ERIKA D. LUCEUS, Plaintiff, Appellant,
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.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. William E. Smith, U.S. District Judge]
Harrison, III for appellant.
Katherine Connolly Sadeck, Special Assistant Attorney
General, with whom Michael W. Field, Assistant Attorney
General, was on brief, for appellees.
Thompson, Circuit Judge, Souter, [*] Associate Justice, and Lipez,
SOUTER, ASSOCIATE JUSTICE.
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.
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.
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 appointment made by
the Department to fill a vacant position. 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.
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. 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)
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 statistical evidence."
See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848
(1st Cir. 1993).
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
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 ...