The opinion
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-2360
_________________________
D. C. Docket Nos. 96-0072-CIV-FTM-17D
96-0115-CIV-FTM-17D
JANET JACKSON, DELOIS EVANS,
Plaintiff-Appellees,
versus
MOTEL 6 MULTIPURPOSE, INC.; MOTEL 6 G.P., INC.;
MOTEL 6 OPERATING L.P.; IBL LIMITED, INC., d.b.a.
Motel 6; ACCOR S.A.;
Defendants-Appellants.
_________________________________________________________________
MARIO PETACCIA; BRENDA HATCHER; TANYA CHARLES;
CHERVON SCREEN; JENNIFER BETHEL; JAMES STERNS;
PITRELL LAMBERT-BROWN; KARL BALDWIN;
MARCIAN KILLSNIGHT, for themselves and all
others similarly situated,
Plaintiffs-Appellees,
versus
MOTEL 6 G.P., INC.; MOTEL 6 OPERATING L.P.
d.b.a. Motel 6,
Defendants-Appellants.
---------------------------
Appeal from the United States District Court for the
Middle District of Florida
--------------------------
(December 10, 1997)
Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.
____________________
*Honorable Stanley Marcus was a U.S. District Judge of the
Southern District of Florida sitting by designation as a member
of this panel when this appeal was argued and taken under
submission. On November 24, 1997 he took the oath of office as a
United States Circuit Judge of the Eleventh Circuit.
TJOFLAT, Circuit Judge:
Motel 6 Multipurpose, Inc. (“Motel 6") seeks a writ of
mandamus1 vacating a district court order, issued on February 21,
1997, authorizing the plaintiffs in two consolidated race
discrimination cases to advertise their allegations to the public
at large and to communicate with current and former Motel 6
employees through mass mailings. Motel 6 also requests that the
writ direct the district court to decertify one of the two
putative classes. We conclude that the district court’s February
21 order constitutes an abuse of discretion, and that the
challenged class was erroneously certified. We therefore grant
the petition and issue the writ.
I.
Motel 6 owns and operates over 750 motels across the United
States. The instant petition for mandamus arises from two
consolidated cases alleging that Motel 6 has a nationwide
practice or policy of discriminating against its customers and
its employees on the basis of race. In the first case, five
Motel 6 patrons (“the Jackson plaintiffs”) claim that Motel 6
unlawfully discriminated against them on the basis of their race.
They claim that they were either denied accommodations at a Motel
1
Writs of mandamus are issued pursuant to the All Writs
Act, 28 U.S.C. § 1651(a) (1994).
2
6 motel or provided substandard accommodations pursuant to an
alleged nationwide Motel 6 practice or policy of (1) refusing to
rent otherwise vacant rooms to blacks and other non-white
persons, (2) segregating black patrons and other non-white
patrons from white patrons within a single facility, and (3)
providing substandard housekeeping and other services to black
patrons and other non-white patrons as compared to white patrons.
Two of the five named plaintiffs allege that they were denied
rooms at the same motel; the remaining three named plaintiffs
each allege that they were subjected to discriminatory treatment
at three separate other motels. The Jackson plaintiffs seek, on
behalf of themselves and similarly situtated patrons of Motel 6,
injunctive relief and money damages under Title II of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000a et seq.,2 and under 42
U.S.C. § 1981.3
2
Section 2000a reads, in pertinent part:
§ 2000a. Prohibition against discrimination or
segregation in places of public accommodation
(a) Equal access
All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations of any place
of public accommodation, as defined in this section,
without discrimination or segregation on the ground of
race, color, religion, or national origin.
42 U.S.C. § 2000a (1994).
3
Section 1981 in its entirety reads:
§ 1981. Equal rights under the law
(a) Statement of equal rights
3
In the second case, five former Motel 6 employees (“the
Petaccia plaintiffs”) claim that, as Motel 6 employees, they were
required to discriminate against black and other non-white
patrons, that Motel 6 retaliated against them when they refused
to do so, and that Motel 6's discrimination against blacks and
other non-whites created a “hostile work environment.” The
Petaccia plaintiffs seek, on behalf of themselves and all Motel 6
employees who have been required to work in the alleged hostile
environment, injunctive relief and money damages under § 1981 and
the retaliation provision of Title II.4
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every
kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and
enforce contracts" includes the making, performance,
modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected
against impairment by nongovernmental discrimination
and impairment under color of State law.
42 U.S.C. § 1981 (1994).
4
That provision, 42 U.S.C. § 2000a-2, provides in relevant
part that
4
After the cases were consolidated, the plaintiffs moved for
an order allowing them relief from the Middle District of
Florida's Local Rule 4.04(e), which provides that
[i]n every case sought to be maintained by any party as
a class action, all parties thereto and their counsel
are hereby forbidden, directly or indirectly, orally or
in writing, to communicate concerning such actions with
any potential or actual class member, not a formal
party to the case, without approval by the Court.
The district court granted relief from Local Rule 4.04(e) in a
February 21, 1997, order that authorized the plaintiffs to:
1) establish a 1-800 number to which potential class
members may call;
2) publish notices of the ongoing litigation in
publications nationwide and solicit information about
potential class members and their alleged experiences
with discrimination at Motel 6 motels;
3) respond to requests for information from those who
respond to the advertisements or call the 1-800 number;
4) distribute mass mailings to Motel 6 employees
soliciting information regarding the plaintiffs'
allegations of discrimination at Motel 6 motels; and
5) further communicate ex parte with any “persons who
may have knowledge of” the alleged discrimination,
except for current Motel 6 management or supervisory
employees.
The district court entered this order allowing communication with
potential class members even though it had not yet ruled on
[n]o person shall . . . intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce
any person with the purpose of interfering with any
right or privilege secured by section 2000a or 2000a-1
of this title . . . .
42 U.S.C. § 2000a-2 (1994). As we discuss infra, the Petaccia
plaintiffs do not have standing to bring a claim for injunctive
relief under this section.
5
either the Jackson plaintiffs' or the Petaccia plaintiffs'
motions for class certification.5
Motel 6 then moved the lower court for a stay of the
communications order pending appeal; that motion was denied. See
Jackson v. Motel 6 Multipurposes, Inc., 172 F.R.D. 469 (M.D. Fla.
1997). Motel 6 then appealed the denial of the motion for a stay
and filed a petition for a writ of mandamus, on the ground that
the lower court had misapplied the controlling precedents of
Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980) (en banc)6
and Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). This court
declined to stay the discovery order on appeal and denied the
petition for mandamus. On May 1, 1997, Motel 6 requested a stay
of the order from the Supreme Court. On May 2, Circuit Justice
Kennedy denied that request.
On August 15, 1997, the district court certified the Jackson
5
The district court noted that the plaintiffs' assertions
that they needed to communicate with potential class members in
order to build an adequate record for class certification were
“highly suspect[,] in light of the fact that the plaintiffs ha[d]
long since filed their motions for class certification.” The
court nonetheless granted the motion allowing communication with
potential class members, in light of, inter alia, “the
potentially large size of the class . . . the serious allegations
of racial discrimination, [and] the plaintiffs' need to
effectively prepare for trial.” We agree that the allegations of
discrimination are serious and that the plaintiffs need
effectively to prepare for what will no doubt be a fairly
complicated trial. Because we hold that the putative Jackson
class cannot be certified, however, see infra part II, the
Jackson plaintiffs will need to prepare for trial of only their
own claims, serious as those claims may be.
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
6
plaintiffs as class representatives and referred the question of
certification of the Petaccia plaintiffs to a magistrate judge
for further consideration.
Motel 6 now petitions for mandamus again, arguing that the
communications order was an abuse of discretion ab initio, and
also that because the Jackson plaintiffs cannot properly be
certified as class representatives, that portion of the
communications order allowing the Jackson plaintiffs to advertise
their allegations nationwide and to communicate with current and
former Motel 6 employees is entirely unnecessary and an abuse of
the district court's discretion.7 We agree that the
7
The plaintiffs argue that the law of the case doctrine
prevents us from hearing this second petition for mandamus
relief. The law of the case doctrine provides that an appellate
court's decision of a legal issue must be followed in all
subsequent trial or intermediate appellate proceedings in the
same case, see DeLong Equip. Co. v. Washington Mills Electro
Minerals Corp., 990 F.2d 1186, 1196 (11th Cir. 1993), unless “(1)
a subsequent trial produces substantially different evidence, (2)
controlling authority has since made a contrary decision of law
applicable to [the contested] issue, or (3) the prior decision
was clearly erroneous and would work manifest injustice.” Barber
v. International Bhd. of Boilermakers, Dist. Lodge # 57, 841 F.2d
1067, 1072 (11th Cir. 1988). In order for the law of the case
doctrine to apply, however, the issue contested on the latter
appeal must be the same issue that was contested on and decided
by the former appeal. See Lawson v. Singletary, 85 F.3d 502,
512-13 (11th Cir. 1996) (concluding that law of the case doctrine
did not preclude later appeal where, inter alia, the focus of the
former appeal was on a different issue). In the instant case,
Motel 6 first petitioned for mandamus on the ground that the
lower court had misapplied the controlling precedents of Bernard
v. Gulf Oil Co. and Gulf Oil Co. v. Bernard in deciding to grant
relief from Local Rule 4.04(e). The instant petition proffers a
wholly different ground for relief: that the district court's
August 15 decision to certify the Jackson class was clearly
erroneous and that the authorization of class communications by
the Jackson plaintiffs was therefore an abuse of discretion.
Because the petition before us now rests on a different ground
than the first petition, the law of the case doctrine does not
7
communications order was an abuse of discretion from the
beginning, and we agree that the Jackson class was erroneously
certified. We therefore grant the writ and direct the district
court to decertify the Jackson class and to strike that portion
of its February 21 order allowing the Jackson plaintiffs to
communicate with putative class members. We also conclude that
the February 21 order constitutes an abuse of discretion insofar
as it authorizes the Petaccia plaintiffs to advertise their
claims nationwide and conduct mass mailings to Motel 6 employees.
We therefore also direct the district court to vacate the
communications order insofar as it applies to the Petaccia
plaintiffs.8
II.
In In re Estelle, 516 F.2d 480 (5th Cir. 1975), we outlined
the purview of mandamus:
The Writs of Mandamus and Prohibition are granted
sparingly. Such writs are reserved for really
extraordinary cases, and should be issued only when the
right to such relief is clear and indisputable. To
some extent they are supervisory in nature and are used
to confine an inferior court to a lawful exercise of
its prescribed jurisdiction or to compel it to exercise
its authority when it is its duty to do so. They are
not to be used as a substitute for appeal, or to
control the decision of the trial court in
discretionary matters.
preclude our consideration of the instant petition.
8
We thus direct the district court to vacate the February
21 order in its entirety. For clarity’s sake, however, we will
proceed to discuss the two cases separately, and will refer to
those “portions” of the communications order that are at issue in
each case.
8
The Writ is thus a drastic remedy, that must not
be used to regulate the trial court's judgment in
matters properly left to its sound discretion, but that
may be available to confine the lower court to the
sphere of its discretionary power.
Id. at 483 (internal citations and quotations omitted). We may
issue the writ “only in drastic situations, when no other
adequate means are available to remedy a clear usurpation of
power or abuse of discretion.” In re Temple, 851 F.2d 1269, 1271
(11th Cir. 1988).
We hold that the instant petition warrants the issuance of
mandamus because the district court's order allowing the
plaintiffs to communicate with potential class members was an
abuse of discretion. The communications order was entered months
prior to any decision regarding whether either of the two
proposed classes would in fact be certified. While we cannot say
that orders authorizing communication with potential class
members may never precede class certification, district courts
must strive to avoid authorizing injurious class communications
that might later prove unnecessary. An order authorizing class
communications prior to class certification is likely to be an
abuse of discretion when (1) the communication authorized by the
order is widespread and clearly injurious and (2) a certification
decision is not imminent or it is unlikely that a class will in
fact be certified. In such circumstances, the danger of abuse
that always attends class communications--the possibility that
plaintiffs might use widespread publication of their claims,
disguised as class communications, to coerce defendants into
9
settlement--is not outweighed by any need for immediate
communications.
The advertisements and mass mailings allowed by the order at
issue in the instant petition are nationwide in scope and are
surely causing serious and irreparable harm to Motel 6's
reputation and to its relationship with its employees. “The only
conceivable alternative [to mandamus relief]--inevitable reversal
by this court after the defendants have been forced to endure
full discovery, full litigation, and a full trial--is scarcely
adequate” to redress this injury. In re Cooper, 971 F.2d 640,
641 (11th Cir. 1992) (internal quotations omitted). Moreover,
the order was entered almost six months prior to the court's
decision to certify the Jackson class and to refer the Petaccia
plaintiffs' motion for class certification to a magistrate judge.
(The Petaccia plaintiffs’ motion for class certification is still
pending.) Most important, the Jackson plaintiffs clearly could
not properly be certified as class representatives.
A.
The Supreme Court has noted that,
[though] racial discrimination is by definition class
discrimination[, . . .] the allegation that such
discrimination has occurred neither determines whether
a class action may be maintained in accordance with
Rule 23 nor defines the class that may be certified.
Conceptually, there is a wide gap between (a) an
individual's claim that he has been [discriminated
against on the basis of race], and his otherwise
unsupported allegation that [the defendant] has a
policy of discrimination, and (b) the existence of a
class of persons who have suffered the same injury as
that individual, such that the individual's claim and
10
the class claims will share common questions of law or
fact.
General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156,
102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982) (footnotes omitted).
The putative Jackson class is not certifiable because it fails
the predominance requirement of Federal Rule of Civil Procedure
23(b)(3).
A class action may be maintained only when it satisfies all
the requirements of Fed. R. Civ. P. 23(a)9 and at least one of
the alternative requirements of Rule 23(b).10 The only one of
9
Rule 23(a) in its entirety provides that
[o]ne or more members of a class may sue or be sued on
behalf of all 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.
10
Rule 23(b) in its entirety provides:
Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or
against individual members of the class would
create a risk of
(A) inconsistent or varying adjudications
with respect to individual members of the
class which would establish incompatible
standards of conduct for the party opposing
the class, or
(B) adjudications with respect to individual
members of the class which would as a
practical matter be dispositive of the
interests of the other members not parties to
11
Rule 23's alternatives that is arguably fulfilled by the Jackson
plaintiffs' claims is that found in Rule 23(b)(3), which provides
that
[a]n action may be maintained as a class action if the
prerequisites of subdivision (a) are satisfied, and in
addition . . .
(3) the court finds that the questions of law or fact
common to the class predominate over any questions
affecting only individual members, and that a class
action is superior to other available methods for the
fair and efficient adjudication of the controversy.
Fed. R. Civ. P. 23(b)(3). “In other words, 'the issues in the
the adjudications or substantially impair or
impede their ability to protect their
interests; or
(2) the party opposing the class has acted or
refused to act on grounds generally applicable to
the class, thereby making appropriate final
injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) the court finds that the questions of law or
fact common to the class predominate over any
questions affecting only individual members, and
that a class action is superior to other available
methods for the fair and efficient adjudication of
the controversy. The matters pertinent to the
findings include: (A) the interest of members of
the class in individually controlling the
prosecution or defense of separate actions; (B)
the extent and nature of any litigation concerning
the controversy already commenced by or against
members of the class; (C) the desirability or
undesirability of concentrating the litigation of
the claims in the particular forum; (D) the
difficulties likely to be encountered in the
management of a class action.
Fed. R. Civ. P. 23(b). For the reasons recited in the text, in
considering the factors listed in Rule 23(b)(3), we find that
management of the Jackson class action would involve overwhelming
difficulties, and that concentration of the highly case-specific
claims of dozens or hundreds of plaintiffs from around the
country in the Middle District of Florida would be undesirable.
12
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.'” Kerr v.
City of West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir. 1989),
quoting Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671,
676 (5th Cir. Unit B 1982).11 The predominance inquiry focuses
on “the legal or factual questions that qualify each class
member's case as a genuine controversy,” and is “far more
demanding” than Rule 23(a)'s commonality requirement. Amchem
Prods., Inc. v. Windsor, --- U.S. ---, ---, 117 S.Ct. 2231, 2249-
50, 138 L.Ed.2d 689 (1997).
The Jackson plaintiffs have argued that the issue common to
the claims of all the named plaintiffs and all putative class
members--whether Motel 6 has a practice or policy of
discriminating against patrons and employees on the basis of
race--predominates over all the legal and factual issues that
will attend various plaintiffs' and class members' individual
claims. The district court agreed, on the ground that “forum-by-
forum resolution of each and every issue in this case . . . would
be far less efficient, cost-effective, and uniform than class
resolution.” Rule 23(b)(3), however, imposes two additional
requirements, and increased efficiency is only one of them.
Predominance is the other, and the single common issue in the
11
In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th
Cir. 1982), this court adopted as binding precedent all decisions
of Unit B of the former Fifth Circuit handed down after September
30, 1981.
13
Jackson case--whether Motel 6 has a practice or policy of
discrimination--is not rendered predominant over all the other
issues that will attend the Jackson plaintiffs' claims by the
fact that class treatment of these claims may be more efficient
and uniform than case-by-case adjudication.12 Instead, “as a
practical matter, the resolution of this overarching common issue
breaks down into an unmanageable variety of individual legal and
factual issues.” Andrews v. American Tel. & Tel. Co., 95 F.3d
1014, 1023 (11th Cir. 1996) (citation omitted).
The Jackson plaintiffs' claims will require distinctly case-
specific inquiries into the facts surrounding each alleged
incident of discrimination. The issues that must be addressed
include not only whether a particular plaintiff was denied a room
or was rented a substandard room, but also whether there were any
rooms vacant when that plaintiff inquired; whether the plaintiff
had reservations; whether unclean rooms were rented to the
plaintiff for reasons having nothing to do with the plaintiff's
race; whether the plaintiff, at the time that he requested a
12
The predominance and efficiency criteria are of course
intertwined. Where there are predominant issues of law or fact,
resolution of those issues in one proceeding efficiently resolves
those issues with regard to all claimants in the class. Where
there are no predominant issues of law or fact, however--as in
the instant case--class treatment would be either singularly
inefficient, as one court attempts to resolve diverse claims from
around the country in its own courtroom, or unjust, as the
various factual and legal nuances of particular claims are lost
in the press to clear the lone court's docket. We therefore
disagree with the district court's conclusion that class
treatment of the Jackson plaintiffs' claims would be more
efficient than case-by-case adjudication, as well as with the
court's conclusion that the issue of a discriminatory practice or
policy is predominant.
14
room, exhibited any non-racial characteristics legitimately
counseling against renting him a room; and so on. Even more
variegated issues would certainly be present in the claims of
hundreds or even thousands of members of an improperly certified
class. Furthermore, even factual issues that are common to many
of the Jackson plaintiffs -- such as whether any rooms were in
fact available when a particular plaintiff inquired -- will
require highly case-specific determinations at trial. These
issues are clearly predominant over the only issue arguably
common to the class--whether Motel 6 has a practice or policy of
racial discrimination. Indeed, we expect that most, if not all,
of the plaintiffs' claims will stand or fall, not on the answer
to the question whether Motel 6 has a practice or policy of
racial discrimination, but on the resolution of these highly
case-specific factual issues.13
13
As the district court noted in its order certifying the
Jackson class, each plaintiff will need to establish that (1) a
Motel 6 employee denied him a room (or rented him a substandard
room) on the basis of his race and either (2) that that employee
had the general authority to rent motel rooms or (3) that that
employee was acting in accordance with a Motel 6 policy or
practice of racial discrimination. See, e.g., Woodhouse v. Motel
6 G.P., Inc., 67 F.3d 310 (9th Cir. 1995) (unpublished
disposition). Every named Jackson plaintiff alleges that he or
she was denied a room or rented a substandard room by a Motel 6
employee at the front desk of a Motel 6 motel. We believe it
very probable that all these front-desk employees had the general
authority to rent motel rooms. The question whether Motel 6 has
a practice or policy of racial discrimination will therefore be
irrelevant to all or nearly all of the plaintiffs' claims.
Because proposition (2) will be satisfied--and we expect very
readily satisfied--with regard to all or almost all of the
plaintiffs' claims, the cases may be expected to focus on the
highly case-specific factual inquiries that will establish or
controvert element (1). Those factual inquiries will therefore
be predominant.
15
This failure of predominance is readily apparent from a
reading of the Jackson plaintiffs' complaint. We therefore hold
that the district court's certification of the Jackson class was
erroneous as a matter of law and was therefore an abuse of
discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). We have in
the past issued mandamus to direct a district court to decertify
an improperly certified class, when the certification of that
class was a clear abuse of discretion. See, e.g., In re Temple,
851 F.2d 1269. On the instant petition, we are compelled to do
so again.
In sum, we hold that the district court abused its
discretion in entering an order allowing communication with
potential class members when the authorized communications would
be nationwide in scope and would cause serious and irreparable
injury to the defendant, when a decision on class certification
was not imminent, and when the proposed Jackson class was clearly
not certifiable. Under these circumstances, there was no need
for the plaintiffs immediately to begin the highly injurious
publication of their claims authorized by the order--publication
that could and did continue for months, as the court contemplated
the plaintiffs’ motions for class certification. We therefore
grant Motel 6's petition for mandamus relief and issue the writ,
directing the district court to decertify the Jackson class and
to vacate the portion of its February 21 order that authorizes
preliminary class communications by the Jackson plaintiffs.
16
B.
As noted above, the Petaccia plaintiffs allege that they
were required as part of their employment by Motel 6 to
participate in discrimination against non-white customers, that
they were retaliated against when they refused to do so, and that
Motel 6's discrimination against non-white customers, along with
other instances of discriminatory treatment, created a hostile
work environment at Motel 6 motels around the country.
The Petaccia plaintiffs' claim for “retaliation” is brought
under 42 U.S.C. §§ 198114 and 2000a-2.15 As an initial matter, we
note that the Petaccia plaintiffs do not have standing to
maintain their claim for retaliation under section 2000a-2.
Section 2000a-2 provides solely for injunctive relief. See
Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401-02, 88
S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Miller v. Amusement
Enters., Inc., 426 F.2d 534, 538 (5th Cir. 1970).16 The Supreme
14
See supra note 3.
15
See supra note 4.
16
We note also that the Petaccia plaintiffs' claim for
“retaliation” could not proceed under the familiar Title VII
retaliation statute, 42 U.S.C. § 2000e-3(a). That statute
prohibits employers from discriminating against employees who
“oppose[] any. . . unlawful employment practice.” The Petaccia
plaintiffs do not allege that they have been discriminated
against by Motel 6 for opposing an unlawful employment practice,
but that they were discriminated against for opposing an unlawful
practice of discrimination in the provision of public
accommodations. While money damages are available for violations
of section 2000e-3(a), see St. Mary's Honor Center v. Hicks, 509
U.S. 502, 523-24, 113 S.Ct. 2742, 2756, 125 L.Ed.2d 407 (1993),
violations of section 2000a-2 may be remedied only by injunctive
relief, and not by money damages. See Piggie Park, 390 U.S. at
17
Court has held that, in order to claim injunctive relief, a
plaintiff must show a “real or immediate threat that the
plaintiff will be wronged again--'a likelihood of substantial and
immediate irreparable injury.'” City of Los Angeles v. Lyons, 461
U.S. 95, 111, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983)
(quoting O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669,
679, 38 L.Ed.2d 674 (1974)). The Petaccia plaintiffs are all
former employees of Motel 6, and allege neither that they will be
discriminated against by Motel 6 in the future nor any facts that
would support such a conclusion. Thus, the Petaccia plaintiffs
do not have standing to bring their “retaliation” claim under
section 2000a-2. The Petaccia plaintiffs’ claim for retaliation
may, however, proceed under section 1981(b), which provides for
money damages. See Pinkard v. Pullman-Standard, 678 F.2d 1211,
1229 n.15 (5th Cir. Unit B, June 10, 1982) (Clark, J., and
Kravitch, J., concurring) (stating that section 1981 prohibits
retaliatory treatment, and citing cases); Mizell v. North Broward
Hosp. Dist., 427 F.2d 468, 472 (5th Cir. 1970) (allowing section
1981 claims for both damages and injunctive relief); see also,
e.g., Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (5th
Cir. 1971) (allowing section 1981 retaliation claim to proceed
without exhaustion of Title VII administrative remedies);
Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509, 1518-21
(M.D. Ala. 1996) (allowing section 1981 retaliation claims after
passage of Civil Rights Act of 1991 and enactment of section
401-02, 88 S.Ct. at 966.
18
1981(b)).
We assume for the sake of discussion that the Petaccia
plaintiffs have sufficiently stated a cause of action for a
racially hostile work environment under section 1981.17 See,
e.g., Williams v. Carrier Corp., 889 F.Supp. 1528, 1530 (M.D. Ga.
1995) (allowing section 1981 hostile environment claim after
passage of section 1981(b)). We note that the named Petaccia
plaintiffs' claims, like those of the Jackson plaintiffs, are
factually very diverse. One of the Petaccia plaintiffs, for
instance, alleges not only that he witnessed racial
discrimination, was required to participate in it, and was fired
in retaliation for opposing it, but also that he repeatedly
informed Motel 6's district, regional, and national offices of
the ongoing discrimination, to no avail. Another Petaccia
plaintiff, however, fails to allege either that she was
retaliated against for opposing the alleged discrimination or any
facts that would support a retaliation claim. As in the Jackson
17
In order to prove a claim for a racially hostile work
environment, a plaintiff must “demonstrate that the actions of
the defendants altered the condition of the workplace, creating
an objectively abusive and hostile atmosphere.” Edwards v.
Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995).
We read section 1981, as amended by the Civil Rights Act of 1991,
to encompass such a claim. See Vance v. Southern Bell Tel. &
Tel. Co., 983 F.2d 1573, 1575 (11th Cir. 1993) (noting that the
1991 Act enlarged the scope of section 1981 to include post-
hiring discrimination); see also Dennis v. County of Fairfax, 55
F.3d 151, 155 (4th Cir. 1995) (holding that section 1981, as
amended, now covers “general conditions of employment, including
incidents of racial harassment in the workplace”); Johnson v.
Uncle Ben’s, Inc., 965 F.2d 1363, 1372 (5th Cir. 1992) (“Under §
1981 as amended by the [1991] Act, racial harassment and other
discrimination in an employment relation occurring after contract
formation is actionable.”).
19
case, the only issue common to all the Petaccia plaintiffs is the
question whether Motel 6 has a practice or policy of racial
discrimination in providing public accommodations. For reasons
explained below,18 this issue is more important to the Petaccia
plaintiffs' claims than it is to the Jackson plaintiffs' claims;
we doubt, however, that the issue is predominant within the
meaning of Rule 23(b)(3), because the issues in the class action
that are subject to generalized proof and thus applicable to the
proposed class as a whole will not predominate over those issues
that are subject only to individualized proof.
As explained above, we find the February 21 communications
order to have been an abuse of discretion, because it is clearly
injurious and, with regard to the Petaccia plaintiffs, because
the court’s decision on certification of the Petaccia class was
not and still may not be imminent. Certification of that class
is still pending before the magistrate judge, ten months after
the communications order was entered. We therefore grant the
petition for mandamus and direct the district court to vacate the
portion of the order allowing the Petaccia plaintiffs to
advertise their claims and conduct mass mailings to Motel 6
employees.19
18
See infra note 19; supra note 13.
19
We note, however, that insofar as the district court's
February 21 order authorizes the Petaccia plaintiffs to conduct
mass mailings to Motel 6 employees, it authorizes inquiries and
communications that would be allowable as a normal discovery
matter, whether the Petaccia class is certified or not. In
Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir. 1997)(en
banc), cert. granted, 66 U.S.L.W. 3157 (U.S. Nov. 14, 1997) (No.
20
III.
For the foregoing reasons, we GRANT Motel 6's petition for
mandamus relief. We direct the district court to decertify the
Jackson class and vacate that part of the February 21 order
allowing the Jackson plaintiffs to conduct preliminary class
communications. We also direct the district court to vacate the
portion of the February 21 order that authorizes the Petaccia
plaintiffs to advertise their allegations and to communicate with
Motel 6 employees.
PETITION GRANTED.
97-282), this Court held that “[a]n employer is directly liable
for hostile work environment . . . harassment if the employer
knew or should have known of the harassment and failed to take
prompt remedial action,” and that “[a] plaintiff. . . can prove
an employer's knowledge by showing that the harassment was
pervasive enough to charge the employer with constructive
knowledge.” Id. at 1538. To this end, the Petaccia plaintiffs
could, as a normal discovery matter, propound interrogatories
seeking the names and mailing addresses of all non-supervisory
Motel 6 employees, and could communicate with and depose those
employees, in order to ascertain whether the alleged hostile work
environment was so pervasive that notice to higher management
might be inferred.
21