No. 03-1150 _______________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT _______________________________________

VIRGINIA ANDERSON, et al.,

Plaintiffs-Appellants,

v.

WESTINGHOUSE SAVANNAH RIVER COMPANY, LLP; BECHTEL SAVANNAH RIVER, INC.; THE BABCOCK & WILCOX SAVANNAH

RIVER COMPANY, INC.; and BRITISH NUCLEAR FUELS LTD. SAVANNAH RIVER CORP.

Defendants-Appellees. _______________________________________________________

On Appeal from the United States District Court

for the District of South Carolina ________________________________________________________

BRIEF AMICI CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AND THE CHAMBER OF COMMERCE

OF THE UNITED STATES IN SUPPORT OF DEFENDANTS- APPELLEES AND IN SUPPORT OF AFFIRMANCE

_______________________________________________________

Stephen A. Bokat Robin S. Conrad Ellen Dunham Bryant NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, DC 20062 (202) 463-5337 Attorneys for Amicus Curiae The Chamber of Commerce of the United States June 26, 2003

Ann Elizabeth Reesman Katherine Y.K. Cheung McGUINESS NORRIS & WILLIAMS, LLP 1015 Fifteenth St., N.W. Suite 1200 Washington, DC 20005 (202) 789-8600 Attorneys for Amicus Curiae Equal Employment Advisory Council

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHERENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION

Only one fonn need be completed for a party even if the party is represented by more than oneattorney. Disclosures must be filed on behalf of individual parties as well as corporate parties.Disclosures are required from amicus curiae only if amicus is a corporation. Counsel has acontinuing duty to update this infonnation. Please file an original and three copies of this fonn.

Caption: Anderson, et al. v. Westinghouse Savannah River Company, LLP, et al.No. 03-1150

Pursuant to FRAP 26.1 and Local Rule 26.1,

(appellant/appellee/amicus)(name of party/amicus)

makes the following disclosure:

2

Is party/amicus a publicly held corporation or other publicly held entity?G YES ~ NO

Does party/amicus have any parent corporations?G YES Q NO

If yes, identify all parent corporations, including grandparent and great-grandparentcorporations:

3 Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or otherpublicly held entity?

G YES ~ NOIf yes, identify all such owners:

4 Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26.1(b))?

G YES g NOIf yes, identify entity and nature of interest:

~ Is party a trade association?G YES ~ NO

If yes, identify all members of the association, their parent corporations, and any publiclyheld companies that own 10% or more of a member's stock:

6. If case arises out of a bankruptcy proceeding, identify any trustee and the members of anycreditors' committee:

b /2'- 10.3~~~~ \.( t:::~~ 4(signature) (date)

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHERENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION

Only one foml need be completed for a party even if the party is represented by more than oneattorney. Disclosures must be filed on behalf of individual parties as well as corporate parties.Disclosures are required from amicus curiae only if amicus is a corporation. Counsel has acontinuing duty to update this infomlation. Please file an original and three copies of this foml.

No. 03-1150 Caption: Anderson, et al. v. Westinghouse Savannah River Company, LLP, et al.

Pursuant to FRAP 26.1 and Local Rule 26.1,

(appellant! appellee/amicus)(name of party/amicus)

makes the following disclosure:

1

2.

Is party/amicus a publicly held corporation or other publicly held entity?G YES (?J NO

Does party/amicus have any parent corporations?G YES Q NO

If yes, identify all parent corporations, including grandparent and great-grandparentcorporations:

3 Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or otherpublicly held entity?

G YES ~ NOIf yes, identify all such owners:

4. Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26. 1 (b))?

G YES g NOIf yes, identify entity and nature of interest:

5 Is party a trade association?G YES ~ NO

If yes, identify all members of the association, their parent corporations, and any publiclyheld companies that own 10% or more of a member's stock:

6. If case arises out of a bankruptcy proceeding, identify any trustee and the members of anycreditors' committee:

V/~~~;L,t::.~ ~(signature)

b/oZ.6/v...?(date)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................... iii INTEREST OF THE AMICI CURIAE ........................................................... 1

STATEMENT OF FACTS ............................................................................. 3

SUMMARY OF ARGUMENT ...................................................................... 6

ARGUMENT .................................................................................................. 8

I. THE DISTRICT COURT PROPERLY DENIED CLASS CERTIFICATION OF TITLE VII CLASS ACTION CLAIMS CHALLENGING THOUSANDS OF INDIVIDUAL EMPLOYMENT DECISIONS MADE BY SEVERAL HUNDRED DIFFERENT MANAGERS USING BOTH SUBJECTIVE AND OBJECTIVE CRITERIA ................................... 8

A. The District Court Correctly Held That Appellants’ Claims

That Several Hundred Different Managers Discriminated On The Basis Of Race In Making Thousands Of Individual Employment Decisions Do Not Satisfy Rule 23(a)’s Requirements For Commonality And Typicality....................... 8

1. The need for individualized examinations into each

challenged employment decision to determine whether discrimination occurred prevents commonality and typicality.............................................. 8

2. Westinghouse’s right to raise different defenses against

each Appellant’s claim further bars commonality and typicality among the class claims .................................. 14

3. The mere possibility that some individual managers may

have improperly implemented a company’s generally established procedures or guidelines for making employment decisions is insufficient to warrant class certification .................................................................... 15

ii

B. The Use Of Both Objective And Subjective Criteria By

Individual Managers In Making Employment Decisions Precludes Class Certification.................................................... 17

II. ALLOWING THE USE OF SOME SUBJECTIVE CRITERIA BY

MANAGERS IN MAKING EMPLOYMENT DECISIONS TO CONVERT INDIVIDUAL DISCRIMINATION CLAIMS INTO A CLASS ACTION WOULD SEVERELY PREJUDICE EMPLOYERS .................................................................................... 20

III. IMPROPER CERTIFICATION OF LARGE TITLE VII CLASS

ACTIONS UNLEASHES A POWERFUL WEAPON TO PRESSURE EMPLOYERS TO SETTLE CASES REGARDLESS OF THEIR MERITS OR LACK THEREOF ........................................... 23

CONCLUSION............................................................................................. 27 CERTIFICATE OF COMPLIANCE ADDENDUM CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES FEDERAL CASES

Abram v. United Parcel Service, Inc., 200 F.R.D. 424 (E.D. Wis. 2001) ...................................................... 11, 16 Abrams v. Kelsey-Seybold Medical Group, Inc., 178 F.R.D. 116 (S.D. Tex. 1997)............................................................. 19

Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ................. 12

Amchen Products, Inc. v. Windsor, 521 U.S. 591 (1997)............................... 9

Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) ............................................................... 9, 15 Califano v. Yamasaki, 442 U.S. 682 (1979) ................................................. 21

Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) ................. 24

Culver v. City of Milwaukee, 277 F.3d 908 (7th Cir. 2002) ......................... 25

Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001) .................... 20, 23

EEOC v. McDonnell Douglas Corp., 17 F. Supp.2d 1048 (E.D. Mo. 1998), aff’d, 191 F.3d 948 (8th Cir. 1999).......................................................... 15

Garcia v. Veneman, 211 F.R.D. 15 (D.D.C. 2002)....................................... 19

General Telephone Co. v. Falcon, 457 U.S. 147 (1982) .......................passim

In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) .................. 25

Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir. 1983) .............. 19

McReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428 (D.D.C. 2002)........................................................... 19, 20 Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (N.D. Ga. 2001).............................................................. 17

iv

Rhodes v. Cracker Barrel Old Country Store, 213 F.R.D. 619 (N.D. Ga. 2003).............................................................. 13 Rutstein v. Avis Rent-A-Car System, Inc., 211 F.3d 1228 (11th Cir. 2000),

cert. denied, 532 U.S. 919 (2001)...................................................... 23, 24 Scott v. Parkview Memorial Hospital, 175 F.3d 523 (7th Cir. 1999)........... 22

Skipper v. Giant Food Inc., No. 02-1319 (4th Cir. June 11, 2003) ........ 12, 13

Sperling v. Hoffman-La Roche, Inc., 924 F. Supp. 1346 (D.N.J. 1996)....... 15

Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990) .............................................. 9

Vuyanich v. Republic National Bank, 723 F.2d 1195 (5th Cir. 1984).......... 18

Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988) ....................... 11

Webb v. Merck & Co., 206 F.R.D. 399 (E.D. Pa. 2002)............................... 19

Wright v. Circuit City Stores, Inc., 201 F.R.D. 526 (N.D. Ala. 2001) ......... 11

FEDERAL STATUTES Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.................................................................passim 42 U.S.C. § 2000e-2(a) ............................................................................ 12

FEDERAL RULES Fed. R. Civ. P. 23 .................................................................................. 5, 9, 17 Fed. R. Civ. P. 23(a)...............................................................................passim Fed. R. Civ. P. 23(a)(4)................................................................................. 12 Fed. R. Civ. P. 23(b) ................................................................................... 5, 9

v

Fed. R. Civ. P. 23(b)(2)............................................................................. 5, 12 Fed. R. Civ. P. 23(b)(3)............................................................................. 5, 12

OTHER AUTHORITIES

Bureau of Labor Statistics, Job Openings and Labor Turnover Estimates... 22 Daniel F. Piar, The Uncertain Future of Title VII Class Actions After the

Civil Rights Act of 1991, 2001 B.Y.U. L. Rev. 305 (2001).............. 25, 26 Employment Policy Found., Tabulation of Bureau of Labor Statistics

Current Population Survey (June 2003)................................................... 21 Gary Kramer, No Class: Post-1991 Barriers to Rule 23 Certification of

Across-The-Board Employment Discrimination Cases, 15 The Labor Lawyer [A.B.A. Sec. Lab. & Emp. L.] 415 (2000) ................................. 24

The Equal Employment Advisory Council and The Chamber of

Commerce of the United States respectfully submit this brief as amici

curiae with the consent of the parties. The brief urges the Court to affirm

the district court’s decision denying class certification and thus supports

the position of the Defendants-Appellees, Westinghouse Savannah River

Company, LLP, Bechtel Savannah River, Inc., The Babcock & Wilcox

Savannah River Company, Inc., and British Nuclear Fuels Ltd. Savannah

River Corp. (collectively, “Defendants-Appellees” or “Westinghouse”),

before this Court.

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (“EEAC” or the

“Council”) is a nationwide association of employers organized in 1976 to

promote sound approaches to the elimination of employment

discrimination. Its membership includes over 325 of the nation’s largest

private sector corporations, collectively employing over 20 million

people throughout the United States. EEAC’s directors and officers

include many of industry’s leading experts in the field of equal

employment opportunity. Their combined experience gives the Council a

unique depth of understanding of the practical, as well as legal,

considerations relevant to the proper interpretation and application of

2

equal employment policies and requirements. EEAC’s members are

firmly committed to the principles of nondiscrimination and equal

employment opportunity.

The Chamber of Commerce of the United States (“the Chamber”) is

the world’s largest business federation, representing an underlying

membership of over three million businesses and organizations of every size

and in every industry sector and geographical region of the country. A

principal function of the Chamber is to represent the interests of its members

by filing amicus briefs in cases involving issues of vital concern to the

nation’s business community.

All of EEAC’s and many of the Chamber’s members are

employers subject to Title VII of the Civil Rights Act of 1964 (Title VII),

42 U.S.C. §§ 2000e et seq., and other equal employment statutes and

regulations. Collectively, EEAC’s and the Chamber’s member

companies routinely make and implement millions of employment

decisions each year, including hires, promotions, transfers, disciplinary

actions, terminations, and other employment actions. They devote

extensive resources to training, awareness, and compliance programs

designed to ensure that all of their employment actions comply with Title

VII and other applicable legal requirements.

3

Nevertheless, each employment transaction is a potential subject of a

discrimination charge and/or lawsuit. As large employers, EEAC’s and the

Chamber’s member companies are particularly likely targets for the sort of

broad-based class action suit raised here. Consequently, members of EEAC

and the Chamber have an ongoing, substantial interest in the procedures that

courts apply to determine whether Title VII plaintiffs satisfy the rigorous

standards for class certification.

EEAC and the Chamber seek to assist this Court by highlighting the

impact its decision may have beyond the immediate concerns of the parties

to the case. Accordingly, this brief brings to the attention of this Court

relevant matters that the parties have not raised. Because of their experience

in these matters, EEAC and the Chamber are well situated to brief this Court

on the concerns of the business community and the significance of this case

to employers.

STATEMENT OF FACTS

Four companies managed a nuclear installation called the

“Savannah River Site” for the U.S. Department of Energy. Joint

Appendix (J.A.) 7892. In 1996, all four companies agreed to operate and

manage the site together, using a combined, multi-tiered management

structure. Id. Defendants-Appellees, Westinghouse, presided over this

4

structure. Id. In 1999, there were approximately 1,009 managers and

483 supervisors at the Savannah River Site. Id. At that time, the 13,127

employees at the Savannah River Site fell into different categories, such

as workers who were covered by the Fair Labor Standards Act’s overtime

requirements, those who were exempt, and workers who were subject to

various collective bargaining and project agreements. Id. at 7892-93.

A Human Resources Division handles employee relations policies

and issues affecting employees at the Savannah River Site. Id. at 7892.

A multitude of different policies, however, apply to various employees,

depending on the category to which they belong and the relevant time

period. Id. at 7893.

Ninety-eight named plaintiffs brought a putative race

discrimination class action on behalf of a potential class of over 4,000

former, current and future African-American employees. Id. at 7885.

They alleged that Westinghouse had engaged in a pattern-or-practice of

denying African-American employees equal employment opportunities in

the areas of promotions, job evaluations, salaries, training, demotions and

hazardous job exposure. Id. at 7888. Plaintiffs claimed that

Westinghouse allowed managers to use subjective criteria to make

5

employment decisions, and that this practice discriminated against

African-Americans because of their race. Id. at 7889-90.

The district court denied class certification under Fed. R. Civ. P.

23. The district court rejected certification under Rule 23(a), because,

among other things, the individualized nature of each plaintiff’s claim

prevented the class from satisfying the commonality and typicality

requirements. Id. at 7915. In addition, the district court also concluded

that plaintiffs had not demonstrated that their claims satisfied one of the

subsections of Rule 23(b). The plaintiffs’ sought primarily monetary

damages, making certification under Rule 23(b)(2) inapplicable. Nor

could they show that common questions of law or fact predominated over

individual ones to satisfy Rule 23(b)(3). Id. at 7929-30. After denying

certification, the district court directed that each plaintiff proceed on an

individual basis. Id. at 7933. It subsequently granted summary judgment

in favor of Westinghouse on plaintiff Virginia Anderson’s non-promotion

claims. Id. at 12, 213. This appeal ensued, in which Appellant Anderson

challenges the denial of class certification for two subclasses of African-

American employees – those who were not promoted under a

6

Competency Based Posting System, and those who were evaluated under

a Ranked Performance Pay Process.1

SUMMARY OF ARGUMENT

The district court properly denied class certification of Appellants’

discrimination claims challenging their non-promotions and performance

evaluations for failure to satisfy the requirements of Fed. R. Civ. P. 23(a),

because they challenged thousands of individual employment decisions

made by several hundred different managers using both subjective and

objective criteria. Claims that several hundred different managers

violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq., in making thousands of individual employment decisions over

promotions and performance evaluations do not satisfy Rule 23(a)’s

requirements for commonality and typicality of claims. The need for

individualized examinations into each challenged employment decision

to determine whether discrimination occurred prevents commonality and

typicality. Westinghouse’s right to raise different defenses against each

Appellant’s claim further bars the class claims from sharing common

1 Appellant Anderson also appeals the district court’s grant of summary judgment in favor of Westinghouse on her individual claims. Amici express no opinion about this ruling.

7

questions of law or fact and the named representatives’ claims from

being typical of the class. Moreover, the mere possibility that some

individual managers may have improperly implemented Westinghouse’s

generally established procedures or guidelines for making employment

decisions is insufficient to warrant class certification.

In addition, the use of both objective and subjective criteria by

individual managers in making employment decisions also precludes

class certification under the Supreme Court’s ruling in General

Telephone Co. v. Falcon, 457 U.S. 147 (1982). In that case, the Supreme

Court recognized the legitimacy of an across-the-board challenge to an

employer’s personnel practices only under certain limited circumstances,

“such as through entirely subjective decisionmaking processes.” 457

U.S. at 159 n.15 (emphasis added). Appellants failed to satisfy this

standard, preventing certification of their claims.

To allow the use of some subjective criteria by managers in

making employment decisions to convert individual discrimination

claims into a class action would severely prejudice employers. Virtually

every employment decision involves some exercise of subjectivity by the

decisionmaker. Since almost any group of employment decisions can be

aggregated in some way to show that members of some protected group

8

were statistically disadvantaged, employers would face a constant risk

under Appellants’ theory that every employment decision they made

would cause a class action lawsuit. Moreover, the improper use of class

action procedures places enormous pressure on employers to settle cases

by aggregating their potential exposure for back pay and front pay,

attorneys’ fees and defense costs for each claimant, without regard to the

merits or lack thereof of Appellants’ claims.

ARGUMENT

I. THE DISTRICT COURT PROPERLY DENIED CLASS CERTIFICATION OF TITLE VII CLASS ACTION CLAIMS CHALLENGING THOUSANDS OF INDIVIDUAL EMPLOYMENT DECISIONS MADE BY SEVERAL HUNDRED DIFFERENT MANAGERS USING BOTH SUBJECTIVE AND OBJECTIVE CRITERIA

A. The District Court Correctly Held That Appellants’

Claims That Several Hundred Different Managers Discriminated On The Basis Of Race In Making Thousands Of Individual Employment Decisions Do Not Satisfy Rule 23(a)’s Requirements For Commonality And Typicality

1. The need for individualized examinations into each

challenged employment decision to determine whether discrimination occurred prevents commonality and typicality

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§§ 2000e et seq., prohibits employers from discriminating against

individuals based on their race, color, religion, sex, or national origin. To

9

maintain claims as a class action, including alleged violations of Title

VII, plaintiffs must satisfy all four prerequisites of Fed. R. Civ. P. 23(a),

and the requirements of at least one subsection of Fed. R. Civ. P. 23(b).

Fed. R. Civ. P. 23; Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 614

(1997). Rule 23(a) permits class certification only when:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). These requirements are regularly referred to as

numerosity, commonality, typicality and adequacy of representation,

respectively. See, e.g., Broussard v. Meineke Discount Muffler Shops,

Inc., 155 F.3d 331, 337 (4th Cir. 1998).

In practice, the commonality and typicality requirements of Rule

23(a) tend to overlap, and often are considered together. General Tel.

Co. v. Falcon, 457 U.S. 147, 157 n.13 (1982); Stott v. Haworth, 916 F.2d

134, 143 (4th Cir. 1990). In addition, “[b]oth serve as guideposts for

determining whether . . . the named plaintiff’s claim and the class claims

are so interrelated that the interests of the class members will be fairly

and adequately protected . . . .” General Tel., 457 U.S. at 157 n.13. The

U.S. Supreme Court has cautioned district courts to conduct a “rigorous

10

analysis” to determine whether Rule 23(a)’s requirements have been met.

Id. at 161.

Appellants’ claim of class-wide discrimination in this case is that

Westinghouse’s management system allowed managers to use some

subjective criteria in making employment decisions affecting promotions

and performance evaluations, and thus gave the managers latitude to

discriminate against class members based on their race. Appellants’

Brief, at 24. Appellants’ argument in favor of commonality rests on the

faulty premise that if permitted to consider subjective criteria in making

employment decisions, all or substantially all managers necessarily will

use that latitude to discriminate against African-Americans. Applying

this premise, Appellants contend that all African-American employees

who were subject to promotions or performance evaluations based on

subjective criteria were discriminated against in the same way,

establishing common questions of fact or law among their claims. Id. at

19-22.

The fatal flaw in this theory is that it completely overlooks the

multitude of intervening differences in how each individual supervisor made

each challenged employment decision, including the specific criteria that

each supervisor used. Even if Appellants were to establish that it was

11

Westinghouse’s policy to allow managers to make subjective employment

decisions over promotions and performance evaluations, this showing would

fall far short of a common employment practice sufficient to warrant

certification. “The decision to permit some consideration of subjective

factors is not, in and of itself, a discriminatory practice that provides the

unifying thread necessary for ‘commonality’ to exist.” Abram v. United

Parcel Serv., Inc., 200 F.R.D. 424, 430 (E.D. Wis. 2001); see also Watson v.

Fort Worth Bank and Trust, 487 U.S. 977, 990 (1988) (“an employer’s

policy of leaving promotion decisions to the unchecked discretion of lower

level supervisors should itself raise no inference of discriminatory

conduct”). Instead, in a lawsuit challenging thousands of separate

employment actions taken by hundreds of different managers using multiple

criteria that affected individual employees in a variety of ways, “[t]he focus

of the claim remains the individual employment decisions.” Wright v.

Circuit City Stores, Inc., 201 F.R.D. 526, 541 (N.D. Ala. 2001) (internal

quotation and citation omitted). The same focus governs this case.

The district court therefore properly denied class certification of

Appellants’ individual claims, because their broad allegations of

discrimination do not establish common factual or legal questions among the

12

class members.2 To establish liability, Appellants must demonstrate that

individual supervisors actually made discriminatory employment decisions

against them. 42 U.S.C. § 2000e-2(a). A fact finder cannot determine this

threshold causation issue without looking at the specific facts and

circumstances surrounding each decision, including the specific criteria each

supervisor used and how he or she applied the criteria, an examination that

precludes class certification. In this case, the court will have to examine

whether each proposed class representative suffered injury based on alleged

misconduct by his or her own manager for each challenged employment

decision. As a result, the proposed representatives’ claims have little in

common with each other, or with the rest of the putative class members to

warrant certification.

2 Appellants’ failure to satisfy Rule 23(a)’s commonality and typicality requirements also prevent the named representatives from being adequate representatives of the absent class members under Rule 23(a)(4). In addition, for the reasons stated below, the class claims also fail to satisfy the requirements of Rules 23(b)(2) and (b)(3), because the putative class members do not share a common injury that the same declaratory or injunctive relief would redress, nor do common issues predominate over individual ones. See Skipper v. Giant Food Inc., No. 02-1319, slip op. at 6-7 (4th Cir. June 11, 2003) (see Addendum); Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).

13

This Court recently affirmed a trial court’s denial of class certification

for similar reasons in Skipper v. Giant Food Inc., No. 02-1319 (4th Cir. June

11, 2003) (see Addendum). In that case, this Court said the need for

individualized inquiries into each employee’s disparate treatment claim,

including whether an individual was qualified for a particular job, meant the

plaintiffs failed to satisfy Rule 23(a)’s commonality and typicality

requirements. Id. at 5-6. See also Rhodes v. Cracker Barrel Old Country

Store, 213 F.R.D. 619, 676 (N.D. Ga. 2003) (denying class certification

based on lack of commonality and typicality among proposed class claims

that individual managers applied company employment policies in a

discriminatory manner).

The district court correctly found that “[a]pproximately 1,500

managers at [the Savannah River Site] carry the decisionmaking

responsibilities affecting the proposed class members.” J.A. at 7915. The

decentralized way in which individual managers made decisions thus led the

district court correctly to conclude that “[Appellants] are in reality

complaining about thousands of employment decisions made by at least

several hundred different managers, each of whom exercised independent

judgment in a way adverse to one (and possibly only one) Plaintiff.” J.A. at

7915. Even considering just the Appellants’ non-promotion claims, the

14

court properly recognized that the decisions were made by hundreds of

different managers. Id. The district court aptly characterized “the true

nature of the suit [as] a consolidation of 99 separate accounts of

individualized disparate treatment.” J.A. at 7909. Based on that

observation, the district court was correct in holding that “[t]he diversity of

employment conditions, coupled with the sheer absence of evidence proving

centralized decisionmaking for the types of decisions challenged in this suit,

compels the court to find a lack of commonality under Stastny and other

relevant law.” Id.

2. Westinghouse’s right to raise different defenses against each Appellant’s claim further bars commonality and typicality among the class claims

In addition, Westinghouse’s right to raise different defenses against

each claim also would require the district court to conduct individualized

examinations, thereby compounding the impropriety of class certification.

According to the district court, Westinghouse provided individualized

responses and defenses to each of the claims raised by the named Plaintiffs.

J.A. 7891. The company’s defenses varied, depending on each plaintiff’s

particular allegations, and included arguments that certain claims were

barred because they were untimely or were covered by valid releases. Id.

The Fourth Circuit, however, has held that “when the defendant’s

15

‘affirmative defenses (such as . . . the statute of limitations) may depend on

facts peculiar to each plaintiff’s case,’ class certification is erroneous.”

Broussard, 155 F.3d at 342 (citation omitted).

3. The mere possibility that some individual managers may have improperly implemented a company’s generally established procedures or guidelines for making employment decisions is insufficient to warrant class certification

The mere possibility that some individual managers may have abused

the discretion they have under company policy to make promotion decisions

or evaluate employees does not mean that a systematic, company-wide

policy of intentional discrimination exists to tie together all of the class

members’ claims. EEOC v. McDonnell Douglas Corp., 17 F. Supp.2d 1048,

1054-55 (E.D. Mo. 1998), aff’d, 191 F.3d 948 (8th Cir. 1999); Sperling v.

Hoffman-La Roche, Inc., 924 F. Supp. 1346, 1363 (D.N.J. 1996) (“[A]

decision by a company to give managers the discretion to make employment

decisions, and the subsequent exercise of that discretion by some managers

in a discriminatory manner, is not tantamount to a decision by a company to

pursue a systematic, companywide policy of intentional discrimination, i.e.,

a pattern or practice of discrimination”). Otherwise, to treat any use by

managers of some subjective criteria as a common discriminatory practice

would turn virtually all Title VII cases against large employers into large

16

class action lawsuits. Abram v. United Parcel Serv., Inc., 200 F.R.D. 424,

430 (E.D. Wis. 2001).

Indeed, prudent companies typically have some procedure in place for

managers to evaluate employee performance, including an evaluation form

on which managers record their observations and conclusions about an

employee’s work performance. Simply because all managers use the same

evaluation form does not automatically transform the form into an

employment practice that satisfies Rule 23(a)’s requirements for

commonality and typicality among the class claims, as Appellants advocate.

Even where a company has established general procedures or guidelines to

be used by its supervisors in conducting performance evaluations, it usually

is the implementation of those procedures in particular instances that is

alleged to be discriminatory, rather than any corporate-wide decision or

policy applied in rote fashion to a whole class or category of employees.

The focus of Appellants’ claims thus must be on whether “the intervening

conscious decisions of a multitude of diverse managers and supervisors”

included any discriminatory bias that affected the challenged employment

decisions. J.A. at 7910. The district court aptly described this inquiry as

“the hallmark of an individual disparate treatment case,” id., and therefore

inappropriate for class treatment.

17

The district court in Reid v. Lockheed Martin Aeronautics Co., 205

F.R.D. 655, 670 (N.D. Ga. 2001), correctly characterized Appellants’ theory

in support of certification as inherently self-defeating: “There is an inherent

tension between Plaintiffs’ arguments that the facilities . . . had common,

centralized employment policies and their contention that local, first-level

supervisors had the autonomy to make subjective, discriminatory decisions

with regard to promotions, compensation, evaluations, and training.” The

jury would have to determine whether each supervisor had injected a

discriminatory bias into any of the challenged employment decisions. The

focus on individual differences in Reid fundamentally undermined the

commonality among the class members’ claims that Rule 23 requires. The

same result bars certification of Appellants’ claims in this case, thereby

warranting affirmance of the decision below. Id.

B. The Use Of Both Objective And Subjective Criteria By Individual Managers In Making Employment Decisions Precludes Class Certification

The use of both subjective and objective criteria by individual

managers in making employment decisions further precludes class

certification under Rule 23(a). See J.A. 7922. The Supreme Court said in

General Telephone Co. v. Falcon that a single allegation of discriminatory

treatment could be sufficient to establish an across-the-board, class-wide

18

attack on a company only in certain limited circumstances. 457 U.S. at 159.

Significant proof that the discrimination injured a class of employees in the

same way, “such as through entirely subjective decisionmaking processes,”

for example, could satisfy Rule 23(a)’s commonality and typicality

requirements. 457 U.S. at 159 n.15 (emphasis added). The Supreme Court

explained that this limitation was necessary, because “[i]f one allegation of

specific discriminatory treatment were sufficient to support an across-the-

board attack, every Title VII case would be a potential companywide class

action. We find nothing in the statute to indicate that Congress intended to

authorize such a wholesale expansion of class action litigation.” Id. at 159

(footnote omitted).

To maintain the limited exception for across-the-board attacks against

employers, federal courts repeatedly have refused to certify discrimination

claims based on subjective decisionmaking for class treatment, unless

plaintiffs showed that the employment decisions were made in an entirely

subjective way. In Vuyanich v. Republic National Bank, 723 F.2d 1195,

1199-1200 (5th Cir. 1984), for example, the Fifth Circuit vacated

certification of an across-the-board class action based on the employer’s

consideration of two objective criteria — education and experience — “in its

necessarily subjective hiring process.” (citation omitted). Likewise, in

19

Garcia v. Veneman, 211 F.R.D. 15, 20-21 n.4 (D.D.C. 2002), the court

concluded that “[t]he presence of at least some mandatory objective criteria

in the decision-making process takes this case out of the purview of the

Falcon exception . . . .” See also Webb v. Merck & Co., 206 F.R.D. 399,

407 (E.D. Pa. 2002) (“Since defendants’ decisionmaking processes with

regard to promotion and compensation are at least in part objective . . . ,

plaintiffs cannot establish that defendants utilized a decisionmaking process

which was entirely subjective for purposes of satisfying Rule 23(a)’s

commonality and typicality requirements”); Abrams v. Kelsey-Seybold Med.

Group, Inc., 178 F.R.D. 116, 132 (S.D. Tex. 1997) (“ Where, as here, there

are objective factors, even a generally subjective process will not satisfy the

typicality and commonality requirements”).

In contrast, federal courts that have granted certification in subjective

decisionmaking cases have done so only after concluding that the challenged

employment practice was entirely subjective. In Lilly v. Harris-Teeter

Supermarket, 720 F.2d 326 (4th Cir. 1983), for example, this Court held that

the unlimited discretion exercised by an overwhelming number of white

supervisors to terminate employees, combined with statistical data showing

that the terminations discriminated against black employees, established a

pattern or practice of racial discrimination. See also McReynolds v. Sodexho

20

Marriott Servs., Inc., 208 F.R.D. 428, 442 (D.D.C. 2002) (granting class

certification based on claims that decision-making process was entirely

subjective). Therefore, the presence of some objective criteria to guide

individual managers in making employment decisions precludes class

certification of Appellants’ claims.

II. ALLOWING THE USE OF SOME SUBJECTIVE CRITERIA BY MANAGERS IN MAKING EMPLOYMENT DECISIONS TO CONVERT INDIVIDUAL DISCRIMINATION CLAIMS INTO A CLASS ACTION WOULD SEVERELY PREJUDICE EMPLOYERS

Virtually every employment decision involves some exercise of

subjectivity by the decision-maker. The Eleventh Circuit, for example, has

recognized that using subjective criteria in making personnel decisions is

both a necessary and legitimate business practice.

[S]ubjective evaluations of a job candidate are often critical to the decisionmaking process, and if anything, are becoming more so in our increasingly service-oriented economy . . . . Personal qualities . . . factor heavily into employment decisions concerning supervisory or professional positions. Traits such as “common sense, good judgment, originality, ambition, loyalty, and tact” often must be assessed primarily in a subjective fashion, yet they are essential to an individual’s success in a supervisory or professional position.

Denney v. City of Albany, 247 F.3d 1172, 1185-86 (11th Cir. 2001) (citing

Fort Worth Bank & Trust, 487 U.S. at 991). As a practical matter, adopting

Appellants’ theory that a company’s policy or practice of giving managers

21

the leeway to consider subjective criteria warrants certification would turn

every employment decision into fodder for a class action discrimination

case. Almost any group of employment decisions can be aggregated in some

way to demonstrate an adverse effect on members of some protected group.

This prospect, however, improperly expands the role of a class action

lawsuit from “an exception to the usual rule that litigation is conducted by

and on behalf of the individual named parties only.” Califano v. Yamasaki,

442 U.S. 682, 700-01 (1979).

Employers need to operate without the constant pressure that flows

from the uncertainty over whether they will have to defend past

employment decisions against challenges in the future. According to the

Bureau of Labor Statistics, in 2002, there were over 14 million managers,

administrators, or executives in the workforce.3 Each individual in this

category presumably had some discretion to make various types of

employment decisions affecting workers in multiple areas, such as hires,

promotions, performance evaluations, compensation and terminations.

Considering even just two of those categories — hirings and terminations

— managers made on average over 5 million employment decisions every

3 Employment Policy Found., Tabulation of Bureau of Labor Statistics Current Population Survey (June 2003), microdata records public use file available at http://www.bls.census.gov/cps/cpsmain.htm.

22

month.4 The prospect that every month, each one of these 5 million

personnel actions will expose a company to a class action employment

discrimination lawsuit based on subjective decision-making is untenable.

The staggering potential for liability for discrimination on a class-wide

basis likely will cause companies to reevaluate their procedures for

making employment decisions, and may compel them to abandon the use

of legitimate, job-related subjective criteria all together to avoid liability.

Moreover, even if a company successfully defends against a class action

lawsuit, the enormous litigation costs associated with preparing a defense

may cause a company completely to eschew subjective decisionmaking.

The importance of considering subjective criteria in making

employment decisions, however, means that discarding them likely

would diminish the quality of personnel actions taken by an employer.

Often, there is no objective substitute for determining whether a job

candidate possesses certain desirable qualities, such as reliability or

common sense. “[N]o formulary of approved answers can replace a

nuanced evaluation of candidates.” Scott v. Parkview Mem’l Hosp., 175

F.3d 523, 525 (7th Cir. 1999). As the Eleventh Circuit noted, “[i]t is

4 Bureau of Labor Statistics, Job Openings and Labor Turnover Estimates, available at http://www.bls.gov/jlt/home.htm.

23

inconceivable that Congress intended anti-discrimination statutes to

deprive an employer of the ability to rely on important criteria in its

employment decisions merely because those criteria are only capable of

subjective evaluation.” Denney, 247 F.3d at 1186. Therefore, this Court

must affirm the district court’s denial of class certification to avoid

artificially hamstringing companies in making employment decisions that

directly affect their ability to run their businesses.

III. IMPROPER CERTIFICATION OF LARGE TITLE VII CLASS ACTIONS UNLEASHES A POWERFUL WEAPON TO PRESSURE EMPLOYERS TO SETTLE CASES REGARDLESS OF THEIR MERITS OR LACK THEREOF

The aggregate exposure to back pay and front pay liability, in addition

to attorneys’ fees and defense costs, under Title VII creates an enormous

pressure on defendants to settle that is unwarranted.5 “Once one understands

that the issues involved in the instant case are predominantly case-specific in

nature, it becomes clear that there is nothing to be gained by certifying this

case as a class action; nothing, that is, except the blackmail value of a class

certification that can aid the plaintiffs in coercing the defendant into a

settlement.” Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1241

5 By appealing only the district court’s decision denying class certification of their disparate impact claims, Appellants have waived their right to obtain compensatory or punitive damages on their class action claims. Appellants’ Brief, at 2.

24

n.21 (11th Cir. 2000) (emphasis added), cert. denied, 532 U.S. 919 (2001).

Likewise, the Fifth Circuit recognized that: “In addition to skewing trial

outcomes, class certification creates insurmountable pressure on defendants

to settle, whereas individual trials would not. The risk of facing an all-or-

nothing verdict presents too high a risk, even when the probability of an

adverse judgment is low. These settlements have been referred to as judicial

blackmail.” Castano v. American Tobacco Co., 84 F.3d 734, 746 (5th Cir.

1996) (citations and footnote omitted).

Moreover, the pressure to settle exists largely independently of the

merits of the underlying Title VII claims.

Once plaintiffs obtain class certification, the defendant’s exposure, plus projected costs of defending hundreds or thousands of individual claims, places almost overwhelming and irresistible pressure on the defendant to settle, regardless of the merits of the claims. Even if individual plaintiffs’ odds of prevailing in their specific cases are low, the risk to defendants remains extremely high. In the face of these numbers, companies often perceive that they have little choice but to cut their losses through settlement.

Gary Kramer, No Class: Post-1991 Barriers to Rule 23 Certification of

Across-The-Board Employment Discrimination Cases, 15 The Labor Lawyer

[A.B.A. Sec. Lab. & Emp. L.] 415, 416 (2000) (footnotes omitted); see also

Castano, 84 F.3d at 746 (“[c]lass certification magnifies and strengthens the

25

number of unmeritorious claims” and “[a]ggregation . . . makes it more

likely that a defendant will be found liable and results in significantly higher

damage awards”) (citations omitted). This dilemma is evident in the

employment context, where several employers have settled large class action

discrimination suits for hundreds of millions of dollars to avoid larger

litigation costs. See Daniel F. Piar, The Uncertain Future of Title VII Class

Actions After the Civil Rights Act of 1991, 2001 B.Y.U. L. Rev. 305, 344

(2001).

These numbers give employers little choice but to cut their losses

through settlement. Judge Posner observed in In re Rhone-Poulenc Rorer,

Inc., 51 F.3d 1293 (7th Cir. 1995), that when companies face billions of

dollars in potential liability and possible bankruptcy as a result of a class

action, “[t]hey may not wish to roll these dice. That is putting it mildly.

They will be under intense pressure to settle.” 51 F.3d at 1298 (citation

omitted).

Judge Posner further warned in Culver v. City of Milwaukee, 277 F.3d

908 (7th Cir. 2002), that improperly certifying large class actions for

enormous aggregate liability would mean that “[r]ealistically, functionally,

practically [the plaintiffs’ lawyer in this case] is the class representative, not

[the named plaintiff].” 277 F.3d at 913. The plaintiffs’ lawyers, however,

26

may have different goals from the class. Id. at 910. Plaintiffs’ lawyers have

boasted privately about their own power that “their goal is to bankrupt the

defendant or, more colorfully, to ‘blow them off the New York Stock

Exchange.’ This approach has been recognized in class cases as the

principle of ‘judicial blackmail.’” Piar, 2001 B.Y.U. L. Rev. at 343

(footnote omitted).

Moreover, granting class certification accomplishes little to identify or

remedy actual instances of employment discrimination. Once a class is

certified, setting up the prospect of huge litigation expenses and creating the

risk of a billion dollar judgment, cases are likely to settle before the merits of

the claims of discrimination are even explored. In the end, nobody knows

whether the employer discriminated or not – only that it paid a lot of money

to avoid a no-win situation in which it never should have been placed.

27

CONCLUSION For the foregoing reasons, the decision of the district court denying

class certification of Appellants’ Title VII claims should be affirmed.

Respectfully submitted,

Stephen A. Bokat Ann Elizabeth Reesman Robin S. Conrad Katherine Y.K. Cheung Ellen Dunham Bryant McGUINESS NORRIS & NATIONAL CHAMBER WILLIAMS, LLP LITIGATION CENTER, INC. 1015 Fifteenth Street, N.W. 1615 H Street, N.W. Suite 1200 Washington, DC 20062 Washington, DC 20005 (202) 463-5337 (202) 789-8600 Attorneys for Amicus Curiae Attorneys for Amicus Curiae The Chamber of Commerce Equal Employment Advisory of the United States Council

June 26, 2003

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

Caption: _Anderson. et al. v. Westinqhouse Savannah River Co., LLP, et al.No. 03-1150

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because:1

G this brief contains 5224 [state the number oj] words, excluding the partsof the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

G this brief uses a monospaced typeface and contains [state thenumber oj] lines of text, excluding the parts of the brief exempted by Fed. R. App.

P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because:

2.

G this brief has been prepared in a proportionally spaced typeface using MS WORD

14 point [state name and version of word processing program] in Times New Roman

- [state font size and name of the type style]; or

G this brief has been prepared in a monospaced typeface using -- - [state name and version of word processing program] with[state number of characters per inch and name of type style].

(5) WCA/ hA'A.-£ Y _L ~Attorney for Equal Employment Advisory C

Dated: 6/..2.6/03

ADDENDUM

UNPUBUSHED

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

WILBERT SKIPPER, JR.; MELVYN

CoNNOR; WIWAM INGRAM; DAVIDNEWMAN; ANmONY BLOCKER;MAURICE MATHEWS; W. KJRBQUALLS, JR.; JOHN W. DALLAS, JR.;DAVID JONES,

Plaintiffs-Appellants,and

GREGORY CARSON; JERRY MUNGRO,

Plaintiffs,V.

GIANT FOOD INCORPORATED; PETER

MANos, in his official capacity;SAMUEL THURSTON, in his officialcapacity; MARIA MYERS, in herofficial capacity; ROBERT HAYWOOD,in his official capacity; DEBORAHLILLY, in her official capacity; TOMMAYNARD, in his official capacity;CHRIs BALLADEMAS, in his officialcapacity,

No. 02-1319

Defendants-Appellees,and

UNITED FOOD & CoMMERCIALWORKERS UNION, Local 400,

Party in Interest.

2 SKIPPSR v. GIANT FOOD INC.

Appeal from the United States District Comtfor the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.(CA 96-2882-JFM, CA-O2-537-JFM, CA-92-538-JFM,CA-02-539-JFM, CA-O2-S40-JFM, CA-O2-S41-JFM,CA-O2-S42-JFM, CA-O2-S43-JFM, CA-O2-544-JFM)

Argued: May 9, 2003

Decided: June 11, 2003

Before wn..KINS, Chief Judge, and wn..KINSON andLUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion

COUNSEL

ARGUED: Jo Ann P. Myles, LAW OFFICE OF JO ANN P.MYLES, Largo, Maryland, for Appellants. Kumiki San Gibson, WIL-LIAMS & CONNOLLY, L.L.P., Washington. D.C., for Appellees.ON BRIEF: Robert P. Watkins, WILLIAMS & CONNOLLY,L.L.P., Washington, D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit. SeeLocal Rule 36( c).

OPINION

PER CURIAM

Plaintiffs, fomter and present warehouse workers at Giant Food,Inc., brought this putative class action against Giant Food and several

SKIPPER. v. GIANT FOOD INC, 3

of its managers alleging hostile work environment and disparate treat-ment claims. The district court denied class certification and dis-missed plaintiffs' claims on summary judgment. We affirm thejudgment.

This action was instituted by eleven current or fonner African-American employees of Giant Food, Inc. The plaintiffs alleged hostilework environment and disparate b'eatment claims under 42 V.S.C.§ 1981, along with various other federal and state claims. Nine of theoriginal plaintiffs are involved in this appeal.

The plaintiffs in this case each held different positions with Giantand each worked in one of several different Giant warehouses. t

Because the exact circumstances of each employee's claims are dif-ferent, we shall briefly S1tmmArize the group's allegations. Plaintiffsbase their hostile work environment claims on the fact that there wasracist graffiti in Giant warehouses, that some of plaintiffs' Caucasianco-workers used racial epithets, and that there were three incidentsover a six-year period where Giant employees hung a noose in oneof the warehouses. Plaintiffs base their disparate treatment claims onallegations that Giant disciplined plaintiffs more harshly for variousworkplace infractions than it disciplined Caucasian warehouseemployees. Finally, plaintiffs allege that Giant discriminated againstAfrican-American vacation relief workers by hiring Caucasian work-ers with less seniority than the African-American plaintiffs into per-manent positions.

Plaintiffs requested class certification, seeking to have two sub-classes certified Giant opposed class certification and moved forsummary judgment. In recognition of the seriousness of the allega-tions, the district court delayed its decision on class certification untilthe parties had undertaken discovery and could thus provide a fullerrecord to the court. The court then denied plaintiffs' motion for classcertification, finding that plaintiffs could not meet the commonality,

tThe one exception is Plaintiff W. Kirb Qualls, Jr., who worked atGiant Store # 50.

SKIPPER. v. GIANT FOOD INC.4

typicality. and adequacy of class representation requirements underFed. R. Civ. P. 23(a).

The district court then granted summary judgment in favor of Giantas to plaintiffs Wilbert Skipper, Jr., Melvyn Connor, William Ingram,David Newman, Anthony Blocker, Maurice Mathews, W. KimQualls, Jr., John Dallas, Jr., David Jones, and Jerry Mungro. Plaintiffsfiled a consolidated appeal!

n.

Plaintiffs appeal the district court's denial of class certification andseek to have two subclasses certified.3 The first subclass consists of"[a]ll cunent, former and future African American persons who werepermanent tmion employees employed by Giant and worked at itsDistribution Warehouses, including but not limited to its Jessup, Lan-dover and Bakery Warehouses during the period of 1980 - to present"This subclass alleges violations of Title vn through Giant's hiring,promotion, discipline, tennination, and training practices, and by vir-tue of racial harassment and a hostile work environment The secondsubclass consists of "[a]ll African American persons who are former,current and future vacation relief workers at Giant's DistributionWarehouses, including but not limited to Jessup, Landover and Bak-ery Warehouses who were rejected for permanent employment byGiant during the period of 1980 to present" This subclass alleges vio-lations of Title vn with respect to Giant's hiring and promotion prac-tices.

We apply a deferential standard of review to a district court's deci-sion to grant or deny class certification. District courts retain "broaddiscretion in deciding whether to allow the maintenance of a class

'Plaintiff Jeny Mungro did not appeal die djstrict court's decision.J After all papers were filed in die district court and the parties had con-

ducted oral argument, plaintiffs' counsel filed a supplemental memoran-dum in support of plaintiffs' motion for class certification in whichcounsel changed the definitions of the proposed subclasses. Finding thatthe memorandum had not been filed in a timely manner, the district courtdeclined to address the amended subclasses and we decline to do so aswell.

s~ v. GIANT FOOD INc 5

action." Zimmerman v. Griffin, 800 F.2d 386, 389 (4th Cir. 1986)(quoting Roman v. ESB. Inc., 550 F.2d 1343, 1348-49 (4th Cir.1976». We thus review a district court's decision to deny class certifi-cation only for an abuse of discretion. Califano v. Yamasaki, 442 U.S.682, 703 (1979).

The district court did not abuse that discretion in detennining thatboth of the proposed subclasses failed to satisfy the prerequisites tobringing a class action. 4 See Fed. R. Civ. P. 23. The first subclassencompassed all unionized warehouse workers spanning a period ofsixteen years. The subclass thus involved employees from over a halfdozen different warehouse facilities in four different cities. During therelevant time period, there were approximately 265 different positionsdevoted to Giant's warehousing, recycling, or manufacturing opera-tions. And those operations were conducted through different depart-ments and overseen by different supervisors in each facility.Moreover, plaintiffs purport to represent warehouse workers who suf-fered illegal discrimination in training, despite the fact that none ofthe named plaintiffs sought to bring such claims individually. TheSupreme Court, however, has "repeatedly held that 'a class represen-tative must be part of the class and possess the same interest and suf-fer the same injury as the class members. '" Gen. Tel. Co. of theSouthwest v. Falcon, 457 U.S. 147, 156 (1982) (quoting East TexasMotor Freight Sys.. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977».Given the nature of the claims plaintiffs have pressed, the facts willvary widely from worker to worker in cases of disparate treatment,and they will vary widely from warehouse to warehouse in cases ofa hostile work environment.

The second proposed subclass suffers from similar infinnities

.Plaintiffs also argue that we should reverse the district court's refusalto certify the proposed classes because the district court allegedlydecided the merits of the case before ruling on class certification. It is notclear from the record that the district court actually ruled on the meritsof the summary judgment motion first. Moreover, Fed. R. Civ. P.23(c)(l) requires only that the question of class certification be decided"as soon as practicable after the commencement of an action brought asa class action." Plaintiffs have not demonstrated that the district court ranafoul of this requirement.

Plaintiffs Dallas and Jones admit that personal qualifications play atleast some role in the hiring of vacation relief workers for pemlanentpositions. Their claims and those of the putative class members wouldthus involve individualized inquiries into whether each person wasqualified for the particular position for which that person applied. Forexample, Dallas testified that during orientation, vacation relief work-ers were told that Giant would consider their individual productionrecords in determining whom to hire for permanent positions. Thusfor Dallas and others to succeed on their claims, they would have todemonstrate that their personal production records merited a perma-nent position.

Given the individualized nature of plaintiffs' claims in each sub-class. we hold that the district court did not err in holding plaintiffsfailed to satisfy the commonality and typicality requirements of Rule23(a).

We also find no error in the district court's conclusion that ade-quacy of class representation was lacking in this case. See Fed. R.Civ. P. 23(a)(4). The district court noted that class counsel had madesignificant errors in this action, both of substance and fonn. The courtfurther questioned counsel's financial ability to represent a class ofthis size, noting that plaintiffs' expert had already threatened to with-draw from the case and to file a lawsuit over the late payment of fees.

Finally, even if plaintiffs could satisfy the prerequisites to classcertification under Rule 23(a), certification would still be improper inthis case because plaintiffs cannot satisfy any of the Rule 23 (b)criteria. Plaintiffs do request injunctive and declaratory relief. How-ever they also seek damages in the amount of one hundred thirty-ninemillion four hundred thousand dollars ($139,400,000.00). Their caseis more properly viewed as one for monetary relief. See Fed. R. Civ.P. 23(b)(2); Zimmerman, 800 F.2d at 389.

And plaintiffs also cannot satisfy Rule 23(b)(3). "Even if Rule23(a)'s commonality requirement may be satisfied. . . the predomi-nance criterion [under Rule 23(b)(3)] is far more demanding."Amchem Prods., Inc. v. Windsor, 521 U.S. 591,623-24 (1997). TheRule 23(b)(3) inquiry "tests whether proposed classes are sufficientlycohesive to warrant adjudication by representation." Id. at 623. In

revising Rule 23 in 1966, the Advisory Committee noted that caseslikely to present significant questions of damages, liability anddefenses are "'ordinarily not appropriate'" for class treatment. [d. at625 (quoting Adv. Comm. Notes, 28 U.S.C. App., p. 705 (2000)).Here again, the individualized measure of plaintiffs' claims for dam-ages reinforces the district court's conclusion that questions affectingonly individual members would predominate over common questionsof law or fact. See Fed R Civ. P. 23 (b)(3).

Given the disparate circumstances of the putative class membersand the nature of relief plaintiffs seek. we hold that the district court'sdenial of class certification was not an abuse of discretion.

m.

Plaintiffs next argue that Giant maintained a racially hostile workenvironment in its warehouses. Like the district court, we recognizethat "racial hostility existed between African-American workers andwhite workers at the Giant warehouses from 1980 to the time this suitwas initiated in 1996." However, we also agree with the district courtthat none of the plaintiffs presented an issue of triable fact

To sustain a cause of action for a racially hostile work environ-ment, a plaintiff must show: 1) unwelcome harassment; 2) that theharassment was based on race; 3) that the harassment was so severeor pervasive that it altered the conditions of employment and createdan abusive atmosphere; and 4) that there is some basis for imposingliability on the employer. Causey v. Balog, 162 F.3d 795, 801 (4thCir. 1998). Courts look at the totality of circumstances to determinewhether an environment is hostile or abusive, including "the fre-quency of the discriminatory conduct; its severity; whether it is physi-cally threatening or humiliating, or a mere offensive utterance; andwhether it unreasonably interferes with an employee's work perfor-mance." Harris v. Forklift Sys., Inc., 510 U.S. 17,23 (1993).

The allegations of the individual plaintiffs as to hostile work envi-ronment vary both in severity and specificity. We take up what seemsthe strongest of the claims in order to illustrate the vagueness withwhich all the claims were pressed.

8 SKIPPER v. GIANT FOOD OC.

Wilbert Skipper, Jr., a produce selector in the Landover warehouse,alleges that his manager harassed him by following him throughoutthe warehouse and referring to him by a racial slur on one occasion.Skipper further alleges dlat he overheard Caucasian workers using thesame racial slur thirteen times in the four years prior to filing this law-suit. and that he was exposed daily to racist graffiti in warehouse trail-ers and restrooms.

Skipper's allegations are probably the most specific of the plain-tiffs, and he has alleged exposure to racist graffiti with the most fre-quency. The allegations are still, however, insufficient to support aracially hostile work environment claim. The district court was quiteright to recognize that the content of the graffiti "was as offensive asone can imagine." But we cannot judge the severity of the graffitiwithout looking at the context in which it appeared. The record estab-lishes that the graffiti, for the most part, appeared in regular sizedprint scattered amidst a significant amount of other non-racist graffiti.Moreover, most of the graffiti involved in each plaintiff's claimsoccurred inside 4S-foot long trailers that were moved to and from thewarehouses, and in the bathrooms. However Skipper admitted thatbecause the trailers were constantly being moved, he had no ideawhether Giant had removed the graffiti from any of the trailers. Andon the few occasions where Skipper accompanied Giant managers toview the graffiti, those managers immediately removed it. The pres-ence of offensive graffiti alone cannot sustain Skipper's claim.

Skipper also complains that he overheard white workers use racialepithets in the warehouse. However he could not recall the name ofeven a single white employee who uttered the offensive words, asidefrom one incident involving a Giant manager. This court has held thata plaintiff pressing a hostile work environment claim must substanti-ate his claim with reasonable specifics about the alleged incidents thatunderlie the claim. Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir.1994). We decline to depart from that rule today.

The other plaintiffs' claims, which were even less specific thanSkipper's, fare no better. For instance, Melvyn Connor alleges that heviewed racist graffiti in the warehouses, but he cannot testify as toany dates on which he viewed the graffiti or even the frequency withwhich he viewed it These defects in plaintiffs' claims are significant:

SKIPPER. v. GIANT FOOD INC. 9

many of them fail to allege with any specificity the content of thegraffiti; the frequency with which they saw it; or how it altered theterms and conditions of their employment. In fact, several of theplaintiffs fail to adduce evidence that the hostile conduct they allegewas even based on race.'

And significantly, many of the plaintiffs fail to adduce any basisfor imputing liability to the defendant. Giant maintains a clear anti-harassment and non-discrimination policy that is published in variouscompany manuals and in a pamphlet mailed to each employee's homeupon accepting employment with Giant. In addition, Giant maintainsa Fair Employment Office to ensure compliance with these policies,as well as an Office of Minority Affairs to specifically focus on theneeds of minority employees. Despite the resources available toaddress plaintiffs' complaints, many of the plaintiffs failed to informGiant of the alleged misconduct. For instance, Skipper admits that heneither filed a union grievance nor a complaint with the Fair Employ-ment Office regarding any of the offensive graffiti. In fact, prior tothe lawsuit Skipper never even notified a single Giant manager aboutthe graffiti in the bathrooms. And in those instances where plaintiffsdid complain to mAnAgers, Giant addressed the problems.

Plaintiffs have thus failed to demonstrate two essential elements oftheir claims: that they experienced harassment so severe as to alter theterms and conditions of their employment, and that Giant knew orshould have known about such harassment and failed to address it.Given these deficiencies, we must affirm the district court's dismissalof plaintiffs' hostile work environment claims.

'Plaintiffs urge us not only to ignore the vagueness of their claims, butalso to consider acts that occurred well outside the applicable three-yearstatute of limitations in this case. See Grattan v. Burnett, 710 F.2d 160,162 (4th Cir. 1983). However we need not consider whether the time-barred acts "are part of the same unlawful employment practice" as d1eacts within the limitations period because plaintiffs' claims would sufferthe noted infirmities in any event. Nat '[ R.R. Passenger Corp. v. Morgan,536 U.S. 101, 122 (2002).

10 SKJPPER v. GIANT FOOD INC.

IV.

Plaintiffs next allege that Giant subjected them to discriminatory ordisparate treatment by disciplining them more severely than theirCaucasian co-workers. In order to succeed on this claim, each plain-tiff must establish that: I) he is a member of a protected group; 2) hewas qualified for the job and his performance was satisfactory; 3) hesuffered an adverse employment action despite his qualifications andperformance; and 4) other similarly situated employees outside theprotected class were treated more favorably. Taylor v. Va. UnionUniv., 193 F.3d 219,233 (4th Cir. 1999) (en banc). If the plaintiffsthus create a prima facie case, the burden then shifts to defendants to"articulate some legitimate, nondiscriminatory reason for the employ-ee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792,802 (1973). At this point, the "presumption of discrimination 'dropsout of the picture,'" Reeves v. Sanderson Plumbing Prods., Inc., 530U.S. 133, 143 (2000) (quoting St. Mary's Honor Center v. Hicks, 509U.S. 502, 5 II (1993», and the burden shifts back to the plaintiff todemonstrate that the employer's stated reason "was in fact pretext"McDonnell Douglas, 411 U.S. at 804. Despite these shifting burdens,"the ultimate burden of per suading the trier of fact that the defendantintentionally discriminated against the plaintiff remains at all timeswith the plaintiff." Reeves, 530 U.S. at 143 (quoting Cmty. Affairs v.Burdine, 530 U.S. 248, 253 (1981».

Plaintiffs' disparate treatment claims suffer many of the same defi-ciencies as their hostile work environment claims. Although plaintiffsallege that other similarly situated employees outside the protectedclass were treated more favorably, they offer little evidence to supportsuch allegations. For instance, Anthony Blocker complains that hewas denied the opportunity to participate in the modified duty pro-gram after being injured on the job, while other similarly situatedCaucasian workers were allowed to participate in the program. Asidefrom listing their names and races, however, Blocker offers no evi-dence that these individuals were similarly situated beyond the factthat they were "temporari1y disabled. " In fact, Blocker admitted thathe could not testify as to the nature of the injuries of white workersin the modified duty program. We thus are presented with no evi-dence that white employees with similar injuries to Blocker were

allowed to enter the program while Blocker was not. See Carter. 33F.3d at 460-61.

Other plaintiffs fail to demonstrate that they have suffered adverseemployment actions. For instance, David Newman alleges that he suf-fered disparate treatment when Giant initially denied him a no-interestemergency loan (which Giant granted shortly after the initial denial),when he was disciplined for arriving late to work, and when a man-ager discussed with him the appropriateness of taking sick leave onthe same day each month. However none of these allegations in anyway evidence a change in the terms, conditions, or benefits of New-man's employment. See Van Gunten v. Maryland, 243 F.3d 858,868(4th Cir. 2001) (change in work assignment which did not affect sal-ary, benefits, job title, or nature of the work did not constitute adverseemployment action).

More importantly, even if plaintiffs could make out a prima faciecase, the defendant has offered legitimate and unrebutted reasons forits actions. Giant has indicated that the individual plaintiffs involvedengaged in workplace conduct that transgressed workplace rules. Forthe most part, plaintiffs do not even dispute Giant's claims that theyregularly arrived late for work (Newman); were inexplicably absentwithout notifying Giant in accordance with Giant's absence policy(Mathews); took unexcused sick leave (Ingram); and violated Giant'srules of conduct through involvement in a physical altercation with acoworker (Connor). Plaintiffs uniformly argue that Giant's profferedjustifications are only pretext. But the bare allegation that whitecoworkers also committed similar infractions but were not disci-plined, without evidence to substantiate that claim, is not sufficient toovercome Giant's nondiscriminatory reasons for its actions.

v.

Plaintiffs have failed to meet the Rule 23 class certification require-ments for their individualized claims. Plaintiffs have also failed toadduce evidentiary support for their allegations under the legal frame-work enunciated by the Supreme Court. The judgment of the districtcourt is therefore

AFFIRMED.

CERTIFICATE OF SERVICE I hereby certify that on this 26th day of June 2003, two (2) true and

correct copies of the foregoing Brief Amici Curiae of the Equal Employment

Advisory Council and The Chamber of Commerce of the United States In

Support of Defendants-Appellees and In Support of Affirmance were served

by first-class mail, postage prepaid, addressed as follows:

Ivan D. Smith, Esq. VLADECK, WALDMAN, ELIAS & ENGELHARD, PC 1501 Broadway, Suite 800 New York, NY 10036 (212) 403-7300 Ray P. McClain, Esq. Attorney, PA 38 Broad Street, 3rd Floor P.O. Box 608 Charleston, SC 29402 (843) 577-3170 Anthony Mulrain, Esq. BROWN & MULRAIN 450 Seventh Ave., Suite 3002 New York, NY 10123 (212) 947-4198 Shay Dvrotzky, Esq. JONES DAY 222 East 41st Street New York, NY 10017 (212) 326-3939

Glen D. Nager, Esq. JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001-2113 (202) 879-3939 Kenneth Edwards Young, Esq. NELSON, MULLINS, RILEY & SCARBOROUGH Poinsettia Plaza 104 South Main Street, Suite 900 P.O. Box 10084 Greenville, SC 29603 (864) 250-2300 Deborah A. Sudbury, Esq. Douglas M. Towns, Esq. JONES DAY 3500 One Peachtree Center 303 Peachtree Street, NE Atlanta, GA 30308-3242 (404) 581-8443

Katherine Y.K. Cheung