     10-4208-pr; 10-4235-pr
     Reynolds v. Barrett; Gould v. Chamberlin
 1
 2                      UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6
 7
 8                              August Term, 2011
 9
10    (Argued: December 6, 2011                 Decided: July 11, 2012)
11
12                   Docket Nos. 10-4208-pr; 10-4235-pr
13
14
15                                JERRY REYNOLDS,
16
17                                                   Plaintiff-Appellant,
18
19                                      –v.–
20
21          DAVE BARRETT, Industrial Superintendent of Elmira
22          Correctional Facility, LARRY POCCOBELLO, Assistant
23    Industrial Superintendent of Elmira, JACK RATHBUN, General
24        Foreman of Elmira Print Industry, TERRY CHAMBERLAIN,
25      Industrial Training Supervisor of Elmira Print Industry,
26      FLOYD BENNETT, Superintendent of Elmira Correctional and
27         Reception Center, GEORGE SARNO, Industrial Training
28    Supervisor of Elmira Print Industry, JANET KENT, Industrial
29   Training Supervisor of Elmira Print Industry, DANA M. SMITH,
30    Deputy Superintendent of Elmira, JAMES P. THOMPSON, Senior
31      Correction Counselor of Elmira, JOHN CONROY, Director of
32     Correctional Industry, Individually and in their official
33                              capacities,
34
35                                                  Defendants-Appellees.
36
37
38
39                                 KHALIB GOULD,
40
41                                                   Plaintiff-Appellant,
42
43                                      –v.–
44
45
 1      TERRY CHAMBERLAIN, Industry Training Supervisor, LARRY
 2   POCOBELLO, Industry Assistant Superintendent, DAVE BARRETT,
 3     Industry Superintendent, JACK RATHBIN, Industry Foreman,
 4    JANICE KENT, Industry Training Supervisor, FLOYD BENNETT,
 5          Elmira Correctional Facility's Superintendent,
 6
 7                                                     Defendants-Appellees.*
 8
 9
10
11
12   Before:
13         McLaughlin, Cabranes, and Wesley, Circuit Judges.
14
15        Appeal from an order of the United States District
16   Court for the Western District of New York (Larimer, J.),
17   entered on October 4, 2010, granting summary judgment to
18   defendants-appellees on plaintiffs-appellants’ individual
19   claims of racial discrimination, denying plaintiffs’ motion
20   for class certification, and denying plaintiffs’ motion for
21   leave to amend their complaints. Plaintiffs-appellants’
22   primary contention on appeal is that the district court
23   should have assessed the proposed amended class action
24   complaint, which alleged claims for intentional
25   discrimination against individual state officials, under the
26   disparate-impact theory of liability and the pattern-or-
27   practice evidentiary framework used in Title VII actions.
28   Disparate impact liability is unavailable because the
29   statutes on which they base their claims require intentional
30   discrimination. Further, the pattern-or-practice framework
31   is ill-suited to establish the liability of the individual
32   state officials named as defendants.
33
34         AFFIRMED.
35
36
37
38               GUY A. TALIA, Thomas & Solomon LLP, Rochester, NY
39                    (J. Nelson Thomas, on the brief), for
40                    Plaintiffs-Appellants.
41

           *
             The Clerk of the Court is respectfully directed to amend the official
     captions to conform to the above.

                                            2
 1            ANDREW B. AYERS, Assistant Solicitor General
 2                 (Barbara D. Underwood, Solicitor General,
 3                 Andrea Oser, Deputy Solicitor General, on the
 4                 brief), for Eric T. Schneiderman, Attorney
 5                 General of the State of New York, Albany, NY
 6                 for Defendants-Appellees.
 7
 8
 9
10   WESLEY, Circuit Judge:

11       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                             I. BACKGROUND

18       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.   See Santiago v. Miles, 774 F. Supp. 775,

22   782-88 (W.D.N.Y. 1991).    In 1986, black and Hispanic

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.    Id. at 777.   After a

27   bench trial, Judge Larimer found that the plaintiffs had

                                     3
 1   proven a “pattern of racism” at Elmira.     Id.    On April 13,

 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       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.       In

11   addition, inmates were eligible to receive an “incentive

12   bonus” as a reward for good work.   Civilian supervisors

13   determined, in their discretion, whether a particular inmate

14   merited promotion and higher pay.   Similarly, these

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.       As a general

19   matter, an inmate would be removed upon two requests.

20       In the print shop, inmates were directly supervised by

21   civilian “Industrial Training Supervisors.”       The Industrial

22   Training Supervisors reported to a general foreman, who in


                                  4
 1   turn reported to an Assistant Industrial Superintendent and

 2   the Industrial Superintendent.    The Industrial

 3   Superintendent answered to Elmira’s Superintendent, among

 4   other officials.

 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.   Reynolds specifically complained about an incident

 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   than white inmate-employees.

11       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.   He alleged that they took adverse employment

15   actions against him because of his race and retaliated

16   against him for filing grievances.

17       In November 2000, the district court appointed counsel

18   for the plaintiffs in all four actions.   Counsel moved to

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
 1   plaintiffs to file a more detailed amended complaint by

 2   December 17, 2001.     Instead, the parties agreed to

 3   consolidate the actions for the purpose of conducting

 4   discovery.     They further agreed that no party would suffer

 5   prejudice if plaintiffs filed an amended complaint after

 6   discovery was completed.     The magistrate judge approved the

 7   arrangement.

 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.”     JA 64.   In addition

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
 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.   The complaint also claimed that the

 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 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.”    JA

18   95.   Similarly, the complaint stated that Gould was denied a

19   promotion, demoted, and ultimately removed from the print

20   shop on account of his race.   The plaintiffs sought both

21   injunctive relief and monetary damages.

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.    In Guilfoyle’s view, the results of

 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          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.    After an

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.    Plaintiffs opposed the

18   motion and moved to certify the class action.

19          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.”    They contended


                                    9
 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.            Despite the fact that this

 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.

 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.    And though § 1983 provides a vehicle by which to

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.

           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.    Id. at 426-35.    The

 5   court determined that defendants were entitled to summary

 6   judgment on both Reynolds’s and Gould’s individual claims of

 7   discrimination.   Although the court noted Guilfoyle’s

 8   statistical analysis, it concluded that Reynolds had not

 9   demonstrated that any adverse action was taken against him

10   on account of his race.   Id. at 427-29.   Similarly, the

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.   Instead,

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       Having granted summary judgment on plaintiffs’

19   individual claims, the district court denied class

20   certification and leave to amend.   In particular, the court

21   noted that “[a]t bottom, these cases present issues arising

22   out of discrete acts of alleged discrimination and


                                   11
 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               Id. at 445-46.

13         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         Whether recourse to the pattern-or-

 9   practice framework is appropriate in a suit against

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   this issue.7
 3
 4          The gravamen of plaintiffs’ proposed amended class

 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

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   inmate-employees.
16
17          As an initial matter, plaintiffs’ novel attempt to

18   impose disparate impact liability on defendants comes up

19   short.       Under certain circumstances, Title VII prohibits

20   employment practices that have a disproportionately adverse

            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.         See 42 U.S.C. § 2000e-2(k); Ricci v.

 2   DeStefano, 129 S. Ct. 2658, 2672-73 (2009).               Disparate

 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.”               Robinson v.

 7   Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir.

 8   2001).

 9       But equal protection claims under § 1983 cannot be

10   based solely on the disparate impact of a facially neutral

11   policy.     It is well established that “‘[p]roof of racially

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).            Therefore, “a plaintiff

18   pursuing a claimed violation of § 1981 or a denial of equal

19   protection under § 1983 must show that the discrimination

20   was intentional.”        Patterson v. Cnty. of Oneida, 375 F.3d

21   206, 226 (2d Cir. 2004).          Similarly, §§ 19858 and 19869


         8
             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.”      Griffen v. Breckenridge, 403 U.S. 88, 102 (1971);

 4   see Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 4 (1st Cir.

 5   2012).     Thus, plaintiffs cannot proceed under a disparate

 6   impact theory of liability in their claims brought pursuant

 7   to §§ 1981, 1983, 1985, and 1986.

 8         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.                We have never

12   employed the framework in such a manner, and we decline to

13   do so here.



                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).     But each of those

 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.   By urging this Court

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       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).    Title VII

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
 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.”        Ruiz v. Cnty. of Rockland,

 8   609 F.3d 486, 491-92 (2d Cir. 2010).       If the plaintiff

 9   establishes a prima facie case of discrimination, the burden

10   shifts to the employer to come forward with a legitimate,

11   nondiscriminatory reason for the adverse employment action.

12   Id. at 492.   If the employer does so, the burden then

13   returns to the plaintiff to demonstrate that race was the

14   real reason for the employer’s adverse action.        Id.

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.”   Tex. Dep’t of Cmty. Affairs v. Burdine, 450

19   U.S. 248, 253 (1981).   Statistics alone do not suffice to

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.        See Hudson v. Int’l


                                     18
 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.”        Robinson, 267 F.3d at 158.12          To

 6   prevail on a pattern-or-practice claim, the plaintiffs must

 7   demonstrate that “intentional discrimination was the

 8   defendant’s ‘standard operating procedure.’”               Id. (quoting

 9   Teamsters, 431 U.S. at 336).

10        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.”        Id.    Unlike in individual disparate

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.”          Id. (alterations and internal

19   quotation marks omitted).          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.”     Teamsters, 431 U.S. at 339.

 3          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.        See id. at 360.     Typically,

 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).   If the defendant satisfies its burden of

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.              Id.

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.”     Id.        Importantly, the plaintiffs

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.     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.”    Robinson, 267 F.3d at 159.      During

 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.”    Id. (internal quotation marks and

 8   alteration omitted); see Teamsters, 431 U.S. at 361.        The

 9   employer then bears the burden of persuasion of

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.”        Robinson, 267 F.3d at 158

19   n.5.    As this Court has recognized, the pattern-or-practice

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


                                     21
 1   individual disparate treatment claim under the McDonnell

 2   Douglas framework.”   Id. at 159.

 3       The McDonnell Douglas and Teamsters frameworks differ

 4   in important respects.     However, both recognize that direct

 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   (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.     Because neither a

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.     Thus, liability for an Equal

19   Protection Clause violation under § 1983 requires personal

20   involvement by a defendant, who must act with discriminatory

21   purpose.   See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

22   “[P]urposeful discrimination requires more than ‘intent as


                                     22
 1   volition or intent as awareness of consequences. . . .                 It

 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.’”               Id. (quoting

 5   Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279

 6   (1979)).

 7        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.               In a Title

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.      This is because an analysis of the

16   collective acts of those who do the employer’s bidding

17   bespeak the employer’s motivation.13

18        But statistics showing entity-level discrimination shed

19   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.   Just as statistics

 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.   Statistical

 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.   Cf. Wal-Mart Stores, Inc. v. Dukes, 131 S.

10   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.    If “[s]tatistics alone

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.   Such a result would seem

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.   City of Cuyahoga Falls, 538

23   U.S. at 194 (internal quotation marks omitted).

                                   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.        They argue only that

 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.”     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.”     Reynolds Reply Br. 7-8.       We

13   disagree.     Proffering statistical evidence that purports to

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.     But such evidence provides

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


                                     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.   Defendant Janice Kent began working as

 4   an Industrial Training Supervisor in the print shop in the

 5   fall of 1998.   Even assuming that the Guilfoyle report

 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.   In other words,

10   the statistics do not establish that discrimination was

11   Kent’s standard operating procedure.   Unlike the statistics

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       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     We therefore conclude that the district court

2   did not err in declining to independently analyze

3   plaintiffs’ proposed class action amended complaint under

4   the pattern-or-practice framework.            We affirm the district

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.

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                         III. CONCLUSION

2       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
