MEMORANDUM OPINION
I. INTRODUCTION........................................................152
II. PROCEDURAL HISTORY................................................155
III. STANDARD OF REVIEW................................................156
A. Rule 23 Requirements for Class Certification............................156
B. Confusion Over the Appropriate Standard of Review For Deciding Class Certification..................................................157
C. Supreme Court decisions..............................................158
D. Case law from the United States Courts of Appeals.......................159
IV. FACTUAL BACKGROUND...............................................166
A. General Background..................................................166
B. UPS’s Formal ADA Compliance Procedures.............................167
1. ADA Compliance Procedures Prior to 1999...........................167
2. ADA Compliance Procedures After 1999.............................168
a. “United Parcel Service Americans with Disabilities Act Procedural Compliance Manual” and procedures set forth therein....................................................168
(i) Reasonable Accommodation..............................169
(ii) The UPS ADA Procedure................................169
b. The “Ten-Step Process”.......................................171
(i) Step One: “Commence the Process”......................171
(ii) Step Two: “Gather Medical Information”..................172
(in) Step Three: “Evaluate Whether the Employee May Have a Disability”....................................172
(iv) Step Four: “Notify the Employee”........................173
(v) Step Five: “Meet with the Employee (Hold Checklist Meeting)”............................................173
(vi) Step Six: “Identify Potential Reasonable Accommodations (Complete Written Checklist)”..........174
(vii) Step Seven: “Evaluate Appropriate Accommodations (ADA Committee Meets)”..............................174
(viii) Step Eight: “Bargain with the Union”.....................175
(ix) Step Nine: “Notify the Employee”........................175
(x) Step Ten: “Close the File”...............................175
c. Miscellaneous Manual Issues...................................175
d. Other ADA Training Materials.................................175
e. Notice to Employees..........................................176
C. ADA and Other Kinds of Accommodations in the Sample Districts..........176
1. ADA Accommodations.............................................176
2. Other Accommodations............................................177
D. Other General Evidence Submitted by UPS..............................178
E. Challenged Policies...................................................178
1. The Alleged “100% Healed Policy”..................................179
a. Evidence from Managers and Former Managers Concerning the Existence of the “100% Release” or “No Restrictions” Policy.....................................................179
b. Evidence from Employees and Former Employees Concerning the Existence of the “100% Release” or “No Restrictions” Policy.....................................................180
c. Evidence from UPS’s Internal Emails...........................180
d. Evidence from UPS’s Early Training Materials...................182
e. Evidence from EEOC Determinations...........................183
2. Other Evidence...................................................185
V. ADA CLAIMS AND PATTERN-OR-PRACTICE FRAMEWORK 185
B. The Americans with Disabilities Act....................................186
1. Failure to Make Reasonable Accommodations; Failure to Engage in Interactive Process...........................................187
2. Retaliation.......................................................191
C. “Pattern-or-Practice” Framework......................................192
1. Franks v. Bowman Transportation Company.........................193
2. International Brotherhood of Teamsters v. United States..............195
3. Cooper v. Federal Reserve Bank of Richmond........................201
4. Applicability of pattern-or-practice framework to private-plaintiff ADA lawsuits..................................................204
VI. CLASS DEFINITION....................................................209
VII. CLASS CERTIFICATION REQUIREMENTS..............................212
A. Rule 23(a) Prerequisites...............................................212
1. Numerosity......................................................213
2. Commonality.....................................................214
a. 100% Healed Policy Claim.....................................214
b. The Other Reasonable Accommodation Policies Claims............220
(i) Implementation of the Formal ADA Compliance Policy.....220
(ii) Uniform Pretextual Job Descriptions......................220
(iii) Prohibiting Employees from Returning to Work With Restrictions and Preventing Use of Seniority Rights to Transfer Positions..................................221
(iv) Withdrawing of Accommodations Previously Provided and then Denying Requests for the Previously Provided Accommodations Claims.......................222
c. Retaliation Claims............................................222
d. Summary of Commonality Findings.............................222
3. Typicality........................................................223
4. Adequacy........................................................226
a. Class Counsel................................................227
b. Plaintiffs’ Adequacy...........................................228
B. Rule 23(b)(2) Requirements............................................230
1. Grounds generally applicable.......................................230
2. Cohesiveness.....................................................232
3. Claims primarily for monetary relief................................233
a. The Incidental Damages Approach..............................236
b. The Discretionary Approach ...................................238
c. Decisions by the United States Court of Appeals for the Third Circuit....................................................241
C. Bifurcation..........................................................244
VIII. CONCLUSION..........................................................245
IX. ORDER.................................................................245
A. Class Claims.........................................................245
B. Relief...............................................................245
C. Class Definition......................................................246
D. Class Counsel........................................................246
E. Other Miscellaneous Matters ..........................................246
I. INTRODUCTION
Pending before the court is a motion for class certification (Doc. No. 180) filed pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2) by plaintiffs Mark Hohider (“Hohi-der”) and Robert DiPaolo (“DiPaolo”) and consolidated plaintiff Preston Eugene Branum (“Branum”)(colleetively, “plaintiffs”) on behalf of themselves and all others similarly situated against defendant United Parcel Service, Inc. (“defendant” or “UPS”). Plaintiffs allege in this civil action that UPS en
Plaintiffs specifically challenge the following alleged policies at UPS as violative of the ADA and appropriate for classwide adjudication:
(1) enforcing a “100% release” or “no restrictions” unwritten policy, which prohibits employees from returning to UPS in any vacant position unless the employee can return to his or her last position without any medical restrictions;
(2) disseminating a written corporate “ADA compliance policy,” which is implemented nationwide to delay and avoid providing accommodations, that is illegal, both on its face and as applied;
(3) using uniform job descriptions, which intentionally fail to describe the essential functions of available UPS jobs, as a pretext to prevent disabled employees from holding any UPS job;
(4) prohibiting employees from returning to work in an alternative job within the employees’ restrictions and preventing employees from using union seniority rights to transfer to a position that accommodates their disabilities;
(5) withdrawing accommodations previously provided to disabled workers, and then denying requests for the previously provided accommodations; and
(6) treating persons who make requests for accommodations differently and less favorably in the terms, conditions, rights and privileges, of or incident to, their employment as a result of engaging in this protected act under the ADA.
Plaintiffs’ Brief in Support of Motion for Class Certification (“Pis.’ Br.”)(Doc. No. 180) at 3-4.
The court discerns that plaintiffs seek certification of two kinds of ADA claims against UPS: (1) the first five policies implicate whether UPS’s alleged policies, practices and procedures that control reentry into the workplace, or otherwise govern the making of reasonable accommodations, violate the ADA (the “reasonable accommodation policies claims”); and (ii) the sixth policy implicates whether UPS retaliates against its employees in violation of the ADA (the “retaliation claims”).
The reasonable accommodation policies claims can be further distinguished. Plaintiffs’ principal allegation appears to be that UPS enforces an unwritten, de facto “100% healed” return-to-work policy (the “100% healed policy claim”). Plaintiffs argue that the 100% healed policy claim, if proven, constitutes a per se violation of the ADA’s requirements relating to the making of reasonable accommodations. That is, plaintiffs argue that at the merits stage of this litigation, with respect to the 100% healed policy claim, if plaintiffs prove the existence of the alleged 100% healed policy, the policy could be declared unlawful and appropriate injunc-tive and declaratory relief could flow from that determination. Plaintiffs’ other reasonable accommodation policies claims appear primarily to be alleging violations of the ADA as a result of the implementation of those policies and not as per se violations.
What makes this matter a case of first impression is that plaintiffs, in a case where defendant challenges whether the proposed class encompasses only persons with disabilities as defined in the ADA, seek to litigate all their ADA claims by virtue of certification of a Rule 23(b)(2) private-plaintiff class and pursuant to the pattern-or-practice frame
UPS, however, denies the existence of the alleged 100% healed policy and maintains that its formal ADA compliance policies are designed to and do afford employees robust protection under the ADA. In addition, UPS strenuously argues that class certification in this case is inappropriate for a variety of reasons. These reasons include UPS’s arguments that the class definition itself is unworkable and requires a host of individualized determinations merely to determine membership in the class; that plaintiffs have failed to satisfy each of the Rule 23(a) prerequisites, largely due to the myriad individualized issues in the case with respect to determinations of disability and whether reasonable accommodations were possible in individual circumstances; and that the undisputed evidence demonstrates that UPS did not act in a manner generally applicable to the proposed class, as required by Rule 23(b)(2). In addition, UPS argues that certification pursuant to Rule 23(b)(2) is inappropriate because plaintiffs seek considerable compensatory damages.
Plaintiffs in their pleadings seek certification of the following proposed class:
Those persons throughout the United States who: (i) according to the records of UPS, its agents and contractors have been employed by UPS at any time since May 10, 2000, including those employees absent from work and receiving either workers’ compensation or short or long term disability insurance benefits; and (ii) have been absent from work because of a medical impairment; and (iii) are disabled as defined under the Americans with Disabilities Act (ADA); and (iv) have attempted to return to work or continue to work at UPS or have submitted to UPS a medical release that permits the employee to work with restrictions and conditions, or have been disqualified by UPS from returning to work; and (v) were harmed as a result of UPS’s policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS’s workforce.
Excluded from the Class are all presently working UPS management employees with supervisory authority over the formulation or implementation of the UPS policies and practices alleged in this action to violate the ADA.
Plaintiffs’ Motion for Class Certification (“Pis.’ Mot.”)(Doc. No. 180). The court and the parties, however, discussed a modified class definition at the hearing on class certification. See Transcript of January 27, 2006 Hearing on Class Certification (“Jan. 27, 2006 Tr.”)(Doe. No. 157) at 34-41, 44-45.
In the instant opinion, the court will address several threshold legal issues furiously disputed by the parties before undertaking a rigorous Rule 23 analysis. First, the court will address the appropriate standard of review for deciding whether class certification is appropriate. Second, the court will determine whether plaintiffs can litigate their claims pursuant to the Teamsters pattern-or-praetice framework of proof. Third, the court will examine the sufficiency of the class definition, and whether the class as proposed
The court ultimately concludes for the reasons set forth in this memorandum opinion that (1) plaintiffs’ claims are subject to the pattern-or-practice framework of proof enunciated by the Supreme Court in Franks v. Bowman Transportation Co.,
II. PROCEDURAL HISTORY
On March 10, 2004, plaintiffs Hohider and DiPaolo filed the above-captioned civil action against UPS alleging that UPS’s employment practices concerning employees who attempt to return to work after an absence for medical reasons violate the ADA and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (the “Rehab Act”). (Doc. No. 1). In response to UPS’s subsequent motion to dismiss, (Doc. No. 7), plaintiffs Hohider and DiPaolo withdrew the Rehab Act claim. (Doc. No. 12).
On June 29, 2004, plaintiffs Hohider and DiPaolo filed their first motion for class certification, (Doc. No. 16), and their first motion for bifurcation of issues at trial, (Doe. No. 15). In response, UPS filed a motion seeking a scheduling conference to address the need for discovery on certification issues prior to the parties’ briefing and the court’s decision on the class certification issue. (Doc. No. 21). On July 16, 2004, the court ordered that briefing on plaintiffs’ motion for class certification be stayed pending disposition of UPS’s motion for a scheduling conference. (Doc. No. 23).
On July 27, 2004, the court held a hearing and addressed the need for discovery prior to briefing and deciding class certification. (Doc. No. 26). At that hearing, after determining that discovery prior to briefing and deciding the class certification motion would be allowed, the court directed the parties to meet and confer and file a class certification discovery plan. The court also denied without prejudice plaintiffs’ pending motion for class certification, (Doc. No. 16), and motion for bifurcation of issues at trial, (Doc. No. 15). On August 15, 2004, the court held a case management conference with the parties and set dates for class certification discovery.
During class certification discovery, several issues arose that required briefing by the parties and resolution by the court, leading to extensions of the discovery period and the briefing schedule for deciding the class certification motion. For example, plaintiffs initially sought nationwide discovery from all sixty of UPS’s districts. After briefing on
Around the same time that class certification discovery was proceeding in the above-captioned civil action brought by plaintiffs Hohider and DiPaolo, on November 4, 2004, consolidated plaintiff Branum filed a similar civil action against UPS in this court, also alleging that UPS’s employment practices violate the ADA and seeking class action treatment of his claims. (Doc. No. 1 in Civ. No. 04-1686). Plaintiffs’ counsel and defendant’s counsel in the Hohider and DiPaolo ease entered appearances in the Branum case. Shortly after the Branum civil action was filed, plaintiffs’ counsel filed motions to consolidate the two cases, (Doc. No. 50; Doc. No. 14 in Civ. No. 04-1686). UPS opposed consolidation. (Doc. No. 59). On February 11, 2005, the court held a hearing on plaintiffs’ motion to consolidate the two cases for all purposes. (Doc. No. 92). At the hearing, the court ordered that the two cases were consolidated only for the purpose of discovery, indicating that the court would reconsider consolidation for all purposes after deciding UPS’s then-pending motion to dismiss Branum’s claims and UPS’s then-pending motion for summary judgment with respect to Hohider’s claims, both of which motions raised similar issues with respect to whether the scope of the EEOC investigations in each case, or what could reasonably be expected to grow out of those EEOC investigations, encompassed class claims.
On April 13, 2005, the court granted the motion of the EEOC for leave to file a brief as an amicus curiae in support of plaintiff Hohider and in opposition to UPS’s motion for summary judgment. (Doc. No. 93-1). The court subsequently denied UPS’s motion to dismiss Branum’s claims, (Doc. No. 17 in Civ. No. 04-1686), without prejudice to UPS’s right to raise the issue whether the scope of the EEOC investigation encompassed class claims on a more fully developed record in a motion for summary judgment and the court denied UPS’s motion for summary judgment with respect to Hohider’s claims. (Doc. No. 144). On December 27, 2005, the court consolidated the two civil actions for all purposes at the above-captioned number.
Currently before the court is an abundance of briefing and a voluminous record concerning plaintiffs’ renewed motion for class certification. This briefing includes plaintiffs’ renewed motion, (Doc. No. 180), an accompanying corrected proposed order, (Doc. No. 155), an accompanying brief in support, (Doc. No. 181), accompanying appendices, (Doc. Nos. 121, 122, 123, 124) and plaintiffs’ reply brief, (Doc. No. 184 with Exhibits at Doc. Nos. 143-2 through 143-5), as well as UPS’s brief in opposition, (Doe. Nos. 182 (redacted) and 183 (unredacted)), UPS’s appendices, (Doc. Nos. 130 (redacted), 131, 132, 133, 134, 135, 137 (unredacted portions of appendix)), and UPS’s surreply brief, (Doc. No. 186). In addition, both plaintiffs and UPS have filed multiple notices of supplemental authority and responses which the court will give whatever weight is deemed appropriate. See (Doc. Nos. 161-78; 189-95, 199-201).
III. STANDARD OF REVIEW
A. Rule 23 Requirements for Class Certification
To be certified, a class must satisfy the four requirements of Federal Rule of Civil Procedure 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a). If
B. Confusion Over the Appropriate Standard of Review For Deciding Class Certification
Less well settled as a matter of law, however, is the appropriate standard of review a district court should use when deciding a motion for class certification. Perhaps not surprisingly in this case, therefore, the parties vigorously dispute how much deference, if any, the court should give to plaintiffs’ factual allegations concerning the propriety of certification. In addition, in light of the voluminous factual record compiled in class certification discovery and submitted to the court for its consideration in deciding the class certification motion, the parties dispute how stringently the court should review the factual record before it, and in particular factual disputes between the parties, to determine whether the class certification requirements are met.
Plaintiffs initially argued in their principal brief, in light of Chiang,
Plaintiffs in a supplemental brief conceded that the court may “peek behind the pleadings” to assess class allegations, but maintained that a court generally should refrain from conducting a preliminary inquiry into the merits at the class certification stage,
The apparent confusion over the appropriate standard of review a district court employs to decide whether certification is appropriate is understandable in light of the current state of the law. Applicable ease law on this issue until recently has not been the height of clarity.
C. Supreme Court decisions
The two principal United States Supreme Court decisions which discuss the appropriate standard of review a district court should employ to decide whether to grant or deny a motion for class certification under Rule 23— Eisen and Falcon — have been interpreted by federal courts as offering somewhat contradictory guidance with respect to the appropriate standard of review in class certification decisions. In Eisen, the Supreme Court stated that:
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.... “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”
Id. at 177-78,
In the other principal Supreme Court decision regarding Rule 23 requirements, however, the Supreme Court instructed that a class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Falcon,
D. Case law from the United States Courts of Appeals
Other than the Eisen and Falcon decisions, however, the United States Supreme Court has not recently or in detail addressed the appropriate standard of review a district court should use when deciding certification. The courts of appeals have struggled to guide district courts regarding the appropriate standard of review for deciding certification motions. District courts, in turn, have approached the issue with trepidation, as if steering a course through the choppy waters between Scylla and Charybdis. As those courts of appeals that have addressed the issue in detail have recognized, district courts deciding certification under the recent state of the law have perceived themselves to be caught between two dangers in a situation where moving away from one can cause a court to risk running afoul of the other: On the one hand, district courts have resisted making preliminary inquiries into merits issues as apparently proscribed by the Supreme Court in Eisen; on the other hand, district courts attempting to follow the guidance of Falcon have resisted deciding certification without a sufficiently “rigorous analysis” that assures that the Rule 23 requirements have been met, including some consideration of the underlying facts.
At bottom, courts have struggled to make sufficiently rigorous factual “findings” in support of certification decisions while at the same time avoiding — if possible — making “findings” on merits issues. This struggle has led to various descriptions over time of the standard of review that a district court should use in deciding a certification motion. See, e.g., In re IPO,
Thankfully, a consensus is emerging among the United States Courts of Appeals. While for some time district courts perceived a split in authority between the approach of the United States Courts of Appeals for the Seventh and the Fourth Circuits versus that of the Second Circuit — see, e.g., In re Natural Gas Commodities Litigation,
In Szabo, the United States Court of Appeals for the Seventh Circuit focused on the appropriate standard of review used by a district court deciding class certification. The district court in that case assumed for the purposes of the class certification motion that the substantive allegations in the complaint were true. Id. at 674-75.
The court of appeals in Szabo reasoned that “[bjefore deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23.” id. The court of appeals made clear that this obligation of the judge applies to the Rule 23(a) prerequisites as well as to whether class certification is appropriate under Rule 23(b).
Questions such as these require the exercise of judgment and the application of sound discretion; they differ in kind from legal rulings under Rule 12(b)(6). And if some of the considerations under Rule 23(b)(3) ... overlap the merits — as they do in this case, where it is not possible to evaluate impending difficulties without making a choice of law, and not possible to make a sound choice of law without deciding whether [the defendant] authorized or ratified the dealers’ representations — then the judge must make a preliminary inquiry into the merits.
Id. (emphasis added). The court of appeals in Szabo reasoned that courts make similar inquiries routinely under Rule 12(b)(1) and 12(b)(2), and that, if necessary, courts may hold a hearing to make preliminary factual determinations concerning jurisdiction, venue, and the like. Id. at 676-77.
The court of appeals in Szabo addressed head-on the district court’s apparent misunderstanding of the Eisen decision, noting that “[t]he district judge thought that [Ei-sen ] adopts the approach of Rule 12(b)(6) for decisions under Rule 23;” however, “[w]e do not read Eisen so.” Id. The court of appeals noted that in Eisen, the Supreme Court observed that the 1966 amendment to Rule 23 departed from the earlier handling of class claims by placing certification ahead of a decision on the merits:
*161 A class thus can lose as well as win, while in a permissive-intervention system the case is decided on the merits before the identities of the parties to be bound are known. The success of the 1966 amendments (which are still in force) depends on making a definitive class certification decision before deciding the case on the merits, and on judicial willingness to certify classes that have weak claims as well as strong ones.
Id. at 677. The court, therefore, reasoned:
A court may not say something like “let’s resolve the merits first and worry about the class later” ... or “I’m not going to certify a class unless I think that the plaintiffs will prevail.”
Id. The court of appeals noted, however, that “nothing in the 1966 amendments to Rule 23, or the opinion in Eisen, prevents the district court from looking beneath the surface of a complaint to conduct the inquiries identified in that rule and exercise the discretion it confers.” Id. The court also commented that “[pjlaintiffs cannot tie the judge’s hands by making allegations relevant to both the merits and class certification.” Id. (quoting Eggleston v. Chicago Journeymen Plumbers’ Local No. 130,
The court of appeals in Szabo characterized the district court’s approach in that case as reminiscent of the “across-the-board” rule jettisoned by the Supreme Court in Falcon, noting that in circuits that were following the across-the-board rule, district courts had been required to assume that all members of a proposed class were situated similarly to plaintiff and to certify classes “across the board.” Id. The court of appeals explained that Falcon held that “similarity of claims and situations must be demonstrated rather than assumed,” quoting the pointed observation from Falcon that “sometimes it may be necessary for the court to probe beyond the pleadings before coming to rest on the certification question ... [Ajctual, not presumed, conformance with Rule 23(a) remains ... indispensable.” Id. (quoting Falcon,
Certifying classes on the basis of incontestable allegations in the complaint moves the court’s discretion to the plaintiffs attorneys — who may use it in ways injurious to other class members, as well as ways injurious to defendants. Both the absent class members and defendants are entitled to the protection of independent judicial review of the plaintiffs allegations.
Id.
In Newton v. Merrill, Lynch, Pierce, Fen-ner & Smith, Inc.,
In reviewing the district court’s decision, the court of appeals as a threshold matter analyzed in detail the effect of the 1998 amendment to Rule 23 providing interlocutory appeal, id. at 162-65, but also had occasion to review the appropriate standard of review a district court should employ in deciding certification, id. at 165-69. The court of appeals noted that, generally, a district court abuses its discretion if its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id. at 165-66 (quoting In re General Motors Corp. Pick Up Truck Fuel Tank Prods. Liab. Litig.,
The court of appeals took the opportunity in Newton to examine the Eisen decision and its admonition that “nothing in either the language or history of Rule 23 ... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Id. The court of appeals commented that “this admonition must be examined in context,” and recognized that “[a]t the time, it was ancillary to the principal issue of whether Fed.R.Civ.P. 23 required a class representative in a securities class action to provide notice to all class members.” Id. The court of appeals in Newton explained the evolution of case law following Eisen, noting:
Not long after Eisen, the Court stepped away from this bright-line declaration in Coopers & Lybrand v. Livesay, when it held that “[evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses, the adequacy of the representative, and the presence of common questions of law or fact are obvious examples. The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits____”
Id. (quoting Coopers & Lybrand v. Livesay,
Subsequently, in [.Falcon ], the Court appeared to move even further away from Eisen, recognizing that “[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question .... [A]ctual, not presumed conform-*163 anee with Rule 23(a) remains ... indispensable.”
Id.
In Newton, the court of appeals concluded that the reasoning in Falcon applied to issues arising under Rule 23(b)(3). Id. (citing Sza-bo,
The court of appeals commented that since Eisen, “the nature of class actions and how they are litigated have undergone a sea change.” Id. at 167-68, 94 S.Ct 2140. The court of appeals recognized that several United States Courts of Appeals since Eisen have required district courts to go beyond the pleadings in order to decide whether the class certification requirements are met, citing Castano v. American Tobacco Co.,
In reviewing a motion for class certification, a preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action. This is such an instance. We must probe beyond the surface of plaintiffs’ allegations in performing our review to assess whether plaintiffs’ securities claims satisfy Fed.R.Civ.P. 23’s requirements.
Newton,
The guidance provided by the United States Court of Appeals for the Third Circuit is clear. District courts are required when necessary to delve beyond the pleadings to determine whether Rule 23 requirements are met. The United States Courts of Appeals for the Second, Fourth, and Seventh Circuits have adopted the same or a largely similar approach. See, e.g., In re IPO,
Fear by the parties that a district court’s findings made solely for the purpose of deciding certification will somehow affect merits determinations later in the litigation is unwarranted:
The district court’s concern that Rule 23 findings might prejudice later process on the merits need not lead to the conclusion that such findings cannot be made. The jury or factfinder can be given free hand to find all of the facts required to render a verdict on the merits, and if its finding on any fact differs from a finding made in connection with class action certification, the ultimate factfinder’s finding on the merits will govern the judgment.
Gariety,
The Fourth Circuit in Gariety considered and fully answered the concern expressed in Eisen (with respect to a merits inquiry on an issue unrelated to a Rule 23 requirement) that a merits inquiry on an issue that is related to the merits would prejudice the defendant. The Fourth Circuit noted that such an inquiry would not bind the ultimate fact-finder____A trial judge’s finding on a merits issue for purposes of a Rule 23 requirement no more binds the court to rule for the plaintiff on the ultimate merits of that issue than does a finding that the plaintiff has shown a probability of success for purposes of a preliminary injunction.
At the class certification stage, a district court makes a determination that some legal standard — e.g., numerosity, commonality, or predominance — is met; in so doing, a court may resolve underlying factual disputes, and as to these disputes, the court must be persuaded that the fact at issue has been established; much like a district court makes a “ruling” or “determines” other threshold issues that involve disputed issues of fact— such as the determination that a court has subject-matter jurisdiction. In re IPO,
Perhaps the best articulation of the standard of review was set forth in In re IPO. There, the court of appeals summarized its conclusions with respect to the appropriate standard of review for deciding class certification as follows:
[W]e reach the following conclusions: (1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits.
Id. This articulation of the standard for determining whether a court must consider the merits in resolving class certification issues is consistent with the approach of the United States Court of Appeals for the Third Circuit in Newton, and captures the standard of review that this court will apply in the instant case.
It does not appear that the 2003 amendments to Rule 23 affect the standard of review in a substantial way. The courts of appeals that have addressed the appropriate standard of review for class certification since the 2003 amendments to Rule 23 have commented on the significance, if any, of the
The court of appeals in In re IPO noted that two of the 2003 changes, however, arguably could be read in combination to permit more extensive inquiry into whether Rule 23 requirements are met: first, that the amended rule removed the provision that class certification “may be conditional;” second, that the amended rule replaces the provision of prior Rule 23(c)(1)(A) that a class certification decision be made “as soon as practicable” with a provision requiring the decision “at an early practicable time.” Id. Further, the court of appeals in In re IPO noted that the advisory committee stated “that ‘[a] court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.’ ” Id. (quoting Fed.R.Civ.P. 23(c)(1)(C) 2003 Adv. Comm. Notes). In addition, the court noted that the advisory committee, although condemning an evaluation of the probable outcome on the merits, blessed the use of controlled discovery in aid of the certification decision, including controlled discovery into the “merits,” limited to those aspects relevant to making a certification decision on an informed basis. Id; see Gariety, at
This court will examine the facts marshaled during class certification discovery and presented to the court for its review in deciding whether the Rule 23 requirements are met and class certification is warranted in this case. The court notes that the parties have compiled and submitted a voluminous factual record concerning class certification in this case. Defendant presented an appendix over 2,000 pages long and plaintiff presented appendices totaling a similar length. Much of the factual background is not in dispute, although the legal consequences of those facts are the subject of serious disagreement. Some key facts, however, are disputed. Where necessary, the court will resolve factual disputes relevant to each Rule 23 requirement. Where there is overlap between a Rule 23 requirement and a merits issue, the court will resolve that dispute with respect to determining whether the Rule 23 requirement has been met. The court otherwise will not assess any aspect of the merits unrelated to a Rule 23 requirement. Any findings in this memorandum opinion, therefore, are made solely for the purpose of deciding certification and will not bind the fact finder at the merits stage of this litigation. The following part of this memorandum opinion will review the factual background of the case as a preface to the Rule 23 analysis.
IV. FACTUAL BACKGROUND
A. General Background
UPS was founded as a messenger service in 1907, and currently is the world’s largest package delivery company, delivering approximately 3.4 billion packages and documents per year. Declaration of R. Joseph Lee (“Lee Decl.”), UPS Appendix to UPS’s Opposition to Plaintiffs Motion for Class Certification (“UPS App.”) at 538-40 14; see Bates v. UPS, No. C99-2216, slip. op. at 5 (N.D.Cal. Oct. 21, 2004)(“Findings of Fact & Conclusions of Law”)(“Bates Findings”)(Plaintiffs Appendix of Legal Authorities (“Pis.’ Leg.App.”), Tab 1 at 5). UPS employs approximately 328,000 individuals in the United States and over 360,000 individuals worldwide. Lee Decl. II4; see Bates Findings at 5. In the United States, UPS’s package operations are divided into seven regions, which in turn are divided into sixty distinct geographical districts. Lee Decl. U 5.
Approximately 200,000 UPS employees in the United States are covered by some form of a collective bargaining agreement. Id. H 6. Some employees are covered by the National Master United Parcel Service Agreement (the “National Master Agreement”) between UPS and the Teamsters United Parcel Service National Negotiating Committee representing local unions affiliated with the International Brotherhood of Teamsters. Id. In addition to the National Master Agreement, some employees are covered by supplemental collective bargaining agreements. Id. 117.
Class certification discovery in this case was limited to five of UPS’s sixty districts (the “sample districts”). The sample districts included the North Illinois district, the Southeast California district, the Georgia district, the Gulf South district, and the Laurel Mountain district. See Plaintiffs’ Appendix of Exhibits in support of Motion for Class Certification (“Pis.’ Ex.App.”), Tab 2 (Apr. 21, 2005 email from Joseph E. Culleiton to Christian Bagin). While the exact number of UPS employees working in a particular district changes on a regular basis, id., UPS generally employs approximately 34,500 individuals, or approximately 10.5% of its domestic workforce, in the five sample districts. Id. (noting that, as of October 2004, UPS employed 34,474 individuals in the five sample districts as follows: North Illinois (7,471), Southeast California (9,777), Georgia (7,705), Gulf South (4,458), and Laurel Mountain (5,064)).
B. UPS’s Formal ADA Compliance Procedures
1. ADA Compliance Procedures Prior to 1999
Since the passage of the ADA, UPS has developed formal ADA compliance procedures to guide its employees. See Declaration of Roman M. Williams (‘Williams Deck”), UPS App. at 2-7 HH 2-7; Lee Deck H11-17. Over the years, UPS revised its formal ADA compliance procedures. For example, in 1992, after the ADA went into effect, UPS distributed a Management Guide to its supervisory personnel entitled “Injured Employees: Focus on Abilities; Health and Safety and the ADA” (the “Focus on Abilities manual”). Lee Deck H11, Ex. G.
For example, the Focus on Abilities manual contained UPS’s corporate mission statement at the time concerning the ADA, noting that, because UPS as a federal contractor already had taken measures to comply with the Rehab Act,
[the passage of the ADA] provides an opportunity for UPS to rededicate the entire organization to the goal of removing existing barriers and providing opportunities for individuals with disabilities. This will provide UPS with an additional resource of qualified people, while allowing individuals with disabilities the opportunity to contrib*168 ute to the success of UPS as well as to their own economic goals and career pursuits.
Id. at 1. Concerning requests for accommodation, the Focus on Abilities manual stated:
UPS procedure requires specific steps to be followed when a request for an accommodation is received. In addition, documentation must be completed and retained by Human Resource Departments.
If an employee makes a request for an accommodation, the individual should be assured that their request will receive attention by the appropriate management people. No judgments or promises should be made at the time the request is made. Each request should be carefully evaluated. The Human Resources manager should be notified immediately to ensure prompt response to the request. An individual requesting an accommodation must participate and cooperate in the evaluation process.
Id. at 4. In closing, the Focus on Abilities manual noted:
It is the responsibility of UPS managers and supervisors to ensure that individuals with disabilities are given the same opportunities and impartial treatment that has historically guided us in all our relationships with employees and customers. To achieve this goal, it simply requires a focus on the talents and abilities of individuals.
Id. at 7.
Shortly thereafter, UPS updated its longstanding internal publication “Impartial Employment and Promotion Guide” to include a discussion of the ADA. See Lee Deck H12, Ex. H. UPS submitted to the court a copy of this guide which is copyrighted 1993 and marked “[rjevised June 1993.” Lee Deck, Ex. H. The guide, first published in 1965 and periodically updated thereafter, was intended to be issued by UPS to all UPS managers and supervisors and proclaimed to be a reference source and policy statement for the company. Id. at iii. The guide listed the ADA among other federal laws applicable to the employment context in which the company operated. Id. at 11. In the section of the guide addressing “implementing our policies,” the guide identified among other workshops that were part of UPS’s formal training at the time the “Focus on Abilities Workshop.” Id. at 28. The guide described that workshop as one that “educates management on the laws regarding nondiscrimination towards individuals with a disability,” and whose primary message was “focus[ing] on looking at their ability rather than disability.” Id.
2. ADA Compliance Procedures After 1999
a. “United Parcel Service Americans with Disabilities Act Procedural Compliance Manual” and procedures set forth therein
In 1999, UPS with the assistance of outside legal counsel developed a more detailed ADA procedural compliance manual. Lee Deck H13, Ex. I, also filed at Pis.’ Ex.App., Tab 3.
UPS developed the Manual “to provide guidance on ‘reasonable accommodation’ and other important concepts under the ADA, with the goal of insuring the fair and equitable treatment of all individuals,” according to the introductory letter on the Manual’s first page of text. Lee Deck, Ex. I at [1], The Manual was intended to supplement the UPS Code of Business Conduct and the UPS Policy Book. Id. The Manual was not intended to set forth an exhaustive list of procedures for situations that could arise at UPS relating to the ADA, nor was it intended to establish a mandatory ADA procedure for all employees in all circumstances:
*169 No generalized discussion can adequately capture the complexity and individualized nature of claims that will arise in the UPS environment. Accordingly, this manual neither provides an exhaustive list of permitted or prohibited conduct under the ADA nor establishes a mandatory ADA procedure that must be followed by all personnel in all circumstances.
Id. (emphasis added). Instead the Manual “suggests recommended but flexible procedures to encourage the prompt and equitable resolution of all requests for accommodation.” Id. (emphasis added). The Manual sets forth UPS’s position that “[t]hese procedures go above and beyond what is actually required by law and should not be construed as a comprehensive statement of the ADA’s requirements.” Id. The Manual notes that nothing in the Manual is intended to constitute a contractual obligation and individuals are not entitled to contractual rights or guaranteed procedures as set forth in the Manual other than what they are otherwise entitled to as a matter of law. Id.
Although this statement makes explicit that UPS, when developing the Manual, did not intend to set forth an exhaustive, mandatory ADA compliance procedure that governed all situations, the Manual does set forth detailed guidance on, among other things, the scope of the ADA and reasonable accommodation under the ADA. The Manual specifically prescribes an ADA compliance procedure for UPS employees in a section entitled “Evaluating Requests for Accommodation in the UPS Environment,” id. at 34-58, and a subsection entitled “The UPS ADA Procedure,” id. at 42-57.
(i) Reasonable Accommodation
With respect to “reasonable accommodation” generally, the Manual notes that “[t]he ADA imposes an affirmative obligation on UPS to provide reasonable accommodation to qualified individuals with disabilities” and this “involves the removal of both physical obstacles and policies and procedures in the workplace that create barriers to the full employment of individuals with disabilities.” Id. at 13. It explains “reasonable accommodation” to be “any change in the work environment or adjustment in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Id. The Manual notes that employees generally have the initial obligation to inform a manager or supervisor that an accommodation is needed and to identify the desired accommodation, but that no magic words are required for an employee to put the company on notice. Id. at 14. Further, it describes the importance of an “effective accommodation” — i.e., one that enables the disabled individual to perform the essential functions of the job in question. Id.
The Manual identifies “particular accommodations that may be ‘reasonable’ in some cases,” including (1) modifications of the work environment, such as structural changes to the workplace to address accessibility of lunchrooms, restrooms, work area, or training rooms; (2) auxiliary aids, including modifying equipment or acquiring and using low-tech and high-tech devices; (3) job restructuring, for example “altering the time or manner in which an essential function is performed” or “redistributing or eliminating the nonessential, marginal job functions of a position entirely;” (4) reassignment to open positions in certain cases; (5) transfer; (6) leave of absence; (7) “light duty;” (8) a modified work schedule; and (9) shift changes. The Manual also addresses unreasonable accommodations and “undue hardship” as well as the impact of the collective bargaining agreements on requests for accommodation. Id at 15-20.
(ii) The UPS ADA Procedure
In Section II of the Manual, UPS sets forth specific procedures for “Evaluating Requests for Accommodation in the UPS Environment.” Id. at 34-59. The Manual notes that “[t]he process of evaluating requests for accommodation made by individuals is a mul-ti-disciplinary task involving personnel at both the district and region levels.” Id. at 35 (emphasis added). The Manual notes that because in the company’s experience requests for accommodation from applicants (as opposed to current employees) vary widely from case to case and often demand heightened flexibility and quick response
The Manual gives further guidance concerning what constitutes a request for an accommodation, and what duties it triggers for managers, including who needs to be informed (in the first instance, generally the District Workforce Planning Manager (“DWPM”)), what information can be requested (the company has developed a packet to be sent to employees who request accommodations), how requests should be documented,
According to the Manual, responsibility for processing and deciding a request for accommodation under the ADA is shared among UPS’s managers and personnel at the district and regional level. The Manual provides an overview of roles and responsibilities of various managers and personnel who are involved in the decisionmaking process concerning ADA requests for accommodation. Id. at 39-41. For example, the Manual instructs that, while the list is not exhaustive and personnel are encouraged to consult with other district and region managers for guidance when appropriate, the following individuals play a role in processing an employee’s request for an accommodation under the ADA:
(1) Generally the DWPM is responsible for coordinating and managing an employee’s request for accommodation, including exploring the availability and existence of appropriate accommodations with the employee, union (where applicable), and region level decisionmakers; assisting in determining which accommodation, if any, is warranted or feasible; and serving as UPS’s primary liaison with all employees throughout the process. Id. at 39.
(2) The Occupational Health Supervisor (“OHS”) serves as a liaison between the company, the employee, and the employee’s identified physician for purposes of securing all medical information necessary to evaluate whether the employee has a “disability” covered by the ADA; assists in determining whether an employee is a qualified individual with a disability; and participates in identifying accommodations with the employee and DWPM. Id.
(3) The Region Workforce Planning Manager (“RWPM”) “is involved in all decision-making aspects of the ADA process” and is responsible for initially determining in conjunction with the Region Occupational Health Manager whether it appears that the employee has a condition which may be a covered “disability.” Id. at 40. The RWPM is likewise ultimately responsible for identifying what accommodation, if any, UPS will offer to a qualified employee. Id. “In all eases, the RWPM is charged with overseeing the application of ADA policies, procedures, and decisionmaking throughout the districts in his or her region.” Id.
(4) The Region Occupational Health Manager (“ROHM”) participates in the deci-sionmaking process and provides guidance in determining (a) whether the employee has a disability under the ADA, (b) whether the employee is a qualified individual with a disability, and (c) what, if any, accommodation should be expended to the employee. Id.
(5) The District Human Resources Manager (“DHRM”) participates in determining what accommodation, if any, will be offered to qualified employees with disabilities under the ADA. Id. In addition, the DHRM is kept apprised of the status of employee requests throughout the process and is available to advise and assist district personnel in carrying out their assigned tasks. Id.
(6) The District Labor Relations Manager (“DLRM”) serves as the principal contact with the unions and is responsible for ensuring that the company satisfies its obligations under all applicable collective bar*171 gaining agreements in executing its ADA procedures. Id. The DLRM also assists in identifying potential accommodations for employees and in determining which accommodation, if any, the company should offer. Id. Where an accommodation will be offered to a union employee, the DLRM negotiates with the union over the parameters of the accommodation and drafts a written accommodation agreement when appropriate. Id. at 41.
(7) The union Business Agent (“BA”) is involved in the ADA process only when it is a bargaining unit employee who has made a request for accommodation. The DLRM will negotiate with the BA (or his designee) before an accommodation is provided to a bargaining union employee pursuant the National Master Agreement. Id.
(8) The Corporate Legal Department is available to assist decisionmakers in resolving all issues of concern that arise during the ADA process, and should be apprised whenever there is a dispute among decisionmakers or between decisionmakers and the employee regarding whether the employee’s condition is one that is covered under the ADA, whether the employee is qualified within the meaning of the ADA, or whether a particular accommodation is reasonable as a matter of law. Id.
(9) Outside Counsel are likewise available to assist ADA decisionmakers with respect to all aspects of the process, although as a general matter, outside counsel should be contacted only after securing the approval of the Corporate Legal Department. Id.
b. The “Ten-Step Process”
The Manual also sets forth the so-called “ten-step process,”
(i) Step One: “Commence the Process”
At Step One (“Commence the Process”), according to the Manual, within one week of a request for accommodation, the request should be directed to the DWPM who should open a Request File for the employee. Id. at 43. The DWPM then is responsible for sending out a packet of information to the employee that includes a letter acknowledging the request and medical forms to be completed by the employee’s physician. Id. The applicable Essential Job Functions listings are attached and a consent form for the disclosure of medical information to be signed by the employee is included. Id. The DWPM should place copies of all letters in the file and forward the file to the attention of the OHS. Id.
Plaintiffs, however, argue that UPS may never even open an ADA Request File for some employees with restrictions who seek to return to work with an accommodation because certain UPS managers are not sufficiently trained to identify a request when it is made and to forward it promptly to the DWPM for the purpose of opening an ADA file. Plaintiffs cite Hohider’s and DiPaolo’s experiences to show that some requests for accommodation are ignored or summarily denied by district-level management, and therefore that these requests never result in the
(ii) Step Two: “Gather Medical Information”
At Step Two (“Gather Medical Information”), according to the Manual, the OHS is responsible for securing all medical information from the employee and the employee’s physician. Manual at 44. If the OHS has not received the requested information within two weeks of the date on which the DWPM mailed the acknowledgment letter, the OHS should send a second letter to the employee stating that (a) the process cannot continue until the requested information is returned, and (b) UPS will terminate the process by a certain date, usually within two weeks, unless the OHS receives the information or is contacted by the employee. Id. If the OHS does not receive the information by the stated deadline, the OHS should send a letter to the employee stating that the process has been terminated, inform the DWPM, and then close the file. Id. If the employee subsequently submits the requested information and renews a request for accommodation the OHS or DWPM must reopen the file and commence the process a second time. Id.
Once the OHS secures the medical documents, the OHS evaluates whether sufficient information exists from which to determine whether the employee has a condition that could be covered under the ADA. Id. If there is insufficient information, the OHS should advise the employee in writing of the specific additional information that is needed to evaluate properly the request and the consequences of failing to provide this information. Id. Where necessary, the OHS in consultation with the DWPM also may seek guidance from a company-approved physician or request the employee to submit to a medical evaluation by a UPS certified physician. Id. The company evaluation must be job-related and limited to an evaluation of the impairments identified by the employee and their impact on the employee’s ability to work at UPS. Id. Once the OHS certifies that sufficient medical information exists to proceed with the employee’s request, the OHS should forward the file promptly to the attention of the ROHM.
Plaintiffs argue that at Step Two, UPS utilizes a “confusing questionnaire” that contains legal terms of art which an employee must have his or her physician complete in order to continue with the ADA process. See Pis.’ Br. at 19; Pis.’ Dep.App., Tab 1 (Deposition of Vance Allison, who appears to be a management-level employee at UPS involved in processing reasonable accommodation requests) (“Allison Dep.”) at 69, 187-90. Plaintiffs argue that this form is designed to delay or stop the process of receiving an accommodation because no accommodation request will be processed until the questionnaire is satisfactorily completed and because UPS deems all accommodation requests withdrawn unless the employee’s physician returns the form within four weeks. Plaintiffs argue that this combination of requirements — a confusing form and the rule that a request is deemed withdrawn if the form is not timely returned within a relatively short time frame — are designed to and actually do frustrate an employee’s attempt to request and receive an ADA accommodation.
(iii) Step Three: “Evaluate Whether the Employee May Have a Disability”
At this stage, the information gathered and processed at the district level is forwarded to the regional level. The RWPM and the ROHM are responsible for evaluating the assembled medical information to determine whether the individual has a condition that may be a disability under the ADA. Id. at 45. Upon receipt of the file, the ROHM and RWPM should review the information and use the company’s “Guide to Evaluation of Medical Condition” flowchart for guidance to make a preliminary determination regarding whether the employee may have a condition covered by the ADA. Id. If they cannot reach
(iv) Step Four: “Notify the Employee”
At Step Four (“Notify the Employee”), if the regional decisionmakers (the RWPM and the ROHM and others they consult) determine that the employee does not have a condition covered by the ADA, the DWPM promptly should send a letter notifying the employee of this decision. Id. at 46 (emphasis added). If an employee requests that UPS reconsider its position on this issue, the Corporate Legal Department and the RWPM should be consulted. Id. Generally the initial decision should stand unless legal questions arise or the employee introduces new information relevant to the employee’s medical status or job capabilities. Id. Where the “no disability” determination stands, the DWPM should close the file. Id. If the regional decisionmakers determine that the employee may have a condition that qualifies as a disability under the ADA, the DWPM should send a letter to the employee scheduling a preliminary date for a meeting with the employee to identify the desired accommodation (the so-called “checklist meeting”). Id. (emphasis added). The DLRM and OHS should be copied on this letter. Id.
(v) Step Five: “Meet with the Employee (Hold Checklist Meeting)”
At Step Five (“Meet with the Employee (Hold Checklist Meeting”)), the DWPM chairs a checklist meeting with the employee and the DLRM and OHS if they are available. Id. at 47. In all cases, at least two management employees must represent the company. Id. In some circumstances a union employee may request that a BA or steward attend the meeting and the DLRM has the discretion to grant an exception to the general rule that they not be allowed to attend when it is deemed to be appropriate, e.g. when the union initialed the accommodation request. Id.
The goals of the checklist meeting are to gather information from the employee concerning the desired accommodation; to determine whether it is needed because of the disability; and to assess the impact of the employee’s limitations on the employee’s ability to work at particular positions. Id. It will often be appropriate to review the essential job functions of the positions at this time. Id. Although the DWPM may provide information to the employee about the UPS decisionmaking process going forward, no manager should make any representations regarding the company’s willingness to offer a particular accommodation or the availability of alternate positions at this time. Id. At the meeting, the DWPM should complete the employee portion of the accommodations checklist and secure the signature of the employee before concluding the meeting. Id. In addition, when a unionized employee is involved, the DWPM should secure the employee’s written consent to provide the union with the employee’s medical information. Id. at 47-48.
While the process set forth in the Manual contemplates an interactive process of the kind required by the ADA, plaintiffs argue that even this checklist meeting is a sham where employees are required to identify specific accommodations without dialogue with management.
(vi) Step Six: “Identify Potential Reasonable Accommodations (Complete Written Checklist)”
At Step Six, following the checklist meeting, the DWPM should evaluate the availability of the identified accommodations. Id. at 48. The DLRM should be consulted on issues involving a collective bargaining agreement and the OHS or ROHM should be consulted as necessary on questions concerning an employee’s physical or mental abilities in relation to a particular position. Id. If the employee maintains that he or she is capable of performing the current job with a specific accommodation, the DWPM should identify (1) whether that accommodation is available; and (2) where a union employee is involved, whether the accommodation conflicts with a collective bargaining agreement. Id. If the employee is seeking a transfer or reassignment, the DWPM should identify (1) whether there are any current or anticipated openings for the desired position; (2) whether the employee has the requisite education, skills, and experience for the position; (3) whether the essential functions of the new position appear within the employee’s medical limitations with or without reasonable accommodation; and (4) when a union employee or bargaining unit position is involved, whether the transfer request conflicts with a collective bargaining agreement. Id. The DWPM then should identify whether any known accommodations not identified by the employee are available, such as alternative vacant positions or job modifications that would enable the employee to perform the essential functions of his current position. Id. at 48-49. For each potential accommodation identified, the DWPM should collect information and complete the management portion of the checklist, attaching the essential functions list for each position identified to the checklist. Id. at 49. The DWPM should fax copies of the completed checklist and essential job functions lists to the RWPM and ROHM and provide copies to the DLRM, DHRM, and OHS. 7d
(vii) Step Seven: “Evaluate Appropriate Accommodations (ADA Committee Meets)”
At Step Seven, the ADA Committee (the “Committee”), consisting of management personnel at both the district and regional level, meet or participate in a conference call to review the completed checklist. Id. At this meeting the Committee’s task is twofold: (1) to evaluate whether the employee is a “qualified individual with a disability” — that is, capable of performing the essential functions of any available position with or without reasonable accommodation — and (2) to identify what reasonable accommodation, if any, the company is able to offer to the employee. Id. at 49-50.
According to the Manual, in determining whether an individual is qualified, the employee’s capabilities with respect to the current position generally should be evaluated first, and if there is no identified accommodation that would enable the employee to continue in this position, or the employee has specifically identified reassignment or transfer as the desired accommodation, the Committee should also evaluate the employee’s abilities with respect to potential alternate positions. Id. at 50. The Committee may consider positions identified by the employee, the DWPM, or any other position the Committee deems appropriate. Id. When considering alternative positions, the Committee first should determine whether the employee is capable of performing the essential functions of the position with or without reasonable accommodation. Id. If the employee is deemed capable of performing a new position with or without reasonable accommodation, the Committee next must determine whether that position is “open” or “available.” Id.
(viii) Step Eight: “Bargain with the Union”
If the Committee determines that an accommodation will be offered to a union employee, the DLRM communicates with the BA to discuss and negotiate with respect to the company’s offer. Id. at 52-53. If the BA agrees to one of the offered accommodations, the DLRM should prepare a written accommodation agreement. Id. at 53. The DLRM should notify the RWPM, DHRM, and DWPM of the results of the meeting. Id.
(ix) Step Nine: “Notify the Employee”
When no accommodation is offered because the Committee has determined that the employee is not qualified for any position, that no reasonable accommodation exists, or that no reasonable accommodation is available, the DWPM is responsible for notifying the employee of the outcome in writing. Id. at 53-54. When an accommodation is offered, the DWPM is responsible for writing a letter inviting the employee and his or her BA, if any, to a meeting to discuss the company’s offer. Id. at 54. At least two management employees must attend. Id. If the employee rejects all proposed offers or a union employee rejects the only offer agreed upon by the union and the company, the DWPM should document the offer and the discussions with the employee in a memorandum to the file and a letter to the employee which notes the date on which the employee should report to duty in the new or modified position. Id. at 54-55. If the employee fails to report for work, the DWPM may terminate the employee for job abandonment where appropriate and consistent with applicable law. Id. at 55. If the employee accepts the accommodation, the DWPM or DLRM is responsible for memorializing the agreement in a letter. Id.
(x) Step Ten: “Close the File”
Once the process terminates for any reason, with the exception of insufficient medical information, the DWPM is responsible for closing the Request File. Id. The file should contain: (1) a completed activity log; (2) all medical information received from the employee; (3) the completed accommodations checklist, where applicable; (4) copies of all correspondence relating to the accommodation request; and (5) any memorandum or documentation arising out of the accommodation process. Id. at 55-56. All information contained in the file is considered to be confidential and must be maintained separately from the employee’s personnel and other files in a secure filing cabinet maintained by the DWPM. Id. at 56. In addition, the DWPM also should maintain a copy of any accommodation agreements reached with the union Id.
c. Miscellaneous Manual Issues
The Manual further notes that there is a process for appeals for union employees; no manager has the authority to grant exceptions to the company’s policy that no job-related accommodations will be granted other than to employees covered by applicable law without prior approval of the Corporate Legal Department, and only in rare circumstances; and that all employees at UPS are responsible for ensuring compliance with the ADA. Id. The Manual provides that UPS will not tolerate violations of the compliance program. Id. Attached to the Manual are sample forms related to the process. Id. at 59-88.
d. Other ADA Training Materials
UPS provided to the court other training materials for management personnel concerning its ADA procedures. Lee Deck U14. UPS submits, in fact, that there has been extensive training of management personnel on the UPS ADA procedure. Id. For example, UPS submitted for the court’s consideration its 2001 follow-up training materials,
In addition, UPS submitted supplemental training materials which also appear to be copies of slides from a powerpoint presentation or handouts to employees used as part of a training program. Lee Decl., Ex. K. These materials appear to echo the ADA compliance procedures set forth in the Manual. The materials are suggestive, though certainly not definitive, evidence that some employees were trained in the formal ADA compliance procedures developed by UPS at some point. Without more, however — for example, without the substantive and procedural hypo-theticals or evidence of the actual discussion and guidance that was delivered concerning hypothetical situations faced by employees concerning ADA compliance, and without any indication of how many managerial employees received this kind of training, when, and how frequently — these materials add little to the court’s understanding of an ultimate issue for the merits stage of this case: Whether there existed an informal or unwritten pattern-or-practice of dealing with employees at UPS that violated the ADA notwithstanding the existence of the formal compliance policy.
e. Notice to Employees
UPS submits that as part of its ADA compliance program, UPS gives applicants an opportunity to request accommodation and that, prior to the recent use of an electronic application, the UPS application form itself stated that UPS will provide reasonable accommodation if an accommodation is requested by an applicant or employee. Lee Decl. H16. UPS submits that the form itself invites applicants voluntarily to identify accommodations that may be required. Id. Further, UPS submits that bargaining unit employees have access to grievance procedures concerning reasonable accommodations. Id.
UPS submits that in compliance with applicable law, each UPS facility is required to post — and it is UPS’s policy to post — government required signage along with the UPS Equal Opportunity Statement on bulletin boards that are accessible and visible in the facility. Id. UPS attached a copy of an “EEO Multi-Part Posting” to the Lee Decl., Ex. L. It is unclear from the face of the example submitted to the court at what date or in what location or locations it was used. Though difficult to read due to the size of the font and the quality of the photocopy, this posting appears to advise viewers about applicable federal laws including the FMLA and the Rehab Act, as well as UPS’s equal opportunity statement. Id. It is unclear if this posting, or others like it, explicitly address the ADA. Id. While there is mention of “individuals with disabilities,” the court, perhaps in part due to the size of the font, was unable to locate an explicit reference to the ADA on the copy supplied to the court. Id. UPS asserts that this posting includes an invitation to self-identify under UPS’s affirmative action plan pursuant to the Rehab Act. Id. 1117, Ex. L (posting).
C. ADA and Other Kinds of Accommodations in the Sample Districts
1. ADA Accommodations
UPS presents data about ADA accommodations made at UPS gathered from UPS’s ADA Request Files and from human resource managers in the five sample dis
Of the 233 requests that were deemed to be withdrawn, UPS submits that 167 were deemed withdrawn because an employee failed to submit the required medical information; six were deemed withdrawn because an employee failed to appear for a the checklist meeting; thirty-one were deemed withdrawn because employees returned to regular job duties during the pendency of the request, rendering their requests moot; three were deemed withdrawn because employees submitted medical information permitting a return to regular job duties; seven were deemed withdrawn because employees entered into alternative settlement procedures and resigned, rendering their requests moot; seven were deemed withdrawn because employees retired or self-terminated while their request was pending; eleven were deemed withdrawn because employees requested that their request be withdrawn; and one was deemed withdrawn because one employee was terminated for submitting false information. See Williams Decl., Ex. B.
2. Other Accommodations
UPS also presents data about accommodations made to employees at UPS based upon avenues outside of the formal ADA compliance protocol. See Williams Decl. UK 8-18; Lee Decl. 111118-22. For example, UPS submits that during the relevant time period UPS provided 44 accommodations in three of the five sample districts through its “Alternative Work (Alcohol/Controlled Substance)” program for employees who lost their license for driving under the influence of alcohol or a controlled substance (provided for in Article 16, Section 3.3 of the National Master Agreement) or its “Disqualified Driver — Alternative Work” program for employees who have been deemed medically unqualified to drive (provided for in Article 20, Section 4 of the National Master Agreement);
UPS further submits that, in addition to accommodations for workers with medical accommodations, the record reflects hundreds of employees in the five districts working with permanent disability ratings as determined by applicable state workers’ compensation agencies. Declaration of Kenneth Rittman (“Rittman Deck”) (UPS’s App., Tab 2 at 452-54). A review of UPS’s business records identified 507 employees working in the five sample districts as of April 2005 who had sustained a work-related injury after May 1, 2000 and returned to work with a permanent disability or permanent partial disability rating. Id. 114. Of these 507 employees, 15 (approximately 3%) had a permanent disability percentage greater than 40%; 36 (approximately 7%) had a permanent disability percentage between 30%-39%; 103 (approximately 20%) had a permanent disability percentage between 20%-29%; 145 (approximately 29%) had a permanent disability percentage between 10% — 19%; 108 (approximately 21%) had a permanent disability percentage between 5%-9%; and 100 (approximately 20%) had a permanent disability percentage between l%-4%. Id. 117. Moreover, UPS submits that 2,155 employees in the sample districts who had sustained a work-related injury after May 1, 2000 and were absent from work for greater than 30 days as a result of the injury returned to work and were current, active employees at UPS as of April 2005 although they received additional medical care after returning to work. Id. 118.
D. Other General Evidence Submitted by UPS
UPS submits to the court as further general evidence of its compliance with the ADA evidence of its corporate citizenship and general business excellence, see Lee Deck at 8-10, and evidence of disability awards or commendations received by UPS, see Lee Decl 1123. In addition, UPS submits that under the National Master Agreement the parties agreed to abide by the ADA and employees can pursue grievance proceedings if they disagree with UPS’s handling of a request for accommodation, see Declaration of David C. Killoran (“Killoran Deck”) HU 2-3 (quoting Article 14, Section 3 (“Permanently Disabled employees”) of the National Master Agreement and discussing “Article 14.3 grievances” generally). Pursuant to these grievance proceedings, sixty-four grievances were decided by the national grievance committee between May 2000 and December 2004. Id. 114. Of these sixty-four grievances, UPS prevailed in forty-seven grievances, the union prevailed in three of them, and the national committee deadlocked in fourteen of them or referred the grievance back to the parties. Id. U 5.
E. Challenged Policies
Plaintiffs generally do not dispute the existence of UPS’s formal ADA compliance policies including the “ten-step process” and other procedures set forth in the Manual. Instead, plaintiffs allege that unwritten, informal policies and procedures exist at UPS with respect to how requests for accommoda
1. The Alleged “100% Healed Policy”
a. Evidence from Managers and Former Managers Concerning the Existence of the “100% Release” or “No Restrictions” Policy
Plaintiffs argue that the evidence accompanying their brief establishes beyond peradventure that, notwithstanding its formal written policies, UPS has a de facto policy of requiring employees who have been off the job because of injury or long-term illness to present UPS with a full medical release, showing no permanent medical restrictions, before the employee will be permitted to return to work in any job in UPS’s workforce. Plaintiffs submit declarations from UPS managers and former managers in support of the existence of this so-called “100% healed policy.” See generally Pis.’ Decl.App. For example, plaintiffs submit the declaration of Patrick D’Angelo, who worked at UPS for approximately fifteen years, from 1987 through 2008, and spent several of those years in supervisory or management positions, including fourteen months as Charleston Center Manager, in support of the existence of the unwritten rule that nobody returns to work at UPS without a “100% medical release”:
UPS maintains an institutionalized policy of requiring a “100% medical release” or “full medical release without restrictions” from every injured employee before allowing them to return to their employment with the company. This unwritten policy was stressed over and over throughout my tenure as a UPS manager. This policy not only was in place and followed but was common knowledge among all employees and managers in every facility I worked at in South Carolina during my fifteen years with the company. To my knowledge, no one was ever allowed to return to work at UPS, once injured, without first providing this full release.
During our monthly manager meetings, attended by all of the managers and supervisors in our facility, where safety and the current list of injured employees was discussed, this “full release” policy was repeated and reinforced over and over. We were instructed that absolutely no employee would be allowed back to work without a full release. Additionally, I spoke several times to ... the South Carolina District Safety Manager regarding the individual cases of injured employees. [He] also has attended our manager meetings on occasion. He repeated and stressed over and over that “Nobody comes back to work at UPS without a full release.”
Declaration of Parick D’Angelo (“D’Angelo Deck”) Hit 2-4 (emphasis added). The declarations of other managers or former managers further support this statement. See, e.g., Declaration of David Balsis (“Balsis Deck”) K 2 (“During my [16 years as supervisor, 12 years as a manager], I had heard from my superiors repeatedly that a worker had to be 100% before he could come back.”); Declaration of John (Layne) Budd (“Budd Deck”) If 4 (“The policy I was trained to communicate to people requesting a change in their job duties due to a medical condition or problem was if you don’t have a 100% release then you don’t have a job until you get a full release____ The company trained management that, as a supervisor, you didn’t want anyone to be accommodated because it would lead to other accommodations and then you’d have all these new jobs.”); Declaration of Jim Fields (“Fields Deck”) 15 (“I was personally told that I had to be 100% or else there was no work for me, and I have witnessed countless workers being told by their managers that this was UPS’s policy, and I did receive training on the UPS ADA program, but nobody that I am aware of has ever told me or any other manager not to tell workers about the 100% release policy.”).
In addition, some managers submit that they were not, aware of the formal ADA
b. Evidence from Employees and Former Employees Concerning the Existence of the “100% Release” or “No Restrictions” Policy
Plaintiffs submit numerous declarations from UPS employees and former employees as evidence of the existence of the 100% healed policy. See, e.g., Cowley Decl. If 3 (“UPS refused to permit me to return to work, telling me that I had to be ‘100%’ healed to return and that I could not come back unless I had a ‘full-duty release’ allowing me to lift 70 pounds or more.”)(Alabama); Sanchez Decl. U 6 (“In July 2001, feeder supervisor ... told me I could not work unless I was 100%.”)(Arizona); Weber Decl. 115 (“UPS has refused to allow me to return ..., applying UPS’s long-standing rule that if you are not 100%, you cannot come back to work.”)(California); see generally Pis.’ Decl. App. These declarations arise in a wide variety of circumstances. Common to many, however, is the idea that there was a general understanding among a sizable number of UPS employees that they could not return to work after an injury unless they were “100% healed” or had no restrictions. Another recurring theme in the numerous declarations submitted to the court is the lack of awareness of or understanding about the formal ADA Compliance process among a sizable number of employees. See, e.g., Burke Decl. If 6 (“I have never seen any notices about the Americans with Disabilities Act posted anywhere on UPS premises.”).
c. Evidence from UPS’s Internal Emails
Plaintiffs submit to the court certain UPS internal emails which plaintiffs argue evi
For example, plaintiffs quote excerpted language from emails about checklist meetings for employees who have made requests and argue that these emails evidence attempts by UPS to “run people through” the ADA process without the requisite good faith the ADA requires. See Pis.’ App. Ex., Tab 13-14 (“Let me know if that changes anything” and the response “Yes. Please call for further discussion”). Plaintiffs point to a string of email communications between Liberty Mutual claims adjuster Albert Sarokin and UPS managers about Hohider’s application which plaintiffs argue demonstrate that UPS predetermined that it would not permit Hohider to return to work in any capacity although they would “put Mr. Hohider through the ADA process” in an attempt to force him to settle his workers’ compensation claim. See Pis.’ Ex.App., Tab 16.
Plaintiffs also submit to the court other emails produced by UPS which plaintiffs characterize as “frank communication about the true policy of non-accommodation” at UPS. See Pis.’ Br. at 13. These emails apparently discuss individual cases of UPS employees seeking accommodations under the ADA. For example, one email that plaintiffs paraphrase in their brief stated in part:
[Redacted name] says that someone told him since he was not 100% he would need to be terminated____ Anyway, he says now his restrictions are perma-nent____ I have no choice but to reinstate him and go through the ADA process to be sure we cover ourselves for any possible litigation____I explained to him not to get his hopes up for another lighter job but he can go through the process____ I suggested he start looking for other jobs outside UPS — he still wants to go through the ADA____
Pis.’ Ex.App., Tab 18 (August 20, 2003 email with names of sender and recipient redacted)(emphasis added). In response to that email, the following response was sent:
[SJince he did not work the required time to attain benefits, he is unable to file for disability. He asked a bunch of questions and gave me the impression he was going to try to come back to work. I told him that before that could happen he would have to have a full release from his Dr.
Id. (August 26, 2003 3:41 p.m. email with names of sender and recipient redacted)(emphasis added). Additionally, a response stated:
Please put a copy of this e-mail in his file. [Redacted name] is right he is probably not eligible for medical or disability benefits (pre-senior) but we have to go through the ADA process — he can not [sic] return without a release from his doctor who has reviewed the job functions which is [sic] in the ADA packet____
Id. (August 26, 2003 11:44 p.m. email with names of sender and recipient redacted)(emphasis added). Other emails similarly discuss “running employees through the ADA process.” See, e.g., Pis.’ Ex.App., Tab 20 (September 17, 2004 email with names of sender and recipient redacted) (“All, [name redacted] who is on comp and at MMI, has expressed interest in an easier job at UPS, including a supervision again. As per previous discussions with [name redacted] I be
d. Evidence from UPS’s Early Training Materials
Plaintiffs submit excerpts from UPS’s early training materials which plaintiffs suggest evidence that UPS admits that a 100% healed policy is illegal. See Pis.’ Ex.App., Tab 5 (the “Focus on Abilities presentation materials” discussed at note 18 infra) which appears to be training materials to accompany a live presentation to employees. These materials are not dated. UPS submits that these materials predate the 1999 and 2000 ADA procedure, and were superseded by subsequent training in connection with the ADA procedure. Lee Decl. IfH 14-15. Plaintiffs, however, point the court to language in the Focus on Abilities presentation materials and other training documents for managers as evidence that UPS used some version of the 100% healed policy in the past, and recognized that such a policy would violate the ADA:
Workers’ compensation is sometimes seen merely as an extension of the termination process. Even at UPS, we have, at times, declined to return injured employees to the job unless they were “100 percent.” The ADA makes this issue more crucial because of the potential for punitive damages (up to $300,000) for discriminating against a qualified individual with a disability____
Let’s look at an example. We have an employee who is injured on the job. According to the ADA, the employee’s condition is significant enough to constitute a permanent disability. However, we don’t consider the employee eligible to return to work unless fully recovered and medically released. By requiring this “all or nothing” medical release, we’re essentially refusing to discuss any reasonable accommodation that might allow this employee to work.
This is discrimination according to the ADA....
Pis.’ Ex.App., Tab 5 at 2-3 (emphasis added). In addition, plaintiffs point the court to a one-page document entitled “Disability Procedures” whose source is unclear. Plaintiffs aver that document was submitted to the Equal Employment Opportunity Commission (the “EEOC”) by UPS’s employee relations manager for the Laurel Mountain District in August 2001. Pis.’ Ex.App., Tab 7. This document, which is undated, appears to be a basic explanation of “disability procedures” at UPS, and states:
The 10-step “Reasonable Accommodation Process” is initiated when an employee claims to have a permanent disability that requires an accommodation. This process involves Human Resources, Labor Relations, Occupational Health and the local union. This process takes up to ten weeks and is implemented whether or not the employee becomes permanently disabled on or off the job.
“Temporary Alternate Work” may be offered to an employee who is unable to perform their regular job assignments due to an on-the-job injury....
Employees returning to work to their regular job must have a “Return to Work” slip form their treating physician that indicates “Full Duty / No Restrictions” or [be] able to perform the essential job functions____
Id. (emphasis added). Plaintiffs also submit a one-page document entitled “Response to Additional Questions” which states:
When an employee is injured on the job (worker’s compensation) or has a non-work related injury or illness (disability) we require them to furnish us with a Return to Work slip from their treating physician.*183 The Return to Work slip must be received ... before the employee’s return to work date. The Return to Work slip should include wording such as “No restrictions, full duty.”
Pis.’ Ex.App., Tab 8 (emphasis added). This form goes on to indicate that “Temporary Alternate Work” with restrictions may be available in the case of a work-related injury. Id. Plaintiffs argue that even if subsequent training took place after these training materials were phased out, other evidence of record demonstrates that the 100% healed policy which requires workers to obtain a full medical release before they can come back to work continued unabated regardless of the institution of UPS’s formal ADA compliance procedures and the publication and dissemination of the Manual.
e. Evidence from EEOC Determinations
Plaintiffs submit evidence from EEOC investigations into individual charges that employees at UPS cannot return to work unless they are “100%” or have a full release to return to duty. For example, plaintiffs submit an EEOC determination in the case of Michelle D. Miller. Pis.’ Ex.App., Tab 12 (“EEOC Miller Determination”). In the EEOC Miller Determination dated January 14, 2002, Eugene V. Nelson, Area Director, on behalf of the EEOC, stated:
The evidence revealed that [UPS]37 has a return to work policy, which requires employees to produce a no restrictions “return to work” slip. Policies that require a release to “full duty” without restrictions and that do not consider any type of reasonable accommodation, as here, are pre se violations of the Americans with Disabilities Act (ADA). Such policies ignore [UPS’s] obligation under the ADA to engage in the interactive process with the employee to determine whether it can provide a reasonable accommodation.
Id. at 1-2 (emphasis added). The EEOC Miller Determination further reported:
Based on this analysis, I have determined that the evidence obtained during the investigation establishes a violation of the Americans with Disabilities Act regarding [UPS’s] return to full duty/no restrictions policy.
Id. at 2. The EEOC Miller Determination concluded by informing both parties that the EEOC will contact the parties to discuss conciliation. Id.
Plaintiffs also submit an email from EEOC Investigator Frank E. Rodia to UPS’s outside litigation counsel concerning the EEOC Miller Determination. Pis.’ Ex.App., Tab 15 (“Rodia email”). The Rodia email was sent on Monday, March 4, 2002, and included as an attachment a draft of the revised conciliation agreement concerning the EEOC’s determination and twenty-six sites in Pennsylvania, West Virginia, and Maryland. Id. In the Rodia email, Investigator Rodia indicated his belief that “there may be a number of potential victims that have been or are being adversely effected [sic] by the incorrect information provided by these management officials due to their lack of knowledge of what it means to be a ‘qualified individual with a disability’ and their obligation to provide reasonable accommodations.” Id. Investigator Rodia noted:
During our investigation a number of witnesses who may have had ADA disabilities indicated that they made no attempt to go back to work despite their ability to return to work with restrictions because they had been advised by management that employees will not be considered for a return to work unless they can return to “full duty/no restrictions.”
Id.
Plaintiffs also submit other EEOC determinations and a consent decree as evidence that EEOC investigations and findings confirmed the application of the 100% healed policy in various UPS districts including the Desert Mountain District covering Arizona and New Mexico and in Pennsylvania, West Virginia, Illinois, and New York. Specifically, plaintiffs submit for the court’s consideration
In addition, plaintiffs submit the Consent Decree entered into between the EEOC and UPS with respect to litigation in the United States District Court for the District of Arizona. Pis.’ ExApp., Tab 25 (“UPS Desert Mountain District Consent Decree”). The UPS Desert Mountain District Consent Decree, signed by the United States District Judge on November 2, 2001, resolved litigation pending between the EEOC and UPS in the Desert Mountain District. Id. at 1-2. It set forth terms of general relief and corrective measures including that UPS was permanently prohibited from violating Title I of the ADA; that UPS would not retaliate against any person for participating in the EEOC investigation; that UPS would notify the EEOC before any suspension, termination, or demotion of a named individual; and that UPS would maintain policies and
UPS disputes the appropriateness of these EEOC determinations and Consent Decree as evidence in this case. See note 42 supra. UPS argues that a representative of the EEOC argued during proceedings in this litigation that the investigations and findings that the EEOC conducts are preliminary and incomplete; that these determinations are routinely excluded as evidence; and that the determinations and the Consent Decree deal with inherently individualized cases and should not be admitted as evidence of a widespread policy. These objections go to the admissibility and weight of this evidence at the merits stage of the litigation. The court can take note of the evidence and UPS’s objections to it and give both whatever weight is appropriate for reaching a decision on certification without making a finding that such evidence will be competent at the merits stage of the proceedings.
2. Other Evidence
In addition to the “100% healed policy,” plaintiffs also challenge various aspects of UPS’s use or implementation of its formal ADA compliance policy or “ten-step process,” UPS’s use of uniform job descriptions, UPS’s policies concerning an employee’s use of union seniority rights, UPS’s practice of withdrawing accommodations, and UPS’s treatment of persons who request accommodations. Plaintiffs cite various other evidence of record in support of their position that these related policies and practices violate the ADA and that the issues related to these matters are appropriate for classwide adjudication. Defendant counters plaintiffs’ evidence with its own rebuttal evidence. This evidence will be discussed in more detail in the discussion relevant to those matters.
Y. ADA CLAIMS AND PATTERN-OR-PRACTICE FRAMEWORK
A. Scrutiny of Specific Legal Claims Is Required to Decide Class Certification
The United States Court of Appeals for the Third Circuit in Wachtel clarified that Rule 23 “requires district courts to include in class certification orders a clear and complete summary of those claims, issues, or defenses subject to class treatment.”
Instead of falling prey to the pitfalls of “common practice,” a district court following Rule 23(c)(1)(B) and the directive in Wachtel must set forth a clear and complete summary of those claims, issues, or defenses subject to class treatment. A court cannot do so in a vacuum — engaging in superficial analysis of facts and issues and identifying which facts and issues appear to be, broadly
In this case, therefore, the court must determine whether certification is appropriate — that is, whether the Rule 23 requirements are met — in light of the actual requirements for litigating claims under the ADA. In addition, because the plaintiffs in this case invoke Teamsters and seek to litigate the claims in this lawsuit pursuant to the “pattern-or-practice” framework articulated in Franks, Teamsters, and Cooper, the court must decide as a threshold matter whether plaintiffs can litigate their claims pursuant to the pattern-or-practice framework. If the court determines that plaintiffs can proceed under the pattern-or practice framework, the court must analyze the certification issues with that framework in mind.
B. The Americans with Disabilities Act
Under the general rule established by Title I of the ADA, employers are prohibited from discriminating against qualified individuals with a disability because of that disability. Title 42, United States Code, section 12112(a) provides:
(a) General rule. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a); see Taylor v. Phoenixville School Dist.,
A “qualified individual with a disability” is defined by the ADA as a person “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2)(emphasis added). Taylor v. Pathmark Stores, Inc.,
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) Has [no such impairment] but is treated by a covered entity as having a substantially limiting impairment.
Williams v. Philadelphia Housing Auth. Police Dept.,
The ADA defines unlawful discrimination under the ADA to include specific practices. See 42 U.S.C. § 12112(b). Section 12112(b)(“Construction”) explains that the term “discriminate” under the statute includes the following practices:
(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;
(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or refer*187 ral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration—
(A) that have the effect of discrimination on the basis of disability; or
(B) that perpetuate the discrimination of others who are subject to common administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
(7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).
42 U.S.C. § 12112(b)(emphasis added). Plaintiffs’ policies claims in this case — including the claims relating to the 100% healed policy and the various reasonable accommodation policies — implicate the statute’s prohibition against discrimination in the form of failure to make reasonable accommodations.
1. Failure to Make Reasonable Accommodations; Failure to Engage in Interactive Process
Section 12112(b)(5) of the ADA explicitly provides that the term “discriminate” for the purposes of the ADA includes
(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities ... if such denial is based on the need of such covered entity to make reasonable accommodation____
42 U.S.C. § 12112(b)(5). In addition, applicable regulations and EEOC guidelines describe the kind of interactive process required under the ADA with respect to requests for reasonable accommodation. See Taylor,
The United States Court of Appeals for the Third Circuit and other United States Courts of Appeals have recognized that discrimination under the ADA can include failing to make reasonable accommodations for a plaintiffs disabilities under certain circumstances. Williams,
*188 The ADA specifies that an employer discriminates against a qualified individual with a disability when the employer does “not mak[e] reasonable accommodations to the known physical or mental limitations of the individual unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].”
Taylor,
In Williams, the court of appeals addressed an individual lawsuit brought pursuant to the ADA by a former police officer who was determined to be unable to carry a firearm as the result of a mental condition.
With respect to the elements of an individual claim for failure to make a reasonable accommodation, the court of appeals noted that:
To establish a prima facie case of discrimination under the ADA, a plaintiff must therefore show “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.”
Id. at 761 (quoting Taylor,
The court of appeals therefore analyzed the elements of proof required to establish an individual claim for failure to make a reasonable accommodation in Williams pursuant to the general elements of a prima facie case of ADA discrimination, refining the second element — “qualified status” — and third element — “adverse employment action resulting from discrimination” — in situations where an individual claim for failure to make a reasonable accommodation is alleged. Id. at 768-72.
With respect to “qualified status” in the failure to make a reasonable accommodation claim context the court of appeals stated:
The second element of Williams’s prima facie case of discrimination under the ADA requires him to show that he is a “qualified individual.” See [Deane v. Pocono Medical Center,142 F.3d 138 , 145 (3d Cir. 1998)]. As previously noted, a qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). “[A] disabled employee may establish a prima facie case under the ADA if s/he shows that s/he can*189 perform the essential functions of the job with reasonable accommodation and that the employer refused to make such an accommodation.” Skerski v. Time Warner Cable Co.,257 F.3d 273 , 284 (3d Cir.2001).
Id. at 768. In Williams, the police officer was seeking an accommodation in the form of a reassignment to a vacant position. Id. (citing 42 U.S.C. § 12111(9)(B)). In light of his “actual” and “regarded as” disability claims, the court of appeals held that to meet his litigation burden, he needed only to show that “(1) that there was a vacant, funded position; (2) that the position was at or below the level of the plaintiffs former job; and (3) that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation.” Id. at 770 (quoting Donahue v. Consol. Rail Corp.,
The court of appeals noted that “[i]f the employee meets his burden, the employer must demonstrate that [accommodating the employee in the form of a requested transfer] would cause unreasonable hardship.” Id. In that case, the court of appeals held that the record supported a finding that a transfer to the radio room was available, that the position was at or below his level, and that the plaintiff was qualified to perform the essential duties of that job with no further accommodation. Id. The court of appeals held that the plaintiff in Williams had established that there was a material dispute of fact as to whether he was a “qualified individual” under the ADA with respect to his failure to accommodate claim. Id.
With respect to the third element of proof — “adverse employment action resulting from discrimination” — in the failure to make a reasonable accommodation claim context the court of appeals explained its prior holdings that a failure to make a reasonable accommodation for a disabled and qualified employee constitutes discrimination under the ADA. Moreover, the court of appeals explained that an employer has a duty under the ADA to engage in an “interactive process” of communication with an employee requesting an accommodation so an employer will be able to ascertain whether there is a disability and, if so, the extent of the disability, and to thereafter assist in identifying reasonable accommodations if appropriate. Id at 771 (citing, inter alia, 29 C.F.R. § 1630.2(o)(3); Taylor
In Taylor, the United States Court of Appeals for the Third Circuit addressed in detail the kind of interactive process the ADA regulations require with respect to requests for reasonable accommodations. Id. at 311— 15. The court of appeals in Taylor recognized that an employer has an obligation to participate in the interactive process once it has notice that an employee may have a disability. Id. at 314. The court of appeals noted;
The ADA’s regulations state that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.”
Id. at 311 (quoting 29 C.F.R. § 1630.2(o)(3))(alterations in original). The court of appeals continued:
Similarly, the EEOC’s interpretive guidelines provide that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible,*190 interactive process that involves both the employer and the [employee] with a disability.”
Id. (quoting 29 C.F.R. Pt. 1630, App. § 1630.9 at 359)(alteration in original).
The court of appeals in Taylor reiterated its previous holding that “[b]ased on the regulation and interpretive guidelines, ... ‘both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.’ ” Id. (quoting Mengine,
An employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer... [B]oth parties bear responsibility for determining what accommodation is necessary ... “[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.”
Id. 312 (quoting Bultemeyer,
The court of appeals in Taylor (1) clarified what notice must be given to an employer to trigger the employer’s obligations under the interactive process; and (2) elaborated on the employee’s and employer’s duties once the interactive process comes into play. Id. at 312-18. In Taylor, an individual ADA case, the court of appeals held that viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that the employer school district in that case did not meet its burden to participate in good faith in the interactive process. Id. at 315.
The United States Court of Appeals for the Third Circuit ultimately concluded in Taylor that for an individual employee “[t]o show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.” Id. at 319-20 (citing Mengine,
It is noteworthy, however, that in Williams the court of appeals stated that “we have also made clear that a ‘plaintiff in a disability discrimination ease who claims that the defendant engaged in discrimination by failing to make a reasonable accommodation cannot recover without showing that a reasonable accommodation was possible.’ ”
Thus, “ ‘because employers have a duty to help the disabled employee devise accommodations, an employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations.’ ”
Id. (quoting Donahue,
This issue has important implications in the instant case: If plaintiffs cannot proceed pursuant to a pattern-or-practiee framework of proof, and instead must make out the elements of an individual claim of failure to make a reasonable accommodation, this issue “whether a reasonable accommodation is possible” cuts against certification under the Rule 23(a) prerequisites of commonality and typicality as well as the Rule 23(b)(2) requirement that the defendant treated the proposed class members on grounds generally applicable to the class.
2. Retaliation
In addition to prohibiting discriminatory adverse employment actions including the failure to make a reasonable accommodation in certain circumstances, the ADA prohibits retaliation against any individual who engages in protected activity under the ADA, including an individual who is not disabled. As noted in Williams,
The court of appeals has made clear that the ADA protects even individuals who are not disabled from retaliation for engaging in protected activity under the ADA. See Shellenberger,
C. “Pattern-or-Practice” Framework
In this case, plaintiffs characterize their lawsuit as a “pattern-or-practice” lawsuit to be litigated pursuant to the framework articulated in Teamsters. Under this characterization, plaintiffs’ claims would not be examined pursuant to the familiar elements required to prove individual ADA discrimination cases. See, e.g., Williams,
To understand the pattern-or-practice framework and its applicability to this case, the court must consider the three seminal Supreme Court decisions that impact the issues before this court: Franks v. Bowman Transportation Company,
While the pattern-or-practice framework often and appropriately is referred to as the “Teamsters framework” pursuant to the Supreme Court’s detailed articulation of its elements of proof in that case, Franks is the precursor to Teamsters and sheds light on the issues in this case concerning equitable relief in a Rule 23(b)(2) class action and the burden of proof in Rule 23(b)(2) pattern-or-practice class action cases. In Franks, the district court certified a Rule 23(b)(2) private-plaintiff class of African-American applicants and employees who sought employment with the defendant trucking company or a transfer to other departments within the company and alleged company policies constituted discrimination on the basis of race. Franks v. Bowman Transp. Co.,
On appeal, the United States Court of Appeals for the Fifth Circuit affirmed in part, reversed in part, and remanded. Franks v. Bowman Transp. Co.,
The court of appeals ultimately agreed with the plaintiffs that greater equitable relief than what was ordered by the district court was required. Id. The court of appeals held that, with respect to the exercise of seniority rights, present employees must be allowed to compete for jobs in other departments on the basis of full accumulated company seniority but that constructive seniority could not be created and awarded to applicants who are not employees, id. at 418; that affirmative hiring relief such as recruitment for potential African-American over-the-road drivers was warranted, id. at 420; that the record did not support a determination whether new training methods should be required, but remanded this issue for the district court, id. at 421; that the district court should retain jurisdiction and require periodic reports for a period of two years while remedial policies were implemented, id.; and, with respect to back pay, which the district court had denied to class members, that the district court should reconsider its determination in light of the principles set forth in the opinion, id. at 421-22.
The court of appeals disagreed with the district court’s determination concerning back pay as follows:
We do not agree that either Rule 23(b)(2) or Title YII prohibits back pay awards to non-named class members .... We vacate its decree insofar as it denies back pay to the class and remand for consideration of this issue.
Id. at 421 (citations omitted)(emphasis added). The court of appeals explained that Title VII specifically contemplated an award of back pay under certain circumstances:
The remedies authorized in Title VII specifically include back pay. As indicated above, the purpose of Title VII is to make the discriminatee whole and eliminate the effects of past discrimination as far as possible. Where the discriminatee has suffered economic injury in the form of lost wages, back pay is normally appropriate relief.
Id. Moreover, the court of appeals concluded that Federal Rule of Civil Procedure 23(b)(2) did not prohibit back pay:
Nor does Fed.R.Civ.P. 23(b)(2) prohibit back pay awards to non-named class members in a class action under that subdivision of the rule____ It is true that Rule 23(b)(2) refers only to “injunctive relief or corresponding declaratory relief’ and “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Advisory Committee’s Notes, 1966,39 F.R.D. 69 , 102 (emphasis added). But this Title VII action cannot be characterized as one seeking “exclusively or predominantly money damages.” As we have pointed out above, back pay awards under Title VII (and under § 1981 to the extent that a § 1981 corresponds to a Title VII action) are not damages, as such, but an integral part of the equitable remedy. Even if back pay is considered as equivalent to damages under Rule 23, in this case back pay is not the exclusive or predominant remedy sought.
Id. at 422 (italics in original, bold emphasis added). The court of appeals determined that upon remand the district court should “devise an appropriate procedure for adjudicating the claims of non-named class members for back pay awards.” Id.
The Supreme Court granted certiorari in Franks to decide the limited question whether African-American non-employee applicants who applied for and were denied over-the-road driving positions with the defendant trucking company because of race could be awarded seniority status retroactive to the dates of their employment applications.
In the course of explaining its disagreement with the district court’s reference to the lack of evidence regarding individual unnamed class members, the Supreme Court had the occasion to address the implications of challenging a discriminatory pattern and practice as part of a Rule 23(b)(2) class action and when individual issues would arise in such a case:
Generalizations concerning such individually applicable evidence cannot serve as a justification for the denial of relief to the entire class. Rather, at such time as individual class members seek positions as [over-the-road] drivers, positions for which they are presumptively entitled to priority hiring consideration under the District Court’s order, evidence that particular individuals were not in fact victims of racial discrimination will be material.
Id. at 772,
But petitioners here have carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination. Cf. McDonnell Douglas Corp. v. Green, [411 U.S. 792 ,93 S.Ct. 1817 ,36 L.Ed.2d 668 ] (1973); Baxter v. Savannah Sugar Rfg. Corp.,495 F.2d 437 , 443-444 (5th Cir.), cert. denied, [419 U.S. 1033 ,95 S.Ct. 515 ,42 L.Ed.2d 308 ] (1974). Only if this burden is met may retroactive seniority if otherwise determined to be an appropriate form of relief under the circumstances of the particular ease be denied individual class members.
Id. at 772-73,
2. International Brotherhood of Teamsters v. United States
In Teamsters, the United States brought an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against an employer and a union alleging that the employer had engaged in a pattern or practice of racial and ethnic discrimination and that the union had agreed to create and maintain a seniority system that perpetuated the effects of that discrimination. Teamsters,
The United States Court of Appeals for the Fifth Circuit upheld the district court’s finding that the company and the union had violated Title VII; the court of appeals, however, (1) rejected the district court’s attempt to divide the class into subclasses; (2) ordered retroactive seniority relief based upon a qualification date formula; and (3) modified the district court’s order regarding the rights of class members to fill future vacancies and compete with laid-off employees. Id. at 333-34,
Relevant to the case at hand, in Teamsters the Supreme Court articulated the pattern- or-practice framework to establish a prima facie case of discrimination under Title VII which has since been expanded to discrimination in other contexts. See, e.g., Davoll v. Webb,
In Teamsters the Supreme Court specifically held that a government plaintiff in a Title VII pattern-or-practice case need not follow the familiar McDonnell Douglas order and allocation of proof used in a private, non-class action challenging employment discrimination. Id. at 357-58,
The Supreme Court then favorably cited and relied upon its earlier decision in Franks,
The Franks case thus illustrates another means by which a Title VII plaintiffs initial burden of proof can be met. The class there alleged a broad-based policy of employment discrimination; upon proof of that allegation there were reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference.
Teamsters,
The holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party’s superior access to the proof____These factors were present in Franks. Although the prima facie ease did not conclusively demonstrate that all of the employer’s decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer’s*198 evaluation of the applicant’s qualifications, the company’s records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decision-making process.
Id. at 359 n. 45,
In Teamsters the Court noted that “[although not all class actions will necessarily follow the Franks model, the nature of a pattern-or-practice suit brings it squarely within our holding in Franks.” Id. at 360,
The plaintiff in a pattern-or-practice action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers .... At the initial, “liability” stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern-or-practice by demonstrating that the Government’s proof is either inaccurate or insignificant.
Id. (citations omitted)(emphasis added). The Court highlighted in a footnote that “[t]he point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.” Id. at 360 n. 46,
If an employer fails to rebut the inference that arises from the Government’s prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy. Without any further evidence from the Government, a court’s finding of a pattern-or-practice justifies an award of prospective relief. Such relief might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions and file periodic reports with the court, or any other order “necessary to ensure the full enjoyment of the rights” protected by Title VII.
Id. at 360-61,
The Court also addressed the issue of individual relief in a pattern-or-practice case as follows:
When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.
Id. (emphasis added). The Supreme Court rejected the petitioners’ contention in Teamsters that if the plaintiff has not, in the course of proving a pattern-or-practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, “remedial” stage of trial. Id. at 361-62,
That basic contention was rejected in the Franks ease. As was true of the particular facts in Franks, and as is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial.
Id. at 361-62,
Therefore, “[t]he proof of the pattern-or-practice supports an inference that any par
The Court in Teamsters, clarified that because the Court had determined that the district court and court of appeals were not in error in finding that the government had proved a systemwide pattern and practice of racial and ethnic discrimination on the part of the company, “[o]n remand, therefore, every post-Aet minority group applicant for a line-driver position will be presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant in a line-driver job was not based on its policy of discrimination.” Id. at 362,
It is worth highlighting one significant difference between Franks and Teamsters. In Franks, the Supreme Court focused on the burden-shifting analysis applicable to individual relief requested by applicants for employment and employees seeking transfer within the company. In addition to discussing the appropriateness of broad injunctive and declaratory relief, the Court in Franks addressed the shifting of the burden of proof relating to individuals seeking seniority rights and back pay, who were applicants for employment and or sought transfer within the company — both of whom constituted “applicants” seeking some employment opportunity. See Part V.C.l supra. In Teamsters, the Court commented on its holding in Franks:
We held that the trial court had erred in placing this burden on the individual plaintiffs [to show that the individual was qualified for the job sought and that a vacancy was available]. By “demonstrating the existence of a discriminatory hiring pattern and practice” the plaintiffs had made out a prima facie case of discrimination against the individual class members; the burden therefore shifted to the employer “to prove that individuals who reapply were not in fact victims of previous hiring discrimination.”
Id. at 359 (quoting Franks,
In Teamsters, the Court made clear that “nonapplicants,” as well as applicants, can be members of a class; however, nonapplieants are situated differently from “applicants” with respect to the burden-shifting analysis applicable to individual relief such as seniority rights and back pay. The Court held:
We now decide that an incumbent employee’s failure to apply for a job is not an inexorable bar to an award of retroactive seniority. Individual nonapplicants must be given an opportunity to undertake their difficult task of proving that they should be treated as applicants and therefore are presumptively entitled to relief accordingly-
Id. at 363-64,
The burden of proof, however, will not shift as it does for applicants.
A nonapplicant must show that he was a potential victim of unlawful discrimination. Because he is necessarily claiming that he was deterred from applying for the job by the employer’s discriminatory practices, his is the not always easy burden of proving that he would have applied for the job had it not been for those practices____ When this burden is met, the nonapplicant is in a position analogous to that of an applicant and is entitled to the presumption [shifting the burden of proof to the employer].
Id. at 367-68,
must bear the burden of coming forward with the basic information about his qualifications that he would have presented in an application. As in Franks, ... the burden then will be on the employer to show that the nonapplicant was nevertheless not a victim of discrimination. For example, the employer might show that there were other, more qualified persons who would have been chosen for a particular vacancy, or that the nonapplicant’s stated qualifications were insufficient.
Id. at 369 n. 53,
If plaintiffs in this case seek individual relief for class members in this class action, see Part VII.B.2 supra, who are akin to “applicants,” such as those who can show they attempted to return to work with or without an accommodation and if there is a finding of liability, those individuals arguably will be entitled to a presumption, which UPS can rebut, that they have been discriminated against. The burden will be on UPS to show that those individuals are not entitled to individual relief; for example, by demonstrating that an individual could not perform a job even with an accommodation. On the other hand, with respect to “nonapplicants,” such as those employees who were absent from work due to medical reasons and did not attempt to return to work or otherwise seek an accommodation, the burden arguably will be on the individual to show that he or she was capable of working with or without an accommodation and that he or she would have attempted to return to work. Plaintiffs in this case allege that the existence of the 100% healed policy, the implementation of UPS’s formal ADA compliance procedures, such as the “ten-step process,” and the pre-textual job descriptions discourage employees from going through official channels to seek an accommodation. It is not clear at this time whether the class was intended to not only include individuals who in fact attempted to return to work, but also to include those employees who did not attempt to return to work. At the remedial stage in the proceedings if it has been determined that UPS has a discriminatory policy in violation of the ADA, the parties will need to brief whether those who did not attempt to return to work are akin to nonapplicants as contemplated by Teamsters and should be included as members of the class. In other words, it will need to be determined whether the “applicant” versus “nonapplicant” distinction is actually implicated in this case.
In Cooper the Supreme Court made clear that “[although Teamsters involved an action litigated on the merits by the Government as plaintiff under § 707(a) of [Title VII], it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action.” Cooper,
In Cooper, the Supreme Court addressed the narrow question whether a judgment in a class action determining that an employer did not engage in a general pattern or practice of racial discrimination against the certified class of employees precluded a class member from maintaining a subsequent civil action alleging an individual claim of racial discrimination against the employer.
The district court subsequently held a trial and found that the Bank had engaged in a pattern and practice of discrimination from 1974 through 1978 by failing to afford African-American employees opportunities for advancement and assignment equal to opportunities afforded white employees in certain pay grades, but found that otherwise there did not appear to be a pattern or practice of discrimination pervasive enough for the court to order relief. Id. at 871-72,
After the trial, another group of individual plaintiffs moved to intervene, the so-called “Baxter petitioners,” alleging that each of them had been denied a promotion for discriminatory reasons. Id. With respect to one of the Baxter petitioners, the district court denied the motion because that individual was a member of the class for which relief had been ordered and therefore her rights would be adjudicated in the second stage of proceedings to be held on the question of relief. Id. With respect to the other five Baxter petitioners, the district court denied the motion for a different reason, holding that because all of them were employed in jobs above the pay grades deemed at the trial to be problematic, they were not entitled to any benefit from the court’s ruling with respect to discrimination in those lower pay grades. Id. The district court held that, because it had found no proof of elasswide discrimination in these higher pay grades during the Cooper trial, the Baxter petitioners were not entitled to participate in the second stage of proceedings in that ease, although the court noted that they could file a separate action. Id.
These individuals subsequently did file a separate action against the Bank alleging a denial of promotions based upon race (the “Baxter litigation”); the Bank moved to dismiss on the ground that they were bound by the determination in the class action that there was no proof of discrimination in the higher pay grades; and the district court denied the motion to dismiss but certified the
The United States Court of Appeals for the Fourth Circuit reversed the district court’s judgment on the merits in the Cooper litigation, concluding that there was insufficient evidence to establish a pattern or practice of racial discrimination in the pay grades at issue in that case, and that two of the intervening individual plaintiffs had not been discriminated against on account of race. Id. (citing EEOC v. Federal Reserve Bank of Richmond,
In the course of its review of the limited question whether the judgment concerning the Cooper class action was dispositive of the individual claims pursued by the Baxter individuals, the Supreme Court reviewed the differences between the “[cjlaims of two types” at issue in the Cooper litigation — individual discrimination claims and pattem-or-prac-tice class action discrimination claims. Id. at 873-80,
The Supreme Court in Cooper, citing Franks stated “we held that demonstrating the existence of a discriminatory pattern or practice established a presumption that the individual class members had been discriminated against____” Id. (citing Franks,
Proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance of the evidence that “racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.”
Id. at 875-76,
The Supreme Court’s decision in Cooper is particularly instructive for this case for two reasons. First, in Cooper the Supreme Court made clear that private plaintiffs could litigate claims of discrimination pursuant to the pattern-or-practice framework set forth in Franks and Teamsters:
Although Teamsters involved an action litigated on the merits by the Government as plaintiff under § 707(a) of [Title VII], it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action.
Id. at 876 n. 9,
The crucial difference between an individual’s claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual’s claim is the reason for a particular employment decision, while “at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.”
Id. at 876,
The Supreme Court explained that this distinction was crucial to its holding in the seminal Falcon case discussed in detail in Part III supra, where the Supreme Court stated that “[conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims.” Id. at 876-77,
The Supreme Court in Cooper, referring to its decision in Falcon, “pointed out that if ‘one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential company-wide class action.’ ” Id. at 877,
We further observed:
“In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer.”
Id. (quoting Falcon,
Falcon thus holds that the existence of a valid individual claim does not necessarily warrant the conclusion that the individual plaintiff may successfully maintain a class action. It is equally clear that a class plaintiffs attempt to prove the existence of a company-wide policy, or even a consistent practice within a given department, may fail even though discrimination against one or two individuals has been proved. The facts of this case illustrate the point.
Id. at 877-78,
The Court of Appeals was correct in generally concluding that the Baxter petitioners, as members of the class represented by the intervening plaintiffs in the Cooper litigation, are bound by the adverse judgment in that case. The court erred, however, in the preclusive effect it attached to that prior adjudication. That judgment (1) bars the class members from bringing another class action against the Bank alleging a pattern or practice of discrimination for the relevant time period and (2) precludes the class members in any other litigation with the Bank from relitigating the question whether the Bank engaged in a pattern and practice of discrimination against [African-American] employees during the relevant time period. The judgment is not, however, dispositive of the individual claims the Baxter petitioners have alleged in their separate action.
Id. at 880,
After Cooper, therefore, it is manifest that private plaintiffs are not barred
In this case, if plaintiffs litigate pursuant to the pattern-or-practice framework they must, to establish a prima facie case at the initial liability stage, prove that a discriminatory UPS policy existed — not that each person for whom they are seeking relief was a victim of the allegedly discriminatory policy. If plaintiffs establish their prima facie case, the burden would then shift to defendant to rebut the existence of the policy. If defendant were to fail to rebut the prima facie case, broad-based prospective injunctive or declaratory relief potentially would be warranted. If plaintiffs were permitted to seek individual relief in addition to broad-based injunctive or declaratory relief, the court likely would need to conduct additional proceedings with respect to the propriety and scope of individual relief.
4. Applicability of pattern-or-practice framework to private-plaintiff ADA lawsuits
As noted previously, since Franks, Teamsters, and Cooper were decided, the pattern- or-practice method of proof has been held to apply in the context of private class action lawsuits as well as lawsuits brought by a government plaintiff, and beyond the context of Title VII in the context of the ADA. See Cooper,
The court notes that UPS has argued throughout this litigation that ADA cases are not appropriate for class action treatment because of the inherently individualized issues that arise under the ADA. There is some support for this general sentiment:
In most circumstances, the ADA does not lend itself to class actions by a group of persons with disabilities alleging violations of the statute’s employment provisions. Because the Act emphasizes the individual assessment of the ability of a person to perform a specific job, with or without reasonable accommodation, the focus of the ADA’s employment provisions is upon individualized inquiries and determinations.
5 Jonathan R. Mook, Labor and Employment Law § 142.02[7](c) (2007)(citing Sokol v. New United Motor Manufacturing,
The need for individualized determinations, however, has not totally precluded courts from certifying class actions based on claims of disability discrimination. Where the challenged conduct is a specific policy that allegedly discriminates in a broad-based manner against class members, class certification may be appropriate.
Id. (citing Hendricks-Robinson v. Excel Corp.,
There is no legal authority supporting a categorical prohibition against litigating ADA claims pursuant to a Rule 23(b)(2) class action utilizing the Franks, Teamsters and Cooper pattern-or-praetice framework. Although much of defendant’s opposition to class certification is driven by defendant’s general arguments that plaintiffs cannot litigate their ADA claims pursuant to the pattern-or-practice framework, and that ADA claims are generally inappropriate for class resolution, defendant does not identify for the court any legal authority with such broad implications.
Two decisions that deal with some of these issues warrant mention. First, the parties dispute the importance and applicability of the Bates v. United Parcel Services, Inc. (“Bates ”) litigation. See Bates v. United Parcel Service,
This court does not find the decision by the district court or court of appeals in Bates to be particularly insightful for this case. While this court has arrived at the same
Second, although not discussed in detail by the parties, the court notes that in the Davoll line of decisions out of the Tenth Circuit which involved disabled police officers and the City of Denver, the district court and court of appeals in those decisions dealt with many of the same issues concerning the applicability of the pattern-or-practice framework to ADA cases that are present in this case, although subject to a different procedural posture in light of the fact that the litigation on appeal involved consolidated proceedings resulting from a lawsuit initiated by the United States government as a plaintiff against the City of Denver and a lawsuit initiated by a class of former Denver police officers including an individual on whose behalf the government initiated its lawsuit. Davoll v. Webb,
Prior to the consolidated appeal, the district court in Davoll denied the private plaintiffs’ motion for certification and bifurcation largely because the district court, without discussing the differences between Rule 23(b)(2) and Rule 23(b)(3) class definitions, found that the proposed class definition was not sufficiently definite for the court to determine membership in the class. Davoll v. Webb,
The United States does not quarrel with Defendants’ view that a highly individualized assessment is necessary in order to determine a potential victim’s status as a “qualified individual with a disability” and that it must show that each person on whose behalf it is seeking relief is, in fact, a “qualified individual with a disability,” However, it disagrees with Defendants about the point in time at which such a showing must be made. It argues evidence that a particular person is a “qualified individual with a disability”*207 is necessary not to show liability, but to show that such person is among those individuals for whom relief may be sought, i.e., is a member of the class of victims of discrimination. Such issue, the United States argues, is always resolved at the remedial stage of a bifurcated action, not at the liability stage.
Id. at 1309 (citing Teamsters,
[T]he Tenth Circuit has followed the distinction between the burdens of individual plaintiffs in a Title VII ease and the United States’ burden of proof in a pattern or practice case:
In a true “pattern and practice” suit, the government is not required to show individual discrimination with respect to each person for whom it seeks relief when establishing its prima facie case. In seeking to protect the public’s interest, it is sufficient that the government show specific evidence of company discrimination regarding some of the employees that it seeks to represent, and that a broad-based policy of employment discrimination existed.
Id. (quoting Coe v. Yellow Freight System, Inc.,
On appeal, the United States Court of Appeals for the Tenth Circuit affirmed in part and reversed and remanded in part elements of those decisions by the district court. Davoll v. Webb,
We understand plaintiffs’ concern that by denying their class certification motion and upholding the United States pattern and practice action, this decision may be interpreted as holding that only the government can bring a class-wide ADA employment suit. Such an interpretation would be unfounded. Given the deferential standard by which we review class certification, it is possible the district court could have certified the class in its discretion, or could have modified the proposed definition so that it was sufficiently definite. Of course, we do not decide those questions as our holding here is limited to the issue directly before us.
At the same time, we do note that a pattern and practice action brought by the United States pursuant to section 707 of Title VII, 42 U.S.C. § 2000e-6, is not subject to the requirements of Fed.R.Civ.P. 23.
Id. n. 20 (citations omitted)(emphasis added). The court of appeals thus explicitly left open the possibility that, in some circumstances, private plaintiffs can bring class-wide ADA employment lawsuits pursuant to the pattern-or-practice framework of proof, implying that in order to do so private plaintiffs
In addition, the court of appeals upheld the district court’s use of the Teamsters pattern- or-practice framework in Davoll with respect to the government’s ADA pattern-or-practice case. Id. at 1147-48. The court of appeals explained:
Just as [McDonnell Douglas Corp.] sets forth the elements of a prima facie case for an individual seeking relief under Title VII, White v. York Int’l Corp.,45 F.3d 357 , sets forth the elements of a prima facie case for an individual seeking relief under the ADA in this circuit, id. at 360-61. And, just as the Court recognized that the specifics of the McDonnell Douglas framework are inapplicable in certain factual situations, including when the government has brought a broad-based pattern and practice action, see Teamsters at 358-60,431 U.S. 324 ,97 S.Ct. 1843 ,52 L.Ed.2d 396 , it is clear that White does not articulate the elements of a prima facie case when the government “seek[s] to protect the public’s interest” through a pattern and practice action, Coe,646 F.2d at 449 n. 1. Teamsters sets forth a logical and efficient framework for allocating burdens of proof in pattern and practice employment discrimination suits, and we approve of the district court’s use of that framework in this case. See United States v. Morvant,843 F.Supp. 1092 , 1096 (E.D.La.1994).
Id. at 1148 (emphasis added); see E.E.O.C. v. Murray,
For all of the reasons set forth above, this court concludes that plaintiffs in this case are not barred from proceeding pursuant to the pattern-or-practice framework set forth in Teamsters because they are private plaintiffs or because they are litigating claims pursuant to the ADA and not Title VII. Plaintiffs, therefore, will be allowed to litigate their pattern-or-practice claims for injunctive relief pursuant to the elements of a prima facie case set forth in Teamsters and will not be required to make out the elements for an individual ADA claim if some or all of their claims are certified for declaratory and in-junctive relief.
Although an issue of first impression, this conclusion is not pathbreaking. This result is compelled by the Supreme Court’s decisions in Franks, Teamsters, and Cooper and because the ADA incorporates the remedies afforded to plaintiffs litigating claims pursuant to Title VII. 42 U.S.C. § 12117(a). Moreover, the few decisions analyzing government-plaintiff ADA pattern-or-practice lawsuits support this decision. See Davoll,
VI. CLASS DEFINITION
A district court has broad discretion to determine whether a class description is sufficiently definite. See Davoll,
Defendant argues that plaintiffs’ proposed class definition is unworkable because it requires a host of individualized determinations to determine membership in the class. For example, defendant argues that the proposed class definition is untenable because it includes the criteria, among others, that a class member be “disabled as defined under the [ADA]” and have been “harmed as a result of UPS’s policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA.” In light of defendant’s objections to the class definition, the court and the parties at the hearing on class certification discussed a modified version of the class definition. See Jan. 27, 2006 Tr. at 34-41, 44-45. In particular, plaintiffs’ counsel agreed that essentially plaintiffs sought certification of a class comprised of “people who were off work because of medical reasons, whether Workers’ Comp, disability or otherwise, who presented to come back to work and were refused.” Id. at 38. The court, therefore, could modify the proposed class definition to exclude the arguably problematic criteria that class members be individuals who “are disabled as defined under the Americans with Disabilities Act (‘ADA’)” and “were harmed as a result of UPS’s policies, practices, and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS’s workforce.” This exclusion would make determining membership in the class less problematic by removing the criteria which require what are arguably legal conclusions and may entail individualized inquiries.
It is incumbent on the court in exercising its discretion to modify the class definition, however, to distinguish between class definitions in the context of Rule 23(b)(2), which plaintiffs invoke in this ease, and Rule 23(b)(3), where mandatory notice and opt-out procedures entail more stringent standards for the class definition. In Yaffe v. Powers,
The most basic error committed by the district court was in applying the criteria*210 set out in subdivision (b) of Rule 23 cumulatively rather than alternatively. In holding that a class should not be certified because its members had not been sufficiently identified, for example, the court applied standards applicable to a subdivision (b)(3) class rather than to a subdivision (b)(2) class.
Id. The court of appeals explained:
Although notice to and therefore precise definition of the members of the suggested class are important to certification of a subdivision (b)(3) class, notice to the members of a(b)(2) class is not required and the actual membership of the class need not therefore be precisely delimited.
Id. (emphasis added). Moreover,
[i]n fact, the conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often “incapable of specific enumeration”.
Committee’s Notes to Revised Rule 23, 3B Moore’s Federal Practice 1123.01 [10-2] (2d ed.1969).
Id. (emphasis added).
In Rice v. City of Philadelphia,
Other courts have adopted similar reasoning. In Midwest Community Council, Inc. v. Chicago Park District,
[b]ecause individual class members must receive the best notice practicable and have an opportunity to opt out, and because individual damage claims are likely, Rule 23(b)(3) actions require a class definition that will permit identification of individual class members, while Rule 23(b)(1) or (b)(2) actions may not____
____There is no need to identify every individual member at the time of certification of a Rule 23(b)(2) class action for injunctive relief as long as the court can determine at any given time whether a particular individual is a member of the class.
Man. Compl. Litig. § 21.222 at 270 (footnotes and citations omitted); see id. § 32.42 (“Employment Discrimination;” “Class Actions”) at 584 (“Less precision is required in the definition of a Rule 23(b)(2) class.”). With respect to Rule 23(b)(2) classes seeking declaratory or injunctive relief, therefore:
Generally speaking, then, the plaintiffs’ counsel may rely on the rule of thumb that it is proper and desirable to define a class, in an action seeking to enforce a legal duty owed by the defendant to a class of persons generally, to encompass the entire class of persons affected. If in doubt concerning specific language, it is proper to generalize the class definition by referring to a common class characteristic possessed by the named plaintiff with respect to the legal issues in the controversy, and by alleging that the action can be brought on behalf of those similarly situated. Amorphous class definitions, in an action seeking declaratory or injunctive relief, may properly be utilized to describe the class of affected persons.
Newberg § 6:15 (“Class definitions in suits for declaratory or injunctive relief’)(footnotes and citations omitted) (emphasis added).
The difference between class definitions for class actions seeking predominantly declaratory or injunctive relief under Rule 23(b)(2) and those seeking money damages under Rule 23(b)(3), therefore, depends upon the conduct alleged and the relief sought as well as the notice and opt-out procedures, if any, that follow from that alleged conduct and relief. In this case, with respect to the relief that plaintiffs seek in the form of broad injunctive or declaratory relief, plaintiffs’ proposed class definition can be modified as follows to address defendant’s objections and to focus on objective standards related to the alleged discriminatory conduct at issue:
Those persons throughout the United States who:
(i) according to the records of UPS, its agents and contractors, have been employed by UPS at any time since May 10, 2000, including those employees who were absent from work and were receiving either workers’ compensation or short or long term disability insurance benefits; and
(ii) have been absent from work because of medical reasons; and
(iii) (A) did not return to work by reason of UPS’s alleged 100% healed policy; or
(B) did not return to work by reason of UPS’s allegedly discriminatory implementation of its formal ADA compliance policy; or
(C) did not return to work by reason of the allegedly discriminatory use by UPS of uniform pretextual job descriptions.
Excluded from the Class are all presently working UPS management employees with*212 supervisory authority over the formulation or implementation of the UPS policies and practices alleged in this action to violate the ADA.
This class definition includes three putative subclasses, as set forth in (iii)(A) — (C) above.
VII. CLASS CERTIFICATION REQUIREMENTS
A. Rule 23(a) Prerequisites
The court finally will consider the Rule 23 requirements in proper focus in light of the factual and legal landscape surveyed above. As previously stated, to be certified, a class must satisfy the four requirements of Federal Rule of Civil Procedure 23(a): (1) numer-osity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a). Rule 23(a) specifically provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (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). The United States Court of Appeals for the Third Circuit Court has explained that the requirements of Rule 23(a) are meant to ensure that class action treatment is necessary and efficient and that it is fair to absentees under the particular circumstances of a case. Baby Neal,
1. Numerosity
Rule 23(a)’s numerosity requirement focuses on the necessity of class action treatment where the class is so numerous that joinder of all members is impracticable. See Fed.R.Civ.P. 23(a)(1). It is difficult to predict definitively the size of the proposed class. At the hearing on class certification, plaintiffs asserted that UPS produced in discovery computer runs that it shares with the Liberty Mutual Insurance Company, its workers’ compensation insurance carrier, which show that between May 1, 2000, and February 1, 2005, there were 3,629 employees absent from work for more than thirty days on workers’ compensation in the five sample districts. See January 27, 2006 Tr. at 19. Because these five sample district represent approximately 10% of UPS’s domestic workforce, plaintiffs extrapolated from this data that there are potentially 36,290 class members, although there could be more or less than that number. Id.
In addition, UPS itself presented data about ADA accommodations made at UPS which was gathered from UPS’s ADA Request Files and from human resource managers in the five sample districts. Williams Decl. «13-6. This data shows that in the five sample districts during the relevant time period of approximately four and one-half years UPS received 481 requests for accommodation that resulted in the opening of a Request File. Id. H 6. Of these 481 requests, UPS submits that 233 requests (approximately 48%) were considered withdrawn; 47 requests (approximately 10% of the total number of requests and approximately 19% of the 248 requests not deemed to be withdrawn) resulted in the offer of an ADA accommodation; and, by inference, 201 requests (approximately 42% of the total number of requests and approximately 81% of the requests not deemed to be withdrawn) did not result in the offer of an ADA accommodation. Id. H1Í 6-7; see id., Exs. A-D.
While no number definitively establishes numerosity, a proposed class as large as this one, under either party’s calculus, is sufficiently numerous for joinder to be impracticable. As the,United States Court of Appeals for the Third Circuit has explained:
On the subject of how many is enough, Professor Moore has written “While the attitude taken towards a given number may vary, each opinion reflects a practical judgment on the particular facts of the case. Thus no hard and fast number rule can or should be stated, since ‘numerosity’ is tied to ‘impracticability’ of joinder under the specific circumstances. Nevertheless, some general tendencies can be observed. While there are exceptions, numbers under twenty-one have generally been held to be too few. Numbers between twenty-one and forty have evoked mixed responses and again, while there are exceptions, numbers in excess of forty, particularly those exceeding one hundred or one thousand have sustained the requirement.”
Weiss v. York Hosp.,
UPS’s argument that plaintiffs cannot meet their burden to show numerosity consists of a reiteration of their argument that the class definition, as initially proposed, is fatally flawed. That is, defendant argues that the proposed class is not readily ascertainable and is thus unworkable. UPS reasons that therefore plaintiffs cannot meet their burden to show numerosity — i.e., that joinder is impracticable. This argument, however, is a non sequitur in light of the requirements for Rule 23(b)(2) classes and
In addition to the computer runs, plaintiffs adduced evidence in the form of declarations, deposition testimony, and documentary evidence including letters and emails all of which contain testimonials and other evidence that suggests that numerous individuals are potential members of the class. UPS itself has produced evidence showing numerous formal ADA requests were denied after a Request File had been opened, and plaintiffs allege that in many cases no formal Request File was opened in the first place. In light of the record before the court, plaintiffs have presented sufficient evidence for this court to conclude that joinder is impracticable and that the numerosity prerequisite to certification is met in this case. This finding with respect to numerosity applies to all of the claims alleged by plaintiffs.
2. Commonality
The commonality requirement set forth in Rule 23(a) is satisfied if the named plaintiff shares at least one question of fact or law with the grievances of the prospective class. Baby Neal,
In this case, much of the dispute between the parties focuses on whether plaintiffs can meet commonality. Plaintiffs argue generally that commonality is met because they have presented evidence of uniform courses of conduct that UPS subjected all class members to and these are subject to common proof in a single trial, primarily relying upon the holding of the United States Court of Appeals for the Third Circuit in Chiang. See Chiang,
a. 100% Healed Policy Claim
The court finds that plaintiffs met Rule 23(a)’s commonality requirement with respect to the 100 % healed policy claim. While the court need not make a finding that the alleged 100% or full release policy exists for merits purposes, the court finds that sufficient evidence has been adduced by plaintiffs to support the finding that the named plaintiffs share at least one question of fact or law with the grievances of the prospective class with respect to the alleged 100% healed policy. For example, whether the alleged 100% or full release policy exists at all is a common question that can be proved or dis
Plaintiffs have adduced during class discovery evidence from managers and former managers at UPS concerning their direct knowledge of the existence of the 100% medical release or full medical release policy, see e.g., D’Angelo Deck HU 2-3, Balsis Deck 112, Budd Decl.114, and their varying degrees of awareness about the formal ADA compliance process at UPS, see e.g., Balsis Deck H2, Fields Deck H 5; evidence from numerous employees and former employees at UPS concerning their experiences being told variations on the theme that they could not come back to work unless they were “100%” or had full medical release, see e.g., Cowley Deck If 3, Sanchez Deck 116, Weber Deck U 5; evidence from UPS’s early training materials; evidence from various EEOC investigations into individual charges of discrimination which include commentary or findings relating to the alleged 100% healed policy at UPS; and other evidence challenging the implementation of UPS formal ADA compliance policy. See Part IV supra. Evidence of this nature, although sometimes anecdotal and necessarily related to individual experiences and circumstances, is relevant to whether there exists a widespread policy of requiring returning employees to obtain a 100% or full release before returning to work — notwithstanding the formal procedures requiring the opening of a Request File and everything that follows as part of the ten-step process.
Defendant also can point to common proof to disprove plaintiffs’ allegation that the 100% healed policy exists at the merits stage of the litigation. For example, defendant already adduced considerable evidence during class certification discovery concerning development, implementation, and training related to its formal compliance procedures; evidence that these procedures are being followed; evidence that ADA accommodations and other avenues of accommodation are being pursued at UPS; and other evidence bolstering its position that it has developed formal procedures, and implements these procedures in good faith, to accommodate employees returning from injury or medical leave. See, e.g., Williams Deck U1I4-7, Exs. A-J (summarizing evidence of ADA and other accommodations at UPS); Lee Deck UH11-17, Exs. G-L (discussing evidence of UPS’s formal ADA compliance procedures, training for management personnel, and notice to employees). UPS also relies upon evidence adduced during class certification discovery that numerous individuals have received accommodations in some form to disprove the alleged 100% healed policy claim. See Williams Deck 11114-7, Exs. A-J; Lee Deck H1I18-22 (summarizing other avenues of accommodation). The court acknowledges this evidence. This evidence may be used to refute plaintiffs’ allegations at the liability stage of the trial, but it does not preclude a finding of commonality with respect to the 100% healed policy claim at the certification stage.
Defendant’s argument that plaintiffs have failed to show commonality with respect to the alleged 100% healed policy because the real issues that control disposition of the case are individualized inquiries with respect to
Another common issue that exists with respect to the 100% healed policy claim is whether the alleged policy, if it exists, constitutes a per se violation of the ADA. Plaintiffs argue that if they can establish the existence of the alleged 100% healed policy, no further proof would be needed to establish liability under the ADA because plaintiffs argue that 100% healed policies are per se unlawful under the ADA. Specifically, plaintiffs argue that it is well established that the ADA requires employers to engage in good faith in an interactive process with an employee who seeks an accommodation, and that failure to make a reasonable accommodation under some circumstances constitutes unlawful discrimination under the ADA. See Taylor,
For example, plaintiffs direct the court to McGregor v. National R.R. Passenger Corp.,
[The Plaintiff] is correct in noting that “100% healed” policies are per se violations of the ADA. A “100% healed” or “fully healed” policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is “100% healed” from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.
Id. at 1116 (citing Hendricks-Robinson v. Excel Corp.,
The court of appeals in Hendricks-Robinson noted the line of decisions which plaintiffs point to in this case in support of their argument that “100% healed” policies are per se violative of the ADA’s requirement that employers engage in an individualized assessment whether an employee can be reasonably accommodated and return to work. Id. at 699 (citing 29 C.F.R. § 1630.7; Weigel v. Target Stores, 122 F.3d 461, 466 (7th Cir. 1997); Heise v. Genuine Parts Co.,
A reasonable trier of fact could determine that, once an employee’s medical restrictions are determined to be permanent, [the employer’s] methodology — the nurse’s evaluation, the employee’s meetings with the nurse and others, the plant tour, then layoff — was directive, not interactive. The record is also susceptible to the reading that the breakdown in the process cannot be attributed to the plaintiffs____ There are genuine issues of material fact concerning the lack of interaction in this case that preclude summary judgment. With all the information in the hands of [the employer], this was not the kind of interactive process envisioned by our case law.
Id. (citations omitted).
Plaintiffs, therefore, rely on McGregor, Hendricks-Robinson, and related eases for the theory that “100% healed” policies such as the de facto 100% healed policy alleged in this ease are per se unlawful under the ADA. These decisions provide some support for
Another common issue that exists with respect to the 100% healed policy claim is whether the alleged policy, if it exists, constitutes treating every employee subject to the policy as “regarded as” disabled. See Henderson v. Ardco, Inc.,
In Henderson, the United States Court of Appeals for the Sixth Circuit reviewed a district court’s grant of summary judgment in favor of an employer in a case implicating Kentucky’s disability discrimination statute, which is interpreted consonant with the ADA.
In her lawsuit, the plaintiff in Henderson alleged that, despite her ability to work, the defendant employer perceived her as having a disability. She argued that the employer’s alleged “100% healed policy” was per se illegal under Kentucky’s disability discrimination statute. Id. In addition, the plaintiff alleged retaliatory discharge for applying for workers’ compensation benefits. Id. The court of appeals affirmed the district court’s grant of summary judgment in favor of the employer on the retaliatory discharge claim because the plaintiff had produced insufficient evidence that her filing for workers’ compensation was a substantial and motivating factor in her discharge. Id. at 654. The court of appeals, however, reversed the district court’s grant of summary judgment with respect to the disability discrimination claim finding that, with respect to the “crux” of that case — whether the plaintiff was “disabled” under the statute — the plaintiff had produced sufficient evidence in support of her “regarded as” disabled theory of discrimination to withstand summary judgment. Id. at 649-54.
In its analysis of plaintiffs disability discrimination claim, the court of appeals addressed “regarded as” disability in the context of an alleged 100% healed policy. The court of appeals first noted that the plaintiff in that case proceeded on the theory that her employer regarded her as substantially limited in the major life activity of working. Id. at 650. The court of appeals noted:
In a “regarded as” case, “it is necessary that a covered entity entertain mispercep-tions about the individual — it must believe ... that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often ‘resul[t] from stereotypic assumptions not truly indicative of ... individual ability.’ ”
Id. (quoting Sutton v. United Air Lines, Inc.,
The court of appeals, however, acknowledged that the alleged 100% healed rule in Henderson implicated the ability to work and required the court to focus on the major life activity of working:
[The defendant’s] “100% healed rule” purports to concern the ability to work, linking other physical impairments to this ability, and requiring us to focus on whether [the defendant’s] perception of [the plaintiff] was such that they misperceived or treated her physical restrictions as substantially limiting her ability to work when in fact they were not substantially limiting.
Id. (citing Plant,
The court of appeals further noted that Sutton required that in order to be “regarded as” disabled in the major life activity of working, an individual must be regarded as precluded from more than a particular job. Id. (citing Sutton,
The court of appeals ultimately held that in Henderson there was enough of an issue to go to trial on plaintiffs regarded as theory of disability discrimination:
Where the 100% rule is applied to mildly impaired persons to exclude them from a broad class of jobs, it may be treating them as disabled even if they are not, thereby qualifying them for protection under the ADA and parallel statutes, and activating the individual assessment rule.
Id. at 653. The court noted, however, that “[t]he variability of the impairment-relevant job requirements within the business applying the 100% rule is thus important, because it indicates the breadth of the class the employer perceives when the employer applies the rule.” Id.
b. The Other Reasonable Accommodation Policies Claims
(i) Implementation of the Formal ADA Compliance Policy
The court finds that Rule 23(a)’s commonality requirement has been met with respect to whether UPS’s implementation of its formal ADA compliance policy violates the ADA. There are common issues of fact and law with respect to what the formal policies consist of, the extent of management personnel being trained in the formal policies, and whether the formal policies are lawful or not. The evidence relating to this claim — in particular, the contents of the Manual and the notorious ten-step process much-reviled by plaintiffs and much-vaunted by defendant — is summarized in detail above and will not be recounted again. Suffice it to say that the court finds that plaintiffs have adduced evidence that commonality has been met with respect to their claim challenging the implementation of UPS’s formal ADA compliance policies.
The court notes that much of the evidence relevant to this claim and UPS’s defense overlaps with the evidence that UPS will rely upon in order to refute the allegation that the 100% healed policy is standard operating procedure at UPS. In addition, evidence presented by UPS in defense of its formal ADA compliance policy supports a finding of commonality in light of UPS itself directing the court to common issues that can be raised in defense of the policy and its implementation — for example, defendant’s arguments that the procedure complies with the ADA’s statutory and regulatory framework by requiring information from health care providers to be limited to what is allowable under the law and the procedure comports with the law in not considering accommodation requests where an employee has failed to provide information. At the merits stage of this litigation, as opposed to the certification stage, plaintiffs can attack, for example, Step 3 of the process and defendant can defend it. In light of the commonality prong of Rule 23(a) requiring only that the named plaintiffs share at least one question of fact or law with the grievances of the prospective class, and in light of the court’s finding that plaintiffs can litigate their claims pursuant to the pattern-or-practice framework set forth in Teamsters, this is not a close call.
(ii)Uniform Pretextual Job Descriptions
Plaintiffs allege that UPS uses uniform job descriptions that are pretextual in an effort
UPS argues in opposition, however, that plaintiffs’ counsel themselves have asserted that determining actual job duties requires a ease-by-case analysis of all the relevant circumstances because, as the position descriptions themselves indicate, that they do not completely describe the duties of any given position. UPS Opp. App at 1746 (Feb. 28, 2003 Letter from Christian Bagin to David McAllister). In addition, UPS argues that this claim is “an irrelevant distraction” because employees capable of lifting only ten or twenty pounds fall outside of the protection of the ADA. The court disagrees. If the lifting requirement is generally imposed without regard to the eventual needs of the relevant jobs, that lifting requirement could implicate a violation of the ADA. See Con-neen v. MBNA America Bank, NA.,
(iii) Prohibiting Employees from Returning to Work With Restrictions and Preventing Use of Seniority Rights to Transfer Positions
With respect to this alleged challenged policy, the court finds that Rule 23(a)’s commonality requirement has not been met. Although the commonality requirement is “not a high bar,” and requires only that the named plaintiffs share at least one question of law or fact with the grievances of the prospective class, with respect to these claims — while there may be common issues of law at the most general level — plaintiffs have not directed the court’s attention to sufficient evidence that could support a finding of commonality with respect to an alleged company-wide policy implicating these claims under an alternative theory of liability under the ADA; rather, the evidence supports the more general challenge to the implementation of UPS’s formal ADA compliance policies.
These claims represent general allegations of multiple individual experiences of alleged discrimination. These experiences might be relevant in this case as evidentiary support for plaintiffs other pattern-or-practice claims
(iv) Withdrawing of Accommodations Previously Provided and then Denying Requests for the Previously Provided Accommodations Claims
Similarly, Rule 23(a)’s commonality requirement is not met with respect to this alleged challenged practice. Either this claim is subsumed into plaintiffs’ more general claim challenging UPS’s implementation of its formal ADA compliance policies or plaintiffs have not directed this court to sufficient stand-alone evidence to support a finding of commonality with respect to a company-wide policy of withdrawal of accommodations followed by denial of requests for previously provided accommodations. Evidence of this nature may be relevant to proving or disproving the existence of the 100% healed policy and the nature and sufficiency of the implementation of UPS’s formal ADA compliance policies, but there is not sufficient evidence of commonality for the court to certify a claim of an alleged policy of withdrawal of accommodations followed by denial of previously provided accommodations for independent classwide adjudication on these grounds.
c. Retaliation Claims
With respect to the retaliation claims alleged by plaintiffs, the court finds that the commonality requirement cannot be met. Plaintiffs failed to direct the court to sufficient evidence of Rule 23(a) commonality regarding their claims that UPS engages in a pattern or practice of retaliation against individuals who seek reasonable accommodations. See Selwood,
Beyond multiple individual allegations of retaliation peppered throughout the anecdotal evidence submitted by plaintiffs for the court to review and compile, there is little, if any, evidence that plaintiffs direct to the court’s attention in the record that is suggestive of a company-wide policy of retaliation that implicates common issues of fact or law. With respect to these claims, individual issues, not common issues, control disposition of whether class action treatment is appropriate. Indeed, there is little in common among the multiple allegations of retaliation beyond the bare assertion of a policy of retaliation and the commonality of the legal elements required to state an individual claim of retaliation. Merely asserting a “policy” of something provides the court with insufficient grounds to make a finding of commonality sufficient to meet Rule 23(a). It is unclear that there is any evidence that plaintiffs adduced during class discovery that could support common issues of fact with respect to a pattern-or-praetiee of retaliation. For this reason, the court finds that class-wide adjudication of plaintiffs’ retaliation claims under the ADA is not appropriate. Regardless of other Rule 23(a) and (b) requirements, the court will not certify the retaliation claim for class treatment.
d. Summary of Commonality Findings
The court, therefore, finds that plaintiffs have adduced evidence sufficient for the
3. Typicality
Rule 23(a) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). It has been noted that “[t]he concepts of commonality and typicality are broadly defined and tend to merge” and both seek to assure that the interests of absentees will be fairly and adequately represented. Baby Neal,
Typicality assesses whether the named plaintiff has incentives that are aligned with those of absent class members so as to assure that the absentees’ interests will be fairly represented by the named plaintiff. Baby Neal,
Inquiries related to typicality ask whether the named plaintiffs’ individual circumstances are different from that of absentees and whether the plaintiffs’ legal theory is different from that of absentees. Yet, as the United States Court of Appeals for the Third Circuit explained with respect to typicality in Baby Neal, even claims marked by factual differences in injury, but in which the same course of conduct gives rise to claims based upon the same legal theory, are not necessarily rendered atypical by virtue of those factual differences:
Commentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual*224 claims____Actions requesting declaratory and injunctive relief to remedy conduct directed at the class clearly fit this mold.
[F]actual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory..... Indeed, even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories. Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice____
Here, plaintiffs argue Rule 23(a)’s typicality requirement is easily met because the named plaintiffs allege legal theories shared by each putative class member — that UPS’s unacknowledged de facto 100% healed policy as well as the practices involved in implementing its acknowledged formal policies and the pretextual job descriptions violate the ADA. Plaintiffs argue that their incentives are aligned with those of absent class members because they are challenging policies or practices to which all putative members of the class were subjected. In addition, plaintiffs rely on the decision of the court of appeals in Baby Neal for the proposition that where, as here, “defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of their conduct,” typicality is met. Baby Neal,
Defendant contends that ADA cases rarely satisfy the typicality requirement because the statute mandates a detailed, individualized analysis of an individual’s circumstances and characteristics. Defendant cites cases such as Lintemuth v. Saturn Corp., No. 1:93-0211,
The variance in the named plaintiffs’ personal characteristics, coupled with the individualized, case-by-case analysis required by the ADA, renders the proposed representatives ... unable to establish the necessary elements of the claims of the class in the course of establishing their own. Furthermore, the highly personal nature of each representative’s disability also subjects their claims to unique defenses under the ADA which are significant enough to destroy typicality.
* *
The ADA mandates that the determination of what hardship is undue entails a close analysis of each plaintiffs disability, the extent to which their disability affects their ability to perform the duties of the position desired, and the reasonable accommodation requested. Thus, even though the representatives are classified with the same types of disabilities as the class, the ADA’s case-by-case approach provides Saturn with a unique defense applicable to each representative, rendering their claims atypical of the claims of the class.
The plaintiffs in Lintemuth, unlike plaintiffs here, did not allege or substantiate for the purposes of Rule 23 a company-wide
In Sokol, the district court noted that “[cjourts have been cautious to certify disability discrimination claims as class actions due to the individualized determinations required by such claims.” Id. at *4 (citing Mantolete v. Bolger,
The court distinguished the facts in Sokol from the factual backgrounds in those decisions certifying class actions in the ADA context because the court reasoned that while the alleged policies in those decisions were formal written policies that were easily identifiable and uniformly applied, the alleged de facto policies at issue in Sokol— including refusing to consider the possibility of tool and assembly line modifications as reasonable accommodations and a policy, practice and administrative method of using personnel who lack qualifications to determine and provide appropriate reasonable accommodations for employees with disabilities — were not. Id. Assuming that the reasoning of Sokol is correct, Sokol is distinguishable from this case. In this case, the implementation of UPS’s formal ADA compliance policies and the use of job descriptions implicate easily identifiable formal written policies. With respect to the alleged 100% healed policy claim, significant evidence related to the existence of the policy was adduced during class discovery and makes identification of this policy less problematic. It is clear what the alleged 100% healed policy claim challenges' — questions related to whether it exists and whether it was uniformly applied implicate a merits inquiry, not the issue of typicality.
In addition, UPS argues that Hohider and DiPaolo are atypical for a variety of reasons — largely because UPS argues that they are not qualified individuals under the ADA. Plaintiffs respond that Hohider and DiPaolo are qualified individuals under the ADA because they are either “disabled,” “regarded as disabled,” or otherwise entitled to protection under the ADA. The court finds for the purposes of Rule 23(a)’s typicality analysis that plaintiffs have adduced sufficient evidence for the court to find for the purposes of Rule 23 that plaintiffs’ claims are typical of the class with respect to the remaining putative class claims implicating the alleged 100% healed policy, implementation of the formal ADA compliance policy, and the use of uniform pretextual job descriptions. Merely alleging a pattern-or-practice is not sufficient to satisfy Rule 23’s typicality requirement; where evidence, however, is adduced in support of a common policy or practice that has
In addition, UPS challenges Hohider as atypical because his grievance challenging UPS’s denial of his request for an ADA accommodation proceeded to arbitration and resulted in a finding that UPS had engaged in good faith in the interactive process with respect to Hohider. In addition, UPS challenges Hohider as atypical because when his work restrictions evolved he was no longer substantially limited in a major life activity. UPS challenges DiPaolo because at some point after denial of his request to return to work his doctor opined that he was unable to work and because UPS argues that he is subject to unique mitigation defenses. In addition, UPS challenges Branum as atypical because he alleges only harassing conduct. These issues do not defeat typicality because, at a minimum, plaintiffs’ arguments that they are regarded as disabled would be typical of the other putative class members. These issues go more directly to plaintiffs’ adéqua-cy as class representatives and to the weight of plaintiffs’ evidence in proving their allegations at the merits stage of litigation.
4. Adequacy
Rule 23(a) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R.Civ.P. 23(a)(4). The adequacy requirement, thus, primarily addresses the sufficiency of the named plaintiffs. As the United States Court of Appeals for the Third Circuit explained, “[ajdequacy of representation assures that the named plaintiffs’ claims are not antagonistic to the class and that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class.” Baby Neal,
On the issue of no conflict with the class, one of the tests for adequate representation, the presumption fairly arises because of the difficulty of proving negative facts. On the issue of professional competence of counsel for the class representative, the presumption fairly arises that all members of the bar in good standing are competent. Finally, on the issue of intent to prosecute the litigation vigorously, the favorable presumption arises because the test involves future conduct of persons, which cannot be prejudged adversely.
If there are any doubts about adequate representation or potential conflicts, they should be resolved in favor of upholding the class, subject to later possible reconsideration, or subclasses might be created initially. Alternatively, notice should be sent to the class inviting others to come in as additional class representatives.
Id. (citations omitted).
In light of the 2003 amendments to Rule 23, however, and in particular in light of new subdivision (g) (“Class Counsel”) which “guide[s] the court in assessing proposed class counsel,” Fed.R.Civ.P. 23 2003 Adv. Comm. Notes, the court must examine the factors set forth in Rule 23(g) in order to assess adequacy under Rule 23(a)(4). Id. (“Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while this subdivision will guide the court in assessing proposed class counsel as part of the certification decision.”). Rule 23(g) provides in relevant part:
(1) Appointing Class Counsel.
(A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.
(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.
(C) In appointing class counsel, the court
(i) must consider:
• the work counsel has done in identifying or investigating potential claims in the action,
• counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action,
• counsel’s knowledge of the applicable law, and
• the resources counsel will commit to representing the class;
(ii) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class;
(hi) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and
(iv) may make further orders in connection with the appointment.
Fed.R.Civ.P. 23(g)(l)(emphasis added).
In this case, the court concludes that plaintiffs have met Rule 23(a)(4)’s adequacy requirement.
a. Class Counsel
First, with respect to plaintiffs’ counsel, Scott + Scott, LLC, Wienand & Bagin, and Equal Justice Foundation, the court finds that plaintiffs’ counsel have met the requirements set forth in Rule 23(g). The court notes that an attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class. Plaintiffs’ counsel have considerable combined experience in the areas of employment law and class action practice. See Pis.’ Ex.App., Tab 64 (Declaration of Anita Meley Laing (“Laing Decl.”); Firm Profile of Scott + Scott, LLC); Tab 65 (Declaration of
In this ease, considering the substantial amount of work that plaintiffs’ counsel have done in identifying or investigating potential claims in the action as evidenced by the investigation, discovery, and briefing heretofore and reflected by the voluminous record in this case, considering the experience of plaintiffs’ counsel in handling class actions, other complex litigation, and employment discrimination claims as set forth in the declarations attached to the motion for certification, considering the apparent knowledge of plaintiffs’ counsel concerning the applicable law, and considering the considerable resources that counsel have already committed to representing the class, the court finds that plaintiffs’ counsel meet the requirements of Rule 23(g). Plaintiffs’ counsel have demonstrated sufficient professional competence to represent the class if the court finds that certification is appropriate.
b. Plaintiffs’ Adequacy
With respect to the named plaintiffs, the court finds that the named plaintiffs’ interests are sufficiently aligned with the class, there is no evidence to suggest that their interests are antagonistic to the class, and the court finds no reason why they will not vigorously pursue these claims on behalf of the class. A few issues raised concerning the adequacy of the named plaintiffs, however, deserve closer attention.
First, defendant challenges Hohider’s credibility, alleging that he attempted to substantively alter material portions of his testimony under the guise of making corrections under Federal Rule of Civil Procedure 30(e); challenges DiPaolo’s credibility and alleged “gross bad faith” in allegedly avoiding alternative employment; and challenges Branum as adequate alleging that his claims of individualized harassment are “off point” to the claims of the class. The credibility challenges do not rise to the level of defeating adequacy. They go to the weight of the named plaintiffs’ individual experiences in proving the alleged de facto 100% healed policy, the implementation of the formal written policy in violation of the ADA, and the pretextual job descriptions claim. As to Bra-num’s alleged individualized harassment making him inadequate, the court has already determined that the retaliation claims will not be certified. The fact that plaintiffs each exhibit somewhat individualized circumstances relating to UPS’s ADA procedures does not, without more, make them inadequate in a case implicating the pattern-or-practice framework of proof. As discussed, individual circumstances will of necessity be relevant in proving or disproving the existence of a pattern or practice. In addition, the court has the ability to permit the substitution of named representatives if these issues are shown to be so serious as to make named plaintiffs inadequate.
Second, defendant challenges named plaintiffs’ adequacy because defendant argues that the named plaintiffs are not qualified individuals with disabilities entitled to reasonable accommodation under the ADA. Plaintiffs reply that at the merits stage they can show that they are either disabled or regarded as disabled and therefore entitled to the ADA’s protections. In addition, plaintiffs argue that, because they seek to proceed under the pattern-or-practice framework of proof, they need not prove that each member of the class is substantially limited in order to prove that the challenged policies exist and are illegal under the ADA.
For example, plaintiff Hohider was hired in 1986 at UPS as a part-time loader/unload-er at UPS’s New Stanton, Pennsylvania, facility and over the years worked part-time at UPS in various positions including as a sorter, a loader, and a driver. Pis.’ Decl.App., Tab H (“Hohider Deck”) HH1-3. He injured his back at work on August 4, 1999, when a vehicle he was operating was struck from behind. Id. 116. He sustained a back injury that was later diagnosed to be disc herniation with left leg radiculopathy. Pis.’ Ex.App., Tab 57 (August 24, 2000 Independent Medical Examination Report by Dr. Jack Smith) at 2. He attempted to return to work subject to restrictions but was unable to return to work. See, e.g., Hohider Deck 116; Pis.’ Ex. App., Tab 58 (November 12, 1999 Letter from Linda Mayers, UPS Human Resources)(“Although Mr. Hohider was released to light duty work on October 13, 1999, there is currently no work available within the restrictions placed upon Mr. Hohi-der by the doctor.”). He received workers’ compensation in connection with the injury. See Pis.’ Ex.App., Tab 54 (August 31, 2000 Letter from Albert Sarokin, Senior Case Manager, Liberty Mutual). He attended a meeting at UPS regarding the possibility of returning to work subject to ADA accommodations sometime after January 2001, claims that he identified several jobs he could do, but that management only discussed whether he could return to a package car position which he claims they knew was outside his restrictions, which were at some point light duty but ultimately determined to be medium duty. Hohider Deck 116. The actions of UPS with respect to Hohider implicate the policies in issue and if at the merits stage they are proven to exist would implicate that Hohider was regarded as disabled. See Henderson,
Plaintiff DiPaolo was hired as a part-time employee in the position of loader/unloader at UPS’s Beaver Avenue hub in Pittsburgh, Pennsylvania, in 1972 and went to the New Stanton, Pennsylvania facility in 1977 and became a full-time package ear driver in 1978. See Pis.’ DechApp., Tab D (“DiPaolo Deck”) H 2. He suffered an on-the-job injury in April 1997, was unable to perform the job of package car driver, and worked that summer in jobs consistent with his restrictions. Id. 1t 2. He was diagnosed with a progressive neurological disorder, reflex sympathetic dystrophy, “a chronic condition characterized by severe burning pain, pathological changes in bone and skin, excessive sweating, tissue swelling, and extreme sensitivity to touch.” Id. He was given a medical release with restrictions by his doctor, has bid on available positions at UPS, but has been refused to return to work. Id. K112-4. His request to meet with someone at UPS about identifying a job that he could do was denied. Id. 115. He claims that it is well-known at UPS that the company will not allow workers who have any work restrictions to return to work — and it’s called a “full 100% release policy.” Id. H 6. He claims that this policy was openly stated by UPS management at grievance meetings and workers’ compensation proceedings. Id. The actions of UPS with respect to DiPaolo implicate the policies in issue and if at the merits stage they are proven to exist would implicate that DiPaolo was regarded as disabled. See Henderson,
Plaintiff Branum worked at UPS beginning in 1981 as a mechanic. Pis.’ Decl.App., Tab B, (“Branum Deck”) 111. He is a veteran of the Vietnam War and suffers from Post-Traumatic Stress Disorder (“PTSD”), depression, and anxiety, as well as suffering from an on-the-job neck injury that required
Plaintiffs argue that all three named plaintiffs are either disabled or “regarded as disabled” under the ADA and are substantially limited in several major life activities, including that of working. Plaintiffs argue that the record demonstrates that UPS knew about the named plaintiffs’ conditions and regarded them as disabled as evidenced by UPS’ refusal to permit Hohider and DiPaolo to return to work, with or without accommodation. The court finds that the evidence is sufficient for the court to determine for the purposes of certification that plaintiffs are adequate to bring this lawsuit and have statutory standing to sue under the ADA. In addition, the court has the ability to permit the substitution of the named representatives if the issues raised by defendant are shown to be so serious as to make named plaintiffs inadequate.
Finally, defendant argues that the fact that named plaintiffs are seeking monetary relief including substantial compensatory damages calls their adequacy into question. The court, as will be discussed in more detail in the next section, will not permit any compensatory damages to be part of the class relief and defendants’ argument on that matter will not preclude a finding of adequacy.
B. Rule 23(b)(2) Requirements
A court may certify a class pursuant to Rule 23(b)(2) only when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R.Crv.P. 23(b)(2). Plaintiffs argue that Rule 23(b)(2) is satisfied in this case because they have adduced evidence of formal and informal company-wide policies pursuant to which UPS has acted or refused to act on grounds generally applicable to the class. In addition, plaintiffs argue that final injunctive relief is appropriate with respect to the class as a whole. UPS argues, however, that Rule 23(b)(2) certification is inappropriate because (1) the record of numerous accommodations precludes plaintiffs from establishing that UPS acted on grounds generally applicable to the class; (2) the putative class is not cohesive; and (3) plaintiffs’ claims are primarily for monetary relief.
1. Grounds generally applicable
With respect to defendant’s first argument against Rule 23(b)(2) certification, plaintiffs respond that an evaluation of which party has presented more compelling statistical, anecdotal, and other evidence is a ques
To be certified under Rule 23(b)(2), plaintiffs must show in addition to the class meeting the prerequisites for certification under Rule 23(a) that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). In this case, in the putative class claims plaintiffs allege a de facto pattern or practice of requiring employees who return to work after injury or medical leave to be “100% healed” or have a full medical release. They also challenge the implementation of UPS’ formal written compliance policy. The further challenge the use of uniform job descriptions as pretext for discrimination. On these grounds, plaintiffs argue that they are challenging UPS for “act[ing] or refus[ing] to act on grounds generally applicable to the class....” Fed.R.Civ.P. 23(b)(2).
Defendants argue that plaintiffs have not shown that UPS has acted in a manner generally applicable to the class as a whole because of the highly idiosyncratic circumstances surrounding individual requests for accommodation and because class discovery has established that UPS in fact made hundreds of job-related accommodations, and that hundreds of employees are in fact working at UPS today after returning from disability-related absences.
On the record before the court, as discussed in detail above, the court finds that plaintiffs have adduced sufficient evidence for the purposes of Rule 23(b)(2) that UPS has acted on grounds generally applicable to the class, therefore making injunctive or declaratory relief appropriate if a violation of the ADA were to be established with respect to the 100% healed policy claim, the implementation of UPS’s formal ADA compliance policy claim, and the use of uniform job descriptions as a pretext for discrimination claim. The court does not make a finding for merits purposes whether the alleged de facto 100% policy exists or does not exist. Nor does the court make a finding that UPS implements its formal ADA compliance procedures in violation of the ADA or in compliance with it. Those are merits inquiries. It is sufficient in order to certify a class pursuant to Rule 23(b)(2) for the court to find that either UPS has acted on grounds generally applicable to the class by engaging in the alleged de facto 100% healed policy or by not engaging in the alleged de facto 100% healed policy; by implementing its formal ADA compliance procedures in violation of the ADA, or by implementing them in compliance with it; or by creating job classifications that are designed without regard to essential job functions to preclude anyone from returning to work who could not lift seventy pounds, or by creating job classifications that are designed with regard to essential job functions.
Assuming for the purposes of argument only that liability can be established, the final injunctive relief and corresponding declaratory relief that is sought with respect to the class as a whole relates to the claims that plaintiffs allege. The 100% healed policy claim, the implementation of UPS’s formal ADA compliance policy claim, and the use of uniform job descriptions claim, litigated pur
2. Cohesiveness
UPS argues that the proposed class is not sufficiently cohesive, principally relying on the reasoning set forth in Barnes v. American Tobacco Co., 161 F;3d 127 (3d Cir.1998), and thus should not be certified as a class under Rule 23(b)(2). In Barnes, the court of appeals affirmed a district court’s decertification of a Rule 23(b)(2) class of cigarette smokers alleging a single claim for medical monitoring against several defendant tobacco companies. Initially the plaintiffs in Barnes had moved for certification of a class to litigate claims that included negligence and strict products liability in addition to medical monitoring claims. Id. at 131. The district court found that those claims were not appropriate for Rule 23(b)(2) treatment because plaintiffs were seeking predominantly monetary relief and the district court also found that those claims were not appropriate for Rule 23(b)(3) treatment because individual issues such as addiction and causation meant that the class action was not the superior method for adjudicating the controversy. Id. The district court, however, suggested that the request for court-supervised medical monitoring might be the “paradigmatic” request for injunctive relief under a medical monitoring claim and might be appropriate for Rule 23(b)(2) treatment. Id.
The plaintiffs subsequently filed an amended complaint and sought certification of the class only for the medical monitoring claim. Id. at 132. The district court conditionally certified the class to litigate that claim under Rule 23(b)(2). Id. at 133. The defendants subsequently asked the court to certify the class certification order for interlocutory appeal or, in the alternative, to reconsider the order. Id. They also filed motions for summary judgment. Id. The district court denied the request to certify or reconsider the class certification order, but decertified the class under Rule 23(c)(1), finding that three individual issues — addiction, causation, and affirmative defenses — precluded class certification. Id. at 133-34.
On appeal, the court of appeals reviewed the district court’s decertification, commenting that the crucial issue on appeal was whether the plaintiffs’ medical monitoring claim required inquiry into individual issues. Id. at 138. After reviewing the elements required to prove a claim of medical monitoring under Pennsylvania law, the court of appeals explained its reasoning for affirming the district court’s decertification of the class for this claim. Id. at 138-19. Defendant in this case cites the court of appeals’ reasoning with respect to Rule 23(b)(2) issues, and the issue of cohesiveness, in Barnes in support of its argument that plaintiffs in this case cannot make out cohesiveness. Id. at 142-43.
The court of appeals in Barnes analyzed the concept of “eohesiveness” in connection with its analysis whether the defendants had “acted or refused to act on grounds generally applicable” to the proposed class. Id. at 142 — 49. The court of appeals commented that while Rule 23(b)(2) class actions have no predominance or superiority requirements, “it is well established that class claims must be cohesive.” Id. at 143. The court of appeals commented that district courts had discretion not to certify Rule 23(b)(2) classes where disparate factual circumstances made certification inappropriate and when significant individual issues would need to be litigated. Id. The court of appeals held that the district court was correct that, in that case, too many individual issues existed with respect to addiction, causation, affirmative defenses, and the statute of limitations for Rule 23(b)(2) certification to be appropriate. Id. at 143,143-49.
The discussion of cohesiveness in Barnes, however, does not create a separate requirement for Rule 23(b)(2) certification, but rather flushes out the meaning of “grounds generally applicable” and the appropriateness of Rule 23(b)(2) certification in the face
In this case, where plaintiffs seek Rule 23(b)(2) certification to adjudicate their claims that certain of defendant’s employment policies constitute a pattern or practice of discrimination under the ADA, and where the court has reviewed the factual record and found that commonality, typicality, and the Rule 23(b)(2) requirement that defendant treated plaintiffs on “grounds generally applicable” to the class are met, defendant’s reliance on Barnes and other cases discussing cohesiveness and situations where individual issues preclude certification does not change this court’s analysis. Barnes itself is distinguishable on the grounds that the court of appeals was considering Rule 23(b)(2) certification in that case in the context of mass tort class actions, see id. at 138^40, 142-32 (discussing, inter alia, In re Paoli Railroad Yard PCB Litig.,
3. Claims primarily for monetary relief
UPS’s other main complaint — that this class action improperly seeks predominantly money damages — requires close scrutiny. In plaintiffs’ Hohider and DiPaolo’s original complaint, they indicated that they sought certification pursuant to Rule 23(a) and Rule 23(b)(1), (b)(2), and (b)(3). Compl. H19. Subsequent filings with the court, and in particular plaintiffs’ briefing in support of their motion for class certification, however, indicate that plaintiffs seek certification solely under Rule 23(a) and Rule 23(b)(2). Defendant disputes that Rule 23(b)(2) certification is appropriate, arguing that plaintiffs seek predominantly monetary damages. This court, therefore, as a threshold matter in the Rule 23(b) analysis, must determine whether plaintiffs can proceed under Rule 23(b)(2) in light of the relief that they seek.
This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate. Declaratory relief “corresponds” to injunctive relief when as a practical matter it affords in-junctive relief or serves as a basis for later injunctive relief. The subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.
Fed.R.CivP. 23(b)(2), 1966 Advisory Committee Notes (emphasis added). What is unclear from the text of the rule and the Advisory Committee Notes, however, is what standard a district court should apply to assess whether the “final relief relates ... predominantly to money damages.”
In this case, plaintiffs allege harm that includes pecuniary and nonpecuniary damages, including, among other things, lost wages and benefits. Compl. II28. Accordingly, plaintiffs seek relief that is declaratory and injunctive in nature as well as pecuniary damages. In their complaint, plaintiffs seek the following relief:
(A) Determining that this is a proper class action to be certified under Rule 23 of the Federal Rules of Civil Procedure; (B) Grant a permanent injunction enjoining Defendant, its directors, officers, employees, agents, successors, heirs, and assigns, and all persons in active concert or participation with them, from engaging in, ratifying, or refusing to correct, employment practices which discriminate in violation of the ADA____;
(C) Order Defendant to institute and implement, and individual Defendants to attend and/or otherwise participate in, training programs, policies, practices and programs which provide equal employment opportunities for persons with present, past, or perceived disabilities;
(D) Order Defendant to make Plaintiffs and the Class whole by providing appropriate back pay with prejudgment interest, in amounts to be proved at trial, reinstatement to positions consistent with their physical or mental abilities and restrictions having compensation, responsibility, and duties, commensurate with their education, experience, and skills;
(E) Order Defendant to remove and expunge, or cause to be removed and expunged, all negative, discriminatory, and/or defamatory memoranda and documentation from Plaintiffs’ and the Class’s records of employment;
(F) Award extraordinary, equitable and/or injunctive relief as permitted by law, equity, and the federal statutory provisions sued hereunder, pursuant to Rules 64 and 65 of the Federal Rules of Civil Procedure;
(G) Awarding Plaintiffs and Class members all restitutionary and remedial relief;
(H) Awarding Plaintiffs and Class members pre-judgment and post-judgment interest, as well as their reasonable attorneys’ fees, expert witness fees and other costs; and
(I) Award such other legal and equitable relief as the court deems appropriate and just.
Compl. II 30(A)-(H). Branum’s consolidated complaint seeks similar relief. See Doc. No. 1 in Civil Action No. 04-1686 at 1131(A)-(I).
Defendant submitted plaintiffs’ Rule 26(a)(1) initial disclosures, in which plaintiffs indicated that they “will seek the following classes of relief: lost wages and benefits, front pay and benefits, out of pocket expenses, reasonable attorneys fees and costs, compensatory damages, liquidated damages, additional payment to offset the negative tax consequences of receiving a large payment in a single year, and interest at the legal rate.” UPS. Opp.App. at 1733 (emphasis added). Plaintiffs further disclosed that the lost wages of Hohider and DiPaolo in present figures total approximately $250,000.00 and $402,000.00 respectively, and that “[i]n the event the court finds UPS’ discriminatory and retaliatory animus to be so great that reinstatement is not possible, Plaintiffs will seek equitable relief of front pay in lieu of reinstatement for five years lost wages.” Id. Further, plaintiffs estimate that “[cjompensa-tory damages are calculated at five times lost wages to date and are presently $1,250,000.00 for Hohider and $2,010,000.00 for DiPaolo.” Id. at 1734. At the date of the disclosures, plaintiffs estimated the total amount of named plaintiffs’ damages to exceed $3.9 million plus interest.
Plaintiffs, therefore, appear to be seeking declaratory and injunctive relief, equitable relief in the form of back pay (“lost wages”) and front pay (in lieu of reinstatement), attorneys’ fees and costs, and sizable compensatory damages and potentially punitive damages. The court must determine whether the “final relief [sought in this case] relates exclusively or predominantly to money damages” in order to determine whether Rule 23(b)(2) certification is appropriate. See Fed.R.Civ.P. 23(b)(2), 1966 Advisory Committee Notes.
The United States Courts of Appeals that have addressed the issue of how a district court should determine whether monetary relief predominates in a Rule 23(b)(2) class have taken roughly two approaches. In Richards v. Delta Air Lines, Inc.,
There is a split among circuits on how a court determines whether monetary relief predominates in a Rule 23(b)(2) class suit. Compare Allison v. Citgo Petroleum Corp.,151 F.3d 402 , 415 (5th Cir.1998) (“Monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.”); Coleman v. Gen. Motors Acceptance Corp.,296 F.3d 443 , 447-50 (6th Cir.2002); Murray v. Auslander,244 F.3d 807 , 812 (11th Cir. 2001); Lemon v. Int’l Union of Operating Eng’rs, Local No. 139,216 F.3d 577 , 580-81 (7th Cir.2000), with Robinson v. Metro-North Commuter R.R.,267 F.3d 147 , 162-67 (2d Cir.2001) (adopting a more ad hoc balancing approach to whether monetary damages predominate); Molski v. Gleich,318 F.3d 937 , 949-50 (9th Cir.2003).
Id. The court of appeals in Richards noted this apparent split in authority in passing, determining that the issue was not presented in that case because both the district court and the court of appeals had determined that monetary relief was effectively the only remedy sought in that case, although the plaintiff there had framed the relief sought in terms of declaratory and injunctive relief. Id. at 530-31.
a. The Incidental Damages Approach
In Allison, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s denial of class certification in a race discrimination case in which the plaintiffs challenged particular employment practices including the alleged failure to post or announce job vacancies, the alleged use of an informal word-of-mouth announcement process for filling job vacancies, the alleged use of racially biased tests to evaluate candidates for hire or promotion, and the alleged use of a subjective decisionmaking process by a predominantly white supervisory staff in reviewing applicants for hire and employees for promotion under both disparate impact and disparate treatment theories of Title VII discrimination.
On appeal, the United States Court of Appeals for the Fifth Circuit examined in detail the nature of class actions and pattern- or-practice lawsuits under Title VII. Id. at 408-10 (noting that changes to Title VII cases brought about by the Civil Rights Act of 1991 regarding procedures — availability of jury trial when plaintiff seeks compensatory and punitive damages — and remedies — availability of compensatory and punitive damages — are “not inconsequential” in the class action context). The court of appeals addressed the Rule 23(b)(2) requirement that injunctive or declaratory relief be the predominant relief sought for the class. The court of appeals upheld the district court’s position, supported by “nearly every other circuit,” that adopted the position taken by the advisory committee that monetary relief may be obtained in a Rule 23(b)(2) class action so long as the predominant relief sought is injunctive or declaratory. Id. at 411.
The court of appeals reasoned that, in addition to procedural protection for class members, the Rule 23(b)(2) predominance requirement also incorporates concerns for the need and efficiency of a class action. Id. at 414. The court of appeals explained:
In sum, the predomination requirement of Rule 23(b)(2) serves essentially the same functions as the procedural safeguards and efficiency and manageability standards mandated in (b)(3) class actions. In balancing the competing interests underlying the class action device, (b)(2)’s predomi-nation requirement serves two basic purposes: first, it protects the legitimate interests of potential class members who might wish to pursue their monetary claims individually; and, second, it preserves the legal system’s interest in judicial economy.
Id. at 414-15.
The court of appeals therefore held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. at 415. “By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunc-tive or declaratory relief.” Id. (citing Fed. R.Civ.P. 23(b)(2)). Under this approach, “[ijdeally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established.” Id. (citations omitted).
That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunc-tive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.
Id. at 415 (emphasis added). The court of appeals clarified that its holding did not preclude back pay under Title VII in Rule 23(b)(2) class actions, noting earlier precedent construing Rule 23(b)(2) to permit monetary relief including back pay when it was an equitable remedy. Id. at 415-16, 416 n. 10 (“[T]o the extent the district court applied an incidental damages standard to the plaintiffs’ claims for back pay, its analysis was flawed.”); see id. at 422 (“As noted previously, injunctive, declaratory, and other forms of equitable relief such as back pay are available to a disparate impact claimant and in class actions certified under Rule 23(b)(2). Indeed, our cases have held that failure to
The court of appeals in Allison applied its newly-minted incidental damages test to the compensatory and punitive damages sought in that case. Reasoning that compensatory damages for emotional distress and other forms of intangible injury will not be presumed from a mere violation of rights, and noting that the amount of compensatory damages to which any individual class member would be entitled cannot be calculated by objective standards but would require individualized proof of injury, and that punitive damages similarly would require additional proof and some relation to compensatory damages, the court of appeals held that the compensatory and punitive damages in that case “clearly [did] not qualify as incidental damages.” Id. at 417-18. “Such damages, awarded on the basis of intangible injuries and interests, are uniquely dependent on the subjective and intangible differences of each class member’s individual circumstances.” Id. The court of appeals upheld the district court’s determination that the monetary damages sought were not incidental and Rule 23(b)(2) certification was not appropriate. Id. at 416 (“We have little trouble affirming the district court’s finding that the plaintiffs’ claims for compensatory and punitive damages are not sufficiently incidental to the injunctive and declaratory relief being sought to permit them in a(b)(2) class action.”).
Other courts of appeals have followed the incidental damages approach set forth in Allison. See, e.g., Reeb v. Ohio Dept. of Rehab. & Correction,
[W]e hold that, because of the individualized nature of damages calculations for Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunctive relief, and individual compensatory damages are not recoverable by a Rule 23(b)(2) class.
Reeb,
Plaintiffs now have the choice of proceeding under Rule 23(b)(3) in an action for money damages or in an action under Rule 23(b)(2) for declaratory or injunctive relief alone or in conjunction with compensatory and punitive damages that inure to the group benefit. And, as always, plaintiffs remain free to bring Title VII actions as individuals.
b. The Discretionary Approach
Two United States Courts of Appeals have declined to adopt the approach set forth in Allison and its progeny. See Molski v. Gleich,
The case had already been up on appeal one time. In the first instance, the district court denied certification holding that the Rule 23(a) prerequisites — and in particular commonality and typicality — had not been met. The court of appeals reversed the district court’s holding and remanded for the district court to consider whether Rule 23(b) had been met. Id. at 156. After remand, the district court denied the plaintiffs’ motion for class certification under Rule 23(b)(2) for both the pattern-or-practice disparate treatment claim and the disparate impact claim and denied the plaintiffs’ motion in the alternative for bifurcation of the pattern-or-practice claim. Id. The district court applied the incidental damages test set forth in Allison and determined that Rule 23(b)(2) certification was inappropriate because individualized compensatory damages issues would overwhelm the elasswide equitable relief question. Id.
The court of appeals, on appeal for the second time, vacated the district court’s judgment dismissing the action and remanded the case. Id. at 154. On remand, the court of appeals instructed the district court to certify the plaintiffs’ disparate impact claim for Rule 23(b)(2) class treatment and consider whether the pattern-or-practice disparate treatment claim is appropriate for (b)(2) certification in light of the standard set forth in its decision. Id. The court of appeals further instructed the district court that, if the court determined that (b)(2) certification of the pattern-or-practice claim was inappropriate, the district court shall bifurcate the claim under Federal Rule of Civil Procedure 42(b) and certify the liability stage of the claim for (b)(2) class treatment under Federal Rule of Civil Procedure 23(c)(4)(A). Id.
In so holding, the court of appeals reviewed the 1991 Civil Rights Act and changes to Title VII claims generally and to Title VII class actions. Id. at 157-62 (discussing in detail the elements and evidentiary requirements for pattern-or-practice disparate treatment claims and disparate impact claims). The court of appeals also reviewed the standard for determining whether a Rule 23(b)(2) class could be maintained notwithstanding that plaintiffs sought monetary damages. See id. at 162-67. In so doing, the court of appeals examined and rejected the approach set forth in Allison, interpreting it as entailing a bright-line prohibition of Rule 23(b)(2) certification of claims including compensatory or punitive damages in addition to injunctive relief. Id. at 162-63 (rejecting Allison for “limiting (b)(2) certification to claims involving no more than incidental damages” and thereby “foreclos[ing] (b)(2) class certification of all claims that include compensatory damages (or punitive damages) even if the class-wide injunctive relief is the form of relief in which the plaintiffs are primarily interested.”)(internal quotations omitted).
Declining to adopt the incidental damages approach, the United States Court of Appeals for the Second Circuit rejected a bright-line rule in favor of a discretionary approach:
Thus, the question we must decide is whether this bright-line bar to (b)(2) class treatment of all claims for compensatory damages and other non-incidental damages (e.g., punitive damages) is appropriate. For the reasons we discuss below, we believe that it is not and therefore decline to adopt the incidental damages approach set out by the Fifth Circuit in Allison and followed by the district court below. Rather, we hold that when presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must “[consider] the evidence presented at a class certification hearing and the arguments of counsel,” and then assess whether (b)(2) certification is appropriate in light of “the relative importance of the remedies sought, given all of the facts and circumstances of the case.” Hoffman,191 F.R.D. at 536 . The district court may*240 allow (b)(2) certification if it finds in its “informed, sound judicial discretion” that (1) “the positive weight or value [to the plaintiffs] of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed,” Allison,151 F.3d at 430 (Dennis, J., dissenting), and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy.
The Court of Appeals for the Second Circuit acknowledged that “the assessment of whether injunctive or declaratory relief predominates will require an ad hoc balancing that will vary from case to case,” but set forth certain conditions which a district court should consider before allowing (b)(2) certification:
[A] district court should, at a minimum, satisfy itself of the following: (1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits. Insignificant or sham requests for injunctive relief should not provide cover for (b)(2) certification of claims that are brought essentially for monetary recovery. See, e.g., In re Sch. Asbestos Litig.,789 F.2d 996 , 1008 (3d Cir.1986).
Id. at 164. In support of its ad hoc approach, the Court of Appeals for the Second Circuit recounted considerations including that (1) Rule 23 historically has vested district courts with substantial discretion to determine if Rule 23 requirements have been met, and the court of appeals could see no basis for nullifying this legislatively-granted discretion; and (2) an ad hoc approach satisfies the very concerns that have led other courts to adopt the incidental damages standard — namely, achieving judicial efficiency and ensuring due process for absent class members. Id. at 164-65. Additionally, the court of appeals advised district courts that where non-incidental monetary relief is sought, such as compensatory damages, due process may require enhanced procedural protections in the form of notice and opt-out for absent class members, and the court may in its discretion require these protections if it believes it to be desirable to protect the interests of absent class members. Id. at 166.
Recognizing that certification of a claim for non-incidental damages under Rule 23(b)(2) poses a due process risk because Rule 23(b)(2) does not expressly afford the procedural protections of notice and opt out set forth in Rule 23(b)(3) for damages class actions, the Court of Appeals for the Second Circuit conceded that “[t]he bright-line prohibition of (b)(2) class treatment for claims seeking non-incidental damages [i.e., the approach set forth in Allison ] eliminates this risk” by “ensuring] that claims presenting individual specific damage issues that might require heightened due process protections are not certified under (b)(2).” Id. The Court of Appeals for the Second Circuit, however, proposed an alternative solution to due process problems: “[A]ny due process risk posed by (b)(2) class certification of a claim for non-incidental damages can be eliminated by the district court simply affording notice and opt out rights to absent class members for those portions of the proceedings where the presumption of class cohesion falters — i.e., the damages phase of the proceedings.” Id. (quoting Holmes v. Cont'l Can Co.,
c. Decisions by the United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit has not recently addressed in detail the standard a district court should use to determine whether plaintiffs seeking Rule 23(b)(2) class certification are seeking predominantly money damages instead of declaratory or injunctive relief. Plaintiffs urge the court to be guided by Wetzel v. Liberty Mutual Ins. Co.,
In Barabin, the court of appeals reviewed a denial of class certification on Rule 26(f) interlocutory appeal. The plaintiffs in that case sought certification under Federal Rule of Civil Procedure 23(b)(2) alleging a pattern and practice case. The defendants contended that the plaintiffs had not shown that their alleged conduct constituted a pattern of allegedly discriminatory activity. Id. at *1 (citing Teamsters,
The court of appeals in denying plaintiffs’ motion for an interlocutory appeal briefly considered the developing case law under Allison and Robinson. In Barabin, the plaintiffs were seeking substantial compensatory and punitive damages. The court of appeals noted that class actions certified under Rule 23(b)(2) are limited to those cases where the primary relief sought is injunctive or declaratory relief and cited with favor James v. City of Dallas,
The court of appeals addressed the issue whether monetary relief predominates as to make Rule 23(b)(2) certification inappropriate by reference to Molski, Allison, and Robinson, appearing to endorse the incidental damages test set forth in Allison without discussing in detail the differences between it and the Robinson approach:
At least two courts of appeals have devised a test for certification of a(b)(2) class. Under this test, where parties seek monetary relief, a court may only certify a class if the damages claim is incidental to the primary claim for injunctive or declaratory relief. See Molski v. Gleich,307 F.3d 1155 , 1165 (9th Cir.2002) (“In order to permit certification, the claim for monetary damages must be incidental to the primary claim for injunctive or declaratory relief.”); Allison v. Citgo Petroleum Corp.,151 F.3d 402 , 415 (5th Cir.1998) (promulgating a test under which “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief’). We agree.
Id. (emphasis added). The court of appeals observed that “[b]eeause unnamed members of classes certified under Rule 23(b)(2) cannot opt out (as under Rule 23(b)(3)), class
Adopting without analysis the Allison test, the court of appeals determined that:
Incidental damages are those “that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Allison,151 F.3d at 415 (emphasis in original). Consistent with this analysis, whether damages are “incidental” depends on: (1) whether such damages are of a kind to which class members would be automatically entitled; (2) whether such damages can be computed by “objective standards” and not standards reliant upon “the intangible, subjective differences of each class member’s circumstances”; and (3) whether such damages would require additional hearings to determine. See id.
Id. (emphasis in original). The court of appeals upheld the district court’s finding in that case that the primary relief sought there was monetary relief, and not injunctive or declaratory relief. The court stated:
As the District Court here found:
In reviewing, the complaint in the case at •bar, we cannot find that the primary relief sought is injunctive and/or declaratory in nature. Rather, it appeal’s that the primary relief which plaintiffs seek is monetary in nature and that the request for injunctive/deelaratory relief is secondary at best. Indeed, Plaintiffs do not claim that damages in this matter can be computed on the basis of some objective, uniform calculation or in an amount which naturally follows from an entitlement to a declaration or injunction against further harm. In lieu of a claim for damages that automatically flow directly to the class as a whole, Plaintiffs aver that they have been “damaged in an amount to be proven at trial.” This requires that evidence of the harm suffered by each plaintiff be produced for the jury’s consideration at trial. We therefore conclude that the plaintiffs do not meet the criteria for class action certification under Rule 23(b)(2).
Barabin v. Aramark,210 F.R.D. 152 , 161 (E.D.Pa.2002). We see no error.
Id. at *2.
Although Barabin was a nonprecedential decision denying Rule 26(f) interlocutory appeal, this court predicts that the United States Court of Appeals for the Third Circuit would follow the rationale of Allison with respect to Rule 23(b)(2) certification. This court will apply an incidental damages approach to plaintiffs’ claims for relief. The court, therefore, if the class otherwise satisfies the requirements of Rule 23 for class certification, will certify the class for the purpose of seeking injunctive or declaratory relief and monetary relief that is incidental to the requested injunctive or declaratory relief.
Plaintiffs reliance on Wetzel does not alter this court’s analysis. In Wetzel, a 1975 decision, the court of appeals considered a class action lawsuit alleging that the defendant employer’s hiring and promotions policies with respect to female technical employees violated Title VII and the Equal Pay Act.
For example, with respect to adequacy, the court of appeals commented that “[t]he relief to be granted by the district court, whether it takes the form of back pay, mandatory hiring of female claims adjusters, or increased promotional opportunities for women will benefit all members of the class.” Id. at 247-48 (footnote omitted). With respect to the appropriateness of (b)(2) treatment, the court of appeals stated:
Moreover, although the [district] court found that injunctive relief was unnecessary, it did determine the presence of liability on the part of [the defendant employer]. The [district] court did not preclude the possibility of directing affirmative action, in addition to back pay, to remedy conditions caused by the offensive discriminatory practices. Such affirmative action ultimately would, in effect, constitute final injunctive or declaratory relief. “No one has suggested that this (relief) violates the dictates of subdivision (b)(2).” Pettway v. American Cast Iron Pipe Co., [494 F.2d 211 , 257 (5th Cir.1974)].
Id. at 251 (footnote omitted).
Plaintiffs appear to be relying on Wetzel for the following general statement by the court of appeals:
Courts have held that a(b)(2) class is appropriate in a Title VII suit where both final injunctive and monetary relief are granted.
Id. (citing Franks,
At the outset, the court notes that whether or not the court follows the approach set forth in Allison or the more discretionary approach set forth in Robinson, under either test plaintiffs in this case would not necessarily be precluded from seeking back pay. Both of those decisions recognize back pay as the kind of equitable remedy that could flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. See Allison, 151 at 415-16. Recovery of back pay, if it is “capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances,” “does not require additional hearings to resolve the disparate merits of each individual’s case,” and does not “intro
Under the incidental damages approach, however, compensatory damages for emotional distress and other forms of intangible injury cannot be included in the relief to be granted to a Rule 23(b)(2) class because they cannot be presumed from a mere violation of rights, and the amount of those damages for any individual class member cannot be calculated by objective standards but requires individualized proof of injury. Punitive damages similarly require additional proof and some relation to compensatory damages. Therefore, if the court certifies plaintiffs proposed class action under Rule 23(b)(2), the court will not allow plaintiffs to pursue compensatory or punitive damages, or any other monetary damages that are not incidental to the requested injunctive or declaratory relief, on a class wide basis. See Allison,
The court finds that this case is not a case like Richards where plaintiffs are seeking sham injunctive relief that can be reduced to an order compelling defendant to pay a sum of money to plaintiffs. See Richards,
C. Bifurcation
The court previously denied without prejudice plaintiffs’ motions to bifurcate (Doc.
VIII. CONCLUSION
For the foregoing reasons, plaintiffs’ renewed motion for class certification (Doc. No. 180) is GRANTED IN PART AND DENIED IN PART as more fully set forth herein. An appropriate Order follows.
IX. ORDER
AND NOW, this 16th day of July, 2007, upon consideration of plaintiffs’ renewed motion for class certification (Doc. No. 180), defendant’s opposition, all related submissions, and the hearing held on January 27, 2006, and in accordance with this court’s determinations concerning disputed facts and conclusions of law concerning whether the Rule 23 requirements have been met as set forth herein, IT IS HEREBY ORDERED that plaintiffs motion for class certification is GRANTED IN PART AND DENIED IN PART as more fully set forth in this Memorandum Opinion.
Plaintiffs’ motion is GRANTED pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2) with respect to the modified class for that class to litigate plaintiffs’ pattern-or-practice claims that certain of UPS’s policies, practices, and procedures controlling reentry into the workplace, or otherwise governing the making of reasonable accommodations under Title I of the ADA, violate Title I of the ADA.
A. Class Claims
IT IS ORDERED that the class claims shall be (1) the 100% healed policy claim; (2) the implementation of UPS’s formal ADA compliance policy claim; and (3) the uniform use of pretextual job descriptions claim (the “class claims”). Plaintiffs’ motion is DENIED with respect to the following claims: (1) the prohibiting employees from returning to work with restrictions and using seniority rights claim; (2) the withdrawal of accommodations claim; and (3) and the retaliation claim.
B. Relief
IT IS FURTHER ORDERED that, with respect to the class claims, plaintiffs may seek appropriate equitable relief including injunctive and declaratory relief and monetary damages incidental to the requested in-junctive or declaratory relief. Plaintiffs, therefore, may be able to seek back pay or other equitable relief for individual class members if there is a protocol for identifying those monetary damages which sets forth the objective standards to be utilized in determining the amount of those damages in a way that does not require additional hearings on individualized circumstances. Plaintiffs may not seek compensatory and punitive damages or any other monetary damages that are not incidental to any injunctive or declaratory relief that is obtained. Plaintiffs’ motion is DENIED to the extent that plaintiffs’ seek compensatory damages, punitive damages, or any other monetary damages that are not incidental to any injunctive or declaratory relief that is obtained.
IT IS FURTHER ORDERED that the following class of plaintiffs shall be certified: Those persons throughout the United States who:
(i) according to the records of UPS, its agents and contractors, have been employed by UPS at any time since May 10, 2000, including those employees who were absent from work and were receiving either workers’ compensation or short or long term disability insurance benefits; and
(ii) have been absent from work because of medical reasons; and
(iii) (A) did not return to work by reason of UPS’s alleged 100% healed policy; or
(B) did not return to work by reason of UPS’s allegedly discriminatory implementation of its formal ADA compliance policy; or
(C) did not return to work by reason of the allegedly discriminatory use by UPS of uniform pretextual job descriptions.
Excluded from the Class are all presently working UPS management employees with supervisory authority over the formulation or implementation of the UPS policies and practices alleged in this action to violate the ADA.
D. Class Counsel
IT IS FURTHER ORDERED that the following shall serve as class counsel pursuant to Federal Rule of Civil Procedure 23(g): Anita M. Laing, Arthur Shingler, David R. Scott, Donald A. Broggi. Erin G. Comite, and Geoffrey M. Johnson of the law firm Scott + Scott; Christian Bagin of the law firm Wienand & Bagin; and Judith B. Gold-stein of the Equal Justice Foundation. Ms. Laing and Scott+Scott shall serve as lead class counsel.
E. Other Miscellaneous Matters
The following pending motions are hereby DENIED AS MOOT: Plaintiffs’ Motion to Strike UPS’s Opposition to Class Certification and Response to the Letter of David McAllister (Doc. No. 185); Plaintiffs’ Motion to Strike UPS’s Refiled Surreply Brief in Opposition to Class Certification (Doe. No. 187); and Plaintiffs’ Motions for Leave to File Notice of EEOC Reasonable Cause Determinations (Doc. Nos. 189,199).
The court will hold a status conference at 5:00 p.m. on Thursday, August 9, 2007. At that time, the parties should be prepared to discuss how the case shall proceed in light of the court’s ruling on the class certification motion; whether any party is seeking an immediate appeal of the decision concerning class certification pursuant to Federal Rule of Civil Procedure 23(f); and whether any party will seek a stay of proceedings before this court.
. The alleged fifth policy, withdrawing accommodations previously provided to disabled workers, and then denying requests for the previously provided accommodations, appears to involve a hybrid claim implicating both failure to accommodate and retaliation.
. The court, for ease of reference, will use the pagination generated by the electronic case filing system ("CM/ECF”) listed at the top right-hand side of each page to cite to specific pages of any hearing transcript that has been electronically filed on the docket rather than the internal pagination generated by the court reporter's software.
. This issue takes on heightened practical importance for a district court in light of the effects of the 2003 amendments to Rule 23, which the United States Court of Appeals for the Third Circuit recently interpreted as a matter of first impression to require that district courts must include in class certification orders a clear and complete summary of those claims, issues, or defenses subject to class treatment. Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of America,
. This issue is key in the instant case because there is some, although certainly not complete, overlap between deciding issues related to the propriety of class certification as a Rule 23(b)(2) class — whether UPS "has acted or refused to act on grounds generally applicable to the class”-and some merits issues — whether there exists at UPS a de facto policy that violates the ADA and whether UPS implements its formal compliance policies in good faith.
. Judge Newman's careful opinion in In re IPO discussing the evolution of case law in the Second Circuit and noting the need for clarification of a district court's role in assessing a motion for class certification recognizes that confusion. See In re IPO,
. As pointed out by the United States Courts of Appeals for the Second and Third Circuits, however, the Supreme Court in proscribing a preliminary inquiry into the merits in Eisen was focused on an issue with no direct bearing on the decision whether to certify a class in that case. See In re IPO,
. This statement in Chiang did not arise in the context of a close analysis of the issue of what is the appropriate standard of review for deciding class certification motions. The court of appeals has never explicitly repudiated it. Other decisions by the court of appeals, however, which focus more directly on the issue of the appropriate standard of review for a district court deciding certification — although they predate Chiang — call the continued validity of this statement into question. See, e.g., Johnston,
. The court of appeals in Szabo considered an interlocutory appeal of a district court’s certification of a nationwide class of persons who had bought machine tools that included a component part manufactured by the defendant.
. In Szabo, the court of appeals scrutinized a decision to certify a Rule 23(b)(3) class. The same reasoning is applicable to a court’s determination whether to certify a Rule 23(b)(2) class such as this proposed class.
. The concerns of absent class members are mitigated in the Rule 23(b)(2) context where notice and opt-out are not required as a matter of law and absent class members may be bound by injunctive or declaratory relief regardless of whether they participate in the class action. The force of the court of appeals' caveat in Szabo, however, still holds.
. The plaintiffs in Newton sued their broker-dealers who traded on the National Association of Securities Dealers Automated Quotation System (NASDAQ) under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 for allegedly breaching their duty of best execution. Newton, 259 F.3d at 162. Despite the broker-dealers' duty to execute trades under the most "favorable terms reasonably available,” the investors charged that the defendants in Newton executed orders at the price offered on the central National Best Bid and Offer system (NBBO), failing to investigate other feasible alternatives that potentially offered better prices. Id.
. The court of appeals also cited 5 Moore’s Federal Practice § 23.46[4] ("[B]ecause the determination of a certification request invariably involves some examination of factual and legal issues underlying the plaintiffs’ cause of action, a court may consider the substantive elements of the plaintiffs' case in order to envision the form that a trial on those issues would take.”). Newton,
. Judge Newman's careful opinion in In re IPO elucidates the standard of review a district court should use when determining whether certification is warranted, and whether “findings” are required:
It would seem to be beyond dispute that a district court may not grant class certification without making a determination that all of the Rule 23 requirements are met. We resist saying that what are required are "findings” because that word usually implies that a district judge is resolving a disputed issue of fact. Although there are often factual disputes in connection with Rule 23 requirements, and such disputes must be resolved with findings,*164 the ultimate issue as to each requirement is really a mixed question of fact and law.
In re IPO, 471 F.3d at 40. The United States Court of Appeals for the Second Circuit in In re IPO explicitly moved away from its somewhat confusing precedent to join the predominant view and "[aligned itself] with Szabo, Gariety, and all of the other decisions discussed above that have required definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits issues.” Id.
. The United States Court of Appeals for the Fourth Circuit in Gariety considered the 2003 amendments to Rule 23. The court noted that upon amending Rule 23(c) to require the court to determine class certification "at an early practicable time” instead of "as soon as practicable after commencement of [the] action,” the Advisory Committee explained that "preexisting and longstanding practice” allowing discovery in aid of the certification decision prompted the change. Gariety,
In Gariety, the court reasoned that, despite the confusion it engendered, the gravamen of Eisen was not that a district court should accept the plaintiffs' pleadings as true when assessing whether a class should be certified, but rather that a district court should not expand the Rule 23 certification analysis to include consideration whether the proposed class is ultimately likely to prevail on the merits. Id. The court of appeals stated:
Thus, while an evaluation of the merits to determine the strength of plaintiffs’ case is not part of a Rule 23 analysis, the factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits. Eisen’s prohibition against assessing plaintiffs' likelihood of success on the merits as part of a Rule 23 certification does not mean that consideration of facts necessary to a Rule 23 determination is foreclosed merely because they are required to be proved as part of the merits. The analysis under Rule 23 must focus on the requirements of the rule, and if findings made in connection with those requirements overlap findings that will have to be made on the merits, such overlap is only coincidental. The findings made for resolving a class action certification motion serve the court only in its determination of whether the requirements of Rule 23 have been demonstrated.
Id. (emphasis added). The court of appeals ultimately remanded the Gariety case to the district court to look beyond the pleadings and conduct a rigorous analysis of whether certification requirements were met — including making findings under Rule 23(b)(3). Id.
. In In re IPO the United States Court of Appeals for the Second Circuit noted that "[t]he First Circuit has expressed a mild disagreement with this strong line of authority ... although aligning itself with 'the majority view' that permits merits inquiry.”
. Rule 23 determinations differ from other threshold issues like subject-matter jurisdiction in how the discretion of a district court is scrutinized upon appellate review. In re IPO,
. As pointed out in In re IPO, overlap between a Rule 23 requirement and a merits issue justifies some adjustment in a district court’s procedures at the class certification stage. Id. “To avoid the risk that a Rule 23 hearing will extend into a protracted mini-trial of substantial portions of the underlying litigation, a district judge must be accorded considerable discretion to limit both discovery and the extent of the hearing on Rule 23 requirements. But even with some limits on discovery and the extent of the hearing, the district judge must receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.” Id.
. Plaintiffs submitted a similarly titled document, "Injured Employees: Focus on Abilities, Health and Safety and the ADA” (the “Focus on Abilities presentation materials”), which appears to be training material meant to accompany a live presentation to employees. Pis.’ Ex.App., Tab 5. The first page of the Focus on Abilities presentation materials indicates that the presentation will take 45 minutes; related materials include a "Trainer’s Guide,” “Handouts,” "Overheads," and "Participant’s Guide;” and that the objective is ”[t]o examine how the ADA has affected the practices and policies of our Health and Safety department.” Id. at 1. These materials are not dated. UPS submits that these materials relied upon by plaintiffs predate the ADA procedure developed in 1999 and 2000, and were superseded by subsequent training in connection with the revised ADA procedure. Lee Deck «14-15.
. The parties filed what appear to be identical copies of the Manual without its full appendices. Both submissions are Bates-stamped UPS-000219 — UPS-000314. The court will cite references to the Manual by referring to the Manual's internal pagination (pages 1-89).
. The DWPM will open a "Request File" which should include a form to record the date the request was made, the date it was forwarded to another manager, and the date a decision was reached, as well as copies of all correspondence sent or received during the accommodation request process, all medical information received from or submitted on behalf of the employee, any agreements with the union concerning the employee, and any other documentation relating to the process. Manual at 35-38.
. The ten-step process involves the following steps and personnel: Step One: Commence the Process (DWPM, OHS); Step Two: Gather Medical Information (DWPM, OHS); Step Three: Evaluate Whether the Employee May Have a Disability (RWPM, ROHM); Step Four: Notify the Employee (DWPM); Step Five: Meet with the Employee (Hold Checklist Meeting) (DWPM, DLRM, OHS); Step Six: Identify Potential Reasonable Accommodations (Complete Written Checklist) (DWPM, DLRM, OHS); Step Seven: Evaluate Appropriate Accommodations (ADA Committee Meets) (RWPM, ROHM, DWPM, DHRM, DLRM, OHS); Step Eight: Bargain with the Union (when an accommodation is identified for a union employee) (RWPM, DLRM, DWPM, BA); Step Nine: Notify the Employee (DWPM, DLRM, BA); Step Ten: Close the File (DWPM, DLRM). Id. at 42-43.
. Plaintiffs cite Pis.' Dep.App., Tab 12 (Deposition of Mark Hohider)(“Hohider Dep.") at 11-12 to show that Hohider’s request was ignored. After reviewing the record before the court, however, deposition testimony was not found that is directly on point, even though pages 10-13 of the Hohider Dep. are part of the appendix.
. Plaintiffs argue that although in theory the process contains ten steps, the process normally ends after Step Three because regional managers evaluate the paperwork at this stage and can summarily deny requests well before actually engaging an employee in the interactive process required by the ADA. See Pis.’ Br. at 22.
. Plaintiffs cite the Allison Dep. at 243 in support of this argument. This page of Vance Allison’s deposition, however, was not included in the filing with the court. See Pis.' Dep.App., Tab 1.
. It is not readily clear from the record whether the employee requesting accommodation receives a copy of these lists.
. It appears, although the briefing and submissions are not crystal clear, that this data was gathered from files created based upon requests made after May 10, 2000, and before Fall and Winter 2004. See Williams Decl. H 5.
. See UPS’s Opposition to Plaintiffs' Motion for Class Certification ("UPS’s Opp. Br.”) (Doc. No. 182) at 24; Williams Decl. 11119-12; Williams Decl., Ex. E (table of 27 individuals by first name and last initial); Williams Decl., Ex. R (table of 17 individuals by first name and last initial).
. See UPS’s Opp. Br. at 24; Williams Decl. H1i 13-15; Williams Decl., Ex. G (TAW registers by location for the Laurel Mountain district from January 1, 2000 to December 31, 2003 (607 total); for the Georgia district from May [1], 2000 to December 31, 2004 (2274 total); for the Northern Illinois district from May [11], 2000 to [December 31], [2004] (2543 total); and for the Southeast California district from May 10, 2000 to August 31, 2004 (2622 total)). (Note that the dates in the affidavit do not match the dates in the attached exhibits.) The parties have not, and the court has not, further analyzed the data contained in the TAW registers claim-by-claim, or employee-by-employee, to cross-check for multiple accommodations per employee or to extrapolate more detailed results from the data.
. See Lee Decl. U 20, Ex. O (Diabetes Protocol) and Ex. P (Vision Protocol).
. See Williams Decl. 1116, Ex. H (table summarizing individuals by first name and last initial who received accommodations for known hearing disabilities).
. See Williams Deck U 17, Ex. I (table summarizing individuals by first name and last initial who received accommodations through the Residual Disability/Return to Work program).
. See Williams Deck H 18, Ex. I (table summarizing individuals who received informal accommodations from UPS managers outside of the ADA Compliance program, the collective bargaining agreement, or a specific UPS program; noting the nature of the request and the accommodation).
. UPS submitted declarations from various labor relations managers in the sample districts to the effect that the practice in the districts, and indeed an explicitly bargained part of certain supplemental agreements, is to permit employees who are absent from work on leave, including those absent due to workers' compensation and disability leave, to bid for bargaining unit jobs. See Declarations of William E. Zbieszkowski, Mike Rosentrater, and Tom Haefke (UPS’s App., Tabs 7-9).
. Mr. Burke, however, declared that his District Health & Safety Manager advised him about his rights under the ADA and encouraged him to apply for an accommodation. Id. H 6.
. The record is replete with declarations from UPS managers and employees. The court reviewed these declarations for their general content. Defendant offers rebuttal documents related to some, but not all, of the individual declarants and documents. See UPS Opp.App. at 1755-1896; UPS’s Opp. Br. at 32-34. At this stage in the proceedings, the parties and the court cannot substantiate or impeach the truth or falsity, or degree of credibility, of every declaration before the court. The court will not summarize the entirety of the allegations. It is sufficient for the purpose of deciding whether class certification is appropriate to note the production by plaintiffs of the declarations making the above-referenced general allegations and to note UPS’s opposition to the credibility of some of the assertions within the declarations. See Part I infra discussing the appropriate standard of review for deciding whether the Rule 23 requirements have been met. The legal effect of the existence of varying individual circumstances will be discussed in more detail later in this memorandum opinion.
. The court could not locate the exact language quoted in plaintiffs’ brief and identified as stated on the "fax cover sheet.” See Pis.' Br. at 13. An email containing similar, although not identical, language was submitted to the court as Pis.' Ex.App., Tab 16. The court could not locate this "fax cover sheet” in the materials submitted to the court.
. The EEOC Miller Determination listed as Respondent "United Parcel Service, 30 Marshall Street, Brentwood, West Virginia 26031."
. The EEOC DiPaolo Determination listed as Respondent "United Parcel Service, 521 North Center Avenue, New Stanton, PA 15672.”
. The EEOC Hohider Determination listed as Respondent "United Parcel Service, 521 North Center Avenue, New Stanton, PA 15672."
. The EEOC Fields Determination listed as Respondent “United Parcel Service, 1400 South Jefferson, Chicago, IL 60607.”
. The EEOC Ragusa Determination listed as Respondent "United Parcel Service, 180 Canal Place, Bronx, N.Y. 10461."
. Plaintiffs moved the court for leave to file notice of two other EEOC reasonable cause determinations after the briefing on the class certification motion was submitted which plaintiffs argued were evidence that the EEOC in its investigations of individual cases had made findings concerning the alleged policies and practices challenged in this litigation, including the policy of requiring a 100% medical release. See (Doc. No. 189-3) (EEOC Sanchez Determination) ("Respondent (1) failed to engage in the interactive process with the Charging Party, (2) required him to be '100 percent’ fit for duty, and (3) failed to reasonably accommodate Charging Party's impairment .... the evidence of record has also shown that Respondent has continued to engage in a pattern or practice of employment discrimination by maintaining a de facto return to work policy requiring employees who have permanent restrictions to be released 100% with no restrictions before returning to work. This policy has been determined to be a per se violation of the ADA...."); (Doc. No. 199) (EEOC Nelson Determination) (similar). UPS opposed plaintiffs’ motions for multiple reasons, arguing that time for class discovery and briefing was closed, reasonable cause determinations and EEOC investigations are limited and routinely excluded as evidence, and the EEOC determinations concern inherently individualized circumstances which should not be considered regarding the existence of a policy susceptible of classwide adjudication. (Doc. Nos.190, 191, 200, 201). UPS also argued that plaintiffs' limited submission of EEOC determinations that supported their case inappropriately ignored the numerous "no probable cause" determinations by the EEOC and other evidence in the very same districts in issue. See (Doc. No. 201). The court need not resolve these evidentia-ry disputes at this time because these materials are cumulative of evidence already in the record and the court can take note of the evidence and UPS's objections to it and give both whatever weight is appropriate for reaching a decision on certification without making a finding that such evidence will be competent at the merits stage of the proceedings.
. The difficulty for district courts, however, is that in part due to the recent timing of Wachtel, litigants sometimes do not brief the certification issue with the same clarity and focus required of • district courts in issuing memorandum opinions. Under those circumstances, the burden on the district court to satisfy the dictates of Rule 23 and Wachtel will continue to be great.
. The court of appeals in Taylor noted that it previously had left open the difficult issue whether a "regarded as” plaintiff is entitled to reasonable accommodations. Taylor,
. "The ADA specifically provides that an employer 'discriminates’ against a qualified individual with a disability when the employer does ‘not mak[e] reasonable accommodations to the known physical or mental limitations of the individual unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].' " Williams,
. See Armstrong v. Burdette Tomlin Memorial Hosp.,
. The court of appeals noted its previous determination that this regulation and the EEOC’s interpretive guidelines applied to a claim under the Rehab Act. Taylor,
. The court of appeals noted in Mengine and in Taylor that other courts of appeals have taken this view. Id. at 312; see, e.g., Beck v. University of Wisconsin Bd. of Regents,
. The court of appeals held that the plaintiff in Williams had demonstrated that a fact finder could conclude "that [his employer] knew about his disability, that he requested accommodation, that [his employer’s] quite limited response to his training unit assignment request was not made in good faith, that [his employer’s] offer of extended unpaid leave was not a good faith response to his request for a radio room assignment, and that [the plaintiff] could have been reasonably accommodated with a radio room or training unit assignment but for [his employer’s] lack of good faith.”
. In Williams, the court of appeals stated: "Unlike a claim for discrimination under the ADA, an ADA retaliation claim based upon an employee having requested an accommodation does not require that a plaintiff show that he or she is
. Defendant cites Selwood v. Virginia Mennonite Retirement Community, Inc.,
. Plaintiffs refer to Teamsters in the briefing and consistently characterize their claims as "pattern-or-practice” claims. See Pis.' Br. at 2 n. 1 ("Following class certification, at the merits stage on liability, Plaintiffs intend to use the pattern or practice method of proof to establish that systemic discrimination in violation of the requirements of the ADA is the 'company’s standard operating procedure — the regular rather than the unusual practice.' ”) (quoting Teamsters,
. Franks predated the Supreme Court's seminal Falcon decision discussed in Part III supra which held that district courts must engage in a rigorous analysis of the Rule 23 requirements when deciding whether to certify a class under Federal Rule of Civil Procedure 23. See General Telephone Co. of Southwest v. Falcon,
. 42 U.S.C. § 2000e-2(a) generally provides:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Id.
. In the accompanying footnote, the Court stated that while the district court order was silent as to whether applicants for the relevant positions who were previously discriminatorily refused employment must be presently qualified for those positions in order to be eligible for priority hiring under that order, the court of appeals made clear that they must be, and the Supreme Court agreed. Id. at 772 n. 31.
. At the time Teamsters was litigated, the statute provided that the Attorney General had the authority to bring "pattern-or-practice” lawsuits against private sector employers. Teamsters,
. Following receipt of evidence but before decision, the parties in Teamsters entered into a "Decree in Partial Resolution of the Suit” with respect to the injunctive relief that plaintiffs would obtain if the court determined that unlawful discrimination had occurred.
. Perhaps in the case of a private-plaintiff class action, the Teamsters approach is more aptly named the Franks approach pursuant to the precursor to Teamsters which was a private-plaintiff class action lawsuit. As discussed above, Franks was a private-plaintiff Rule 23(b)(2) class action lawsuit, albeit litigated pursuant to Title VII.
. The Supreme Court stated in McDonnell Douglas that "[t]he complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie cade of racial discrimination” and "[t]his may be done by showing” the now-familiar McDonnell Douglas elements of proof in individual cases. McDonnell Douglas Corp. v. Green,
. In Baxter, a case cited favorably by the Supreme Court in Teamsters, the court of appeals explained that because, as the district court apparently had recognized, the plaintiff had established a prima facie case of class-wide discrimination resulting in severe economic disparities between the earning power of African-American employees and other employees at the refinery at issue, "the district court acted prematurely in requiring individual proof of economic loss and committed error in mandating that an individual establish that he had the prerequisite 'qualifications’ for a higher position in the initial proceedings to ascertain the nature of employment practices.”
A Title VII class action suit presents a bifurcated burden of proof problem. Initially, it is incumbent on the class to establish that an employer’s employment practices have resulted in cognizable deprivations to it as a class. At that juncture of the litigation, it is unnecessarily complicating and cumbersome to compel any particular discriminatee to prove class coverage by showing personal monetary loss. What is necessary to establish liability is evidence that the class of [African-American] employees has suffered from the policies and practices of the particular employer. Assuming that the class does establish invidious treatment, the court should then properly proceed to resolve whether a particular employee is in fact a member of the covered class, has suffered financial loss, and thus entitled to back pay or other appropriate relief.
Id. at 443-44.
. The Court in Teamsters, after announcing the implications of its decision in that case, also addressed the task remaining for the district court on remand in that case, which "will not be a simple one.”
. Much of defendant's opposition to class certification in this case is fueled by defendant’s position that plaintiffs cannot litigate their ADA claims pursuant to the pattern-or-practice framework, and defendant's argument that plaintiffs will not be able to make out the required individual elements of proof for their ADA retaliation claims and their ADA failure to make a reasonable accommodation claims. That position cannot be sustained under the Pranks, Teamsters, and Cooper trilogy of Supreme Court decisions.
. In Murray, the district court noted in a footnote that: "If the EEOC prevails in the liability phase of its claim, it may then seek monetary damages on behalf of qualified individuals with disabilities affected by the discriminatory policy. This would include [the individual the EEOC sued on behalf of], if the EEOC could show either that he had a record of a disability or that he was regarded as disabled.”
. Not surprisingly, plaintiffs rely heavily on Hendricks-Robinson and related cases in their briefing while defendant UPS urges the court to be guided by the reasoning in Sokol and Lintem-uth.
. Lintemuth and Sokol will be discussed in more detail in Part VII supra with respect to typicality.
. The district court in Bates granted certification pursuant to Rule 23(b)(2).
The United States Court of Appeals for the Ninth Circuit granted UPS’s 28 U.S.C. § 1292(a)(1) appeal.
. The policy in issue in Bates expressly prevented hearing-impaired employees from driving positions for all vehicles even though the DOT hearing standards required that these employees be excluded from operating only vehicles weighing 10,001 pounds or more.
. This court notes that the court of appeals commented that, notwithstanding the fact that it affirmed the district court's finding that the policy at issue violated the ADA, it reasoned that the Teamsters pattern-or-practice framework of proof was inappropriate in Bates because the case involved a facially discriminatory policy.
. The court notes that the individual elements of a reasonable accommodation claim may be relevant at the second, remedial stage of proceedings if plaintiffs seek individual relief on behalf of individual class members.
. The allegation of a pattern or practice of discrimination requires a court to examine issues that may overlap with merits issues. Otherwise, anytime a private plaintiff class alleges a class-wide discriminatory policy and seeks certification under rule 23(b)(2), the mere allegation of a pattern or practice of discrimination — for example, the allegation of a company-wide policy— would be suggestive of class treatment simply because the plaintiffs were arguably treated on grounds generally applicable to the class. The court must examine whether plaintiffs adduce sufficient indicia of a classwide policy in order to
. Rule 23(b)(1) contemplates class action treatment when "the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.” Fed.R. Civ. P. 23(b)(1). A Rule 23(b)(1) class is more like a(b)(2) class than a(b)(3) class because the notice and opt-out procedures available to putative members of a(b)(3) class are not mandatory for (b)(1) and (b)(2) classes.
. These subclasses correspond to the three claims which this court determines to be appropriate for Rule 23(b)(2) classwide adjudication as discussed below. The court notes that there may be overlap among the subclasses with respect to the evidentiary support for or against these claims and with respect to membership in the subclasses.
. If plaintiffs are allowed to proceed as a class action and seek individual relief for class members, then this court can adopt a variety of different approaches to deal with adjudicating requests for individual relief:
Rule 23(c)(4) permits maintaining an action as a class action with respect to particular issues. Several courts have suggested a "hybrid” approach in discrimination cases to deal with the problems created by the enhanced-damages provision of the Civil Rights Act. Hybrid options include a Rule 23(b)(2) class with respect to the injunctive aspects of the suit and a Rule 23(b)(3) class to consider the claims for monetary relief. Other alternatives include certification of a Rule 23(b)(2) class for class-wide damages and severing the issue of individual damages to be considered later in the suit. Consider whether one of these approaches would be useful and, specifically, whether a Rule 23(b)(3) or (b)(2) class should be certified for bifurcated adjudication of a common issue (Phase I), to be followed by separate trials (coordinated or consolidated as may be appropriate) to adjudicate individual damage claims (Phase II). Once there has been a finding in Phase I of a class-wide violation, "the court should decide the issue of class-wide relief, typically in the form of an injunction prospectively prohibiting the discriminatory practice.”
See Man. Compl. Litig. § 32.42 at 581-82 (quoting George Rutherglen, Major Issues in the Federal Law of Employment Discrimination 102 (Federal Judicial Center 3d ed.1996)).
There are cases, however, where injunctive relief would not remedy the challenged employment practice, such as where the practice has been discontinued or the plaintiff is no longer employed by the defendant. The court can then determine what individual relief is appropriate for class members.
Id. at 582 (citing in a footnote, inter alia, Cardenas v. Massey,
Plaintiffs in this case have moved for class certification pursuant only to Rule 23(b)(2). Plaintiffs, however, previously moved for bifurcation of the trial into two phases — one for liability and one for damages. These issues will be addressed in more detail below with respect to the propriety of class certification with respect to some or all of the claims in the case.
. UPS also presents data about accommodations made to employees at UPS based upon avenues outside of the formal ADA compliance protocol — such as accommodations through its alcohol and controlled substance program, its disqualified driver program, its TAW program, its Diabetes Protocol and Vision Protocol, its hearing disability program, its Residual Disability/Return to Work program for non-bargaining unit employees, and accommodations made on an informal basis. See generally Williams Decl. «8-18; Lee Decl. «18-22.
. Much of the evidence produced in plaintiffs’ appendices relates to the 100% healed policy and the implementation of UPS's formal ADA compliance policies claims. The evidence also includes multiple references, however, to the job descriptions — most frequently with reference to lifting requirements which plaintiffs at times dispute are actual requirements of certain jobs. See, e.g., Declaration of Todd Collins V 12; Declaration of Robert Ducheneau H 11; Fields Decl. t 6. While UPS disputes the use of the uniform job descriptions as pretextual, it does not seriously dispute the numerosity of employees subject to the job descriptions. Therefore, numerosity is satisfied for each of the three claims which the court concludes are appropriate for certification.
. It is worth noting that the ''100%" or full release policy as alleged by plaintiffs does not mean that UPS required 100% or full medical release 100% of the time. Rather, the policy as alleged by plaintiffs is that UPS has a de facto policy of requiring employees attempting to return to work to provide a 100% or full release with no restrictions. Allegedly, requiring 100% or full medical release at UPS is not the rare exception but instead is a widespread policy. See Teamsters,
. This conflicting evidence also implies that genuine issues of material fact exist that would necessitate a jury trial.
. See Baby Neal,
. In McGregor, the court of appeals reversed the district court’s grant of summary judgment because whether the employer in that case had a "100% healed" policy or its functional equivalent was a disputed issue of material fact which made granting summary judgment on that issue inappropriate. McGregor,
. In Hendricks-Robinson, unlike this case, however, the question whether the plaintiffs were qualified individuals with disabilities was not in issue — the parties in that case accepted without argument that the plaintiffs were "otherwise qualified disabled employees” who were either disabled or perceived by the defendant employer to be disabled.
. The court of appeals in Hendricks-Robinson characterized the lawsuit as a lawsuit challenging the company’s policy as per se violative of the ADA and not as a lawsuit pursuing individual claims under the ADA, commenting that the plaintiff class was certified "on the ground that it was attacking [the employer’s] medical layoff policy and was not pursuing the plaintiffs’ individualized claims." Id. at 688 (emphasis added). On appeal, the grant of summary judgment was reviewed subject to the same qualification: the court of appeals examined "whether [the employer's] policy discriminated against the plaintiffs by failing to make reasonable accommodations for them as disabled individuals.” Id. at 692 (emphasis added). As in this case, the focus of the litigation was the employer's policy, not individual cases of discrimination.
. Defendants argue, as UPS did in Bates, that plaintiffs' prima facie showing must include a showing that plaintiffs are "qualified individuals” under the ADA — and because this is an inherently individualized inquiry, class certification is inappropriate. Plaintiffs counter that because they seek to litigate their claim in this case under the pattern-or-practice framework established in Teamsters, at the initial liability stage of litigation, plaintiffs are not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy. Rather, at the initial liability stage, plaintiffs argue that they will need only to establish a prima facie case that the alleged policy existed. See Cooper,
. Plaintiffs' reliance on these decisions does little to advance plaintiffs’ theory that their retaliation claim can be proven using the pattern-or-practice framework.
. In Henderson, the court of appeals noted that the employers’ " '100% healed rule' appear[ed] to have been well-known and consistently applied, at least with regard to lifting restrictions, and [was] assumed to exist for purposes of summary judgment.” 247 F,3d at 647.
. In the accompanying footnote the court of appeals commented:
Hence if the employer had only a set of relatively physically demanding jobs available and prevented a plaintiff from working these jobs, the employer would not necessarily be "regarding” the plaintiff as disabled, even if the plaintiff could show that the excluded employment was in fact within his capacities....
. As noted previously, plaintiffs need to show that a wide-spread discriminatory policy exists, but not that the 100% healed policy was applied all the time. See note 76 infra.
. If this claim otherwise satisfies Rule 23, plaintiffs will need to refine whether they are challenging the use of these job descriptions as alternative violations of the ADA or relying on this policy as evidentiary support for the challenge to UPS’s overall formal ADA compliance policy.
. The court notes briefly that even if plaintiffs could meet Rule 23(a) commonality, they could not meet Rule 23(a) typicality or Rule 23(b)(2)'s requirement that defendant acted towards plaintiffs on "grounds generally applicable to the class” with respect to the retaliation claims. Rule 23(b)(2) certification of the retaliation claim is not available on the facts adduced during class certification discovery in this case.
. The court in Baby Neal noted further that:
We underscore at the outset that neither [typicality nor commonality] mandates that all putative class members share identical claims, and that factual differences among the claims of the putative class members do not defeat certification.
Id. at 56; see Eisenberg v. Gagnon,
. This reasoning may not apply with equal force if plaintiffs seek individual monetary damages. The court, however, will not certify the class for compensatory or punitive damages.
. Defendant's arguments that individualized issues predominate and each named plaintiff's claim implicates unique defenses fail in light of the court’s finding that plaintiffs can litigate ' these claims challenging alleged company-wide policies pursuant to the pattern-or-practice framework.
. See Bates,
. UPS argues that Branum is not typical or adequate as a named plaintiff in light of the individualized instances of harassment he alleges against UPS. As noted above, however, plaintiff Branum also alleges he was told that he could not come back to work as a mechanic unless he was "100%" — implicating the 100% healed policy claim.
. If a court allows the plaintiffs to seek compensatory damages in addition to declaratory and injunctive relief and back pay, a court may exercise its discretion under Rule 23(d) and require notice and opt-out. Without requiring these procedural protections if compensatory claims are included as part of the damages, and perhaps in certain circumstances even in spite of them, a named plaintiffs’ adequacy to represent all class members might be called into question.
. Defendant also argues that these factors also undercut commonality and typicality within the proposed class.
. As recently noted by the United States Court of Appeals for the Third Circuit, there is a “conflict between certification under Rules 23(b)(1) and (b)(2) — which is binding on all class members — and under Rule 23(b)(3) — which allows class members to opt-out." Beck v. Maximus, Inc.,
. In addition, the court notes that plaintiffs’ proposed order certifying the class mentions punitive damages in addition to compensatory damages. See Plaintiffs’ Amended [Proposed] Order Granting Plaintiffs' Motion for Class Certification (Doc. No. 155-2). The court need not address whether plaintiffs would be prevented from seeking punitive damages in light of Federal Rule of Civil Procedure 26(a)(1)(C) and (e) in light of the court’s decision that these damages are not appropriate in this class action.
. In Richards, the court of appeals stated: Though framed in terms of declaratory and injunctive relief, this class claim is for monetary damages. “Almost invariably ... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for 'money damages,’ as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant’s breach of legal duty’.... The injunction and declaration Richards seeks is no exception. No matter how she phrases it, what she wants is a judicial decree directing Delta to
. "Because it automatically provides the right of notice and opt-out to individuals who do not want their monetary claims decided in a class action, Rule 23(b)(3) is the appropriate means of class certification when monetary relief is the predominant form of relief sought and the monetary interests of class members require enhanced procedural safeguards.”
. See Allison,
. Notwithstanding the general consensus among courts following the more restrictive incidental damages approach originally set forth in Allison and the more permissive approach articulated in Robinson that back pay, as an equitable remedy that flows from liability and can be determined based on relatively objective standards, is a permissible remedy under Rule 23(b)(2), the Court of Appeals for the Second Circuit insinuated in Robinson that due process risks for non-incidental damages might also apply to back pay, and like the other non-incidental damages, these can be addressed at the damages portion of the trial. Id. at 166 n. 10-11.
. See Fed.R.Civ.P. 23(d)(2)("the conduct of actions to which this rule applies, the court may make appropriate orders: ... requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action. ...”).
. The court of appeals also found no error in the district court’s finding that plaintiffs had not satisfied the predominance and superiority requirements set forth in Rule 23(b)(3). Id. at *2-3.
. In an accompanying footnote, the court of appeals again emphasized: “We do not suggest what relief, if any, may be appropriate.”
. The court must briefly respond to one of UPS's other miscellaneous arguments against class certification in this case: In the briefing and at the hearing on class certification, UPS stressed that class certification was not necessary to adjudicate these individual claims, and that class certification is not the most efficient method of adjudicating these claims, alluding to the burden class certification proceedings placed upon defendant and the court. This is not a Rule 23(b)(3) class. The court does not consider whether the class action is the superior device for adjudicating these claims under Rule 23(b)(2). Defendant's broader efficiency policy arguments notwithstanding, the court is compelled to grant or deny certification based upon whether sufficient evidence has been adduced showing that the applicable Rule 23 requirements have been met. See Alba Conte & Herbert Newberg, Newberg on Class Actions § 4:11 at 62 (4th ed. 2002) ("Rule 23(b)(2) classes have no requirement that common questions predominate over individual questions, or that the class action be superior to other available methods for the fair and efficient adjudication of the controversy.”); see also Allison,
. To be clear: At this time, the court is certifying the aforementioned class claims for class-wide injunctive and declaratory relief. The court has determined that plaintiffs will not be able to pursue compensatory or punitive damages, or any other monetary damages that are not incidental to the appropriate injunctive or declaratory relief, as part of this class action. See Allison,