assignment" derives from a
provision in the relevant State collective-bargaining agreement
that requires a union employee to be paid the amount associated
with a temporarily assigned position if the employee stays in the
position for at least three days. Luceus v. Rhode Island, No. 15-
cv-489, 2018 WL 1626263, at *1 (D.R.I. Mar. 30, 2018).

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Steamship Clerks Union, Local 1066, 48 F.3d 594, 606 (1st Cir.
1995). Statistical analysis may not be necessary in a case with
a "singularly compelling factual context," in which "the logical
force of the conclusion that the numbers suggest" is obvious. Id.
at 604-605. But the data provided by Luceus do not bespeak such
an exceptional case. This is the usual case, in which evidence of
a statistical character is needed to show that any disparities are
"unlikely to have occurred by chance." Fudge v. City of Providence
Fire Dep't, 766 F.2d 650, 658 (1st Cir. 1985)
Here, Luceus has failed to demonstrate "a significant
statistical disparity" on the basis of race. Ricci, 557 U.S. at
587. She has not presented any expert testimony or statistical
computations demonstrating that the alleged disparities in three-
day-rule assignments did not "occur[] by chance." Fudge, 766 F.2d
at 658. Indeed, she has not even presented reliable data on which
a statistical conclusion would rest, because she has not
established the racial composition of the pools of employees
eligible for three-day-rule assignments in the instances she
cites. Hence, the District Court explained that the record does
not indicate "the number of management-ready minority and white
union members" at the call center where Luceus works. Luceus v.
Rhode Island, No. 15-cv-489, 2018 WL 1626263, at *7 (D.R.I. Mar.
30, 2018). This "fail[ure] to provide important information
regarding the pool of applicants" is a critical "flaw[] in the

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statistical evidence." See LeBlanc v. Great Am. Ins. Co., 6 F.3d
836, 848 (1st Cir. 1993).
Although this deficiency alone would doom the disparate
impact claim, the defendants offered evidence that the racial
disparities alleged by Luceus were not statistically significant.
Using the data she provided, they presented expert analysis
demonstrating that there was "no statistically significant
evidence of a disparate impact" stemming from the three-day-rule
assignments that were the subject of Luceus's complaint. Affidavit
of Dr. Craig Lawson Moore ¶¶ 47-49. Luceus offers no comparable
rebuttal of this analysis.
In sum, based on the record, we conclude that this is
not a case in which Luceus can show a disparate impact in the
absence of statistical and statistically significant evidence.
Cf. Steamship Clerks, 48 F.3d at 606. Because she has failed to
provide such evidence, the District Court correctly granted
summary judgment to the defendants on her claim of disparate
impact.
B
Luceus also raises a claim of disparate treatment in
violation of the Title VII bar against employers "treat[ing] some
people less favorably than others because of their race." Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977);
see 42 U.S.C. § 2000e-2(a). Luceus argues that the Department's

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decision not to promote her was motivated by discriminatory racial
animus.
Because Luceus has not provided direct proof of
discriminatory animus, the burden-shifting sequence set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973),
applies. At the outset, Luceus must establish a prima facie case
by showing that (1) she is "a member of a protected class"; (2) she
is "qualified" for the job she seeks; (3) she has "suffer[ed] an
adverse employment action at the hands of her employer"; and (4)
there is "some evidence of a causal connection between her
membership in a protected class and the adverse employment action."
Bhatti v. Trustees of Boston U., 659 F.3d 64, 70 (1st Cir. 2011).
Once she has established a prima facie case, the burden of
production shifts to the defendants, who "must establish a
legitimate, nondiscriminatory justification for the adverse
employment action." Ray v. Ropes & Gray LLP, 799 F.3d 99, 113
(1st Cir. 2015). If the defendants meet their burden on that
issue, they are entitled to summary judgment unless Luceus
"raise[s] a genuine issue of material fact that 'the reasons
offered by [the defendants] were a pretext for discrimination.'"
Id. (quoting Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st
Cir. 2012)).
Like the District Court, however, "[w]e may 'bypass the
prima facie case issue.'" Cham, 685 F.3d at 95 (quoting Freadman

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v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st Cir. 2007));
see Luceus, 2018 WL 1626263, at *7. Assuming without deciding
that Luceus has established a prima facie case of disparate
treatment, it is nonetheless clear that she "'has not mustered
enough evidence for a reasonable jury to conclude that [the
defendants'] stated reason'" for failing to promote her "was
pretextual." Cham, 685 F.3d at 95-96 (quoting Freadman, 484 F.3d
at 100).
The Department's stated justification for declining to
promote Luceus was her disruptive conduct in the workplace: it
presented evidence that she was involved in an altercation with a
coworker in which the two had to be physically separated, and that
she had "a history of returning late from work breaks, refusing to
collaborate with her coworkers, and posting signs in her cubicle
to provoke management." Luceus, 2018 WL 1626263, at *7. Luceus
does not offer enough evidence to rebut that legitimate,
nondiscriminatory justification. She does not dispute most of the
Department's allegations of disruptive conduct and, indeed,
explicitly acknowledges the truth of several of them. Defendants'
Statement of Undisputed Facts ¶¶ 184-194, 202-218. She also fails
to identify other, white employees "similarly situated" to her "in
all relevant respects" who were "treated differently by the
employer," as might permit a jury to find that the employer's
reason was pretextual. Ray, 799 F.3d at 114 (quoting Kosereis v.

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Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003)); see Luceus, 2018
WL 1626263, at *8 (explaining that Luceus "has not pointed to
someone promoted in her stead that had, for example, a comparable
history of workplace recalcitrance").
The primary evidence Luceus offers to counter the
defendants' stated justification is the data she offers to support
her disparate impact claim. But "the central focus" of a disparate
treatment claim is "'less whether a pattern of discrimination
existed and more how a particular individual was treated, and
why.'" Ray, 799 F.3d at 116 (quoting LeBlanc, 6 F.3d at 848).
For that reason, "'statistical evidence of a company's general
hiring patterns, although relevant, carries less probative
weight'" in a disparate treatment claim, "and 'in and of itself[]
rarely suffices to rebut an employer's legitimate,
nondiscriminatory rationale for its decision.'" Id. (quoting
LeBlanc, 6 F.3d at 848). Nor is there any basis in the record to
treat this case as exceptional, not when Luceus has failed to deny
most of the charges of workplace misbehavior and has failed to
support the disparate impact claim itself. Summary judgment to
the defendants on this claim was soundly granted.
II
Before us, Luceus also raises a variety of claims based
on Rhode Island law. She says that the Department has violated
the State’s equal opportunity laws, and that three-day-rule

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assignments likewise violate State law. See Appellant Br. 31-34,
41-51.
Luceus's notice of appeal, however, specified that she
was appealing only the District Court's judgment with respect to
the Title VII disparate impact and disparate treatment claims.
That limitation is fatal to the issues she now wishes to raise
under Rhode Island law. The general rule is that when "an
appellant . . . chooses to designate specific determinations in
[her] notice of appeal—rather than simply appealing from the entire
judgment—only the specified issues may be raised on appeal."
Constructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co. of
Puerto Rico, 467 F.3d 38, 43 (1st Cir. 2006) (quoting United States
v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir.
1999)). Luceus identifies no reason for departing from that rule
here.
III
We affirm the District Court's grant of summary judgment
to the defendants on Luceus's claims of disparate impact and
disparate treatment under Title VII.

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