           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.
    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


                                 - 3 -
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).


                                  - 4 -
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


                                            - 7 -
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.


                                      - 8 -
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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