United States Court of Appeals For the Seventh Circuit
Employment — sex discrimination — class certification
Where a plaintiff nominally alleged disparate impact, but argued only intentional discrimination, class certification was properly denied.
“In Pond v. Michelin North America, Inc., we determined that plaintiff had waived her disparate impact argument 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 ‘[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.”
Appeal from the United States District Court for the Northern District of Illinois, Gilbert, Mag. J., Flaum, J.