10-4208-pr; 10-4235-pr Reynolds v. Barrett

10-4208-pr; 10-4235-pr
Reynolds v. Barrett; Gould v. Chamberlin
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Argued: December 6, 2011 Decided: July 11, 2012) 10
11
Docket Nos. 10-4208-pr; 10-4235-pr 12
13
14
JERRY REYNOLDS, 15
16
Plaintiff-Appellant, 17
18
–v.– 19
20
DAVE BARRETT, Industrial Superintendent of Elmira 21
Correctional Facility, LARRY POCCOBELLO, Assistant 22
Industrial Superintendent of Elmira, JACK RATHBUN, General 23
Foreman of Elmira Print Industry, TERRY CHAMBERLAIN, 24
Industrial Training Supervisor of Elmira Print Industry, 25
FLOYD BENNETT, Superintendent of Elmira Correctional and 26
Reception Center, GEORGE SARNO, Industrial Training 27
Supervisor of Elmira Print Industry, JANET KENT, Industrial 28
Training Supervisor of Elmira Print Industry, DANA M. SMITH, 29
Deputy Superintendent of Elmira, JAMES P. THOMPSON, Senior 30
Correction Counselor of Elmira, JOHN CONROY, Director of 31
Correctional Industry, Individually and in their official 32
capacities, 33
34
Defendants-Appellees. 35
36
37
38
KHALIB GOULD, 39
40
Plaintiff-Appellant, 41
42
–v.– 43
44
45

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*The Clerk of the Court is respectfully directed to amend the official
captions to conform to the above.
2
TERRY CHAMBERLAIN, Industry Training Supervisor, LARRY 1
POCOBELLO, Industry Assistant Superintendent, DAVE BARRETT, 2
Industry Superintendent, JACK RATHBIN, Industry Foreman, 3
JANICE KENT, Industry Training Supervisor, FLOYD BENNETT, 4
Elmira Correctional Facility's Superintendent, 5
6
Defendants-Appellees. *
7
8
9
10
11
Before: 12
McLaughlin, Cabranes, and Wesley, Circuit Judges. 13
14
Appeal from an order of the United States District 15
Court for the Western District of New York (Larimer, J.), 16
entered on October 4, 2010, granting summary judgment to 17
defendants-appellees on plaintiffs-appellants’ individual 18
claims of racial discrimination, denying plaintiffs’ motion 19
for class certification, and denying plaintiffs’ motion for 20
leave to amend their complaints. Plaintiffs-appellants’ 21
primary contention on appeal is that the district court 22
should have assessed the proposed amended class action 23
complaint, which alleged claims for intentional 24
discrimination against individual state officials, under the 25
disparate-impact theory of liability and the pattern-or- 26
practice evidentiary framework used in Title VII actions. 27
Disparate impact liability is unavailable because the 28
statutes on which they base their claims require intentional 29
discrimination. Further, the pattern-or-practice framework 30
is ill-suited to establish the liability of the individual 31
state officials named as defendants. 32
33
AFFIRMED. 34
35
36
37
GUY A. TALIA, Thomas & Solomon LLP, Rochester, NY 38
(J. Nelson Thomas, on the brief), for 39
Plaintiffs-Appellants. 40
41

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3
ANDREW B. AYERS, Assistant Solicitor General 1
(Barbara D. Underwood, Solicitor General, 2
Andrea Oser, Deputy Solicitor General, on the 3
brief), for Eric T. Schneiderman, Attorney 4
General of the State of New York, Albany, NY 5
for Defendants-Appellees. 6
7
8
9
WESLEY, Circuit Judge: 10
Plaintiffs primary argument on appeal presents a 11
question of first impression in our circuit: whether 12
recourse to the pattern-or-practice evidentiary framework is 13
appropriate in a suit against individual state officials 14
brought pursuant to 42 U.S.C. § 1983 for intentional 15
discrimination. 16
I. BACKGROUND 17
This case has as a backdrop prior litigation involving 18
claims of racial discrimination at Elmira Correctional 19
Facility (“Elmira”), a state maximum-security prison in 20
Elmira, New York. See Santiago v. Miles, 774 F. Supp. 775, 21
782-88 (W.D.N.Y. 1991). In 1986, black and Hispanic 22
(jointly, “minority”) inmates at Elmira commenced a class 23
action for injunctive relief, alleging widespread racial 24
discrimination at the facility in housing, job assignment, 25
and the imposition of discipline. Id. at 777. After a 26
bench trial, Judge Larimer found that the plaintiffs had 27

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4
proven a “pattern of racism” at Elmira. Id. On April 13, 1
1993, Judge Larimer issued a decision requiring, among other 2
things, that the percentage of black and Hispanic inmates in 3
certain “preferred” jobs, including jobs in the Elmira print 4
shop, correspond to the percentage of black and Hispanic 5
inmates in the general prison population. 6
At the time the suits here were filed, inmates employed 7
in the Elmira print shop were paid an hourly wage, which 8
ranged from sixteen cents to sixty-five cents per hour 9
depending on the inmate’s experience and expertise. In 10
addition, inmates were eligible to receive an “incentive 11
bonus” as a reward for good work. Civilian supervisors 12
determined, in their discretion, whether a particular inmate 13
merited promotion and higher pay. Similarly, these 14
supervisors could recommend to the Elmira Program 15
Committee–the entity tasked with assigning and removing 16
inmates from various prison programs–that inmates be 17
terminated from employment in the print shop. As a general 18
matter, an inmate would be removed upon two requests. 19
In the print shop, inmates were directly supervised by 20
civilian “Industrial Training Supervisors.” The Industrial 21
Training Supervisors reported to a general foreman, who in 22

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5
turn reported to an Assistant Industrial Superintendent and 1
the Industrial Superintendent. The Industrial 2
Superintendent answered to Elmira’s Superintendent, among 3
other officials. 4
In 1999, plaintiffs-appellants Jerry Reynolds and 5
Khalib Gould (jointly, “plaintiffs”), inmates formerly 6
employed in the Elmira print shop, filed pro se complaints 7
alleging racial discrimination by civilian supervisors and 8
prison administrators. Two other Elmira inmates, Anthony 9
Mack and Joseph Ponder, commenced similar pro se actions in 10
2000. 11
Reynolds’s pro se complaint asserted claims pursuant to 12
42 U.S.C. §§ 1981, 1983, 1985, and 1986 against Floyd 13
Bennett, Elmira’s Superintendent; David Barrett, Elmira’s 14
Industrial Superintendent; Dana Smith, Elmira’s First Deputy 15
Superintendent; Larry Pocobello, the Assistant Industrial 16
Superintendent; Jack Rathbun, the print shop’s general 17
foreman; Terry Chamberlain, George Sarno, and Janice Kent, 18
at the time all Industrial Training Supervisors; James 19
Thompson, the chair of Elmira’s Program Committee; and John 20
Conroy, Director of Correctional Industry (jointly, 21
“defendants”). 22

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6
Reynolds alleged that Barrett, Pocobello, Rathbun, 1
Chamberlain, Sarno, and Kent demoted minority inmates more 2
often than white inmates, confined minority inmates to low- 3
paying positions, and unfairly docked the pay of minority 4
inmates. Reynolds specifically complained about an incident 5
in which Rathbun docked fifty-seven dollars from Reynolds’s 6
pay to reimburse the print shop for a poorly-run print job. 7
Reynolds further alleged that minority inmates employed in 8
the print shop had their pay docked at a much higher rate 9
than white inmate-employees. 10
Gould’s pro se complaint stated, among other things, 11
claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986 12
against Pocobello, Barrett, Rathbun, Chamberlain, Kent, and 13
Bennett. He alleged that they took adverse employment 14
actions against him because of his race and retaliated 15
against him for filing grievances. 16
In November 2000, the district court appointed counsel 17
for the plaintiffs in all four actions. Counsel moved to 18
consolidate the actions and file an amended complaint. 19
Finding the proposed amended complaint deficient because it 20
lacked detail as to the nature of each plaintiff’s claims 21
against each defendant, a magistrate judge directed 22

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7
plaintiffs to file a more detailed amended complaint by 1
December 17, 2001. Instead, the parties agreed to 2
consolidate the actions for the purpose of conducting 3
discovery. They further agreed that no party would suffer 4
prejudice if plaintiffs filed an amended complaint after 5
discovery was completed. The magistrate judge approved the 6
arrangement. 7
After conducting four years of discovery, plaintiffs 8
sought leave to file an amended class action complaint on 9
October 3, 2005. The proposed complaint defined the class 10
as “all non-Caucasian inmates at [Elmira Correctional 11
Facility] who were employed in the Print Shop from 1994 to 12
the present, as well as all non-Caucasian inmates at [Elmira 13
Correctional Facility] who were deterred from working within 14
the Print Shop because of the discriminatory policies and/or 15
practices set forth in this complaint.” JA 64. In addition 16
to claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 17
1986, the complaint claimed violations of Judge Larimer’s 18
order in Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y. 19
1991), the New York State Human Rights Law, the New York 20
State Constitution, and New York Civil Practice Law and Rule 21
§ 8601. 22

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8
The proposed amended class action complaint asserted 1
that racial discrimination was the “standard operating 2
procedure in the Print Shop,” that “incredible statistical 3
disparities” existed between minority and non-minority 4
inmates, and that minority inmates were evaluated more 5
harshly, fired and demoted more often, and paid less than 6
non-minority inmates. The complaint also claimed that the 7
facially neutral subjective evaluation process used by the 8
defendants, which gave them unfettered discretion when 9
making employment decisions, had a disparate impact on 10
minority inmates. 11
The proposed complaint provided several examples of 12
purportedly discriminatory acts taken against plaintiffs. 13
It stated that Reynolds had his bonus docked while white 14
inmates did not, and that he “was issued several reprimands 15
by defendants Chamberlain, Kent and Sarno in accordance with 16
the discriminatory policies and practices in effect.” JA 17
95. Similarly, the complaint stated that Gould was denied a 18
promotion, demoted, and ultimately removed from the print 19
shop on account of his race. The plaintiffs sought both 20
injunctive relief and monetary damages. 21
22

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9
In support of their motion to amend, plaintiffs 1
appended the expert report of statistician Michael J. 2
Guilfoyle, which purported to show, for the period between 3
April 1994 and December 1999, that white inmates had longer 4
average periods of employment in the print shop, were paid 5
more than minority inmates, and were demoted less frequently 6
than minority inmates. In Guilfoyle’s view, the results of 7
his study suggested that “there [was] a strong bias against 8
non-white inmates working [in] the Elmira prison print shop 9
when tenure, rate of pay[,] and demotions are examined.” JA 10
157. 11
On July 1, 2008, with the motion to amend still 12
pending, Judge Larimer ordered the parties to file summary 13
judgment motions no later than August 25, 2008. After an 14
extension of time was granted, defendants filed a summary 15
judgment motion directed at plaintiffs’ original pro se 16
complaints on October 29, 2008. Plaintiffs opposed the 17
motion and moved to certify the class action. 18
Plaintiffs argued that in the event leave to file an 19
amended class action complaint was granted and a class 20
certified, the motion for summary judgment against their 21
individual complaints would be “irrelevant.” They contended 22

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1The 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
that the pattern-or-practice method of proof used in Title 1
VII class actions could be employed in this § 1983 suit 2
against individual defendants. Despite the fact that this 3
Court has never applied the pattern-or-practice framework to 4
hold individual state actors liable for intentional 5
discrimination, plaintiffs did not give the district court 6
the benefit of their reasoning as to why the framework was 7
well-suited to that task. 8
On October 4, 2010, the district court granted summary 9
judgment to defendants on Reynolds’s and Gould’s individual 10
claims, denied the motion for class certification, and 11
denied the motion for leave to amend the complaint. 12
Reynolds v. Barrett, 741 F. Supp. 2d 416 (W.D.N.Y. 2010). 1
13
The district court recognized that “[d]espite the variety of 14
claims asserted, the § 1983 claims lie at the heart of these 15
cases. And though § 1983 provides a vehicle by which to 16
seek redress against state actors for a wide range of 17
constitutional violations, it is plaintiffs’ equal 18
protection claims that form the core of their § 1983 19
claims.” Id. at 425. 20

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11
The district court analyzed plaintiffs’ individual 1
complaints under the McDonnell Douglas burden-shifting 2
framework generally employed in assessing individual claims 3
of disparate treatment under Title VII. Id. at 426-35. The 4
court determined that defendants were entitled to summary 5
judgment on both Reynolds’s and Gould’s individual claims of 6
discrimination. Although the court noted Guilfoyle’s 7
statistical analysis, it concluded that Reynolds had not 8
demonstrated that any adverse action was taken against him 9
on account of his race. Id. at 427-29. Similarly, the 10
court found no evidence from which a factfinder could 11
reasonably conclude that race was a motivating factor in the 12
adverse employment actions taken against Gould. Instead, 13
the court determined that there was abundant evidence that 14
Gould was subject to adverse employment actions “for 15
nondiscriminatory reasons relating to his poor performance.” 16
Id. at 433. 17
Having granted summary judgment on plaintiffs’ 18
individual claims, the district court denied class 19
certification and leave to amend. In particular, the court 20
noted that “[a]t bottom, these cases present issues arising 21
out of discrete acts of alleged discrimination and 22

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2New 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.
3Specifically, 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.
4The 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
retaliation against two particular inmates.” Id. at 444. As 1
such, the court held, among other things, that plaintiffs 2
had not met their burden of demonstrating the existence of 3
questions of law or fact common to the proposed class. Id. 4
The district court then turned to the remaining issues 5
related to plaintiffs’ motion to file an amended complaint. 6
As relevant here, it held that the proposed complaint’s 7
claims under New York law were barred by New York 8
Corrections Law § 24(1). 2 Similarly, it found that the 9
proposed §§ 1981, 1985, and 1986 claims were not viable. 3
10
Finally, the district court determined that defendants had 11
not violated its prior order in Santiago. 4 Id. at 445-46. 12
Reynolds and Gould timely appealed. 13

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5Reynolds 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.
642 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
II. DISCUSSION 1
On appeal, plaintiffs principally contend that the 2
district court should have examined the proposed amended 3
class action complaint under the pattern-or-practice 4
evidentiary framework and disparate impact theory of 5
liability generally applicable in class actions brought 6
pursuant to Title VII of the Civil Rights Act of 1964, 42 7
U.S.C. § 2000e et seq. 5 Whether recourse to the pattern-or- 8
practice framework is appropriate in a suit against 9
individual state officials brought pursuant to 42 U.S.C. 10
§ 1983 6 for intentional discrimination is a question of 11
first impression in our Circuit. Indeed, we have not found, 12

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7The 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
nor have the parties cited to us, a case squarely addressing 1
this issue. 7
2
3
The gravamen of plaintiffs’ proposed amended class 4
action complaint is that there was a “pattern or practice” 5
of racial discrimination in Elmira’s print shop, as 6
evidenced by “incredible statistical disparities within the 7
[p]rint [s]hop between Caucasian and non-Caucasian 8
employees” regarding promotion, demotion, discipline, and 9
pay. The proposed class action complaint also asserts that 10
Elmira’s facially neutral policy of vesting in the print 11
shop’s civilian supervisors and other prison administrators 12
“unfettered discretion” to make employment decisions 13
resulted in a disparate impact on the print shop’s minority 14
inmate-employees. 15
16
As an initial matter, plaintiffs’ novel attempt to 17
impose disparate impact liability on defendants comes up 18
short. Under certain circumstances, Title VII prohibits 19
employment practices that have a disproportionately adverse 20

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8 42 U.S.C. § 1985 provides, in relevant part:
If two or more persons . . . conspire . . . for the purpose
15
effect on minorities. See 42 U.S.C. § 2000e-2(k); Ricci v. 1
DeStefano, 129 S. Ct. 2658, 2672-73 (2009). Disparate 2
impact claims “are concerned with whether employment 3
policies or practices that are neutral on their face and 4
were not intended to discriminate have nevertheless had a 5
disparate effect on [a] protected group.” Robinson v. 6
Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 7
2001). 8
But equal protection claims under § 1983 cannot be 9
based solely on the disparate impact of a facially neutral 10
policy. It is well established that “‘[p]roof of racially 11
discriminatory intent or purpose is required’ to show a 12
violation of the Equal Protection Clause.” City of Cuyahoga 13
Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) 14
(quoting Vill. of Arlington Heights v. Metro. Hous. Dev. 15
Corp., 429 U.S. 252, 265 (1977)); see Hayden v. Paterson, 16
594 F.3d 150, 162 (2d Cir. 2010). Therefore, “a plaintiff 17
pursuing a claimed violation of § 1981 or a denial of equal 18
protection under § 1983 must show that the discrimination 19
was intentional.” Patterson v. Cnty. of Oneida, 375 F.3d 20
206, 226 (2d Cir. 2004). Similarly, §§ 1985 8 and 1986 9
21

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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
require “some racial, or perhaps otherwise class-based, 1
invidiously discriminatory animus behind the conspirators’ 2
action.” Griffen v. Breckenridge, 403 U.S. 88, 102 (1971); 3
see Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 4 (1st Cir. 4
2012). Thus, plaintiffs cannot proceed under a disparate 5
impact theory of liability in their claims brought pursuant 6
to §§ 1981, 1983, 1985, and 1986. 7
What remains, then, is plaintiffs’ assertion that the 8
Title VII pattern-or-practice framework 10 may be applied to 9
analyze discrimination claims brought pursuant to 42 U.S.C. 10
§ 1983 against individual state officials. We have never 11
employed the framework in such a manner, and we decline to 12
do so here. 13

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17
It is true that we have previously observed that 1
“[m]ost of the core substantive standards that apply to 2
claims of discriminatory conduct in violation of Title VII 3
are also applicable to claims of discrimination in 4
employment in violation of . . . the Equal Protection 5
Clause.” Patterson, 375 F.3d at 225; see also Annis v. Cnty. 6
of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Jemmott v. 7
Coughlin, 85 F.3d 61, 67 (2d Cir. 1996). But each of those 8
occasions involved individual claims of discrimination, and 9
in each we applied either the McDonnell Douglas framework or 10
a hostile work environment analysis. By urging this Court 11
to find that the pattern-or-practice framework is applicable 12
to § 1983 claims against individual state officials, 13
plaintiffs seek a significant extension of our case law. 14
Employers, not individuals, are liable under Title VII. 15
See Patterson, 375 F.3d at 226; Wrighten v. Glowski, 232 16
F.3d 119, 120 (2d Cir. 2000) (per curiam). Title VII 17
disparate treatment claims are of two types: (1) individual 18
claims, which follow the familiar McDonnell Douglas burden- 19
shifting framework, and (2) pattern-or-practice claims, 20
which focus on allegations of widespread discrimination and 21
generally follow the Teamsters burden-shifting framework. 22
Robinson, 267 F.3d at 157 n.3. 23

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18
Under the McDonnell Douglas framework, a plaintiff 1
establishes a prima facie case of intentional discrimination 2
by showing that “(1) he is a member of a protected class; 3
(2) he was qualified for the position he held; (3) he 4
suffered an adverse employment action; and (4) the adverse 5
action took place under circumstances giving rise to [an] 6
inference of discrimination.” Ruiz v. Cnty. of Rockland, 7
609 F.3d 486, 491-92 (2d Cir. 2010). If the plaintiff 8
establishes a prima facie case of discrimination, the burden 9
shifts to the employer to come forward with a legitimate, 10
nondiscriminatory reason for the adverse employment action. 11
Id. at 492. If the employer does so, the burden then 12
returns to the plaintiff to demonstrate that race was the 13
real reason for the employer’s adverse action. Id. 14
Importantly, “[t]he ultimate burden of persuading the trier 15
of fact that the defendant intentionally discriminated 16
against the plaintiff remains at all times with the 17
plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 18
U.S. 248, 253 (1981). Statistics alone do not suffice to 19
establish an individual disparate treatment claim for a very 20
good reason: the particular plaintiff must establish he was 21
the victim of racial discrimination. See Hudson v. Int’l 22

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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).
12We 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
Bus. Mach. Corp., 620 F.2d 351, 355 (2d Cir. 1980). 11
1
In contrast to individual disparate treatment claims, 2
“[p]attern-or-practice disparate treatment claims focus on 3
allegations of widespread acts of intentional discrimination 4
against individuals.” Robinson, 267 F.3d at 158. 12 To 5
prevail on a pattern-or-practice claim, the plaintiffs must 6
demonstrate that “intentional discrimination was the 7
defendant’s ‘standard operating procedure.’” Id. (quoting 8
Teamsters, 431 U.S. at 336). 9
A pattern-or-practice lawsuit proceeds in two phases. 10
First, during the “liability phase,” the plaintiffs are 11
required to establish “a prima facie case of a policy, 12
pattern, or practice of intentional discrimination against 13
[a] protected group.” Id. Unlike in individual disparate 14
treatment claims, “[s]tatistics alone can make out a prima 15
facie case of discrimination [in a pattern-or-practice suit] 16
if the statistics reveal a gross disparity in the treatment 17
of workers based on race.” Id. (alterations and internal 18
quotation marks omitted). Anecdotal evidence of 19

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20
discrimination may be highlighted to bring “the cold numbers 1
convincingly to life.” Teamsters, 431 U.S. at 339. 2
Once the plaintiffs make out a prima facie case of 3
discrimination in a pattern-or-practice case, the burden of 4
production shifts to the employer to show that the 5
statistical evidence proffered by the plaintiffs is 6
insignificant or inaccurate. See id. at 360. Typically, 7
this is accomplished by challenging the “source, accuracy, 8
or probative force” of the plaintiffs’ statistics. 9
Robinson, 267 F.3d at 159 (internal quotation marks 10
omitted). If the defendant satisfies its burden of 11
production, the trier of fact must then determine, by a 12
preponderance of the evidence, whether the employer engaged 13
in a pattern or practice of intentional discrimination. Id. 14
If the plaintiffs succeed in proving a pattern or practice 15
of discrimination, the court “may proceed to fashion class- 16
wide injunctive relief.” Id. Importantly, the plaintiffs 17
are “not required to offer evidence that each person [who] 18
will ultimately seek [individualized] relief was a victim of 19
the employer’s discriminatory policy” in order to prevail in 20
the liability phase. Teamsters, 431 U.S. at 360. 21
22

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21
When plaintiffs seek individualized relief–i.e., back 1
pay, front pay, or compensatory recovery–the case proceeds 2
to the “remedial phase.” Robinson, 267 F.3d at 159. During 3
this phase, a particular plaintiff “need only show that 4
he . . . suffered an adverse employment decision and 5
therefore was a potential victim of the proved class-wide 6
discrimination.” Id. (internal quotation marks and 7
alteration omitted); see Teamsters, 431 U.S. at 361. The 8
employer then bears the burden of persuasion of 9
demonstrating that the employee was subjected to an adverse 10
employment action for legitimate, nondiscriminatory reasons. 11
Robinson, 267 F.3d at 159-60; see Teamsters, 431 U.S. at 12
361. 13
It bears noting that “[t]he heavy reliance on 14
statistical evidence in a pattern-or-practice disparate 15
treatment claim distinguishes such a claim from an 16
individual disparate treatment claim proceeding under the 17
McDonnell-Douglas framework.” Robinson, 267 F.3d at 158 18
n.5. As this Court has recognized, the pattern-or-practice 19
framework “substantially lessen[s] each class member’s 20
evidentiary burden relative to that which would be required 21
if the employee were proceeding separately with an 22

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22
individual disparate treatment claim under the McDonnell 1
Douglas framework.” Id. at 159. 2
The McDonnell Douglas and Teamsters frameworks differ 3
in important respects. However, both recognize that direct 4
proof of intentional discrimination by an employer is hard 5
to come by, and thus provide carefully calibrated burden- 6
shifting structures designed to determine whether the 7
employer intentionally discriminated against the plaintiffs. 8
See Patterson v. McLean Credit Union, 491 U.S. 164, 186 9
(1989). 10
As previously noted, proof of discriminatory intent is 11
required to show a violation of the Equal Protection Clause. 12
City of Cuyahoga Falls, 538 U.S. at 194. Because neither a 13
state nor a state official in his official capacity is a 14
“person” within the meaning of § 1983, see Will v. Mich. 15
Dep’t of State Police, 491 U.S. 58, 71 (1989), the requisite 16
discriminatory intent must be held by the state official in 17
his individual capacity. Thus, liability for an Equal 18
Protection Clause violation under § 1983 requires personal 19
involvement by a defendant, who must act with discriminatory 20
purpose. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 21
“[P]urposeful discrimination requires more than ‘intent as 22

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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
volition or intent as awareness of consequences. . . . It 1
instead involves a decisionmaker’s undertaking a course of 2
action ‘because of, not merely in spite of, the action’s 3
adverse effects upon an identifiable group.’” Id. (quoting 4
Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 5
(1979)). 6
The pattern-or-practice framework is ill-suited to the 7
task of identifying which individual defendants engaged in 8
purposeful discrimination in cases such as this one. 9
Statistics proffered during the “liability phase” of a 10
pattern-or-practice suit purport to demonstrate that a 11
pattern of discrimination exists at an entity. In a Title 12
VII case, these statistics can make out a prima facie case 13
that the employer was engaged in a pattern or practice of 14
discrimination. This is because an analysis of the 15
collective acts of those who do the employer’s bidding 16
bespeak the employer’s motivation. 13
17
But statistics showing entity-level discrimination shed 18
little light on whether a particular individual defendant 19

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24
engaged in purposeful discrimination. Just as statistics 1
alone are insufficient to establish a prima facie case under 2
the McDonnell Douglas framework, see Hudson, 620 F.2d at 3
355, statistics demonstrating employer-wide discrimination 4
are insufficient to establish which individual defendants 5
engaged in purposeful discrimination. Statistical 6
disparities may be, and often are, attributable to a subset 7
of actors–not to every actor who had an opportunity to 8
discriminate. Cf. Wal-Mart Stores, Inc. v. Dukes, 131 S. 9
Ct. 2541, 2555 (2011). 10
Thus, to import the pattern-or-practice framework into 11
the Equal Protection context would substantially circumvent 12
the plaintiffs’ obligation to raise a prima facie inference 13
of individual discriminatory intent. If “[s]tatistics alone 14
[could] make out a prima facie case of discrimination,” 15
Robinson, 267 F.3d at 158, a § 1983 plaintiff could shift 16
the burden to the defendant without any showing of 17
individual discriminatory intent. Such a result would seem 18
to contravene well-established precedent that “[p]roof of 19
racially discriminatory intent or purpose is required to 20
show a violation of the Equal Protection Clause” in a claim 21
brought pursuant to § 1983. City of Cuyahoga Falls, 538 22
U.S. at 194 (internal quotation marks omitted). 23

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25
Plaintiffs in this case offer no authority for the 1
proposition that a statistics-based evidentiary framework 2
used to determine the liability of an entity under Title VII 3
is appropriate to establish the liability of individual 4
state officials under § 1983. They argue only that 5
“individuals can engage in a pattern or practice of 6
discrimination and there is no reason why such 7
discrimination cannot be shown primarily through statistical 8
proof.” Reynolds Reply Br. 7. In their view, this is 9
particularly true where the individual defendants “are the 10
only actors whose decisions could have resulted in the 11
statistical disparities.” Reynolds Reply Br. 7-8. We 12
disagree. Proffering statistical evidence that purports to 13
show discrimination at an entity and naming as defendants 14
all of the individuals who could possibly be responsible for 15
such discrimination may support an inference that one or 16
more of the named individual defendants committed acts of 17
intentional discrimination. But such evidence provides 18
little or no basis for discerning which individual 19
defendants are responsible for the statistical disparities. 20
For example, the Guilfoyle report purports to show 21
statistically significant racial disparities in the average 22

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26
employment tenure, rate of pay, and demotions of inmates in 1
the Elmira print shop during the period between April 1994 2
and December 1999. Defendant Janice Kent began working as 3
an Industrial Training Supervisor in the print shop in the 4
fall of 1998. Even assuming that the Guilfoyle report 5
supports the contention that discrimination was occurring in 6
the print shop during the relevant period, the report says 7
very little about whether Kent herself discriminated against 8
minority inmates on account of their race. In other words, 9
the statistics do not establish that discrimination was 10
Kent’s standard operating procedure. Unlike the statistics 11
in a Title VII suit against an employer, the statistics 12
proffered here do not place Kent in the position of “a 13
proved wrongdoer,” Teamsters, 431 U.S. at 359 n.45, and thus 14
do not justify shifting the burden of persuasion to Kent to 15
establish that every adverse employment action she took 16
against a class member was animated by legitimate, 17
nondiscriminatory reasons. 18
For the foregoing reasons, the pattern-or-practice 19
framework is ill-suited to establish the liability of the 20
individual defendants named in the proposed amended 21

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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
complaint. 14 We therefore conclude that the district court 1
did not err in declining to independently analyze 2
plaintiffs’ proposed class action amended complaint under 3
the pattern-or-practice framework. We affirm the district 4
court’s denial of leave to amend and denial of class 5
certification for substantially the same reasons stated by 6
the district court. 7
8
9

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28
III. CONCLUSION 1
The district court’s order of October 4, 2010 granting 2
summary judgment to defendants on plaintiffs-appellants’ 3
claims of individual discrimination and retaliation, denying 4
leave to amend the complaint, and denying class 5
certification is hereby AFFIRMED. 6

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