# Hohider v. United Parcel Service, Inc.

> District Court, W.D. Pennsylvania · July 26, 2007 · 243 F.R.D. 147

URL: https://www.frixlaw.com/law-library/cases/8748212

## Case

- **Full name:** Mark HOHIDER and Robert DiPaolo, On Behalf of Themselves and All Others Similarly Situated v. UNITED PARCEL SERVICE, INC., Defendant Preston Eugene Branum, On Behalf of Himself and All Others Similarly Situated v. United Parcel Service, Inc.
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 26, 2007
- **Citations:** 243 F.R.D. 147; 2007 WL 2153236
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Conti
- **Judges:** Conti
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8748212

## How later opinions describe it (automated extraction)

- recognizing that "[s]ome courts ... have required named plaintiffs — at least in order to have standing to assert an ADA claim alleging an illegal policy and to represent the class adequately — to establish that they are qualified individuals within the meaning of the ADA at t…
- declining to address "[t]he question whether plaintiffs are qualified individuals under the ADA” in its typicality discussion, as that question "more directly affects plaintiffs’ adequacy as class representatives”
- declining to address whether plaintiffs are "qualified” in its Rule 23(a) commonality discussion, because "[a]t the class certification stage, this issue really goes to the named plaintiffs’ typicality and adequacy to represent the class and to the appropriateness of individua…

## Opinion text

MEMORANDUM OPINION
CONTI, District Judge.
I. INTRODUCTION........................................................152
II. PROCEDURAL HISTORY................................................155
III. STANDARD OF REVIEW................................................156
A. Rule 23 Requirements for Class Certification............................156
B. Confusion Over the Appropriate Standard of Review For Deciding Class Certification..................................................157
C. Supreme Court decisions..............................................158
D. Case law from the United States Courts of Appeals.......................159
IV. FACTUAL BACKGROUND...............................................166
A. General Background..................................................166
B. UPS’s Formal ADA Compliance Procedures.............................167
1. ADA Compliance Procedures Prior to 1999...........................167
2. ADA Compliance Procedures After 1999.............................168
a. “United Parcel Service Americans with Disabilities Act Procedural Compliance Manual” and procedures set forth therein....................................................168
(i) Reasonable Accommodation..............................169
(ii) The UPS ADA Procedure................................169
b. The “Ten-Step Process”.......................................171
(i) Step One: “Commence the Process”......................171
(ii) Step Two: “Gather Medical Information”..................172
(in) Step Three: “Evaluate Whether the Employee May Have a Disability”....................................172
(iv) Step Four: “Notify the Employee”........................173
(v) Step Five: “Meet with the Employee (Hold Checklist Meeting)”............................................173
(vi) Step Six: “Identify Potential Reasonable Accommodations (Complete Written Checklist)”..........174
(vii) Step Seven: “Evaluate Appropriate Accommodations (ADA Committee Meets)”..............................174
(viii) Step Eight: “Bargain with the Union”.....................175
(ix) Step Nine: “Notify the Employee”........................175
(x) Step Ten: “Close the File”...............................175
c. Miscellaneous Manual Issues...................................175
d. Other ADA Training Materials.................................175
e. Notice to Employees..........................................176
C. ADA and Other Kinds of Accommodations in the Sample Districts..........176
1. ADA Accommodations.............................................176
2. Other Accommodations............................................177
D. Other General Evidence Submitted by UPS..............................178
E. Challenged Policies...................................................178
1. The Alleged “100% Healed Policy”..................................179
a. Evidence from Managers and Former Managers Concerning the Existence of the “100% Release” or “No Restrictions” Policy.....................................................179
b. Evidence from Employees and Former Employees Concerning the Existence of the “100% Release” or “No Restrictions” Policy.....................................................180
c. Evidence from UPS’s Internal Emails...........................180
d. Evidence from UPS’s Early Training Materials...................182
e. Evidence from EEOC Determinations...........................183
2. Other Evidence...................................................185
V. ADA CLAIMS AND PATTERN-OR-PRACTICE FRAMEWORK 185
*152 A. Scrutiny of Specific Legal Claims Is Required to Decide Class Certification.......................................................185
B. The Americans with Disabilities Act....................................186
1. Failure to Make Reasonable Accommodations; Failure to Engage in Interactive Process...........................................187
2. Retaliation.......................................................191
C. “Pattern-or-Practice” Framework......................................192
1. Franks v. Bowman Transportation Company.........................193
2. International Brotherhood of Teamsters v. United States..............195
3. Cooper v. Federal Reserve Bank of Richmond........................201
4. Applicability of pattern-or-practice framework to private-plaintiff ADA lawsuits..................................................204
VI. CLASS DEFINITION....................................................209
VII. CLASS CERTIFICATION REQUIREMENTS..............................212
A. Rule 23(a) Prerequisites...............................................212
1. Numerosity......................................................213
2. Commonality.....................................................214
a. 100% Healed Policy Claim.....................................214
b. The Other Reasonable Accommodation Policies Claims............220
(i) Implementation of the Formal ADA Compliance Policy.....220
(ii) Uniform Pretextual Job Descriptions......................220
(iii) Prohibiting Employees from Returning to Work With Restrictions and Preventing Use of Seniority Rights to Transfer Positions..................................221
(iv) Withdrawing of Accommodations Previously Provided and then Denying Requests for the Previously Provided Accommodations Claims.......................222
c. Retaliation Claims............................................222
d. Summary of Commonality Findings.............................222
3. Typicality........................................................223
4. Adequacy........................................................226
a. Class Counsel................................................227
b. Plaintiffs’ Adequacy...........................................228
B. Rule 23(b)(2) Requirements............................................230
1. Grounds generally applicable.......................................230
2. Cohesiveness.....................................................232
3. Claims primarily for monetary relief................................233
a. The Incidental Damages Approach..............................236
b. The Discretionary Approach ...................................238
c. Decisions by the United States Court of Appeals for the Third Circuit....................................................241
C. Bifurcation..........................................................244
VIII. CONCLUSION..........................................................245
IX. ORDER.................................................................245
A. Class Claims.........................................................245
B. Relief...............................................................245
C. Class Definition......................................................246
D. Class Counsel........................................................246
E. Other Miscellaneous Matters ..........................................246
I. INTRODUCTION
Pending before the court is a motion for class certification (Doc. No. 180) filed pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2) by plaintiffs Mark Hohider (“Hohi-der”) and Robert DiPaolo (“DiPaolo”) and consolidated plaintiff Preston Eugene Branum (“Branum”)(colleetively, “plaintiffs”) on behalf of themselves and all others similarly situated against defendant United Parcel Service, Inc. (“defendant” or “UPS”). Plaintiffs allege in this civil action that UPS en *153 gages in a variety of policies and practices that violate the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”). Plaintiffs seek certification of a nationwide class to litigate their claims against UPS.
Plaintiffs specifically challenge the following alleged policies at UPS as violative of the ADA and appropriate for classwide adjudication:
(1) enforcing a “100% release” or “no restrictions” unwritten policy, which prohibits employees from returning to UPS in any vacant position unless the employee can return to his or her last position without any medical restrictions;
(2) disseminating a written corporate “ADA compliance policy,” which is implemented nationwide to delay and avoid providing accommodations, that is illegal, both on its face and as applied;
(3) using uniform job descriptions, which intentionally fail to describe the essential functions of available UPS jobs, as a pretext to prevent disabled employees from holding any UPS job;
(4) prohibiting employees from returning to work in an alternative job within the employees’ restrictions and preventing employees from using union seniority rights to transfer to a position that accommodates their disabilities;
(5) withdrawing accommodations previously provided to disabled workers, and then denying requests for the previously provided accommodations; and
(6) treating persons who make requests for accommodations differently and less favorably in the terms, conditions, rights and privileges, of or incident to, their employment as a result of engaging in this protected act under the ADA.
Plaintiffs’ Brief in Support of Motion for Class Certification (“Pis.’ Br.”)(Doc. No. 180) at 3-4.
The court discerns that plaintiffs seek certification of two kinds of ADA claims against UPS: (1) the first five policies implicate whether UPS’s alleged policies, practices and procedures that control reentry into the workplace, or otherwise govern the making of reasonable accommodations, violate the ADA (the “reasonable accommodation policies claims”); and (ii) the sixth policy implicates whether UPS retaliates against its employees in violation of the ADA (the “retaliation claims”). 1 See Plaintiffs’ Amended [Proposed] Order Granting Plaintiffs’ Motion for Class Certification (Doc. No. 155-2) at 2 (proposing certification of “(i) claims concerning whether UPS’s policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS’s workforce violate the ADA; and (ii) claims concerning whether UPS retaliates against its employees in violation of the ADA.”).
The reasonable accommodation policies claims can be further distinguished. Plaintiffs’ principal allegation appears to be that UPS enforces an unwritten, de facto “100% healed” return-to-work policy (the “100% healed policy claim”). Plaintiffs argue that the 100% healed policy claim, if proven, constitutes a per se violation of the ADA’s requirements relating to the making of reasonable accommodations. That is, plaintiffs argue that at the merits stage of this litigation, with respect to the 100% healed policy claim, if plaintiffs prove the existence of the alleged 100% healed policy, the policy could be declared unlawful and appropriate injunc-tive and declaratory relief could flow from that determination. Plaintiffs’ other reasonable accommodation policies claims appear primarily to be alleging violations of the ADA as a result of the implementation of those policies and not as per se violations.
What makes this matter a case of first impression is that plaintiffs, in a case where defendant challenges whether the proposed class encompasses only persons with disabilities as defined in the ADA, seek to litigate all their ADA claims by virtue of certification of a Rule 23(b)(2) private-plaintiff class and pursuant to the pattern-or-practice frame *154 work articulated by the United States Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977). Plaintiffs attack not alleged individual instances of discrimination, but alleged company-wide policies relating to the ADA. Plaintiffs, therefore, characterize each of their reasonable accommodation policies claims as pattern-orpraetiee variants of a “failure to make a reasonable accommodation” claim that an individual plaintiff could bring under the ADA in an individual lawsuit. These claims challenge UPS’s alleged company-wide policies of non-accommodation in violation of the ADA. Plaintiffs also appear to argue, although less directly, that their retaliation claims can be litigated pursuant to the Teamsters pattern- or-practice framework.
UPS, however, denies the existence of the alleged 100% healed policy and maintains that its formal ADA compliance policies are designed to and do afford employees robust protection under the ADA. In addition, UPS strenuously argues that class certification in this case is inappropriate for a variety of reasons. These reasons include UPS’s arguments that the class definition itself is unworkable and requires a host of individualized determinations merely to determine membership in the class; that plaintiffs have failed to satisfy each of the Rule 23(a) prerequisites, largely due to the myriad individualized issues in the case with respect to determinations of disability and whether reasonable accommodations were possible in individual circumstances; and that the undisputed evidence demonstrates that UPS did not act in a manner generally applicable to the proposed class, as required by Rule 23(b)(2). In addition, UPS argues that certification pursuant to Rule 23(b)(2) is inappropriate because plaintiffs seek considerable compensatory damages.
Plaintiffs in their pleadings seek certification of the following proposed class:
Those persons throughout the United States who: (i) according to the records of UPS, its agents and contractors have been employed by UPS at any time since May 10, 2000, including those employees absent from work and receiving either workers’ compensation or short or long term disability insurance benefits; and (ii) have been absent from work because of a medical impairment; and (iii) are disabled as defined under the Americans with Disabilities Act (ADA); and (iv) have attempted to return to work or continue to work at UPS or have submitted to UPS a medical release that permits the employee to work with restrictions and conditions, or have been disqualified by UPS from returning to work; and (v) were harmed as a result of UPS’s policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS’s workforce.
Excluded from the Class are all presently working UPS management employees with supervisory authority over the formulation or implementation of the UPS policies and practices alleged in this action to violate the ADA.
Plaintiffs’ Motion for Class Certification (“Pis.’ Mot.”)(Doc. No. 180). The court and the parties, however, discussed a modified class definition at the hearing on class certification. See Transcript of January 27, 2006 Hearing on Class Certification (“Jan. 27, 2006 Tr.”)(Doe. No. 157) at 34-41, 44-45. 2 The sufficiency of plaintiffs’ proposed class definition will be addressed in more detail below.
In the instant opinion, the court will address several threshold legal issues furiously disputed by the parties before undertaking a rigorous Rule 23 analysis. First, the court will address the appropriate standard of review for deciding whether class certification is appropriate. Second, the court will determine whether plaintiffs can litigate their claims pursuant to the Teamsters pattern-or-praetice framework of proof. Third, the court will examine the sufficiency of the class definition, and whether the class as proposed *155 or as modified is readily ascertainable. The court, after addressing those threshold issues, will undertake the claim-specific analysis required by Rule 23 and the United States Court of Appeals for the Third Circuit to determine whether class certification is appropriate in this case. One other central issue in this case warrants mention at the outset of this opinion. The parties furiously dispute whether this class action can be brought as a Rule 23(b)(2) class action in light of the nature of some of the relief that is sought. That issue will be dealt with in more detail later in this opinion.
The court ultimately concludes for the reasons set forth in this memorandum opinion that (1) plaintiffs’ claims are subject to the pattern-or-practice framework of proof enunciated by the Supreme Court in Franks v. Bowman Transportation Co., 424 U.S. 747 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976), International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977), and Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 , 104 S.Ct. 2794 , 81 L.Ed.2d 718 (1984), which does not require an individualized inquiry at the liability stage adjudicating whether a company-wide policy is unlawful under the discrimination statutes; (2) the class definition must be modified as set forth herein; (3) plaintiffs met their burden to establish the Rule 23(a) requirements with respect to the 100% healed policy claim, the implementation of the formal ADA compliance policy claim, and the use of uniform pretextual job descriptions claim, but not with respect to the prohibiting employees from returning to work with restrictions and using seniority rights claim, the withdrawal of accommodations claim, or the retaliation claims; and (4) Rule 23(b)(2) certification is appropriate for the 100% healed policy claim, the implementation of the formal ADA compliance policy claim, and the use of uniform pretextual job descriptions claim to the extent that plaintiffs seek declaratory and injunctive relief and monetary relief that is incidental to the in-junctive or declaratory relief with respect to these claims, but Rule 23(b)(2) certification will not be granted for other monetary relief including compensatory damages and punitive damages as part of this class action.
II. PROCEDURAL HISTORY
On March 10, 2004, plaintiffs Hohider and DiPaolo filed the above-captioned civil action against UPS alleging that UPS’s employment practices concerning employees who attempt to return to work after an absence for medical reasons violate the ADA and the Rehabilitation Act of 1973, 29 U.S.C. § 701 , et seq. (the “Rehab Act”). (Doc. No. 1). In response to UPS’s subsequent motion to dismiss, (Doc. No. 7), plaintiffs Hohider and DiPaolo withdrew the Rehab Act claim. (Doc. No. 12).
On June 29, 2004, plaintiffs Hohider and DiPaolo filed their first motion for class certification, (Doc. No. 16), and their first motion for bifurcation of issues at trial, (Doe. No. 15). In response, UPS filed a motion seeking a scheduling conference to address the need for discovery on certification issues prior to the parties’ briefing and the court’s decision on the class certification issue. (Doc. No. 21). On July 16, 2004, the court ordered that briefing on plaintiffs’ motion for class certification be stayed pending disposition of UPS’s motion for a scheduling conference. (Doc. No. 23).
On July 27, 2004, the court held a hearing and addressed the need for discovery prior to briefing and deciding class certification. (Doc. No. 26). At that hearing, after determining that discovery prior to briefing and deciding the class certification motion would be allowed, the court directed the parties to meet and confer and file a class certification discovery plan. The court also denied without prejudice plaintiffs’ pending motion for class certification, (Doc. No. 16), and motion for bifurcation of issues at trial, (Doc. No. 15). On August 15, 2004, the court held a case management conference with the parties and set dates for class certification discovery.
During class certification discovery, several issues arose that required briefing by the parties and resolution by the court, leading to extensions of the discovery period and the briefing schedule for deciding the class certification motion. For example, plaintiffs initially sought nationwide discovery from all sixty of UPS’s districts. After briefing on *156 whether nationwide discovery should be allowed, the court determined that for the purposes of class certification, plaintiffs could seek discovery from UPS from five UPS districts — the Laurel Mountain district directly implicated by the individual named plaintiffs’ allegations and four other districts. See Transcript of October 4, 2004 Status Conference (Doc. No. 46) at 51, 54-55. In addition, discovery issues arose, including with respect to discovery sought from third party International Brotherhood of Teamsters, plaintiffs’ counsel’s contacts with certain former and current managerial employees of UPS, the identity of individuals who had contacted plaintiffs’ counsel regarding the ease and the question whether those communications were privileged or discoverable. See (Doe. Nos. 86, 91, 92)(hearing transcripts). Some of these issues were resolved by stipulation of the parties, (Doc. No. 97); other issues required rulings by the court.
Around the same time that class certification discovery was proceeding in the above-captioned civil action brought by plaintiffs Hohider and DiPaolo, on November 4, 2004, consolidated plaintiff Branum filed a similar civil action against UPS in this court, also alleging that UPS’s employment practices violate the ADA and seeking class action treatment of his claims. (Doc. No. 1 in Civ. No. 04-1686). Plaintiffs’ counsel and defendant’s counsel in the Hohider and DiPaolo ease entered appearances in the Branum case. Shortly after the Branum civil action was filed, plaintiffs’ counsel filed motions to consolidate the two cases, (Doc. No. 50; Doc. No. 14 in Civ. No. 04-1686). UPS opposed consolidation. (Doc. No. 59). On February 11, 2005, the court held a hearing on plaintiffs’ motion to consolidate the two cases for all purposes. (Doc. No. 92). At the hearing, the court ordered that the two cases were consolidated only for the purpose of discovery, indicating that the court would reconsider consolidation for all purposes after deciding UPS’s then-pending motion to dismiss Branum’s claims and UPS’s then-pending motion for summary judgment with respect to Hohider’s claims, both of which motions raised similar issues with respect to whether the scope of the EEOC investigations in each case, or what could reasonably be expected to grow out of those EEOC investigations, encompassed class claims.
On April 13, 2005, the court granted the motion of the EEOC for leave to file a brief as an amicus curiae in support of plaintiff Hohider and in opposition to UPS’s motion for summary judgment. (Doc. No. 93-1). The court subsequently denied UPS’s motion to dismiss Branum’s claims, (Doc. No. 17 in Civ. No. 04-1686), without prejudice to UPS’s right to raise the issue whether the scope of the EEOC investigation encompassed class claims on a more fully developed record in a motion for summary judgment and the court denied UPS’s motion for summary judgment with respect to Hohider’s claims. (Doc. No. 144). On December 27, 2005, the court consolidated the two civil actions for all purposes at the above-captioned number.
Currently before the court is an abundance of briefing and a voluminous record concerning plaintiffs’ renewed motion for class certification. This briefing includes plaintiffs’ renewed motion, (Doc. No. 180), an accompanying corrected proposed order, (Doc. No. 155), an accompanying brief in support, (Doc. No. 181), accompanying appendices, (Doc. Nos. 121, 122, 123, 124) and plaintiffs’ reply brief, (Doc. No. 184 with Exhibits at Doc. Nos. 143-2 through 143-5), as well as UPS’s brief in opposition, (Doe. Nos. 182 (redacted) and 183 (unredacted)), UPS’s appendices, (Doc. Nos. 130 (redacted), 131, 132, 133, 134, 135, 137 (unredacted portions of appendix)), and UPS’s surreply brief, (Doc. No. 186). In addition, both plaintiffs and UPS have filed multiple notices of supplemental authority and responses which the court will give whatever weight is deemed appropriate. See (Doc. Nos. 161-78; 189-95, 199-201).
III. STANDARD OF REVIEW
A. Rule 23 Requirements for Class Certification
To be certified, a class must satisfy the four requirements of Federal Rule of Civil Procedure 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a). If *157 the Rule 23(a) requirements are met, the court must then find that the class fits within one of the three categories of class actions set forth in Federal Rule of Civil Procedure 23(b). In re Community Bank of Northern Virginia, 418 F.3d 277, 302 (3d Cir.2005); see Chiang v. Veneman, 385 F.3d 256, 264 (3d Cir.2004); In re LifeUSA, 242 F.3d 136, 143 (3d Cir.2001); Georgine v. Amchem. Prods., Inc., 83 F.3d 610, 624 (3d Cir.1996), aff'd sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997); Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). The proponent of class certification has the burden of proving each of the prerequisites of a class action under Rule 23(a) and that the class fits within one of the three categories of class actions set forth in Rule 23(b). Chiang, 385 F.3d at 264 ; Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir.1974) (citing J. Moore, 3B Moore’s Federal Practice 123.02-2 (2d ed.1969)).
B. Confusion Over the Appropriate Standard of Review For Deciding Class Certification
Less well settled as a matter of law, however, is the appropriate standard of review a district court should use when deciding a motion for class certification. Perhaps not surprisingly in this case, therefore, the parties vigorously dispute how much deference, if any, the court should give to plaintiffs’ factual allegations concerning the propriety of certification. In addition, in light of the voluminous factual record compiled in class certification discovery and submitted to the court for its consideration in deciding the class certification motion, the parties dispute how stringently the court should review the factual record before it, and in particular factual disputes between the parties, to determine whether the class certification requirements are met. 3
Plaintiffs initially argued in their principal brief, in light of Chiang, 385 F.3d at 262 , and the oft-quoted language used by the Supreme Court in Eisen v. Carlisle & Jacque-lin, 417 U.S. 156 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974), that it is not necessary for plaintiffs to establish the merits of their case at the class certification stage and the court, in determining whether the class will be certified, should accept the substantive allegations of the complaint as true. Defendant, however, argued that in light of the weight of authority from the United States Court of Appeals for the Third Circuit and other United States Courts of Appeals, the court must go beyond the pleadings to decide class certification and make whatever factual and legal inquiries are necessary to determine whether the Rule 23 requirements are met — even if this more stringent review requires a preliminary inquiry into issues enmeshed with the merits of plaintiffs’ claims. See Newton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 , 167 (3d Cir.2001); Johnston v. HBO Film Management, Inc., 265 F.3d 178 (3d Cir.2001); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir.2001); see also In re Initial Public Offering Securities Litig., 471 F.3d 24 (2d Cir.2006)(‘7,re re IPO”); Heerwagen v. Clear Channel Communications, 435 F.3d 219 (2d Cir.2006); Gariety v. Grant Thornton, LLP, 368 F.3d 356 (4th Cir.2004); Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (2d Cir. 1999). 4
Plaintiffs in a supplemental brief conceded that the court may “peek behind the pleadings” to assess class allegations, but maintained that a court generally should refrain from conducting a preliminary inquiry into the merits at the class certification stage, *158 acknowledging the Newton decision but citing Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d Cir.1998), and Chiang for the proposition that the court should not reach merits issues at the certification stage. Defendant responded that plaintiffs continued to understate the court’s duty to scrutinize the factual record and make findings as necessary to determine whether the class certification requirements are met, and in supplemental briefing asked the court specifically to consider recent decisions from the United States Courts of Appeals for the Second Circuit and the Third Circuit on this issue. See Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir.2006); In re IPO, 471 F.3d 24 (2d Cir.2006).
The apparent confusion over the appropriate standard of review a district court employs to decide whether certification is appropriate is understandable in light of the current state of the law. Applicable ease law on this issue until recently has not been the height of clarity. 5 While it is manifestly clear since General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982), that district courts must apply a “rigorous analysis” to determine whether plaintiffs have shown that the requirements of Rule 23 have been met, courts have disagreed regarding the standard they should apply in making that determination. This court, therefore, will examine relevant Supreme Court decisions, decisions from the various United States Courts of Appeals, including the United States Court of Appeals for the Third Circuit, and the effect of the 2003 Amendments to Rule 23 in an effort to articulate clearly the standard of review this court will apply to the factual record in this case to determine whether the Rule 23 requirements are met with respect to some or all of the claims plaintiffs argue are appropriately subject to class treatment.
C. Supreme Court decisions
The two principal United States Supreme Court decisions which discuss the appropriate standard of review a district court should employ to decide whether to grant or deny a motion for class certification under Rule 23— Eisen and Falcon — have been interpreted by federal courts as offering somewhat contradictory guidance with respect to the appropriate standard of review in class certification decisions. In Eisen , the Supreme Court stated that:
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.... “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”
Id. at 177-78 , 94 S.Ct. 2140 (quoting Miller v. Mackey International, 452 F.2d 424 (5th Cir. 1971)). 6 The United States Court of Appeals for the Third Circuit subsequently appeared to interpret Eisen on at least one occasion to *159 mean “that, in determining whether a class will be certified, the substantive allegations of the complaint must be taken as true.” Chiang, 385 F.3d at 262 (citing Eisen, 417 U.S. at 177-78 , 94 S.Ct. 2140 ). 7
In the other principal Supreme Court decision regarding Rule 23 requirements, however, the Supreme Court instructed that a class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Falcon, 457 U.S. at 161 , 102 S.Ct. 2364 (emphasis added). As the United States Court of Appeals for the Second Circuit recently commented in In re IPO, while “the double use of the word ‘satisfied’ is somewhat perplexing,” the important point from the Falcon decision is that “the requirements of Rule 23 must be met, not just supported by some evidence.” 471 F.3d at 33 (emphasis added). Moreover, in Falcon , the Supreme Court explained that, in the context of discussing the Rule 23(a) prerequisites, “actual, not presumed, conformance with [the Rule] remains indispensable.” Id. at 160 , 102 S.Ct. 2364 . The Supreme Court also recognized in Falcon that “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.” Id. at 160 , 102 S.Ct. 2364 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978))(internal quotations omitted).
D. Case law from the United States Courts of Appeals
Other than the Eisen and Falcon decisions, however, the United States Supreme Court has not recently or in detail addressed the appropriate standard of review a district court should use when deciding certification. The courts of appeals have struggled to guide district courts regarding the appropriate standard of review for deciding certification motions. District courts, in turn, have approached the issue with trepidation, as if steering a course through the choppy waters between Scylla and Charybdis. As those courts of appeals that have addressed the issue in detail have recognized, district courts deciding certification under the recent state of the law have perceived themselves to be caught between two dangers in a situation where moving away from one can cause a court to risk running afoul of the other: On the one hand, district courts have resisted making preliminary inquiries into merits issues as apparently proscribed by the Supreme Court in Eisen; on the other hand, district courts attempting to follow the guidance of Falcon have resisted deciding certification without a sufficiently “rigorous analysis” that assures that the Rule 23 requirements have been met, including some consideration of the underlying facts.
At bottom, courts have struggled to make sufficiently rigorous factual “findings” in support of certification decisions while at the same time avoiding — if possible — making “findings” on merits issues. This struggle has led to various descriptions over time of the standard of review that a district court should use in deciding a certification motion. See, e.g., In re IPO, 471 F.3d at 34-40 (surveying case law within the Second Circuit and in other circuits).
Thankfully, a consensus is emerging among the United States Courts of Appeals. While for some time district courts perceived a split in authority between the approach of the United States Courts of Appeals for the Seventh and the Fourth Circuits versus that of the Second Circuit — see, e.g., In re Natural Gas Commodities Litigation, 231 F.R.D. 171 , 180 n. 4 (S.D.N.Y.2005); DeMarco v. Robertson Stephens Inc., 228 F.R.D. 468, 470 (S.D.N.Y.2005) — over time, the approach of those and other courts of appeals have dovetailed toward the standard first articulated in detail by the United States Court of Appeals *160 for the Seventh Circuit in Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001), a decision cited with approval and followed by the United States Court of Appeals for the Third Circuit in Newton, 259 F.3d at 165-68.
In Szabo , the United States Court of Appeals for the Seventh Circuit focused on the appropriate standard of review used by a district court deciding class certification. The district court in that case assumed for the purposes of the class certification motion that the substantive allegations in the complaint were true. Id. at 674-75 . 8 The court of appeals reasoned that “[t]he proposition that a district judge must accept all of the complaint’s allegations when deciding whether to certify a class cannot be found in Rule 23 and has nothing to recommend it.” Id. at 675 . The court of appeals distinguished the standards of review for deciding a motion for class certification and a motion to dismiss pursuant to Rule 12(b)(6) as standards that “differ in kind.” Id. at 676 . The court of appeals noted that a Rule 12(b)(6) motion tests the legal sufficiency of a pleading in a situation where the factual sufficiency of the allegations will be tested later — in a motion for summary judgment or at trial. Id. at 675 . By contrast, the court of appeals noted that an order certifying a class usually is the district judge’s last word on the subject— there generally is no subsequent test of the decision’s factual premises. Id. at 676 .
The court of appeals in Szabo reasoned that “[bjefore deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23.” id. The court of appeals made clear that this obligation of the judge applies to the Rule 23(a) prerequisites as well as to whether class certification is appropriate under Rule 23(b). 9 Id. The court of appeals directed:
Questions such as these require the exercise of judgment and the application of sound discretion; they differ in kind from legal rulings under Rule 12(b)(6). And if some of the considerations under Rule 23(b)(3) ... overlap the merits — as they do in this case, where it is not possible to evaluate impending difficulties without making a choice of law, and not possible to make a sound choice of law without deciding whether [the defendant] authorized or ratified the dealers’ representations — then the judge must make a preliminary inquiry into the merits.
Id. (emphasis added). The court of appeals in Szabo reasoned that courts make similar inquiries routinely under Rule 12(b)(1) and 12(b)(2), and that, if necessary, courts may hold a hearing to make preliminary factual determinations concerning jurisdiction, venue, and the like. Id. at 676-77 .
The court of appeals in Szabo addressed head-on the district court’s apparent misunderstanding of the Eisen decision, noting that “[t]he district judge thought that [Ei-sen ] adopts the approach of Rule 12(b)(6) for decisions under Rule 23;” however, “[w]e do not read Eisen so.” Id. The court of appeals noted that in Eisen , the Supreme Court observed that the 1966 amendment to Rule 23 departed from the earlier handling of class claims by placing certification ahead of a decision on the merits:
*161 A class thus can lose as well as win, while in a permissive-intervention system the case is decided on the merits before the identities of the parties to be bound are known. The success of the 1966 amendments (which are still in force) depends on making a definitive class certification decision before deciding the case on the merits, and on judicial willingness to certify classes that have weak claims as well as strong ones.
Id. at 677. The court, therefore, reasoned:
A court may not say something like “let’s resolve the merits first and worry about the class later” ... or “I’m not going to certify a class unless I think that the plaintiffs will prevail.”
Id. The court of appeals noted, however, that “nothing in the 1966 amendments to Rule 23, or the opinion in Eisen , prevents the district court from looking beneath the surface of a complaint to conduct the inquiries identified in that rule and exercise the discretion it confers.” Id. The court also commented that “[pjlaintiffs cannot tie the judge’s hands by making allegations relevant to both the merits and class certification.” Id. (quoting Eggleston v. Chicago Journeymen Plumbers’ Local No. 130, 657 F.2d 890 , 895 (7th Cir.1981 ))(“Eisen has not been interpreted so broadly ... as to foreclose inquiry into whether plaintiff is asserting a claim which, assuming its merit, will satisfy the requirements of Rule 23 as distinguished from an inquiry into the merits of plaintiffs particular individual claim.”).
The court of appeals in Szabo characterized the district court’s approach in that case as reminiscent of the “across-the-board” rule jettisoned by the Supreme Court in Falcon , noting that in circuits that were following the across-the-board rule, district courts had been required to assume that all members of a proposed class were situated similarly to plaintiff and to certify classes “across the board.” Id. The court of appeals explained that Falcon held that “similarity of claims and situations must be demonstrated rather than assumed,” quoting the pointed observation from Falcon that “sometimes it may be necessary for the court to probe beyond the pleadings before coming to rest on the certification question ... [Ajctual, not presumed, conformance with Rule 23(a) remains ... indispensable.” Id. (quoting Falcon, 457 U.S. at 160 , 102 S.Ct. 2364 ). In Szabo , the court held that the Falcon rule “is equally true of Rule 23(b).” Id. The court of appeals issued the following caveat against using too deferential a standard of review to decide class certification:
Certifying classes on the basis of incontestable allegations in the complaint moves the court’s discretion to the plaintiffs attorneys — who may use it in ways injurious to other class members, as well as ways injurious to defendants. Both the absent class members and defendants are entitled to the protection of independent judicial review of the plaintiffs allegations.
Id.
10
In Newton v. Merrill, Lynch, Pierce, Fen-ner & Smith, Inc., 259 F.3d 154 , 167 (3d Cir.2001), the United States Court of Appeals for the Third Circuit cited Szabo with approval and' — notwithstanding the somewhat confusing statement in Chiang that a court at the certification stage should accept the substantive allegations of the complaint as true — adopted the same approach. In Newton, the court of appeals affirmed the denial of certification by the district court of a putative class of investors. 11 The court of appeals granted an interlocutory appeal un *162 der Federal Rule of Civil Procedure 23(f) to determine whether the plaintiffs’ securities fraud claims satisfied the requirements for class certification under Rule 23 and ultimately affirmed the district court’s denial of certification. Id.
In reviewing the district court’s decision, the court of appeals as a threshold matter analyzed in detail the effect of the 1998 amendment to Rule 23 providing interlocutory appeal, id. at 162-65, but also had occasion to review the appropriate standard of review a district court should employ in deciding certification, id. at 165-69. The court of appeals noted that, generally, a district court abuses its discretion if its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id. at 165-66 (quoting In re General Motors Corp. Pick Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 783 (3d Cir.l995))(quoting Int’l Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.l987))(internal quotations omitted). The court of appeals instructed that “[a] class certification decision requires a thorough examination of the factual and legal allegations.” Id. at 166 (citing Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir.1998), cert. denied, 526 U.S. 1114 , 119 S.Ct. 1760 , 143 L.Ed.2d 791 (1999)). The court of appeals recognized that “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. (quoting Falcon, 457 U.S. at 160 , 102 S.Ct. 2364 ; citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997) (Breyer, J., concurring in part and dissenting in part); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, § 1785 at 16 (West Supp.2000))(internal quotations omitted). The court of appeals in Newton quoted Szabo for the principle that “[b]efore deciding whether to allow a case to proceed as a class action, ... [courts] should make whatever factual and legal inquiries are necessary under Rule 23.” Id. (quoting Szabo, 249 F.3d at 676 )(internal quotations omitted). 12
The court of appeals took the opportunity in Newton to examine the Eisen decision and its admonition that “nothing in either the language or history of Rule 23 ... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Id. The court of appeals commented that “this admonition must be examined in context,” and recognized that “[a]t the time, it was ancillary to the principal issue of whether Fed.R.Civ.P. 23 required a class representative in a securities class action to provide notice to all class members.” Id. The court of appeals in Newton explained the evolution of case law following Eisen , noting:
Not long after Eisen , the Court stepped away from this bright-line declaration in Coopers & Lybrand v. Livesay, when it held that “[evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses, the adequacy of the representative, and the presence of common questions of law or fact are obvious examples. The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits____”
Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463 , 469 n. 12, 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978)). In Newton, the court also recognized:
Subsequently, in [.Falcon ], the Court appeared to move even further away from Eisen , recognizing that “[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question .... [A]ctual, not presumed conform- *163 anee with Rule 23(a) remains ... indispensable.”
Id.
In Newton, the court of appeals concluded that the reasoning in Falcon applied to issues arising under Rule 23(b)(3). Id. (citing Sza-bo, 249 F.3d at 677 ). “As the Court concluded in Livesay , class certification may require courts to answer questions that are often ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action.’” Id. (quoting Livesay, 437 U.S. at 469 , 98 S.Ct. 2454 (internal quotations omitted)). The court of appeals instructed that “[t]o address these questions, courts may ‘delve beyond the pleadings to determine whether the requirements for class certification are satisfied.’” Id. (quoting 5 Moore’s Federal Practice § 23.61[5]). In Newton, the court of appeals cited Szabo, 249 F.3d at 677 (holding courts may “[look] beneath the surface of a complaint” to “make a preliminary inquiry into the merits”); Amchem, 521 U.S. at 615 , 117 S.Ct. 2231 (Fed.R.Civ.P.23(b)(3) invites a “close look” before determining class certification); 7B Wright, Miller & Kane, § 1785 at 16 (West Supp.2000) (courts not precluded from “necessary inquiry into the underlying elements of the ease in order to evaluate whether Rule 23 has been met”); and Moore’s Federal Practice, Manual For Complex Litigation (Third) § 30.1 (“The decision on whether or not to certify a class, therefore, can be as important as decisions on the merits of the action and should be made only after consideration of all relevant evidence and arguments presented by the parties.”).
The court of appeals commented that since Eisen , “the nature of class actions and how they are litigated have undergone a sea change.” Id. at 167-68, 94 S.Ct 2140 . The court of appeals recognized that several United States Courts of Appeals since Eisen have required district courts to go beyond the pleadings in order to decide whether the class certification requirements are met, citing Ca stano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.l996)(“[g]oing beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues”); Szabo, 249 F.3d at 675-78 ; Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228 , 1234 (11th Cir.2000); Hanon v. Dataproducts Corp., 976 F.2d 497, 508-09 (9th Cir.1992). The United States Court of Appeals for the Third Circuit held:
In reviewing a motion for class certification, a preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action. This is such an instance. We must probe beyond the surface of plaintiffs’ allegations in performing our review to assess whether plaintiffs’ securities claims satisfy Fed.R.Civ.P. 23’s requirements.
Newton, 259 F.3d at 168-69 (footnotes omitted); see Beck v. Maximus, 457 F.3d 291, 297 (3d Cir.2006)(“Depending on the circumstances, class certification questions are sometimes ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action,’ and ‘courts may delve beyond the pleadings to determine whether the requirements for class certification are satisfied.’ ’’Xquoting Newton, 259 F.3d at 167).
The guidance provided by the United States Court of Appeals for the Third Circuit is clear. District courts are required when necessary to delve beyond the pleadings to determine whether Rule 23 requirements are met. The United States Courts of Appeals for the Second, Fourth, and Seventh Circuits have adopted the same or a largely similar approach. See, e.g., In re IPO, 471 F.3d 24 (2d Cir.); 13 Gariety, 368 F.3d 356 (4th *164 Cir.); 14 Szabo, 249 F.3d 672 (7th Cir.).
Fear by the parties that a district court’s findings made solely for the purpose of deciding certification will somehow affect merits determinations later in the litigation is unwarranted:
The district court’s concern that Rule 23 findings might prejudice later process on the merits need not lead to the conclusion that such findings cannot be made. The jury or factfinder can be given free hand to find all of the facts required to render a verdict on the merits, and if its finding on any fact differs from a finding made in connection with class action certification, the ultimate factfinder’s finding on the merits will govern the judgment.
Gariety, 368 F.3d at 365 . In Gariety, the court of appeals identified preliminary injunction practice as a model for this practice. Id. (“Courts make factual findings in determining whether a preliminary injunction should issue, but those findings do not bind the jury adjudging the merits, and the jury’s findings on the merits govern the judgment to be entered in the case.”)(citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 , 101 S.Ct. 1830 , 68 L.Ed.2d 175 (1981)). In In re IPO, the Court of Appeals for the Second Circuit concurred with the rationale in Gariety regarding whether prejudice inured to the defendant if the court examined issues that overlap with the merits:
The Fourth Circuit in Gariety considered and fully answered the concern expressed in Eisen (with respect to a merits inquiry on an issue unrelated to a Rule 23 requirement) that a merits inquiry on an issue that is related to the merits would prejudice the defendant. The Fourth Circuit noted that such an inquiry would not bind the ultimate fact-finder____A trial judge’s finding on a merits issue for purposes of a Rule 23 requirement no more binds the court to rule for the plaintiff on the ultimate merits of that issue than does a finding that the plaintiff has shown a probability of success for purposes of a preliminary injunction.
*165 In re IPO, 471 F.3d at 38 . 15
At the class certification stage, a district court makes a determination that some legal standard — e.g., numerosity, commonality, or predominance — is met; in so doing, a court may resolve underlying factual disputes, and as to these disputes, the court must be persuaded that the fact at issue has been established; much like a district court makes a “ruling” or “determines” other threshold issues that involve disputed issues of fact— such as the determination that a court has subject-matter jurisdiction. In re IPO, 471 F.3d at 40 . 16 “The more troublesome issue arises when the Rule 23 requirement overlaps with an issue on the merits.” Id. “With Pisen properly understood to preclude consideration of the merits only when a merits issue is unrelated to a Rule 23 requirement, there is no reason to lessen a district court’s obligation to make a determination that every Rule 23 requirement is met before certifying a class just because of some or even full overlap of that requirement with a merits issue.” Id. “[T]he determination as to a Rule 23 requirement is made only for purposes of class certification and is not binding on the trier of facts, even if that trier is the class certification judge.” Id. (citing Gariety, 368 F.3d at 366 )(emphasis added).
Perhaps the best articulation of the standard of review was set forth in In re IPO. There, the court of appeals summarized its conclusions with respect to the appropriate standard of review for deciding class certification as follows:
[W]e reach the following conclusions: (1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits.
Id. This articulation of the standard for determining whether a court must consider the merits in resolving class certification issues is consistent with the approach of the United States Court of Appeals for the Third Circuit in Newton, and captures the standard of review that this court will apply in the instant case. 17
It does not appear that the 2003 amendments to Rule 23 affect the standard of review in a substantial way. The courts of appeals that have addressed the appropriate standard of review for class certification since the 2003 amendments to Rule 23 have commented on the significance, if any, of the *166 amendments to the issue at hand. For example, in In re IPO, the United States Court of Appeals for the Second Circuit commented that neither the amended rule nor the committee’s commentary explicitly resolved the apparent split of authority between court of appeals’ then “ambiguous Caridad/Visa Check/Heerwagen” approach to determining Rule 23 requirements and the predominant view of the other circuits that class certification requires findings with respect to such requirements, even if such findings involve consideration of merits issues. Id. at 39.
The court of appeals in In re IPO noted that two of the 2003 changes, however, arguably could be read in combination to permit more extensive inquiry into whether Rule 23 requirements are met: first, that the amended rule removed the provision that class certification “may be conditional;” second, that the amended rule replaces the provision of prior Rule 23(c)(1)(A) that a class certification decision be made “as soon as practicable” with a provision requiring the decision “at an early practicable time.” Id. Further, the court of appeals in In re IPO noted that the advisory committee stated “that ‘[a] court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.’ ” Id. (quoting Fed.R.Civ.P. 23(c)(1)(C) 2003 Adv. Comm. Notes). In addition, the court noted that the advisory committee, although condemning an evaluation of the probable outcome on the merits, blessed the use of controlled discovery in aid of the certification decision, including controlled discovery into the “merits,” limited to those aspects relevant to making a certification decision on an informed basis. Id; see Gariety, at 368 F.3d at 365 . Because the force of the 2003 amendments with respect to the appropriate standard of review is adequately captured in the various decisions of the courts of appeals that addressed the issue, this court will follow the applicable standard of review as set forth by Szabo, Gariety, Newton, and In re IPO.
This court will examine the facts marshaled during class certification discovery and presented to the court for its review in deciding whether the Rule 23 requirements are met and class certification is warranted in this case. The court notes that the parties have compiled and submitted a voluminous factual record concerning class certification in this case. Defendant presented an appendix over 2,000 pages long and plaintiff presented appendices totaling a similar length. Much of the factual background is not in dispute, although the legal consequences of those facts are the subject of serious disagreement. Some key facts, however, are disputed. Where necessary, the court will resolve factual disputes relevant to each Rule 23 requirement. Where there is overlap between a Rule 23 requirement and a merits issue, the court will resolve that dispute with respect to determining whether the Rule 23 requirement has been met. The court otherwise will not assess any aspect of the merits unrelated to a Rule 23 requirement. Any findings in this memorandum opinion, therefore, are made solely for the purpose of deciding certification and will not bind the fact finder at the merits stage of this litigation. The following part of this memorandum opinion will review the factual background of the case as a preface to the Rule 23 analysis.
IV. FACTUAL BACKGROUND
A. General Background
UPS was founded as a messenger service in 1907, and currently is the world’s largest package delivery company, delivering approximately 3.4 billion packages and documents per year. Declaration of R. Joseph Lee (“Lee Decl.”), UPS Appendix to UPS’s Opposition to Plaintiffs Motion for Class Certification (“UPS App.”) at 538-40 14; see Bates v. UPS, No. C99-2216, slip. op. at 5 (N.D.Cal. Oct. 21, 2004)(“Findings of Fact & Conclusions of Law”)(“Bates Findings”)(Plaintiffs Appendix of Legal Authorities (“Pis.’ Leg.App.”), Tab 1 at 5). UPS employs approximately 328,000 individuals in the United States and over 360,000 individuals worldwide. Lee Decl. II4; see Bates Findings at 5. In the United States, UPS’s package operations are divided into seven regions, which in turn are divided into sixty distinct geographical districts. Lee Decl. U 5.
*167 There are over 1700 UPS facilities within the sixty geographical districts. Id. Each district is responsible for delivery of packages within a specified geographical area. Id. A district consists of business units called “Package Centers” and “Hubs.” Id. Each district is further subdivided for the purpose of support functions such as “Plant Engineering,” “Industrial Engineering,” “Finance and Accounting,” “Human Resources,” “Labor,” “Automotive,” “Security,” and “Business Development.” Id.
Approximately 200,000 UPS employees in the United States are covered by some form of a collective bargaining agreement. Id. H 6. Some employees are covered by the National Master United Parcel Service Agreement (the “National Master Agreement”) between UPS and the Teamsters United Parcel Service National Negotiating Committee representing local unions affiliated with the International Brotherhood of Teamsters. Id. In addition to the National Master Agreement, some employees are covered by supplemental collective bargaining agreements. Id. 117.
Class certification discovery in this case was limited to five of UPS’s sixty districts (the “sample districts”). The sample districts included the North Illinois district, the Southeast California district, the Georgia district, the Gulf South district, and the Laurel Mountain district. See Plaintiffs’ Appendix of Exhibits in support of Motion for Class Certification (“Pis.’ Ex.App.”), Tab 2 (Apr. 21, 2005 email from Joseph E. Culleiton to Christian Bagin). While the exact number of UPS employees working in a particular district changes on a regular basis, id., UPS generally employs approximately 34,500 individuals, or approximately 10.5% of its domestic workforce, in the five sample districts. Id. (noting that, as of October 2004, UPS employed 34,474 individuals in the five sample districts as follows: North Illinois (7,471), Southeast California (9,777), Georgia (7,705), Gulf South (4,458), and Laurel Mountain (5,064)).
B. UPS’s Formal ADA Compliance Procedures
1. ADA Compliance Procedures Prior to 1999
Since the passage of the ADA, UPS has developed formal ADA compliance procedures to guide its employees. See Declaration of Roman M. Williams (‘Williams Deck”), UPS App. at 2-7 HH 2-7; Lee Deck H11-17. Over the years, UPS revised its formal ADA compliance procedures. For example, in 1992, after the ADA went into effect, UPS distributed a Management Guide to its supervisory personnel entitled “Injured Employees: Focus on Abilities; Health and Safety and the ADA” (the “Focus on Abilities manual”). Lee Deck H11, Ex. G. 18 The Focus on Abilities manual, which is copyrighted 1992, described the ADA and UPS’s procedures concerning the ADA at that time, including its procedure for requests for accommodations, examples of reasonable accommodations, confidentiality concerns, and terminology related to the ADA and disabilities. Lee Deck, Ex. G.
For example, the Focus on Abilities manual contained UPS’s corporate mission statement at the time concerning the ADA, noting that, because UPS as a federal contractor already had taken measures to comply with the Rehab Act,
[the passage of the ADA] provides an opportunity for UPS to rededicate the entire organization to the goal of removing existing barriers and providing opportunities for individuals with disabilities. This will provide UPS with an additional resource of qualified people, while allowing individuals with disabilities the opportunity to contrib *168 ute to the success of UPS as well as to their own economic goals and career pursuits.
Id. at 1. Concerning requests for accommodation, the Focus on Abilities manual stated:
UPS procedure requires specific steps to be followed when a request for an accommodation is received. In addition, documentation must be completed and retained by Human Resource Departments.
If an employee makes a request for an accommodation, the individual should be assured that their request will receive attention by the appropriate management people. No judgments or promises should be made at the time the request is made. Each request should be carefully evaluated. The Human Resources manager should be notified immediately to ensure prompt response to the request. An individual requesting an accommodation must participate and cooperate in the evaluation process.
Id. at 4. In closing, the Focus on Abilities manual noted:
It is the responsibility of UPS managers and supervisors to ensure that individuals with disabilities are given the same opportunities and impartial treatment that has historically guided us in all our relationships with employees and customers. To achieve this goal, it simply requires a focus on the talents and abilities of individuals.
Id. at 7.
Shortly thereafter, UPS updated its longstanding internal publication “Impartial Employment and Promotion Guide” to include a discussion of the ADA. See Lee Deck H12, Ex. H. UPS submitted to the court a copy of this guide which is copyrighted 1993 and marked “[rjevised June 1993.” Lee Deck, Ex. H. The guide, first published in 1965 and periodically updated thereafter, was intended to be issued by UPS to all UPS managers and supervisors and proclaimed to be a reference source and policy statement for the company. Id. at iii. The guide listed the ADA among other federal laws applicable to the employment context in which the company operated. Id. at 11. In the section of the guide addressing “implementing our policies,” the guide identified among other workshops that were part of UPS’s formal training at the time the “Focus on Abilities Workshop.” Id. at 28. The guide described that workshop as one that “educates management on the laws regarding nondiscrimination towards individuals with a disability,” and whose primary message was “focus[ing] on looking at their ability rather than disability.” Id.
2. ADA Compliance Procedures After 1999
a. “United Parcel Service Americans with Disabilities Act Procedural Compliance Manual” and procedures set forth therein
In 1999, UPS with the assistance of outside legal counsel developed a more detailed ADA procedural compliance manual. Lee Deck H13, Ex. I, also filed at Pis.’ Ex.App., Tab 3. 19 The outcome was the “United Parcel Service Americans with Disabilities Act Procedural Compliance Manual” (the “Manual”), which provides guidance on UPS’s ADA procedures. Lee Deck U13. UPS submits that the Manual was updated in 2000. Id. The court understands that the Manual sets forth the ADA procedural compliance program at UPS that remains in force to the present day. See id. at 13-15.
UPS developed the Manual “to provide guidance on ‘reasonable accommodation’ and other important concepts under the ADA, with the goal of insuring the fair and equitable treatment of all individuals,” according to the introductory letter on the Manual’s first page of text. Lee Deck, Ex. I at [1], The Manual was intended to supplement the UPS Code of Business Conduct and the UPS Policy Book. Id. The Manual was not intended to set forth an exhaustive list of procedures for situations that could arise at UPS relating to the ADA, nor was it intended to establish a mandatory ADA procedure for all employees in all circumstances:
*169 No generalized discussion can adequately capture the complexity and individualized nature of claims that will arise in the UPS environment. Accordingly, this manual neither provides an exhaustive list of permitted or prohibited conduct under the ADA nor establishes a mandatory ADA procedure that must be followed by all personnel in all circumstances.
Id. (emphasis added). Instead the Manual “suggests recommended but flexible procedures to encourage the prompt and equitable resolution of all requests for accommodation.” Id. (emphasis added). The Manual sets forth UPS’s position that “[t]hese procedures go above and beyond what is actually required by law and should not be construed as a comprehensive statement of the ADA’s requirements.” Id. The Manual notes that nothing in the Manual is intended to constitute a contractual obligation and individuals are not entitled to contractual rights or guaranteed procedures as set forth in the Manual other than what they are otherwise entitled to as a matter of law. Id.
Although this statement makes explicit that UPS, when developing the Manual, did not intend to set forth an exhaustive, mandatory ADA compliance procedure that governed all situations, the Manual does set forth detailed guidance on, among other things, the scope of the ADA and reasonable accommodation under the ADA. The Manual specifically prescribes an ADA compliance procedure for UPS employees in a section entitled “Evaluating Requests for Accommodation in the UPS Environment,” id. at 34-58, and a subsection entitled “The UPS ADA Procedure,” id. at 42-57.
(i) Reasonable Accommodation
With respect to “reasonable accommodation” generally, the Manual notes that “[t]he ADA imposes an affirmative obligation on UPS to provide reasonable accommodation to qualified individuals with disabilities” and this “involves the removal of both physical obstacles and policies and procedures in the workplace that create barriers to the full employment of individuals with disabilities.” Id. at 13. It explains “reasonable accommodation” to be “any change in the work environment or adjustment in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Id. The Manual notes that employees generally have the initial obligation to inform a manager or supervisor that an accommodation is needed and to identify the desired accommodation, but that no magic words are required for an employee to put the company on notice. Id. at 14. Further, it describes the importance of an “effective accommodation” — i.e., one that enables the disabled individual to perform the essential functions of the job in question. Id.
The Manual identifies “particular accommodations that may be ‘reasonable’ in some cases,” including (1) modifications of the work environment, such as structural changes to the workplace to address accessibility of lunchrooms, restrooms, work area, or training rooms; (2) auxiliary aids, including modifying equipment or acquiring and using low-tech and high-tech devices; (3) job restructuring, for example “altering the time or manner in which an essential function is performed” or “redistributing or eliminating the nonessential, marginal job functions of a position entirely;” (4) reassignment to open positions in certain cases; (5) transfer; (6) leave of absence; (7) “light duty;” (8) a modified work schedule; and (9) shift changes. The Manual also addresses unreasonable accommodations and “undue hardship” as well as the impact of the collective bargaining agreements on requests for accommodation. Id at 15-20.
(ii) The UPS ADA Procedure
In Section II of the Manual, UPS sets forth specific procedures for “Evaluating Requests for Accommodation in the UPS Environment.” Id. at 34-59. The Manual notes that “[t]he process of evaluating requests for accommodation made by individuals is a mul-ti-disciplinary task involving personnel at both the district and region levels.” Id. at 35 (emphasis added). The Manual notes that because in the company’s experience requests for accommodation from applicants (as opposed to current employees) vary widely from case to case and often demand heightened flexibility and quick response *170 times from involved personnel, UPS’s ADA procedure as set forth in the Manual applies on its face only to current employees. Id.
The Manual gives further guidance concerning what constitutes a request for an accommodation, and what duties it triggers for managers, including who needs to be informed (in the first instance, generally the District Workforce Planning Manager (“DWPM”)), what information can be requested (the company has developed a packet to be sent to employees who request accommodations), how requests should be documented, 20 and confidentiality concerns. Id. at 35-38.
According to the Manual, responsibility for processing and deciding a request for accommodation under the ADA is shared among UPS’s managers and personnel at the district and regional level. The Manual provides an overview of roles and responsibilities of various managers and personnel who are involved in the decisionmaking process concerning ADA requests for accommodation. Id. at 39-41. For example, the Manual instructs that, while the list is not exhaustive and personnel are encouraged to consult with other district and region managers for guidance when appropriate, the following individuals play a role in processing an employee’s request for an accommodation under the ADA:
(1) Generally the DWPM is responsible for coordinating and managing an employee’s request for accommodation, including exploring the availability and existence of appropriate accommodations with the employee, union (where applicable), and region level decisionmakers; assisting in determining which accommodation, if any, is warranted or feasible; and serving as UPS’s primary liaison with all employees throughout the process. Id. at 39.
(2) The Occupational Health Supervisor (“OHS”) serves as a liaison between the company, the employee, and the employee’s identified physician for purposes of securing all medical information necessary to evaluate whether the employee has a “disability” covered by the ADA; assists in determining whether an employee is a qualified individual with a disability; and participates in identifying accommodations with the employee and DWPM. Id.
(3) The Region Workforce Planning Manager (“RWPM”) “is involved in all decision-making aspects of the ADA process” and is responsible for initially determining in conjunction with the Region Occupational Health Manager whether it appears that the employee has a condition which may be a covered “disability.” Id. at 40. The RWPM is likewise ultimately responsible for identifying what accommodation, if any, UPS will offer to a qualified employee. Id. “In all eases, the RWPM is charged with overseeing the application of ADA policies, procedures, and decisionmaking throughout the districts in his or her region.” Id.
(4) The Region Occupational Health Manager (“ROHM”) participates in the deci-sionmaking process and provides guidance in determining (a) whether the employee has a disability under the ADA, (b) whether the employee is a qualified individual with a disability, and (c) what, if any, accommodation should be expended to the employee. Id.
(5) The District Human Resources Manager (“DHRM”) participates in determining what accommodation, if any, will be offered to qualified employees with disabilities under the ADA. Id. In addition, the DHRM is kept apprised of the status of employee requests throughout the process and is available to advise and assist district personnel in carrying out their assigned tasks. Id.
(6) The District Labor Relations Manager (“DLRM”) serves as the principal contact with the unions and is responsible for ensuring that the company satisfies its obligations under all applicable collective bar *171 gaining agreements in executing its ADA procedures. Id. The DLRM also assists in identifying potential accommodations for employees and in determining which accommodation, if any, the company should offer. Id. Where an accommodation will be offered to a union employee, the DLRM negotiates with the union over the parameters of the accommodation and drafts a written accommodation agreement when appropriate. Id. at 41.
(7) The union Business Agent (“BA”) is involved in the ADA process only when it is a bargaining unit employee who has made a request for accommodation. The DLRM will negotiate with the BA (or his designee) before an accommodation is provided to a bargaining union employee pursuant the National Master Agreement. Id.
(8) The Corporate Legal Department is available to assist decisionmakers in resolving all issues of concern that arise during the ADA process, and should be apprised whenever there is a dispute among decisionmakers or between decisionmakers and the employee regarding whether the employee’s condition is one that is covered under the ADA, whether the employee is qualified within the meaning of the ADA, or whether a particular accommodation is reasonable as a matter of law. Id.
(9) Outside Counsel are likewise available to assist ADA decisionmakers with respect to all aspects of the process, although as a general matter, outside counsel should be contacted only after securing the approval of the Corporate Legal Department. Id.
b. The “Ten-Step Process”
The Manual also sets forth the so-called “ten-step process,” 21 which is highly contentious in this litigation. The ten-step process constitutes the backbone of UPS’s ADA pro-eedure for resolving requests for accommodation. Indeed, it is this formal procedure, among other policies and practices at UPS, which plaintiffs challenge in this litigation as the embodiment of bad faith and abuse of process. UPS, on the other hand, maintains that its formal procedures, including its ten-step process, are developed and executed in full compliance with the letter and the spirit of the ADA.
(i) Step One: “Commence the Process”
At Step One (“Commence the Process”), according to the Manual, within one week of a request for accommodation, the request should be directed to the DWPM who should open a Request File for the employee. Id. at 43. The DWPM then is responsible for sending out a packet of information to the employee that includes a letter acknowledging the request and medical forms to be completed by the employee’s physician. Id. The applicable Essential Job Functions listings are attached and a consent form for the disclosure of medical information to be signed by the employee is included. Id. The DWPM should place copies of all letters in the file and forward the file to the attention of the OHS. Id.
Plaintiffs, however, argue that UPS may never even open an ADA Request File for some employees with restrictions who seek to return to work with an accommodation because certain UPS managers are not sufficiently trained to identify a request when it is made and to forward it promptly to the DWPM for the purpose of opening an ADA file. Plaintiffs cite Hohider’s and DiPaolo’s experiences to show that some requests for accommodation are ignored or summarily denied by district-level management, and therefore that these requests never result in the *172 opening of an ADA file. 22 See, e.g., Declaration of Eva Nickels (“Nickels Deck”) at Htf 4-7.
(ii) Step Two: “Gather Medical Information”
At Step Two (“Gather Medical Information”), according to the Manual, the OHS is responsible for securing all medical information from the employee and the employee’s physician. Manual at 44. If the OHS has not received the requested information within two weeks of the date on which the DWPM mailed the acknowledgment letter, the OHS should send a second letter to the employee stating that (a) the process cannot continue until the requested information is returned, and (b) UPS will terminate the process by a certain date, usually within two weeks, unless the OHS receives the information or is contacted by the employee. Id. If the OHS does not receive the information by the stated deadline, the OHS should send a letter to the employee stating that the process has been terminated, inform the DWPM, and then close the file. Id. If the employee subsequently submits the requested information and renews a request for accommodation the OHS or DWPM must reopen the file and commence the process a second time. Id.
Once the OHS secures the medical documents, the OHS evaluates whether sufficient information exists from which to determine whether the employee has a condition that could be covered under the ADA. Id. If there is insufficient information, the OHS should advise the employee in writing of the specific additional information that is needed to evaluate properly the request and the consequences of failing to provide this information. Id. Where necessary, the OHS in consultation with the DWPM also may seek guidance from a company-approved physician or request the employee to submit to a medical evaluation by a UPS certified physician. Id. The company evaluation must be job-related and limited to an evaluation of the impairments identified by the employee and their impact on the employee’s ability to work at UPS. Id. Once the OHS certifies that sufficient medical information exists to proceed with the employee’s request, the OHS should forward the file promptly to the attention of the ROHM.
Plaintiffs argue that at Step Two, UPS utilizes a “confusing questionnaire” that contains legal terms of art which an employee must have his or her physician complete in order to continue with the ADA process. See Pis.’ Br. at 19; Pis.’ Dep.App., Tab 1 (Deposition of Vance Allison, who appears to be a management-level employee at UPS involved in processing reasonable accommodation requests) (“Allison Dep.”) at 69, 187-90. Plaintiffs argue that this form is designed to delay or stop the process of receiving an accommodation because no accommodation request will be processed until the questionnaire is satisfactorily completed and because UPS deems all accommodation requests withdrawn unless the employee’s physician returns the form within four weeks. Plaintiffs argue that this combination of requirements — a confusing form and the rule that a request is deemed withdrawn if the form is not timely returned within a relatively short time frame — are designed to and actually do frustrate an employee’s attempt to request and receive an ADA accommodation.
(iii) Step Three: “Evaluate Whether the Employee May Have a Disability”
At this stage, the information gathered and processed at the district level is forwarded to the regional level. The RWPM and the ROHM are responsible for evaluating the assembled medical information to determine whether the individual has a condition that may be a disability under the ADA. Id. at 45. Upon receipt of the file, the ROHM and RWPM should review the information and use the company’s “Guide to Evaluation of Medical Condition” flowchart for guidance to make a preliminary determination regarding whether the employee may have a condition covered by the ADA. Id. If they cannot reach *173 a consensus, they should consult with the Corporate Legal Department. Once a consensus is reached, the decision whether the individual may be or is not disabled should be noted in the file. IcL The RWPM should notify the DWPM of the decision and return the file to the DWPM. 7d 23
(iv) Step Four: “Notify the Employee”
At Step Four (“Notify the Employee”), if the regional decisionmakers (the RWPM and the ROHM and others they consult) determine that the employee does not have a condition covered by the ADA, the DWPM promptly should send a letter notifying the employee of this decision. Id. at 46 (emphasis added). If an employee requests that UPS reconsider its position on this issue, the Corporate Legal Department and the RWPM should be consulted. Id. Generally the initial decision should stand unless legal questions arise or the employee introduces new information relevant to the employee’s medical status or job capabilities. Id. Where the “no disability” determination stands, the DWPM should close the file. Id. If the regional decisionmakers determine that the employee may have a condition that qualifies as a disability under the ADA, the DWPM should send a letter to the employee scheduling a preliminary date for a meeting with the employee to identify the desired accommodation (the so-called “checklist meeting”). Id. (emphasis added). The DLRM and OHS should be copied on this letter. Id.
(v) Step Five: “Meet with the Employee (Hold Checklist Meeting)”
At Step Five (“Meet with the Employee (Hold Checklist Meeting”)), the DWPM chairs a checklist meeting with the employee and the DLRM and OHS if they are available. Id. at 47. In all cases, at least two management employees must represent the company. Id. In some circumstances a union employee may request that a BA or steward attend the meeting and the DLRM has the discretion to grant an exception to the general rule that they not be allowed to attend when it is deemed to be appropriate, e.g. when the union initialed the accommodation request. Id.
The goals of the checklist meeting are to gather information from the employee concerning the desired accommodation; to determine whether it is needed because of the disability; and to assess the impact of the employee’s limitations on the employee’s ability to work at particular positions. Id. It will often be appropriate to review the essential job functions of the positions at this time. Id. Although the DWPM may provide information to the employee about the UPS decisionmaking process going forward, no manager should make any representations regarding the company’s willingness to offer a particular accommodation or the availability of alternate positions at this time. Id. At the meeting, the DWPM should complete the employee portion of the accommodations checklist and secure the signature of the employee before concluding the meeting. Id. In addition, when a unionized employee is involved, the DWPM should secure the employee’s written consent to provide the union with the employee’s medical information. Id. at 47-48.
While the process set forth in the Manual contemplates an interactive process of the kind required by the ADA, plaintiffs argue that even this checklist meeting is a sham where employees are required to identify specific accommodations without dialogue with management. 24 Plaintiffs cite the Deposition of Paul Kula (“Kula Dep.”), who worked as a management-level employee involved in the ADA compliance process, in support of this allegation. Kula Dep. at 202-04. Mr. Kula, upon questioning by plaintiffs’ counsel about the checklist meeting, assented that it was UPS’s policy not to suggest reasonable accommodations at the checklist *174 meeting, but rather to require an employee to fill out a form at the checklist meeting identifying possible accommodations and for UPS managers separately to fill out another form, which is never shared with the employee, but is forwarded to the regional ADA committee. Id.
(vi) Step Six: “Identify Potential Reasonable Accommodations (Complete Written Checklist)”
At Step Six, following the checklist meeting, the DWPM should evaluate the availability of the identified accommodations. Id. at 48. The DLRM should be consulted on issues involving a collective bargaining agreement and the OHS or ROHM should be consulted as necessary on questions concerning an employee’s physical or mental abilities in relation to a particular position. Id. If the employee maintains that he or she is capable of performing the current job with a specific accommodation, the DWPM should identify (1) whether that accommodation is available; and (2) where a union employee is involved, whether the accommodation conflicts with a collective bargaining agreement. Id. If the employee is seeking a transfer or reassignment, the DWPM should identify (1) whether there are any current or anticipated openings for the desired position; (2) whether the employee has the requisite education, skills, and experience for the position; (3) whether the essential functions of the new position appear within the employee’s medical limitations with or without reasonable accommodation; and (4) when a union employee or bargaining unit position is involved, whether the transfer request conflicts with a collective bargaining agreement. Id. The DWPM then should identify whether any known accommodations not identified by the employee are available, such as alternative vacant positions or job modifications that would enable the employee to perform the essential functions of his current position. Id. at 48-49. For each potential accommodation identified, the DWPM should collect information and complete the management portion of the checklist, attaching the essential functions list for each position identified to the checklist. Id. at 49. The DWPM should fax copies of the completed checklist and essential job functions lists to the RWPM and ROHM and provide copies to the DLRM, DHRM, and OHS. 7d 25
(vii) Step Seven: “Evaluate Appropriate Accommodations (ADA Committee Meets)”
At Step Seven, the ADA Committee (the “Committee”), consisting of management personnel at both the district and regional level, meet or participate in a conference call to review the completed checklist. Id. At this meeting the Committee’s task is twofold: (1) to evaluate whether the employee is a “qualified individual with a disability” — that is, capable of performing the essential functions of any available position with or without reasonable accommodation — and (2) to identify what reasonable accommodation, if any, the company is able to offer to the employee. Id. at 49-50.
According to the Manual, in determining whether an individual is qualified, the employee’s capabilities with respect to the current position generally should be evaluated first, and if there is no identified accommodation that would enable the employee to continue in this position, or the employee has specifically identified reassignment or transfer as the desired accommodation, the Committee should also evaluate the employee’s abilities with respect to potential alternate positions. Id. at 50. The Committee may consider positions identified by the employee, the DWPM, or any other position the Committee deems appropriate. Id. When considering alternative positions, the Committee first should determine whether the employee is capable of performing the essential functions of the position with or without reasonable accommodation. Id. If the employee is deemed capable of performing a new position with or without reasonable accommodation, the Committee next must determine whether that position is “open” or “available.” Id. *175 Under the policy identified in the Manual, if a position is not. open or available, it is not a reasonable accommodation. Id. at 50-51. Further, the Manual states that the company is never required to create a new position or to bump another employee in order to offer a reasonable accommodation. Id. at 51. If the Committee identifies more than one potential reasonable accommodation, it must determine which accommodations will be offered to the employee. Id.
(viii) Step Eight: “Bargain with the Union”
If the Committee determines that an accommodation will be offered to a union employee, the DLRM communicates with the BA to discuss and negotiate with respect to the company’s offer. Id. at 52-53. If the BA agrees to one of the offered accommodations, the DLRM should prepare a written accommodation agreement. Id. at 53. The DLRM should notify the RWPM, DHRM, and DWPM of the results of the meeting. Id.
(ix) Step Nine: “Notify the Employee”
When no accommodation is offered because the Committee has determined that the employee is not qualified for any position, that no reasonable accommodation exists, or that no reasonable accommodation is available, the DWPM is responsible for notifying the employee of the outcome in writing. Id. at 53-54. When an accommodation is offered, the DWPM is responsible for writing a letter inviting the employee and his or her BA, if any, to a meeting to discuss the company’s offer. Id. at 54. At least two management employees must attend. Id. If the employee rejects all proposed offers or a union employee rejects the only offer agreed upon by the union and the company, the DWPM should document the offer and the discussions with the employee in a memorandum to the file and a letter to the employee which notes the date on which the employee should report to duty in the new or modified position. Id. at 54-55. If the employee fails to report for work, the DWPM may terminate the employee for job abandonment where appropriate and consistent with applicable law. Id. at 55. If the employee accepts the accommodation, the DWPM or DLRM is responsible for memorializing the agreement in a letter. Id.
(x) Step Ten: “Close the File”
Once the process terminates for any reason, with the exception of insufficient medical information, the DWPM is responsible for closing the Request File. Id. The file should contain: (1) a completed activity log; (2) all medical information received from the employee; (3) the completed accommodations checklist, where applicable; (4) copies of all correspondence relating to the accommodation request; and (5) any memorandum or documentation arising out of the accommodation process. Id. at 55-56. All information contained in the file is considered to be confidential and must be maintained separately from the employee’s personnel and other files in a secure filing cabinet maintained by the DWPM. Id. at 56. In addition, the DWPM also should maintain a copy of any accommodation agreements reached with the union Id.
c. Miscellaneous Manual Issues
The Manual further notes that there is a process for appeals for union employees; no manager has the authority to grant exceptions to the company’s policy that no job-related accommodations will be granted other than to employees covered by applicable law without prior approval of the Corporate Legal Department, and only in rare circumstances; and that all employees at UPS are responsible for ensuring compliance with the ADA. Id. The Manual provides that UPS will not tolerate violations of the compliance program. Id. Attached to the Manual are sample forms related to the process. Id. at 59-88.
d. Other ADA Training Materials
UPS provided to the court other training materials for management personnel concerning its ADA procedures. Lee Deck U14. UPS submits, in fact, that there has been extensive training of management personnel on the UPS ADA procedure. Id. For example, UPS submitted for the court’s consideration its 2001 follow-up training materials, *176 Lee Decl. H14, Ex. J. These appear to be copies of slides from a powerpoint presentation or handouts to employees used as part of a two-day training program in 2001 covering the ADA and the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 , et seq. (the “FMLA”). As a part of this training, employees evidently reviewed the ADA and the FMLA as well as UPS’s procedures for dealing with requests for accommodations. See id. In particular, it appears that (1) employees discussed substantive hypotheticals, although these hypotheticals were not included in what was filed with the court, id. (UPS’s App. at 852); (2) employees reviewed the ten-step process detailed in the Manual, id. (UPS’s App. at 863-64; 863-85); and (3) employees discussed procedural hypotheti-cals, although these hypotheticals were not included in what was filed with the court, id. (UPS’s App. at 888). Finally, it appears that employees reviewed UPS’s on-line compliance web. Id. (UPS’s App. at 890).
In addition, UPS submitted supplemental training materials which also appear to be copies of slides from a powerpoint presentation or handouts to employees used as part of a training program. Lee Decl., Ex. K. These materials appear to echo the ADA compliance procedures set forth in the Manual. The materials are suggestive, though certainly not definitive, evidence that some employees were trained in the formal ADA compliance procedures developed by UPS at some point. Without more, however — for example, without the substantive and procedural hypo-theticals or evidence of the actual discussion and guidance that was delivered concerning hypothetical situations faced by employees concerning ADA compliance, and without any indication of how many managerial employees received this kind of training, when, and how frequently — these materials add little to the court’s understanding of an ultimate issue for the merits stage of this case: Whether there existed an informal or unwritten pattern-or-practice of dealing with employees at UPS that violated the ADA notwithstanding the existence of the formal compliance policy.
e. Notice to Employees
UPS submits that as part of its ADA compliance program, UPS gives applicants an opportunity to request accommodation and that, prior to the recent use of an electronic application, the UPS application form itself stated that UPS will provide reasonable accommodation if an accommodation is requested by an applicant or employee. Lee Decl. H16. UPS submits that the form itself invites applicants voluntarily to identify accommodations that may be required. Id. Further, UPS submits that bargaining unit employees have access to grievance procedures concerning reasonable accommodations. Id.
UPS submits that in compliance with applicable law, each UPS facility is required to post — and it is UPS’s policy to post — government required signage along with the UPS Equal Opportunity Statement on bulletin boards that are accessible and visible in the facility. Id. UPS attached a copy of an “EEO Multi-Part Posting” to the Lee Decl., Ex. L. It is unclear from the face of the example submitted to the court at what date or in what location or locations it was used. Though difficult to read due to the size of the font and the quality of the photocopy, this posting appears to advise viewers about applicable federal laws including the FMLA and the Rehab Act, as well as UPS’s equal opportunity statement. Id. It is unclear if this posting, or others like it, explicitly address the ADA. Id. While there is mention of “individuals with disabilities,” the court, perhaps in part due to the size of the font, was unable to locate an explicit reference to the ADA on the copy supplied to the court. Id. UPS asserts that this posting includes an invitation to self-identify under UPS’s affirmative action plan pursuant to the Rehab Act. Id. 1117 , Ex. L (posting).
C. ADA and Other Kinds of Accommodations in the Sample Districts
1. ADA Accommodations
UPS presents data about ADA accommodations made at UPS gathered from UPS’s ADA Request Files and from human resource managers in the five sample dis *177 tricts. 26 Williams Decl. 11113-6. This data shows that in the five sample districts during the relevant time period of approximately four and one-half years UPS received 481 requests for accommodation that resulted in the opening of a Request File. Id. H 6. Of these 481 requests, UPS submits that 233 requests (approximately 48%) were considered withdrawn; 47 requests (approximately 10% of the total number of requests and approximately 19% of the 248 requests not deemed to be withdrawn) resulted in the offer of an ADA accommodation; and, by inference, 201 requests (approximately 42% of the total number of requests and approximately 81% of the requests not deemed to be withdrawn) did not result in the offer of an ADA accommodation. Id. 1IH 6-7; see id., Exs. A-D.
Of the 233 requests that were deemed to be withdrawn, UPS submits that 167 were deemed withdrawn because an employee failed to submit the required medical information; six were deemed withdrawn because an employee failed to appear for a the checklist meeting; thirty-one were deemed withdrawn because employees returned to regular job duties during the pendency of the request, rendering their requests moot; three were deemed withdrawn because employees submitted medical information permitting a return to regular job duties; seven were deemed withdrawn because employees entered into alternative settlement procedures and resigned, rendering their requests moot; seven were deemed withdrawn because employees retired or self-terminated while their request was pending; eleven were deemed withdrawn because employees requested that their request be withdrawn; and one was deemed withdrawn because one employee was terminated for submitting false information. See Williams Decl., Ex. B.
2. Other Accommodations
UPS also presents data about accommodations made to employees at UPS based upon avenues outside of the formal ADA compliance protocol. See Williams Decl. UK 8-18; Lee Decl. 111118-22. For example, UPS submits that during the relevant time period UPS provided 44 accommodations in three of the five sample districts through its “Alternative Work (Alcohol/Controlled Substance)” program for employees who lost their license for driving under the influence of alcohol or a controlled substance (provided for in Article 16, Section 3.3 of the National Master Agreement) or its “Disqualified Driver — Alternative Work” program for employees who have been deemed medically unqualified to drive (provided for in Article 20, Section 4 of the National Master Agreement); 27 UPS provided “hundreds” of short-term accommodations through its “Temporary Alternate Work” (“TAW”) program for employees unable to perform their normal work due to on-the-job injury (provided for in Article 14, Section 2 of the National Master Agreement); 28 UPS provided 61 accommodations nationwide pursuant to its Diabetes Protocol and Vision Protocol according to a survey conducted in July 2003; 29 UPS provided 76 accommodations in the five sample districts pursuant to its hearing disability program; 30 UPS pro *178 vided 89 accommodations in the five sample districts pursuant to its Residual Disability/Return to Work program for non-bargaining unit employees; 31 and UPS through its managers provided at least 47 accommodations on an informal basis for employees in the Laurel Mountain district where Hohider and DiPaolo worked 32
UPS further submits that, in addition to accommodations for workers with medical accommodations, the record reflects hundreds of employees in the five districts working with permanent disability ratings as determined by applicable state workers’ compensation agencies. Declaration of Kenneth Rittman (“Rittman Deck”) (UPS’s App., Tab 2 at 452-54). A review of UPS’s business records identified 507 employees working in the five sample districts as of April 2005 who had sustained a work-related injury after May 1, 2000 and returned to work with a permanent disability or permanent partial disability rating. Id. 114 . Of these 507 employees, 15 (approximately 3%) had a permanent disability percentage greater than 40%; 36 (approximately 7%) had a permanent disability percentage between 30%-39%; 103 (approximately 20%) had a permanent disability percentage between 20%-29%; 145 (approximately 29%) had a permanent disability percentage between 10% — 19%; 108 (approximately 21%) had a permanent disability percentage between 5%-9%; and 100 (approximately 20%) had a permanent disability percentage between l%-4%. Id. 117 . Moreover, UPS submits that 2,155 employees in the sample districts who had sustained a work-related injury after May 1, 2000 and were absent from work for greater than 30 days as a result of the injury returned to work and were current, active employees at UPS as of April 2005 although they received additional medical care after returning to work. Id. 118 .
D. Other General Evidence Submitted by UPS
UPS submits to the court as further general evidence of its compliance with the ADA evidence of its corporate citizenship and general business excellence, see Lee Deck at 8-10, and evidence of disability awards or commendations received by UPS, see Lee Decl 1123. In addition, UPS submits that under the National Master Agreement the parties agreed to abide by the ADA and employees can pursue grievance proceedings if they disagree with UPS’s handling of a request for accommodation, see Declaration of David C. Killoran (“Killoran Deck”) HU 2-3 (quoting Article 14, Section 3 (“Permanently Disabled employees”) of the National Master Agreement and discussing “Article 14.3 grievances” generally). Pursuant to these grievance proceedings, sixty-four grievances were decided by the national grievance committee between May 2000 and December 2004. Id. 114 . Of these sixty-four grievances, UPS prevailed in forty-seven grievances, the union prevailed in three of them, and the national committee deadlocked in fourteen of them or referred the grievance back to the parties. Id. U 5. 33 UPS argues that these statistics support an inference that denials for accommodations are routinely upheld by a neutral forum.
E. Challenged Policies
Plaintiffs generally do not dispute the existence of UPS’s formal ADA compliance policies including the “ten-step process” and other procedures set forth in the Manual. Instead, plaintiffs allege that unwritten, informal policies and procedures exist at UPS with respect to how requests for accommoda *179 tion under the ADA are handled, and that the informal policies and procedures constitute patterns or practices violative of the ADA and issues relating to these matters are susceptible to classwide adjudication. In addition, plaintiffs argue that the implementation of UPS’s formal, written policies violates the ADA and is susceptible to classwide adjudication.
1. The Alleged “100% Healed Policy”
a. Evidence from Managers and Former Managers Concerning the Existence of the “100% Release” or “No Restrictions” Policy
Plaintiffs argue that the evidence accompanying their brief establishes beyond peradventure that, notwithstanding its formal written policies, UPS has a de facto policy of requiring employees who have been off the job because of injury or long-term illness to present UPS with a full medical release, showing no permanent medical restrictions, before the employee will be permitted to return to work in any job in UPS’s workforce. Plaintiffs submit declarations from UPS managers and former managers in support of the existence of this so-called “100% healed policy.” See generally Pis.’ Decl.App. For example, plaintiffs submit the declaration of Patrick D’Angelo, who worked at UPS for approximately fifteen years, from 1987 through 2008, and spent several of those years in supervisory or management positions, including fourteen months as Charleston Center Manager, in support of the existence of the unwritten rule that nobody returns to work at UPS without a “100% medical release”:
UPS maintains an institutionalized policy of requiring a “100% medical release” or “full medical release without restrictions” from every injured employee before allowing them to return to their employment with the company. This unwritten policy was stressed over and over throughout my tenure as a UPS manager. This policy not only was in place and followed but was common knowledge among all employees and managers in every facility I worked at in South Carolina during my fifteen years with the company. To my knowledge, no one was ever allowed to return to work at UPS, once injured, without first providing this full release.
During our monthly manager meetings, attended by all of the managers and supervisors in our facility, where safety and the current list of injured employees was discussed, this “full release” policy was repeated and reinforced over and over. We were instructed that absolutely no employee would be allowed back to work without a full release. Additionally, I spoke several times to ... the South Carolina District Safety Manager regarding the individual cases of injured employees. [He] also has attended our manager meetings on occasion. He repeated and stressed over and over that “Nobody comes back to work at UPS without a full release.”
Declaration of Parick D’Angelo (“D’Angelo Deck”) Hit 2-4 (emphasis added). The declarations of other managers or former managers further support this statement. See, e.g., Declaration of David Balsis (“Balsis Deck”) K 2 (“During my [16 years as supervisor, 12 years as a manager], I had heard from my superiors repeatedly that a worker had to be 100% before he could come back.”); Declaration of John (Layne) Budd (“Budd Deck”) If 4 (“The policy I was trained to communicate to people requesting a change in their job duties due to a medical condition or problem was if you don’t have a 100% release then you don’t have a job until you get a full release____ The company trained management that, as a supervisor, you didn’t want anyone to be accommodated because it would lead to other accommodations and then you’d have all these new jobs.”); Declaration of Jim Fields (“Fields Deck”) 15 (“I was personally told that I had to be 100% or else there was no work for me, and I have witnessed countless workers being told by their managers that this was UPS’s policy, and I did receive training on the UPS ADA program, but nobody that I am aware of has ever told me or any other manager not to tell workers about the 100% release policy.”).
In addition, some managers submit that they were not, aware of the formal ADA *180 accommodation process or not adequately trained in it. See, e.g., Balsis Decl. 112 (“I was a UPS supervisor for 16 years.... During the time that I worked there, I never even heard of any accommodation process, ten-step or otherwise, and I don’t know of anybody that ever got anything under the ADA.”); Fields Decl. If 5 (“Even the existence of the ten-step accommodation process is not known by the vast majority of the union workers and first line managers.”). In addition, some managers declare that they were coached to discourage employees from seeking accommodations through the ADA See, e.g., Budd Decl. 115 (“This policy of 100% release was communicated via phone calls or in face-to-face business meetings. Often your safety manager or supervisor would contact you to discuss an employee’s upcoming return, in which you were coached to specific situations on how to avoid the ADA on a ease-by-case basis.”). Some managers further declared that they believed the formal procedures were not designed actually to accommodate people, but rather were designed to make an employee believe that the company was complying with the law while discouraging the employee from seeking accommodations. See, e.g., Budd Decl. H 7.
b. Evidence from Employees and Former Employees Concerning the Existence of the “100% Release” or “No Restrictions” Policy
Plaintiffs submit numerous declarations from UPS employees and former employees as evidence of the existence of the 100% healed policy. See, e.g., Cowley Decl. If 3 (“UPS refused to permit me to return to work, telling me that I had to be ‘100%’ healed to return and that I could not come back unless I had a ‘full-duty release’ allowing me to lift 70 pounds or more.”)(Alabama); Sanchez Decl. U 6 (“In July 2001, feeder supervisor ... told me I could not work unless I was 100%.”)(Arizona); Weber Decl. 115 (“UPS has refused to allow me to return ..., applying UPS’s long-standing rule that if you are not 100%, you cannot come back to work.”)(California); see generally Pis.’ Decl. App. These declarations arise in a wide variety of circumstances. Common to many, however, is the idea that there was a general understanding among a sizable number of UPS employees that they could not return to work after an injury unless they were “100% healed” or had no restrictions. Another recurring theme in the numerous declarations submitted to the court is the lack of awareness of or understanding about the formal ADA Compliance process among a sizable number of employees. See, e.g., Burke Decl. If 6 (“I have never seen any notices about the Americans with Disabilities Act posted anywhere on UPS premises.”). 34 In addition, multiple UPS employees declared that although they had communicated a request for an accommodation, they were not taken through the ten-step process set forth in the Manual. See, e.g., Lugo Decl. HIT 18-21. Some employees reported resorting to imploring their doctors to give them a full medical release regardless of continuing symptoms due to their understanding of UPS’s 100% release policy. See, e.g., id. 11117-8. 35
c. Evidence from UPS’s Internal Emails
Plaintiffs submit to the court certain UPS internal emails which plaintiffs argue evi *181 dence the existence of the 100% healed policy. Plaintiffs argue in their brief that these emails contain admissions that UPS managers nationwide enforce the 100% release policy, share medical information and strategy with disability claims adjusters, and otherwise pursue all possible avenues to prevent anyone with permanent restrictions from attempting to return to work. Plaintiffs point to no single “smoking gun” email evidencing a clear, unambiguous intent to stonewall UPS employees seeking accommodations. Plaintiffs, however, cite language from emails concerning Hohider’s request for accommodation, Pis.’ Ex. App., Tab 16, and the requests of other employees, Pis.’ Ex.App., Tabs 18, 20, 21, 23, which plaintiffs argue show an intent by UPS managers to use the ADA process to stonewall employees seeking accommodations.
For example, plaintiffs quote excerpted language from emails about checklist meetings for employees who have made requests and argue that these emails evidence attempts by UPS to “run people through” the ADA process without the requisite good faith the ADA requires. See Pis.’ App. Ex., Tab 13-14 (“Let me know if that changes anything” and the response “Yes. Please call for further discussion”). Plaintiffs point to a string of email communications between Liberty Mutual claims adjuster Albert Sarokin and UPS managers about Hohider’s application which plaintiffs argue demonstrate that UPS predetermined that it would not permit Hohider to return to work in any capacity although they would “put Mr. Hohider through the ADA process” in an attempt to force him to settle his workers’ compensation claim. See Pis.’ Ex.App., Tab 16. 36
Plaintiffs also submit to the court other emails produced by UPS which plaintiffs characterize as “frank communication about the true policy of non-accommodation” at UPS. See Pis.’ Br. at 13. These emails apparently discuss individual cases of UPS employees seeking accommodations under the ADA. For example, one email that plaintiffs paraphrase in their brief stated in part:
[Redacted name] says that someone told him since he was not 100% he would need to be terminated____ Anyway, he says now his restrictions are perma-nent____ I have no choice but to reinstate him and go through the ADA process to be sure we cover ourselves for any possible litigation____I explained to him not to get his hopes up for another lighter job but he can go through the process____ I suggested he start looking for other jobs outside UPS — he still wants to go through the ADA____
Pis.’ Ex.App., Tab 18 (August 20, 2003 email with names of sender and recipient redacted)(emphasis added). In response to that email, the following response was sent:
[SJince he did not work the required time to attain benefits, he is unable to file for disability. He asked a bunch of questions and gave me the impression he was going to try to come back to work. I told him that before that could happen he would have to have a full release from his Dr.
Id. (August 26, 2003 3:41 p.m. email with names of sender and recipient redacted)(emphasis added). Additionally, a response stated:
Please put a copy of this e-mail in his file. [Redacted name] is right he is probably not eligible for medical or disability benefits (pre-senior) but we have to go through the ADA process — he can not [sic] return without a release from his doctor who has reviewed the job functions which is [sic] in the ADA packet____
Id. (August 26, 2003 11:44 p.m. email with names of sender and recipient redacted)(emphasis added). Other emails similarly discuss “running employees through the ADA process.” See, e.g., Pis.’ Ex.App., Tab 20 (September 17, 2004 email with names of sender and recipient redacted) (“All, [name redacted] who is on comp and at MMI, has expressed interest in an easier job at UPS, including a supervision again. As per previous discussions with [name redacted] I be *182 lieve this to be an informal request for an accommodation and hence we should run him through the ADA process .... please call me to discuss further ----”)(emphasis added); Pis.’ Ex. App., Tab 24 (September 17, 2004 email with names of sender and recipient redacted)(In response to an email from Raul Alvarez regarding an employee released from a non-work related injury with restrictions which stated “if we can’t accommodate this employee under this restrictions [sic] please let me know,” “I have coached Raul. He now understands that this restriction is a possible accommodation by UPS. Do not work [the employee] until further instruction or he gets a full release. ”)(emphasis added).
d. Evidence from UPS’s Early Training Materials
Plaintiffs submit excerpts from UPS’s early training materials which plaintiffs suggest evidence that UPS admits that a 100% healed policy is illegal. See Pis.’ Ex.App., Tab 5 (the “Focus on Abilities presentation materials” discussed at note 18 infra) which appears to be training materials to accompany a live presentation to employees. These materials are not dated. UPS submits that these materials predate the 1999 and 2000 ADA procedure, and were superseded by subsequent training in connection with the ADA procedure. Lee Decl. IfH 14-15. Plaintiffs, however, point the court to language in the Focus on Abilities presentation materials and other training documents for managers as evidence that UPS used some version of the 100% healed policy in the past, and recognized that such a policy would violate the ADA:
Workers’ compensation is sometimes seen merely as an extension of the termination process. Even at UPS, we have, at times, declined to return injured employees to the job unless they were “100 percent.” The ADA makes this issue more crucial because of the potential for punitive damages (up to $300,000) for discriminating against a qualified individual with a disability____
Let’s look at an example. We have an employee who is injured on the job. According to the ADA, the employee’s condition is significant enough to constitute a permanent disability. However, we don’t consider the employee eligible to return to work unless fully recovered and medically released. By requiring this “all or nothing” medical release, we’re essentially refusing to discuss any reasonable accommodation that might allow this employee to work.
This is discrimination according to the ADA....
Pis.’ Ex.App., Tab 5 at 2-3 (emphasis added). In addition, plaintiffs point the court to a one-page document entitled “Disability Procedures” whose source is unclear. Plaintiffs aver that document was submitted to the Equal Employment Opportunity Commission (the “EEOC”) by UPS’s employee relations manager for the Laurel Mountain District in August 2001. Pis.’ Ex.App., Tab 7. This document, which is undated, appears to be a basic explanation of “disability procedures” at UPS, and states:
The 10-step “Reasonable Accommodation Process” is initiated when an employee claims to have a permanent disability that requires an accommodation. This process involves Human Resources, Labor Relations, Occupational Health and the local union. This process takes up to ten weeks and is implemented whether or not the employee becomes permanently disabled on or off the job.
“Temporary Alternate Work” may be offered to an employee who is unable to perform their regular job assignments due to an on-the-job injury....
Employees returning to work to their regular job must have a “Return to Work” slip form their treating physician that indicates “Full Duty / No Restrictions” or [be] able to perform the essential job functions____
Id. (emphasis added). Plaintiffs also submit a one-page document entitled “Response to Additional Questions” which states:
When an employee is injured on the job (worker’s compensation) or has a non-work related injury or illness (disability) we require them to furnish us with a Return to Work slip from their treating physician. *183 The Return to Work slip must be received ... before the employee’s return to work date. The Return to Work slip should include wording such as “No restrictions, full duty.”
Pis.’ Ex.App., Tab 8 (emphasis added). This form goes on to indicate that “Temporary Alternate Work” with restrictions may be available in the case of a work-related injury. Id. Plaintiffs argue that even if subsequent training took place after these training materials were phased out, other evidence of record demonstrates that the 100% healed policy which requires workers to obtain a full medical release before they can come back to work continued unabated regardless of the institution of UPS’s formal ADA compliance procedures and the publication and dissemination of the Manual.
e. Evidence from EEOC Determinations
Plaintiffs submit evidence from EEOC investigations into individual charges that employees at UPS cannot return to work unless they are “100%” or have a full release to return to duty. For example, plaintiffs submit an EEOC determination in the case of Michelle D. Miller. Pis.’ Ex.App., Tab 12 (“EEOC Miller Determination”). In the EEOC Miller Determination dated January 14, 2002, Eugene V. Nelson, Area Director, on behalf of the EEOC, stated:
The evidence revealed that [UPS] 37 has a return to work policy, which requires employees to produce a no

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8748212. Public record. Not legal advice.