COLINDRES v. QUITFLEX MFG. 347 · COLINDRES v. QUITFLEX MFG. 347 Cite as 235 F.R.D. 347 (S.D.Tex. 2006) pel the Deposition of David Graham, M.D. is GRANTED. IT IS FURTHER ORDERED

347COLINDRES v. QUITFLEX MFG.Cite as 235 F.R.D. 347 (S.D.Tex. 2006)

pel the Deposition of David Graham, M.D. isGRANTED.

IT IS FURTHER ORDERED that thedeposition of Dr. Graham shall proceed expe-ditiously, and at a time outside of normalworking hours, unless all parties agree other-wise. IT IS FURTHER ORDERED thatthe scope of the deposition shall be limited tomatters relevant to this litigation and towhich Dr. Graham has previously addressed.

,

Fermin COLINDRES, et al., Plaintiffs,

v.

QUIETFLEX MANUFACTURING,et al., Defendants.

Nos. Civ.A. H–01–4319, Civ.A. H–01–4323.

United States District Court,S.D. Texas,

Houston Division.

March 31, 2006.

Background: Present and former Latinoemployees brought suit against manufac-turers and their holding companies underTitle VII and § 1981 alleging race andnational origin discrimination and retalia-tion. The District Court, 228 F.R.D. 567,denied defendants’ motion for protectiveorder. Parties filed various motions, includ-ing defendants’ motion for partial sum-mary judgment as to retaliation claims andplaintiffs’ motions for partial summaryjudgment that defendants were an inte-grated enterprise, and for class certifica-tion.

Holdings: The District Court, Rosenthal,J., held that:

(1) National Labor Relations Board(NLRB) opinion that manufacturer didnot retaliate against protesting work-ers by discharging them did not bar

employees’ retaliation claims, underprinciples of claim or issue preclusion;

(2) fact issues existed as to whether defen-dants were an ‘‘integrated enterprise’’before merger such that they could beheld liable as joint employer;

(3) nineteen claimants would not be dis-missed as sanction for defendants’ ina-bility to depose them;

(4) numerosity, commonality, and typicali-ty requirements for class certificationwere met;

(5) adequacy of representation require-ment was not met insofar as waiver ofcompensatory damages might createconflict of interest between currentand former employees;

(6) for purposes of determining maintaina-bility of class action, punitive damagessought were not incidental to request-ed equitable relief;

(7) proposed class could not be maintainedon basis that party opposing class hadacted or refused to act on groundsgenerally applicable to class, therebymaking appropriate final injunctive re-lief or corresponding declaratory reliefwith respect to class as whole; and

(8) proposed class could not be maintainedon basis that common questions of lawor fact predominated and that classaction was superior to other availablemethods for fair and efficient adjudica-tion of controversy.

Motions granted in part and denied in part.

1. Judgment O584

Doctrine of ‘‘res judicata,’’ or claim pre-clusion, bars relitigation of claim that partyraised or could have raised in a prior adjudi-cation.

2. Administrative Law and ProcedureO501

Agency adjudication can have a preclu-sive effect in later judicial proceedings.

348 235 FEDERAL RULES DECISIONS

3. Judgment O540

Doctrine of ‘‘claim preclusion’’ applieswhen there was a prior final judgment on themerits, the prior judgment was betweenidentical parties or those in privity withthem, and there is a second action based onthe same claims that were raised or couldhave been raised in the first action.

See publication Words and Phrasesfor other judicial constructions and def-initions.

4. Judgment O634, 713(1)

Issue preclusion, or ‘‘collateral estoppel,’’prohibits relitigation of issue of fact or lawwhen issue is actually litigated, determinedby a final judgment, and essential to thejudgment of a prior tribunal.


5. Civil Rights O1243

To present prima facie case of retaliationunder Title VII or § 1981, employee mustshow that (1) he engaged in a protectedactivity, (2) he was subjected to an adverseemployment action, and (3) a causal link ex-ists between the protected activity and theadverse employment action. 42 U.S.C.A.§ 1981; Civil Rights Act of 1964, § 704(a), 42U.S.C.A. § 2000e-3(a).

6. Civil Rights O1405, 1541

Once employee makes prima facie caseof retaliation, burden shifts to employer toproffer a legitimate reason for the adverseemployment action. 42 U.S.C.A. § 1981;Civil Rights Act of 1964, § 704(a), 42U.S.C.A. § 2000e-3(a).


Labor and Employment O1834

National Labor Relations Board(NLRB) opinion that employer’s decision tofire employees who engaged in work stop-page did not violate NLRA would not begiven preclusive effect to bar employees’ Ti-tle VII retaliation claims, which could nothave been raised in unfair labor practiceproceeding. National Labor Relations Act,§ 8(a)(1), 29 U.S.C.A. § 158(a)(1); Civil

Rights Act of 1964, § 704(a), 42 U.S.C.A.§ 2000e-3(a).


Labor and Employment O1834

National Labor Relations Board(NLRB) finding in unfair labor practice pro-ceeding that, while employees initially en-gaged in protected concerted activity whenthey began work stoppage, they were dis-charged for remaining on employer’s proper-ty after being asked repeatedly to leave, didnot have preclusive effect on employees’ TitleVII retaliation claims; while parties stipu-lated before NLRB that employees were dis-charged for refusing to vacate employer’sproperty and not for refusing to return towork, which would have been protected activ-ity, employees submitted declarations thatmanagement threatened to fire them not onlyfor remaining on premises but also if theydid not return to work, and issue of whetheremployees were discharged for engaging inwork stoppage was not actually litigated.National Labor Relations Act, §§ 7, 8(a)(1),29 U.S.C.A. §§ 157, 158(a)(1); Civil RightsAct of 1964, § 704(a), 42 U.S.C.A. § 2000e-3(a).

9. Labor and Employment O25

Four factors determine whether twoentities may be held liable as a ‘‘joint em-ployer’’: (1) interrelation of operations, (2)centralized control of labor relations, (3)common management, and (4) common own-ership or financial control.


10. Corporations O1.7(2)

A strong presumption exists that a par-ent corporation is not the employer of itssubsidiary’s employees, and only evidence ofcontrol suggesting a significant departurefrom the ordinary relationship between aparent and its subsidiary, such as dominationsimilar to that which justifies piercing thecorporate veil, can overcome the presump-tion.


11. Corporations O1.5(3)Existence of common management and

ownership and normal incidents of a parent-subsidiary relationship, such as parent’s rightto select directors and to set general policies,do not justify treating parent and its subsid-iary as a single employer.

12. Corporations O1.5(3)Factors suggesting interrelated opera-

tions between parent and subsidiary includeevidence that parent (1) was involved directlyin subsidiary’s daily decisions relating to pro-duction, distribution, marketing, and adver-tising, (2) shared employees, services, rec-ords, and equipment with subsidiary, (3)commingled bank accounts, accounts receiv-able, inventories, and credit lines, (4) main-tained subsidiary’s books, (5) issued subsid-iary’s paychecks, or (6) prepared and filedthe subsidiary’s tax returns; existence of anyof these factors is not dispositive.

13. Federal Civil Procedure O2497.1Genuine issues of material fact, as to

whether before merger parent corporationexcessively influenced or interfered with sub-sidiary’s business operations and made finaldecisions regarding employment matters re-lating to proposed class, precluded summaryjudgment in discrimination suit that parentand subsidiary were an ‘‘integrated enter-prise’’ and thus could be held liable as a jointemployer.

14. Federal Civil Procedure O1278Dismissal with prejudice as sanction for

violation of discovery order is a draconianremedy and the remedy of last resort; thelaw favors the resolution of legal claims onthe merits, and dismissal is a severe sanctionthat implicates due process. Fed.Rules Civ.Proc.Rule 37(b)(2)(C), 28 U.S.C.A.

15. Federal Civil Procedure O1278Factors which must be present before

district court may dismiss case as sanctionfor violating discovery order are that (1)refusal to comply must result from willful-ness or bad faith and be accompanied by aclear record of delay or contumacious con-duct, (2) violation of discovery order must beattributable to client instead of attorney, (3)violating party’s misconduct must substan-

tially prejudice opposing party, and (4) de-sired deterrent effect must not be able to besubstantially achieved by a less drastic sanc-tion. Fed.Rules Civ.Proc.Rule 37(b)(2)(C),28 U.S.C.A.

16. Federal Civil Procedure O1451

In employment discrimination class ac-tion, nineteen claimants would not be dis-missed as sanction for noncompliance withdiscovery order based on defendants’ inabili-ty to depose them, one because he ignoredproperly served deposition notice, six be-cause they failed to appear for their sched-uled depositions and twelve because EqualEmployment Opportunity Commission(EEOC) gave incorrect contact informationfor them and they could not be served; defen-dants had deposed more than 80 individualsand had not shown that any of the claimantsthey were unable to depose would have likelyoffered new or different information. Fed.Rules Civ.Proc.Rule 37(d), 28 U.S.C.A.


Prima facie elements of claim for ‘‘dispa-rate treatment’’ are that (1) plaintiff is mem-ber of a protected class under statute, (2) heapplied and was qualified for a job or pro-motion for which his employer was seekingapplicants, (3) despite his qualifications, hewas rejected, and (4) afterwards the positionremained open, and the employer continuedto look for candidates with plaintiff’s qualifi-cations. Civil Rights Act of 1964,§ 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).



A ‘‘pattern or practice’’ of discriminationby the employer requires a showing thatracial discrimination was the company’s stan-dard operating procedure, the regular ratherthan the unusual practice. Civil Rights Actof 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).




Proving a pattern or practice of discrimi-nation is necessary to establish a prima faciecase in a disparate treatment class action;proving isolated or sporadic discriminatoryacts by employer is insufficient. Civil RightsAct of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).


To establish a ‘‘disparate impact’’ claim,plaintiffs must show that there is a specific,facially-neutral employment practice, thatthere is a statistically significant disparityamong members of different groups affectedby the practice, and that there is a causalnexus between the facially-neutral employ-ment practice and the statistically significantdisparity. Civil Rights Act of 1964,§ 703(a)(2), 42 U.S.C.A. § 2000e-2(a)(2).


21. Civil Rights O1140, 1536

To establish disparate impact claim, em-ployees must identify specific practices asresponsible for the asserted disparities, andmust present a systemic analysis of thoseemployment practices to establish their case;once it is shown that the employment stan-dards are discriminatory in effect, employermust meet burden of showing that any givenrequirement has a manifest relationship tothe employment in question. Civil RightsAct of 1964, § 703(a)(2), 42 U.S.C.A. § 2000e-2(a)(2).

22. Jury O14(1.5)

There is no right to jury trial as todisparate impact claim, with important ex-ception of factual issues necessary also todetermine liability on a pattern or practicediscriminatory treatment claim. 42 U.S.C.A.§ 1981a(c).


Class definition must be precise, objec-tive, and presently ascertainable and shouldnot use terms that depend on resolvingclaims on the merits.

24. Federal Civil Procedure O162District court has substantial discretion

in determining whether to certify a class.Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.

25. Federal Civil Procedure O171Before granting class certification, court

must conduct rigorous analysis to determinewhether plaintiffs have met requirements offederal civil rule. Fed.Rules Civ.Proc.Rule23, 28 U.S.C.A.

26. Federal Civil Procedure O174Issue on class certification motion is not

whether the plaintiffs will ultimately prevailon merits of their claims, or strengths andweaknesses of evidence as to defenses; rath-er, court must examine nature of evidencethat will be used to establish claims anddefenses, to determine whether that evidencecan be presented on classwide basis. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.

27. Federal Civil Procedure O172Party seeking class certification bears

burden of showing that requirements of fed-eral civil rule are satisfied. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.

28. Federal Civil Procedure O163Plaintiffs need not provide a precise

number of potential class members to meetthe numerosity requirement for class certifi-cation. Fed.Rules Civ.Proc.Rule 23(a)(1), 28U.S.C.A.

29. Federal Civil Procedure O184.10Numerosity requirement for class certi-

fication was met in employment discrimina-tion suit, where at least 196 Latino employ-ees had worked in one of the departments towhich they were allegedly ‘‘channeled’’ overthree-year period and evidence was present-ed that number of Latino employees in twodepartments during proposed class periodwas approximately 330. Fed.Rules Civ.Proc.Rule 23(a)(1), 28 U.S.C.A.; 42 U.S.C.A.§ 1981; Civil Rights Act of 1964, § 703(a)(1),42 U.S.C.A. § 2000e-2(a)(1).

30. Federal Civil Procedure O165Threshold for commonality is not high; it

is met where there is at least one issue, theresolution of which will affect all or a signifi-


cant number of the putative class members.Fed.Rules Civ.Proc.Rule 23(a)(2), 28U.S.C.A.


Absent class members’ interests neednot be identical to meet the commonalityrequirement for class certification. Fed.Rules Civ.Proc.Rule 23(a)(2), 28 U.S.C.A.


Because predominance is more stringentstandard, finding of commonality does notequate to finding that common issues pre-dominate, for purposes of class certificationrule. Fed.Rules Civ.Proc.Rule 23(a)(2),(b)(3), 28 U.S.C.A.


Like commonality, threshold for demon-strating typicality for class certification pur-poses is low. Fed.Rules Civ.Proc.Rule23(a)(3), 28 U.S.C.A.


The ‘‘typicality’’ requirement for classcertification does not require identity ofclaims, but only that class representative’sclaims have the same essential characteris-tics of those of putative class; if claims arisefrom a similar course of conduct and sharethe same legal theory, factual differences willnot defeat typicality. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.


35. Federal Civil Procedure O184.10

While variations in challenged practicesover time bore on predominance, superiorityand manageability of employment discrimina-tion class action, they did not defeat typicali-ty required for class certification. Fed.RulesCiv.Proc.Rule 23(a)(3), (b)(3), 28 U.S.C.A.


The ‘‘adequate representation’’ require-ment for class certification mandates inquiryinto (1) zeal and competence of representa-tives’ counsel and (2) willingness and abilityof representatives to take active role in andcontrol litigation and to protect interests of

absentees. Fed.Rules Civ.Proc.Rule 23(a)(4),28 U.S.C.A.


37. Federal Civil Procedure O164Differences between named plaintiffs

and absent class members make namedplaintiffs inadequate representatives, forclass certification purposes, only if those dif-ferences create a conflict of interest betweennamed plaintiffs and class members. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.

38. Federal Civil Procedure O184.10For purposes of assessing adequacy of

representation in class employment discrimi-nation action, potential conflict of interestbetween named plaintiffs and class membersis greatest when one class member has, assupervisor, evaluated another class memberwho now challenges evaluation system; thistype of challenge is ineffective if both pro-motional and hiring discrimination are al-leged. Fed.Rules Civ.Proc.Rule 23(a)(4), 28U.S.C.A.

39. Judgment O644, 677As general rule, decision in class action

is binding on parties in subsequent decision.

40. Federal Civil Procedure O184.10For purposes of determining adequacy

of representation in class employment dis-crimination action, eschewing compensatorydamages may create conflict between inter-ests of present and past employees; formeremployees likely have less interest in declar-atory or injunctive relief, although they dohave an interest in back pay, than in compen-satory damages. Fed.Rules Civ.Proc.Rule23(a)(4), 28 U.S.C.A.; Civil Rights Act of1964, § 706(g), 42 U.S.C.A. § 2000e-5(g); 42U.S.C.A. § 1981a(c).

41. Declaratory Judgment O305 Federal Civil Procedure O184.10

In employment discrimination action,fact that claims for declaratory and injunc-tive relief would achieve significant long-termrelief for future employees as well as currentclass members did not mean that class repre-sentation was adequate, although it might


justify certifying smaller class. Fed.RulesCiv.Proc.Rule 23(a)(4), 28 U.S.C.A.


In employment discrimination action,providing notice and opt-out rights to classmembers would not substitute for adequate,conflict-free representation. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.


When class suffers from common injuryand seeks classwide relief, there is a pre-sumption of cohesion required for certifica-tion when party opposing class has acted orrefused to act on grounds generally applica-ble to the class; in contrast, when class seeksmonetary relief, class becomes less cohesivebecause assessing those damages often re-quires examination of individual claims.Fed.Rules Civ.Proc.Rule 23(b)(2), 28U.S.C.A.


Monetary relief ‘‘predominates,’’ makingclass certification improper, unless it is inci-dental to requested injunctive or declaratoryrelief. Fed.Rules Civ.Proc.Rule 23(b)(2), 28U.S.C.A.



For purposes of determining whethermonetary relief is incidental to requestedinjunctive or declaratory relief for class certi-fication purposes, ‘‘incidental damages’’ arethose that flow directly from liability to classas whole on claims forming basis of injunc-tive or declaratory relief and are those towhich class members automatically would beentitled once liability to class or subclass as awhole is established, such as statutorily-man-dated damages award; incidental damagesmust also be capable of computation bymeans of objective standards and not depen-dent in any significant way on the intangible,subjective differences of each class member’scircumstances. Fed.Rules Civ.Proc.Rule23(b)(2), 28 U.S.C.A.



Court should consider three factors indetermining whether damages are incidentalfor purpose of class certification: (1) whethersuch damages are of a kind to which classmembers would be automatically entitled, (2)whether such damages can be computed by‘‘objective standards, and not standards reli-ant upon intangible, subjective differences ofeach class member’s circumstances, and (3)whether such damages would require addi-tional hearings to determine.’’ Fed.RulesCiv.Proc.Rule 23(b)(2), 28 U.S.C.A.


For purposes of determining maintaina-bility of class employment discrimination ac-tion, punitive damages that plaintiff employ-ees sought were not ‘‘incidental’’ to theirrequested equitable relief, where their trialplan proposed to try classwide liability andclasswide injunctive and declaratory reliefand punitive damages at first stage of litiga-tion with jury determining aggregate amountof lost earnings owed to class and measure-ment of front pay during that stage and, ifthey prevailed, court determining amount ofback pay each would receive at second stage.Fed.Rules Civ.Proc.Rule 23(b)(2), 28U.S.C.A.; 42 U.S.C.A. § 1981a(b).


Punitive damages cannot be assessedwithout proof of liability to individual classmembers. Fed.Rules Civ.Proc.Rule 23(b)(2),28 U.S.C.A.


Punitive damages require proof thateach plaintiff was affected by the challengedpolicies and practices in the same way; whenevidence shows that plaintiffs suffered differ-ently under alleged discriminatory practices,classwide punitive damages are inappropri-ate. Fed.Rules Civ.Proc.Rule 23(b)(2), 28U.S.C.A.; 42 U.S.C.A. § 1981a(b).


Back pay is equitable remedy for pur-poses of determining maintainability of classemployment discrimination action; it is notmonetary relief analyzed under an incidentaldamages standard. Fed.Rules Civ.Proc.Rule


23(b)(2), 28 U.S.C.A.; Civil Rights Act of1964, § 706(g), 42 U.S.C.A. § 2000e-5(g).

51. Declaratory Judgment O305 Federal Civil Procedure O184.10

Class proposed by employees could notbe maintained on basis that party opposingclass had acted or refused to act on groundsgenerally applicable to class, thereby makingappropriate final injunctive relief or corre-sponding declaratory relief with respect toclass as whole, because it included classwidepunitive damages determined in initial phase,and employees had not proposed trial plan,nor explored Seventh Amendment implica-tions, of limiting class certification to classseeking only equitable remedies. U.S.C.A.Const.Amend. 7; Fed.Rules Civ.Proc.Rule23(b)(2), 28 U.S.C.A.; 42 U.S.C.A. § 1981a(b).

52. Federal Civil Procedure O165To determine ‘‘predominance’’ for class

certification purposes, court must comparethe issues common among the class membersand the issues individual to them. Fed.RulesCiv.Proc.Rule 23(b)(3), 28 U.S.C.A.


53. Federal Civil Procedure O165Once predominance requirement for

class certification is met, common issues maybe severed for class trial. Fed.Rules Civ.Proc.Rule 23(b)(3), (c)(4), 28 U.S.C.A.

54. Federal Civil Procedure O184.10Recovery of punitive damages in Title

VII cases requires individualized and inde-pendent proof of injury to, and means bywhich discrimination was inflicted upon, eachclass member; these are individual issuesthat will predominate over questions commonto class as whole and defeat certification.Fed.Rules Civ.Proc.Rule 23(b)(3), 28U.S.C.A.; 42 U.S.C.A. § 1981a(b).

55. Federal Civil Procedure O184.10Class proposed by employees could not

be maintained on basis that common ques-tions of law or fact predominated and thatclass action was superior to other availablemethods for fair and efficient adjudication ofcontroversy; proposed class extended to pu-

nitive damages on classwide basis, and em-ployees had not proposed alternative class ortrial plan that would meet predominance re-quirement for certification. Fed.Rules Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.; 42 U.S.C.A.§ 1981a(b).

David G. Hinojosa, David Herrera Urias,Maldef, San Antonio, TX, for Plaintiffs.

Timothy M. Bowne, EEOC, Houston, TX,for Intervenor Plaintiff.

Edwin Sullivan, Kate Lesley Birenbaum,Mark Joseph Oberti, Seyfarth Shaw LLP,Houston, TX, for Defendants.

Gerald L. Maatman, Jr., Christopher A.Garcia, Seyfarth Shaw LLP, Chicago, IL,John L. Collins, Seyfarth Shaw LLP, Paul J.Dobrowski, Dobrowski LLP, Houston, TX,for Defendants and Intervenor Defendants.

Fraser A. Mcalpine, Akin Gump et. al., J.Richard Hammett, Baker & McKenzie, DavidAlfred Kahne, Attorney at Law, Houston,TX, Albert H. Kauffman, Attorney at Law,Leticia M. Saucedo, Maldef, San Antonio,TX, for Intervenor Defendants.

MEMORANDUM AND ORDER

ROSENTHAL, District Judge.

Plaintiffs, present and former employees ofdefendants QuietFlex Manufacturing Co.,L.P., QuietFlex Holding Co., Goodman Man-ufacturing Co., L.P., and Goodman HoldingCo., allege racial and national origin discrimi-nation and retaliation in violation of TitleVII, 42 U.S.C. §§ 2000e et seq., and 42U.S.C. § 1981. The plaintiffs have movedfor class certification under Rule 23(b)(2) and(3) of the Federal Rules of Civil Procedure,seeking injunctive and declaratory relief,back pay, and classwide punitive damages.The EEOC has previously moved for, andthis court has granted, certification of a classalleging a pattern and practice of racial andnational origin discrimination under section706(f)(1) of Title VII, 42 U.S.C. § 2000e–5(f)(1).

The following motions are addressed inthis opinion:


1 Plaintiffs’ motion for class certification(Docket Entry No. 80)

1 The parties’ joint motion to extend theMarch 30, 2006 deadline (Docket EntryNo. 205)

1 Plaintiffs’ motion to substitute namedrepresentatives (Docket Entry No. 208)

1 Defendants’ motion to dismiss nineteenclaimants under Rule 37(d) (Docket En-try No. 215)

1 Plaintiffs’ motion to strike Docket EntryNo. 236 (Docket Entry No. 240)

1 Plaintiffs’ motion for leave to submit re-cently-produced evidence relevant to theissue of class certification (Docket EntryNo. 241)

1 Defendants’ motion for leave to refilesection 11.C of defendants’ June 6, 2005brief (Docket Entry No. 243)

1 Plaintiffs’ motion for summary judgmentthat defendants are an integrated enter-prise (Docket Entry No. 245)

1 Defendants’ motion for leave to file amotion for partial summary judgment asto plaintiffs’ retaliation claims and a sup-plemental response to plaintiffs’ motionfor class certification (Docket Entry No.259)

1 Defendants’ motion for partial summaryjudgment as to plaintiffs’ retaliationclaims (Docket Entry No. 260)

1 Defendants’ motion for leave to file aposthearing supplemental brief (DocketEntry No. 295)

1 Plaintiffs’ motion to reopen discoveryand for leave to file a supplemental briefon the issue of class certification (DocketEntry No. 299)

Plaintiffs have also alleged violations of theFair Labor Standards Act (‘‘FLSA’’), 29U.S.C. § 201 et seq. Defendants have filedmotions for partial summary judgment as tocertain of the individual plaintiffs’ FLSAclaims. Those motions are addressed in aseparate memorandum and opinion.

This court held a four-day hearing on theclass certification motion, hearing testimonyfrom eight current and former employeesand two expert witnesses opining on how tocalculate classwide back pay. The parties

submitted posthearing supplemental expertreports on back pay calculations and, onMarch 10, 2005, presented oral argument onthe class certification motion. Postargumentbriefing followed. Based on the pleadings;the motions, responses, and replies; the par-ties’ submissions; the testimony at the hear-ing; the arguments of counsel; and the ap-plicable law, this court enters the followingrulings:

1 denies plaintiffs’ motion for certificationof classes that include classwide punitivedamages;

1 denies defendants’ motion to dismissnineteen claimants;

1 grants the joint motion to extend thedeadline for deposition of Rule 30(b)(6)witness;

1 grants plaintiffs’ motion to substitutenamed representatives;

1 denies plaintiffs’ motion to strike DocketEntry 236;

1 grants plaintiffs’ motion for leave to sub-mit recently-produced evidence relevantto class certification;

1 denies defendants’ motion for leave torefile section II C of their June 6, 2005brief;

1 denies plaintiffs’ motion for summaryjudgment on the integrated enterpriseissue;

1 grants defendants’ motion for leave tofile a motion for partial summary judg-ment and a supplemental response toplaintiffs’ motion for class certification;

1 denies defendants’ motion for partialsummary judgment as to plaintiffs’ retal-iation claims;

1 grants defendants’ motion for leave tofile a posthearing supplemental brief;and

1 grants plaintiffs’ motion to reopen dis-covery and for leave to file a supplemen-tal brief.

The reasons for these rulings are set outbelow. The court also sets a hearing forApril 14, 2006, at 2:00 p.m., to review theimpact of these rulings and set a scheduleand docket control order.


I. Background

The QuietFlex manufacturing plant inHouston, Texas produces flexible air condi-tioning ducts and component products. Theplant is a large building separated into sixdepartments. Employees are assigned tospecific departments. Department 910 is thedepartment that makes cores and jackets forthe ducts. Department 911 is the depart-ment that assembles the core, jacket, andfiberglass components to create the finishedproducts. Department 906 is the shippingdepartment.

Since approximately the early 1980s, De-partment 910 employees have been almostexclusively Vietnamese. Department 906and 911 employees have been almost all Lati-no. The plaintiffs, present and former em-ployees who were assigned to Departments906 and 911, allege that defendants segregat-ed the unskilled workforce by race. Theplaintiffs allege that defendants ‘‘systemat-ically initially assign Latinos into Depart-ment 911’’ and ‘‘systematically refuse to as-sign Latinos in Department 910.’’ (DocketEntry No. 55, ¶¶ 27–28). The segregationcannot be explained by job skill differences,because Departments 910 and 911 have thesame entry requirements: no skills required.(Id. ¶ 23). The plaintiffs allege that Depart-ment 910 offered the best pay and workconditions in the plant and Department 911the worst. According to the plaintiffs, work-ers in Departments 911 and 906 receive low-er compensation than workers in Department910; have more physically demanding anddangerous jobs; are provided inadequatesafety equipment; and are more frequentlyinjured. (Id. ¶¶ 36–53). The plaintiffs allegethat Department 910 has better working con-ditions than Department 911, where workersare exposed to more fiberglass particles thatitch and irritate the skin. The plaintiffs alsoallege that they were subjected to harass-ment from their supervisors, such as ‘‘inspec-tions’’ that included supervisors ‘‘stomping’’

on employees’ feet, and required to performmenial tasks, such as cleaning lunchroomsand bathrooms, not required of the Depart-ment 910 employees. (Id.; Docket EntryNo. 188 at 22).

The plaintiffs allege that the defendantsperpetuated the discrimination that ‘‘chan-neled’’ Latino workers to Departments 911and 906 and Vietnamese workers to Depart-ment 910 by precluding or deterring Latinosworking in Departments 906 and 911 fromtransferring to Department 910. Two specif-ic policies are alleged: requiring that Latinoapplicants for Department 910 be able tospeak English, without imposing such a re-quirement on Vietnamese applicants for De-partment 910; and adhering to a departmen-tal seniority policy that gives preference toemployees already working in some of theDepartment 910 shifts or sections to transferto other shifts or sections within that depart-ment. (Docket Entry No. 55). Until recent-ly, Department 910 had three shifts and wasorganized into two sections, one for ‘‘jacket’’and one for ‘‘core.’’ If a vacancy arose in thefirst shift, preference would be given to thoseseeking transfer from the second shift, andapplicants from the third shift would be giv-en preference to fill the second shift vacancy.Within sections, jacket department vacancieswere preferred over core department vacan-cies. (Tr. T. III at 145–50). Plantwide se-niority applied after intradepartment seniori-ty.1

The defendants acknowledge that from theearly 1980s, the work force in Department910 was almost entirely Vietnamese and thework force in Departments 911 and 906 al-most entirely Hispanic. Defendants assertthat during the proposed class period, howev-er, there have been significant changes in theconditions that plaintiffs identify as the basisfor their suit. The English-fluency require-ment, according to the defendants, haschanged over time and is not an English-fluency policy applied only to Latinos but

1. The plaintiffs filed an opposed motion for leaveto submit recently-produced evidence of how re-cent openings in Department 910 were filled,arguing that the evidence showed that the defen-dants continued to impose an English-fluencyrequirement on new hires and transfers to thatdepartment. (Docket Entry No. 241). Defen-

dants have responded to the motion, arguing thatthe evidence is not new. The defendants haveshown no unfair surprise or prejudice and havehad a full opportunity to respond to the evidence.The motion for leave to submit evidence on re-cent hires and transfers in Department 910 isgranted.


rather a policy requiring that all employeesbe able to communicate with supervisors.For a long period, the supervisors in Depart-ment 910 only spoke Vietnamese or English,but defendants assert that they have now putSpanish-speaking supervisors in at leastsome shifts. Defendants assert that thetransfer policy of intradepartmental seniorityhas a legitimate business purpose. Defen-dants also assert that they have made con-certed efforts to increase the number of Lati-no workers in Department 910 since 1997and that most of the recent hires into thatdepartment have been Latino. Since 2002,rather than relying on word-of-mouth to fillvacancies, defendants have used an employ-ment agency for hiring and transfers. De-fendants also assert that work conditionshave changed during the pendency of thissuit. The manufacturing and assembly pro-cess has become increasingly automated,making the work in Department 911 lessphysically demanding. The defendants em-phasize that since the January 2000 walkout,some of the work practices that the plaintiffscite as the most offensive have been changedor abandoned. For example, defendants nolonger require the Latino employees to cleanbathrooms or lunchrooms, and some of thesupervisors who allegedly were the most de-rogatory toward Latino employees have beenfired or replaced. (Tr. T. I at 54, ll. 17–21;Docket No. 194, Ex. 27).

Plaintiffs respond that despite somechanges, defendants have retained policiesand practices that have a discriminatory im-pact or are discriminatorily applied. Forexample, according to plaintiffs, defendants’policy of only allowing employees who haveworked for six months at the plant to trans-fer and only if they have no final warnings

and no other transfers within the past sixmonths is applied consistently to Latino em-ployees but not to Vietnamese employees.Plaintiffs allege that defendants continue topay unequal piece work rates for equivalentwork, resulting in lower pay for Department911 and 906 employees.

The evidence at the class certificationhearing showed that from 1998 to 2002, De-partment 906 was approximately 90.9% His-panic, Department 910 was 7.14% Hispanic,and Department 911 was 97.8% Hispanic.(Docket Entry No. 81, Ex. 2–A at 2). Defen-dants contend that since approximately 2000,and particularly since this lawsuit was filed,they have attempted to increase the numberof Latinos working in Department 910 byallowing Latinos to transfer from Depart-ments 906 and 911 as quickly as vacancies inDepartment 910 occur. Defendants contendthat although the low turnover in Depart-ment 910 has slowed the effort to increasethe number of Latinos in Department 910,from October 10, 1997 to March 15, 2004,twenty of the thirty-six new entrants intoDepartment 910 were Hispanic; eighteen ofthose twenty were hired after October 16,2000; and that ‘‘over the past seven years,more than 60 percent of entrants into De-partment 910 have been Hispanic.’’ (DocketEntry No. 194 at 6–8). Of the thirty-sixentrants into Department 910 from October1997 to March 2004, twelve were Asian andfour African–American.2 The record showsthat Department 911 continues to remainalmost all Latino. (See Defendants’ HearingEx. H (showing that all Department 911employees as of October 2004 were Latino)).

The evidence as to the English-languagefluency requirement for hiring or transfer

2. Defendants have filed a motion for leave to filea posthearing supplemental brief, in which theyargue that the racial makeup of the departmentsat QuietFlex has continued to change over time.(Docket Entry Nos. 295, 296). Defendants arguethat, since March 15, 2004, there have been anadditional 19 entrants into Department 910, and14 of these have been Hispanic. Plaintiffs haveresponded. (Docket Entry No. 299). Plaintiffsargue that they have the burden of showing therequirements for class certification have beenmet and should therefore have the final opportu-nity to be heard on the issue. (Id. at 4). Plain-tiffs argue that defendants’ new evidence has not

been verified and that its allowance would preju-dice them. (Id. at 5). If defendants’ motion forleave to file its brief is granted, plaintiffs ask thatdiscovery be reopened and that plaintiffs be al-lowed to reply. (Id. at 6).

The issue of class certification has been exten-sively briefed by both sides. Defendants’ motionfor leave to file a posthearing supplemental briefis granted, but the additional information doesnot form the basis for the class certification deci-sion. If plaintiffs continue to pursue class certi-fication, they will be permitted to conduct dis-covery to verify the recent information and tosubmit the results to the court.


into Department 910 shows that over time,the postings for vacancies in that departmentchanged from stating that English fluencywas required to stating that those seekingtransfer be able to communicate with theirsupervisors. (Docket Entry No. 116 at 14).The evidence at trial showed that Vietnameseworkers in Department 910 were not re-quired to speak English, but Latino employ-ees seeking employment in that departmenthad to show English-speaking ability.George Ibanez testified that there were non-English-speaking Vietnamese employeesworking in Department 910, even when com-pany policy required workers seeking trans-fer to that department to speak English.(Docket Entry No. 202, Ex. I at 34). Theevidence also showed that during the rele-vant period, some of the supervisors in De-partment 910 spoke only English, whichplaintiffs assert supports their argument thatthe language requirement was applied dis-criminatorily.

Dung Trung Tran, a Department 910 em-ployee, testified that his supervisor speaksonly English and that Tran speaks limitedEnglish. Tran testified as follows:

Q. When you speak with your supervisor,what language do you speak in?

A. Yeah, I speak in English because he’san American. So, I have no choicebut speaking English; and then myEnglish is not good either. So, I’mboth speaking and giving sign lan-guage.

Q. You communicate by using yourhands, for example?

A. That’s the reason I rarely talk to him.

Q. But you still do your job and do yourjob well even though you rarely talk toyour supervisor?

A. Yes, I make an effort.

(Docket Entry No. 202, Ex. G–7 at 11).Even when Spanish-speaking supervisorswere employed in Department 910, and thepostings required an ability to communicatewith supervisors rather than an ability tospeak English, the evidence showed that de-fendants still required Latino employeesseeking to transfer to Department 910 to beable to speak English. David Garcia, a

Spanish-speaking former supervisor of De-partment 910, testified that he would be ableto communicate with a person who ‘‘couldspeak only Spanish or primarily Spanish.’’(Docket Entry No. 202, Ex. I–2 at 77). Hetestified that he and the other two Depart-ment 910 supervisors, Can Le and JohnBrown, rotated among the three shifts. (Id.at 105). Garcia was unable to explain whyeach posting for job openings in Department910 listed Can Le, the only 910 supervisorwho speaks no Spanish, as the shift supervi-sor with whom workers would have to beable to communicate. (Id.). Garcia testifiedas follows:

Q. And when we were talking earlierabout the language on the job post-ings, that seems to indicate that aperson attempting to transfer had tobe able to communicate or read in-structions or what was it—workwith—

A. Understand work instructions.

Q. Yeah, understand work instructions asdirected by his or her supervisor. Doyou recall us having that conversationregarding the language on the post-ings?

A. Yes.

Q. On the postings that you have there,both in, I think all three, Exhibit 1, 2,and 3, the supervisor that is named onthose is Can Le. Is that correct? Andyou can look through Exhibit 1 to seeif you agree.

A. Yes.

Q. Is it—now, it was your testimony ear-lier that you would rotate shifts, cor-rect?

A. Correct.

Q. Each shift supervisor. And theredoesn’t appear—and these postings—and I’ll show you some others as well.No supervisor’s name appear on thosethree that you have in front of youother than Can Le. Is that correct?Your name is not on there. Is thatright?

A. Yeah, that’s correct.


Q. And nowhere on there is the othergentleman, John Brown?

A. John Brown.

Q. Was it—and this is, of course, to yourunderstanding. Was it Can Le’s namethat was always put on the job post-ings for Department 910?

MS. BIRENBAUM: Objection. Callsfor speculation.

A. I don’t know.

Q. So, based on the testimony that wehad earlier about the changing of su-pervisors or shift supervisors for ev-ery shift, it appears that the postingsfor one, that are illustrated in Exhibit1, 2, and 3, and all of those, it justhappened that it was Can Le’s shift,correct, or during his turn as supervi-sor. Is that right?

A. I don’t know why they—I don’t knowwhy it’s Can Le’s name is on there.

Q. Are you saying that there could havebeen—are you saying that you knowfor sure that on one of these you wereactually the supervisor in Department910 or the shift supervisor?

MS. BIRENBAUM: Objection.

A. Like I say, I don’t know why Can Le’sname is on there, why HR put CanLee’s [sic] instead of my name or JohnBrown’s name.

(Docket Entry No. 202, Ex. I–2 at 104–06).

The plaintiffs also allege discrimination inpay. QuietFlex pays employees in Depart-ments 910 and 911 on a piece rate system.(Docket Entry No. 116, Ex. 3 at 111). Therates vary depending on the job and the sizesof the pieces. (Id.). Employees’ daily wagesare determined by multiplying the number ofpieces made or assembled by the rate forthose pieces. If the resulting wage is lessthan $7.00 an hour, QuietFlex pays that em-ployee $7.00 an hour. (Docket Entry No.116, Ex. 10 at 17). Plaintiffs allege thatDepartment 910 employees earn more moneyfor work that requires no more skill than thework performed in Department 911 but in-volves less strenuous manual labor. Plain-tiffs produced a job analysis report that de-fendants had commissioned in May 2000 by

Jeanneret & Associates. (Docket Entry No.202, Ex. L). The stated purpose of thatreport was to ‘‘analyze and compare ninetarget jobs for QuietFlex ManufacturingCompany and to identify compensation ratesfor similar jobs in the relevant local labormarket.’’ (Id. at 1). The report stated:

The relative comparisons between Quiet-Flex jobs allowed for the identification ofappropriate pay differences between thepositions (i.e., which jobs should be paidmore based on internal relationships).The analysis of labor market compensationdata allows for a comparison of QuietFlex’stypical pay rates to the rates for similarpositions (i.e., positions requiring similarskill levels) in the relevant labor market.

(Id.). The study compared the jobs in De-partments 910 and 911 as they were per-formed in 2000. The Jeanneret study as-signed points for different jobs based onfactors such as physical exertion, workingconditions, decision making, trouble shooting,adjusting/monitoring, and leading/coordinat-ing. (Id. at 4). The report concluded that‘‘[t]he total job evaluation points for mostjobs were relatively similar. For instance,the Core Assembler, Bagger, and Floaterpositions all received almost equal job evalua-tion point totals.’’ (Id. at 5). The reportassigned identical values to the Core Opera-tor position in Department 910 and the DuctBagger and Duct Assembler positions in De-partment 911. (Id. at 7). Defendants’ ex-pert, Dr. Jones, retained for this lawsuit,disagreed with the report findings. The evi-dence shows that defendants obtained thereport in 2000 for general business purposes.(Docket Entry No. 229, Ex. 5).

The record shows that in general, Latinoemployees in Department 911 were paid lessthan the employees in Department 910. (SeeDocket Entry No. 116 at 11). For example,during the week ending August 9, 2003, thefive highest-paid jacket operators in Depart-ment 910 earned, per hour, $20.17, $19.99,$19.58, $19.20, and $18.58. The five highest-paid core operators in Department 910earned, per hour, $20.70, $20.38, $20.22,$19.64, and $19.33. The five highest-paidmachine operators in Department 911earned, during the same week, per hour,$18.10, $17.93, $17.32, $17.32, and $17.08.


The five highest-paid baggers in Department911 earned, per hour, $16.69, $15.03, $14.35,$13,70, and $13.30. (Id.).

On January 10, 2000, the Department 906and 911 employees staged a walkout to pro-test their working conditions. (Docket EntryNo. 55 at ¶ 6).3 QuietFlex discharged theprotesting workers after they refused toleave company property during the workstoppage. (Id.; Docket Entry No. 120 at 2–3). QuietFlex rehired the workers approxi-mately two weeks later but did not pay themfor the two weeks they did not work. (Dock-et Entry No. 8 at ¶ 24; Ex. A–4).

The plaintiffs allege both disparate treat-ment and disparate impact discriminationand retaliation against those who participat-ed in the walkout, in violation of Title VII,42 U.S.C. § 2000(e), and 42 U.S.C. § 1981.(Docket Entry No. 55 at ¶¶ 86–87). Plain-tiffs filed a motion for class certificationunder Rules 23(b)(2) or 23(b)(3). (DocketEntry No. 80). The plaintiffs propose thefollowing class:

All current and former Latino employeeswho worked in Departments 911 and 906at any time during October 10, 1997 to thepresent and who were subjected to Defen-dant’s discriminatory policies and prac-tices.

(Docket Entry No. 188 at 6).The plaintiffs initially sought class certifi-

cation for their claims of compensatory dam-age for the segregated nature of the plantand the discriminatory treatment and pay.After the certification hearing, the plaintiffswithdrew their effort to seek compensatory

damages on a classwide basis. Instead, theplaintiffs move for class certification as totheir claims for a declaratory judgment andinjunction against defendants’ racially-dis-criminatory hiring and transfer policies anddisparate pay, equitable damages in the formof back pay, and classwide punitive damages.(Docket Entry No. 81 at 19).4 In response toplaintiffs’ motion for class certification, de-fendants assert that the plaintiffs cannotmeet the requirements of Rule 23(a), (b)(2),or (b)(3).

The defendants have raised a separate andsubstantive challenge to the plaintiffs’ retali-ation claims. The defendants argue thatplaintiffs’ Title VII and section 1981 retalia-tion claims arising from their termination onJanuary 10, 2000 are barred by issue andclaim preclusion, because the National LaborRelations Board (NLRB) issued an opinionon June 30, 2005 finding that QuietFlex didnot retaliate against the protesting workersby discharging them and did not violate sec-tion 8(a)(1) of the National Labor RelationsAct (NLRA). (Docket Entry No. 260).5

This issue and claim preclusion challenge isaddressed at the outset. The opinion thenaddresses the plaintiffs’ effort to obtain sum-mary judgment that the defendants are anintegrated enterprise. The third part of theopinion addresses the class certification is-sues.

II. Defendants’ Motion for Partial Sum-mary Judgment as to the RetaliationClaims

On January 10, 2000, QuietFlex dischargedemployees in Departments 906 and 911 who

3. The walkout is described in greater detail inthis court’s June 24, 2002 Memorandum andOpinion. (Docket Entry No. 44).

4. In their March 2, 2005 brief, plaintiffs amend-ed their claim to withdraw their request to certi-fy a class seeking compensatory damages. Theplaintiffs reserved their right to pursue compen-satory damages on behalf of individual plaintiffsif the class is not certified. (Docket Entry No.202 at 4 n. 3).

5. Defendants moved on July 28, 2005 for leave tofile a motion for partial summary judgmentagainst plaintiffs’ retaliation claims and to sup-plement the briefing on the issue of class certifi-cation because of the June 30, 2005 NLRB deci-sion. (Docket Entry No. 259). Plaintiffs andintervenor EEOC argue that the NLRB decisionis irrelevant to this lawsuit and oppose defen-

dants’ submission of a motion after the July 1,2005 pretrial motions deadline. (Docket EntryNos. 266, 278). Federal Rule of Civil Procedure15(d) allows a party to serve a supplementalpleading that sets forth ‘‘transactions or occur-rences or events which have happened since thedate of the pleading sought to be supplemented.’’The NLRB decision was issued after the July 1deadline, though apparently decided one day be-fore it. (Docket Entry No. 259 at 3). Defen-dants filed their motions very quickly thereafter.Plaintiffs have responded to the defendants’ mo-tion. (Docket Entry No. 279). The NLRB deci-sion is relevant to the issues in this case. Thiscourt grants defendants leave to file their motionfor partial summary judgment and to supplementthe briefing.


staged a walkout in protest of their workingconditions and refused to leave companyproperty when ordered to do so. (DocketEntry No. 55 at ¶ 6). Plaintiffs allege thatthe walkout and related actions were protect-ed activity under Title VII and section 1981and that QuietFlex engaged in impermissibleretaliation by discharging the protesting em-ployees. (Docket Entry No. 279 at 2). TheNational Labor Relations Act (NLRA), 29U.S.C. § 151 et seq., makes it an unfair laborpractice for an employer to interfere withemployees’ exercise of their section 7 rights.29 U.S.C. § 158(a)(1). On-the-job work stop-pages can be a form of protected economicpressure under section 7, NLRB v. Washing-ton Aluminum Co., 370 U.S. 9, 15, 82 S.Ct.1099, 8 L.Ed.2d 298 (1962), but not everysuch work stoppage is protected, see CambroMfg. Co., 312 NLRB 634 (1993).

On June 30, 2005, the National Labor Re-lations Board affirmed an administrative lawjudge’s finding that QuietFlex’s decision tofire employees who engaged in the January10, 2000 work stoppage did not violate sec-tion 8(a)(1) of the NLRA. QUIETFLEXMFG. CO., L.P., 344 NLRB 130, 2005 WL1564870 (June 30, 2005) (Docket Entry No.260, Ex. 3). Defendants argue that theNLRB decision should be given preclusiveeffect in this case and move for partial sum-mary judgment dismissing the retaliationclaims. (Docket Entry No. 260 at 7–8;Docket Entry No. 261 at 3).

A. The Applicable Legal Principles

1. Summary Judgment

Summary judgment is appropriate if nogenuine issue of material fact exists and themoving party is entitled to judgment as amatter of law. See FED. R. CIV. P. 56. Un-der Rule 56(c), the moving party bears theinitial burden of ‘‘informing the district courtof the basis for its motion, and identifyingthose portions of [the record] which it be-lieves demonstrate the absence of a genuineissue of material fact.’’ Celotex Corp. v. Ca-trett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91L.Ed.2d 265 (1986); Stahl v. NovartisPharms. Corp., 283 F.3d 254, 263 (5th Cir.2002). If the burden of proof at trial lieswith the nonmoving party, the movant may

either (1) submit evidentiary documents thatnegate the existence of some material ele-ment of the opponent’s claim or defense, or(2) if the crucial issue is one on which theopponent will bear the ultimate burden ofproof at trial, demonstrate the evidence inthe record insufficiently supports an essentialelement or claim. Celotex, 477 U.S. at 330,106 S.Ct. 2548. The party moving for sum-mary judgment must demonstrate the ab-sence of a genuine issue of material fact, butneed not negate the elements of the nonmov-ant’s case. Boudreaux v. Swift Transp. Co.,Inc., 402 F.3d 536, 540 (5th Cir.2005). ‘‘Anissue is material if its resolution could affectthe outcome of the action.’’ Weeks Marine,Inc. v. Fireman’s Fund Ins. Co., 340 F.3d233, 235 (5th Cir.2003) (citing Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248, 106S.Ct. 2505, 91 L.Ed.2d 202 (1986)). If themoving party fails to meet its initial burden,the motion for summary judgment must bedenied, regardless of the nonmovant’s re-sponse. Baton Rouge Oil & Chem. WorkersUnion v. ExxonMobil Corp., 289 F.3d 373,375 (5th Cir.2002).

When the moving party has met its Rule56(c) burden, the nonmoving party cannotsurvive a motion for summary judgment byresting on the mere allegations of its plead-ings. The nonmovant must identify specificevidence in the record and articulate themanner in which that evidence supports thatparty’s claim. Johnson v. Deep E. Tex. Reg’lNarcotics Trafficking Task Force, 379 F.3d293, 305 (5th Cir.2004). The nonmovantmust do more than show that there is somemetaphysical doubt as to the material facts.Armstrong v. Am. Home Shield Corp., 333F.3d 566, 568 (5th Cir.2003).

In deciding a summary judgment motion,the court draws all reasonable inferences inthe light most favorable to the nonmovingparty. Calbillo v. Cavender Oldsmobile,Inc., 288 F.3d 721, 725 (5th Cir.2002);Anderson, 477 U.S. at 255, 106 S.Ct. 2505.‘‘Rule 56 ‘mandates the entry of summaryjudgment, after adequate time for discoveryand upon motion, against a party who fails tomake a showing sufficient to establish theexistence of an element essential to that par-ty’s case, and on which that party will bear


the burden of proof at trial.’ ’’ Little v.Liquid Air Corp., 37 F.3d 1069, 1075 (5thCir.1994) (quoting Celotex, 477 U.S. at 322,106 S.Ct. 2548).

2. Claim and Issue Preclusion

[1–3] Res judicata, or claim preclusion,bars relitigation of a claim that a partyraised or could have raised in a prior adjudi-cation. Arizona v. California, 530 U.S. 392,424, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000);Smith v. Waste Mgmt., 407 F.3d 381, 386(5th Cir.2005). Claim preclusion applieswhen there was a prior final judgment on themerits; the prior judgment was betweenidentical parties or those in privity withthem; and there is a second action based onthe same claims that were raised or couldhave been raised in the first action. Smith,407 F.3d at 386. ‘‘Application of res judicatarequires an identity of causes of action. Ifthat test is met, the former judgment may beconclusive as to all issues which were ormight have been litigated.’’ Garner v. Giar-russo, 571 F.2d 1330, 1336 (5th Cir.1978).The Supreme Court has held that agencyadjudication can have a preclusive effect inlater judicial proceedings. United States v.Utah Const. & Mining Co., 384 U.S. 394, 422,86 S.Ct. 1545, 16 L.Ed.2d 642 (1966).

[4] Issue preclusion, or collateral estop-pel, prohibits relitigation of an issue of factor law when the issue is actually litigated,determined by a final judgment, and essen-tial to the judgment of a prior tribunal.Baker by Thomas v. Gen. Motors Corp., 522U.S. 222, 232 n. 5, 118 S.Ct. 657, 139 L.Ed.2d580 (1998); Southmark Corp. v. Coopers &Lybrand, 163 F.3d 925, 932 (5th Cir.1999)(‘‘[R]elitigation of an issue is not precludedunless the facts and the legal standard usedto assess them are the same in both proceed-ings.’’).

B. Analysis

[5, 6] To present a prima facie case ofretaliation under Title VII or section 1981, aplaintiff must show that: (1) he engaged in a‘‘protected activity’’; (2) he was subjected toan adverse employment action; and (3) acausal link exists between the protected ac-tivity and the adverse employment action.

Davis v. Dallas Area Rapid Transit, 383F.3d 309, 319 (5th Cir.2004); see also Foleyv. Univ. of Houston Sys., 324 F.3d 310, 316(5th Cir.2003) (the elements for establishinga prima facie case of retaliation under sec-tion 1981 are identical to those that must beestablished under Title VII). This court haspreviously held that plaintiffs have presenteda prima facie case of retaliation under bothTitle VII and section 1981. Once plaintiffsmake a prima facie case of retaliation, theburden shifts to the defendants to proffer alegitimate reason for the adverse employ-ment action. Davis, 383 F.3d at 320.

[7] ‘‘Under res judicata, a final judgmenton the merits of an action precludes theparties or their privies from relitigating is-sues that were or could have been raised inthat action.’’ San Remo Hotel, L.P. v. City& County of San Francisco, CA, 545 U.S.323, 125 S.Ct. 2491, 2500 n. 16, 162 L.Ed.2d315 (2005) (citation omitted); see also Libertov. D.F. Stauffer Biscuit Co., Inc., 441 F.3d318, 326–28 (5th Cir.2006). Claim preclusiondoes not bar the plaintiffs’ retaliation claimsin this case because the plaintiffs could nothave raised those claims in the NLRB pro-ceeding. The NLRB decision dealt with analleged violation of the National Labor Rela-tions Act, not with an alleged violation ofTitle VII’s antiretaliation provision. ‘‘Al-though these two acts are not totally dissimi-lar, their differences significantly overshadowtheir similarities.’’ Tipler v. E.I. duPont de-Nemours & Co., 443 F.2d 125, 128 (6th Cir.1971) (citing Pettway v. Am. Cast Iron PipeCo., 411 F.2d 998 (5th Cir.1969)). The ‘‘pur-poses, requirements, perspective and config-uration’’ of these two statutes differ. Id. at129. ‘‘Title VII and the NLRA are statuteswith separate and independent remediesTTTT

Though Title VII and the NLRA may over-lap in the area of employment discrimination,their confluence must not be exaggerated. Aplaintiff does not lose his right to an adjudi-cation regarding the causes of action createdby Title VII simply because the conduct ofwhich he complains also offends section 8 ofthe NLRA.’’ Britt v. Grocers Supply Co.,Inc., 978 F.2d 1441, 1447 n. 9 (5th Cir.1992).The plaintiffs did not, and could not, ask theNLRB to determine whether Title VII pro-


hibited QuietFlex’s decision to fire employeeswho had participated in the walkout. Claimpreclusion does not bar plaintiffs’ retaliationclaim in this action.

[8] Nor does issue preclusion apply tobar plaintiffs’ retaliation claims. Defendantsargue that they fired plaintiffs because theyremained on defendants’ property after beingasked to leave. (Docket Entry No. 16 at 9).The NLRB’s decision focuses on this elementof a retaliation claim. The NLRB affirmedthe administrative law judge’s decision thatthe parties did engage in concerted activityprotected under section 7 of the NationalLabor Relations Act when they began thework stoppage, but lost that protection byremaining on the property after they wererepeatedly asked to leave.

Before the NLRB, the parties stipulatedthat the ‘‘employees were discharged for re-fusing to vacate [QuietFlex]’s property, andnot for refusing to return to work, whichwould have been protected activity under§ 7.’’ QuietFlex Mfg., 344 NLRB 130, 2005WL 1564870 at *1 n. 1. ‘‘Generally speaking,when a particular fact is established not byjudicial resolution but by stipulation of theparties, that fact has not been ‘actually liti-gated’ and thus is not a proper candidate forissue preclusion.’’ Otherson v. Dep’t of Jus-tice, 711 F.2d 267, 274–75 (D.C.Cir.1983); seealso U.S. v. Botefuhr, 309 F.3d 1263, 1282(10th Cir.2002); Kane v. Town of Harpswell,254 F.3d 325, 329 (1st Cir.2001); In re Krug,102 B.R. 98, 100 n. 4 (Bkrtcy.W.D.Tex.1989);Envtl. Defense Fund, Inc. v. Alexander, 467F.Supp. 885, 904–05 (D.C.Miss.1979).Whether the employees were discharged forengaging in the work stoppage—rather thanfor refusing to leave the property—was not‘‘actually litigated.’’ The record does notestablish that plaintiffs would not have beenfired had they left the premises when askedto do so, as discussed by this court in itsJune 24, 2002 memorandum and opinion.(Docket Entry No. 44 at 26). The plaintiffssubmitted declarations stating that manage-

ment threatened to fire them, not only forremaining on the premises, but also if theydid not return to work. (Docket Entry No.16, Ex. C, Casanova Decl. ¶ 15; GonzalezDecl. ¶ 10).

Plaintiffs are not precluded from assertingthat the discharge of protesting employeeson January 10, 2000 was in retaliation forengaging in protected activity. Defendants’motion for leave to file a motion for partialsummary judgment is granted; the motionfor partial summary judgment on this issueis denied. (Docket Entry Nos. 259, 260).

III. Plaintiffs’ Motion for Partial Sum-mary Judgment that Defendants arean Integrated Enterprise

Goodman and QuietFlex were related com-panies that merged into one entity in April2001. (Docket Entry No. 245, Ex. F).Plaintiffs move for partial summary judg-ment that Goodman and QuietFlex have op-erated as an integrated enterprise throughthe relevant period, which is presumablysince October 1997. (Docket Entry No. 245).The parties do not distinguish between therelationship of Goodman and QuietFlex be-fore and after the merger. Goodman previ-ously moved for summary judgment that itwas not, before its merger with QuietFlex, an‘‘integrated enterprise’’ with QuietFlex.(Docket Entry No. 5). This court deniedthat motion as premature and to allow plain-tiffs time for discovery into issues of internalcorporate organization. (Docket Entry No.44 at 30).6

[9] Four factors determine whether twoentities may be held liable as a joint em-ployer: ‘‘(1) interrelation of operations, (2)centralized control of labor relations, (3)common management, and (4) common own-ership or financial control.’’ Skidmore v.Precision Printing & Packaging Inc., 188F.3d 606, 616 (5th Cir.1999) (citing RadioUnion v. Broadcast Serv., 380 U.S. 255, 257,85 S.Ct. 876, 13 L.Ed.2d 789 (1965)). ‘‘Tra-

6. The parties filed a joint motion to extend thedeadline for deposition of a Rule 30(b)(6) witnesson whether defendants are an ‘‘integrated enter-prise.’’ (Docket Entry No. 205). The partiesasked this court to extend the deadline for taking

the deposition of the Rule 30(b)(6) witness fromMarch 4, 2005 to April 18, 2005. (Id.). Plain-tiffs deposed defendants’ Rule 30(b)(6) witnesson the integrated enterprise issue on June 16,2005. The joint motion is denied as moot.


ditionally, the second of these four factorshas been considered the most important,such that courts have focused almost exclu-sively on one question: which entity madethe final decisions regarding employmentmatters relating to the person claiming dis-crimination?’’ Id. at 617 (citing Schweitzerv. Advanced Telemarketing Corp., 104 F.3d761, 764 (5th Cir.1997)). The determinationis fact-intensive. Vance v. Union PlantersCorp., 279 F.3d 295, 297 (5th Cir.2002). Therelevant inquiry in this case is whetherGoodman made the employment decisionsthe plaintiffs challenge.

[10–12] A ‘‘strong presumption’’ existsthat a parent corporation is not the employerof its subsidiary’s employees. ‘‘Only evi-dence of control suggesting a significant de-parture from the ordinary relationship be-tween a parent and its subsidiary’’—such as‘‘domination similar to that which justifiespiercing the corporate veil’’—can overcomethe presumption. Lusk v. Foxmeyer HealthCorp., 129 F.3d 773, 778 (5th Cir.1997). Theexistence of common management and own-ership and the ‘‘normal incidents’’ of a par-ent-subsidiary relationship, such as the par-ent’s right to select directors and to setgeneral policies, do not justify treating aparent and its subsidiary as a single employ-er. Id. ‘‘ ‘Attention to detail,’ not generaloversight, is the hallmark of interrelated op-erations.’’ Id. (quoting Johnson v. FlowersIndus., Inc., 814 F.2d 978, 982 (4th Cir.1987)). Factors suggesting such interrelatedoperations include evidence that the parent:‘‘(1) was involved directly in the subsidiary’sdaily decisions relating to production, distri-bution, marketing, and advertising; (2)shared employees, services, records, andequipment with the subsidiary; (3) commin-gled bank accounts, accounts receivable, in-ventories, and credit lines; (4) maintainedthe subsidiary’s books; (5) issued the subsid-iary’s paychecks; or (6) prepared and filedthe subsidiary’s tax returns.’’ Id. at 981 n. 1.The existence of any of these factors is notdispositive. Id. The court in Lusk clarifiedthat ‘‘[s]ome nexus to the subsidiary’s dailyemployment decisions must be shown.’’ Id.

Plaintiffs argue that the managers of Qui-etFlex’s plant report to Goodman employees,

evidencing a subordinate relationship.(Docket Entry No. 245 at 6). They cite DanDaniel’s testimony that he ‘‘reported’’ to thepresident of Goodman. (Docket Entry No.245 at 6). Daniel, the QuietFlex president,testified that he ‘‘reported’’ to the Goodmanpresident. (Docket Entry No. 245, Ex. H).The testimony does not show that, as a mat-ter of law, Goodman was involved in morethan ‘‘general oversight’’ over Daniel’s role aspresident of QuietFlex. See Lusk, 129 F.3dat 778. Daniel testified that he ‘‘was respon-sible for the overall running of the company.’’(Docket Entry No. 245, Ex. H at 12). Wan-da Ford, Goodman’s human resources di-rector, who was presented as Goodman’s cor-porate representative under Rule 30(b)(6) ofthe Federal Rules of Civil Procedure, testi-fied that if Don King, the executive vice-president of human resources at Goodman,wanted to change policies at QuietFlex, hewould have to first consult QuietFlex man-agement. (Docket Entry No. 263, Ex. 1 at64). She also testified that, before Dan Dan-iel left QuietFlex in 2003, he ‘‘pretty muchhad the authority to do what he wanted outthere.’’ (Id. at 67).

Plaintiffs point to the fact that Pete Crane,QuietFlex’s former vice-president of manu-facturing, was fired by Goodman in 2002 andthat QuietFlex employees reported to Good-man employees after Daniels’s departure in2003. (Docket Entry No. 245 at 7). Good-man and QuietFlex merged in 2001; evidenceas to the relationship between the two afterthat merger is not relevant to whether theywere an ‘‘integrated enterprise’’ before themerger.

Plaintiffs argue that human resourcesmanagement of QuietFlex and Goodman at-tended meetings together, but this does notshow more than a typical parent-subsidiaryrelationship. Skidmore, 188 F.3d at 617.Plaintiffs argue that Goodman managers par-ticipated in hiring, supervision, and firing ofhuman resources personnel at QuietFlex.Ford testified that Cliff Reilly, the vice-presi-dent of Goodman Manufacturing from 1997to 2001, ‘‘may have’’ made recommendationsas to whether to hire a human resourcesmanager at QuietFlex, but that Goodmanemployees would not have made the hiring


decision. (Docket Entry No. 245, Ex. C at13). Plaintiffs argue that QuietFlex’s policiesare developed by Goodman and that Good-man has the power to alter them. (DocketEntry No. 245 at 10–11). Ford testified that,from 1997 to 2003, Goodman would publishpolicies for the related entities to consider,but different entities ‘‘had a choice as toaccept them and use them.’’ (Docket EntryNo. 263, Ex. 1 at 30). She testified that she‘‘ha[d] no idea’’ whether QuietFlex used thesame policy for transfers between Depart-ments that Goodman used in May 1998 be-cause ‘‘during that time [Goodman] was notinvolved in their transfers or decisions.’’ (Id.at 34). Plaintiffs do not present or point toevidence that Goodman made any decisionsregarding hiring, transferring, or firing em-ployees in Departments 906, 910, or 911.They do not show that Goodman ‘‘made thefinal decisions regarding employment mat-ters related to the person[s] claiming dis-crimination.’’ Schweitzer, 104 F.3d at 764.

Plaintiffs allege that Goodman and Quiet-Flex shared human resources personnel whotransfer between the companies. Goodman’sRule 30(b)(6) witness testified that Goodmansupplies a human resources employee to‘‘step in to help out’’ when a QuietFlex man-ager is out. (Docket Entry No. 263, Ex. 1 at52). ‘‘When there is a gap, when someone isout more than just a day or two and theywant some back up, we will send someonewho is available to assist them.’’ (Id.).Goodman human resources personnel were‘‘available’’ as a resource for QuietFlex hu-man resources personnel. ‘‘But the localpersonnel generally trained them, either thepeople on the HR staff there or their ownmanagement such as Dan Daniel [the formerQuietFlex president] or anyone else in thatcapacity.’’ (Docket Entry No. 263, Ex. 1 at53). Plaintiffs do not allege or present sum-mary judgment evidence that Goodman em-ployees, while ‘‘filling in’’ for management atQuietFlex, made decisions relating to theproposed class.

Plaintiffs allege that Goodman performsnumerous services for QuietFlex, that theyshare benefits, and that they share commonownership. Goodman handled the 401k planfor QuietFlex employees. (Docket Entry

No. 263, Ex. 1 at 46). Payroll for QuietFlexemployees was calculated by QuietFlex, re-viewed by Goodman employees, and thechecks created by the Goodman system.(Id.). There is a single benefits plan foremployees of both Goodman and QuietFlex.(Id.). Plaintiffs cite testimony by Ford thatGoodman pays QuietFlex’s taxes and thatreimbursement checks for QuietFlex employ-ees are drawn on Goodman accounts. (Dock-et Entry No. 245 at 20). Ford testified thatGoodman has paid QuietFlex’s taxes for thelast two to three years, (Docket Entry No.245, Ex. C at 97–98). Ford did not testifyabout the period before the 2001 merger.The evidence as to the payroll and otheradministrative services Goodman performedfor QuietFlex before 2001 does not showthat, as a matter of law, they were an inte-grated enterprise. In Vance v. Union Plant-ers Corp., 279 F.3d 295, 301–02 (5th Cir.2002), the court noted that the district courthad correctly determined that a parent andsubsidiary were not an integrated enterpriseeven though the parent filed consolidatedreports with the SEC and other federalagencies, filed consolidated tax returns,served as the centralized payroll entity, hadCommon Management Agreements executedand followed by its subsidiary, and owned100% of its subsidiary’s stock. The court inLusk specified that common managementand other normal incidents of a parent-sub-sidiary relationship do not overcome thestrong presumption of separate entities. 129F.3d at 778.

[13] Defendants have shown, in light ofthe ‘‘totality of the facts’’ that there aredisputed issues of fact material as to whetherGoodman, before the 2001 merger, ‘‘exces-sively influenced or interfered with the busi-ness operations of [QuietFlex,] that is,whether the parent actually exercised a de-gree of control beyond that found in thetypical parent-subsidiary relationship.’’Lusk, 129 F.3d at 778. Defendants haveshown that there are disputed issues of mate-rial fact as to whether Goodman made ‘‘thefinal decisions regarding employment mat-ters relating to the [proposed class].’’ Skid-more, 188 F.3d at 617. Plaintiffs’ motion forsummary judgment that the defendants were


an integrated enterprise before Goodman’s2001 merger with QuietFlex is denied.

IV. Plaintiffs’ Motion for Class Certifi-cation 7

A. The Claims for Relief

[14–16] The named plaintiffs are fivepresent and former QuietFlex employeeswho worked in Department 911: Lazaro Gar-cia, Ector Lopez, Fernando Gonzalez, MiguelHernandez–Mendez, and Jose P. Aleman.(Docket Entry No. 208 at 2). Lazaro Garciabegan working at QuietFlex in June 1998 andcurrently works in Department 911. (Tr. T.1 at 34). Ector Lopez began working atQuietFlex in March 1995 and currently

works in Department 911. (Docket EntryNo. 165, Ex. 4 at 9–11). Fernando Gonzalezbegan working at QuietFlex in 1988 and nowworks in Department 911. (Tr. T. I at 75).Miguel Hernandez–Mendez began working atQuietFlex in August 1999 and now works inDepartment 911. (Docket Entry No. 208,Ex. 3 at 7). Jose Aleman began working atQuietFlex in 1996 and is currently employedin Department 906. (Docket Entry No. 208,Ex. 2 at 9).8 They assert both disparateimpact and disparate treatment claims aris-ing from specific employment policies andpractices at the QuietFlex Houston plantfrom October 1997 to the present, specificallyin Departments 910, 911, and 906.

7. Defendants move to dismiss nineteen claimantsunder Federal Rule of Civil Procedure 37(d) be-cause of an inability to depose them. (DocketEntry No. 215). Defendants assert that JoseSantillan ignored a properly-served depositionnotice; six claimants failed to appear for theirscheduled depositions; and that defendants wereunable to serve twelve defendants because theEEOC provided them incorrect contact informa-tion. The EEOC and the plaintiffs have respond-ed. (Docket Entry Nos. 225, 227).

Federal Rule of Civil Procedure 37(d) provides,in relevant part:

If a party TTT fails (1) to appear before theofficer who is to take the deposition, afterbeing served with proper notice TTT, the courtin which the action is pending on motion maymake such orders in regard to the failure asare just, and among others it may take anyaction authorized under subparagraphs (A),(B), and (C) of subdivision (b)(2) of this rule.

FED. R. CIV. P. 37(d). Subparagraph (C) of sub-division (b)(2) gives the court discretion to dis-miss the action or any part thereof. FED. R. CIV.

P. 37(b)(2)(C). Dismissal with prejudice is ‘‘adraconian remedy’’ and the ‘‘remedy of last re-sort’’ ‘‘[b]ecause the law favors the resolution oflegal claims on the merits and because dismissalis a severe sanction that implicates due pro-cessTTTT’’ FDIC v. Conner, 20 F.3d 1376, 1380(5th Cir.1994). The Fifth Circuit has explained:‘‘[A]lthough the Supreme Court has admonishedthat the most severe in the spectrum of sanc-tions provided by statute or rule must be avail-able to the district court in appropriate cases,we are also instructed by our precedents thatsanctions should not be used lightly, and shouldbe used as a lethal weapon only under extremecircumstances.’’ Id. (internal quotations omit-ted). ‘‘When lesser sanctions have proved futile,a district court may properly dismiss a suit withprejudice.’’ Hornbuckle v. Arco Oil & Gas Co.,732 F.2d 1233, 1237 (5th Cir.1984). The follow-ing factors ‘‘must be present before a districtcourt may dismiss a case as a sanction for vio-lating a discovery order’’: the refusal to comply

must result from ‘‘willfulness or bad faith’’ andbe ‘‘accompanied by a clear record of delay orcontumacious conduct;’’ the violation of the dis-covery order must be attributable to the clientinstead of the attorney; the violating party’smisconduct must substantially prejudice the op-posing party; and the desired deterrent effectmust not be able to be substantially achieved bya less drastic sanction. Conner, 20 F.3d at 1380.

Defendants have deposed more than eighty in-dividual plaintiffs in this suit. (Docket Entry No.215 at 2). Defendants have not shown that anyof the nineteen plaintiffs they have been unableto depose would likely offer new or differentinformation. Plaintiffs argue that the failures torespond to defendants’ deposition requests arenot the result of bad faith, but of the difficulty ofobtaining correct current address information.The motion to dismiss is denied at this time. If,however, the case is not certified and these plain-tiffs cannot be located or do not participate inthe case, their claims will be dismissed.

8. Plaintiffs move to substitute the named repre-sentatives, asking that Fermin Colindres andJuan Casanova be removed and Miguel Hernan-dez–Mendez and Jose P. Aleman substituted asnamed class representatives. (Docket Entry No.208). Defendants oppose the motion. (DocketEntry No. 214). Federal Rule of Civil Procedure15(a) states that permission to amend a com-plaint ‘‘shall be freely given when justice so re-quires.’’ Defendants contend that the plaintiffs’proposed amendment would unduly prejudicethem. Unlike the cases on which defendantsrely, however, plaintiffs filed the motion to sub-stitute named representative before briefing onthe issue of class certification was complete. De-fendants filed their postargument supplementalbrief opposing class certification three monthsafter the motion to substitute named representa-tives. (Docket Entry No. 236). Defendants havealready deposed the new class representatives.No prejudice will result from the substitution.The motion is granted.


Plaintiffs challenge the following employ-ment practices: (1) hiring Latino workers forDepartments 911 and 906 but not for Depart-ment 910, instead hiring Vietnamese workersfor that department; (2) paying higher piecerates for Department 910 work that is essen-tially the same as work performed in Depart-ments 911 and 906, and imposing higherproduction quota requirements on workers inDepartments 911 and 906, so that employeesin those departments receive lower compen-sation; (3) requiring English-speaking abili-ty, which was subjectively measured, for hir-ing and transferring into Department 910,which prevented or deterred Department 911and 906 employees from transferring intothat department and perpetuated the segre-gated nature of the departments; (4) givingpreference in transfers to employees withintradepartment seniority, which perpetuatedthe absence of Hispanic workers in Depart-ment 910; (4) providing inferior safety equip-ment and more dangerous and unpleasantworking conditions in Departments 911 and906 than in Department 910; (5) before Jan-uary 2000, requiring Hispanic employees toperform cleaning and other menial tasks notrequired of Vietnamese employees; and (6)subjecting Hispanic employees, who primari-ly worked in Departments 911 and 906, tooffensive and derogatory comments and ac-tions. In addition, the plaintiffs allege thatby firing those employees who walked out onJanuary 10, 2000 to protest the discriminato-ry conditions and policies, the defendantsretaliated against them for activity protectedunder Title VII.

[17–19] To establish intentionally dis-criminatory treatment on a classwide basis,plaintiffs must show a pattern and practice ofdisparate treatment. Disparate treatment isbased on section 703(a)(1) of Title VII, 42U.S.C. § 2000e–2(a)(1), which provides that itis an unlawful employment practice ‘‘to dis-criminate against any individual with respectto his compensation, terms, conditions, orprivileges of employment’’ because of imper-missible factors, including race or nationalorigin. The prima facie elements of a claimfor disparate treatment are: (1) that theplaintiff is a member of a protected classunder the statute; (2) that he applied andwas qualified for a job or promotion for

which his employer was seeking applicants;(3) that, despite his qualifications, he wasrejected; and (4) that afterwards the positionremained open, and the employer continuedto look for candidates with plaintiff’s qualifi-cations. See McDonnell Douglas Corp. v.Green, 411 U.S. 792, 93 S.Ct. 1817, 36L.Ed.2d 668 (1973); Runnels v. Tex. Chil-dren’s Hosp. Select Plan, No. 04–20825, 2006WL 189939, at *4 (5th Cir. Jan.25, 2006). A‘‘pattern or practice’’ of discrimination by theemployer requires a showing that ‘‘racial dis-crimination was the company’s standard op-erating procedure—the regular rather thanthe unusual practice.’’ Int’l Bhd. of Team-sters v. United States, 431 U.S. 324, 97 S.Ct.1843, 52 L.Ed.2d 396 (1977). Proving a pat-tern or practice is necessary to establish aprima facie case in a disparate treatmentclass action. ‘‘Proving isolated or sporadicdiscriminatory acts by the employer is insuf-ficient to establish a prima facie caseTTTT’’Cooper v. Fed. Reserve Bank, 467 U.S. 867,875–76, 104 S.Ct. 2794, 81 L.Ed.2d 718(1984). The statute provides for compensa-tory and punitive damages for successful dis-parate treatment claims and grants both par-ties the right to demand a jury trial whensuch damages are sought in intentional dis-crimination claims. See 42 U.S.C.§ 1981a(c).

[20–22] To establish a disparate impactclaim, the plaintiffs must show that there is aspecific, facially-neutral employment practice,that there is a statistically significant dispari-ty among members of different groups af-fected by the practice, and that there is acausal nexus between the facially-neutral em-ployment practice and the statistically signifi-cant disparity. The disparate impact basisfor Title VII liability is based on section703(a)(2) of Title VII, 42 U.S.C. § 2000e–2(a)(2), which forbids an employer to ‘‘limit,segregate, or classify’’ employees ‘‘in anyway which would deprive or tend to depriveany individual of employment opportunitiesor otherwise adversely affect his status as anemployee’’ because of race or sex. Disparateimpact claims, recognized in Griggs v. DukePower Co., 401 U.S. 424, 91 S.Ct. 849, 28L.Ed.2d 158 (1971), do not require proof ofintent to discriminate. Plaintiffs must identi-


fy specific practices as responsible for theasserted disparities, see Johnson v. UncleBen’s, Inc., 965 F.2d 1363, 1367 (5th Cir.1992), and must present a systemic analysisof those employment practices to establishtheir case, see Black Fire Fighters Ass’n v.City of Dallas, 905 F.2d 63, 63 (5th Cir.1990).Once it is shown that the employment stan-dards are discriminatory in effect, the em-ployer must meet ‘‘the burden of showingthat any given requirement (has) TTT a mani-fest relationship to the employment in ques-tion.’’ Dothard v. Rawlinson, 433 U.S. 321,97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). If theemployer proves that the challenged require-ments are job-related, the plaintiff may thenshow that other selection devices without asimilar discriminatory effect would also‘‘serve the employer’s legitimate inter-estTTTT’’ Id.; see also Connecticut v. Teal,457 U.S. 440, 447, 102 S.Ct. 2525, 73 L.Ed.2d130 (1982) (stating that a Title VII plaintiffmay still prevail after an employer-defen-dant’s showing of business necessity ‘‘if heshows that the employer was using the prac-tice as a mere pretext for discrimination’’);Int’l Bhd. of Elec. Workers, AFL–CIO, LocalUnions Nos. 605 & 985 v. Miss. Power &Light Co., 442 F.3d 313, 317–18 (5th Cir.2006)(holding that the plaintiff has the burden ofshowing acceptable alternative employmentpractices, not the defendant). Neither com-pensatory nor punitive damages is availablefor a disparate impact claim. See 42 U.S.C.§ 1981a(a)(1). There is no right to a jurytrial as to a disparate impact claim, with theimportant exception of factual issues neces-sary also to determine liability on a patternor practice discriminatory treatment claim.See Allison, 151 F.3d at 423.

In this case, the plaintiffs challenge thesame employment policies and practices un-der both a disparate impact and a disparate

treatment claim. For example, the English-language requirement and intradepartmentseniority policies are challenged under a dis-parate impact claim, as allegedly facially-neutral policies uniformly applied to theworkforce with discriminatory results for La-tinos. See Griggs v. Duke Power Co., 401U.S. 424, 431–32, 91 S.Ct. 849, 28 L.Ed.2d158 (1971) (requiring a high school educationor standardized intelligence test as a condi-tion of employment negatively resulted in adisparate impact on minorities and was pro-hibited because the standard was unneces-sary for successful job performance); Maldo-nado v. City of Altus, 433 F.3d 1294, 1303(10th Cir.2006) (Hispanic employees chal-lenged city’s English-only policy under dispa-rate impact theory); Stephen v. PGA Shera-ton Resort, Ltd., 873 F.2d 276, 279–80 (11thCir.1989) (Haitian man challenged English-language requirement under disparate im-pact theory); EEOC v. Premier OperatorServs., Inc., 113 F.Supp.2d 1066, 1069–74(N.D.Tex.2000) (Hispanic employees success-fully challenged employer’s ‘‘English only’’policy under both disparate impact and dis-parate treatment theories of discrimination).Plaintiffs also allege that these policies werenot uniformly applied to the workplace, butapplied in a discriminatory manner to disad-vantage Latinos; the disparate treatmentclaim applies as well.

To remedy the alleged discrimination, theplaintiffs initially sought every available formof injunctive, declaratory, and monetary re-lief for the class. (Docket Entry No. 55¶ 109). The plaintiffs have withdrawn theirrequest for class certification of the compen-satory damages claim, recognizing that cir-cuit precedent views such claims as too indi-vidualized for class treatment.9 The verynature of these damages, compensating

9. In their March 2, 2005 brief, a reply to defen-dants’ response to the class certification motion,plaintiffs said for the first time—in a footnote—that they ‘‘are willing to amend their complaintto reflect that, for purposes of class certification,Plaintiffs do not seek individual compensatorydamages. In the case that the class is not certi-fied, however, Plaintiffs intend to seek compensa-tory damages in their individual capacity in theAleman action.’’ (Docket Entry No. 202 at 4 n.3). Defendants responded to this argument intheir postargument supplemental brief. (Docket

Entry No. 236). Plaintiffs filed a motion to strikethat portion of the brief, arguing that it was filedoutside the briefing schedule. (Docket Entry No.240). In the alternative, plaintiffs requested 45days to submit a response to the argument. (Id.at 6). Both sides have addressed the class certi-fication issues raised by the withdrawal of com-pensatory damages. Plaintiffs’ motion to strikeand alternate motion for leave to file a responseare denied. Defendants’ motion to refile theirpostargument supplemental brief, (Docket EntryNo. 243), is denied as moot.


plaintiffs for emotional and other intangibleinjuries, necessarily implicates the subjectivedifferences of each plaintiff’s circumstances;they are an individual, not classwide, remedy.The amount of compensatory damages towhich any individual class member might beentitled cannot be calculated by objectivestandards. By requiring individualized proofof discrimination and actual injury to eachclass member, compensatory damages intro-duce new and substantial legal and factualissues. Allison, 151 F.3d at 417. Althoughthe plaintiffs have withdrawn their requestfor certification of a class seeking compensa-tory damages, they continue to seek punitivedamages on a classwide basis.

In terms of affirmative injunctive relief,the plaintiffs seek restructuring of the poli-cies relating to hiring and transfer into De-partment 910 to remove the allegedly dis-criminatory English-language requirementand the preference given to intradepartmentseniority. The plaintiffs apparently also seekinjunctive relief with respect to differentialsbetween piece rates in Department 910 andDepartment 911, at the same time assuringthis court that no more is required than anorder requiring that equivalent work be paidon an equivalent piece rate basis. The plain-tiffs seek back pay on a classwide basis,recognized in this circuit as a form of equita-ble relief rather than as compensatory mone-tary damages. Monumental Life, 365 F.3dat 418.

The plaintiffs define the proposed class asfollows:

All current and former Latino employeeswho worked in Departments 911 and 906at any time during October 10, 1997 to thepresent and who were subjected to Defen-dant’s discriminatory policies and prac-tices.

Plaintiffs also seek certification of two sub-classes:

1. All current and former Latino employ-ees who worked in Departments 911 and906 at any time during October 10, 1997 tothe present and who were subjected toDefendant’s discriminatory policies andpractices and who will not seek back payfor work not performed.

2. All current and former Latino employ-ees who were fired by the Company on orabout January 10, 2000 after a group ofclass members complained about discrimi-natory conditions at the QuietFlex facility.

(Docket Entry No. 188 at 6).

[23] The proposed class definition isflawed in one respect. A class definitionmust be ‘‘precise, objective, and presentlyascertainable.’’ MANUAL FOR COMPLEX LITIGA-

TION § 21.222 at 270 (4th ed.2005). A classdefinition should not use terms that dependon resolving the claims on the merits. Theplaintiffs’ proposed definition does preciselythat by defining the class as those subjectedto discriminatory practices. It is clear, how-ever, that because the plaintiffs allege thatall Latinos in Departments 911 and 906 weresubjected to the challenged employmentpractices, the proposed class definitions arein effect: ‘‘all current and former Latinoemployees who worked in Departments 911and 906 from October 10, 1997 to the presentwho will seek back pay for work not per-formed’’; ‘‘all current and former Latino em-ployees who worked in Departments 911 and906 from October 10, 1997 to the present whowill not seek back pay for work not per-formed’’; and ‘‘all current and former Latinoemployees who were fired by QuietFlex on orabout January 10, 2000 after a group of classmembers complained about discriminatoryconditions at the QuietFlex facility.’’

Plaintiffs ask this court to bifurcate thetrial of the case into liability and relief phas-es. (Docket Entry No. 81 at 22). Plaintiffspropose that in Stage I, they will try generalissues of classwide liability and entitlementto classwide relief to a jury. Plaintiffs in-clude injunctive and declaratory relief andclasswide punitive damages in this stage.(Id. at 22–23). They also propose that thejury would determine the ‘‘aggregate amountof lost earnings owed to the class and ameasurement of front pay’’ during Stage I.(Id. at 28). Plaintiffs propose that, if theyprevail in Stage I, individual equitable re-lief—the amount of back pay that each plain-tiff receives—would be determined by thecourt in Stage II. (Id. at 23, 29).

Defendants argue that plaintiffs’ proposedclass is too small to satisfy numerosity.


(Docket Entry No. 116 at 4). They arguethat plaintiffs do not satisfy commonality ortypicality because plaintiffs’ disparate treat-ment claims are too individualized, are sub-ject to unique, individualized defenses as towhy they were denied transfers, and differ intheir length of employment with QuietFlex.(Id. at 4–5). Defendants argue that changesat QuietFlex over the relevant period furthernegate commonality and typicality. (Tr. T. Iat 54). Defendants argue that, to the extentthe named plaintiffs forego compensatorydamages to achieve class certification, theyfail adequately to represent the interests ofthe other class members. (Docket EntryNo. 236 at 14). Defendants argue that certi-fication under Federal Rule of Civil Proce-dure 23(b)(2) is inappropriate because a ma-jority of the proposed class no longer worksat QuietFlex and would not benefit frominjunctive relief and because a majority ofnew entrants into Department 910 are His-panic, making injunctive relief unnecessary.Defendants argue that certification underRule 23(b)(2) or 23(b)(3) is inappropriate be-cause punitive damages cannot be assessedwithout highly individualized assessments ofharm to individual plaintiffs. (Docket EntryNo. 236 at 11–14). Defendants also arguethat the plaintiffs’ trial plan is unconstitution-al insofar as it allows an award of punitivedamages before assessing whether and howindividual plaintiffs have been harmed.(Docket Entry No. 116 at 47). Defendantsargue that back pay also cannot be calculatedwithout individualized inquiry because thepiece rate system varies from individual toindividual and job task to job task. (DocketEntry No. 236 at 3–11). Defendants arguethat an individual’s productivity in Depart-ment 911 is not a proxy for his productivityin Department 910. (Docket Entry No. 207,Ex. A). Defendants also argue that theEEOC’s intervention in this suit makes classcertification under Rule 23 unnecessary.(Docket Entry No. 236 at 15).

These arguments are examined below.

B. Class Certification Standards: Rule23 and Allison v. Citgo Petroleum

[24–27] To certify a class under Rule 23,plaintiffs must show that their proposed class

meets all of the requirements of Rule 23(a)and the requirements of at least one of thesubsections of Rule 23(b). A district courthas substantial discretion in determiningwhether to certify a class. Allison v. CitgoPetroleum Corp., 151 F.3d 402, 408 (5th Cir.1998). Before granting certification, a courtmust conduct a rigorous analysis to deter-mine whether the plaintiffs have met theRule 23 requirements. Castano v. Am. To-bacco Co., 84 F.3d 734, 740 (5th Cir.1996).‘‘Going beyond the pleadings is necessary, asa court must understand the claims, defens-es, relevant facts, and applicable substantivelaw in order to make a meaningful determi-nation of the certification issues.’’ Castano,84 F.3d at 744. The parties have presenteda great deal of evidence that bears on themerits of the plaintiffs’ claims and the de-fenses to those claims, which is common inRule 23 certification motions. Courts havenoted that determining class action certifica-tion issues requires examining evidence thatis intertwined with the merits of the claims.Bell v. Ascendant Solutions, Inc., 422 F.3d307, 311–12 (5th Cir.2005); Szabo v. Bridge-port Machines, Inc., 249 F.3d 672, 675–76(7th Cir.2001). The issue on a certificationmotion is not whether the plaintiffs will ulti-mately prevail on the merits of their claims,or the strengths and weaknesses of the evi-dence as to the defenses. Rather, the courtmust examine the nature of the evidence thatwill be used to establish the claims and thedefenses, to determine whether that evidencecan be presented on a classwide basis. FED.

R. CIV. P. 23(c)(1) Committee Note (2003).The party seeking certification bears theburden of showing that the Rule 23 require-ments are satisfied. Allison, 151 F.3d at408; Castano, 84 F.3d at 740.

In Allison, the Fifth Circuit reviewed theuse of class actions in eradicating ‘‘wide-spread or institutional-scale discrimination’’in the employment context, primarily basedon disparate impact challenges to facially-neutral policies that result in racial dispari-ties when uniformly applied to a workforce,and to pattern or practice claims of intention-al discrimination. Allison, 151 F.3d at 409.As the court pointed out in Allison, the 1991amendments to the Civil Rights Act dramati-cally changed the use of class actions as a


way to address employment discriminationby providing for the recovery of compensato-ry and punitive damages in cases of inten-tional discrimination and allowing jury trialsin such cases. Id. at 409–10; 42 U.S.C.§ 1981a(a)(1) and (c). In Allison, the courtnoted that providing for monetary claimsother than back pay and for jury trials ‘‘in-troduced, in the context of class actions, po-tential manageability problems.’’ 151 F.3d at410. These changes also affected the use ofclass actions in disparate impact cases. TheSeventh Amendment requires submission toa jury of all factual issues common to legaland equitable claims, for determination of thelegal claims, before a final court decisionregarding the equitable claims. See Roscellov. Southwest Airlines Co., 726 F.2d 217, 221(5th Cir.1984) (citing Dairy Queen, Inc. v.Wood, 369 U.S. 469, 479, 82 S.Ct. 894, 8L.Ed.2d 44 (1962)). The right to a jury trialextends to all factual issues necessary todetermine liability on the pattern or practiceclaim and the amount of compensatory orpunitive damages. Plaintiffs’ disparate treat-ment and disparate impact claims and theirremedy requests are often inseparable. SeeSmith v. Texaco, Inc., 263 F.3d 394, 413–14(5th Cir.2001) (opinion withdrawn) (discuss-ing inseparability of the different types ofclaims and remedies available under TitleVII).

In Allison, the Fifth Circuit also addressedthe problems with certifying an employmentdiscrimination class action that seeks com-pensatory or punitive damages. 151 F.3d402. The court denied certification of a classof more than 1,000 black employees and ap-plicants for employment who alleged discrim-ination in hiring, promotion, compensation,and training policies. Plaintiffs claimed bothdisparate impact and disparate treatmentdiscrimination. They sought injunctive re-lief, back pay, front pay, compensatory andpunitive damages, and attorneys’ fees. Thecourt held that monetary damages predomi-nated over the injunctive relief that plaintiffssought, precluding certification under Rule23(b)(2), because the compensatory and puni-tive damages required individualized proof ofinjury for each class member. The courtalso denied certification under Rule 23(b)(3)because individualized determinations re-

quired for compensatory and punitive dam-ages meant that class issues did not predomi-nate and that class treatment was not asuperior method for resolving the claims.The court specifically rejected the possibilityof a ‘‘hybrid’’ class with injunctive relief un-der Rule 23(b)(2) and damages relief underRule 23(b)(3). Id. at 419.

Allison’s rejection of a hybrid employ-ment-discrimination class action that wouldpermit both injunctive and damages reliefhas been adopted by some circuits. SeeLemon v. Int’l Union of Operating Eng’rs,Local No. 139, AFL–CIO, 216 F.3d 577, 581(7th Cir.2000); Murray v. Auslander, 244F.3d 807 (11th Cir.2001). The Second Cir-cuit, in Robinson v. Metro–North CommuterR.R. Co., 267 F.3d 147 (2d Cir.2001), reject-ed Allison’s limit of (b)(2) certification toclaims involving no more than incidentalmonetary damages, instead adopting an ‘‘adhoc balancing that will vary from case tocase.’’ Id. at 164. Most recently, the SixthCircuit analyzed the certification of Title VIIcases in Reeb v. Ohio Dept. of Rehabilitation& Correction, 435 F.3d 639 (6th Cir.2006),and adopted a position similar to, but morestringent than, the Fifth Circuit. In Reeb,the court noted that Title VII individualcompensatory damages typically involve indi-vidualized loss calculations, including ‘‘futurepecuniary losses, emotional pain, suffering,inconvenience, mental anguish, loss of enjoy-ment of life, and other non-pecuniary loss-es.’’ Id. at 650–51. The court also notedthat, in a Title VII case, ‘‘whether the dis-criminatory practice actually was responsiblefor the individual class member’s harm, theapplicability of nondiscriminatory reasons forthe action, showings of pretext, and any af-firmative defense of all must be analyzed onan individual basis.’’ Id. at 651. BecauseTitle VII provides for fee-shifting, providesadministrative remedies, and allows theEEOC to bring suit on an individual’s be-half, a court need not allow class certifica-tion to preserve Title VII claims that wouldotherwise not be brought. Id. The courtheld that ‘‘the claims for individual compen-satory damages of members of a Title VIIclass necessarily predominate over requesteddeclaratory or injunctive relief, and individu-


al compensatory damages are not recovera-ble by a Rule 23(b)(2) classTTTT Plaintiffsnow have the choice of proceeding underRule 23(b)(3) in an action for money dam-ages or in an action under Rule 23(b)(2) fordeclaratory or injunctive relief alone or inconjunction with compensatory and punitivedamages that inure to the group benefit.’’Id. While Allison allowed for certificationunder Rule 23(b)(2) of Title VII cases thatseek monetary damages in limited circum-stances—when the damages are ‘‘incidental’’

to the requested injunctive relief—Reeb ex-cludes the possibility of seeking monetarydamages in a Title VII case under Rule23(b)(2), instead requiring plaintiffs to eitherforego monetary damages or meet the morestringent requirements of Rule 23(b)(3).

Few employment discrimination class ac-tions have been certified in the Fifth Circuitsince Allison. Most of the reported employ-ment discrimination cases in which class cer-tification has been sought since Allison havenot resulted in class treatment.10 There are

10. See, e.g., Swanson v. Perry, 69 Fed.Appx. 658(5th Cir.2003) (unpublished opinion) (affirming adenial of class certification for a group of Afri-can–American employees who brought Title VIIemployment discrimination suit, seeking certifi-cation under Rule 23(b)(2) for claims for declara-tory relief, injunctive relief, back pay, bonuses,and compensatory damages, holding that the em-ployees failed to demonstrate commonality andtypicality under Rule 23(a) and that the claimsfor injunctive and declaratory relief did not pre-dominate over the compensatory damage claims,which required individualized determinations);Smith v. Texaco, Inc., 263 F.3d 394 (5th Cir.2001) (opinion withdrawn) (denying certificationof race discrimination suit brought by approxi-mately 200 salaried black employees who soughtcompensatory and punitive damages and backpay and holding that the class could not becertified under Rule 23(b)(2) because compensa-tory and punitive damages predominated overinjunctive and declaratory relief and could not becertified under Rule 23(b)(3) because the claimsfor punitive damages required individual inqui-ries); Lumpkin v. Coca–Cola Bottling Co. United,Inc., 216 F.R.D. 380 (S.D.Miss.2003) (denyingcertification of suit by African–American employ-ees alleging disparate impact and disparate treat-ment and holding that many of the proposedclass members’ claims were barred by limita-tions, and those members whose claims weretimely were not sufficiently numerous to justify aclass action); Broadus v. Aegis Commc’n Group,Inc., No. 01–1777, 2002 WL 1371214 (N.D.Tex.June 20, 2002) (unpublished opinion) (holdingthat African–American pro se plaintiff who al-leged employment discrimination failed to dem-onstrate numerosity, commonality, typicality, orthat he could adequately represent the interestsof the proposed class); Basco v. Wal–Mart Stores,Inc., 216 F.Supp.2d 592 (E.D.La.2002) (denyingRule 23(b)(3) certification of class of approxi-mately 100,000 employees who alleged breach ofcontractual agreements to provide rest and mealbreaks and required them to work off-the-clock,despite the fact that the class of approximatelysought only damages for lost wages and missedbreaks, not compensatory or punitive damagesand holding that the success of individual classmembers’ claims would turn on the special cir-cumstances of each individual’s case and that

individual issues, such as why an employeemight have worked off-the-clock or missed abreak, would predominate); Vance v. City of Nac-ogdoches, Tex., 198 F.Supp.2d 858 (E.D.Tex.2002) (denying certification of a class allegingdisparate impact Title VII claims and expressedconcern that the class representatives were notpursuing the full measure of damages available,which could have ‘‘potential preclusive effect onindividuals who fail to opt-out’’); Street v. Dia-mond Offshore Drilling, No. 00–1317, 2001 WL568111 (E.D.La. May 25, 2001) (unpublishedopinion)(denying Rule 23(b)(2) certification indisability discrimination case in which plaintiffssought compensatory damages, punitive dam-ages, back pay, and injunctive relief because thecompensatory damages claims predominatedover the claims for injunctive relief and becausethe punitive damages claim was ‘‘dependent on anon-incidental compensatory damages award’’because punitive damages cannot be awarded‘‘merely upon a finding that a defendant engagedin a pattern or practice of discrimination’’ andfinding certification under Rule 23(b)(3) improp-er because individual issues predominated theaction); Burrell v. Crown Central Petroleum, Inc.,197 F.R.D. 284 (E.D.Tex.2000) (denying 23(b)(2)certification of race and sex discriminationclaims because money damages predominatedover injunctive or declaratory relief and deniedcertification under 23(b)(3) because the need forindividualized damages determinations causedindividual issues to predominate over commonones); Riley v. Compucom Sys., Inc., No. 98–1876, 2000 WL 343189 (N.D.Tex. March 31,2000) (unpublished opinion) (denying certifica-tion of African–American employees’ race dis-crimination and retaliation claims, holding thatthe plaintiffs did not demonstrate commonalityor typicality under Rule 23(a) because, even ifdefendants maintained discriminatory policiesand practices, those policies and practices ad-versely impacted each class member in differentways, that plaintiffs failed to show that theywould adequately represent the class because ofthe ‘‘unavoidable factual disparities that will nec-essarily impact the success or failure of eachPlaintiff’s claims,’’ and that plaintiffs’ claims forcompensatory and punitive damages precludedcertification under either Rule 23(b)(2) or (b)(3)


three reported employment discriminationcases in this circuit in which class certifica-tion has been granted since Allison. In Mu-noz v. Orr, 200 F.3d 291 (5th Cir.2000), His-panic male civilian employees at an Air Forcebase alleged that the promotion system had adisparate impact, violating Title VII. Thedistrict court certified the class under Rule23(b)(2). The Court of Appeals did not con-sider whether certification had been proper.The case was filed in 1985 and certified be-fore 1993. See Br. of Pet., at 4–6, Munoz v.Aldridge, No. 99–1750 (U.S. May 03, 2000).Allison did not apply to the class certificationdecision. In San Antonio Hispanic PoliceOfficers’ Organization v. San Antonio, 188F.R.D. 433 (W.D.Tex.1999), a court grantedclass certification under Rule 23(b)(2) for set-tlement purposes only. Id. at 441. The plain-tiffs in that case, Hispanic police officers,sought only injunctive and declaratory relief.Id. at 445. Neither of these cases is helpfulin resolving the issues raised in the presentsuit.

In McClain v. Lufkin Industries, Inc., 187F.R.D. 267 (E.D.Tex.1999), African–Ameri-can employees sued under Title VII andSection 1981, alleging disparate impact fromemployer’s policy of granting unfettered dis-cretion to its managerial employees in mak-ing employment decisions and sought certifi-cation under Rule 23(b)(2). Id. at 277.Plaintiffs sought compensatory and punitive

damages individually, not on behalf of theclass. Id. at 282. The court severed plain-tiffs’ individual monetary claims from theirclass claims for injunctive relief to insurethat injunctive relief predominated and certi-fied the class under Rule 23(b)(2). Id. Thecourt did not examine claim splitting or pre-clusion issues. The case was not appealed.

Against this backdrop, this court examineswhether the plaintiffs’ proposed classes meetall the Rule 23(a) and either the Rule 23(b)(2)or (b)(3) requirements.

C. Rule 23(a)

1. Numerosity

[28] A class must be so numerous that‘‘joinder of all members is impracticable.’’FED. R. CIV. P. 23(a)(1). The plaintiffs’ pro-posed class includes ‘‘all Latino employeeswho worked for any period of time betweenJanuary 1, 1996 to the present.’’ (DocketEntry No. 81 at 14). Imperfect employmentrecords have suggested a variety of numbersof potential class members, but plaintiffsneed not provide a precise number of poten-tial class members to meet the numerosityrequirement. See In re Monumental LifeIns. Co., 365 F.3d 408, 415 (5th Cir.2004)(certifying class ‘‘although exact number ofclass members continuing to pay discrimina-tory premiums was unknown’’); Evans v.

after Allison.); Bourdais v. City of New Orleans,No. 99–1434, 1999 WL 729249 (E.D.La. Sept.15,1999) (unpublished opinion) (denying certifica-tion of class of forty to fifty white applicants tothe New Orleans Fire Department who chal-lenged the use of racial quotas in hiring becausejoinder of the forty to fifty applicants of thepotential class was not impractical nor unfeasi-ble and because the Department had terminatedits use of racial quotas in hiring, so the issuewould predominantly be what damages theplaintiffs suffered as a result of the former hiringpractices); Troupe v. Randall’s Food & Drug,Inc., No. 98–2462, 1999 WL 552727 (N.D.Tex.July 28, 1999) (unpublished opinion) (denyingcertification of a class of African–American em-ployees and former employees of Dallas/FortWorth area supermarket chain, holding thatplaintiffs failed to meet commonality and typical-ity requirements by not demonstrating with spec-ificity a policy of discrimination by the defen-dants and how that policy would affect everymember of the proposed class); Zachery v. Texa-co Exploration & Prod., Inc., 185 F.R.D. 230

(W.D.Tex.1999) (denying certification of class ofAfrican–American hourly field workers for an oilcompany, holding that class did not meet Rule23(a) commonality and typicality requirementsbecause plaintiffs held a variety of different jobsat different locations under different manage-ment and that class did not meet requirement ofadequate representation because class represen-tatives chose to drop their compensatory andpunitive damages claims to aid the certificationof injunctive claims after Allison); Adams v.Brookshire Grocery Co., No. 98–0462, 1999 WL33134344 (E.D.La. Feb. 10, 1999) (unpublishedopinion) (denying certification of class of femaleswho represented current and former employeesof and applicants for employment with a grocerychain and holding that the compensatory andpunitive damages plaintiffs sought were not inci-dental to the requested injunctive or declaratoryrelief, that bifurcating liability and damagesclaims would destroy the efficiency of the classaction device, and that the compensatory andpunitive damages made the issues in the case‘‘individual-specific’’).


U.S. Pipe & Foundry Co., 696 F.2d 925, 930(11th Cir.1983).

[29] There are at least 196 Latino em-ployees who worked in Department 911 from1999 to 2002. Plaintiffs have presented evi-dence that the number of Latino employeesin Departments 911 and 906 during the pro-posed class period is approximately 330.The Fifth Circuit has suggested that ‘‘anyclass consisting of more than forty members‘should raise a presumption that joinder isimpracticable.’ ’’ Mullen v. Treasure ChestCasino, LLC, 186 F.3d 620, 624 (5th Cir.1999) (quoting 1 NEWBERG, CLASS ACTIONS

§ 3.05 at 3–25 (3d ed.1992)).

Defendants argue that the class should belimited to 33, the number of Latino employ-ees assigned to Department 911 during theproposed class period who sought to transferto Department 910 by signing a transferposting form. This argument is unpersua-sive in light of the plaintiffs’ argument andevidence that many Latino employees in De-partments 911 and 906 were deterred fromseeking transfer to Department 910 becauseof the allegedly discriminatory language re-quirement. As this court noted in the May21, 2004 Memorandum & Opinion, (DocketEntry No. 151 at 23), Department 911 em-ployees need not have signed job postings forDepartment 910 to claim that defendants’transfer policy was discriminatory. The ar-gument also ignores the allegations of otherdiscriminatory practices.

The plaintiffs also presented evidence thatjoinder would be impracticable because‘‘these are low-wage workers who tend tochange jobs and addresses with frequen-cyTTTT’’ (Docket Entry No. 81 at 15). TheEEOC has had problems contacting manyformer employees of Departments 911 and906, who apparently no longer live at the lastaddress available to QuietFlex. (Docket En-try No. 188 at 13). Absent members of theproposed class are dispersed, living in statesthat include Washington, California, Wiscon-sin, Oklahoma, and Texas. (Docket EntryNo. 202 at 41). In Mullen, the Fifth Circuitnoted that the fact that some of the ‘‘putativeclass members were geographically dispersedand unavailable for joinder’’ supported a nu-merosity finding. 186 F.3d at 624. The

‘‘ease of identifying [ ] members and deter-mining their addresses’’ and the ‘‘facility ofmaking service on them’’ also affect the prac-ticality of joinder. Garcia v. Gloor, 618 F.2d264, 267 (5th Cir.1980). The present recordas to the number of Latino employees duringthe proposed class period, geographic disper-sion, and the practical difficulties of locatingthem, meets the numerosity requirement ofRule 23(a).

2. Commonality

[30, 31] Rule 23(a)(2) requires that therebe ‘‘questions of law or fact common to theclass.’’ The threshold for commonality is nothigh; it is met ‘‘where there is at least oneissue, the resolution of which will affect all ora significant number of the putative classmembers.’’ Lightbourn v. County of ElPaso, 118 F.3d 421, 426 (5th Cir.1997). Theabsent class members’ interests need not beidentical to meet the commonality require-ment. Johnson v. Am. Credit Co. of Geor-gia, 581 F.2d 526, 532 (5th Cir.1978); 7ACHARLES ALAN WRIGHT ARTHUR R. MILLER &

MARY KAY KANE, FED. PRACTICE & PROCEDURE

§ 1763 (3d ed.2005).

[32] The plaintiffs allege numerous is-sues, the resolution of which would affect themembers of the proposed class, includingwhether defendants excluded Latinos fromDepartment 910 and instead channeled theminto Departments 911 and 906, where thework was harder, more dangerous, and paidless; whether defendants used higher piecework rates for unskilled labor in Department910 than for similar work in Department 911;whether defendants maintain an English-lan-guage fluency requirement for Latinos seek-ing to work in or transfer to Department 910;whether defendants provided inferior work-ing conditions and safety equipment for De-partments 911 and 906 as compared to De-partment 910; whether defendants requiredLatino employees in Departments 911 and906 to perform menial labor not demanded ofVietnamese employees in Department 910,such as cleaning bathrooms and lunch rooms;and whether defendants retaliated againstthe plaintiffs by firing protesting workers onJanuary 10, 2000. Because ‘‘predominanceobviously is a more stringent standard than


that prescribed by Rule 23(a)(2),’’ the findingof commonality under Rule 23(a)(2) does notequate to a finding that the common issuespredominate under Rule 23(b)(3). WRIGHT,

MILLER & KANE at § 1763.

3. Typicality

[33, 34] Typicality requires plaintiffs toshow that ‘‘the claims or defenses of therepresentative parties are typical of theclaims or defenses of the class.’’ FED. R. CIV.

P. 23(a)(3). Like commonality, the thresholdfor demonstrating typicality is low. Lightb-ourn, 118 F.3d at 426. Typicality does notrequire identity of claims, but only that ‘‘theclass representative’s claims have the sameessential characteristics of those of the puta-tive class. If the claims arise from a similarcourse of conduct and share the same legaltheory, factual differences will not defeattypicality.’’ James v. City of Dallas, Tex.,254 F.3d 551, 571 (5th Cir.2001).

The plaintiffs assert that ‘‘the typicalityrequirement is met because the named plain-tiffs have suffered from the same discrimina-tory employment practices as the rest of theproposed class.’’ (Docket Entry No. 81 at16). The plaintiffs allege that the namedclass representatives and proposed classmembers were ‘‘channeled’’ into Department911 or 906; were deterred from transferringinto Department 910 through the languagerequirement and the intradepartment senior-ity requirements; were paid less for compa-rable work; were subjected to more danger-ous working conditions with inferior safetyequipment to that provided in Department910; were forced to clean the bathrooms andcafeteria; and were ‘‘inspected’’ by havingsupervisors stomp on their feet. (DocketEntry No. 188 at 22).

[35] Some of the proposed class membersmay not have experienced some of the al-leged policies and practices. The evidenceshows that the challenged employment prac-tices changed over time, although the extentand nature of some of the changes is disput-ed. It is undisputed that after January 2000,the employees did not clean bathrooms orthe cafeteria. (Tr. T. I at 54, ll. 17–21). It isundisputed that some of the supervisors whowere allegedly derogatory in their treatment

of Department 911 employees left the plantafter January 2000. The work in Depart-ment 911 has become more automated overtime, affecting allegations that deal withpiece work pay rates, working conditions,and job safety. These variations bear onpredominance, superiority, and manageabili-ty under Rule 23(b)(3), but do not defeattypicality under Rule 23(a). See, e.g., Smith,263 F.3d 394, 407 (‘‘The class purports toconsist of similarly-situated black employeeswho were exposed to the same policies. Thatthe time period of exposure may differ, orthat some were less affected by the policy,would not necessarily prevent a finding oftypicality. It might, however, affect otherconsiderations, such as damage levels or pre-dominance.’’); Mullen v. Treasure Chest Ca-sino, LLC, 186 F.3d 620, 625 (5th Cir.1999)(holding that variety among the illnesses thatclass members suffered did not defeat typi-cality because class members’ legal theorieswere the same); Allison, 151 F.3d at 407,425–26 (holding that class satisfied typicalityrequirement but that certification was none-theless improper under Rule 23(b)(2) or23(b)(3)).

4. Adequate Representation

[36] Rule 23(a)(4) requires that the rep-resentative parties ‘‘fairly and adequatelyprotect the interests of the class.’’ FED. R.CIV. P. 23(a)(4). This requirement ‘‘man-dates an inquiry into (1) the zeal and compe-tence of the representatives’ counsel and (2)the willingness and ability of the representa-tives to take an active role in and control thelitigation and to protect the interests of ab-sentees.’’ Berger v. Compaq ComputerCorp., 257 F.3d 475, 479 (5th Cir.2001) (cita-tions omitted). The competence of classcounsel is not challenged.

[37, 38] Differences between namedplaintiffs and absent class members makenamed plaintiffs inadequate representativesonly if those differences create a conflict ofinterest between the named plaintiffs and theclass members. Jenkins v. Raymark Indus-tries, 782 F.2d 468, 472 (5th Cir.1986). Thedefendants challenge the adequacy of repre-sentation because some of the proposed classmembers are supervisors. The potential


conflict is greatest when one class memberhas, as supervisor, evaluated another classmember who now challenges the evaluationsystem. This type of challenge is ineffectiveif both promotional and hiring discriminationare alleged, see Rossini v. Ogilvy & Mather,Inc., 798 F.2d 590 (2d Cir.1986), and does notdefeat adequacy under Rule 23(a) in thiscase.

The named plaintiffs have agreed to foregocompensatory damages on a classwide basisto increase the likelihood of class certifica-tion. The plaintiffs ask this court to grantclass certification as to the claims for aninjunction and declaratory judgment, backpay, and punitive damages based on the dis-parate impact, disparate treatment, and re-taliation claims, and not to seek compensato-ry damages in this class action. (DocketEntry No. 202 at 4). Plaintiffs plan to pur-sue compensatory damages in individual ac-tions if this court denies class certification.(Id. at n. 3).

[39] The implications of this approach forthe Rule 23(b) requirements are analyzedbelow, but the decision also affects Rule23(a)(4). A decision not to pursue claims forcompensatory damages in a class action maywaive that claim on behalf of the individualclass members. As a general rule, the deci-sion in a class action is binding on the partiesin subsequent decisions. Cooper v. Fed. Re-serve Bank of Richmond, 467 U.S. 867, 874,104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). ‘‘Ba-sic principles of res judicata (merger and baror claim preclusion) and collateral estoppel(issue preclusion) apply. A judgment in fa-vor of the plaintiff class extinguishes theirclaim, which merges into the judgmentgranting relief.’’ Id. If the plaintiffs prevailin their proposed class action, the court maynot award compensatory relief because theplaintiffs have chosen not to seek it. Thepreclusive effect of the class action couldprevent class members from seeking thosedamages in an individual lawsuit. Smith, 407F.3d at 386; Allison, 151 F.3d at 425 (citingRoscello, 726 F.2d at 221); Martin, 945 F.2dat 1003.

In Murray v. GMAC Mortgage Corp., 434F.3d 948 (7th Cir.2006), the court held that arepresentative plaintiff’s decision to seek

statutory but not compensatory damages didnot defeat certification, but the court clarifiedthat the compensatory damages at issue, ‘‘ifany, [were] likely to be small’’ and hard toquantify. Id. at 952–53. The court noted thata representative plaintiff should be allowedto forego claims for compensatory damagesto achieve class certification ‘‘[u]nless a dis-trict court finds that personal injuries arelarge in relation to statutory damages.’’ Id.In the present case, the plaintiffs have notargued that the damages to which individualclass members might otherwise be entitledare insignificant. The 1991 Civil Rights Actallows damages up to $300,000 per plaintiff.Other courts have found class representa-tives who are willing to risk waiving absentclass members’ compensatory damages inad-equate under Rule 23(a)(4). See, e.g., Zach-ery, 185 F.R.D. at 243 (‘‘[T]he named Plain-tiffs are asking the class members beingrepresented here to risk waiving their rightto monetary damages solely so the action fordisparate treatment can proceed as a classactionTTTT [T]he Court is unwilling to riskthis result. The decision by the namedPlaintiffs to drop the monetary damagesclaim cannot be imposed upon the absentclass members without raising a very seriousconflict of interest. This conflict preventscertification of the proposed class for theclaims as stated.’’); Miller v. Baltimore Gas& Electric Co., 202 F.R.D. 195, 203 (D.Md.2001) (refusing to allow plaintiffs to amendcomplaint to remove claim for damages be-cause ‘‘the proposed removal of the compen-satory and punitive damages claims raisesserious questions regarding the ability of thenamed plaintiffs to represent the putativeclass adequately’’).

[40] Courts have also noted that eschew-ing compensatory damages may create a con-flict between the interests of present andpast employees because former employeeslikely have less interest in declaratory orinjunctive relief (although they do have aninterest in back pay) than in compensatorydamages. In Cooper v. Southern Co., 390F.3d 695 (11th Cir.2004), the court noted that‘‘to many of the class members (and especial-ly to those who no longer work for thedefendants), the monetary damages request-


ed might be of far greater significance thaninjunctive relief, stated at a high order ofabstraction, that simply directs the defen-dants not to discriminate.’’ 390 F.3d at 721;see also Bolin v. Sears, Roebuck & Co., 231F.3d 970, 978, 979 (5th Cir.2000) (when mostof the class consisted of individuals who didnot face further harm from the defendant’sactions, court held that plaintiffs had ‘‘noth-ing to gain from an injunction’’ and thatcertification under Rule 23(b)(2) was anabuse of discretion).

[41] A majority of the putative classmembers in this case are former employees,many of whom worked for a short period.(Docket Entry No. 194, Ex. 2). Plaintiffsargue that their claims for injunctive anddeclaratory relief would ‘‘achieve significantlong-term relief’’ for ‘‘not only current classmembers, but all future Latino employees aswell.’’ (Docket Entry No. 202 at 3). Courtshistorically have used this justification to cer-tify small classes, not to address concernsover adequacy of representation. See, e.g.,Jones v. Diamond, 519 F.2d 1090, 1100 (5thCir.1975) (‘‘Smaller classes are less objection-able where, as in the case before us, theplaintiff is seeking injunctive relief on behalfof future class members as well as past andpresent members.’’). Plaintiffs cite Young v.Pierce, 544 F.Supp. 1010 (D.C.Tex.1982), butthat court was justifying certification of asmaller class: ‘‘For purposes of establishingnumerosity, smaller classes are more readilycertified when the relief sought is injunctiverelief, the benefits of which would inure notonly to the known class, but also to a futureclass of indefinite size.’’ Id. at 1028. Youngdoes not justify certifying a case in whichrepresentative plaintiffs offer to forego com-pensatory damages despite the fact that themajority of the potential class memberswould only be benefitted by damages.

[42] Plaintiffs suggest providing noticeand opt-out rights to class members to pro-tect the interests of those who want to pur-sue individual claims for damages. (DocketEntry No. 81 at 25–26). Rule 23(d)(2) allowsdistrict courts to provide notice and an op-portunity to opt-out in a class action certifiedunder Rule 23(b)(2) as well as in cases certi-fied under Rule 23(b)(3). The Fifth Circuit

‘‘requires that notice be provided where arule 23(b)(2) class seeks damages’’ to satisfydue process requirements. MonumentalLife, 365 F.3d at 417 n. 15. ‘‘[S]uch safe-guards are most appropriate where individu-al issues diminish class cohesiveness. Then,conflicts among class members and issues ofadequate representation are most likely tosurface.’’ Id. at 417. Providing class mem-bers notice and an opt-out opportunity mayalert class members that they can pursueindividual damages claims, but are not asubstitute for the adequate, conflict-free rep-resentation required under Rule 23(a)(4).

D. Certification under Rule 23(b)

1. Rule 23(b)(2)

[43] Rule 23(b)(2) permits certificationwhen ‘‘the party opposing the class has actedor refused to act on grounds generally appli-cable to the class, thereby making appropri-ate final injunctive relief or correspondingdeclaratory relief with respect to the class asa whole.’’ FED. R. CIV. P. 23(b)(2). Rule23(b)(2) classes must be cohesive. SeeJames, 254 F.3d at 571–72. When a classsuffers from a common injury and seeksclasswide relief, there is a presumption ofcohesion. Allison, 151 F.3d at 413. In con-trast, when a class seeks monetary relief, theclass becomes less cohesive because assess-ing those damages often requires examina-tion of individual claims. Id.

[44, 45] Plaintiffs seek both equitable re-lief, including back pay, and classwide puni-tive damages. Certification under Rule23(b)(2) is not proper in ‘‘cases in which theappropriate final relief relates exclusively orpredominantly to money damages.’’ FED. R.CIV. P. 23(b)(2) Committee Note (1966).Rule 23(b)(2) does not preclude plaintiffsfrom seeking monetary damages if the pre-dominant relief sought is equitable. TheFifth Circuit has held that monetary reliefpredominates in Rule 23(b)(2) class actions‘‘unless it is incidental to requested injunctiveor declaratory relief.’’ Allison, 151 F.3d at412. Incidental damages are those that‘‘flow directly from liability to the class as awhole on the claims forming the basis of theinjunctive or declaratory relief.’’ Id. at 415


(emphasis in original). Such damages arethose to which ‘‘class members automaticallywould be entitled once liability to the class(or subclass) as a whole is established,’’ suchas a statutorily-mandated damages award.Id. Incidental damages must also be ‘‘capableof computation by means of objective stan-dards and not dependent in any significantway on the intangible, subjective differencesof each class member’s circumstances.’’Monumental Life, 365 F.3d at 416 (quotingAllison, 151 F.3d at 415). ‘‘Additional hear-ings to resolve ‘the disparate merits of eachindividual’s case’ should be unnecessary.’’Id. at 416 (quoting Allison, 151 F.3d at 415).‘‘The operational meaning of ‘incidental’ dam-ages in this setting is that the computation ofdamages is mechanical, ‘without the need forindividual calculation,’ so that a separatedamages suit by individual class memberswould be a waste of resources.’’ In re All-state Ins. Co., 400 F.3d 505, 507 (7th Cir.2005) (quoting MANUAL FOR COMPLEX LITIGA-

TION (FOURTH) § 21.221 (2004)).

[46] A court should consider three fac-tors in determining whether damages are‘‘incidental’’ for the purpose of Rule 23(b)(2)certification: (1) whether such damages areof a kind to which class members would beautomatically entitled; (2) whether suchdamages can be computed by ‘‘objective stan-dards,’’ and not standards reliant upon ‘‘theintangible, subjective differences of eachclass member’s circumstances’’; and (3)whether such damages would require addi-tional hearings to determine. Allison, 151F.3d at 415.

[47] In the present case, plaintiffs contin-ue to seek punitive damages on a classwidebasis for the alleged pattern or practice ofdiscriminatory treatment and the allegedlyretaliatory firing of some employees on Janu-ary 10, 2000. The Civil Rights Act of 1991allows plaintiffs to recover punitive damagesif an employer discriminated with ‘‘malice orreckless indifference’’ to the protected rightsof an individual. 42 U.S.C. § 1981a(b)(1)(2).Plaintiffs’ trial plan proposes that in Stage I,they will try classwide liability and classwideinjunctive and declaratory relief and punitivedamages. (Docket Entry No. 81 at 22–23).They propose that the jury would determine

the ‘‘aggregate amount of lost earnings owedto the class and a measurement of front pay’’during this first stage. (Id. at 28). Plaintiffspropose that, if they prevail in Stage I, indi-vidual equitable relief—the amount of backpay that each plaintiff receives—would bedetermined by the court in stage II. (Id. at23, 29).

The punitive damages plaintiffs seek arenot ‘‘incidental’’ to their requested equitablerelief. In Allison, the court assumed—withreservations—that punitive damages could beawarded on a classwide basis without individ-ualized proof of injury, but emphasized thatsuch damages would be limited to claims thatan entire class or subclass was subjected tothe same discriminatory act or series of acts.151 F.3d at 417. In Allison, the court foundthat unless the evidence is that ‘‘each plain-tiff was affected by these policies and prac-tices in the same way,’’ certification is inap-propriate. Id.

[48] Under this standard, there are twoproblems with the plaintiffs’ request to certi-fy both equitable and punitive damagesclaims under Rule 23(b)(2). First, Allisonheld that punitive damages cannot be as-sessed without proof of liability to individualclass members. Second, punitive damagesrequire proof that each plaintiff was affectedby the challenged policies and practices inthe same way, a problem in a case involvingsuch a lengthy proposed class period inwhich the challenged policies and practicesthemselves changed over time and were im-posed differently on different people.

‘‘Punitive damages cannot be assessedmerely upon finding that the defendant en-gaged in a pattern or practice of discrimina-tion. Such a finding establishes only thatthere has been general harm to the groupand that injunctive relief is appropriate.’’Allison, 151 F.3d at 417. Allison made clearthat recovery of punitive damages, whichmust be reasonably related to the ‘‘reprehen-sibility of the defendant’s conduct and to thecompensatory damages awarded to the plain-tiffs,’’ must ‘‘necessarily turn on the recoveryof compensatory damages.’’ Id. at 418. Pu-nitive damages have to be determined afterproof of liability to individual plaintiffs at the


second stage of a pattern or practice case.Id. Plaintiffs themselves have acknowledgedthat compensatory damages are not inciden-tal by withdrawing their effort to obtain classcertification for such damages. ‘‘[P]unitivedamages are also non-incidental—requiringproof of how discrimination was inflicted oneach plaintiff, introducing new and substan-tial legal and factual issues, and not beingcapable of computation by reference to objec-tive standards.’’ Id.

The plaintiffs cite the district court deci-sion in In re Simon(II) Litigation, 211F.R.D. 86 (E.D.N.Y.2000), for the propositionthat classwide punitive damages could bedetermined before determining liability toindividual class members. That case wasreversed on appeal. 407 F.3d 125 (2d Cir.2005). Although the specific basis for theclass certification order and its reversal arenot involved in the present case, the appel-late court did discuss the general propositionthat classwide punitive damages could bedetermined before compensatory damages:

While our holding in this case rests ex-clusively on the conclusion that certifica-tion is incompatible with Ortiz, we havean additional concern that warrantssome discussion. It seems that a puni-tive award under the circumstances ar-ticulated in the Certification Order islikely to run afoul of the SupremeCourt’s admonitions in State Farm, adecision handed down several monthsafter the Certification Order issued. Incertifying a class that seeks an assess-ment of punitive damages prior to anactual determination and award of com-pensatory damages, the district court’sCertification Order would fail to ensurethat a jury will be able to assess anaward that, in the first instance, willbear a sufficient nexus to the actual andpotential harm to the plaintiff class, andthat will be reasonable and proportion-ate to those harms.

407 F.3d at 138 (citations omitted). Thecourt cited State Farm Mut. Auto. Ins. Co. v.Campbell, 538 U.S. 408, 424–25, 123 S.Ct.1513, 155 L.Ed.2d 585 (2003), which held that‘‘courts must ensure that the measure ofpunishment is both reasonable and propor-tionate to the amount of harm to the plaintiffand to the general damages recovered.’’ Id.at 426, 123 S.Ct. 1513.11

[49] Second, and independently, theclaim for classwide punitive damages is inap-propriate under Allison because plaintiffs donot contend the policies and practices theychallenge affected each plaintiff in the sameway. Although this case does not have allthe variations that were present in Allison,because it is a smaller class and is limited toa single facility, some of the problems thatprevented class certification in Allison existin this case as well. Here, as in Allison, theclass period extends over a long period andthe evidence shows that the many of thechallenged practices have changed over time.The evidence also shows that some individu-als had different experiences under thosepractices. When the evidence shows thatplaintiffs suffered differently under the al-leged discriminatory practices, classwide pu-nitive damages are inappropriate. Allison,151 F.3d at 417.

The Department 911 jobs represented inthe proposed class—forklift drivers, machineoperators, and baggers—are distinct fromone another and have changed with the pas-sage of time. (Compare Docket No. 194, Ex.15 with Docket No. 194, Ex. 16 (showing thejobs in 2000 and in 2004, after defendantshad implemented significant automation); seealso Docket Entry No. 81 at 11 (noting that‘‘[b]efore the recent partial mechanization ofwork in Department 911’’ the jobs in Depart-ment 911 were more physically demandingthan those in Department 910)). Proposedclass representative Lazaro Garcia admitted

11. The Fifth Circuit allows a punitive damagesaward without compensatory damages in ‘‘casesw[h]ere a violation of a constitutional right hasoccurred.’’ Louisiana ACORN Fair Housing v.LeBlanc, 211 F.3d 298, 303 (5th Cir.2000); Lin-coln v. Case, 340 F.3d 283 (2003). A violation ofTitle VII may, but does not necessarily, violate aconstitutional right. See Maynard v. Price Realty

Co., 102 Fed.Appx. 854, 855 (5th Cir.2004). Butan award of punitive damages in a Title VII caserequires the same individualized inquiry neces-sary for an award of compensatory damages,which defeats its status as incidental to equitablerelief for the purpose of Rule 23(b)(2) certifica-tion.


that those who began work after January2000 never had to clean the bathroom orlunchroom, unlike those employed beforethat date. (Tr. T. I at 54, ll. 17–21). Thelanguage requirement changed over time;earlier job postings required applicants tospeak English while later postings requiredapplicants to be able to communicate withsupervisors, and Spanish-speaking supervi-sors were later hired in some of the Depart-ment 910 shifts, although the evidence as towhether that was consistently applied orcommunicated to the plaintiffs is inconsistent.(Docket Entry No. 202, Ex. J–1; Ex. I–2 at104–06). Many of the proposed class mem-bers did not satisfy QuietFlex’s eligibilitystandards for transferring between depart-ments because they had not met the prereq-uisites of working at QuietFlex for six contin-uous months, having no final disciplinarywarning, and having no transfer within thepast six months. (Docket Entry No. 116, Ex.16 at 83). Almost half of the proposed classworked at QuietFlex for four weeks or less.(Docket Entry No. 116, Ex. 26). Some of theclass members concede that they did notwant to transfer, noting that they did notwant to work a third or second shift inDepartment 910 as opposed to a first-shiftjob in Department 911 or 906. (See, e.g., Id.,Ex. 30 at 63). Some speak English. (See,e.g., Id., Ex. 11 at 8). Some of the putativeclass members did transfer into Department910. (Docket Entry No. 116 at 27). Some ofthe putative class members received pro-motions to supervisory positions. (Id., Ex.27 at 47).

Plaintiffs’ best argument that the punitivedamages claim is susceptible to classwideproof is for the single incident of the alleged-ly retaliatory firing of some employees onJanuary 10, 2000. As to this subclass, how-ever, injunctive relief does not predominatefor (b)(2) purposes. The employees wererehired after two weeks, making injunctiverelief inappropriate. The claim for punitivedamages predominates. Plaintiffs’ claim forclasswide punitive damages makes certifica-tion under Rule 23(b)(2) inappropriate.

[50] The plaintiffs did not seek class cer-tification under Rule 26(b)(2) limited toclaims for injunctive and declaratory relief

and back pay. Back pay is an equitableremedy for Rule 23(b)(2) purposes; it is notmonetary relief analyzed under an incidentaldamages standard. Allison, 151 F.3d at 414.In Allison, the court followed Pettway v.American Cast Iron Pipe Co., 494 F.2d 211,257 (5th Cir.1974), and held that ‘‘back paycould be sought in a(b)(2) class action be-cause, as an equitable remedy similar to oth-er forms of affirmative relief permitted in(b)(2) class actions, it was an integral compo-nent of Title VII’s ‘make whole’ remedialscheme.’’ 151 F.3d at 415. In MonumentalLife the Fifth Circuit explained the role ofback pay in a(b)(2) class:

Equitable monetary relief is compatiblewith a rule 23(b)(2) class. Importantly,this pronouncement has been limited to thecontext of title VII backpay, a remedydesignated by statute as ‘‘equitable.’’Backpay is therefore unique in that it is‘‘an integral component of Title VII’s‘make whole’ remedial scheme.’’ Not coin-cidentally, as compared to compensatorydamages, ‘‘calculation of back pay general-ly involves less complicated factual deter-minations and fewer individual issues.’’ InAllison, 151 F.3d at 415, we recognizedthat, for this reason, backpay generallydoes not predominate over injunctive ordeclaratory relief.

365 F.3d at 418 (citations omitted). Thecourt continued: ‘‘equitable monetary reme-dies are less likely to predominate over aclass’s claim for injunctive relief, but this hasmore to do with the uniform character of therelief rather than with its label.’’ Id.

In this case, because workers in Depart-ments 910 and 911 received piece work pay,their compensation in a given period variedaccording to the individual employee’s pro-ductivity, which itself varied depending onthe task they were assigned. Generally,those who produced more pieces—because ofability, experience, or motivation—mademore money; those who produced fewerpieces made less. Defendants assert thatthere are significant variations among theindividual class members’ productivity andamong an individual’s productivity from weekto week, depending on the job assigned,which defeat classwide certification of the


back pay award. Plaintiffs assert that if, asthey claim, there are no valid differences inskill or work between the tasks in Depart-ment 911 and in Department 910, back paycan be objectively and mechanically comput-ed simply by increasing a Department 911worker’s pay by the higher rates paid inDepartment 910.

Both parties submitted expert reports—and supplemental expert reports—address-ing whether back pay could be calculated in away that would make it ‘‘incidental’’ to theother equitable claims. As noted above, thetest under (b)(2) is not whether back pay is‘‘incidental’’ to equitable relief—it is equita-ble relief. See Allison, 151 F.3d at 415. TheAllison court held that the district judgeerred in analyzing back pay under the inci-dental monetary damages standard. Id. Nei-ther party has addressed certification ofa(b)(2) class that is limited to an injunction,declaratory relief, and back pay. As a result,issues important to class certification havenot been addressed, despite the large amountof briefing in the case.

First, the case law is clear that ‘‘classwideback pay should be denied only in extraordi-nary circumstances,’’ and the difficulty ofcalculation is not a valid reason. Kirby v.Colony Furniture Co., 613 F.2d 696, 699 (8thCir.1980) (‘‘The court’s sole rationale, that‘the varieties of employees involved and thevariety of factual considerations’ prohibitedclasswide back pay, is clearly insufficient’’ fordenying back pay awards on a class basis.).Second, because under Allison, the court re-jected treating back pay as ‘‘incidental’’ dam-ages under (b)(2), the argument that backpay is so hard to calculate on a classwidebasis that it defeats certification is essentiallyan argument that common issues do not pre-dominate and the class would be unmanagea-ble. The Fifth Circuit held in Allison thatunder Rule 23(b)(2), a district court is not toconsider the predomination of common issuesand the manageability of a class action. 151F.3d at 414 n. 4 (citing Forbush v. J.C.Penney Co., 994 F.2d 1101, 1105 (5th Cir.1993)). Nor have the parties examined wheth-er the Seventh Amendment would precludeclass certification limited to injunctive anddeclaratory relief and back pay, given Alli-

son’s recognition that when, as here, thesame employment policies and practices arechallenged under both disparate impact andpattern or practice disparate treatmentclaims, a jury would first have to decide thefactual issues common to these claims beforethe court could consider the merits of thedisparate impact claim and whether theplaintiffs are entitled to back pay or otherequitable relief. Nor have the parties exam-ined how foregoing punitive damages to ob-tain class certification might affect Rule23(a)(4) adequacy of representation.

[51] In short, the class proposed by theplaintiffs cannot be certified under Rule23(b)(2) because it includes classwide puni-tive damages determined in an initial phase,and the plaintiffs have not proposed a trialplan, nor explored the Seventh Amendmentimplications, of limiting class certification toa(b)(2) class seeking only equitable remedies.

2. Rule 23(b)(3)

Rule 23(b)(3) permits certification of classactions that meet Rule 23(a) when the courtfinds that: ‘‘(1) that questions common to theclass members predominate over questionsaffecting only individual members and (2)that class resolution is superior to alternativemethods of adjudication of the controversy.’’Bell Atl. Corp. v. AT & T Corp., 339 F.3d294, 297 (5th Cir.2003). ‘‘ ‘[T]he predomi-nance and superiority requirements are ‘‘farmore demanding’’ than is Rule 23(a)(2)’scommonality requirement.’ ’’ Robinson v.Texas Auto. Dealers Ass’n, 387 F.3d 416, 421(5th Cir.2004) (quoting O’Sullivan v. Coun-trywide Home Loans, Inc., 319 F.3d 732, 738(5th Cir.2003)).

[52, 53] To determine predominance, thiscourt must compare the issues commonamong the class members and the issuesindividual to them. See Castano, 84 F.3d at745. Although specific issues may be certi-fied for class treatment, ‘‘[a] district courtcannot manufacture predominance throughthe nimble use of subdivision (c)(4).’’ Id. Thecause of action as a whole must satisfy Rule23(b)(3)’s predominance requirement. Id.Once that requirement is met, Rule 23(c)(4)allows severance of the common issues for aclass trial. Id. ‘‘The proper interpretation of


the interaction between subdivisions (b)(3)and (c)(4) is that a cause of action, as awhole, must satisfy the predominance re-quirement of (b)(3) and that (c)(4) is a house-keeping rule that allows courts to sever thecommon issues for a class trial.’’ Id.

[54] Class certification under Rule23(b)(3) cannot extend to the punitive dam-ages claim. As the court clarified in Allison,the recovery of punitive damages in Title VIIcases requires ‘‘individualized and indepen-dent proof of injury to, and the means bywhich discrimination was inflicted upon, eachclass member.’’ 151 F.3d at 420. These areindividual issues that will predominate overquestions common to the class as a whole anddefeats certification under Rule 23(b)(3). SeeCorley v. Entergy Tech. Holding Co., 152Fed. Appx. 350 (5th Cir. Oct.13, 2005) (deny-ing class certification under Rule 23(b)(2) or(b)(3) because of the necessity of individual-ized damage calculations).

The parties have not addressed whethera(b)(3) class could be certified if limited toequitable relief, including back pay. Theparties have briefed the manageability prob-lems involved in calculating back pay.Plaintiffs produced Dr. Louis Lanier, aneconomist. (Docket Entry No. 202, Ex. T).Lanier proposed two ways to calculate back-pay on a classwide basis, assuming that classmembers in Departments 906 and 911should have been paid at the same rate asworkers in Department 910, given the sameamount of time spent on the job and samelevel of productivity. In the first, the effectsof regular hours, overtime hours, productivi-ty, and pay period on the gross pay of em-ployees is estimated, and these estimates areapplied to employees in Departments 906and 911 to estimate what they should havebeen paid, given their actual regular andovertime hours worked, actual productivity,and actual pay periods worked, if they werecompensated at the same rate as Depart-ment 910 employees. (Id. at ¶ 24). In thesecond, which Lanier argues is the preferredmethod, the piece rates paid to the workersin Department 911 would be adjusted up-ward by a percentage that ‘‘would makeworker pay equivalent across job groups, onaverage, for the same amount of time

worked and the same level of productivity.’’(Id. at ¶ 26).

Lanier recognized that ‘‘from any one payperiod to the next it is often the case thatdifferent products are required to be pro-duced, which carry with them different piecerates and different time requirements thatcan affect how much an employee is paid.’’(Id. at ¶ 11). He compensated for this varia-ble by specifying ‘‘one set of fixed effects foreach pay period that is common to all jobtitles’’ because he understood—from a con-versation with an undisclosed employee ofDepartment 911—that ‘‘the workers acrossdifferent job titles in the 906, 910, and 911Departments are all similarly affected by theproduct changes that occur from pay periodto pay period, and [ ] the effects of theproduct changes are effectively simultaneousfor all workers (i.e., there is very little lagfrom one job title or Department to thenext).’’ (Id. at 5 n.6). This understandingseems critical to Lanier’s methodology but isinsufficiently supported by the record. Lani-er’s report notes that ‘‘[i]t will also be neces-sary to determine which position in the 910Department is more appropriate for the pur-poses of comparison.’’ (Id. at ¶ 29). It is notclear that each job in Department 911 has anappropriate ‘‘comparison’’ job in Department910. Lanier’s report clarifies that ‘‘[f]or thepurposes of these regression analyses, allpay periods that showed abnormally low av-erage hourly rates of pay for any given jobtitle, presumably due to a machine shutdown,were eliminated. Individuals on light duty,vacation, and LOA were also eliminated fromthe analyses.’’ (Id., Appendix C). The prob-lem is that these conditions did exist andmust be accounted for in any method thatcalculates back pay. Finally, Lanier’s calcu-lations assume that a top-producing Depart-ment 911 worker would be a top-producingDepartment 910 worker and a low-producingDepartment 911 worker would be a low-pro-ducing Department 910 worker. These as-sumptions are directly contradicted by theanalysis of defendants’ expert, Dr. Jones, ofthe experiences of employees who did trans-fer from Department 911 to Department 910.

On March 8, 2005, Dr. Jones submitted asupplemental report, ‘‘An Analysis of Pay


Data for Employees Moving from Depart-ment 911 to Department 910 during the Peri-od October 1997 through December 2004.’’(Docket Entry No. 229, Ex. 5). Jones exam-ined the experiences of eight employees, sev-en Hispanic and one Asian. (Docket EntryNo. 207, Ex. A at 2). Jones acknowledgedthat it is ‘‘a small sample on which to exploreevidence of overall patterns in compensationbut, nonetheless, captures all such cases.’’(Id.).12 Four of the employees moved direct-ly from Department 911 to Department 910;four moved first to an intermittent Depart-ment before transferring to Department 910.(Id.). Jones identified each employee’sweekly average hourly incentive rate for the52 weeks before he left Department 911 andthe 52 weeks after he joined Department 910and then compared the two. (Id. at 5, ¶ 14).Of the four who transferred directly fromDepartment 910 to Department 911, oneearned substantially less in Department 910,two had no substantial change, and oneearned substantially more in Department910. (Id. at 7, ¶ 23). Of the four who tomoved to Department 910 from an intermit-tent department, one earned substantiallymore in 910, one earned substantially less,one earned slightly less, and one ‘‘receivedtoo few Department 910 pay checks to permitanalysis.’’ (Id. at 8, ¶ 29). ‘‘[T]he pay analy-sis for this group of four employees was alsoconfounded as a result of operating changes,piece rate changes, mechanization changes,etc., having taken place over the extendedperiod of time.’’ (Id. at ¶ 30). Jones con-cluded from his analysis that ‘‘[a]ll of theemployees showed substantial week-to-weekvariation in pay levels. Both departmentsshowed this variability. Under the piecerate pay system, pay clearly varies as afunction of individual productivity, plant pro-duction needs, and other factors.’’ (Id. at 2).Plaintiffs argue that there is no reason tobelieve that an employee paid piece-workrates in Department 911 would work lesshard and want to earn less money if giventhe opportunity to transfer to Department

910. But Dr. Jones’s report indicates thatworkers who transferred between the de-partments experienced significant variationsin productivity, making the back pay calcula-tions individualized in nature.

As noted, the record discloses variationsin the application of the challenged policiesand practices that require individualized de-terminations of the disparate treatmentclaims. These variations make certificationunder (b)(3) problematic. Many of the pro-posed class members did not satisfy defen-dants’ standards for transferring betweenDepartments, including the eligibility re-quirement of working at QuietFlex for sixcontinuous months and being free of disci-plinary infractions. (Docket Entry No. 116,Ex. 16 at 83). Almost half of the proposedclass worked at QuietFlex for four weeks orless. (Docket Entry No. 116, Ex. 26). Thepolicies themselves have changed over time.Class members have testified that transferopportunities and that the treatment of Lati-nos generally at QuietFlex has improvedduring the pendency of this case. (DocketEntry No. 169 nn. 7–12). They have testi-fied that the materials used in Department911 has improved over time. (Id.). Thesafety equipment has allegedly improved.(Id.). None of the plaintiffs who beganworking at QuietFlex after January 2000had to clean the lunchroom or bathroom.(Docket Entry No. 116 at 27). QuietFleximplemented automation in Department 911in January 2001 that changed the physicalrequirements of the jobs and allowed work-ers in that department to make more money.(Id., Ex. 4 at 93). These variations add tothe complexity of certifying a disparatetreatment claim under (b)(3).

The parties have not examined a(b)(3)class action limited to an injunction, declara-tory relief, and back pay. They have notadequately examined the effect of a classwideback pay award on the (b)(3) predominanceand manageability requirements, or whether

12. The plaintiffs recognize the small sampleavailable from which conclusions may be drawnabout the relative productivity of an individual inDepartment 910 and Department 911, but urgethat it is a result of discrimination: before Latinoemployees at QuietFlex filed charges with the

EEOC, ‘‘not one Latino employee from Depart-ment 911 and only two Latino employees fromDepartment 906 were allowed to transfer to De-partment 910.’’ (Docket Entry No. 202 at 10)(emphasis in original).

383UAW v. GENERAL MOTORS CORP.Cite as 235 F.R.D. 383 (E.D.Mich. 2006)

such requirements can justify denying class-wide back pay. Nor have plaintiffs ad-dressed whether they risk further compro-mising their ability to provide adequate classrepresentation if they waive claims to puni-tive damages as a condition to achieving classcertification. Plaintiffs have not proposed atrial plan for a (b)(3) class limited to aninjunction and declaratory judgment andback pay, and the parties have not examinedthe Seventh Amendment implications such atrial plan might present. They have notaddressed whether disparate impact claimsshould be certified apart from disparatetreatment claims, or if that would offend theSeventh Amendment and the superiority andmanageability requirements of (b)(3), giventhe court’s holding in Allison.

[55] In short, the class proposed by theplaintiffs cannot be certified under Rule23(b)(3) because it extends to punitive dam-ages on a classwide basis, and the plaintiffshave not proposed an alternative class ortrial plan that would meet the (b)(3) require-ments.

V. Conclusion

Defendants’ motion for partial summaryjudgment on the plaintiffs’ retaliation claimsis denied.

Plaintiffs’ motion for summary judgmenton the issue of defendants constituting anintegrated enterprise, before Goodman’smerger with QuietFlex in 2001, is denied.

Plaintiffs’ motion for certification of a classunder Rule 23 is denied on the present rec-ord. A status conference is set for April 14,2006, at 2:00 p.m.

,

UAW et al., Plaintiffs,

v.

GENERAL MOTORS CORPORATION,Defendant.

No. 05–CV–73991–DT.

United States District Court,E.D. Michigan,

Southern Division.

March 31, 2006.

Background: Union and individual retir-ees brought class action against employerseeking to prevent modification or termi-nation of retiree health care benefits. Aftersettlement was approved, nonparty pre-sented evidentiary objections to declara-tions submitted by parties at fairness hear-ing in support of proposed settlement.

Holdings: The District Court, Cleland, J.,held that:

(1) declarations of proponents of proposedclass action settlement could be consid-ered at fairness hearing, notwithstand-ing that such declarations constitutedhearsay;

(2) evidence rule governing admission ofexpert testimony would not be appliedin the most stringent possible mannerto exclude expert declarations prof-fered by proponents of class action set-tlement at fairness hearing; and

(3) mandatory disclosure requirements ofdiscovery rule governing expert opin-ions was not applicable to expert decla-rations presented at fairness hearing.

Objections rejected.

1. Compromise and Settlement O69

In evaluating a proposed class settle-ment, the court may limit the fairness hear-ing to whatever is necessary to aid it inreaching an informed, just and reasoned de-cision. Fed.Rules Civ.Proc.Rule 23(e)(1)(C),28 U.S.C.A.

Documents

COLINDRES v. QUITFLEX MFG. 347 · COLINDRES v. QUITFLEX MFG. 347 Cite as 235 F.R.D. 347 (S.D.Tex. 2006) pel the Deposition of David Graham, M.D. is GRANTED. IT IS FURTHER ORDERED