Bacon v. Honda of America

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Bacon, et al. v. Honda of America No. 01-3520

ELECTRONIC CITATION: 2004 FED App. 0155P (6th Cir.)

File Name: 04a0155p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Robert A. Steinberg, WAITE, SCHNEIDER,

FOR THE SIXTH CIRCUIT BAYLESS & CHESLEY, Cincinnati, Ohio, for Appellants.

_________________ Mary Ellen Fairfield, VORYS, SATER, SEYMOUR &

PEASE, Columbus, Ohio, for Appellee. ON BRIEF: Robert

MARC E. BACON, et al., X A. Steinberg, WAITE, SCHNEIDER, BAYLESS &

Plaintiffs-Appellants, - CHESLEY, Cincinnati, Ohio, Robert F. Laufman,

- LAUFMAN & GERHARDSTEIN, Cincinnati, Ohio, John S.

- No. 01-3520 Marshall, LAW OFFICES OF JOHN S. MARSHALL,

v. - Columbus, Ohio, Michael J. O’Hara, O’HARA, RUBERG,

> TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for

, Appellants. Mary Ellen Fairfield, James A. Wilson, VORYS,

HONDA OF AMERICA -

MANUFACTURING, INC., SATER, SEYMOUR & PEASE, Columbus, Ohio, for

- Appellee. Richard T. Seymour, LIEFF, CABRASER,

Defendant-Appellee. - HEIMANN & BERNSTEIN, Washington, D.C., for Amici

- Curiae.

N

Appeal from the United States District Court _________________

for the Southern District of Ohio at Columbus.

No. 99-00803—James L. Graham, Chief District Judge. OPINION

_________________

Argued: December 4, 2002

BOGGS, Chief Judge. Plaintiffs, Marc Bacon and Terry

Decided and Filed: May 27, 2004 Harden, brought this employment discrimination action

against defendant Honda of America Manufacturing, Inc.,

Before: BOGGS, Chief Judge; GUY, Circuit Judge; and seeking to represent a class of all current and former African-

EDMUNDS, District Judge.* American employees at Honda’s four manufacturing plants

located in central Ohio. Plaintiffs appeal, asking for review

of both the denial of class certification and the subsequent

grant of summary judgment to Honda on all of plaintiffs’

individual claims. Bacon and Harden allege that the company

uses discriminatory procedures for promoting employees in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., 42 U.S.C. § 1981, Ohio Revised Code

*

§ 4112.99, and Ohio common law. The district court

The Honorable Nancy G. Edmunds, United States District Judge for correctly determined that Bacon and Harden failed to meet the

the Eastern District of Michigan, sitting by designation.

1

No. 01-3520 Bacon, et al. v. Honda of America 3 4 Bacon, et al. v. Honda of America No. 01-3520

prerequisites for class certification and that they could not exempt2 position, who reports to an assistant manager or

show that they were denied promotions for which they were department manager, who in turn reports to a senior manager

eligible. For the reasons elaborated upon below, we affirm or plant manager.

the decision of the district court in its entirety.

In general, production associates may seek promotion to

I team leader,3 but only in the department in which they are

currently working. Furthermore, an employee becomes

On August 19, 1999, Bacon and Harden (plaintiffs), who eligible for promotion only after meeting minimum

were employed as “nonexempt” production associates (PAs) requirements for time working both in the department and for

for Honda, filed a class action complaint, alleging that Honda Honda in general. In addition, he or she must have a strong

engaged in a pattern or practice of discrimination against attendance record, typically ninety-eight percent or above,

African-American employees by denying them promotions. and a disciplinary record that shows no counseling by a

Relying on both disparate impact and disparate treatment manager within the past twelve months. Past performance

theories to prove liability, plaintiffs sought declaratory and evaluations are also taken into account and some departments

injunctive relief, promotion to desired positions, back pay, require the production associate to pass a trade test and/or to

and compensatory and punitive damages. have completed a certain number of special projects. A team

leader must be willing to work any shift or to travel. See

Honda has four manufacturing plants in central Ohio: Bacon v. Honda of Am. Mfg., 205 F.R.D. 466, 471-72 (S.D.

Marysville Auto Plant (MAP); Marysville Motorcycle Plant Ohio 2001) (giving detailed description of Honda’s

(MMP); Anna Engine Plant (AEP); and East Liberty Plant production facilities and corporate structure).

(ELP). These four facilities have various purposes that range

from manufacture of Accord and Acura automobiles, to The motion for class certification was filed in September

production of Honda motorcycles, to building of engines and 2000, and an evidentiary hearing was held in December 2000.

other components. In addition, Honda plants have quality On March 7, 2001, the district court denied the motion for

departments, which are responsible for inspecting products class certification, finding that: (1) plaintiffs did not satisfy

coming off the line; purchasing departments; and various the requirements of commonality, typicality, and adequacy of

administrative offices, such as Human Resources. In all, representation with respect to the disparate treatment claims

there are thirty-nine departments at Honda. under Fed. R. Civ. P. 23(a); (2) the predominance of

monetary relief precluded certification of injunctive class

Sixty percent of Honda's 12,700 employees are production under Rule 23(b)(2); (3) requirements for class certification

associates, who are nonexempt1employees supervised by under Rule 23(b)(3) were not met; and (4) Seventh

team leaders, the first supervisory level. Production staff

share this secondary level of authority with team leaders. The

next level of management is production coordinator, an

2

Salaried position with no o vertime rights

3

Until 199 2, pro duction asso ciates in MA P Assembly could also seek

direct promotion to production staff, who are responsible for special

1

projects and equipm ent-related tasks. After 1992, they had to become

Hourly wage earners entitled to overtime team leaders first.

No. 01-3520 Bacon, et al. v. Honda of America 5 6 Bacon, et al. v. Honda of America No. 01-3520

Amendment concerns made bifurcation and certification of Numerosity

certain issues improper, or at least prevented that process

from being the most fair and efficient way to litigate the There is no automatic cut-off point at which the number of

claims. Id. at 490. plaintiffs makes joinder impractical, thereby making a class-

action suit the only viable alternative. In re Am. Med. Sys.

Honda moved for summary judgment on plaintiffs’ Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). However, sheer

individual claims. The plaintiffs filed a Rule 56(f) motion in number of potential litigants in a class, especially if it is more

response, requesting a revised discovery schedule and a new than several hundred, can be the only factor needed to satisfy

trial date. The district court denied the motion, although it Rule 23(a)(1). 1 Herbert B. Newberg & Alba Conte, Newberg

allowed one additional deposition. On April 30, 2001, the on Class Actions, § 3:5, at 243-45 (4th ed. 2002). The facts

district court granted summary judgment to Honda on the of the case guide a court’s determination that the class is

individual claims of Bacon and Harden. That order throughly sufficiently large to make joinder impractical. Gen. Tel. Co.

addressed each of the plaintiffs’ claims under both the v. EEOC, 446 U.S. 318, 330 (1980). In this case, Bacon

disparate impact and disparate treatment theories. This appeal proposes a class of some 800 current and former African-

followed. American Honda employees, a number well beyond the point

that joinder would be feasible. The requirement of Rule

II 23(a)(1) is met.

Class Action Certification Commonality

This court reviews denial of class action certification for In order to show disparate treatment, a potential class

abuse of discretion. Alkire v. Irving, 330 F.3d 802, 810 (6th representative must show that the employer intentionally

Cir. 2003). In order for one or more litigants to represent all discriminated against a protected class and that there are

parties in a class, four prerequisites must be met: “(1) the questions of law or fact common to the class. Falcon, 457

class [must be] so numerous that joinder of all members is U.S. at 162 (Burger, C. J., concurring in part). The Supreme

impracticable, (2) there [must be] questions of law or fact Court has noted that class certification is “appropriate . . .

common to the class, (3) the claims or defenses of the [when] [i]t is unlikely that differences in the factual

representative parties [must be] typical of the claims or background of each claim will affect the outcome of the legal

defenses of the class, and (4) the representative parties [must] issue.” Califano v. Yamasaki 442 U.S. 682, 701 (1979)

fairly and adequately protect the interests of the class.” Fed. (upholding class certification for litigation of an issue of

R. Civ. P. 23(a). In this case the district court conducted the interest to all social security beneficiaries). Variations in the

mandatory “rigorous analysis [to confirm] that the circumstances of class members are acceptable, as long as

prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. they have at least one issue in common. In re Am. Med., 75

Co. v. Falcon, 457 U.S. 147, 161 (1982). We agree with its F.3d at 1080 (citations omitted) (reversing a grant of

conclusion that the disparate treatment claim fails the second, certification because the putative plaintiffs had used many

and the disparate impact claim the third, part of the Rule 23(a) different models of a certain medical device, which had

test.

No. 01-3520 Bacon, et al. v. Honda of America 7 8 Bacon, et al. v. Honda of America No. 01-3520

produced a range of side effects, so that the malfunction could Bacon and Harden are attempting to certify a class of all

not be attributed to a common cause).4 African-American workers at Honda’s four Ohio facilities

over the past twenty years who were involved in the

Bacon and Harden were responsible for satisfying the company’s promotion system. They assert that “company-

court’s concerns related to whether: wide subjective practices” and “similar promotion criteria”

across departments satisfy the requirements of Rule 23(a)(2).

(i) the nature of the alleged unlawful employment Conclusory allegations and general assertions of

practice genuinely had a class-wide impact; discrimination are not sufficient to establish commonality.

(ii) employment practices affecting the class were Falcon, 457 U.S. at 157. Plaintiffs failed to show how hourly

uniform or diverse, given factors such as size of the work wage earners and salaried employees would have the same

force, number of plants involved; range of employment interests, especially in terms of promotion procedures in

conditions, occupations, and work activities; geographic which at least some of the nonexempt employees would be

dispersion of the employees and extent of intra-company competing to join the ranks of exempt management. They

employee transfers; also did not demonstrate how differing promotion criteria for

(iii) members' treatment would be likely to involve jobs as diverse as welding, accounting, and engine-building

common questions; could discriminate against each African-American employee.

(iv) relevant employment and personnel policies and Nor did they elaborate on why this court should disregard the

practices were centralized and uniform; and objective criteria for promotion and find that all African-

(v) similar conditions prevailed throughout the time American employees were harmed by managers “who made

period covered by the allegations. subjective decisions.”

Stastny v. S. Bell Tel. and Tel. Co., 628 F.2d 267, 277 (4th We hold that plaintiffs have failed to produce sufficient

Cir. 1980) (citing Harriss v. Pan Am. World Airways, Inc., 74 evidence to convince us that the district court abused its

F.R.D. 24, 41 (N.D. Cal. 1977)); Newberg, § 24:21, at 133-34 discretion in finding that the factors enumerated above had

(requiring a specific showing of underlying facts that might not been met. We view with skepticism a class that

raise an inference of a common pattern or practice through encompasses 1) both workers and supervisors; 2) production-

allegations of specific incidents of discrimination, supporting line workers and those in administrative positions; 3) workers

affidavits, or evidence at the class certification hearing). in four plants with different production capabilities; and

4) workers and supervisors spread over more than 30

departments. Because class members have such different

jobs, we find it difficult to envisage a common policy

regarding promotion that would affect them all in the same

4 manner.

The district co urt analyzed comm onality separately for the disparate

treatment and disparate impact claims. The court generously concluded

that the clear instances in which Honda’s facially neutral policies would The only way Bacon and Harden can place such a diverse

not affect the putative class in a uniform manner could be ignored because group under one umbrella is to demonstrate that Honda

they were “differences [that] are not critical to a finding of com mon ality operated in a discriminatory fashion against all the workers in

on the disparate impact claim .” Bacon , 205 F.R.D . at 478. For the the class “through an entirely subjective decision-making

purposes of clarity in this opinion, we assume, without deciding, that the

district co urt was correct.

process.” Falcon, 457 U.S. at 159 n.15. If they can make this

No. 01-3520 Bacon, et al. v. Honda of America 9 10 Bacon, et al. v. Honda of America No. 01-3520

showing, then they can establish commonality and typicality. making sure that valid claims get to a jury. The constructive

However, Honda’s decision-making is not completely subjectivity in Watson cannot substitute for the actual and

subjective: it also uses objective criteria for promotion, such complete subjectivity required for the exception in Falcon

as time in service, attendance records, and test scores.5 Bacon because the cases deal with two unrelated legal issues: class

and Harden rebut this by citing another Supreme Court case membership and the elements of a prima facie case. We hold

that held that mixed systems for determining promotions that the Falcon requirement is not met because the plaintiffs

would “generally have to be subjective in nature.” Watson v. have not shown that the wide range of class members are all

Ft. Worth Bank & Trust, 487 U.S. 977, 989-90 (1988). subject to the same, exclusively-subjective, decision-making

process.

We do not accept the argument that Honda’s decision-

making process is entirely subjective because, as a matter of Bacon and Harden rely on Senter v. General Motors Corp.,

fact, it is not. Plaintiffs cannot avoid the heavy lifting of but the class in that case was more circumscribed: the class

showing eligibility for class certification by conflating two consisted of “all black employees who, during a period

exceptions to separate rules for adjudicating discrimination between July 2, 1965 and September 1, 1971, were denied an

cases. An entirely subjective decision-making process may, opportunity for promotion to [salaried] supervisory positions

theoretically, allow different kinds of employees to be in the [from hourly positions] although possessing seniority and

same class – a question of class membership (Falcon). For qualifications equivalent to white employees who were so

the entirely separate purpose of establishing a prima facie promoted.” Senter v. Gen. Motors Corp., 532 F.2d 511, 523

case of disparate impact, mixed objective and subjective (6th Cir. 1976). In contrast, plaintiffs here want to certify a

standards may be considered to be purely subjective class of employees who worked at Honda over a period of

(Watson). See 42 U.S.C. § 2000e-2(k)(1)(B)(i). twenty years in both hourly and salaried positions with

different qualifications and varying levels of seniority. Senter

The two exceptions are not interchangeable, however. focused on one transitional step in the career path of the

Plaintiffs are trying to demonstrate eligibility for class plaintiffs over a six-year period: the jump from hourly wage

membership, which is governed by the “entirely subjective” earner to salaried employee. In contrast, plaintiffs are

requirement in Falcon. They must prove that the potential challenging Honda’s practices for all promotions, regardless

members of the class actually have something in common: of department or starting point in the company hierarchy, and

they are subject to random decision-making. As an entirely regardless of comparability in objective qualifications.

separate matter, the Court has been cognizant of the Therefore, Senter can be distinguished from the facts of this

difficulties inherent in proving discrimination and therefore case and does not compel us to find that the commonality

set a relatively low bar for establishing a prima facie case. factor has been met.

See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981) (“The burden of establishing a prima facie Typicality

case of disparate treatment is not onerous.”). Therefore,

counting mixed criteria as subjective furthers the goal of Assuming, arguendo, that Honda’s promotion procedures

had a disparate impact on African-American employees, we

hold that neither Bacon nor Harden is a typical member of the

5 class. The typicality requirement is designed “to limit the

See discussion below in Section III, p. 21, rejecting the assertion class claims to those fairly encompassed by the named

that Honda subjectively applied these criteria.

No. 01-3520 Bacon, et al. v. Honda of America 11 12 Bacon, et al. v. Honda of America No. 01-3520

plaintiff's claims.” Gen. Tel. Co., 446 U.S. at 330. In order chances for advancement, we hold that they are not typical of

to meet the typicality requirement, the plaintiffs must show African-American workers at Honda.

that their “injury arises from or is directly related to a wrong

to a class, and that wrong includes the wrong to the plaintiff.” Bacon started working at Honda in 1988 and was first

In re Am. Med., 75 F.3d at 1082 (quoting 1 Newberg, supra, eligible for promotion in April 1990. He was eligible for 13

at § 3-76). However, their personal choices, independent of months until May 1991, when he transferred to a new

any practices by Honda that have a disparate impact, have department (MAP assembly). In 1993, when there were three

rendered them ineligible for promotion for the majority of promotions to team leader, Bacon was not eligible for

their time at the company. Therefore, Honda can assert consideration because he did not have the 100% attendance

legitimate non-discriminatory reasons, or business reasons, required for the position and had not completed an overtime

for not promoting them, which would not be available as an special project (New Honda (NH) Circle) within the last 24

explanation for discrimination against other African- months, another prerequisite. From 1994 - 96, he did not

American employees. express interest in a production team leader position and so

was not eligible for consideration, and he did not take the

Honda’s career track on the production line starts with required test in 1996. He transferred to a new department

production associates. The next rung up the ladder is team (MMP Assembly) in 1997, rendering him ineligible for

leader or production staff. From July 1994 to July 1999, 92% promotion until February 1998. In April 1998, the promotion

of promoted PAs were elevated to team leader or production process was changed: to be considered for elevation to team

staff in their home departments. The remaining 8% were leader, an employee had to submit a pool interest form, which

promoted to a different type of work, such as quality control Bacon never did.

or administration. In 1992, MAP Assembly, where both

plaintiffs worked for the majority of their tenure, changed its In order to be considered for a position in a non-production

policy to no longer allow promotion directly from production department, an employee had to fill out a career interest

associate to production staff; a line worker would have either application (CIA), which was valid for one year. Bacon filled

to request promotion to team leader, transfer out of the out CIAs in 1991 (during most of which time he was not

department with the attendant one-year wait for eligibility, or eligible for any promotion), 1994, 1996, 1997, and 2000.

seek promotion to administration or the quality department. Selection for interviews under this program was done by

blind assessment of the application form. Bacon was selected

The position of team leader is not inherently desirable: it for interviews on several occasions, including three times in

requires availability for overtime and imposes added the purchasing department, but not selected because other

responsibility for a marginal increase in pay. Therefore, candidates had stronger educational backgrounds and job-

advancement through transfer to a parallel track is desirable, related experience. Four African-Americans and twelve

but, like any career shift, involves overcoming an experience Caucasians were promoted through this process from 1993 -

deficit in comparison to other candidates. Both named 2000.

plaintiffs in this case chose to avoid seeking advancement

through becoming a team leader and concentrated on Harden was hired in 1988 and became eligible for

acquiring positions in the quality department or promotion in March 1990. He expressed interest in

administration. Because this strategy circumscribed their promotion to team leader or production staff, which remained

a possibility for 15 months, until May 1991, when he

No. 01-3520 Bacon, et al. v. Honda of America 13 14 Bacon, et al. v. Honda of America No. 01-3520

requested, and was authorized, to transfer to another cannot reasonably represent the interests of those who may

department (MAP assembly), making him ineligible for have consistently applied for promotion and been turned

promotion for the next 12 months. In 1993, Harden indicated down for discriminatory reasons.

a desire for promotion to production staff, which was no

longer an option due to the change in policy in MAP In sum, to qualify for class certification, all the parts of

Assembly, or to the quality department. He was not Rule 23(a) must be met. On their class certification claim

considered for promotion to team leader because he did not based on disparate treatment, plaintiffs cannot demonstrate a

indicate interest; furthermore, he also did not meet the common issue of fact or law applicable to every member of

qualification of 100% attendance or participation in overtime the proposed class. On their disparate impact claim, plaintiffs

special projects required for consideration. cannot show that the facially neutral policies regarding

promotion affected them in a typical way because they opted

Harden rejected the most obvious path to advancement and out of the most common and reliable path of advancement.

was not eligible to be considered for team leader until April The plaintiffs cannot meet the requirements of Rule 23(a) (2)

1996, when he indicated that he wanted to take the and (3) and the district court correctly denied class

qualification test. He received a score of 63 on that exam, certification.

some ten points below the cutoff, and therefore was not

eligible for a team leader position; he did not take the exam We therefore do not consider the Rule 23(a)(4) issue of

in 1997. In April 1998, the promotion process was changed whether the plaintiffs’ attorneys could fairly represent the

and to be considered for elevation to team leader, an class due to their involvement in parallel litigation against

employee had to submit a pool interest form, which Harden Honda. In light of the posture of this case, it would be

did not do. In 1999, he did not see the notification, posted on inappropriate for us to address the split between the Second

September 21, of the October 8 deadline for submitting the and Fifth Circuits concerning whether monetary damages can

requisite interest form to take the qualification test. He heard be sought in a Rule 23(b)(2) class action suit, and we do not

about the possibility from his wife around October 2, but was decide any aspect of that question in this opinion. Compare

out on bereavement leave starting October 3 and did not Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.

return until October 21, when Honda determined that it was 1998) with Robinson v. Metro N. Commuter R.R., 267 F.3d

too late to sign up for the October 25 test. Harden joined this 147 (2d Cir. 2001). We therefore turn to the plaintiffs’

lawsuit on February 18, 2000. individual claims of discrimination under theories of disparate

treatment and disparate impact.

Therefore, largely as a result of his personal promotion

preference, Harden was eligible for promotion to team leader III

for only 15 months out of the ten years at issue in this case.

He expressed interest in, and pursued, other avenues of Individual Claims

advancement, most notably inclusion in the pool for

employment in the quality department. Because he was The district court granted summary judgment to Honda on

pursuing a different career track, he was unable to compete Bacon’s and Harden’s claims of individual disparate

with other candidates who had directly relevant experience. treatment and disparate impact. We review a grant of

Harden was so often ineligible for promotion, particularly for summary judgment de novo. Pinney Dock & Transp. Corp.

the position of team leader that he was most likely to get, he v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir. 1988).

No. 01-3520 Bacon, et al. v. Honda of America 15 16 Bacon, et al. v. Honda of America No. 01-3520

Summary judgment is appropriate where “there is no genuine improperly analyzed their pattern-or-practice basis for class

issue as to any material fact and . . . the moving party is certification, they have not specifically challenged the court’s

entitled to a judgment as a matter of law.” Fed. R. Civ. P. finding that the pattern-or-practice method of proof is not

56(c). available to them on their individual claims.

Disparate Treatment We therefore hold that the pattern-or-practice method of

proving discrimination is not available to individual plaintiffs.

The plaintiffs’ claim of disparate treatment is analyzed We subscribe to the rationale that a pattern-or-practice claim

under the well-known rubic established in McDonnell is focused on establishing a policy of discrimination; because

Douglas. McDonnell Douglas v. Green, 411 U.S. 792, 802 it does not address individual hiring decisions, it is

(1973). The same basic pattern is used in a claim concerning inappropriate as a vehicle for proving discrimination in an

racial discrimination in promotion; specifically, each plaintiff individual case. Lowery, 158 F.3d at 761 (observing that

must show that: (1) he is a member of a protected class; (2) he “[t]he Supreme Court has never applied the Teamsters

applied for and was qualified for a promotion, (3) he was method of proof in a private, non-class suit charging

considered for and denied the promotion; and (4) other employment discrimination. Rather, the Court has noted that

employees of similar qualifications who were not members of there is a ‘manifest’ and ‘crucial’ difference between an

the protected class received promotions at the time the individual’s claim of discrimination and a class action

plaintiff's request for promotion was denied. Nguyen v. City alleging a general pattern or practice of discrimination.”)

of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000). The (citing Cooper v. Fed. Reserve Bank of Richmond, 467 U.S.

district court provided a detailed analysis demonstrating how 867, 876 (1984)). This reading has also been adopted by at

failure to establish a prima facie case warrants summary least one district court in this circuit. Herendeen v. Mich.

judgment on the individual claims and we need not belabor State Police. 39 F. Supp. 2d 899, 905 (W.D. Mich.1999).

the issue, other than to affirm a few critical points of law. However, pattern-or-practice evidence may be relevant to

proving an otherwise-viable individual claim for disparate

Pattern-or-Practice Method of Proof treatment under the McDonnell Douglas framework.

The district court found, based on the weight of authority Exemption from Application Requirement

outside the Sixth Circuit, that the pattern-or-practice method

of proving discrimination, in which the plaintiff shows that As demonstrated above, Bacon and Harden were not

the company had a policy of discriminating against a eligible for promotion for a sizable percentage of their tenure

protected class, is not available to individual plaintiffs. See, at Honda, and/or did not apply to be in the available

e.g., Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 promotion pools, as required in part two of the test for a

(4th Cir. 1998), vacated on other grounds, 527 U.S. 1031 prima facie case. They now argue that they should be exempt

(1999); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d from such a requirement because, given the discriminatory

Cir. 1998). All interpret the Supreme Court’s discussion of nature of promotions at Honda, such an application would

the pattern-or-practice method of proof as being limited to have been futile. Although it is true that failure to apply for

class actions or suits by the government. Int’l Bhd. of a promotion may be excused, the circumstances must reveal

Teamsters v. United States, 431 U.S. 324, 359-60 (1977). “overwhelming evidence of pervasive discrimination in all

Although plaintiffs argue on appeal that the district court aspects of [the employer’s] internal employment practices,

No. 01-3520 Bacon, et al. v. Honda of America 17 18 Bacon, et al. v. Honda of America No. 01-3520

and [that] . . . any application would have been futile and Disparate Impact

perhaps foolhardy.” Harless v. Duck,, 619 F.2d 611, 617-18

(6th Cir. 1980) (quoted in Kreuzer v. Brown, 128 F.3d 359, Disparate impact analysis is used when an employer’s

364 n.2 (6th Cir. 1997)). Plaintiffs cannot come close to facially neutral policy adversely affects a protected class.

meeting this standard. Not only did other African-Americans Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). To

receive some of the promotions for which the plaintiffs show disparate impact, it is not necessary to show an intent to

applied, but Bacon’s supervisor expressed willingness to help discriminate, but the plaintiff must demonstrate a connection

him in his application to the purchasing department. Nor was between the challenged practice and the resulting disparities

the application process arduous; in most cases, all the between protected and non-protected classes. Wards Cove

plaintiffs had to do was fill out a form expressing interest. It Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (clarifying

is not unreasonable to expect plaintiffs to make such a that the “plaintiff must demonstrate that it is the application

minimal effort to preserve their rights. of a specific or particular employment practice that has

created the disparate impact under attack”). Generally

Plaintiffs also rely on the holding in Mauro v. Southern disparate impact analysis is used in a class action, but it may

New England Telecomms., Inc., 208 F.3d 384, 386-87 (2d Cir. also form the basis of an individual claim. See Gantt v.

2000), that the application requirement did not apply when Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir.

the plaintiff expressed interest in promotion to a class of 1998) (ADEA context). The district court determined that

positions but was unaware of specific positions because they basic requirements of standing mean that an individual

were not posted. See also Dews v. A.B. Dick Co., 231 F.3d plaintiff must show that the facially neutral policy resulted in

1016, 1022 (6th Cir. 2000) (recognizing exception to discrimination that resulted in personal injury. Coe v. Yellow

application requirement when employer does not notify Freight System, Inc., 646 F.2d 444, 451 (10th Cir. 1981). See

employees of available promotion and does not provide also Robinson v. Polaroid Corp., 732 F.2d 1010, 1016-17 (1st

formal mechanism for expressing interest in promotion). Cir. 1984); Carpenter v. Bd. of Regents of Univ. of Wis. Sys.,

Although each production department only posted its 728 F.2d 911, 915 (7th Cir. 1984). Plaintiffs have not

promotion opportunities internally, the requirement of one- challenged this conclusion.

year’s tenure in the department meant that all those eligible to

respond had access to the announcement. Although it is true In Warth v. Seldin, the Supreme Court explained the basic

that submitting an application to the quality department and principles of standing, which mandate that a plaintiff have a

non-production pools was not tantamount to applying for a “personal stake in the outcome of the controversy” and that

specific job, managers conducted a blind review of all eligible the plaintiff must have suffered some real or threatened

candidates, not knowing name, background, or racial profile. injury. Warth v. Seldin, 422 U.S. 490, 498 (1975) (quotation

Those who were deemed qualified were then put in a pool and marks and citation omitted). From these basic principles, it

interviewed as vacancies occurred. Therefore, we see no is natural for us to hold that an individual plaintiff arguing a

basis for waiving the general requirement that a plaintiff must disparate impact theory must show that the challenged policy

have applied for a position in order to assert that he was directly disadvantaged him in some fashion. See Bowdish v.

denied the position because of discrimination. Cont’l Accessories, Inc., No. 91-1548, 1992 WL 133022, at

*5 (6th Cir. June 12, 1992) (noting an “individual plaintiff in

an employment discrimination case must present some

evidence that demonstrates that his or her individual

No. 01-3520 Bacon, et al. v. Honda of America 19 20 Bacon, et al. v. Honda of America No. 01-3520

discharge was the result of discrimination”) (unpublished Once the plaintiff establishes that a facially neutral policy

opinion) (citing Gilty v. Village of Oak Park, 919 F.2d 1247, has an adverse effect on a protected class, the burden of

1253 n.8 (7th Cir.1990)). production and persuasion shifts to the employer to show that

the challenged practice is a business necessity. United States

Bacon and Harden contend that Honda’s requirements for v. City of Warren, 138 F.3d 1083, 1091-92 (6th Cir. 1998).

attendance, time in department, testing, and overtime Therefore, even if we were to find a connection between the

activities in determining eligibility for promotion attendance policy and promotion opportunities for minority

disproportionately disadvantage African-Americans. workers, Honda certainly has a legitimate business reason for

Whatever the validity of those disparate impact claims, and demanding near-perfect attendance from its employees.

the statistical evidence is complex and heavily disputed, we Plaintiffs could rebut this by offering an alternative that

agree with the district court that the plaintiffs cannot show would not have the discriminatory impact but would

that the policies injured them personally, and therefore their nevertheless serve the employer's legitimate interests. Wards

claim must fail. Cove, 490 U.S. at 660. Bacon and Harden have not offered

another system for making sure that the production line is

Attendance always sufficiently staffed.

Plaintiffs’ expert found that more African-Americans than Nor have Honda’s attendance requirements injured the

other employees were noted as being late or absent. Plaintiffs plaintiffs; both men have generally maintained attendance

claim discrimination in “excusing” the absences, resulting in records that would not have prevented them from being

more African-Americans being ineligible for promotion due promoted. Bacon was counseled for not meeting the required

to Honda’s stringent attendance requirements. Plaintiffs 98% attendance level in 1997 but not at the managerial level.

overlook the fact that the basic attendance records are An employee is ineligible for promotion for one year after a

generated by computer time clocks. Employees may expunge managerial-level counseling, but a similar session with a

the record of tardiness or absence by applying personal or lower-level supervisor does not preclude advancement. Even

vacation time to make up for the missing time. We have no if Honda management abused the system by

explanation for the fact that fewer African-Americans chose disproportionately counseling African-Americans at the

to use their vacation time to make up for being late or managerial level, neither Bacon nor Harden was subjected to

unexpectedly absent, but see nothing in the record to indicate this treatment and therefore cannot raise it as part of an

that disparity is the result of discrimination. individual disparate impact claim.

The only possible theory would be that Honda somehow Time in Department

induced blacks to be late more often than other employees in

order to force them to deplete their vacation time until the Honda requires every employee to work at the company for

point that they would opt to keep the attendance deficit on 18 months before being eligible for promotion. In addition,

their records. Plaintiffs do not allege that the computers were an employee must give up the right to promotion for 12

somehow programmed to mark African-Americans as late, months after transferring from one department to another.

however, and we cannot think of any other way in which Plaintiffs’ statistical expert found a disparity between

Honda even theoretically could create this difference. African-Americans and other employees in number of

transfers and therefore they posit that this is a discriminatory

No. 01-3520 Bacon, et al. v. Honda of America 21 22 Bacon, et al. v. Honda of America No. 01-3520

requirement designed to keep African Americans off the testing resulted in discrimination. However, nothing in the

promotion roster. We agree that a documented record of record demonstrates that the tests resulted in a widely

forced transfers of African-American employees would raise divergent pass rate for blacks and whites or that the subject

an inference of discrimination, but there is no evidence of matter of the tests was not business-related. Without such a

that. The vast majority of transfers were requested by showing, there is no basis for a disparate impact claim.

employees themselves, including both Bacon and Harden, in Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);

order to get a more desirable shift or position themselves for United Black Firefighters Ass'n v. City of Akron, No. 94-

advancement. Employees involved in departmental 3961, 1996 WL 125043, at *2 (6th Cir. 1996) (unpublished

reorganizations or assigned to special projects kept their opinion). Furthermore, Bacon passed the test that he took.

departmental seniority. Dr. McClave, plaintiffs’ statistical Harden received a score of 63 on the team leader test, at a

expert, did not distinguish between requested and other time when the cutoff for consideration was in the mid-70s,

transfers in his analysis. The record gives no explanation for but passed other assessments to be eligible for promotion into

why African Americans might be more likely to request the quality department.

transfer, but that is a question for Honda management rather

than this court. In terms of percentage, the difference The brief submitted on behalf of Bacon and Harden also

between the percentage of African Americans in Honda’s alleges that they were “prevented from taking eligibility

workforce (7.8%) and the percentage of African Americans tests.” Appellant Br. at 53. This is an overstatement. Harden

requesting transfer (8.69%) does not diverge markedly. missed the October 8, 1999 deadline to express interest in the

October 25 sitting of the test. He was on bereavement leave,

The statement in plaintiffs’ brief that “[t]ransfers were used starting after October 3, and returned a few days before the

to disqualify Bacon and Harden from certain promotions” is test was administered. As a matter of business judgment, it

misleading. Appellant Br. at 17. Both men requested might have been better for Honda to show some flexibility

transfer, knowing the consequences in terms of promotion given Harden’s difficult personal circumstances, but it was

eligibility. Honda has a legitimate business reason for under no obligation to ignore the fact that Harden had not

requiring familiarity with procedures and skills of a particular complied with the deadlines, which he knew about even

department before allowing promotion within that before his sister’s death. The record is vague on Bacon’s

department. Under the burden-shifting pattern cited above, reasons for not sitting for the test; in his deposition he merely

Bacon and Harden would have to propose a different method states that he “has not had the opportunity to do so.” If

for ensuring familiarity with department techniques and Honda had actively prevented him from doing so, his

procedures for those eligible for promotion, which they do not deposition testimony would have been more specific.

do. The periods of ineligibility for promotion resulting from

their requested transfers cannot be attributed to discrimination NH Circles

on the part of Honda.

Neither Bacon nor Harden participated actively in the

Testing overtime special projects that Honda regarded as the final

prerequisite for consideration for promotion. The two may

At certain periods and in certain departments, Honda have had entirely legitimate reasons for doing so; in fact,

required testing to demonstrate sufficient knowledge to be Bacon at one point was attending college classes at night and

eligible for promotion. Bacon and Harden allege that this therefore was not available. Nevertheless, Honda had a

No. 01-3520 Bacon, et al. v. Honda of America 23 24 Bacon, et al. v. Honda of America No. 01-3520

legitimate business reason for gauging commitment to the We review a denial of discovery for abuse of discretion.

company by willingness to make an extra, compensated Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). Given

effort. In fact, the team leader position required availability that the record in this case exceeds 3,800 pages and that the

for overtime, so this policy was an effective way of making elements of Bacon and Harden’s individual claims are

sure that an employee was actually willing to put in extra directly related to their class action claims, we are hard put to

hours. An employer cannot be held liable for disparate imagine what further discovery would have accomplished in

impact if a legitimate business policy results in workforce this matter.

disparities. Ward’s Cove, 490 U.S. at 659. Plaintiffs fail to

suggest another equally effective system for Honda to allow V

employees to signal their willingness to put in the extra effort

that makes them strong candidates for additional It is unfortunate when two qualified minority workers with

responsibility and compensation. strong work evaluations spend a significant number of years

at a company and do not advance. This situation may require

IV the considered attention of Honda management as a business

matter. However, based on the record before us, the district

Discovery court did not err in its rulings. Therefore we AFFIRM the

district court’s denial of class certification and grant of

In January 2001, in response to Honda’s motion for summary judgment to Honda.

summary judgment, the plaintiffs sought further discovery on

the merits of plaintiffs’ individual claims under Federal Rule

of Civil Procedure 56(f). Plaintiffs argued, as they do on

appeal, that discovery had been focused on, and limited to,

class certification issues. The district court denied the

motion, stating that the discovery and scheduling orders

“never indicated that the parties should not be proceeding

with the merits discovery as well as the class certification

discovery, with the exception of the magistrate judge’s

discovery order of October 20, 2000, which states that the

parties should not ‘be conducting discovery that is unrelated

to the motion to certify during November and up to

December 18.’” Plaintiffs were nonetheless permitted to

depose Rick Gardner, the only individual who plaintiffs

specifically asked to depose, and to supplement their response

to the motion for summary judgment. The district court also

observed that much of the voluminous record submitted at the

class certification hearing also related to the individual claims

of the plaintiffs.