RODNEY DUSKIN V DEPT OF HUMAN SERVICES
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STATE OF MICHIGAN
COURT OF APPEALS
RODNEY DUSKIN, SYLVESTER BERRY, JR.,
WILLIAM C. BRUCE, LEON L. COLEMAN,
RICARDO H. CUMMINGS, JOHN
DANDRIDGE, DARREN FORD, KENNETH D.
FRANKLIN, DARRYL GARNER, SR., DAMON
S. MOON, MIAN M. RASHID, JEFFREY D.
ROBINSON, CRAIG E. SMITH, BILLY
STARKS, DEMETRIOUS STARLING and ERIC
L. TAYLOR,
FOR PUBLICATION
June 11, 2009
9:05 a.m.
Plaintiffs-Appellees,
v
No. 279151
Ingham Circuit Court
LC No. 06-001459-CD
DEPARTMENT OF HUMAN SERVICES,
Defendant-Appellant.
Advance Sheets Version
Before: Saad, C.J., and Fitzgerald and Beckering, JJ.
SAAD, C.J.
Defendant, the Department of Human Services, appeals the trial court’s order granting
plaintiffs’ motion for class certification. For the reasons set forth in this opinion, we reverse.
I. Nature of the Case
In this employment discrimination case, plaintiffs sought and received class certification
for their claims that Michigan’s Department of Human Services (DHS) discriminatorily denies
male, but not female, racial and ethnic minorities a sufficient number of promotions to
supervisory and management positions. We hold that the trial court clearly erred by certifying
this matter as a class action because plaintiffs plainly did not meet their burden of satisfying the
rigorous requirements of MCR 3.501, especially the commonality and typicality requirements.
The commonality and typicality requirements address the key inquiry in purported class
actions—are there common questions of law and fact that are susceptible to generalized proofs,
or, do individualized questions and proofs predominate, thus making class treatment
inappropriate. And, it is the very nature of plaintiffs’ claims that answers this dispositive
inquiry. Importantly, plaintiffs fail to identify any policy or practice of the DHS that affects the
job opportunities of only ethnic minority males. Instead, plaintiffs make the general allegation
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that there are insufficient numbers of minority males in management or supervisory positions
and they attribute this to what they characterize as a “culture” of discrimination. This
contention, of course, is a broad, conclusory allegation that the DHS has a bias against racial and
ethnic minority males because there are fewer minority males in higher positions. Yet, a
numerical disparity standing alone means nothing, and is simply a number compared to a
different number. A statewide organization like the DHS has a great diversity of jobs and job
requirements, and the determination whether there has been discrimination in awarding
promotions will be very fact-intensive and highly individualized and, thus, entirely inappropriate
for class treatment.
Further, the question of who among many candidates is “best qualified” for a particular
job opening is a complex question even when a single promotion is examined. Indeed, for each
promotion, during the six years at issue here, the fact-finder must examine the number of
applicants, the relevant DHS and pre-DHS work experience and performance reviews of each
candidate, the educational requirements and qualifications of the successful and unsuccessful
applicants, and the identity of various decision makers in a variety of positions and locations
throughout the state. It simply strains credulity to suppose that a jury can render an across-theboard judgment concerning hundreds or thousands of promotional opportunities over many
years, in various locations throughout the state, by a variety of decision makers, and involving
hundreds or thousands of candidates of varying races, ethnicities and genders, and each with
different experience, education, and performance reviews.
Plaintiffs’ case is particularly not conducive to class treatment because it also
encompasses claims involving various racial or ethnic groups and both male and female job
candidates. Specific allegations would potentially include a claim by a man of Arab descent who
was denied a promotion that was given to a woman of Arab descent, or an African-American
man who was denied a promotion that was given to a Hispanic woman or to a Caucasian man.
Such questions demand individual treatment, particularly where successful candidates are also
part of a protected class or share some of the characteristics that plaintiffs claim constituted
discriminatory reasons to deny them promotional opportunities. Moreover, it is a virtual
certainty that the interests of the individual plaintiffs will conflict because it is likely that more
than one plaintiff is seeking appointment to and compensation for the same position that was
allegedly wrongfully denied.
Therefore, after reviewing the allegations, the applicable law, and the briefs and
arguments of the parties, we hold that plaintiffs’ claims are not appropriate for class action
litigation and that the trial court clearly erred by so finding.
II. Facts and Procedural History
In this disparate treatment, employment discrimination suit, plaintiffs allege
discrimination based on race, ethnicity, and gender in promotions to supervisory and
management positions. The proposed class is comprised of all “minority” male employees of the
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DHS, including 616 African-American, Hispanic, Arab, and Asian males in various departments
and offices throughout the state.1 Plaintiffs maintain that, since 2003, fewer minority males have
been promoted within the DHS to the positions of program manager, district manager, county
director, and first line supervisor because of “department wide cultural deficiencies regarding
minority males.” According to plaintiffs, these deficiencies include: ineffective communication
with minority males; a failure to neutrally and consistently apply promotional policies, criteria,
and procedures; a real or perceived preference for the promotion of nonminority male or female
candidates; a failure to recruit or appoint minority males to the DHS leadership academy2 and
supervisory positions; and a failure to hold accountable and train managers about promoting and
working with minority males. Plaintiffs assert that some of the plaintiffs applied for and were
denied promotions or training opportunities for which they were qualified and some of the
plaintiffs were “too discouraged to apply” for promotions “due to [their] frustration with some of
[the DHS’s] supervisory and management employees’ discriminatory attitudes and practices
involving racial and gender bias directed against minority males . . . .”
On the basis of the above grounds, plaintiffs allege that the DHS violated the equal
protection and antidiscrimination clause of Const 1963, art 1, § 2, and the Civil Rights Act, MCL
37.2101 et seq. Plaintiffs asked the trial court to enter a permanent injunction to stop
discrimination against minority male employees, to order the DHS to promote minority male
employees to positions that were denied them, and to provide monetary compensation for
promotional opportunities withheld from class members.
In support of their claims, plaintiffs largely rely on an internal memo authored by DHS
Chief Deputy Director Laura Champagne, dated January 5, 2006. The memo provides, in part:
The Office of Equal Opportunity and Diversity Programs (EODP) is
currently undertaking a series of case studies. These case studies will look at
identifying barriers that specific groups of employees may have in either applying
for or being successful in being promoted into District Manager, County Director,
Section Manager, and first line FIM or Services supervisor positions. The first
part of the study will focus on the impact on minority males in the department for
the above named positions.
On the basis of data collected from the DHS leadership academy, hiring data, and information
gathered through a focus group, the memo cites its “major finding” as follows: “A disparity
1
Since the filing of this appeal, the parties agree that a small percentage of potential plaintiffs
have opted out of the class. However, because our analysis focuses on plaintiffs’ 2007 motion
for class certification in the trial court, we need not address this issue in this opinion.
2
According to a memo authored by DHS Chief Deputy Director Laura Champagne, the DHS
leadership academy trains employees with leadership potential for senior level positions
“through a variety of learning opportunities including assessment of personal strengths and areas
needing development, developmental planning, mentoring, action learning, developmental
assignments and learning forums.”
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exists in minority males being promoted into upper management positions, more specifically
program manager, district manager, county director and first line supervisory positions
throughout the Department.” The recommendations to correct the problem include: providing
applicants with more information about screening criteria and job requirements; facilitating
access to position postings; expanding interview training; requiring department-wide consistency
in application submission requirements, screening criteria, and hiring policies; preventing
“working out of class” candidates from competing for positions; requiring diversity on
interviewing panels; and implementing targeted recruiting for the leadership academy.
Plaintiffs filed their complaint on May 24, 2006, and moved to certify the class on
January 8, 2007. The DHS opposed the motion and argued that plaintiffs failed to satisfy the
requirements for class certification under MCR 3.501(A)(1). Citing Neal v James, 252 Mich
App 12; 651 NW2d 181 (2002), and Zine v Chrysler Corp, 236 Mich App 261; 600 NW2d 384
(1999), the DHS further asserted that plaintiffs’ claims are not appropriate for class treatment.
The trial court granted plaintiffs’ motion for certification and ruled that plaintiffs’ proposed class
satisfies the requirements under MCR 3.501(A)(1). With regard to the DHS’s case citations, the
court simply opined:
The case at bar, unlike Neal or Zine, alleges that [the DHS’s] studies
identified barriers that specific groups of employees may have in either applying
for or being considered for promotion into upper level supervisory positions. In
Neal and Zine, there were no such studies performed. The issues in this case deal
with broader, state-wide departmental disparate treatment relating to the lack of
minority males in upper management positions. Incumbent in that issue is the
allegation of bias and employment discrimination based on culture, race, and
gender.
Thereafter, the trial court denied the DHS’s motion for reconsideration, the DHS filed an
application for leave to appeal, and this Court granted the application.
III. Analysis
A. Standard of Review and Applicable Law
We review a trial court’s ruling on class certification under the “clearly erroneous”
standard. Zine, supra at 270. “A finding is clearly erroneous when, although there is evidence to
support it, this Court is left with a definite and firm conviction that a mistake has been made.”
Neal, supra at 15. As the Court in Neal explained at 15:
Pursuant to [MCR 3.501(A)(1)], one or more members of a specific class
may bring suit on behalf of other members of the class only if the following
elements are shown to exist:
“(a) the class is so numerous that joinder of all members is impracticable;
“(b) there are questions of law or fact common to the members of the class
that predominate over questions affecting only individual members;
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“(c) the claims or defenses of the representative parties are typical of the
claims or defenses of the class;
“(d) the representative parties will fairly and adequately assert and protect
the interests of the class; and
“(e) the maintenance of the action as a class action will be superior to
other available methods of adjudication in promoting the convenient
administration of justice.”
“The burden is on the plaintiff to show that the requirements for class certification exist.” Neal,
supra at 16. With regard to that burden, a plaintiff must provide reasonable specificity in the
pleadings to demonstrate that the conditions for certification have been met. Gen Tel Co of the
Southwest v Falcon, 457 US 147, 161; 102 S Ct 2364; 72 L Ed 2d 740 (1982).3 As the United
States Supreme Court further explained in Falcon:
As we noted in Coopers & Lybrand v. Livesay, 437 U.S. 463 [98 S Ct
2454; 57 L Ed 2d 351 (1978)], “the class determination generally involves
considerations that are ‘enmeshed in the factual and legal issues comprising the
plaintiff’s cause of action.’” Id., at 469 (quoting Mercantile Nat. Bank v.
Langdeau, 371 U.S. 555, 558 [83 S Ct 520; 9 L Ed 2d 523 (1963)]. Sometimes
the issues are plain enough from the pleadings to determine whether the interests
of the absent parties are fairly encompassed within the named plaintiff’s claim,
and sometimes it may be necessary for the court to probe behind the pleadings
before coming to rest on the certification question. [Falcon, supra at 160.]
Most importantly, a class “may only be certified if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of [the court rule] have been satisfied.” Id. at 161 (emphasis
added).
B. Numerosity
The first requirement for class certification is that “the class is so numerous that joinder
of all members is impracticable[.]” MCR 3.501(A)(1)(a). In Zine, supra at 287-288, this Court
opined:
There is no particular minimum number of members necessary to meet the
numerosity requirement, and the exact number of members need not be known as
3
Though our Court is not bound by federal decisions interpreting Michigan law, Van Buren
Charter Twp v Garter Belt, Inc, 258 Mich App 594, 604; 673 NW2d 111 (2003), because there is
limited caselaw in Michigan addressing class certification, we may refer for guidance to federal
cases construing the federal rules on class certification, Neal, supra at 15.
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long as general knowledge and common sense indicate that the class is large.
Because the court cannot determine if joinder of the class members would be
impracticable unless it knows the approximate number of members, the plaintiff
must adequately define the class so potential members can be identified and must
present some evidence of the number of class members or otherwise establish by
reasonable estimate the number of class members. [Citations omitted.]
It is not enough for a plaintiff to assert the existence of a large number of class members. To
maintain a lawsuit, the plaintiffs must have suffered an actual injury and, therefore, a plaintiff
must show that the class members suffered the injury for which the lawsuit seeks redress. Id. at
289. In other words, the numerosity requirement is not met if only a portion of the class would
have viable claims.
Here, the trial court ruled that plaintiffs met the numerosity requirement because the
assertion with regard to the 616-member class is the same, “that [DHS’s] promotional
departmental deficiencies creat[ed] an upper-level management disparity . . . .”4 However, the
crux of plaintiffs’ complaint is that plaintiffs were denied promotions and, as a remedy, plaintiffs
ask the trial court to promote minority male employees to positions denied to them because of
discrimination and to compensate them for promotional opportunities they lost. Zine illustrates
how the trial court clearly erred by ruling that the numerosity requirement is satisfied here. In
Zine, the named plaintiffs alleged that booklets provided to purchasers of Chrysler vehicles
contained misleading information about car buyers’ remedies if they received a defective
vehicle. Zine, supra at 265. While the plaintiffs claimed that the class would include more than
half a million people who bought Chrysler vehicles, this Court ruled that the plaintiffs failed to
satisfy the numerosity requirement. Id. at 289. As the Court explained:
Neither Zine nor the Terrys[5] identified a specific number of class
members, but indicated that the class potentially included all 522,658 purchasers
of new Chrysler products from February 1, 1990, onward. However, class
members must have suffered actual injury to have standing to sue, Sandlin [v
Shapiro & Fishman, 168 FRD 662, 666 (MD Fla, 1996)], so plaintiffs must show
that there is a sizable number of new car buyers who had seriously defective
vehicles and lost their right to recovery under Michigan’s lemon law because they
were misled by the documents supplied by Chrysler. Neither Zine nor the Terrys
indicated even approximately how many people might come within this group,
nor did they indicate a basis for reasonably estimating the size of the group.
4
We note that most of the arguments on class certification were conducted off the record by the
trial court. The record further indicates that the parties discussed certain evidence and statistical
information in chambers. It is not apparent from the record what evidence the trial relied on in
granting plaintiffs’ motion for class certification.
5
T. Leonard Terry and Lois Terry were the representative plaintiffs in Zine’s companion case,
Terry v Chrysler Corp.
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Therefore, both Zine and the Terrys failed to show that the proposed class is so
numerous that joinder of all members is impracticable. [Zine, supra at 288-289.]
Here, when plaintiffs moved for class certification, they offered the following argument
to show that the purported class fulfills the numerosity prerequisite:
Defendant currently employs 616 minority males. Joining and trying 616
separate lawsuits involving repetition of evidence and testimony would not only
constitute an impracticable process for the court system, but an extremely time
consuming process for [the DHS’s] management employees. Those crucial
management employees would have no time to do their work. Class certification
would eliminate that burden.
This does not satisfy the numerosity requirement under MCR 3.501(A)(1)(a). While we do not
decide the merits of plaintiffs’ claims, the crux of a disparate treatment claim based on a failure
to promote is that the defendant allegedly discriminated against the plaintiffs in its promotional
decisions on the basis of the plaintiffs’ race, ethnicity, and gender. Plaintiffs have made no
showing of the approximate number of minority male employees of the DHS who applied for
managerial positions for which they were qualified. The record also contains no information
suggesting that less qualified female or nonminority male candidates received the promotions
under circumstances giving rise to an inference of unlawful discrimination. Furthermore,
plaintiffs seek relief in the form of appointments to management positions and monetary
compensation for promotions and training opportunities they were allegedly denied because less
qualified nonminority or female candidates were promoted or accepted into the leadership
academy as a result of the DHS’s allegedly discriminatory policies. Though plaintiffs were not
required to submit evidence with regard to every promotional opportunity each class member
should have received and did not, it was incumbent upon plaintiffs to adequately define the class
and to provide sufficient information to discern how many people fall within this group. By
simply including in the class every African-American, Arab, Hispanic, and Asian male employed
by the DHS and asserting that the class is large, plaintiffs failed to meet their burden of
demonstrating that the numerosity requirement has been met.
To at least raise a presumption that each of the proposed class members suffered a
compensable injury, plaintiffs could have shown that “racial discrimination was the company’s
standard operating procedure―the regular rather than the unusual practice.” Int’l Brotherhood
of Teamsters v United States, 431 US 324, 336; 97 S Ct 1843; 52 L Ed 2d 396 (1977). In other
words, absent factual assertions about the plaintiffs’ specific circumstances related to denial of
advancement opportunities, plaintiffs were required to demonstrate a pattern and practice of
discrimination throughout the department. Id. Alternatively, plaintiffs could have shown that
the class representatives were denied promotional opportunities for which they were qualified
under circumstances giving rise to an inference of discrimination, and then “establish a factual
and legal nexus between their claims and those of the proposed class.” Reyes v Walt Disney
World Co, 176 FRD 654, 658 (MD Fla, 1998), citing Morrison v Booth, 763 F2d 1366, 1371
(CA 11, 1985). Plaintiffs made no such showing.
Though plaintiffs submitted some evidence that there is a disparity in the number of
minority males in management positions at the DHS, and that a focus group of minority males
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perceived the disparity to be the result of discrimination against minority males, plaintiffs have
made no factual showing that the DHS engages in systemic discrimination against minority
males in order to raise a presumption that every minority male employee suffered discrimination
through the denial of promotions or training opportunities. In other words, the existence of a
disparity is not enough to establish that plaintiffs were the victims of discrimination. Plaintiffs
also made no factual showing that the representative plaintiffs were denied promotional
opportunities because of discrimination along with evidence that would “‘bridge the gap’
between their claims and those of the putative class.” Reyes, supra at 658, citing Falcon, supra
at 157-158.
We find equally unavailing plaintiffs’ attempt to expand the number of affected
employees by asserting that some class members chose not to pursue promotional opportunities
because of their perception of racism and gender bias. Were we to accept this as a viable legal
claim, it nonetheless fails without some showing of a pervasive practice or procedure of
discrimination and the estimated number of minority male employees who had promotional
opportunities for which they were qualified but decided that, in light of alleged persistent
discriminatory practices, pursuing the opportunities would be futile. Simply put, plaintiffs
submitted inadequate information for the trial court to perform the “rigorous analysis” necessary
to reasonably estimate the true number of African-American, Arab, Hispanic, and Asian male
employees who might fit within the parameters of the case. Falcon, supra at 161. For these
reasons, we hold that the trial court clearly erred when it ruled that plaintiffs satisfied the
numerosity requirement.
C. Commonality and Typicality
Plaintiffs also failed to establish that the commonality and typicality requirements under
MCR 3.501(A)(1)(b) and (c) are satisfied. As this Court explained in A&M Supply Co v
Microsoft Corp, 252 Mich App 580, 599; 654 NW2d 572 (2002), “MCR 3.501(A)(1)(b)
prescribes that, to certify a class action, there must be common questions of law or fact that
predominate over individual questions.” In Zine, supra at 289, this Court further opined:
The common question factor is concerned with whether there “is a
common issue the resolution of which will advance the litigation.” Sprague v
General Motors Corp, 133 F3d 388, 397 (CA 6, 1998), cert den 524 US 923; 118
S Ct 2312; 141 L Ed 2d 170 (1998). It requires that “the issues in the class action
that are subject to generalized proof, and thus applicable to the class as a whole,
must predominate over those issues that are subject only to individualized proof.”
Kerr v West Palm Beach, 875 F2d 1546, 1557-1558 (CA 11, 1989).
This Court further explained in Tinman v Blue Cross & Blue Shield of Michigan, 264 Mich App
546, 563-564; 692 NW2d 58 (2004):
“It is not every common question that will suffice . . . ; at a sufficiently
abstract level of generalization, almost any set of claims can be said to display
commonality.” Sprague [v Gen Motors Corp, 133 F3d 388, 397 (CA 6, 1998).]
A plaintiff seeking class-action certification must be able to demonstrate that “all
members of the class had a common injury that could be demonstrated with
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generalized proof, rather than evidence unique to each class member . . . . [T]he
question is . . . whether ‘the common issues [that] determine liability
predominate.’” A&M Supply[, supra at 600] (citations omitted).
In other words, for a proper class certification, plaintiffs had to do more than assert that a
common question exists. Rather, to meet their burden, plaintiffs had to demonstrate that, with
regard to the entire class, common factual and legal questions subject to generalized proofs
predominate over individualized questions and individualized proofs.
The typicality requirement often merges with the question of commonality. Falcon,
supra at 157 n 13. A showing of typicality ensures that “the claims or defenses of the
representative parties are typical of the claims or defenses of the class[.]” MCR 3.501(A)(1)(c).
“‘While factual differences between the claims do not alone preclude certification, the
representative’s claim must arise from “the same event or practice or course of conduct that
gives rise to the claims of the other class members and . . . [be] based on the same legal
theory.”’” Neal, supra at 21, quoting Allen v Chicago, 828 F Supp 543, 553 (ND Ill, 1993)
(citations omitted). “Both [the commonality and typicality requirements] serve as guideposts for
determining whether under the particular circumstances maintenance of a class action is
economical and whether the named plaintiff’s claim and the class claims are so interrelated that
the interests of the class members will be fairly and adequately protected in their absence.”
Falcon, supra at 157 n 13. To that end, it is axiomatic that class certification is improper “where
the interests of class representatives and class members are antagonistic.” Bobbitt v Academy of
Court Reporting, Inc, 252 FRD 327, 342 (ED Mich, 2008).
In support of their motion for class certification, plaintiffs asserted that, on the basis of
the disparity in the number of racial and ethnic minority male supervisors and managers at DHS,
common issues predominate because causes for the disparity include ineffective communication,
a non-gender-neutral promotion process, inconsistent policy application, inconsistent application
and screening criteria, lack of accountability, and failure to target minority males in recruiting
efforts. The trial court ruled that plaintiffs met the commonality requirement for the following
reasons: “there are common questions of law and/or facts including, but not limited to, [the
DHS’s] alleged failure to implement gender neutral criteria for promotion, screening criteria,
statistical feedback and accountability.” We hold that the trial court clearly erred when it found
that plaintiffs satisfied the commonality requirement because the predominant factual and legal
inquiries involved are clearly too individualized for class treatment.
Plaintiffs allege that they applied or were available for promotions or acceptance into the
leadership academy and that they were denied one or more advancement and training
opportunities. Plaintiffs further allege that some or all of the plaintiffs chose not to apply for one
or more promotions because they were discouraged by cultural deficiencies at the DHS. Unlike
disparate impact claims involving a challenge to a specific employment practice, a claim of
disparate treatment “weighs against finding the commonality and typicality . . . .” Washington v
Brown & Williamson Tobacco Corp, 959 F2d 1566, 1570 n 10 (CA 11, 1992). “Such claims, by
their nature, are highly individualized and are, therefore, not generally susceptible to class
treatment.” Reyes, supra at 658.
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Plaintiffs attempt to couch their alleged injuries as resulting from a general “culture” of
discrimination against racial and ethnic minority males but, again, they have shown no policy or
practice of discrimination by the DHS that would suggest that common questions predominate
over individual ones. While plaintiffs claim that the internal memo suggests that the DHS
acknowledges its own discriminatory practices, the document says no such thing. To the
contrary, it merely acknowledges a disparity in the number of minority males in management
positions, sets forth complaints by volunteers in the focus group, and recommends that managers
generally provide more information about open positions, ensure consistency in application and
hiring policies, target more employees for the leadership academy, provide interview training,
and ensure diversity on interview panels. This does not, in any sense, suggest the presence of a
standardized employment practice or policy of discrimination. Neal, supra at 18. Nor does a
numeric disparity suggest that any individual discrimination occurred where individual
promotional decisions are based on nondiscriminatory reasons such as work experience,
education, time on the job, work evaluations, or the superior qualifications of other applicants.
Again, these are all based on individual hiring decisions and do not implicate an across-the-board
policy.
Indeed, plaintiffs provide no facts with regard to their allegations of gender-biased,
ethnically biased, or racist promotional decisions. The memo states that members of the focus
group believed that candidates are preselected for positions and they complained about a lack of
information and encouragement from managers. They discussed their “perception” that
managers hire their friends or relatives of friends and that they have a “perception” that the DHS
has a discriminatory culture. But nothing in the memo indicates whether even the complaining
focus group members were denied promotions for which they were qualified. Moreover, nothing
in the memo suggests that the promotional procedures, even if imperfect, were racially biased,
gender-biased, or were applied in a biased manner. Any number of nonminority or female
employees might agree, for example, that job postings should be more prominent, that managers
should not hire acquaintances, or that the DHS should provide additional interview training and
encouragement. And, the alleged “perception” of a bias against minority males simply does not
constitute a predominant, common question, particularly because proving such an assertion
would require individualized proofs to connect that perception with particular employment
decisions. See Sampleton v Potter, 271 F Supp 2d 90, 95-96 (D DC, 2003).
If the DHS used “biased testing procedure[s] to evaluate both applicants for employment
and incumbent employees, a class action on behalf of every applicant or employee who might
have been prejudiced by the test clearly would satisfy the commonality and typicality
requirements . . . .” Falcon, supra at 159 n 15. Alternatively, plaintiffs might satisfy the
commonality requirement if they presented “[s]ignificant proof that an employer operated under
a general policy of discrimination . . . if the discrimination manifested itself in hiring and
promotion practices in the same general fashion, such as through entirely subjective
decisionmaking processes.” Id. At most, the evidence presented by plaintiffs suggests that the
DHS has neutral promotion policies, and there is no suggestion that promotion procedures are
entirely subjective. Again, that plaintiffs perceive that the DHS’s practices nonetheless unfairly
disqualify minority male candidates from promotions and the leadership academy can only be
determined by looking at each promotional decision individually.
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While plaintiffs assert that the class representatives applied for or were available for
promotions, but were not chosen for discriminatory reasons, plaintiffs offer no information about
the representatives’ eligibility and qualifications, what positions they sought, what qualifications
the positions required, and whether a less qualified, nonminority, or female candidate was
promoted instead. And, importantly, plaintiffs fail to explain how the claims of the
representative plaintiffs present a question common to the entire class of every minority male
employee of the DHS. Thus, even if the named plaintiffs offered some basis for their claims,
“[c]onceptually, there is a wide gap between (a) an individual’s claim that he has been denied a
promotion on discriminatory grounds, and his otherwise unsupported allegation that the company
has a policy of discrimination, and (b) the existence of a class of persons who have suffered the
same injury as that individual, such that the individual’s claim and the class claims will share
common questions of law or fact and that the individual’s claim will be typical of the class
claims.” Falcon, supra at 157.
For respondent to bridge that gap, he must prove much more than the
validity of his own claim. Even though evidence that he was passed over for
promotion when several less deserving whites were advanced may support the
conclusion that respondent was denied the promotion because of his national
origin, such evidence would not necessarily justify the additional inferences (1)
that this discriminatory treatment is typical of petitioner’s promotion practices, (2)
that petitioner’s promotion practices are motivated by a policy of ethnic
discrimination that pervades petitioner’s . . . division, or (3) that this policy of
ethnic discrimination is reflected in petitioner’s other employment practices, such
as hiring, in the same way it is manifested in the promotion practices. [Id. at 157158.]
Plaintiffs did not meet the minimum burden to show an agency-wide policy or practice of
discrimination or to show that the representative plaintiffs even have viable disparate treatment
claims that are also common to the class. As the Court in Neal held:
In reviewing the claims of each of the class representatives in the present
case, it is apparent that the only common question presented is whether the
individuals involved were discriminated against because of their race. How these
individuals may have been discriminated against does not involve common issues
of fact or law, but highly individualized questions. The individual factual
circumstances pertinent to each plaintiff will need to be reviewed, and individual,
fact-specific inquires will need to be made in evaluating why certain individuals
were not hired or promoted, or why other individuals were discharged or not
retained. Plaintiffs have simply not shown that there was any specific policy or
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practice followed by defendants to satisfy the “commonality” requirement under
MCR 3.501. [Neal, supra at 20.][6]
For the reasons set forth in Neal, plaintiffs’ claims here are also not appropriate for class
treatment.
We further note that the composition of the proposed class itself draws attention to the
prospective factual and legal disparities among the individual claims. Plaintiffs’ claims include
allegations by male job applicants about promotions given to female candidates of the same race
or ethnicity or another minority race or ethnicity, and claims by male job applicants about
promotions given to Caucasian males, thus raising factual and legal issues relating to allegations
of gender discrimination but not racial discrimination or racial discrimination but not gender
discrimination, or both. Clearly, the proofs and law necessary to establish that the DHS
discriminated against an Hispanic male candidate in favor of African-American female candidate
would differ from those necessary to show that the DHS discriminated against an AfricanAmerican male candidate in favor of an Arab female candidate. And the proofs and law
necessary to establish that the DHS discriminated against an Asian male candidate in favor of a
Caucasian male candidate would differ from those necessary to establish that the DHS
discriminated against a male of Arab descent in favor of a Caucasian female. Simply stated, the
law and the evidence necessary to prove and defend the myriad claims at issue differ
significantly, making class treatment unsound.
In support of the typicality requirement, plaintiffs simply asserted that, because the class
representatives include ethnically diverse males who work at various DHS offices, “it would be
statistically improbable to present a more diverse and representative group of this proposed class
than these proposed representatives.” However, “the ‘mere fact that a complaint alleges racial or
ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be
an adequate representative of those who may have been the real victims of that discrimination.’”
Falcon, supra at 157, quoting East Texas Motor Freight Sys, Inc v Rodriguez, 431 US 395, 405406; 97 S Ct 1891; 52 L Ed 2d 453 (1977). More specifically, that plaintiffs simply share the
6
Here, the record also suggests that individual managers or supervisors made promotional
decisions about which plaintiffs complain. On this issue, we agree with the following
observation by the Court in Oda v State, 111 Wash App 79, 100; 44 P3d 8 (2002):
Where personnel decisions are decentralized, plaintiffs who may be able
to prove in an individual lawsuit that they have encountered intentional
discrimination in their own departments, are frequently unable to show that the
same discriminatory motive is afoot in the institution as a whole. The fact that
numerous individual decisions are made by a large number of department
heads . . . means that there are “individually tailored justifications” for the alleged
discrimination in the case of each [employee]. [Citation omitted.]
-12-
common characteristics of being male and belonging to a racial or ethnic minority is insufficient
to show that the claims of the representative plaintiffs are typical of the class.
As discussed earlier, plaintiffs articulate no factual basis to confirm their individual
disparate treatment claims and they fail to connect their allegations to the other members of the
class. We further observe that typicality cannot be established when it is foreseeable that a
defendant will “raise specific evidence applicable only to each proposed class representative as
to why he or she was not promoted or better trained.” Zachery v Texaco Exploration &
Production, Inc, 185 FRD 230, 240 (WD Tex, 1999). Indeed, the claims are not typical where
the defendant “might have genuine defenses to some [p]laintiffs that are not applicable to
unnamed class members.” Id. On this issue, we note that the DHS submitted evidence with its
motion for reconsideration that calls into question whether some of the representative plaintiffs
were qualified or even eligible for promotion within the DHS during the relevant period.
Plaintiffs do not argue that we should ignore the evidence, but characterize it as “simply fodder
for cross-examination, discovery and contradiction.”
While we decline to assess the substance of the evidence submitted by the DHS with
regard to the viability of the representative plaintiffs’ disparate treatment claims, plaintiffs’
response to the evidence underscores the point articulated above: to defend this action, the DHS
will necessarily present evidence for “cross-examination” or “contradiction” with regard to class
members’ individual allegations that they should have received promotions and did not. That is,
to mount a defense to plaintiffs’ disparate treatment claims, the DHS must have the opportunity
to show the reasons why individual plaintiffs were not or could not be promoted or accepted into
the leadership academy. Thus, with regard to the substantive claims and defenses, individualized
questions clearly predominate over any questions common to the proposed class and plaintiffs
have made no showing that the representative plaintiffs’ claims are typical of the class. Such a
case is uniquely not appropriate for class treatment and the trial court clearly erred by certifying
the class.
D. Adequacy
MCR 3.501(A)(1)(d) requires that “the representative parties will fairly and adequately
assert and protect the interests of the class[.]”
The above factor focuses on whether the class representatives can fairly
and adequately represent the interests of the class as a whole. Under Allen, supra
at 553, this involves a two-step inquiry. “First, the court must be satisfied that the
named plaintiffs’ counsel is qualified to sufficiently pursue the putative class
action. Second, the members of the advanced class may not have antagonistic or
conflicting interests.” (Citations omitted.) [Neal, supra at 22.]
In their motion for class certification, plaintiffs made no showing that plaintiffs’ counsel is
qualified to pursue the class action. The trial court also made no ruling with regard to the
capability of plaintiffs’ counsel. Accordingly, because the record before us is devoid of
information on this issue, we can only conclude that it was clear error for the trial court to find
that plaintiffs satisfied this factor. The trial court also failed to provide the required “rigorous
analysis” to determine whether this prerequisite was satisfied.
-13-
More importantly, however, the nature of plaintiffs’ claims makes it a virtual certainty
that, among the 616 African-American, Arab, Hispanic, and Asian male employees, including
the representative plaintiffs, the interests of individual class members will conflict. On this
adequacy requirement, the trial court opined:
Speaking to [a]dequacy, the representative parties are ethnically and
culturally related to the class. Further, the issues and promotional allegations
regarding state-wide departmental deficiencies are asserted by the class. Thus,
the interests of the class are protected by the representative parties.
In essence, the trial court concluded that, because the representative plaintiffs are minority males
and the claims involve agency-wide allegations, they “will fairly and adequately assert and
protect the interests of the class[.]” MCR 3.501(A)(1)(d). This reasoning is clearly erroneous
because it ignores the requirements for adequacy of representation and also ignores the various
conflicts inherent in plaintiffs’ claims. The reasoning in Neal is again applicable here:
Because there are claims that some members were denied promotions,
there may be conflicts among the class members related to competitions for the
same positions. In addition, because of the highly individualized nature of the
claims presented, it is unlikely that the named plaintiffs can adequately represent
all the interests of the entire class. [Neal, supra at 23].
Here, again, plaintiffs seek as a remedy their appointment to supervisory or managerial positions
and compensation for promotions they allegedly should have received in the past. Not only will
these determinations require highly individualized proofs, it is exceedingly likely that more than
one class member will claim that he is entitled to a particular appointment or that he, rather than
a fellow class member, should be compensated for an appointment for which they previously
competed. While class members need not suffer identical damages, A&M Supply, supra at 600,
their claims must not diverge, Neal, supra at 23. Because the very nature of the claims of
liability and the remedies sought by plaintiffs raise such potential conflicts, and because
plaintiffs have not otherwise demonstrated that the representative plaintiffs can fairly and
adequately represent the interests of the class, the trial court clearly erred in granting plaintiffs’
motion.
E. Superiority
Plaintiffs were also required to demonstrate that “maintenance of the action as a class
action will be superior to other available methods of adjudication in promoting the convenient
administration of justice.” MCR 3.501(A)(1)(e). This is not the case where, as here,
individualized inquiries clearly predominate over any common questions. See Zine, supra at 289
n 14. Further, the defenses to disparate treatment claims involving promotional decisions will be
specific to each plaintiff, will require individualized proofs relating to hundreds of claims, and
will render the action unmanageable as a class action. Moreover, were we to find a generalized
claim here, it would be unfair to bind the entire class of plaintiffs to the judgment reached in this
case if some minority male employees have viable individual claims of disparate treatment.
-14-
IV. Conclusion
Plaintiffs’ claims will inevitably involve very fact-specific, individualized assessments of
hundreds, if not thousands, of promotional opportunities and decisions that, by definition,
implicate numerous applicants, qualifications, positions, locations, and decision makers over
many years. The potential proofs mandate individual, not class treatment. The failure of
plaintiffs to identify an across-the-board practice or policy that negatively affects male racial and
ethnic minorities, for example, in favor of female racial or ethnic minorities, underscores why
this case is wholly inappropriate for class action treatment. Indeed, there is no challenged policy
or practice that affects all class members that, if discriminatory, and if remedied, could
satisfactorily address plaintiffs’ generalized complaints. For these and other reasons detailed in
this opinion, we hold that the trial court clearly erred by certifying this matter as a class action.
Reversed.
/s/ Henry William Saad
/s/ E. Thomas Fitzgerald
/s/ Jane M. Beckering
-15-
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