recognizing that an employee can challenge dis- crimination in “different job categories where the primary DUKES v. WAL-MART, INC. 1359 practices used to discriminate in the different categories are themselves similar. While it may be prudent to have the class divided into sub-classes represented by a named plaintiff from each of the differing job categories, it would not be necessary to the validity of the class certification to do so.”
How later courts described this case
- recognizing that an employee can challenge dis- crimination in “different job categories where the primary DUKES v. WAL-MART, INC. 1359 practices used to discriminate in the different categories are themselves similar. While it may be prudent to have the class divided into sub-classes represented by a named plaintiff from each of the differing job categories, it would not be necessary to the validity of the class certification to do so.”
- recognizing that an employee can challenge discrimination in "different job categories where the primary practices used to 79 [474 F.3d 1233] 80 discriminate in the different categories are themselves similar. While it may be prudent to have the class divided into sub-classes represented by a named plaintiff from each of the differing job categories, it would not be necessary to the validity of the class certification to do so."
- holding plaintiffs’ challenge to the defendant’s “subjective” decision-making did not warrant a finding of commonality; “While plaintiffs’ statistics may have demonstrated that discrimination against women applicants to the six [] job categories was afoot, nothing in the record so far permits the additional inference that class members suffered a common injury.” (emphasis in original)
- reversing district court’s class certification ruling and remanding the case to the district court for a determination of whether the class should be certified because the class representative’s “complaint and motions for class certification ... evince[d] a complete absence of factual allegations regarding the commonality or typicality requirements of Rule 23. This failure is compounded by the fact that prior to entry of the conditional class certification, the trial court apparently did not conduct any evidentiary hearing or other factual determination that would qualify as a rigorous analysis of whether the prerequisites for a class action had been met.”
Written by the judges who cited it.
The opinion
RANDOLPH, Circuit Judge,
concurring, in which Circuit Judge HENDERSON joins:
On remand, the district court conscientiously reconsidered its 1978 conditional certification of the class and, after briefly describing General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982), decided to adhere to its earlier decision, although the court recognized that under Rule 23(c), Fed. R.Civ.P., it “could even now deny certification.” Hartman v. Wick, 600 F.Supp. 361 , 367 n. 2 (D.D.C.1984). The Agency quite obviously could not have challenged, in the 1982 appeal, this 1984 ruling. The Agency’s failure to take a cross-appeal therefore could not have waived its objections to the ruling. The current appeal is the Agency’s first and only chance for appellate review of the district court’s decision to maintain its original class certification despite Falcon . For that reason alone the certification issue is before us.
I agree with the balance of the court’s opinion and therefore respectfully concur.