Seyfarth Synopsis: In Ituah, et al. v. Austin State Hospital, a federal magistrate judge in Texas recently recommended the denial of a motion for class certification brought by patients alleging disability discrimination against a state psychiatric hospital for failing to make reasonable accommodations to protect them from sexual assault. The Court denied class certification on the grounds that that the named Plaintiff failed to demonstrate that other class members even existed.
For employers opposing motions for class certification, this ruling provides a helpful primer on why an individual plaintiff's anecdotal allegations of intentional discrimination alone do not satisfy the requirements of Rule 23.
Case Background
In Ituah, et al., v. Austin State Hospital, et al., Case No. 18-CV-11 (W.D. Tex. Jan. 3, 2020), an adult female patient at Austin State Hospital ("ASH") was purportedly raped by a male patient. After the incident was reported internally, no rape kit was conducted, the police were not notified, a staff member instructed the patient to "go take a shower," and her bed sheets were not preserved as possible evidence. Id. at 2.
Plaintiff brought individual and class claims that ASH violated Section 504 of the Rehabilitation Act and the Americans With Disabilities Act because it, "intentionally discriminated against [Plaintiff] and the Class on the basis of their disability by failing to make reasonable accommodations to protect them from sexual assault, by refusing to adequately investigate their reports of sexual assault, by failing to adequately train or supervise their agents and authorities in the proper prevention and investigation of sexual assaults at ASH, and by systemically discrediting reports of rapes at the ASH." Id. at 4. She moved to certify two sub-classes under Rule 23(a) and 23(b)(2), including: (i) all women who were sexually assaulted in Austin State Hospital (the "Female Victim Sub-class"); and (ii) all patients who reported a sexual assault at Austin State Hospital but whose allegation was not adequately investigated by ASH because of ASH's negligent and discriminatory policies (the "Inadequate Investigation Sub-class").
Apart from anecdotal evidence of her own experience, Plaintiff supported her motion by citing to state data that since 2007 over 700 sexual assault allegations were made at ASH; as such, she contended that patients' reports of assault were not taken seriously and ASH regularly failed to preserve any evidence. Id. at 2-3. Plaintiff further alleged that ASH failed to implement safety measures that would prevent sexual assaults, and failed to adequately investigate assaults when they occurred.
The Court's Decision
The Court recommended denying Plaintiff's motion for class certification. To support her motion for class certification, Plaintiff presented testimony and documentary evidence specific to her own assault allegations, as well as a table of investigations by the Texas Department of Family and Protective Services from 2010-2015. The Court concluded that Plaintiff failed to sustain her burden for class certification under the standards articulated in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011), as she submitted insufficient evidence warranting class treatment for intentional discrimination claims.
First, regarding Rule 23(a)(1)'s numerosity prong, the Court held that Plaintiff failed to present evidence that supported her estimated class size of 227 persons. Id. at 10. Regarding commonality, the Court opined that, "[i]t is not enough that class members suffer the same type of injury or have been subject to a violation of the same law; rather, a plaintiff must identify a unified common policy, practice, or course of conduct that is the source of their alleged injury." Id. at 12 (citation omitted). As a result, the Court held that factual disputes related to Plaintiff's own assault demonstrated that resolution of individualized issues would not resolve class-wide issues. Id. at 14.
Turning to the typicality requirement of Rule 23(a)(3), the Court held that because Plaintiff did not demonstrate any facts with respect to any other class members' claim, she could not show her claims are typical of those of other class members. Id. at 16. As to the adequacy requirement pursuant to Rule 23(a)(4), noting that neither Plaintiff nor her guardian attended the class certification hearing and further raising questions relative to the mental competency of Plaintiff and class members, the Court held that it had "significant concerns about [Plaintiff's] and her guardian's, ability and willingness to take an active role in and control the litigation and to protect the class members' interests." Id at 17. Accordingly, the Court held that Plaintiff failed satisfy Rule 23(a)(1)'s requirements.
The Court further held that Plaintiff did not show that class certification was appropriate under Rule 23(b)(2). Plaintiff argued that the Rule 23(b)(2) standard was met because ASH's policies were the same as to each class member such that the injunctive relief she sought would be appropriate as to the class as a whole. ASH responded that Plaintiff could not show that ASH acted on grounds that apply generally to the class or that injunctive relief was appropriate as to the class as a whole. Id. at 18. The Court held that for the same reasons that Plaintiff failed to show commonality and typicality of the class, she failed to show that final injunctive relief or declaratory relief was appropriate respecting the class as a whole based on the predominance of individualized issues. Id. at 20.
Accordingly, in denying Plaintiff's motion for class certification, the Court held that, it "will not recommend a class certification that is based solely on Plaintiff's speculation that other class members may exist, especially considering the factual issues that exist as to Plaintiff's own claims." Id. at 21.
Implications For Employers
This ruling is instructive in terms of defending a motion for class certification brought solely on the strength of one plaintiff's individual claims. Although the factual allegations here were unique (and disturbing), the Court's analysis provides significant insight for attacking class certification motions that ultimately seek authorization of fishing expeditions for additional claimants in the class discovery phrase.
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