Jеff Lemon, Karen Meyer, John Duncan, Odell Williams, Virgil Eiland, Pat Haynes, Craig Anderson, Shirley Nyman and Franklin Edmonds, Plaintiffs-Appellees,
v.
International Union of Operating Engineers, Local No. 139, AFL-CIO, Defendant-Appellant.
No. 99-4101
In the United States Court of Appeals For the Seventh Cirсuit
Argued April 12, 2000
Decided June 9, 2000
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 0857--John W. Reynolds, Judge. [Copyrighted Material Omitted]
Before Cudahy, Coffey and Kanne, Circuit Judges.
Kanne, Circuit Judge.
The district court, deciding class certification in this Title VII class action without the benefit of Jefferson v. Ingersoll International Inc.,
I. History
International Union of Operating Engineers Local 139 ("Local 139" or the "Local") represents heavy-equipment operаtors in Wisconsin and administers an employment referral hall through which its members can find work. Members of Local 139 in search of employment may fill out data cards listing their qualifications and place themselves on the referral hall's "out-of-work list." Contrаctors seeking heavy-equipment operators in Wisconsin regularly contact Local 139, and the Local matches those contractors with members on the out-of-work list qualified to handle the jobs. According to the Local, the referral hall doles out work assignments to registered operators according to their qualifications, geographic proximity and ordinal seniority on the out-of-work list.
The named plaintiffs are members of the Local who sought work through the referral hаll and claim that Local 139 intentionally discriminated against them as racial minority members and women by diverting work opportunities to white males. On August 12, 1997, they filed a class-action lawsuit on behalf of all minority and female members of Local 139, alleging that Lоcal 139 violated Title VII of the Civil Rights Act, 42 U.S.C. sec.sec. 2000e to 2000e-17, by operating the referral system in an intentionally discriminatory manner. The plaintiffs sought a jury trial for declaratory and injunctive relief, as well as compensatory and punitive damagеs. In support of their claim, the plaintiffs planned to introduce testimony from witnesses who observed discriminatory conduct by Local 139 officials. Namely, the plaintiffs intended to offer the testimony of Dale Miller, the current president of the Locаl, who told the EEOC that the former business manager of the Local, Donald Shaw, was racist and manipulated the referral system to pass over minorities and women. In addition, the plaintiffs promised to adduce statistical evidence demonstrating that thе Local's low hiring, placement and referral rates for women and minorities could not have occurred as a result of chance.
On June 1, 1998, the plaintiffs moved under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure to certify a class of mоre than 400 minority and female members against whom Local 139 allegedly discriminated in its operation of the referral system. Magistrate Judge Patricia Gorence recommended certification of the class under Rule 23(b)(2) and mentioned in passing that "the plaintiffs [also] have satisfied the criteria of Rule 23(b)(3)." On September 24, 1999, the district court adopted the magistrate's recommendation and certified the class under Rule 23(b)(2) to proceed with its Title VII claims. The court designated Jeff Lemon, Karen Meyer, John Duncan, Odell Williams, Pat Haynes, Craig Anderson, Shirley Nyman and Franklin Edmonds as class representatives. Local 139 then filed an interlocutory appeal to challenge certification of the plaintiff class.
II. Analysis
Rule 23(b)(2) declares that clаss certification under that subsection is appropriate 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. Civ. P. 23(b)(2). The Rule itself is silent regarding whether Rule 23(b)(2) certification is permissible when, as in this case, the plaintiffs request monetary damages as well as "final injunctive relief or corresponding declaratory relief." However, the advisory note to Rule 23(b)(2) explains that the subsection "does not extend to cases in which the appropriate final relief relates exclusively or predominаntly to money damages." Fed. R. Civ. P. 23(b)(2) advisory committee's note.
As we explained in Jefferson v. Ingersoll International Inc.,
Indeed, in recognition of the potential divergence of interests within the class, each class member in actions for money damages is entitled as a matter of due рrocess to personal notice and an opportunity to opt out of the class action. See Ortiz v. Fibreboard Corp., 527 U.S. 815,
In Jefferson,
Like the Allison plaintiffs, the plaintiffs here sued for both equitable relief and monetary damages to remedy alleged violations of Title VII. Damages can be awarded only after proof of discrimination and injury specific to the individual plaintiff, see, e.g., Miller v. American Family Mut. Ins. Co.,
As a result, Jefferson instructs the district court to consider three alternatives for handling the case. Jefferson,
The second option is divided certification. See Jefferson,
The third option discussed in Jefferson is that the district court might certify the class under Rule 23(b)(2) for both monetary and equitable remedies but exercise its plenary authority under Rules 23(d)(2) and 23(d)(5) to provide all class members with personal notice and opportunity to opt out, as though the class wаs certified under Rule 23(b)(3). Jefferson,
The district court abused its discretion because it did not consider class certification either in part or in full under Rule 23(b)(3), nor did the court stipulate that it would provide the class members with personal notice and opportunity to opt out of the class action. The district court's treatment of the case is understandable because Jefferson had not been decided at the time of thе district court's consideration of class certification. However, since the requested monetary damages are not incidental to the plaintiffs' requested equitable relief, we Vacate class certification under Rule 23(b)(2) and Remand with directions to consider alternative class certification under the options presented in this opinion and Jefferson.