Originally published on the Employer's Law Blog
Responding to the U.S. Supreme Court's decision earlier this year in Wal-Mart Stores, Inc. v. Dukes, the United States District Court for the District of Connecticut recently converted a plaintiff class of female corrections officer job applicants into a "hybrid" class under Federal Rule of Civil Procedure 23(b)(2) (class-wide declaratory and injunctive relief) and (b)(3) (monetary and individualized injunctive relief). The case is Easterling v. Connecticut Dep't of Corrections.
The plaintiffs, unsuccessful applicants for corrections officer ("CO") positions with the Connecticut Department of Corrections ("CDOC"), alleged under Title VII of the Civil Rights Act of 1964 that the 1.5-mile run component of the physical fitness test required of all CO applicants had a disparate impact on women.
Before Dukes, the court certified a class seeking both injunctive and monetary relief under Rule 23(b)(2) and awarded summary judgment to the plaintiff class. In Dukes, however, the Supreme Court held that class certification under Rule 23(b)(2) is proper only when a single injunction or declaratory judgment would provide relief to each member of the proposed class, which was not the case in Easterling. After Dukes, the CDOC moved to de-certify the class.
In considering CDOC's motion for class de-certification, the court considered three options: (1) revoke the certification order entirely and dismiss the case; (2) keep the Rule 23(b)(2) certification in place for purposes of liability and class-wide injunctive relief, but require that all claims for monetary and individualized injunctive relief be pursued in separate, individual lawsuits; and (3) adopt the plaintiff's suggested hybrid approach, "maintaining the Rule 23(b)(2) certification with regard to liability and class-wide injunctive relief and certifying a separate Rule 23(b)(3) class on the issues of monetary and individualized injunctive relief." The court chose the hybrid approach, noting that Dukes had not rejected the Second Circuit's interpretation of Rule 23(c)(4), which "exhorts" federal courts to use the class action device liberally "to reduce the range of disputed issues in complex litigation and achieve judicial efficiencies." Because it would be nearly impossible to determine which class members would have received job offers had they passed the 1.5-mile run component of the physical fitness test, the court will make an aggregate calculation of the back pay to which the class is entitled, which will be distributed to eligible class members on a pro rata basis.
As in Easterling, employers can expect that the plaintiffs' class action bar will continue to find creative ways to try to get around the impediments to class certification established by Dukes.
www.daypitney.comThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
