Case v. Judd

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CONRAD CASE, on behalf of himself

and all others similarly situated,

Plaintiff,

v. Case No.: 8:19-cv-607-T-33TGW

GRADY JUDD, in his official

capacity as Polk County Sheriff,

Defendant.

/

ORDER

This matter comes before the Court on consideration of

Plaintiff Conrad Case’s Motion for Class Certification (Doc.

# 55) filed on November 4, 2019. Defendant Grady Judd, in his

official capacity as Polk County Sheriff, filed a response in

opposition (Doc. # 64) on November 22, 2019. Upon due

consideration and for the reasons set forth below, the Motion

for Class Certification (Doc. # 55) is denied.

I. Background

Case initiated this putative class action on March 11,

2019. (Doc. # 1). Before Judd responded, Case filed an amended

complaint (Doc. # 5), which Judd moved to dismiss. (Doc. #

20). With leave of court, Case filed a second amended

complaint on May 15, 2019, alleging claims due to Judd’s

violations of the Uniformed Services Employment and

Reemployment Act, 38 U.S.C. §§ 4301, et seq. (USERRA) (Doc.

# 26). Case seeks relief on behalf of himself and a proposed

class that includes current and former employees of the Polk

County Sheriff’s Office with military backgrounds who were

passed over for promotions due to their membership in the

uniformed services. (Id. at ¶ 59). In Count I, Case alleges

Judd violated the USERRA by (1) denying him and other class

members promotions due to their military service, and (2) by

denying veteran preferences under Florida Statutes, Chapter

295. (Id. at ¶¶ 85–86). In Count II, Case alleges Judd

discriminated against him in violation of 38 U.S.C. § 4316 by

not counting periods of military leave toward continuous

service with the Sheriff’s Office.1 (Id. at ¶ 97).

1 Case does not incorporate the class allegations into Count

II and thus, appears to seek remedy in that count only on his

own behalf. See (Doc. # 26 at ¶¶ 89–98). Although Case’s

Motion for Class Certification attempts to frame the class

certification issue to include “Defendant’s failure to treat

their military-related absence as continuous employment as

required by USERRA,” see (Doc. # 55 at 2), that alleged

violation is the subject of Count II, which is not asserted

on behalf of the class. Additionally, the class definition

includes those individuals denied certain promotions, but

does not reference individuals affected by a failure to

properly calculate continuous employment due to periods of

military leave.

Judd filed a motion for judgment on the pleadings

directed to Count I, arguing no private cause of action exists

for a purported failure to give veteran preferences under

Florida law or the USERRA. (Doc. # 36). On October 23, 2019,

this Court granted Judd’s motion in part, finding that

veteran’s preference policies set forth in Florida Statute §

295.09(1)(a) are not “benefits of employment” under USERRA.

(Doc. # 53). In so ruling, this Court entered judgment in

Judd’s favor on Count I to the extent that the claims in Count

I are predicated on Judd’s alleged failure to apply Florida’s

veteran’s preference in promotional decisions. (Id. at 11).

Case filed the instant Motion on November 4, 2019, (Doc.

# 55), and Judd has responded. (Doc. # 64). With leave of

court, both sides filed documents under seal containing

personal identifying information of individuals not party to

this suit. (Docs. # 60, 66). The Motion is now ripe for

review.

II. Legal Standard

A district court has broad discretion in determining

whether to certify a class. Washington v. Brown & Williamson

Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992); Griffin

v. Carlin, 755 F.2d 1516, 1531 (11th Cir. 1985). As explained

in Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d

1181, 1187 (11th Cir. 2003), Federal Rule of Civil Procedure

23 “establishes the legal roadmap courts must follow when

determining whether class certification is appropriate.”

Under Rule 23(a), a class may be certified 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 burden of proof to establish the

propriety of class certification rests with the advocate of

the class, and failure to establish any one of the four Rule

23(a) factors and at least one of the alternative requirements

of Rule 23(b) precludes class certification. Amchem Prods.,

Inc. v. Windsor, 521 U.S. 591, 613–14(1997).

This Court must conduct a rigorous analysis of the Rule

23 prerequisites before certifying a class. Gen. Tel. Co. of

the S.W. v. Falcon, 457 U.S. 147, 161 (1982). “Although the

trial court should not determine the merits of the plaintiffs’

claim at the class certification stage, the trial court can

and should consider the merits of the case to the degree

necessary to determine whether the requirements of Rule 23

will be satisfied.” Valley Drug Co., 350 F.3d at 1188, n. 15.

III. USERRA

Under USERRA,

A person who is a member of, performs, has

performed, applies to perform, or has an

obligation to perform service in a uniformed

service shall not be denied initial employment,

reemployment, retention in employment,

promotion, or any benefit of employment by an

employer on the basis of that membership,

application for membership, performance of

service, application for service, or obligation.

38 U.S.C. § 4311(a). “Congress enacted USERRA ‘to encourage

noncareer service in the uniformed services by eliminating or

minimizing the disadvantages to civilian careers and

employment which can result from such service’ and ‘to

minimize the disruption to the lives of persons performing

service in the uniformed services as well as to their

employers.’” Dees v. Hyundai Motor Mfg. Ala., LLC, 368 F.

App’x 49, 50 (11th Cir. 2010) (quoting 38 U.S.C. § 4301(a)(1)-

(2)).

Case contends uniformed service members were not

provided equal opportunity for promotions because a candidate

for promotion had to “make rounds” and meet with members of

the chain-of-command, which he claims service members were

unable to do due to absences related to military service.

(Doc. # 26 at ¶ 21). Case submits this policy discriminated

against service members in violation of the USERRA, and he

seeks relief on behalf of himself and others similarly

situated.

IV. Analysis

Case seeks certification of a class of individuals of

veterans and active military members who were passed over for

promotions in violation of the USERRA while employed with the

Polk County Sheriff’s Office. Class certification is governed

by Rule 23. Rule 23 implicitly requires that the proposed

class is “adequately defined and clearly ascertainable.”

Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir.

2016) (citation omitted). “Establishing an early definition

of the class serves two functions: (1) it enables the court

to determine whether the case is suitable for certification

of a class; and (2) it ‘insures that those actually harmed by

defendants’ wrongful conduct will be recipients of the relief

eventually provided.’” Buford v. H & R Block, Inc., 168 F.R.D.

340, 346 (S.D. Ga. 1996), aff’d sub nom. Jones v. H & R Block

Tax Servs., 117 F.3d 1433 (11th Cir. 1997) (quoting Simer v.

Rios, 661 F.2d 655, 670 (7th Cir. 1981)).

Case proposes the following class definition for

certification:

Any current or former employee of the Defendant,

Polk County Sheriff, who is/was (1) a member of

the uniformed services as defined by USERRA; and

(2) who was denied a promotion(s) to the position

of Sergeant and/or Lieutenant due to their

membership in the uniformed services.

(Doc. # 55 at 1).

In defining a proposed class, a plaintiff must

adequately identify who its members are. Grimes v. Rave Motion

Pictures Birmingham, L.L.C., 264 F.R.D. 659, 663-664 (N.D.

Ala. 2010) (“Although not explicit in Rule 23(a) or (b),

courts have universally recognized that the first essential

ingredient to class treatment is the ascertainability of the

class. . . . Thus, the named plaintiff must define the

proposed class in a manner that adequately identifies its

members. Who, exactly, are they, and how can they be

located?”). The class members must be ascertained by

objective criteria. See Bussey v. Macon Cty. Greyhound Park,

Inc., 562 F. App’x. 782, 787 (11th Cir. 2014). And, the

process should be “administratively feasible,” meaning “that

identifying class members is a manageable process that does

not require much, if any, individual inquiry.” Id. at 787

(citation omitted).

Case submits the class consists of 71 individuals —

current and former employees of the Sheriff’s Office who are

or were in the military during the relevant time frame and

who were denied a promotion to Sergeant or Lieutenant. A

review of employment records and promotion eligibility lists

should be able to readily identify who these individuals are

and where they are located, and thus the class is

ascertainable.

Judd disputes this case is appropriate for class

certification and argues the proposed class lacks scope and

clarity. (Doc. # 64 at 1). He claims the proposed class

definition is inconsistent with Case’s own allegations and

the actual evidence. (Id. at 2). For example, he argues that

many of the proposed class members with military obligations

or veteran status regularly received promotions and several

of the decision-makers are themselves members of the

military.

Although the “description of the class must be

sufficiently definite to enable the court to determine if a

particular individual is a member of the proposed class,”

Pottinger v. City of Miami, 720 F. Supp. 955, 957 (S.D. Fla.

1989), the Eleventh Circuit has acknowledged that the

implicit definition requirement does not require an overly

strict degree of certainty and is to be liberally applied.

Georgia Ass’n of Retarded Citizens v. McDaniel, 716 F.2d 1565,

1571 n. 3 (11th Cir. 1983), vacated on other grounds, 468

U.S. 1213 (1984). Given this liberal standard, the Court

concludes the proposed class is ascertainable. Whether the

class meets the requirements of Rule 23 is a separate

question, to which the Court now turns.

A. Rule 23(a) Requirements

Once a class is adequately defined, a court must

determine if the provisions of Rule 23(a) and 23(b) have been

met. Under Rule 23(a), a class may be certified only if (1)

the class is so numerous that joinder of all members would be

impracticable; (2) there are questions of fact and law common

to the class; (3) the claims or defenses of the

representatives are typical of the claims and defenses of the

unnamed members; and (4) the named representatives will be

able to represent the interests of the class adequately and

fairly. See Fed. R. Civ. P. 23(a). “Failure to establish any

one of these four factors [numerosity, commonality,

typicality, and adequacy of representation] and at least one

of the alternative requirements of Rule 23(b) precludes class

certification.” Valley Drug Co., 350 F.3d at 1188.

1. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that

the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). While “mere

allegations of numerosity are insufficient,” Rule 23(a)(1)

imposes a “generally low hurdle,” and “a plaintiff need not

show the precise number of members in the class.” Manno v.

Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 684

(S.D. Fla. 2013); see Vega v. T–Mobile USA, Inc., 564 F.3d

1256, 1267 (11th Cir. 2009); Evans v. U.S. Pipe & Foundry

Co., 696 F.2d 925, 930 (11th Cir. 1983) (explaining that the

class representative is not required to establish the exact

number in the proposed class). “Nevertheless, a plaintiff

still bears the burden of making some showing, affording the

district court the means to make a supported factual finding

that the class actually certified meets the numerosity

requirement.” Manno, 289 F.R.D. at 684 (quoting Vega, 564

F.3d at 1267).

According to Case, the proposed class consists of

approximately 71 individuals. (Doc. # 55 at 10). Case states

he determined this number after a detailed review of Judd’s

promotional records. (Id.). The putative class includes

current and former uniformed service members who were denied

promotions due to their membership in the uniformed services.

Case maintains that most of the prospective class members

were passed over for multiple promotions making the overall

claims “more significant” than 71.

In response, Judd argues the proposed class should not

include the claims of veterans ultimately promoted as it is

illogical to state their military status was a detriment

during one eligibility period but not during a latter period

in which they received a promotion. Judd submits that a class

definition that includes veterans conflicts with Case’s own

allegations that the alleged discrimination discontinued once

an active service member retired and became a veteran.

According to Judd, under Case’s allegations, the class would

comprise, at most, three individual active service members —

Craig Powers, Jennifer Harris, and Case. (Doc. # 64 at 6).

And Judd represents that of the three, Case was the only one

not promoted.2 (Id.).

Clearly, three class members would fail Rule 23(a)’s

numerosity requirement. While the Eleventh Circuit has

indicated that having more than 40 class plaintiffs is

generally enough to satisfy the numerosity requirement, see

Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.

2 Judd attaches to his opposition memorandum an affidavit of

Polk County Sheriff employee, Lieutenant Craig Powers, who

attests he had active and reservist military obligations

throughout his employment with Judd and was promoted to the

rank of Sergeant and thereafter Lieutenant. (Doc. #64-1 at ¶¶

4–7). In his experience, Lt. Powers did not believe that his

military status was viewed as being negative by his superior

officers. (Id. at ¶ 8).

1986), it is unclear from Case’s allegations if the putative

class would even reach that number. Without more, Case

blanketly claims to have identified 71 class members. A class

action plaintiff bears the burden of proving each element of

Rule 23, and mere allegations of numerosity are insufficient.

Vega, 564 F.3d at 1267. The numerosity analysis is further

complicated by Case’s admission that of the 71 class members,

only “19 of the class members were never promoted.” (Doc. #

55 at 6). Nineteen class members is likely insufficient to

satisfy the numerosity requirement in this Circuit. See Cox,

784 F.2d at 1553 (“[W]hile there is no fixed numerosity rule,

generally less than twenty-one is inadequate . . . .”

(citation and internal quotation marks omitted)).

Given the disputes as to whether the class should include

veterans and/or those who ultimately were promoted, it is

unclear whether Case can prove the numerosity requirement has

been met. Presumably, Case’s argument is that although

nineteen individuals were never promoted, the remaining 52 of

the 71 service members were passed over at least once for a

promotion due to their military status before ultimately

receiving a promotion. And given the “generally low hurdle,”

Case could arguably satisfy the numerosity prerequisite. Even

so, his Motion fails because he does not meet the commonality

and typicality requirements of Rule 23 as discussed below.

2. Commonality

Federal Rule of Civil Procedure 23(a)(2) requires that

there be “questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). Commonality pertains to the

characteristics of the group or class as a whole, unlike

typicality which refers to the individual characteristics of

the class representative as compared to those of the class

members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341, 1346

(11th Cir. 2001) (citing Prado–Steiman v. Bush, 221 F.3d 1266,

1279 (11th Cir. 2000)).

Commonality “does not require complete identity of legal

claims.” Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532

(5th Cir. 1978).3 In fact, commonality can be satisfied even

with some factual variations among class members. Armstead v.

Pingree, 629 F. Supp. 273, 280 (M.D. Fla. 1986).

In Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011),

the Supreme Court clarified the commonality requirement for

class certification by specifically rejecting the use of

generalized questions to establish commonality. Noting that

3 The Eleventh Circuit, in an en banc decision, Bonner v. City

of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as

precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

“any competently crafted class complaint literally raises

common questions,” the Court focused the required discussion

as follows:

What matters to class certification . . . is

not the raising of common ‘questions’ — even

in droves — but, rather the capacity of a

class-wide proceeding to generate common

answers apt to drive the resolution of the

litigation. Dissimilarities within the

proposed class are what have the potential to

impede the generation of common answers.

Id. at 350 (internal citation omitted) (emphasis in

original). The Court explained that the “common contention”

underpinning a finding of Rule 23(a)(2) “must be of such a

nature that it is capable of class wide resolution — which

means that determination of its truth or falsity will resolve

an issue that is central to the validity of each one of the

claims in one stroke.” Id.

Case argues that the commonality requirement is

satisfied here because the “overriding question is whether

[Judd] violated 38 U.S.C. § 4311(a) by systematically denying

members of the uniformed services promotions due to their

membership in the uniformed services.” (Doc. # 55 at 11). He

submits that whether the class members’ military service was

a motivating factor in Judd’s decision not to promote current

and former service members to positions of Sergeant and

Lieutenant is a central issue relevant to all class members.

In support of his allegations of a discriminatory animus

toward service members, Case relies on several comments made

by the Chief of Staff questioning him about time he spent

away from his job due to military absences.

Case generally alleges that the “promotional decisions

are uniformly carried out by the same group of decision-

makers at the same location,” but he proffers no evidence to

support this statement. (Doc. # 55 at 12). To the contrary,

Judd explains there is both an objective and subjective

component to the promotional process. (Doc. # 64 at 9). The

subjective component involves a hierarchy of decision-makers.

(Id. at 10). Each department is divided into eight discrete

divisions, each overseen by a Major. (Id.). The Major receives

input from subordinate officers and thereafter presents the

candidates to their respective department chiefs who then

discuss the candidates with the executive staff. (Id.).

Judd argues that commonality is lacking because the

promotional decisions at issue involved at least 125

decision-makers over the 15-year period, with at least 30 of

them having some military background. In further support, he

notes that those individuals are expected to testify their

backgrounds and service were actually a positive factor in

the promotional process. (Doc. # 64 at 11). Notably, Judd did

not become sheriff until 2005.

As observed by the Supreme Court in Wal-Mart v. Dukes,

“demonstrating the invalidity of one manager’s use of

discretion will do nothing to demonstrate the invalidity of

another’s.” 544 U.S. at 355–56. Other district courts have

also found that having multiple individuals involved in the

process of making employment decisions defeats a commonality

showing. See, e.g., Gordon v. Kaleida Health, 299 F.R.D. 380,

404 (W.D.N.Y. 2014) (“[G]iving individual supervisors

discretion to apply policies in a manner best suited to their

department or unit is just the opposite of a system-wide

practice that would provide the commonality needed for class

action.”); Puffer v. Allstate Ins. Co., 255 F.R.D. 450, 461

(N.D. Ill. 2009) (noting that cases implicating “numerous,

independent decision-makers” result “in the need for numerous

individual inquiries”).

Case also argues that a statistical analysis supports

the common allegations of class-wide discrimination against

military members. He cites to various years in which the

promotions of military members were seemingly low. (Doc. # 55

at 5–6). However, Case’s “analysis” appears, at best, random,

selecting certain years, skipping others, and citing

percentages for promotions to Sergeant in one year and

Lieutenant in another with no comparative data of any of the

percentages to non-military members promoted during the same

time frame. While Judd acknowledges that statistical analysis

can support a finding of patterns or practices of

discrimination, see (Doc. # 64 at 12) (citing Int’l Bhd. of

Teamsters v. US., 431 U.S. 324, 339 (1977)), he demonstrates

that the analysis actually supports a finding that veterans

were slightly favored. (Doc. # 64 at 12–16).

Finally, Case seeks to demonstrate commonality by

pointing to other alleged common issues, such as Judd’s

failure to treat military-related absences as continuous

employment. As discussed previously, this issue is the

subject of Count II, which is not asserted on behalf of the

class, nor does it form the basis for the proposed class

definition. Accordingly, Case fails to satisfy the

commonality requirement, and his Motion is due to be denied.

Moreover, no amendment to his class definition would

resurrect his bid for certification because, as class

plaintiff, Case fails the typicality requirement.

3. Typicality

The focus of Rule 23(a)(3) typicality is whether the

class representative’s interests are so aligned with the

proposed class that he may stand in their shoes for the

purposes of the litigation and bind them in a judgment on the

merits. Gen Tel. Co., 457 U.S. at 156; Busby v. JRHBW Realty,

Inc., 513 F.3d 1314, 1322–23 (11th Cir. 2008) (“[T]ypicality

measures whether a sufficient nexus exists between the claims

of the named representatives and those of the class at

large.”).

To establish typicality, “there must be a nexus between

the class representative’s claims or defenses and the common

questions of fact or law which unite the class.” Kornberg v.

Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.

1984). When the class representative’s injury is different

from that of the rest of the class, his claim is not typical

and he cannot serve as the class representative. Murray v.

Auslander, 244 F.3d 807, 811 (11th Cir. 2001). Moreover, when

proof of the class representative’s claim would not

necessarily prove the claims of the proposed class members,

the class representative does not satisfy the typicality

requirement. Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D.

54, 58 (S.D. Fla. 1990). “Typicality, however, does not

require identical claims or defenses.” Kornberg, 741 F.2d at

1337. “A factual variation will not render a class

representative’s claim atypical unless the factual position

of the representative markedly differs from that of other

members of the class.” Id.

Case argues there is nothing to suggest his claims are

atypical. (Doc. # 55 at 14). Judd disagrees, arguing Case’s

situation differs significantly from that of other members of

the class. “The typicality requirement is met when in proving

its case, the representative plaintiff establishes the

element needed to prove the class members’ case.” Coastal

Neurology, Inc. v. State Farm Mut. Auto. Ins. Co., 271 F.R.D.

538, 547 (S.D. Fla. 2010), aff’d, 458 F. App’x 793 (11th Cir.

2012). Here, Case claims his military absences were held

against him in the promotional process. However,

demonstrating that he was discriminated against because of

his military absences would not prove the claims of veteran

class members who had no active duty or reservist obligations.

The lack of typicality between Case and the putative

class members is further evidenced by Judd’s explanation of

Case’s time spent working for the Sheriff’s Office. According

to Donna Parker, the director of human resources for the Polk

County Sheriff’s Office, during the period from 2004 to 2019,

Case worked a total of 1,232.5 hours compared to the 28,797

hours of leave (military and otherwise) he took during the

same time frame. (Doc. # 66 at ¶¶ 34, 37). The net result is

4.28% of his recorded hours were spent working for the

Sheriff’s Office. Case did not work any hours for the

Sheriff’s Office in 2005, 2008, 2011, 2012, 2013, 2015, 2016,

2017, or 2018 (nine of the sixteen years at issue). (Id. at

¶ 36).

According to Judd, Case being away from his Sheriff’s

Office job more than 95% of the time presents unique

challenges for his office to subjectively evaluate Case for

promotions. Case proffers no evidence to suggest that any

other putative class member was absent near the amount of

time as he was. “[T]he typicality provision requires a

demonstration that there are other members of the class who

have the same or similar grievances as the plaintiff.” Belles

v. Schweiker, 720 F.2d 509, 515 (8th Cir. 1983). A typicality

requirement is designed “to limit the class claims to those

fairly encompassed by the named plaintiff’s claims,” Gen.

Tel. Co., 446 U.S. at 330.

In the employment context, when a plaintiff seeks to

represent a class of employees, the plaintiff fails to satisfy

the typicality prong if his personal situation or choices

give rise to defenses not available as an explanation for

alleged discrimination of other class members. See, e.g.,

Bacon v. Honda Am. Mfg., Inc. 370 F.3d 565, 572–73 (6th Cir.

2004) cert. denied 543 U.S. 1151 (2005) (because Honda can

assert legitimate non-discriminatory reasons for not

promoting the proposed class representative, which reasons

were not available as an explanation for discrimination

against other members of the putative class, typicality was

lacking). Here, typicality is lacking because Case’s absences

may give rise to a non-discriminatory explanation that would

be inapplicable to the remainder of the proposed class and

therefore potentially jeopardize the class’s claims. Because

Case’s situation markedly differs from that of other members

of the putative class, Case fails to satisfy the typicality

requirement.

4. Adequate Representation

Case’s unique situation also demonstrates why he fails

to satisfy the final requirement for class certification

under Rule 23(a): adequate representation. See Fed. R. Civ.

P. 23(a)(4). This prerequisite requires that the class

representative have common interests with the non-

representative class members and requires that the

representative demonstrates that he will vigorously prosecute

the interests of the class through qualified counsel. Piazza,

273 F.3d at 1346. Here, Case’s interests would not necessarily

align with veterans who do not miss work due to active or

reservist obligations.

The adequacy of representation analysis involves two

inquiries: “(1) whether any substantial conflicts of interest

exist between the representatives and the class, and (2)

whether the representatives will adequately prosecute the

action.” Valley Drug Co., 350 F.3d at 1189 (quoting In re

HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 460–61 (N.D.

Ala. 2003)). “The existence of minor conflicts alone will not

defeat a party’s claim to class certification.” Id. Rather,

“the conflict must be a fundamental one going to the specific

issues in controversy.” Id.

Given the peculiar situation in which Case only worked

the equivalent of 31 workweeks (less than 8 months) over a

16-year period, see (Doc. # 66 ¶ 34), Case’s situation would

not be representative of the class.

B. Rule 23(b) Requirements

Although the Court finds Case’s Motion is due to be

denied for failing to satisfy the Rule 23(a) criteria, the

Court will briefly discuss why his Motion also fails to

satisfy at least one of the alternative requirements of Rule

23(b).

Rule 23(b) provides:

(b) Types of Class Actions. A class action may be

maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against

individual class members would create a risk of:

(A) inconsistent or varying adjudications with

respect to individual class members that would

establish incompatible standards of conduct for

the party opposing the class; or

(B) adjudications with respect to individual

class members that, as a practical matter,

would be dispositive of the interests of the

other members not parties to the individual

adjudications or would substantially impair or

impede their ability to protect their

interests;

(2) the party opposing the class has acted or

refused to act on grounds that apply generally to

the class, so that final injunctive relief or

corresponding declaratory relief is appropriate

respecting the class as a whole; or

(3) the court finds that the questions of law or

fact common to class members predominate over any

questions affecting only individual members, and

that a class action is superior to other

available methods for fairly and efficiently

adjudicating the controversy. The matters

pertinent to these findings include:

(A) the class members’ interests in

individually controlling the prosecution or

defense of separate actions;

(B) the extent and nature of any litigation

concerning the controversy already begun by or

against class members;

(C) the desirability or undesirability of

concentrating the litigation of the claims in

the particular forum; and

(D) the likely difficulties in managing a class

action.

Fed. R. Civ. P. 23(b).

In the Motion, Case seeks certification under Rule

23(b)(3). (Doc. # 55 at 15). Rule 23(b)(3) includes two

requirements: (1) that questions of law or fact common to the

members of the class predominate over any questions affecting

only individual members (predominance) and (2) that a class

action is superior to other available methods for fair and

efficient adjudication of the controversy (superiority).

Vega, 564 F.3d at 1265.

1. Predominance

Under Rule 23(b)(3), “[i]t is not necessary that all

questions of fact or law be common, but only that some

questions are common and that they predominate over

individual questions.” Klay v. Humana, Inc., 382 F.3d 1241,

1254 (11th Cir. 2004), abrogated in part on other grounds by

Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008).

“Whether an issue predominates can only be determined after

considering what value the resolution of the class-wide issue

will have in each class member’s underlying cause of action.

Common issues of fact predominate if they have direct impact

on every class member’s effort to establish liability and on

every class member's entitlement to relief.” Id. at 1255

(internal citations omitted). As stated in Kerr v. City of W.

Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989), “the issues

in the class action that are subject to generalized proof,

and thus applicable to the class as a whole, must predominate

over those issues that are subject only to individualized

proof.” (internal citations omitted).

“The predominance inquiry requires an examination of

‘the claims, defenses, relevant facts, and applicable

substantive law,’ . . . to assess the degree to which

resolution of the classwide issues will further each

individual class member’s claim against the defendant.”

Babineau v. Fed. Express Corp., 576 F.3d 1183, 1191 (11th

Cir. 2009) (quoting Klay, 382 F.3d at 1254).

In his Motion, Case claims he can establish there was a

pattern or practice of discrimination that permeated the

Sheriff’s office. He argues that such department-wide policy

supports a finding of a predominant common issue. And

answering that common issue, he posits, will resolve the

class’s claims.

However, as discussed in the commonality section above,

the proof Case offers to support the alleged discriminatory

policies are individual comments directed to him by a single

decision-maker. Given the number of decision-makers

potentially involved, Case cannot rely on the statements of

a sole individual, particularly given his unique

circumstances. Additionally, Case’s statistical analysis,

which randomly cites data from various years without

providing comparative date for non-military promotions for

the same time frame, is not evidence of a department-wide

discriminatory animus. Case’s individual issues appear to

predominate over the class questions, and thus he fails to

satisfy this prong of Rule 23(b).

2. Superiority

The superiority requirement of Rule 23(b)(3) focuses

“not on the convenience or burden of a class action suit per

se, but on the relative advantages of a class action suit

over whatever other forms of litigation might be

realistically available to the plaintiffs.” Klay, 382 F.3d at

1269. “It is only when [management] difficulties make a class

action less fair and efficient than some other method, such

as individual interventions or consolidation of individual

lawsuits, that a class action is improper.” Carnegie v. Mut.

Sav. Life Ins. Co., No. 99–cv–3292, 2002 WL 32989594, at *24,

(N.D. Ala. Nov. 1, 2002) (citation omitted).

The Court has examined the factors enumerated in Rule

23(b)(3)(A)-(D), such as “the class members’ interest in

individually controlling the prosecution . . . of separate

actions,” “the desirability or undesirability of

concentrating the litigation of the claims in the particular

forum,” and manageability issues. After so doing, the Court

determines that class wide resolution of the dispute is not

beneficial or favorable here. This is especially so because

the Court has already determined that Case fails to satisfy

the predominance prong of Rule 23(b)(3). See Klay, 382 F.3d

at 1269 (recognizing the predominance analysis has a

tremendous impact on the superiority analysis).

IV. Conclusion

Case fails to satisfy the requirements of Rules 23(a)

and (b). As a result, the Court denies Case’s Rule 23 Motion

for Class Certification.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

Plaintiff’s Rule 23 Motion for Class Certification (Doc.

# 55) is DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this

28th day of January 2020.

fan fr. Munahy (noiyh

VIR! IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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