Carlos Bell v. Civil Service Commission

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

CARLOS BELL and All Others Similarly Situated, UNPUBLISHED

July 16, 2020

Plaintiffs-Appellees,

v No. 347929

Wayne Circuit Court

CIVIL SERVICE COMMISSION and STATE LC No. 17-003861-CZ

PERSONNEL DIRECTOR,

Defendants-Appellants.

Before: TUKEL, P.J., and SERVITTO and BECKERING, JJ.

PER CURIAM.

Defendants, the Michigan Civil Service Commission and the State Personnel Director,

appeal by leave granted1 the trial court’s order granting plaintiffs’ motion for class certification

under MCR 3.501(A), with plaintiff Carlos Bell as the class representative.2 Defendants argue

that the trial court improperly certified two classes in a single suit, contrary to MCR

3.501(B)(3)(d)(ii), and clearly erred by finding that plaintiffs had met the numerosity and

commonality requirements for class certification. Finding no error, we affirm.

I. BACKGROUND

Defendants use an Entry Level Law Enforcement Examination (“ELLE”) as a “screening

tool” for certain classified law-enforcement positions with the Michigan State Police (MSP) and

the Department of Natural Resources (DNR). Two versions of the ELLE are at issue in this case,

the former version of the Elle (“2002 ELLE”), in use from March 2002 through December 2014,

and the current version of the ELLE (“2014 ELLE”), which replaced the 2002 ELLE in December

2014. The 2002 ELLE consisted of three sections, two of which, the Human Interaction and

Reading Ability sections, contained multiple-choice questions, while the third, Incident

1

Bell v Civil Serv Comm, unpublished order of the Court of Appeals, entered June 26, 2019

(Docket No. 347929).

2

References to plaintiff in the singular signify Bell as the movant for class certification.

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Observation Report Writing, required applicants to watch a video and hand write a report in a test

booklet describing their observations. Applicants had to pass each section with a minimum score,

and achieve a total minimum score to pass the exam. The 2014 ELLE also consists of three

sections: (1) Human Relations and Judgment; (2) Report Writing; and (3) Reading. The first and

third sections are similar, respectively, to the Human Interaction and Reading Ability sections of

the 2002 ELLE. The Report Writing section of the 2014 ELLE requires applicants to watch a

video, hand write a report about their observations, and then answer multiple choice questions

about the report. The handwritten report is never scored; all test questions are multiple choice and

scoring of the 2014 ELLE is “fully automated.”

Plaintiff Bell, an African-American male, took and failed the 2002 ELLE twice, and the

2014 ELLE once. He filed the present class-action complaint on March 3, 2017, alleging that both

ELLE examinations have a disparate adverse impact on African-American applicants. Plaintiff

alleged violation of the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq., on two theories: (1)

disparate impact, and (2) intentional discrimination arising from defendants’ failure to monitor the

adverse impact of the examinations on African-American applicants.

Plaintiff moved for class certification on June 29, 2018. He asked for certification for two

classes, separating those who took the 2002 ELLE and the 2014 ELLE:

[A]ll African-American applicants who took the Entry-Level Law Enforcement

examination at any time on or after February 15, 2014 through November 2014,

and failed the reading test, writing test, or overall exam score; and

[A]ll African-American applicants who took the Entry-Level Law Enforcement

examination at any time on or after December 1, 2014 continuing to the present and

beyond, and failed the reading or writing test or both.

The trial court granted plaintiff’s motion for class certification, but without providing any analysis

regarding the class certification factors under MCR 3.501(A). Defendants subsequently filed an

emergency application for leave to appeal and, in lieu of granting the motion, this Court vacated

the trial court’s order and remanded for more precise articulation of each class certification

requirement.3

On remand, the trial court followed our instructions and issued a written opinion granting

plaintiff’s motion. The trial court explained that plaintiff had asked to certify two classes, one

concerning each version of the test. The court then addressed the various prerequisites to class

certification set forth in MCR 3.501(A)(1), generally referred to as numerosity, commonality,

typicality, adequacy, and superiority. See Henry v Dow Chem Co, 484 Mich 483, 488; 772 NW2d

301 (2009). With regard to numerosity, the court explained that plaintiff had asserted that over

600 applicants failed the 2002 ELLE and 98 failed the 2014 ELLE, that precise numbers were not

required, and that common sense dictated that with hundreds of African-American applicants

3

Bell v Civil Serv Comm, unpublished order of the Court of Appeals, entered January 23, 2019

(Docket No. 346562).

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having failed the examinations, numerosity was established. The court also found that plaintiff

established the existence of common questions of fact and law, explaining:

Here, a common question regarding the ELLE exam exists and individualized

questions concerning how much damage, if any, each class member has suffered

also exist. The individualized determinations of damages will not predominate over

the common question of whether the ELLE exams had a disparate impact on

African-American applicants. Furthermore, plaintiff’s proposed method of

implementing a two-stage trial plan may be employed to resolve any individual

issues concerning class member relief, making class action even more plausible.

The court noted that the parties did not dispute typicality or adequacy, and then moved to

the final factor, superiority; i.e., whether a class-action suit was “superior to other available

methods of adjudication in promoting the convenient administration of justice.” MCR

3.501(A)(1)(e). Unconvinced by defendants’ argument that the class-wide treatment of damages

would be impracticable or impossible, the court noted that the same common questions were at

issue, and stated that “individual damages may be addressed in a second-stage proceeding, if

necessary.” The court was also concerned that requiring individual actions would create a risk of

inconsistent adjudications, and believed that proceeding as a class action was the “superior way to

resolve this dispute.” Finding all of the prerequisites in MCR 3.501(A)(1) to be established, the

trial court granted plaintiff’s motion for class certification. The court subsequently entered a

stipulated order that stayed a deadline for defendants to produce a list of contact information for

class members pending the resolution of an expected application for leave to appeal. As expected,

defendants sought leave to appeal the trial court’s order which, as noted above, was granted by

this Court.

II. ANALYSIS

A. STANDARD OF REVIEW

“The proper interpretation and application of a court rule is a question of law, which we

review de novo.” Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). Principles

of statutory construction apply when interpreting a court rule. Id. The first step is to consider “the

plain language of the court rule in order to ascertain its meaning.” Id. “The intent of the rule must

be determined from an examination of the court rule itself and its place within the structure of the

Michigan Court Rules as a whole.” Id. (quotation marks and citation omitted).

In the context of a decision on class certification, a trial court’s factual findings are

reviewed for clear error, and the trial court’s discretionary determinations are reviewed for an

abuse of discretion. Id. at 495-496. Under the clear error standard, this Court “will overturn the

trial court’s decision only if [the Court is] left with the definite and firm conviction that a mistake

has been made.” Adams v West Ottawa Pub Sch, 277 Mich App 461, 465; 746 NW2d 113 (2008).

“The trial court abuses its discretion when its decision is outside the range of reasonable and

principled outcomes.” Heaton v Benton Constr Co, 286 Mich App 528, 542; 780 NW2d 618

(2009).

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B. LEGAL STANDARDS

Members of a class may only sue or be sued as representatives of all class members if they

meet the requirements of MCR 3.501(A)(1). Henry, 484 Mich at 496. MCR 3.501(A)(1) allows

a suit to proceed as a class-action suit only if all of the following requirements are met:

(a) the class is so numerous that joinder of all members is impracticable;

(b) there are questions of law or fact common to the members of the class that

predominate over questions affecting only individual members;

(c) the claims or defenses of the representative parties are typical of the claims or

defenses of the class;

(d) the representative parties will fairly and adequately assert and protect the

interests of the class; and

(e) the maintenance of the action as a class action will be superior to other available

methods of adjudication in promoting the convenient administration of justice.

As previously indicated, these requirements are generally referred to as numerosity, commonality,

typicality, adequacy, and superiority. Henry, 484 Mich at 488. At issue here is whether plaintiffs

have met the requirements of numerosity and commonality. “[S]trict adherence to the class

certification requirements is required[,]” and a “party seeking class certification must meet the

burden of establishing each prerequisite before a suit may proceed as a class action.” Henry, 484

Mich at 500. This is accomplished by “provid[ing] the certifying court with information sufficient

to establish that each prerequisite for class certification in MCR 3.501(A)(1) is in fact satisfied.”

Id. at 502. “Because there is limited case law in Michigan addressing class certifications, this

Court may refer to federal cases construing the federal rules on class certification.” Neal v James,

252 Mich App 12, 15; 651 NW2d 181 (2002), overruled on other grounds by Henry, 484 Mich

483 (2009). While this Court may look to federal court decisions as persuasive authority, such

decisions are not binding on this Court. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677

NW2d 325 (2004) (“Although lower federal court decisions may be persuasive, they are not

binding on state courts.”).

C. CLASS CERTIFICATION

1. SEPARATE CLASSES

Defendant first argues the trial court improperly certified two separate classes in one suit,

contrary to MCR 3.501(B)(3)(d)(ii). We disagree.

Under MCR 3.501, the trial court may order that “a proposed class be divided into separate

classes with each treated as a class for purposes of certifying, denying certification, or revoking a

certification.” MCR 3.501(B)(3)(d)(ii). Defendants contend that the trial court is prohibited from

certifying multiple classes in a single case unless each originates from a single class that meets all

certification requirements under MCR 3.501(A). Defendants support their position with reference

to a 2006 law review article analyzing a similar provision in the federal rules of civil procedure.

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In that article, the author posits two theories of certifying separate classes: “the replacement theory,

which posits that subclasses can be certified without regard to the certifiability of the global class

action, and the contingency theory, which requires any subclass to be a part of a certified global

class.” Scott Dodson, Subclassing, 27 Cardozo L Rev 2351 (2006). Despite the article’s

conclusion that “the replacement theory is the best interpretation of the [federal] subclassing

provision,” id., defendants urge this Court to adopt the contingency theory, and to hold that the

trial court erred by certifying two classes apart from the existence of a certified global class. We

decline to do so.

“[T]he plain language of MCR 3.501(A) provides sufficient guidance for class certification

decisions in Michigan.” Henry, 484 Mich at 502. Professor Dodson’s observation regarding the

language of the similar provision in FR Civ P 23 is equally applicable here: “[t]The term ‘class’ is

used throughout [MCR 3.501] detached from connotations of certifiability.” Subclassing, 27

Cardozo L Rev at 2372. For example, MCR 3.501(A)(1) uses the term “class” to refer to a pre-

certified, and potentially uncertifiable, group of plaintiffs when it states, “[o]ne or more members

of a class may sue or be sued as representative parties on behalf of all members in a class action”

if certain criteria are met. In addition, MCR 3.501(B)(3)(d)(ii) specifically states that the court

may divide “a proposed class” into separate classes. Like the use of “class” in MCR 3.501(A)(1),

to refer to a pre-certified or possibly uncertifiable group of plaintiffs, the use of “proposed class”

in MCR 3.501(B)(3)(d)(ii) evokes a pre-certified or potentially uncertifiable class that is divided

into separate classes, “with each treated as a class,” for one of three purposes: “certifying, denying

certification, or revoking a certification,” MCR 3.501(B)(3)(d)(ii). Thus, we conclude that

nothing in the plain language of MCR 3.501 prohibits a trial court from certifying two or more

classes in a single lawsuit, where appropriate.4

Defendants agree in principle that the trial court could certify separate classes in a single

lawsuit, but argue that doing so was not appropriate here. They hypothesize that if the trial court’s

“separate certification approach” prevails in this case, future plaintiffs could bring any number of

claims against the State in one action and simply ask for separate classes. Claims challenging the

hiring practices of the MSP could be brought with claims challenging the hiring practices for data

analysts at the Department of Treasury. Even more farfetched, challenges to the treatment of

inmates by the Department of Corrections could be combined with challenges to the maintenance

of roads by the Department of Transportation. The problem with defendants’ hypotheticals is that,

while it is true that “at a sufficiently abstract level of generalization, almost any set of claims . . .

could display commonality,” there must nevertheless be “a common issue the resolution of which

will advance the litigation.” Sprague v General Motors Corp., 133 F3d 388, 397 (CA 6, 1998).

Regarding the non-hypothetical case at bar, resolving the question of whether the ELLE tests

violated the ELCRA arguably would advance the litigation, and defendants have not suggested

otherwise. For the reasons stated above, we conclude that the trial court did not improperly divide

4

We also note that an advisory comment to the 1966 amendment of the federal rules states with

regard to FR Civ P 23: “Two or more classes may be represented in a single action. Where a class

is found to include subclasses divergent in interest, the class may be divided correspondingly, and

each subclass treated as a class.”

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the proposed class into separate classes and treat each one as a separate class within a single

action.5

2. NUMEROSITY

Next, defendants argue that the trial court erred by finding the numerosity requirement met

because plaintiff failed to show or to provide a means of showing how many of the potential class

members suffered an actual injury as a result of failing the examinations. Defendants argue that if

applicants would have been ineligible for those positions for a different reason, such as

requirements concerning their age, citizenship status, education, or criminal record, “the act of

failing the Exam would have had no impact on that person’s ability to seek those jobs.”

Defendants’ argument is unavailing.

“[N]o particular minimum number is necessary to meet the numerosity requirement, and

the exact number of members need not be known as long as general knowledge and common sense

indicate that the class is large.” Zine v Chrysler Corp, 236 Mich App 261, 288; 600 NW2d 384

(1999). “[T]he plaintiff must adequately define the class so potential members can be identified

and must present some evidence of the number of class members or otherwise establish by

reasonable estimate the number of class members.” Duskin v Dep’t of Human Servs (On Remand),

304 Mich App 645, 653; 848 NW2d 455 (2014) (quotation marks and citation omitted). “The

proponent must establish that a sizeable number of class members have suffered an actual injury.”

Id.

In support of their position, defendants rely on Duskin, an appeal involving claims of

unemployment discrimination based on disparate treatment. The proposed plaintiff class in Duskin

was “comprised of all ‘minority’ male employees” of the Department of Human Services (DHS),

including over 500 “African-American, Hispanic, Arab, and Asian males in various departments

and offices throughout the state.” Id. at 648. The plaintiffs maintained that, “since 2003, fewer

minority males have been promoted within the DHS to the positions of program manager, district

manager, county director, and first line supervisor because of ‘department wide cultural

deficiencies regarding minority males.’ ” Id. They asserted that some of the class members applied

for but were denied promotions or training opportunities for which they were qualified, while

“frustration with some of the [Department’s] supervisory and management employees’

discriminatory attitudes and practices involving racial and gender bias directed against minority

males . . .” rendered others “too discouraged to apply.” Id. The trial court ultimately granted the

plaintiffs’ motion for class certification. The trial court found that the plaintiffs established

numerosity because, “while not all class members had applied for promotions, all class members

had ‘an interest in making sure that they are not discriminated against if they do.’ ” Id. at 650.

5

Further, defendants do not identify any prejudice that they would suffer as a result of the trial

court’s certification of two separate classes. Were we to agree with defendants’ position, the

ultimate remedy would be to sever the classes so they could each proceed in two separate actions.

Thus, principles of efficiency and judicial economy are served by litigating the claims of the two

classes together in one proceeding.

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On appeal, this Court held that the trial court had clearly erred by finding that the plaintiffs

had established numerosity. The Court explained that minority employees who did not apply for

promotions out of fear of discrimination could not be included in the class because “membership

must be based on objective criteria[,]” and that “while the minority males established an estimate

of the number of class members, they did not provide an adequate statement of basic facts to

support that a sizeable number of those class members suffered an actual injury.” Id. at 653-654.

Unlike the class members in Duskin, the class members in the present case have suffered

actual injury as determined by objective criteria. Plaintiffs have alleged that defendants’

preemployment tests have a disparate impact on African-American candidates. All of the class

members took and failed the tests; thus, each member who took and failed a test allegedly suffered

the actual injury of discrimination on the basis of race, regardless of their other qualifications for

the law-enforcement positions. Defendants have not cited, nor has our research revealed, any

authority requiring plaintiffs in a disparate-impact discrimination case to also show that class

members would have met all other employment criteria as part of establishing numerosity. See

Williams v Ford Motor Co, 187 F3d 533, 535 (CA 6, 1999) (involving a certified class comprised

of all African-American applicants for unskilled hourly employment with Ford from 1989 to the

present who were excluded from unskilled employment with Ford in Ohio because they scored

“low” on the unskilled pre-employment test); Easterling v Conn Dep’t of Corrections, 265 FRD

45, 48-51 (D Conn, 2010), modified, 278 FRD 41 (D Conn, 2011) (finding numerosity in an action

challenging a component of the department’s preemployment physical examination, even though

applicants who passed the physical examination would be subject to additional preemployment

screening requirements). Accordingly, we cannot say that the trial court clearly erred by finding

that plaintiff met the requirement for numerosity. Defendants’ argument that some potential class

members would have been ineligible for employment because they did not meet minimum

threshold requirements such as age, citizenship status, education, and absence of prior felony

convictions relates more properly to damages than to numerosity. 6

Lastly, defendants contend that treating unscored writing sections as failing scores

improperly inflates the number of members in the first class, i.e., those who took the 2002 ELLE.

6

“A court should generally limit relief ‘only to those class members who would have filled

vacancies had there been no discrimination.’ ” Easterling, 278 FRD 41, 48 (D Conn, 2011),

quoting Ingram v Madison Square Garden Center, Inc, 709 F.2d 807, 812–13 (CA 2, 1983). The

class-wide calculation and pro rata distribution of back pay is appropriate when “the number of

qualified class members exceeds the number of openings lost to the class through discrimination,

and identification of the individuals entitled to relief would drag the court into a quagmire of

hypothetical judgments.” Easterling, 278 FRD at 48, (quoting Catlett v Mo Highway and Transp

Comm'n, 828 F2d 1260 (CA 8, 1987). See also United States v City of New York, 276 FRD 22, 44

(“Because it is impossible to determine exactly which non-hire victims would have received job

offers . . . the court must first determine the aggregate amount of individual relief to which the

subclasses are entitled and then distribute that relief pro rata to eligible claimants.”). Under these

principles, those members of the class who may have been ineligible for employment because they

failed to meet minimal requirements, such as age, citizenship status, education, or had a past felony

conviction are excluded from any employment-related damages, such as lost wages and benefits.

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In order to be part of the first class, an applicant had to fail the reading section, fail the writing

section, or fail the overall examination. As previously explained, an applicant could fail the 2002

ELLE examination by failing to obtain a minimum score on any of the three sections or, by passing

all three sections, but failing to achieve an overall minimum score. Based on the way the 2002

ELLE was scored, defendants argue in their brief to this Court that “[m]embership in the class for

the [2002 ELLE], then, is expressly defined to include only the following three groups: (1) those

who failed the Reading section; (2) those who failed the Writing section; and (3) those who passed

all three sections, but failed to achieve the required overall exam score” (defendants’ emphasis).

Accordingly, applicants who failed only the video section of the 2002 ELLE would not be class

members because they would not meet any of the three criteria: they did not fail the reading section,

it is not known if they failed the writing section because it would not have been scored, and they

would not fall into the category of those who failed the overall test because, in order to fall into

that category, applicants first had to pass all three sections. Nevertheless, these applicants are

included as members of the first class because unscored writing tests are considered failing scores.

Defendants contend that treating unscored tests as failing tests constructs a class on pure

conjecture, and that the remedy would be to include only those whose writing sections were scored

but who failed to achieve a passing score.

We agree that an unscored writing section is not necessarily a failing score. Nor is it a

passing score. But where the only two options are pass or fail, an unscored section seems more

like a failing score than a passing one. All this aside, defendants base their argument on the

premise that membership in the first class is “expressly defined” as including, inter alia, “those

who passed all three sections, but failed to achieve the required overall exam score” (defendants’

emphasis). However, the definition of the class that the trial court certified does not contain the

italicized words. On the contrary, applicants are members of the class if they failed the reading

section, if they passed the reading section and the video section but failed the writing section, or if

they failed to achieve the overall minimum score, regardless of whether they passed all three

sections. Applicants whose writing sections were not scored might not have been able to achieve

the overall minimum score, and thus arguably would be members of the class by virtue of falling

into the latter category, along with those who may have passed all three sections, but did not score

a passing combined score. Although the definition of the first class may add to the class more

people than defendants’ proposed interpretation, it does not follow that the definition is overly

broad.

A class definition can be overly broad if it captures as potential members those not intended

by the complaint. See Mich Ass’n of Chiropractors, 300 Mich App at 591. Plaintiffs alleged in

their complaint that defendants discriminated against African-American applicants by developing

and using tests that “have a disproportionately disparate impact on African Americans compared

with Caucasians . . . .” They described the tripartite structure of the 2002 ELLE, and explained

that it was scored on a pass/fail basis, that the report writing section would be scored only if an

applicant passed both the Human Interaction and Reading Ability sections, separately and in

combination, and that “there was a total minimum score expectation.” It was the written test as a

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whole that plaintiffs alleged in their complaint was discriminatory, not merely portions of it.7

Nothing about the definition of the first class suggests that it overreaches the intent of the complaint

to obtain relief for African-American applicants who took and failed the tests used by defendants

as part of the hiring process for the law-enforcement jobs at issue.

3. COMMONALITY

Next, defendants argue that plaintiffs failed to demonstrate commonality because

individualized questions predominate over any common questions. Defendants claim this is the

case because the writing portion of the 2002 ELLE was subjectively scored, and because any

individual issues of damages will require hundreds of “mini-trials.”

“To establish commonality, the proponent of certification must establish that issues of fact

and law common to the class predominate over those issues subject only to individualized proof.”

Duskin, 304 Mich App at 654 (quotation marks and citation omitted). “The common

contention . . . must be of such a nature that it is capable of classwide 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. (quotation marks and citation omitted). Commonality “does

not require all issues in the litigation to be common . . . .” Hill v Warren (On Remand), 276 Mich

App 299, 311; 740 NW2d 706 (2007).

Defendants present only a cursory argument with regard to their claim that the subjective

nature of scoring the Writing Section of the 2002 ELLE defeats commonality. They contend only

that the trial court did not address the issue and they fail to demonstrate how a different result

would be warranted on the basis of this argument. In addition, they do not contest plaintiffs’

position that graders were guided by a standard scoring template and that use of the template

limited the graders’ discretion so that the limited amount of discretion allowed in grading the

Writing Section did not defeat commonality. See Wal-Mart Stores, Inc v Dukes, 564 US 338, 356;

131 S Ct 2541; 180 L Ed 2d 374 (2011) (suggesting that commonality would be satisfied where,

while discretionary issues were at issue, a “common mode of exercising discretion” had been

shown). It seems that here, the use of a template to score the examinations would clearly show

that subjective scoring of the Writing Section provided a “common mode of exercising discretion.”

Accordingly, defendants have failed to persuade us that the discretion involved in scoring the

Writing Section of the 2002 ELLE defeated commonality.

Defendants next argue that the trial court should not have certified the classes with respect

to damages because individual questions predominate. We cannot say that we necessarily share

defendants’ concerns.

According to plaintiffs’ proposed trial strategy, the stages of the trial would proceed as

follows:

7

In fairness, plaintiffs’ expert opined that the reading and writing portions of both tests had a

disparate impact on African-American candidates.

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At the First Stage, the following issues are decided: (1) whether the ELLE exam

had an adverse impact on African-American applicants; (2) whether using the

ELLE exam is justified by business necessity and, if so, whether there was a less

discriminatory alternative; (3) whether Defendants are liable to the name Plaintiff,

as well as his damages; and (4) resolution of class-wide damages issues. At the

Second Stage, to the extent that all damages cannot be resolved in the First Stage,

individual hearings are held on back pay, and other available damages and relief.

Pursuant to this strategy, only those damages appropriate to the class as a whole would be

decided at the first stage of trial, and the trial court would be left with the discretion and flexibility

to address any individual issues at the second stage. The trial court seemed sanguine about this

approach and, contrary to what defendants argue, it would not involve over 600 mini-trials on

individual damages.8 At this point, we see no reason to dictate to the trial court how to handle any

potential relief to which class members may be entitled.

III. CONCLUSION

For the reasons stated above, we conclude that the trial court’s factual findings as to the

requirements for class certification were not clearly erroneous and that the court did not abuse its

discretion by certifying the classes at issue.

Affirmed.

/s/ Jonathan Tukel

/s/ Deborah A. Servitto

/s/ Jane M. Beckering

8

In fact, as indicated in footnote (4), federal courts faced with determining damages in similar

disparate impact discrimination cases have eschewed any attempt to “second-guess” who would

have been hired and have opted to calculate class-wide awards and distribute them pro rata to those

entitled to receive them. See Easterling, 278 FRD at 48; United States v City of New York, 276

FRD at 44.

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