In Dukes v. Wal-Mart, the Northern District of California certified a nationwide class of over 1.5 million current and former female employees of Wal-Mart, working in 3,400 stores spread across the United States. In Dukes, the court found that the failure to promote and unequal pay claims of that class satisfied the commonality and typicality requirements for certification under Federal Rule of Civil Procedure 23(a). Additionally, the Northern District of California certified claims for injunctive relief, compensatory and punitive damages under F.R.C.P. ("FRCP") 23(b)(2), finding that the claims for equitable relief predominated over the claims for money damages.
In the wake of the Dukes decision, many lawyers have cautioned that the floodgates may have opened to nationwide employment discrimination class actions involving claims for both compensatory and punitive damages. At present, the Dukes decision awaits review by the United States Court of Appeals for the Ninth Circuit. In the meantime, the Eleventh Circuit reviewed a case involving remarkably similar facts and affirmed the lower court’s denial of class certification. In Cooper, class plaintiffs sought certification of a class of 2,400 current and former African-American employees, who worked at locations spread across four states, asserting claims of race discrimination in promotion, evaluation and compensation. Like the plaintiffs in the Dukes action, the Cooper plaintiffs asserted that the common practice of allowing managers discretion to make the challenged compensation and promotion decisions created common questions appropriate for certification under FRCP 23(a). Affirming the rejection of the class, the Eleventh Circuit explained that where "class certification [is] sought by employees working in widely diverse job types, spread throughout different facilities and geographic locations, courts have frequently declined to certify classes." Cooper, 390 F.3d at 715. Moreover, the Eleventh Circuit also concluded that the class was not appropriate for certification under FRCP 23(b) because the equitable claims did not predominate over the demands for monetary relief. Id. at 720-21.
In so ruling, the Eleventh Circuit sent a strong message that a geographically diverse group of employment discrimination plaintiffs are not appropriate for certification as a class, particularly where the group seeks compensatory and/or punitive damages. Although the decision of the Ninth Circuit in Dukes bears close watching, the Cooper decision should provide some assurances to employers that there are successful defenses that can be mounted to defeat certification of employment discrimination class actions.
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