*1 requires issuance charge this case charge was emphasize that the
a writ. We as for for what it omitted as much
coercive particularly This is so it included.
what in- cautionary lacked charge
because reminding jurors
structions conscientiously their to surrender
were not proper charge can
held beliefs. While and inform dialogue-and debate
encourage attempt to convince they may
jurors correct, particular view is
others that jurors caution the charge must
such conscientiously to abandon their
never beliefs, holding if firm will result even
held here was not charge The a deadlock. error.
harmless the district court is judgment
affirmed. CARIDAD, individually and
Veronica similarly all sit-
on behalf of others al.,
uated, Plaintiffs-Appellants, et COMMUTER
METRO-NORTH
RAILROAD, Defendant-
Appellee. 98-7837, 98-7825, 98-7855, 98-7857.
Nos. Appeals,
United States Court Circuit.
Second April 1999.
Argued July 1999.
Decided *3 (Alan Shore, Quinn, Bay R. N.Y. L.
John Carboy, Molly A. Fuchsberg, Andrew J. Hunter, Firm, Fuchsberg D. Law Jacob York, N.Y.; Adler, Law New Russell Stu- brief), dent, University, John’s on the St. plaintiffs-appellants. York, Rumeld, N.Y. Myron D. New Rose, New (Gregory Wong, D. Proskauer brief), York, N.Y., on the for defendant- appellee. WALKER, NEWMAN, Background
Before: SACK, Judges. Circuit I. Class Plaintiffs and Their Claims The Class Plaintiffs are the named NEWMAN, Judge. Circuit
JON 0. plaintiffs in two actions consolidat- related The ed the District Court.1 concerns the com- appeal primarily This class consists of all African-American em- requirements of monality typicality ployees period of Metro-North for the 23(a) Rules of Civil Rule of the Federal through from 1985 1996—an estimated is whether specific issue Procedure. 1,300 persons. m,et in can be a Title requirements pro- members of the action where the VII allege The Class Plaintiffs that Metro- subjective com- posed challenge policies employ- class company-wide North’s *4 policies pro- and ponents company-wide discipline promotion delegate ee and to employee discipline and governing department supervisors cedures substantial author- appeal ity discretionary on an to make decisions about promotion. This arises issue and that is exercised plaintiffs the named a by several of racially discriminatory in a manner and against Metro-North proposed class (“Metro-North”) disparate impact has a on African-Ameri- from Commuter Railroad employees. Following can extensive dis- 15, 1998, of the District May judgment the covery, plaintiffs the certi- moved class of New Court for the Southern District pursuant support to In fication Rule 23. (Jed Rakoff, Judge). The York District S. allegations systematic disparate their prior ruling deny- judgment incorporated a disparate impact, treatment and the Plain- Plaintiffs’ motion for certifi- ing the Class report prepared by tiffs submitted a Dr. consisting class cation of Zellner, testimony Harriet the of a sociolo- em- current and African-American former. gist, testimony the of Metro-North’s own Metro-North, and dismissed all ployees of officers, and anecdotal evidence. Dr. Zell- claims, subject stipulation preserving to a report multiple ner’s was on various based of the Plaintiffs to rights the of some regression analyses performed on data addition, appeal ruling. the In Vero- class provided by opposi- files Metro-North. one,of Plaintiffs, Caridad, nica named the certification, tion to the motion for class the appeals only part judg- from that report the of Dr. submitted claim of dismissing her individual Evans, David which attacked the method- sexual harassment. ology and conclusion'sof Dr. Zellner. judg- We reverse the District Court’s (a) Disciplinary Policy and Procedure
ment to it denied class the extent challeng- are certification. The Plaintiffs to some sixteen Pursuant collective bar- ing delegation supervisors, pursuant to the gaining agreements, Metro-North’s disci- company-wide policies, authority of the plinary system, “Progressive Disciplin- the subjective regarding decisions em- make “PDS,” ary System” applies or to all of the ployee discipline promotion; and 5,000 approximately employees union requirements these circumstances the of Metro-North, employed wherever the 23(a) satisfied, Fed.R.Civ.P. can be and are company. Metro-North’s Labor Relations affirm satisfied in this case. We the Dis- Department oversees the PDS. addi- tion, trict individ- hearing Court’s dismissal Caridad’s Metro-North trains the PDS ual claim because Metro-North has' satis- day-long officers in sessions coordinated requirements recently fied the articulated Department, the Labor Relations and for an hearing affirmative officers receive an official Met- liability. Hearing ro-North Manual. defense to Title VII Officers’ pealed. plaintiffs ap- 1. Seven of the named have not applications, and reviews receives and PDS, supervisor Pursuant pay job guidelines' title a maintains .against “charges” bring may
manager De Although the Personnel misconduct, including structure. employee union ap qualified a list policies, proce- partment assembles of Metro-North’s violations department of the manager Approximately plicants, rules. dures, safety the final decision. vacancy makes managers supervisors hire the most The is directed charges. manager such authority bring , instruc hearing offi- but no other investigated by qualified are charges candidate evi- responsible for gathering given. tions are who is cer where hearing it at a presenting dence allege plaintiffs the named Several or her by his represented employee is strictly adhered are not policies that these pre- hearing transcript A union. positions to; they allege particular, charging supervisor, sented and, even when posted always are not im- what, discipline to any, if determines will receive are, well known who that it is any appeal may Union pose. Further- posted. it is position before set procedures pursuant sanction through filled more, positions some agree- bargaining in the collective forth requirements, posting exceptions to Act, 45 Labor Railway and the ments allege contribute to plaintiffs which *5 di- seq. An assistant §§ 152 et U.S.C. addition, ap- promotions. in racial bias Department Relations of the Labor rector at Metro- positions 200 union proximately appeal, initial review of conducts that positions North, viewed as are which of Ad- Special Board a three-member and manage- to a promotion facilitate might arbitrator, a neutral by chaired justment, by the governed are not position, review. the final conducts Hiring deci- protocol. promotion formal memorandum, “partially Metro-North’s positions in these In a 1994 sions —labeled Director, Stephen super- “agreement and excepted positions” Action Affirmative high the individual entirely concern about to Mitchell, left voiced visors”—are discretion; involving Personnel De- cases disciplinary percentage manager’s hiring because in the participate Also not partment of color. does people Joseph Kim- female named Plaintiff and process. African-American The promotion of dis- complained had and denied applied for department in one bro was Mitchell of chief supervisor, excepted position partially their by crimination to the Metro- alleges review dis- that Metro-North He dispatcher. crew employees, from department in that four White promoted activities ciplinary North with less protected “if all had trained and 1993 to determine Kimbro 1992 to whom had, position. unfairly disci- he to employees have been experience than class plined.” pre- has been Metro-North Historically, White, the com- named and twenty-seven and dominantly male
Nineteen Af- unfairly show that were statistics allege pany’s Plaintiffs well-represented of their race. are not disciplined because rican-Americans posi- hi those positions or management (b) Policy Promotion from workforce in the Metro-North tions management promotions filling which policy for declared Metro-North’s reports Internally produced made. from promote is to management positions Tran- Federal submits 60 and 80 ranks. Between its own within show underutilization sit Administration are filled positions management percent of job eight five of the Mrican-Americans promotion The declared in this manner. Metro-North. applicable categories open of all posting requires could be African-Americans striking, Most Personnel The positions. management for the figures census on expected, based positions, posting Department oversees area, fill metropolitan age, disciplinary charges. According 58.8 .2 New York Zellner, jobs but in fact percent probability occurring the skilled-craft of this jobs. 10,000. percent of such than one in Ac- only filled chance is less cordingly, she concluded that the estimat- (c) Reports Experts’ disciplined being ed effect of race on highly significant statistically. The results numerous multi- Based on the results of analyses regression respect of her ple regression analyses, the Class Plain- similar; Zellner, promotion being were Black re- expert, Dr. concluded tiffs’ pro- employee’s duced an likelihood of being the “effect of black on number of by approximately percent. motion disciplinary charges over the 1990-to-1994 period positive highly significant was certification, opposition to class Met- Similarly, concluded statistically.” she of Dr. Zell- critique ro-North submitted being that the effect of Black on the likeli- report prepared by expert, ner’s its Dr. promoted from 1985 to 1994 being hood of Evans noted Evans. Dr. that Metro- negative degree highly to a that was was disciplinary North has decentralized anal- significant statistically. Dr. Zellner’s that, promotion processes and a re- “[a]s computer yses were run on eleven files decentralization, sult of this an organiza- provided by Metro-North —one for each of practice pattern tion-wide of discrimi- years (providing the ten from 1985 to 1994 implausible.” ... Dr. nation is Evans title, date, job basic data such as hire last opined that Dr. Zellner’s conclusions to the date, date, depart- termination contrary from “her ac- resulted failure to sex) ment, race, providing and one count depart- for differences arise disciplinary proceedings. information on position ment and as well as her failure to attempted isolate She describes how she any specifics take into account of the situa- the effect of race on the likelihood disci- *6 tion at Metro-North.” pline: In order to estimate the net effect of primary Evans’ criticism of Zellner’s re- discipline
being black on over the 1990- port analysis is that her was done on a period, to-1994 the de- we first defined company-wide position- and not on a basis pendent variable ... as the number of by-position basis. He stated that her re- for each disciplinary charges recorded examples “fallacy sults are of the of com- employee period. as of the end of i.e., position,” had she created a sta- we obtained measurements on five Next disparity by tistical illusion of aggregating age, years company with the variables — many job data across different titles. prior years company with the data, analysis Based on his of the Evans onwards, un- department, from 1990 experiences concluded that management ion vs. status —that we ex- were, best, “at typical named Plaintiffs of pected affect employee’s would only a fraction of the Metro-North work- chances, race, regardless becoming of of particular, pointed force.” In he out that disciplinary process. in the involved We particular departments of 37 at Metro- being then estimated the effect of black North, disciplinary in no action was taken disciplinary charges, on number of con- period. during 25 of them the relevant He trolling for these variables. reported departments in also where assessing pro- In the effect of race on taken, disciplinary action had been there motion, years Dr. Zellner for controlled of job job. was considerable variation from tenure, department, and union status. perform Significantly, any Evans did not analysis, regression analyses reaching Based on her Dr. Zellner con- in his conclu- Blacks, sions; instead, average, simply cluded that on faced .7 he tallied numbers disciplinary charges, disciplinary which was times actions and made some ba- 3/£ Whites, faced, comparisons. the amount for on aver- sic depart- performed also Zellner positions. that for Furthermore, concluded Evans analyses regression ment-by-department objectively doc- be that can infractions two being Black on effect of to estimate abuse and failure umented —substance charges within disciplinary number of discipline of rates higher remit —the departments, In all department. each inci- higher corresponded to Blacks only in positive; being Black was effect dis- Evans by Blacks. infractions dence the effect departments ten was one of the discipline, on findings Zellner’s missed statistically significant. not dis- show “cannot her method stating could, on aver- blacks because crimination (d) Decision Court’s The District out who mete supervisors for age, work de- races, the District Court August of all workers discipline to more request for class Plaintiffs’ the Class nied all workers departments where in work v. Metro- Robinson See certification. or have disciplined, severely more are Co., 175 Railroad F.R.D. North Commuter whites.” than violations more committed Dr. found (S.D.N.Y.1997). The Court again Evans promotion, respect With unpersuasive: report Zellner’s posi- perform a failure to cited Zellner’s satisfied the Court has [D]efendant addition, he analysis; tion-by-position statistics, taken even most plaintiffs’ “non-pro- including for criticized Zellner carry their cannot favorably plaintiffs, which, pool, data positions” motable here, fail take because burden illu- contended, the statistical created he Metro- that different the fact account pro-, likely to be are less that Blacks sion materially different positions North noted He moted than Whites. discipline pro rates of individual percent 12.7 are promotion overall rates them. Unless with associated motion for Blacks. percent and 8.1 for Whites account, taken into are differences jobs for which However, he excluded when meaning global statistics plaintiffs’ per- than one was less rate differ when these Conversely, less. pro- little difference cent, he found account, no statisti into are taken ences (20.3 for percent by race motion rates disparities, either racial significant cally Blacks). percent 19.4 Whites versus be estab can promotion, Zellner critique, Evans’ response to majority respect great lished re- report. The supplemental prepared a Thus, at Metro-North. positio ns *7 away” “defin[ed] that Evans port argued inadequate to plaintiffs’ statistics of pattern system-wide possibility of a establishing com burden carry their re- term to taking that discrimination company-wide class monality as to policy dis- a centralized quire either certified. to be sought here su- all concerted crimination omitted). (citations The Court at 48 Id. attacked what she also Zellner pervisors. in infirmities found that further data arbitrary selection of as characterized by the affidavits not cured were statistics regression perform failure to and Evans’ only to related because submitted Fur- considered. the data he analyses on of discrimi- claim individual each affiant’s thermore, department-by- prepared she 48-49. id. at nation. See of the number comparison department addition, a “more Court noted Whites, re- and which Blacks job titles in Plaintiffs’ problem” with the fundamental rates. discipline higher had spectively, commonality: attempt demonstrate had that Blacks showed analysis This of a seeking while certification [E]ven in positions, in 48 discipline rates higher class, concede [plaintiffs] company-wide 4,266 employed. were people which standardized, company- hand, defendant’s higher had Whites, other on the relating procedures policies and only wide positions, in discipline rates of (and were promotion are discipline and in those employed were times) at all relevant non-discriminato- tler “nobody happens cares what ry.... Their claim is that discrimina- you” and that she had “walked into a lion’s picture tion only enters because de- den.” She also stated that her work was strictly fendant does not adhere to its unfairly criticized because of her sex. policies own governing discipline and Despite Metro-North’s sexual harass- but, rather, promotion, delegates broad ment and the availability proce- authority for in decision-making pro- dures lodging complaints, Caridad motions manage- to its report harassment, failed to at least personnel. alleged policy This However, initially. disciplinary at a hear- moment, overdelegation is of no howev- absenteeism, ing concerning her Caridad er, in any proof the absence of that it down, emotional, broke very became opens generalized the door to discrimi- complained being sexually harassed. Here, mentioned, nation. neither eventually spoke Caridad Stephen plaintiffs’ sociologi- statistics nor [their] Mitchell, Metro-North’s Director of Affir- opinion cal meaningfully supports such Action, mative but she did not tell him the an inference. specifics Indeed, of the attacks. Caridad reasons, Id. at 49. For these the Court testified that she although complained that concluded that the Plaintiffs had failed to she was treated poorly, she never men- commonality demonstrate typicality. tioned Clarke’s sexual harassment The Class Plaintiffs reargu- moved for Mitchell. She further testified that she ment; the District Court denied the mo- did not want Metro-North investigate during tion oral argument on Metro- complaints her because she did not think North’s motion summary judgment on an investigation improve would matters. the individual claims of the named Plain- She stated that she did not trust Metro- tiffs.2 equal employment North or its office. By 10, II. February Caridad letter dated that, Mitchell advised light Caridad Caridad, Veronica an African-American expressed wishes, he would not take woman, began working for further April. action until Despite Cari- 1992; September after completing her dad’s continued provide refusal to details training, she worked as an electrician until harassment,' about her Metro-North of- April resigned. when she Caridad shift; fered to transfer her to another only was the shift, female working her addition, she was offered a service attend- which included 12 men. position. ant Caridad declined the trans- alleges Caridad from March fer, stating that she did not feel it would through September her male su- problem solve the because the other work pervisor, Clarke, sexually Will harassed site predominantly was also male. alleges her. She episodes, several which *8 27, April On resigned Caridad from Met- included unwanted touchings. sexual Dur- 11, By ro-North. letter May dated Mitch- ing her deposition, Caridad testified that ell informed Caridad that your on “[b]ased after these incidents she found it difficult failure to contact me regarding the investi- job to do her because she “didn’t know gation/resolution your internal discrimi- this,” when was going [Clarke] to do and complaint, nation I am administratively “every day [she felt subject she] could be closing your complaint as of today.” addition, to” another attack. Caridad alleges that she treated hostilely by facts, was Based on these her male allegedly co-workers: one told moved for summary judgment, arguing 2. The District Court ject dismissed all but stipulation five of to a preserving right to challenged by the claims Metro-North. These appeal the denial of the class certification. dismissed, claims were later settled and sub-
291
23(a)
prerequisites of Rule
ysis, that the
for sexual
held liable
not be
it could
161,
Id. at
S.Ct.
have been satisfied.”
had refused
Caridad
because
harassment
2364.
investigate
to
in
efforts
cooperate
its
to
January
complaint. On
Nevertheless, a
class
motion for
sexual
dismissed Caridad’s
District Court
is not an occasion
examina
certification
The Court stated:
claim.
harassment
of the case. See Sirota
tion of the merits
complained
Caridad
[Although Veronica
Inc.,
Devices,
673 F.2d
v. Solitron
and
contact
physical
inappropriate
Cir.1982).
(2d
As
570-72
supervi-
by co-workers and
comments
stated,
in
“[N]othing
either
has
cooperate with the
sors,
to
she refused
...
a
gives
of Rule 23
history
or
language
by Metro-
investigation commenced
authority
prelimi
to conduct a
any
court
Accordingly,
allegations.
into her
North
the merits of a suit
nary inquiry into
could constitute
if these incidents
even
may be
whether
it
order to determine
harassment,
complained of can-
the acts
v.
action.” Eisen
as a class
maintained
imputed to Metro-North.
not be
156, 177, 94
Jacquelin,
&
U.S.
Carlisle
(1974).
2140,
I. Class because for class certification the motion policy of that Metro-North’s concluded court district “Provided authority to su- discretionary delegating legal proper standards applied has de- certain pervisors make class, its certify deciding whether a and affecting cisions if it con may only be overturned decision commonality and finding precluded Lund abuse of discretion.” stitutes Plaintiffs, on the The Class typicality. Fi Security Automotive v. quist Pacific hand, argue policy— that it is this (2d other 11, 14 Corp., 993 F.2d nancial Services pursuant to supervisors, delegation Cir.1993) (citation quotation and internal discretionary au- company-wide policies, omitted). However, we “notice marks oversight sufficient thority without court ably less deferential district —that of fact questions to common gives rise status court has denied class when that certification warranting Id. a class.” it has certified than when Plaintiffs contend The Class 931, class. F.2d (citing Robidoux Celani (i) and pattern in a has resulted Cir.1993)). (2d (ii) has racial discrimination and practice seeking certify party on African-American disparate impact demonstrating the burden of class bears employees at Metro-North. commonality, typicality, numerosity, grant 23(a). Here, proving that Though See Fed.R.Civ.P. adequacy. em authority supervisory discretionary commonality concerned with we are pattern ployees either results As courts typicality criteria. one discrimination affects practice of noted, merge” requirements “tend harshly oth more than guideposts for class of “[b]oth serve because difficult, extremely likely to be plain ers ... determining whether named cf. Au City York Transit Woodbury v. New are so the class claims tiffs claim Cir.1987) (2d 764, 771 F.2d thority, interests of the class that the inter-related (“Where employment practices challenged pro fairly and adequately will be members *9 ... and uncoordinated are decentralized Tele General tected in their absence.” relevant, less statistics, may be 147, though Falcon, n. 157 457 U.S. phone Co. v. than (1982). demonstrating bias 2364, significant 740 13, 72 L.Ed.2d 102 S.Ct. employ makes all single office class, where a court certifying a district Before (citation decisions.”) internal anal- ment persuaded, rigorous “after must be 292 omitted), fact that
quotation
decision-making process
marks
the
the Where the
is diffi-
challenge
subjective
cult to
Class Plaintiffs
review because of the role of sub-
components
assessment,
company-wide
jective
significant
statistical
practices
finding
disparities
does not bar a
of com-
determining
are relevant
monality
disparate
treat-
challenged employment prac-
under either
whether the
disparate impact
impact.
ment or
model.
In Fal-
tice has a class-wide
See Bare-
con,
that,
65054,
field,
cases);
(citing
noted
1987 WL
at *3
circumstances, disparate
certain
treatment
International Brotherhood
Team-
cf.
States,
challenging subjective
324,
cases
decision-mak-
sters v. United
431
n.
U.S.
340
20,
1843,
(1977)
ing processes could be certified as class
97 S.Ct.
Of class certification would on respect the issue of not be warranted showing absent some to those employees African-American challenged practice causally disciplined were while working one of pattern related to a disparate positions treatment the 48 in which African-Ameri disparate impact or has a likely on African- cans are more disciplined to be than addition, American at Metro-North. Whites. the statistical evi *10 system- Metro-North’s tion of whether commonality finding of a supports dence pattern in a resulted wide PDS has Plain Class claim. The promotion the on Afri- or affects of discrimination practice to es that tends evidence submitted tiffs severely than other more statistically can-Americans Black has being that tablish Like- to their claims. central employees is likeli employee’s an on effect significant wise, Plaintiffs the seven named indeed, for being being promoted; of hood as the they promoted were not that alleged of likelihood employee’s reduces Black discrimination, question the of result racial percent. approximately policy of dele- whether Metro-North’s of analyses, the Class conducting her supervi- department to discretion gating fac for various controlled expert Plaintiffs’ regard- subjective decisions to make sors to be relevant expect one that would tors administered promotions is employee ing disciplinary of the likelihood to manner or has discriminatory racially in a disparities statistical These promotion. African-American impact on Watson, disparate U.S. insignificant. are not Cf. claims, well their as crucial to workers is detailed 2777. 994-95, More 108 S.Ct. at class. proposed the of the as sustain required to those might be statistics see Wards persuasion, burden of Plaintiffs’ motion, dis- a certification deciding Atonio, 490 v. Packing Company Cove or resolve not consider courts must trict 650-55, 109 S.Ct. U.S. purported the the claims of the merits of (1989), report, but this L.Ed.2d 733 Eisen, 417 94 S.Ct. U.S. at class. See evidence, the anecdotal conjunction with Here, credited the District Court 2140. of burden Plaintiffs’ the Class satisfies over that expert evidence Metro-North’s purposes commonality demonstrating of weighing Such the Class Plaintiffs. of certification. of class at appropriate not evidence is the we Accordingly, litigation. in the stage satis Plaintiffs also The Class of class certification reverse the denial demonstrating typical their burden fied proceedings. for further the remand case noted, merge with which, tends to ity, as the District will include proceedings Those This crite requirement. commonality re- of whether consideration Court’s factual back that the require does not rion 23(b) met, a matter Rule quirements claim be plaintiffs named of each ground not reach. did that Court members; of all class identical disputed issue rather, that the requires Harass- of Sexual Claim II. Caridad’s essentially the same “occupy fact law or plain named centrality to the degree argu two makes appeal, Caridad On members that of other as to tiffs claim her claim support ments 163 F.R.D. Krueger, class.” her sex dismissing erred District (citation quotation and internal failure on her claim based ual harassment omitted). named Nineteen of marks attempted in Metro-North’s cooperate been sub allege Plaintiffs First, she complaint. investigation Metro- pursuant jected harassment sexual Clarke’s contends that a result company-wide “PDS” North’s discharge, a constructive subjected her that two fact discrimination. of racial “tangible discharge is a such they had admitted that Plaintiffs of these employ for which action” giving rise infractions committed to an regard without strictly liable de er does not disciplinary actions challenged defense, indeed, affirmative one typicality; finding of feat a concerning em decisions recent is Court’s putative class by the levied the claims violations for Title VII liability ployer are disci workers African-American Industries, Burlington see supervisors, work which White for violations plined 742, 118 S.Ct. Ellerth, 524 U.S. Plaintiffs, Inc. ques- not. For ers are *11 294 (1998); Faragher agency L.Ed.2d 633 relation” concept, Supreme the Raton, 775, 118 City Boca U.S. S.Ct. Court concluded that requirement the of a (1998).
2275,
harassment We the events. about speaking in hesitant (a) reasonable it exercised that strates many reasons there are not doubt do correcting any sex preventing and in care reluc may be employee why a victimized (b) plain harassing behavior ually workplace harass report acts tant take failed to unreasonably tiff-employee preclude ment, that reluctance but for or corrective any preventive advantage of defense, must affirmative employer’s that there asserts Caridad opportunities. of what apprehension based on be exercised is evidence no do, merely on concern not might employer behav Clarke’s prevent reasonable care Cari of co-workers. the reaction about file a to' formal that her failure ior and aon credible are not based reasons dad’s investigation of in the and assist complaint not taken be complaint would that her fear not unreasonable was' her claims some suffer she would seriously circumstances. as. a result adverse not Her reasons complaint. filing prove not need employer An are insuffi employer complaining to harassing behavior preventing success -in judgment summary preclude cient it exercised to demonstrate order . Faragher, See Metro-North favor and correct preventing care reasonable (“[W]hile at -, at 2293 118 S.Ct. Although U.S. conduct. sexually harassing ing to fulfill employee failed that an proof the existence dispositive, necessarily not reasonable obligation corresponding complaint an anti-harassment care to avoid harm not limited to show evidence, scrutinize the available make fac- ing any an unreasonable failure to use findings tual necessary where and conduct complaint procedure provided by the em ‘rigorous “a analysis’ to determine whether 23(a) ployer, a demonstration such failure will Rule has been satisfied.” Sheehan v. normally satisfy Inc., (2d suffice to the employer’s 99, Purolator. 839 F.2d Cir. 1988) burden under the second element of (quoting Falcon, General Tel. v.Co. defense.”). creating affirmative de 457 U.S. 102 S.Ct. (1982)). fense liability to vicarious for the acts of L.Ed.2d 740 question *13 supervisors, Supreme sought Court to the district court had to decide in this ease “accommodate the principle of plaintiffs vicarious was whether had established liability for harm by caused misuse of su common questions of law or fact sufficient pervisory authority, as well as Title VII’s to meet the commonality typicality policies equally 23(a). basic of encouraging requirements fore of Rule I do not be- thought by employers saving lieve that did. Simply alleging that objecting employees.” Faragher, 524 proposed U.S. class was all of at -, Here, 118 at Metro-North, S.Ct. 2292. the facts and that they were mem- reveal that Metro-North is entitled to an bers of an group persons identifiable of affirmative race, is, defense Title against course, VII liabil based on insufficient to ity 23(a)’s for the alleged conduct of Caridad’s meet Rule commonality typical- supervisor. ity requirements. Instead, discrimination plaintiffs must identify a policy common or
Conclusion practice, to which they subjected, were all that resulted discrimination. We reverse This is the District judg- Court’s what the meant when it to the extent that it denied certifica- said in Falcon that tion of the class and affirm to the extent that it dismissed Caridad’s sexual prohibits Title VII discriminatory em- harassment claim. ployment practices, not an abstract poli- discrimination, cy of The mere fact that WALKER, Circuit Judge, dissents in an aggrieved private plaintiff is a mem- part: ber of an persons identifiable class of I join portion in that majority’s the same race or origin national is insuf- opinion that affirms the dismissal of ficient to establish his liti- standing to claims of However, Veronica Caridad. gate on their behalf possible all claims of respect majority’s view that the discrimination against a common em- district court erred in denying ployer. class certifi-
cation, I respectfully dissent. Falcon, 457 at U.S. n. 102 S.Ct.
Although it is true that our court’s re- (emphasis in original). As a matter view should be law, somewhat more probing I cannot agree with majority when a district court class denies certifica- that practice Metro-North’s delegating it, tion grants than when it see Lundquist personnel plaintiffs prefer decisions— v. Security Pac. Automotive Fin. Servs. call it “overdelegation” poli —constitutes (2d Cir.1993) Corp., 993 F.2d (per cy practice satisfy sufficient to the com curiam), our standard of review still monality 23(a). re- requirement of Rule discretion, id.; mains one of abuse see my opinion, the district court should not Johnpoll v. Thornburgh, F.2d 852 have considered both parties’ expert re (2d Cir.1990) curiam). (per The district ports at the class stage. certification Al court acted well within its discretion when though this evidence would be relevant to it denied class certification in this case. It a determination of the plaintiffs’ merits of is the duty of a district court claim, faced with discrimination it was not relevant to question of class-action certification to a determination of the propriety certify its court abused the district less much argued never have Plaintiffs a class.
ing it. denying levels, discretion Metro-North, highest discrimination policy of a hidden has dissent. respectfully I disparate showing out be smoked could Plain company. throughout impact does conceded tiffs In discrimination. policy of
not have company undisputed that
deed, policies anti-discrimination
has written Plaintiffs departments. to all
applicable department certain instead contend INC., ASSOCIATES, DOCTOR’S by discrim policies violate managers Plaintiff-Appellee, it is Metro-North’s and that inating, au managers the to these delegating ren discipline that promote thority to P.C., M. DUREE, David & REINERT *14 discrimina liable ders Metro-North Mary Hargett, Har Duree, William case,. the theory of tion. Given Wolf, Pa Bellon, Daniel gett, Richard consid have deferred should court district Wingo, Batchman, Barbara tricia was until reports expert eration Majcher, Tony Baker, Dutton Pamela discrimi the merits consider time to Basse, Anu Basse, Florence Laurent & Jac v. Eisen Carlisle claim. See nation Bhatnagar, Bipin Cheema, Rakesh pal 177-78, 94 S.Ct. 417 U.S. quelin, Duval, Duval, Kathleen Desari, Dennis , (1974); Schweizer L.Ed.2d Hobson, Dronavalli, Wil Jim Sridhar (2d 233, 239 186 F.3d Corp., Union Trans. Medina, Lee George Hyle, Hafey liam the district Cir.1998). though Even Moe, Kyong Miller, Miller, Sonja Jeff was evidence of this consideration court’s Reed, Na Reed, Phil Mun, Ruth Sun court’s however, the district premature, Whitney, F. John Singh, Lorita nak com was no there conclusion ultimate Keating, Kevin Dee, Dan Dee, J. Carol plaintiffs’ law or fact question mon Cary Czarkowski, Czar Book, Tim 23(a)’s com Rule to meet sufficient claims Qasim, Sayed Nicholas, Kathy kowski, requirements typicality monality Diprima, Ste Lenart, Cheryl Charles be affirmed. should Verri, Robert P. Diprima, Thomas ven be might there whether Leonard, know I do not Anastasios Leonard, Michael within groups Sahota, more Har one or Jagjit S. Kallopoulos, Metro-North, Grewal, departments How particular Kalirai, Suman minder discrimina- common Brezner, subjected were David Brezner, Rochelle ard de- by specific policies Bowers, practices Judith tory Latimer, C. Lester T. be heads, properly might Terry partment Despain, Bowers, Dennis A. 23(a); the Rule Spohr, under Cheryl as classes E. Spohr, certified Despain, Tim But, in the absence not us. is before Benes, issue Mansfield Charles Michael to dis- leading practice Smith, affirmative some Mov Smith, Matthew III and beyond the crimination ants-Appellants, Metro-North — dele- practice management quite normal Arkis, D. Hollingsworth, Jack David depart- responsibility personnel gating Childers, Bonhotel, Earl Linnette of an the umbrella managers mental Cooksey, George Jane Childers, Keith anti-discrimination established —I Farr, Farr, Jeffrey Pamela Cooksey, majority with the agree do not Gonzalez, Gonzalez, Maria Rodrigo requirements typicality commonality and Hoder, Preet Jacquelyn Hoder, Robert compa- 23(a) satisfied Rule Madgett, Pamela Johal, Edward warranted, Kiran certification ny-wide class