1 The members include: Mary Roberts, Marshal Aspinall, Timothy

Costello, Livia McCammon, O.C. Davenport, Brian Barnes and Rudy

Carl.

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

against the seven members1

 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 discriminatory hiring practices. The district court entered summary
2 No. 01-1939

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.

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 Community Unit School District 203 (“the School District”). Comprised of twenty-one grade, junior high and high schools,

the School District serves the community of Naperville,

Illinois2

—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 implemented a standard procedure for processing and retrieving employment applications. Upon receiving an inquiry

about a vacant teaching position, the School District requests that the prospective teacher complete and return two

forms—an application and an information data sheet (“Data

Sheet”). Although these documents seek information concerning the applicant’s work experience, educational background and teaching preferences, neither form requests

information about the race of the prospective teacher.
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 candidate 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 employment 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 subsidiary, interview of the applicant. Although the principal

may consider the recommendations of the staff, he ultimately 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 undergoes 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

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.

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. Bennett 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 application materials she received from the School District contained an additional document—the ISPD’s criminal background 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 received 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 conducting 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

second interview of Ms. Bennett.3

 Two of the staff members

concluded that Ms. Bennett did not possess the skills applicable to the position; the third person was unable to

remember the encounter. McGuff did not recommend Ms.
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 development of math curriculum and lesson planning. The successful 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 vacancy, 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 vacancy 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 resubmitted 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 violation of Title VII, § 1981, § 1983 and the Fourteenth Amendment of the Constitution of the United States. Although the

complaint contained numerous contentions, it repeatedly

alleged that the Board employed all-white screening committees that precluded African-American applicants from
6 No. 01-1939

4 More precisely, the Board sought the entry of summary judgment

in its favor on all of Ms. Bennett’s claims. In comparison, Ms. Bennett’s cross-motion was limited in nature. She only filed for summary

judgment on her disparate impact claims.

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

for summary judgment.4

 The Board contended that Ms. Bennett had failed to prove either disparate treatment or disparate impact under Title VII. In particular, the Board

emphasized that the applicants it had hired for the September 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 position. 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 construed 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 articulated a legitimate nondiscriminatory reason for failing

to hire her for this class of jobs, she argued that it could not
No. 01-1939 7

prevail on these claims. With regard to her allegations under

§ 1983, Ms. Bennett argued that the Board adopted an unconstitutional policy of declining to hire minority applicants. 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 concluded that Ms. Bennett had failed to demonstrate the pretextual 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 precluded its use to prove either her disparate treatment or

disparate impact claims. The court, however, never addressed 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 district 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 interviewing applicants. However, the district court also determined 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 evidence 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 favorable 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

5 Ms. Bennett states that she “explained in her summary judgment

briefs that [the] September 1994 vacancies and all information related

(continued...)

from refusing to hire an applicant because of the individual’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 discrimination cases, most plaintiffs proceed under the indirect method of proof—the McDonnell Douglas test.

Under this indirect methodology, the plaintiff must present 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 protected class; (2) he applied for, and was qualified for, an

open position; (3) the employer rejected him for the position; and (4) the employer filled the position with an individual 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 establishes 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. Seeid. 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 positions for which she received interviews. In her view, the

district court should not have considered these positions

because any claims stemming from them are time-barred.5
10 No. 01-1939

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 incidents 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.

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

of Ms. Bennett’s complaint is time-barred,6

 we conclude that

she has waived appellate review of the September interviews. “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 absolute 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
No. 01-1939 11

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...)

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, because 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 emphasizes that the district court failed to address this aspect

of her claims. In response, the Board submits that Ms. Bennett 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

not address this aspect of Ms. Bennett’s case,7

 we con-
12 No. 01-1939

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-discriminatory reason for not hiring Ms. Bennett. (See Defendants

[sic] summary judgment motion [.])

R.110, ¶¶ 107-09. Ms. Bennett neither elaborated on the job qualifications 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 appeared 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).

clude that summary judgment for the Board remains appropriate 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 contains 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-
No. 01-1939 13

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 undergraduate 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.

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

brief are either inaccurate or incomplete,8

 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 characterizing her expert’s statistical analysis as unreliable. Arguing that her expert used a sound methodology in preparing 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.
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, “properly identifying the relevant labor market is the key ingredient 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 statistical 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 deposition testimony, we conclude that the district court did not

err when it characterized this statistical analysis as unreliable. The study contains several inherent flaws. First, in conducting his analysis, the expert did not consider the degree

to which potential applicants from a place such as the Chicago 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 Naperville and the Chicago PMSA; the study, in fact, did not

account for commuting patterns within the Chicago metropolitan 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 violated § 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). Because 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 correctly 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

9 The Board disputes whether Ms. Bennett actually raised a disparate 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 documentary 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.

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 Watson, 487 U.S. at 994). Isolated and singular incidents generally 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 applicants.9

 Ms. Bennett contends that the district court erroneously limited its analysis on this matter to a single employ-
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 deferral of hiring decisions to the unchecked discretion of an allwhite 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 additional 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 practices which formed the basis of her disparate impact

claim. In her written discovery responses, Plaintiff

identified only the District’s use of Caucasian interviewers.

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 purported practice—the use of all-white screening committees—the district court correctly determined that she had

failed to submit facts in support of this allegation. Undoubtedly, 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 single incident, however, to support her contention that the

School District employs all-white screening committees

during the interview process. Based on this record, the district 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 members, 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. Chicago 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 constitutional 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 existence 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 “implemented 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 policy states:

The Board of Education has studied the types of minority 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 applicants 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

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.

under-represented in any category of District employment 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 commitment 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 constitutional 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 recruitment 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 concerning minority recruitment policies. Under Illinois law, each

school district within the state was “[t]o develop and implement, 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 implement an affirmative action plan.10 The Board did not indicate that it did not have to follow state law. It conducted

an internal review of its hiring practices and concluded an
No. 01-1939 21

affirmative action plan was not warranted. These statements

are not probative of an official policy or custom to discriminate 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 decisions to the unchecked discretion of an all-white supervisory core. Ms. Bennett’s citation to the record, however,

does not bear out this alleged concession. In addition, referring 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 contentions Ms. Bennett raised in support of her § 1983 claims. Accordingly, 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