Bennett, Valerie v. Roberts, Mary ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1939
VALERIE BENNETT,
Plaintiff-Appellant,
v.
MARY ROBERTS, MARSHAL ASPINALL,
TIMOTHY COSTELLO, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 6917—John W. Darrah, Judge.
____________
ARGUED NOVEMBER 15, 2001—DECIDED JULY 2, 2002
____________
Before BAUER, POSNER and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Valerie Bennett filed this action
1
against the seven members of the Board of Education of
Naperville Community Unit School District 203, in their
individual and official capacities (“the Board”). She alleged
that the school district had engaged in racially discrimina-
tory hiring practices. The district court entered summary
1
The members include: Mary Roberts, Marshal Aspinall, Timothy
Costello, Livia McCammon, O.C. Davenport, Brian Barnes and Rudy
Carl.
2 No. 01-1939
judgment for the Board on the ground that Ms. Bennett had
failed to prove her allegations. For the reasons set forth in
the following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
In the fall of 1994, Ms. Bennett, an African-American,
sought employment as a teacher with Naperville Commu-
nity Unit School District 203 (“the School District”). Com-
prised of twenty-one grade, junior high and high schools,
the School District serves the community of Naperville,
2
Illinois —a far western suburb of the city of Chicago.
Because it is well-regarded among educators, the School
District receives annually several thousand applications
from prospective teachers. To manage the sizable number
of job inquiries that it receives, the School District has im-
plemented a standard procedure for processing and retriev-
ing employment applications. Upon receiving an inquiry
about a vacant teaching position, the School District re-
quests that the prospective teacher complete and return two
forms—an application and an information data sheet (“Data
Sheet”). Although these documents seek information con-
cerning the applicant’s work experience, educational back-
ground and teaching preferences, neither form requests
information about the race of the prospective teacher.
2
Naperville is located in DuPage County, Illinois—a suburban area
adjacent to the city of Chicago. According to 1990 census data, white,
non-Hispanic individuals comprise roughly 93% of DuPage County’s
population.
No. 01-1939 3
Once these materials are returned, the School District
enters the information from the Data Sheet into a central
database, and the applicant then becomes an active candi-
date for employment. An individual will not be considered
for employment if he fails to return his Data Sheet. Each fall,
an active candidate receives from the School District a new
Data Sheet. That document must be completed and returned
in order to retain one’s status as an active candidate; failure
to resubmit the Data Sheet places an applicant on inactive
status and leads ultimately to expungement from the em-
ployment database.
With regard to teaching vacancies, a school’s principal
establishes the specific hiring criteria for the open position.
The principal relays this information, as well as a notice
of the vacancy, to the School District’s personnel office. That
office then distributes postings concerning the position. The
personnel office also provides the principal with a printout,
drawn from the database, identifying active applicants that
match the hiring criteria for the position. After considering
the list, as well as any applications sent directly to him, the
principal conducts interviews of those individuals that he
believes are most qualified for the position. On occasion,
staff members from the school conduct a second, but sub-
sidiary, interview of the applicant. Although the principal
may consider the recommendations of the staff, he ulti-
mately determines which applicant is best suited for the
position. Finally, the Assistant Superintendent for Personnel
reviews the applicant’s credentials and, based largely on the
recommendation of this official, the Board of Education
approves the hiring. Once approved, the new teacher un-
dergoes a mandatory criminal background check conducted
by the Illinois State Police Department (“ISPD”). The ISPD’s
criminal background form requires the teacher to identify
his race.
4 No. 01-1939
In the fall of 1994, Ms. Bennett submitted an application,
a completed Data Sheet and a current résumé to the School
District. The application materials detailed Ms. Bennett’s
work experience and qualifications. Certified by the State of
Illinois to teach kindergarten through ninth grade, Ms. Ben-
nett possessed several years of teaching experience with a
marked emphasis in special education. In obtaining her
master’s degree from the University of Houston, she had
attained high grades. Ms. Bennett contends that the applica-
tion materials she received from the School District con-
tained an additional document—the ISPD’s criminal back-
ground form. According to Ms. Bennett, she completed
this form—including the portion asking her to identify her
race—and returned it to the School District.
Soon after Ms. Bennett submitted her materials, she re-
ceived an interview with the School District for a part-time
teaching position. Carol McGuff, a principal with the School
District, interviewed Ms. Bennett for a teaching vacancy in
the Chapter One Mathematics program, an initiative for
students performing poorly, or at risk of performing poorly,
at their grade level. According to McGuff, after conduct-
ing the interview, she concluded that Ms. Bennett lacked
the requisite qualifications for the position. Despite this
initial impression, the principal permitted three members of
her school’s faculty, all of whom were white, to conduct a
3
second interview of Ms. Bennett. Two of the staff members
concluded that Ms. Bennett did not possess the skills ap-
plicable to the position; the third person was unable to
remember the encounter. McGuff did not recommend Ms.
3
McGuff typically permitted staff members to participate in the
interview process and provide input concerning the applicant’s
qualifications. However, she alone made the hiring recommendation
to the personnel office.
No. 01-1939 5
Bennett for the position. The School District later hired
another applicant to fill the vacancy. That person not only
possessed four years of teaching experience but also trained
student teachers at National Lewis University in develop-
ment of math curriculum and lesson planning. The success-
ful applicant also had served as an active member and
lecturer of the National Council of Teachers of Mathematics.
In September 1994, Jack Hinterlong, a principal with the
School District, interviewed Ms. Bennett for another va-
cancy, a fifth-grade teaching position. According to the
principal, he sought a candidate who, among other things,
possessed a background in social studies. After interviewing
Ms. Bennett, Hinterlong decided that she did not meet the
criteria for the position. The School District filled the va-
cancy with an individual who possessed thirteen-years
teaching experience, the bulk of which was at the fifth-grade
level.
Ms. Bennett applied for several other teaching positions
within the School District. She sent letters directly to the
principals at whose schools the vacancies existed. Although
Ms. Bennett did not receive any further interviews, she re-
submitted her Data Sheet to the School District during
November 1994. In the fall of 1995, however, she failed to
return her Data Sheet.
B. District Court Proceedings
In this action, Ms. Bennett alleged that the Board had
engaged in racially discriminatory hiring practices in vio-
lation of Title VII, § 1981, § 1983 and the Fourteenth Amend-
ment of the Constitution of the United States. Although the
complaint contained numerous contentions, it repeatedly
alleged that the Board employed all-white screening com-
mittees that precluded African-American applicants from
6 No. 01-1939
obtaining positions with the School District. In addition, Ms.
Bennett asserted that she was more than qualified for the
positions for which she had applied but had not received
interviews.
At the close of discovery, the parties filed cross-motions
4
for summary judgment. The Board contended that Ms. Ben-
nett had failed to prove either disparate treatment or dis-
parate impact under Title VII. In particular, the Board
emphasized that the applicants it had hired for the Septem-
ber positions possessed superior qualifications to those of
Ms. Bennett. Because her disparate treatment claims were
without merit, the Board argued, Ms. Bennett also could not
satisfy the requirements of § 1981. Turning to the disparate
impact claims, the Board contended that Ms. Bennett not
only had failed to prove the existence of an employment
practice that adversely impacted minorities but also had
proffered unreliable statistical data in support of her posi-
tion. Finally, the Board submitted that the § 1983 claims
were infirm because Ms. Bennett offered no evidence that
the Board had adopted a policy or custom that resulted in
the deprivation of her constitutional rights.
In response, Ms. Bennett submitted that the Board con-
strued too narrowly the class of jobs for which she had been
eligible but had not been hired. Although Ms. Bennett only
tangentially referred to these jobs in her Rule 56.1 statement
of undisputed material facts, she contended that she was
qualified for these positions. Because the Board had not ar-
ticulated a legitimate nondiscriminatory reason for failing
to hire her for this class of jobs, she argued that it could not
4
More precisely, the Board sought the entry of summary judgment
in its favor on all of Ms. Bennett’s claims. In comparison, Ms. Ben-
nett’s cross-motion was limited in nature. She only filed for summary
judgment on her disparate impact claims.
No. 01-1939 7
prevail on these claims. With regard to her allegations under
§ 1983, Ms. Bennett argued that the Board adopted an un-
constitutional policy of declining to hire minority appli-
cants. Finally, having moved for summary judgment on her
disparate impact claims, she contended that, based on her
statistical evidence and the neutral employment practices
she had identified, the Board could not escape liability on
this claim.
2.
The district court entered summary judgment for the
Board on all of Ms. Bennett’s claims. The district court con-
cluded that Ms. Bennett had failed to demonstrate the pre-
textual nature of the Board’s nondiscriminatory reason for
failing to hire her for the two September 1994 teaching
vacancies. In addition, the district court found Ms. Bennett’s
proffered statistical evidence suffered from flaws that pre-
cluded its use to prove either her disparate treatment or
disparate impact claims. The court, however, never ad-
dressed Ms. Bennett’s allegations concerning the other
teaching vacancies for which she had been eligible but had
not received a job offer.
The district court also rejected Ms. Bennett’s disparate
impact theory. Although she had alleged in her motion for
summary judgment numerous employment practices that
purportedly had a disparate impact on minority applicants,
Ms. Bennett had failed to raise all but one of these practices
in her complaint or during discovery. Accordingly, the dis-
trict court permitted her to raise only the single practice
that had been appropriately placed in issue—the Board’s
alleged use of all-white screening committees when inter-
viewing applicants. However, the district court also deter-
mined that Ms. Bennett failed to prove the existence of such
8 No. 01-1939
a practice. Moreover, continued the court, even assuming
the admissibility of her statistical evidence, this material
failed to link the hiring practice to any alleged disparity in
minority representation in the School District’s workforce.
Finally, the court addressed Ms. Bennett’s § 1981 and
§ 1983 claims. Because she failed to demonstrate intentional
discrimination, her § 1981 claim failed. As for her § 1983
claims, the district court concluded that Ms. Bennett had
failed to prove that the School District had adopted a policy
or custom that violated her constitutional rights.
II
DISCUSSION
We review de novo the district court’s grant of summary
judgment. See Thomas v. Pearle Vision, Inc., 251 F.3d 1132,
1136 (7th Cir. 2001). Summary judgment is appropriate “if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). Our function is not to weigh the evi-
dence but merely to determine if “there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In performing this task, we must construe all facts
and draw all reasonable inferences in the light most favor-
able to the nonmoving party. See id. at 255.
A.
We first consider Ms. Bennett’s contention that, in making
its hiring decisions, the Board intentionally discriminated
against her on account of her race in violation of Title VII.
It is well-established that Title VII prohibits an employer
No. 01-1939 9
from refusing to hire an applicant because of the individ-
ual’s race. See 42 U.S.C. § 2000e-2(a)(1). To prove a violation
of this provision, a plaintiff must proffer either direct or
indirect evidence of the employer’s discriminatory intent.
Because direct evidence often does not exist in discrimina-
tion cases, most plaintiffs proceed under the indirect meth-
od of proof—the McDonnell Douglas test.
Under this indirect methodology, the plaintiff must pre-
sent evidence sufficient to establish a prima facie case of
the employer’s discriminatory intent. In particular, the
plaintiff must establish that: (1) he is a member of a pro-
tected class; (2) he applied for, and was qualified for, an
open position; (3) the employer rejected him for the posi-
tion; and (4) the employer filled the position with an in-
dividual outside of the plaintiff’s protected class, or the
position remained vacant. See Mills v. Health Care Serv. Corp.,
171 F.3d 450, 454 (7th Cir. 1999). Once the plaintiff estab-
lishes each element of his prima facie case, the burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its hiring decision. See id. If the
employer satisfies this obligation, the burden of production
returns to the plaintiff to demonstrate the pretextual nature
of the proffered reason. See id.
1.
As a threshold matter, we briefly address the position that
Ms. Bennett takes on appeal with respect to the two posi-
tions for which she received interviews. In her view, the
district court should not have considered these positions
5
because any claims stemming from them are time-barred.
5
Ms. Bennett states that she “explained in her summary judgment
briefs that [the] September 1994 vacancies and all information related
(continued...)
10 No. 01-1939
More precisely, she submits that she failed to file a timely
administrative complaint with the EEOC concerning these
positions. Accordingly, Ms. Bennett’s brief neither addresses
nor challenges this portion of the district court’s ruling.
Although we express no opinion on whether this portion
6
of Ms. Bennett’s complaint is time-barred, we conclude that
she has waived appellate review of the September inter-
views. “A waiver, which can be either express or implied,
is an intentional relinquishment of a known right.” Miller
v. Willow Creek Homes, Inc., 249 F.3d 629, 631 (7th Cir. 2001).
In her brief, Ms. Bennett contends that “the only relevance
of the September 1994 interviews . . . is that they are abso-
lute proof that District 203 knew [her] race at all relevant
times after the interview.” Appellant’s Br. at 15. Ms. Bennett
never challenges the district court’s conclusion that she
failed to establish pretext concerning the Board’s articulated
reasons for failing to hire her for the September positions.
Indeed, her brief never addresses the substantive merits of
5
(...continued)
to that hiring are irrelevant to the Title VII claims, and would not be
admissible at trial.” Appellant’s Br. at 15. The record, however, belies
this contention; it is clear Ms. Bennett intended for these two in-
cidents to comprise a portion of her discrimination claims against the
Board.
6
As a general rule, before a plaintiff may institute an action in
federal court under Title VII, he must file a timely complaint with the
EEOC detailing the discriminatory conduct that forms the basis of his
allegations. See Hentosh v. Herman M. Finch Univ. of Health Sciences/
Chicago Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). Although the
failure to file an initial complaint with the EEOC “certainly places
a significant legal and pragmatic burden on the plaintiff,” it is not
a jurisdictional requirement. Daugherity v. Traylor Bros., Inc., 970 F.2d
348, 352 (7th Cir. 1992). Indeed, the Board has never argued that this
portion of Ms. Bennett’s claim is time-barred.
No. 01-1939 11
this portion of the district court’s ruling. Accordingly, Ms.
Bennett has waived any appellate review of this aspect of
her case.
2.
We next address the substance of Ms. Bennett’s remaining
disparate treatment claims. Ms. Bennett contends that, be-
cause of her race, the Board declined to hire her for roughly
nineteen teaching vacancies that were available while she
remained an active candidate for employment with the
School District via its central database. Moreover, she em-
phasizes that the district court failed to address this aspect
of her claims. In response, the Board submits that Ms. Ben-
nett never properly developed these allegations before the
district court. In the alternative, it argues that Ms. Bennett
failed to establish a prima facie case of discrimination with
regard to these claims.
Although it is evident that the district court did
7
not address this aspect of Ms. Bennett’s case, we con-
7
We, however, do not fault the district court for this oversight. Ms.
Bennett scarcely developed the factual allegations underlying these
claims in the parties’ Rule 56.1 Statements of Undisputed Material
Facts. The Board’s Rule 56.1 statement, submitted in support of its
motion for summary judgment, focused primarily on the September
interviews. In her supplemental statement of facts, Ms. Bennett, in
the most conclusory manner, stated:
107. Ms. Bennett was qualified and eligible to be hired for Type
03 certified positions grades K-9 in District 203 from August
29, 1994 until February 17, 1996. (Ex. 2, 4, 17 [.])
108. Exhibit 16 is the teachers service reports [sic] that shows the
new hires for the time period that includes the time Ms.
Bennett was eligible for employment with District 203.
(continued...)
12 No. 01-1939
clude that summary judgment for the Board remains ap-
propriate because there is a failure of proof with regard to
these allegations. Ms. Bennett simply has failed to allege
sufficient facts to prove a prima facie case of employment
discrimination with regard to these positions. In particular,
although Ms. Bennett contends that she was qualified for
nineteen positions that were filled while her name was in
the database, she provides us with no indication as to the
specific hiring criteria for these positions. The record con-
tains no postings or descriptions that detail the requisite
qualifications for these vacancies. Thus, we simply cannot
accept Ms. Bennett’s contention that, because she holds a
teaching certificate and a master’s degree, she automatically
was qualified for these particular positions. Ms. Bennett had
ample opportunity to develop this record before the district
court. She failed to do so.
We recognize that Ms. Bennett has identified several white
teachers hired for these vacancies that purportedly had
lesser credentials than she possessed. For instance, Ms. Ben-
7
(...continued)
109. Except for the Highlands fifth grade teaching position and
the Scott Chapter One position, the Defendant’s motion for
summary judgment did not give an allegedly non-discrimi-
natory reason for not hiring Ms. Bennett. (See Defendants
[sic] summary judgment motion [.])
R.110, ¶¶ 107-09. Ms. Bennett neither elaborated on the job qualifica-
tions for these positions nor identified the individuals who filled
these vacancies. In her response to the Board’s motion for summary
judgment, Ms. Bennett provided some minimal elaboration on these
claims. We have noted that a district court is “entitled to disregard
references to depositions and other discovery materials that ap-
peared only in the supporting brief, and to decide the motion based
on the factual record outlined in” the undisputed statement of facts.
Markham v. White, 172 F.3d 486, 490 (7th Cir. 1999).
No. 01-1939 13
nett emphasizes that she has a higher grade point average
than some of the individuals hired; she also notes that she
holds a master’s degree while some of these individuals did
not. Although many of the comparisons in Ms. Bennett’s
8
brief are either inaccurate or incomplete, they suffer from
a more fundamental flaw. The comparisons are meaningless
absent some information concerning the hiring criteria for
these positions. We conclude that the entry of summary
judgment on these claims is appropriate.
3.
Finally, we must address Ms. Bennett’s contention that
she submitted statistical evidence that demonstrates the
Board engaged in intentional discrimination. In particular,
Ms. Bennett contends that the district court erred in charac-
terizing her expert’s statistical analysis as unreliable. Ar-
guing that her expert used a sound methodology in pre-
paring his data, Ms. Bennett contends that the statistical
evidence is so stark as to warrant only one conclusion: the
School District intentionally discriminates on the basis of
race.
Although we note that statistical evidence, standing alone,
is generally insufficient to prove intentional discrimination,
see Adams v. Ameritech Servs., Inc., 231 F.3d 414, 423 (7th Cir.
8
For instance, Ms. Bennett posits that, while she had four years of
teaching experience, an individual named Hartman who had little or
no teaching experience was hired for a 5th-grade teaching position.
The record, however, indicates that Hartman had, at a minimum,
eight years of teaching experience at the 5th-grade level. Ms. Bennett
also argued that her grade point average was higher than the un-
dergraduate marks of an individual named Bartkus. The statement
is only partially true as Bartkus’ graduate school grade point average
was higher than Ms. Bennett’s.
14 No. 01-1939
2000), we nevertheless consider whether the district court
erred in its analysis of Ms. Bennett’s statistical evidence. In
conducting a statistical analysis, an expert need not include
all measurable variables in his study. See Bazemore v. Friday,
478 U.S. 385, 400 (1986). However, certain factors are crucial
to statistical evidence in Title VII cases. In particular, “prop-
erly identifying the relevant labor market is the key ingredi-
ent in proving Title VII discrimination through the use of
statistics.” EEOC v. Chicago Miniature Lamp Works, 947 F.2d
292, 302 (7th Cir. 1991). In defining the proper labor market,
the expert must identify not only those individuals who are
qualified for the position but also those who are potentially
interested in it. See id.In this case, Ms. Bennett’s expert conducted three statisti-
cal analyses that he contends indicate the School District has
engaged in discriminatory hiring practices. Specifically, he
first compared the racial composition of the School District’s
workforce with that of the general teacher pool in the State
of Illinois during the 1994-1995 school year. The expert also
compared the racial composition of the teachers hired in the
School District between 1990-1997 with that of teachers
employed in the Chicago Primary Metropolitan Statistical
Area (“Chicago PMSA”) during the same period. Finally, he
conducted an analysis comparing the racial composition of
the School District’s applicant flow data to the approximate
number of teachers employed in the Chicago PMSA.
After reviewing this study as well as the expert’s deposi-
tion testimony, we conclude that the district court did not
err when it characterized this statistical analysis as unreli-
able. The study contains several inherent flaws. First, in con-
ducting his analysis, the expert did not consider the degree
to which potential applicants from a place such as the Chi-
cago PMSA would be interested in working in Naperville.
During deposition testimony, he conceded that he was un-
No. 01-1939 15
familiar with the geographic relationship between Naper-
ville and the Chicago PMSA; the study, in fact, did not
account for commuting patterns within the Chicago metro-
politan area—a nondiscriminatory factor that may impact
significantly the validity of the results. Moreover, as the
Board emphasizes, Illinois was selected as a benchmark
because, in the expert’s estimation, it seemed reasonable to
expect that the School District would hire applicants from
within the state. The expert acknowledged that he did not
attempt to verify this theory. Because of these infirmities,
this analysis was properly deemed unreliable. Because Ms.
Bennett has failed to present evidence in support of her
disparate treatment claims, we conclude that the district
court properly entered summary judgment on this portion
of her case.
4.
Ms. Bennett also contends that the Board’s actions vio-
lated § 1981. “The same standards governing liability under
Title VII apply to § 1981 claims.” See Gonzalez v. Ingersoll
Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998). Be-
cause we have concluded that Ms. Bennett is unable to
prove her allegations of disparate treatment under Title VII,
her § 1981 claim must fail as well. The district court cor-
rectly entered summary judgment for the Board on Ms.
Bennett’s § 1981 claim.
B.
Ms. Bennett also submits that the Board has adopted
certain employment practices that create a disparate impact
on the ability of African-Americans to obtain positions with
the School District. A disparate impact claim exists when an
employer has adopted a particular employment practice
16 No. 01-1939
that, although neutral on its face, disproportionally and
negatively impacts members of one of Title VII’s protected
classes. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
986-87 (1988). To establish a prima facie case of disparate
impact, a plaintiff first must “isolate and identify ‘the
specific employment practices that are allegedly responsible
for any observed statistical disparities.’ ” Vitug v. Multistate
Tax Comm’n, 88 F.3d 506, 513 (7th Cir. 1996) (quoting Wat-
son, 487 U.S. at 994). Isolated and singular incidents gener-
ally are insufficient to constitute a specific employment
practice. See, e.g., Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1156
(7th Cir. 1997). Second, the plaintiff must establish a causal
connection between the employment practice and the
statistical disparity, offering “statistical evidence of a kind
and degree sufficient to show that the practice in question
has caused the exclusion of applicants for jobs or promotion
because of their membership in a protected group.” Vitug,
88 F.3d at 513 (quoting Watson, 487 U.S. at 994).
1.
We briefly consider whether Ms. Bennett has identified a
particular employment practice of the School District that
has led to a disparate impact on African-American appli-
9
cants. Ms. Bennett contends that the district court errone-
ously limited its analysis on this matter to a single employ-
9
The Board disputes whether Ms. Bennett actually raised a dis-
parate impact claim with the EEOC. Her charge before the EEOC did
not contain such an allegation. Ms. Bennett contends, however, that
she sent a letter to the EEOC making such a claim. The EEOC has no
record of receiving such a letter, and Ms. Bennett has no documen-
tary proof that it was sent. For purposes of this appeal, we shall
resolve this factual dispute in favor of Ms. Bennett and assume that
the letter was filed with the EEOC.
No. 01-1939 17
ment practice—the School District’s alleged use of all-white
screening committees to interview applicants. According to
Ms. Bennett, she identified at least three other practices that
the district court failed to consider, including the School
District’s alleged failure to hire minorities, its alleged defer-
ral of hiring decisions to the unchecked discretion of an all-
white administrative staff and its alleged violation of state
law by failing to implement a minority recruitment policy.
The district court correctly determined that Ms. Bennett
ought not be permitted to rely on these additional practices
in litigating her disparate impact claim. In her letter to the
EEOC, Ms. Bennett charged the School District with, among
other things, “[p]racticing a hiring system that excludes
African-American teachers from the team that selects and
approves new teachers.” R.110, Ex.5. Notably, the letter
does not reference these other practices. Moreover, during
discovery, the Board, through interrogatories, specifically
asked Ms. Bennett to identify all policies and practices of
the School District that discriminated against minorities.
In response, Ms. Bennett failed to raise any of the addition-
al practices on which she now relies. Indeed, in her response
to the Board’s Rule 56.1 Statement of Undisputed Material
Facts, Ms. Bennett agreed with the Board’s contention that
[t]hrough discovery, Defendants specifically requested
Plaintiff to identify all neutral hiring policies or prac-
tices which formed the basis of her disparate impact
claim. In her written discovery responses, Plaintiff
identified only the District’s use of Caucasian interview-
ers.
R.98, ¶ 82; see R.110, ¶ 82. Although the Rule 56.1 Statement
that Ms. Bennett submitted in support of her cross-motion
for summary judgment contains tangential references to
some of these other practices, she simply failed to identify
them during discovery. Because the Board objected to the
18 No. 01-1939
late inclusion of these practices, there was no constructive
amendment of the complaint, and the district court properly
declined to consider them. See Whitaker v. T.J. Snow Co., 151
F.3d 661, 663 (7th Cir. 1998).
2.
Although Ms. Bennett properly raised the remaining pur-
ported practice—the use of all-white screening commit-
tees—the district court correctly determined that she had
failed to submit facts in support of this allegation. Undoubt-
edly, three white faculty members spoke with Ms. Bennett
when she interviewed for the first position with the School
District. She has presented no evidence other than this sin-
gle incident, however, to support her contention that the
School District employs all-white screening committees
during the interview process. Based on this record, the dis-
trict court properly held that Ms. Bennett failed to prove the
School District had established a policy or practice of using
all-white screening teams.
C.
Finally, we address Ms. Bennett’s contention that she has
asserted viable claims under § 1983 against the Board mem-
bers, in their official and individual capacities. In general
terms, to maintain a claim under § 1983, a plaintiff must
demonstrate that a government official, acting under color
of state law, violated her constitutionally protected rights.
See Stagman v. Ryan, 176 F.3d 986, 999 (7th Cir. 1999). In this
case, Ms. Bennett contends that the Board violated the rights
guaranteed to her under the Equal Protection Clause of the
Fourteenth Amendment. As such, she must prove the Board
engaged in intentional discrimination. See McNabola v. Chi-
cago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993).
No. 01-1939 19
We first turn to Ms. Bennett’s claims against the Board
members in their official capacities. A court may not hold
a government entity, such as a board of education, liable
under § 1983 unless the entity adopted a policy or custom
that resulted in the deprivation of the plaintiff’s constitu-
tional rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978); Kujawski v. Bd. of Comm’rs of Bartholomew Co., 183
F.3d 734, 737 (7th Cir. 1999). A plaintiff may prove “the ex-
istence of municipal policy or custom in one of three ways:
proof of an express policy causing the loss, a widespread
practice constituting custom or usage that caused the loss,
or causation of the loss by a person with final policymaking
authority.” Kujawski, 183 F.3d at 737.
Referencing the 1992 version of School District Policy 4116
(“Policy 4116”), Ms. Bennett contends that the Board “im-
plemented a hiring policy that expressly stated, they had no
reason for recruiting” minorities. Appellant’s Br. at 23. This
allegation misconstrues Policy 4116. In its entirety, the pol-
icy states:
The Board of Education has studied the types of minor-
ity recruitment and hiring efforts which are required or
appropriate, including the issue of whether there is a
local factual basis for adopting an affirmative hiring and
recruitment plan for minorities. The Board of Education
has found no sufficient factual basis for adopting an
affirmative hiring and recruitment plan for Blacks,
Hispanics, Native Americans or Asian and Pacific
Islanders.
Therefore, the District shall continue to recruit qualified
minority job applicants and to hire qualified job appli-
cants on a non-discriminatory basis in accordance with
applicable laws. The Superintendent is directed, at least
once every five years, to analyze whether minorities are
20 No. 01-1939
under-represented in any category of District employ-
ment due to acts of past discrimination.
R.110, Ex.7. Contrary to Ms. Bennett’s allegations, the plain
terms of the policy show no intent to discriminate against
minority applicants. Although declining to implement an
affirmative action policy, the Board reaffirmed its commit-
ment to hiring individuals on a nondiscriminatory basis.
Simply put, Policy 4116 does not establish that the Board
adopted a policy designed to intentionally violate the con-
stitutional rights of minority job applicants.
In addition, Ms. Bennett further submits that the president
of the Board, Ms. Davenport, “admits that she knew of the
state law” requiring implementation of a minority recruit-
ment policy “but she felt there was no need to follow it.”
Appellant’s Br. at 24. This submission is not an accurate
construction of the record. In her affidavit, Ms. Davenport
referenced a provision of the Illinois School Code concern-
ing minority recruitment policies. Under Illinois law, each
school district within the state was “[t]o develop and im-
plement, by 1991, a policy of recruitment and hiring of
minority teachers . . . .” 105 ILCS 5/10-20.7a. Ms. Davenport
indicated that, in accordance with this mandate, the School
District conducted a review of its employment practices and
concluded that grounds did not exist at that time to imple-
10
ment an affirmative action plan. The Board did not in-
dicate that it did not have to follow state law. It conducted
an internal review of its hiring practices and concluded an
10
The School District concedes that it implemented its policy a year
later than called for by the Illinois statute. To the extent Ms. Bennett
contends that this delay evidences the Board’s intent to discriminate
against minorities, the argument is without merit. Ms. Bennett has
proffered no evidence that demonstrates the delay in implementing
the policy harmed her in any manner.
No. 01-1939 21
affirmative action plan was not warranted. These statements
are not probative of an official policy or custom to discrimi-
nate against minority applicants.
In the most conclusory manner, Ms. Bennett posited two
further arguments in support of her contentions. First, she
indicated that the Board admitted to leaving hiring deci-
sions to the unchecked discretion of an all-white supervi-
sory core. Ms. Bennett’s citation to the record, however,
does not bear out this alleged concession. In addition, re-
ferring tangentially to a demographic study conducted at
the behest of the Board, Ms. Bennett argues that the Board
possessed statistical evidence that it failed to hire minority
applicants. The study, however, indicated that the School
District had not engaged in discriminatory hiring practices
towards minority applicants. Accordingly, this argument is
also without merit. Because Ms. Bennett has failed to prove
the existence of a policy or custom that impinged on her
constitutional rights, the district court correctly concluded
that she cannot establish liability against the Board under
§ 1983.
In addition, Ms. Bennett contends that the court should
hold individual school officials liable under § 1983. We,
however, already have addressed and rejected the conten-
tions Ms. Bennett raised in support of her § 1983 claims. Ac-
cordingly, the district court correctly entered summary
judgment on this portion of Ms. Bennett’s claims.
Conclusion
The district court properly granted summary judgment to
the Board. Accordingly, the judgment of the district court is
affirmed.
AFFIRMED
22 No. 01-1939
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-2-02