In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1273
K ATHERINE P UFFER,
Plaintiff,
and
K AREN P ELL, et al.,
Intervening Plaintiffs-Appellants,
v.
A LLSTATE INSURANCE C OMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:04-cv-05764—Jeffrey T. Gilbert, Magistrate Judge.
A RGUED F EBRUARY 23, 2012—D ECIDED M ARCH 27, 2012
Before F LAUM and T INDER, Circuit Judges, and SHADID,
District Judge.
The Honorable James E. Shadid, Chief Judge for the
United States District Court for the Central District of Illinois,
sitting by designation.
2 No. 11-1273
F LAUM, Circuit Judge. Katherine Puffer sued Allstate
Insurance Company (“Allstate”) on behalf of herself
and a putative class, alleging that Allstate carried out a
nationwide pattern or practice of sex discrimination
in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29
U.S.C. § 206(d). In her complaint, she alleged gender-based
earning disparities rooted in differential treatment and
disparate impact theories based on Allstate’s salary,
promotion, and training policies, which left significant
discretion in the hands of individual managers. The
district court denied plaintiff’s motion for class certifica-
tion. In response to the concerns expressed by the court
and in response to the enactment of the Lilly Ledbetter Fair
Pay Act of 2009, Pub L. No. 111-2 (the “Ledbetter Act”),
plaintiff again moved for class certification. This time, she
focused exclusively on Allstate’s uniform compensation
policies. The court again denied certification, citing flaws
in plaintiff’s evidence and the lack of common issues.
Puffer then settled her individual claims with Allstate.
Karen Pell, Gail Howells, and Mary Keith, members of
the putative class, intervened to appeal the denials of
class certification. These intervenors now allege only a
disparate impact theory, claiming that Allstate’s policy of
awarding merit increases based on a percentage of base
pay and Allstate’s policy of comparing salaries to its com-
petitors caused gender-based disparities in earnings.
We shall not reach the merits of this claim, however.
We conclude that intervenors have waived their dis-
parate impact claim by failing to meaningfully develop
No. 11-1273 3
it before the district court. Although plaintiff nominally
mentioned a disparate impact claim in her complaint,
she developed and argued only her pattern-or-practice
claim—a type of intentional discrimination. We therefore
affirm the district court’s denial of class certification.
I. Background
A. Allstate’s Corporate Structure and Policies
Allstate Insurance Company is headquartered in Illinois
and employs 38,000 people throughout the country. In
2002, Allstate created an operating unit called Allstate
Protection, which employs approximately 80% of Allstate’s
personnel. Allstate Protection is organized into different
Areas of Responsibility (“AORs”). The four largest AORs
are Claims, Product Operations, Protection Finance, and
Distribution.
Responsibilities, supervisors, office locations, and
salary grades vary among these AORs. The Claims AOR
handles insurance claims and employs approximately
17,000 people as attorneys, human resources profes-
sionals, information technology specialists, claims in-
vestigators, claims and subrogation service managers,
and project managers. The Product Operations AOR creates
insurance products, prices products, assesses risk, updates
Allstate’s insurance policies, and communicates with
customers. Among its employees are pricing directors,
actuaries, product operations managers, and personal
line directors and managers. The Protection Finance
AOR provides financial support and typically employs
managers with finance or accounting degrees. The Dis-
4 No. 11-1273
tribution AOR works with the insurance agencies that
sell Allstate’s products by developing recognition plans,
directly supporting agents, and promoting business.
The hierarchical structure among the AORs is similar:
entry-level managers are at Salary Grades (“Grades”)
63 and 64; senior managers are at Grade 77; directors are
at Grade 78; appointed officer positions (Assistant Vice
President and Assistant Field Vice President) are at
Grade 80; and elected officer positions (Vice President,
Senior Vice President, and Senior Vice President) are
at Grade 90 and above. At the end of 2003, women com-
prised 61% of Protection employees but only 36% of the
managerial positions and 24% of the officer positions.
At the beginning of each year, managers meet with
their supervisors to discuss major job responsibilities
and individual performance goals. At the end of the
year, supervisors fill out performance development sum-
maries for the managers they oversee. In a process
known as “one-over-one” review, supervisors submit the
performance summaries to their own superiors for input,
review, and approval before turning them over to the
evaluated managers. Allstate also evaluates its managers
based on 17 critical success factors and on Quality Leader-
ship Management Surveys. These evaluations factor into
decisions about merit or promotional salary increases
for managers.
Allstate Protection is allotted a percentage amount
of money annually for merit or promotional salary in-
creases. Allstate’s Human Resources department establishes
an overall range of salary increases in terms of a percentage
No. 11-1273 5
amount for each performance and salary level. These
guidelines are suggestions, leaving supervisors with the
discretion to grant more or less of an increase based on
performance. Salary increases for officers follow a
similar process except that the senior management team
makes the decisions.
B. Procedural Background
Katherine Puffer, the original plaintiff in this suit, worked
at Allstate from 1977 to 2003. She primarily worked in the
Finance AOR, but she also worked in the Production
Operations AOR. By 1993, Puffer had been promoted
eight times.
Puffer alleged that she was sexually harassed by her
supervisor from late-1998 to mid-1999 and that she was
not promoted because she rejected her supervisor’s ad-
vances and because of her gender. She filed a charge
of gender discrimination, sexual harassment, and retalia-
tion with the Equal Employment Opportunity Commis-
sion (“EEOC”) in January 2001, but she did not file
a lawsuit within the required time period after receiving
a right to sue letter. In 2003, Puffer was terminated as
part of a reorganization and officer reduction in force.
Fourteen officers, including Puffer, were terminated at
that time: eleven were male and three were female. Puffer
filed a new charge with the EEOC, alleging gender dis-
crimination and retaliation, and she then timely filed
the complaint in this case.
In her amended complaint, Puffer asserted three
claims. First, she alleged that Allstate discriminated
6 No. 11-1273
against her and a class of female managerial employees
because of their gender and allowed the discrimination
“to exist and go unremedied for so long that it amounts
to a policy or practice and constitutes Allstate’s standard
operating procedure.” Am. Compl. ¶ 38. She alleged
this claim under both “differential treatment and
disparate impact theories of liability under Title VII.” Id.
¶ 53. Second, Puffer alleged a class claim under the
Equal Pay Act, contending that Allstate pays putative
class members “lower wages than male employees in
substantially equal jobs even though Plaintiffs and all
others similarly situated performed similar duties re-
quiring the same skill, effort, and responsibility of male
employees” and performed “substantially equal work.”
Id. ¶¶ 57, 59. Third, Puffer alleged an individual claim
of retaliation under Title VII and the Equal Pay Act.
At the time Puffer filed her complaint, case law supported
the “paycheck accrual rule,” such that a new claim under
Title VII arose each time an employer issued a paycheck
reflecting discriminatory wages, even if the discrim-
inatory decision setting the amount occurred outside the
limitations period (i.e., more than 300 days before the
filing of the first EEOC charge). But in 2007, in Ledbetter v.
Goodyear Tire & Rubber Co., the Supreme Court held that
present effects of a discriminatory decision that predated
the limitations period could no longer form the basis for
Title VII liability. 550 U.S. 618, 632, 643 (2007).
On November 8, 2007, after substantial discovery,
Puffer moved for class certification pursuant to Federal
Rules of Civil Procedure 23(b)(2) and 23(b)(3) of her Title
No. 11-1273 7
VII claims. She sought to certify a class of approximately
1700 female managers in the position of division or de-
partment manager (Grade 63) and above who worked
or continue to work at Allstate Protection since May 9,
2001. Members of the putative class held 275 different
jobs in a hundred offices across the country. Eighty
percent of the putative class was employed in en-
try-level management positions, with the remainder of
the class in higher management and officer positions.
Plaintiff argued that Allstate has a “strong paternalistic
culture” and further that “Allstate Protection’s organiza-
tional structure vests all authority to choose, advance
and compensate staff in the male-dominated, senior
manager ranks.” Pl.’s Class Cert. Mem. 1.
The parties briefed the class certification motion for
nearly a year. They offered the opinions of two statisti-
cians, two sociologists, two industrial psychologists,
and 84 fact witnesses. Plaintiff’s main expert, Dr. Janice
Madden, presented statistical evidence indicating that, from
2001 through 2005,1 women earned substantially lower
wages than men did at every salary grade—even after
accounting for job code, tenure, and other variables.
Plaintiff also presented the expert report of Dr. Cristina G.
Banks, an industrial and organizational psychologist,
and Dr. Barbara Reskin, a sociologist. Allstate countered
with analysis from its own experts, including labor econo-
1
In 2006, Allstate apparently adjusted the earnings levels of
women to eliminate observed gender disparities within job
codes.
8 No. 11-1273
mist Dr. Robert Topel, industrial psychologist Dr.
Kathleen K. Lundquist, and sociologist Dr. Christopher
Winship.
On January 15, 2009, Magistrate Judge Schenkier
denied plaintiff’s motion for class certification. The
42-page opinion discussed the pattern-or-practice claim
almost exclusively, mentioning the disparate impact
claim in a footnote but providing no separate analysis.
Although the court found that the putative class
satisfied Rule 23(a)’s numerosity and adequacy require-
ments, the court found that it failed to satisfy the com-
monality requirement. The court stressed the heterogeneity
of the class members and the individual decisionmakers.
The court found plaintiff’s expert reports only minimally
probative of commonality and found the declarations
to demonstrate a lack of commonality. The court discounted
Dr. Madden’s statistical analysis because it included
wage differentials that predated the class period (contrary
to Ledbetter), because it failed to account for “measures of
productivity,” and because it revealed significant varia-
tions in the standard deviations between salary grades.
The court also determined that plaintiff failed to meet
the typicality requirement because the claims and de-
fenses would necessitate individualized inquiries.
The district court concluded that, even if plaintiff
could satisfy commonality and typicality, she failed to show
that certification was proper under either Rule 23(b)(2) or
(b)(3). The court rejected the propriety of a Rule 23(b)(2)
class since plaintiff sought primarily money damages. The
court also found a Rule 23(b)(3) class to be inappropriate,
No. 11-1273 9
concluding that common issues did not predominate
based on the individualized inquiries that would be
necessary to determine the reason for each employment
action. The court determined that a class action was not
the superior means to adjudicate the claim because 1700
individual jury trials would be needed to decide damages,
constitutional questions would arise by having different
juries examine the liability issue, and the individual
class members had sufficiently large stakes to be able to
afford to litigate on their own.2
Soon after the district court’s decision, President
Obama signed the Ledbetter Act, effectively overruling
the Supreme Court’s Ledbetter decision and retroactively
reinstating the paycheck accrual rule.
On September 11, 2009, plaintiff moved again for class
certification and argued that the court should reconsider
the evidence submitted in light of the Ledbetter Act.
She substantially narrowed her argument in this motion,
arguing only that Allstate’s uniform annual salary
review and competitive pay analysis disadvantaged
female managers. Although she used the terms “disparate
impact” and “pattern-or-practice” to describe her claims
in her motion for class certification, her supporting memo-
randum discussed factual allegations and legal argu-
ments only in support of the pattern-or-practice claim.
On October 8, 2009, Magistrate Judge Schenkier issued
an extensive oral decision denying plaintiff’s second
2
Twenty-five members of the putative class later pursued
individual claims.
10 No. 11-1273
motion for certification. The court acknowledged that
plaintiff had made a “genuine effort” to address his con-
cerns but concluded that the renewed motion still
failed to satisfy Rule 23. Regarding its commonality con-
cerns, the court criticized Dr. Madden’s analysis for
failing to control for all of the variables, failing to
consider the influence of performance assessments on
salary differences, and failing to control for job location
(relevant for looking at the actions of particular supervi-
sors). The court expressed that the significant variations
in standard deviations by salary grade suggested
that differentiations existed that were not adequately
explained by the statistical analysis. The court was not
persuaded by plaintiff’s narrowing of the class certifica-
tion claim to external review of salary decisions because
the court found it to be inseparable from internal issues
and because Dr. Madden’s analysis had examined both.
The court did not address the effect of the Ledbetter
Act since unrelated deficiencies convinced the court
that plaintiff failed to establish commonality. Although
plaintiff eliminated her claim for compensatory damages,
the court still determined that the putative class failed
to meet Rule 23(b)(2) because backpay would be substan-
tial (possibly $85 million) and because declaratory relief
would be only backwards-looking. The court also ex-
pressed concern about the lack of an opt-out right.
The court likewise found Rule 23(b)(3) to be an inappro-
priate basis for certification based on its previous con-
cerns about predominance and superiority.
Puffer’s case was then transferred to Magistrate
Judge Gilbert. On January 7, 2011, Puffer settled her
No. 11-1273 11
individual claims with Allstate. The court dismissed her
case with prejudice, thus making the denials of class
certification final and appealable.
Putative class members Karen Pell, Mary Keith,
and Gail Howells moved to intervene to appeal the
January 15, 2009 and October 8, 2009 denials of class
certification. Pell worked for Allstate from 1973 to 1989
and again from 1995 to 2006, in three northeastern states.
She briefly worked as a Frontline Performance Leader
(Grade 63) before being demoted to a desk position
in 2005. Keith worked for Allstate from 1980 to 2009,
predominantly in the Finance AOR. She last worked as a
Director in Finance (Grade 78). Howells worked for
Allstate from 1984 to 2006, primarily in the Distribution
AOR in the South West Region. She worked in several
Grade 64 management positions. Magistrate Judge Gil-
bert granted their motion to intervene on January 28, 2011.
Intervenors appeal only the denial of certification
for the Title VII disparate impact challenge under
Rule 23(a), (b)(3), and (c)(4). They claim that Allstate’s
salary administration process, which determines merit
increases based on a percentage of base pay and an external
market comparison, had a disparate impact on female
managers between 2002 and 2005. They do not appeal
the denial of class certification as to the pattern-or-
practice claim of intentional discrimination, in light of
the Supreme Court’s decision in Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541 (2011). They rely on the statistical
reports from Dr. Madden, but they do not rely on the
report of Dr. Banks, who had stated that bias stems
12 No. 11-1273
from the exercise of discretion and that performance
evaluations are not conducted consistently between
regions or supervisors, or on the report of Dr. Reskin,
who has opined that Allstate has a paternalistic culture
and that the exercise of discretion contributes to the
systematic disadvantage of the female managers.
II. Discussion
A. Standard of Review
We review the district court’s denial of a motion for
class certification for an abuse of discretion, but we
review the court’s purely legal determinations de novo.
Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th
Cir. 2008). A plaintiff who moves for class certification
must satisfy the numerosity, commonality, typicality, and
adequacy of representation requirements of Rule 23(a),
as well as at least one subsection of Rule 23(b). FED. R.
C IV. P. 23; see also Arreola v. Godinez, 546 F.3d 788, 797
(7th Cir. 2008).
Intervenors argue for de novo review, contending
that the district court applied the wrong standard under
Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), and that
we should reconsider their claim in light of Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In particular,
intervenors argue that the district court failed to
analyze plaintiff’s disparate impact claim separately from
her pattern-or-practice claim. We fully recognize this
argument, but, as we explain in the following section,
we conclude that the district court’s approach resulted
No. 11-1273 13
from plaintiff’s insufficient presentation of the disparate
impact claim.
B. Waiver of Disparate Impact Claim
Allstate contends that plaintiff failed to adequately
present a disparate impact claim based on a uniform
salary administration policy to the district court such
that intervenors are now barred from making such a claim
on appeal. After reviewing the motions and memoranda
filed by plaintiff, we agree with Allstate that plaintiff
did not adequately present her disparate impact claim
to the district court. Because plaintiff did not preserve
this claim, intervenors may not rely on it as the basis
for their appeal. The waived disparate impact claim is
the only claim that intervenors appeal, and therefore
we must affirm the district court’s denial of certification.
1. Legal Framework
Disparate impact claims require no proof of discrimina-
tory motive and “involve employment practices that are
facially neutral in their treatment of different groups but
that in fact fall more harshly on one group than another
and cannot be justified by business necessity.” Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).
By contrast, differential treatment claims, also known
as disparate treatment claims, require plaintiffs to prove
discriminatory motive or intent. See id. at 335-36.
Pattern-or-practice claims, like differential treatment
claims, represent a theory of intentional discrimination.
14 No. 11-1273
Council 31, Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO
v. Ward, 978 F.2d 373, 378 (7th Cir. 1992). Pattern-or-practice
claims require a “showing that an employer regularly
and purposefully discriminates against a protected
group.” Id.; see also King v. Gen. Elec. Co., 960 F.2d 617, 623
(7th Cir. 1992). Plaintiffs must prove that discrimination
“was the company’s standard operating procedure—the
regular rather than the unusual practice.” Int’l Bhd. of
Teamsters, 431 U.S. at 336; see also id. at 360 (“[A]t the
liability stage of a pattern-or-practice trial the focus often
will not be on individual hiring decisions, but on a pat-
tern of discriminatory decisionmaking.”). As one circuit
has observed, “[i]n every instance in which the phrase
has been used by the Supreme Court, a ‘pattern or practice’
claim under Title VII refers to a pattern or practice of
disparate treatment, rather than disparate impact.”
Wessman v. Gittens, 160 F.3d 790, 817 n.20 (1st Cir. 1998); see
also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 409 (5th
Cir. 1998) (referring to a pattern-or-practice claim as a
“systemic disparate treatment theory”). We have referred
to a pattern-or-practice case as a “means of proving inten-
tional discrimination [that] is distinct from a disparate
impact case, where the plaintiff need not make any showing
of the employer’s intent.” Council 31, 978 F.2d at 378.
For disparate impact claims, a plaintiff must establish
that a particular employment practice causes a disparate
impact on a member of a protected class. 42 U.S.C.
§ 2000e-2(k); Adams v. City of Chicago, 469 F.3d 609, 613
(7th Cir. 2006). To satisfy this burden, the plaintiff is
“responsible for isolating and identifying the specific
employments practices that are allegedly responsible
for any observed statistical disparities.” Watson v. Fort
No. 11-1273 15
Worth Bank & Trust, 487 U.S. 977, 994 (1988); Bennett v.
Roberts, 295 F.3d 687, 698 (7th Cir. 2002). Notably, “it is
not enough to simply allege that there is a disparate
impact on workers, or point to a generalized policy
that leads to such an impact.” Smith v. City of Jackson,
544 U.S. 228, 241 (2005). Failure to identify the specific
practice could lead to employers being held liable
for “the myriad of innocent causes that may lead to stat-
istical imbalances.” Watson, 487 U.S. at 994. The plaintiff
must also establish causation by “offer[ing] statistical
evidence of a kind and degree sufficient to show that
the practice in question has caused the exclusion of ap-
plicants for jobs or promotions because of their member-
ship in a protected group.” Id. at 994-95. Only if the
plaintiff succeeds in establishing disparate impact does
the burden shift to the defendant-employer to demon-
strate that the employment practice is “job related for the
position in question and consistent with business neces-
sity.” 42 U.S.C. § 2000e-2(k)(1)(A); see also Lewis, 130 S. Ct. at
2198-99. If the employer satisfies this requirement, the
burden shifts back to the plaintiff to show that an equally
valid and less discriminatory practice was available that
the employer refused to use. Adams, 469 F.3d at 613.
2. Intervenors’ Claim on Appeal
After undergoing numerous transformations, inter-
venors’ claim now asserts that Allstate’s annual award
of merit increases based on a percentage of base pay and
its external salary comparison policy, although neutral
on their face, had a disparate impact on women during
the class period. Intervenors claim that undisputed evi-
16 No. 11-1273
dence shows that gender-based disparities in earnings
existed at the beginning of the class period and that
these two policies failed to eliminate these disparities.
With respect to the internal policy, intervenors allege
that the award of merit increases based on percentage
pay caused female managers to receive smaller increases
in terms of actual dollars than similarly situated male
managers. With respect to the external policy, intervenors
allege that the market analysis compared the average
salary by job code to the external market and adjusted
where the average salary fell below 10% of the market
rate. Intervenors claim that this policy failed to correct
gender-based earnings disparities because the average
salary was skewed by disproportionately high salaries
for men.
3. Waiver Analysis
It is a well-established rule that arguments not raised
to the district court are waived on appeal. See Brown v.
Auto. Components Holding, LLC, 622 F.3d 685, 691 (7th
Cir. 2010); Robyns v. Reliance Standard Life Ins. Co., 130
F.3d 1231, 1238 (7th Cir. 1997). Moreover, even argu-
ments that have been raised may still be waived on
appeal if they are underdeveloped, conclusory, or unsup-
ported by law. See United States v. Berkowitz, 927 F.2d
1376, 1384 (7th Cir. 1991) (“[P]erfunctory and undeveloped
arguments, and arguments that are unsupported
by pertinent authority, are waived . . . .”); United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal
‘argument,’ really nothing more than an assertion, does
not preserve a claim.”). We have also recognized that
No. 11-1273 17
raising an issue in general terms is not sufficient to
preserve specific arguments that were not previously
presented. See Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d
834, 841 (7th Cir. 2010). Similarly, we have announced
that “[i]t is the parties’ responsibility to allege facts and
indicate their relevance under the correct legal standard.”
Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d
718, 721 (7th Cir. 2008) (quoting APS Sports Collectibles, Inc.
v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)) (inter-
nal quotation marks omitted) (finding waiver where
plaintiff argued for reversal based on a ground not pre-
sented below). Although plaintiff is not a party to this
appeal, intervenors stand in plaintiff’s shoes and can only
present arguments that she could have appealed. See Champ
v. Siegel Trading Co., 55 F.3d 269, 273-74 (7th Cir. 1995).
Because plaintiff neglected to argue the disparate impact
theory before the district court, it is waived on appeal.
Plaintiff repeatedly and almost exclusively argued to
the district court that she was seeking class certification
under a pattern-or-practice theory. Although her com-
plaint alleged both “differential treatment and disparate
impact theories of liability,” Am. Compl. ¶ 53, she only
provided factual allegations and legal arguments to
support her pattern-or-practice claim.3 She did not argue
3
Although the same set of facts can give rise to claims under
both intentional and unintentional theories of discrimination,
see Int’l Bhd. of Teamsters, 431 U.S. at 335 n.15, plaintiff only
used the facts to develop her pattern-or-practice claim. The
factual allegations section of plaintiff’s complaint refers to the
“pattern-or-practice” of discrimination at Allstate at least
(continued...)
18 No. 11-1273
that Allstate utilized a facially neutral employment
policy that resulted in a disparate impact, 4 and she did
not cite any disparate impact cases.
In her original motion for class certification, plain-
tiff consistently framed her claim as one of inten-
tional discrimination: “Puffer brings this case as a pat-
tern-or-practice case, and has the prima facie burden of
showing that unlawful discrimination based upon sex
was the employer’s regular policy.” Pl.’s Class Cert. Mem.
24; see also id. at 1 (“Allstate steered women into these
lower-paying, female-dominated jobs.”). Plaintiff em-
phasized that “the disparities in job assignment and
compensation result from the strong paternalistic cul-
ture at Allstate.” Id. at 1. She argued that the “organiza-
tional structure vests all authority to choose, advance
and compensate staff in the male-dominated, senior
manager ranks” and that the “employment policies
allow management to apply their own subjective
views, without explanation or accountability, of whom
to promote or develop.” Id. Plaintiff referred to her case
as a “pattern-or-practice” case repeatedly when arguing
that her proposed class satisfies the commonality, pre-
dominance, and superiority requirements of Rule 23. See,
e.g., id. at 24, 26 (“[C]lass-wide proceedings would defini-
3
(...continued)
eight times but refers not once to “disparate impact.” Am.
Compl. ¶¶ 4, 5, 6, 12, 15, 18, 26, 35.
4
To the contrary, plaintiff argued that Allstate’s compensa-
tion policies were not gender neutral. Pl.’s Corr. Second Class
Cert. Mem. 7, 12, 18.
No. 11-1273 19
tively settle the common pattern-or-practice issue.”), 27-
29; Pl.’s Class Cert. Reply 25-26. But plaintiff’s first
class certification motion and memorandum are void of
any allegations related to a theory of unintentional dis-
crimination, which is the only theory that intervenors
raise on appeal.5
Similarly, in her second motion for class certification,
plaintiff asserted in one sentence that she was alleging
both disparate impact and differential treatment claims,6
but she failed to support this bare and conclusory asser-
tion. In the memorandum, she focused her allegations
on Allstate’s uniform compensation policies, but she
nowhere labeled this claim as a disparate impact claim
and she nowhere cited to disparate impact case law. In-
stead, she repeatedly characterized her claim as a pattern-
or-practice claim, see, e.g., Pl.’s Corr. Second Class Cert.
5
In responding to Allstate’s waiver argument, intervenors
do not direct our attention to any disparate impact arguments
made by plaintiff in support of her first motion for class cer-
tification. See Intervenors’ Reply 22-23.
6
Allstate asserts incorrectly in its brief that the phrase “dispa-
rate impact” does not appear a single time in plaintiff’s sec-
ond motion for class certification. The motion states: “Plain-
tiff alleges, among other things, that Allstate engaged in a
pattern or practice of intentional gender discrimination and
employed compensation policies and practices that had a
disparate impact on women managers . . . .” Pl.’s Corr. Sec-
ond Mot. Class Cert. 2 (emphasis added). Notwithstanding
Allstate’s erroneous assertion, plaintiff’s singular reference
to “disparate impact” is not sufficient to preserve this
theory of liability for appeal. See Berkowitz, 927 F.2d at 1384.
20 No. 11-1273
Mem. at 12-18, and she relied on cases that exclusively
discuss intentional discrimination. See, e.g., id. at 17.
The district court acknowledged that plaintiff alleged
both disparate treatment and disparate impact claims
in her complaint, and the court briefly addressed the
legal distinctions between these two claims. The district
court, however, almost exclusively analyzed plaintiff’s
disparate treatment claim. The district court did not
distinguish the intentional and unintentional discrimina-
tion theories when finding a lack of commonality and
predominance. The court stated that the proposed class
members would need to prove the individualized
issue of discriminatory motive, even though the court had
noted elsewhere that “motive is irrelevant” in disparate
impact claims and that business necessity—a non-individu-
alized issue—is the only defense available to rebut a
prima facie disparate impact claim. The minimal atten-
tion that the district court gave to plaintiff’s disparate
impact claim can be directly attributed to the scant
support that plaintiff provided for this claim. Plaintiff
only sufficiently developed her claim of intentional discrim-
ination—thus, this is the only claim that the district court
fully addressed and the only claim that is preserved for
appeal.
In Pond v. Michelin North America, Inc., we determined
that plaintiff had waived her disparate impact argu-
ment because her reliance on the McDonnell Douglas
framework in her briefing demonstrated that she was
raising solely a claim of disparate treatment. 183 F.3d
592, 597 (7th Cir. 1999). We found her two references to
support in the record to be insufficient, stating that
No. 11-1273 21
“[a]rguments not raised in district court are waived
on appeal, as are arguments raised in a conclusory or
underdeveloped manner.” Id. (citation omitted). The
present case is analogous: plaintiff repeatedly labeled
her case as a pattern-or-practice case, and intervenors
are unable to point to any factual or legal support
that plaintiff raised in support of a disparate impact
claim. The few bare assertions are simply not enough.
While we recognize the difficulty presented by shifting
legal doctrine, intervenors still “cannot change course
on appeal to raise an argument different than the one
presented to the district court.” MMG Fin. Corp. v. Midwest
Amusements Park, LLC, 630 F.3d 651, 659 (7th Cir. 2010).
Plaintiff did not meaningfully develop an argument
seeking certification based on a disparate impact theory
of liability. See Econ. Folding Box Corp., 515 F.3d at 720-
21. We therefore conclude that intervenors’ disparate
impact claim is waived.7
7
Even if we had not found the disparate impact claim to be
waived, this claim would fall short on its merits. Intervenors
bear the burden of establishing “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 appli-
cants for jobs or promotion because of their member in a
protected group.’ ” Bennett, 295 F.3d at 698 (quoting Vitug v.
Multistate Tax Comm’n, 88 F.3d 506, 513 (7th Cir. 1996)). They
have not met this burden, nor have they established that
their proposed class satisfies Rule 23.
(continued...)
22 No. 11-1273
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment
of the district court.
7
(...continued)
The record does not support intervenors’ claim that
Allstate’s compensation policies are uniformly applied and
cause gender-based earning disparities. Intervenors present us
with the same expert testimony and record evidence that
plaintiff previously presented when arguing that Allstate’s
salary decisions are decentralized, discretionary, and partially
based on subjective criteria. Intervenors have not established
that Allstate adheres to a uniform salary administration
policy. More importantly, intervenors have not established
that the merit increase and market comparison policies are
the cause of the earnings disparities, as opposed to any of
the other policies that were alleged originally and that the
experts determined to be causes of the disparity. Furthermore,
because intervenors rely on the same report from Dr. Madden
that the district court criticized, they run into similar dif-
ficulties satisfying the commonality and predominance re-
quirements. For example, Dr. Madden did not consider all
relevant variables in one regression, nor did she analyze
whether variations in performance levels could explain varia-
tions in earnings. Moreover, individual issues would certainly
predominate at the damages phase. Bifurcation of the liability
and damages phases under Rule 23(c)(4) would not resolve
this concern because intervenors have not established that
a uniform policy caused the disparity.
3-27-12