Allison v. Citgo Petroleum Corp.

DENNIS, Cii-cuit Judge,

dissenting:

I respectfully dissent.

The majority incorrectly holds that African Americans who claim to have been harmed by Citgo’s alleged unlawful racially discriminatory employment policies and practices cannot bring a class action under Federal Rule of Civil Procedure 23(b)(2) to enforce collectively their rights and remedies afforded for such violations under both the 1991 Civil Rights Act and Title VII of the 1964 Civil Rights Act.

The primary purposes of Title VII are to deter and abolish racial and other discrimination in employment and to make discrimina-tees whole. By the 1991 Civil Rights Act, Congress expressly intended to further these goals more effectively by affording in a Title VII action limited compensatory and punitive damage remedies to disparate treatment victims. The majority concludes, however, that the legislative intent of the 1991 Civil Rights Act cannot be effectuated in a Rule 23(b)(2) class action.

The majority reaches this conclusion by erroneously interpreting Rule 23(b)(2) as disallowing certification of a class action under that subdivision whenever the plaintiffs seek compensatory or punitive damages for individual members of the class in addition to injunctive and declaratory relief. The majority’s preclusive interpretation is built on nothing more than its own assertion that, in effect, the prayer for such damages gives rise to a conclusive or irrebuttable presumption that the final relief sought by the plaintiffs relates exclusively or predominantly to money damages, rather than to the final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

The majority’s decision rests on a conception of Rule 23(b)(2) that is irreconcilable with the basic purposes of Rule 23, the text of Rule 23(b)(2), the Advisory Committee Notes on Rule 23(b)(2), the exercise of informed and sound discretion by the district court in deciding whether to certify a class, and Rule 23(b)(2)’s proven effectiveness and unique appropriateness in civil rights cases, especially Title VII actions. Rule 23 plainly limits this court’s judicial inventiveness; we have no authority to require a district court to automatically disallow (b)(2) certification simply because a member of the class seeks compensatory or punitive damages in addition to final injunctive relief. Rather, Rule 23 obliges the trial court to conduct a rigorous analysis, often necessarily probing behind the pleadings, before exercising its own broad discretion within the framework of the rule to decide whether to certify a class.

I.

The majority opinion introduces a new interpretation of Rule 23(b)(2) which provides, in effect, that a class action cannot be certified under that subdivision when the plaintiffs seek individual compensatory or punitive damages in addition to injunctive or declaratory relief under Title VII. That interpretation is based on a circuitous rationale: (i) a claim for monetary relief automatically predominates and defeats certification of a (b)(2) class unless it is “incidental” to requested injunctive or declaratory relief; (ii) “incidental” damages are those that flow directly and automatically from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief; (iii) “incidental” damages are those that do not require additional hearings to resolve the merits of each individual’s case and that do not introduce new and substantial legal or factual issues or complex individualized determinations; (iv) except that, a request for individualized back pay awards under Title VII may be included without defeating certification of *427 a (b)(2) class. 1

The majority states that under its rule the district courts have discretion to decide whether monetary damages sought are “incidental.” However, the majority’s definition of “incidental damages” unquestionably excludes all individual compensatory and punitive damages. Consequently, under the majority’s rule a district court cannot certify a (b)(2) class action suit seeking any such damages without committing an abuse of discretion or an error of law. Therefore, the trial court’s discretion to determine whether damages are “incidental” is illusory. Because of this formulation, trial courts in this circuit will, in fact, have no discretion to certify a (b)(2) class where individual compensatory and punitive damage claims are sought. 2

A.

The majority’s rule absolutely precluding compensatory and punitive damages claims in (b)(2) class actions patently conflicts with or does not demonstrably further the basic purposes served by class action suits. The fundamental aims of class actions are (1) “to promote judicial economy and efficiency by obviating the need for multiple adjudications of the same issues[,j” 5 James Wm. MooRE, Mooee’s Federal PRACTICE § 23.02 (3d ed.1998) (citing General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982) and American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974)), (2) “to afford aggrieved persons a remedy if it is not economically feasible to obtain relief through ... multiple individual damage actions[,]” id. (citing Deposit Guar. Nat. Bank v. Roper, 445 U.S. 326, 339 , 100 S.Ct. 1166 , 63 L.Ed.2d 427 (1980); Amchem Prods., Inc. v. Windsor, - U.S.-,-, 117 S.Ct. 2231, 2246 , 138 L.Ed.2d 689 (1997)(“the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.’(quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.1997)); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 , 105 S.Ct. 2965 , 86 L.Ed.2d 628 (1985)), (3) to enhance access to the courts “by spreading litigation costs among numerous litigants with similar claims[,]” id. (citing United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-403 , 100 S.Ct. 1202 , 63 L.Ed.2d 479 (1980)), (4) “[to protect] the defendant from inconsistent adjudications[,]” id., and (5) “to ensure ... that the interests of absentee class members are considered fairly and adequately,” id. (citing Hansberry v. Lee, 311 U.S. 32, 42-43 , 61 S.Ct. 115 , 85 *428 L.Ed. 22 (1940) and Baby Neal ex rel. Ranter v. Casey, 43 F.3d 48, 55 (3rd Cir.1994)).

Rule 23’s requirements for class action suits should be interpreted in light of the basic purposes of the rule. In re A.H. Robins Co., 880 F.2d 709, 740 (4th Cir.), cert. denied, 493 U.S. 959 , 110 S.Ct. 377 , 107 L.Ed.2d 362 (1989); see also Mace, 109 F.3d at 344 ; Andrews v. Amer. Tel. & Tel. Co., 95 F.3d 1014, 1025 (11th Cir.1996); 5 MooRE, swpra, at § 23.04.

The majority fails to demonstrate that its rigid bright-line rule will further the basic purposes of Rule 23 class action suits. On the contrary, it is self-evident that the application of such an inflexible, arbitrary rule frequently will disallow (b)(2) class action suits seeking predominantly final injunctive relief and only secondarily damages, and thus derogate from the class action goals of judicial economy and efficiency; affording aggrieved persons a remedy not otherwise economically feasible; enhancing access .to courts by spreading costs; and protecting defendants from inconsistent adjudications.

B.

The majority’s rule sharply conflicts with the text, advisory notes and underlying policies of Rule 23(b)(2) in several important respects.

Rule 23(b)(2) provides, in pertinent part, that “[a]n action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition ... the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief or corresponding declaratory relief with respect to the class as a whole[.]” The rule plainly does not say that a class (b)(2) may not be certified if the parties seeking injunctive relief or corresponding declaratory relief also pray for individual compensatory or punitive damages. See Parker v. Local Union No. 1466, 642 F.2d 104, 107 (5th Cir.1981)(“Class certification under Rule 23(b)(2) does not automatically preclude an award of monetary damages when the primary relief sought is injunctive or declaratory. The rule pointedly refers to injunctive or declaratory relief but does not, in terms, preclude monetary relief.”)

The Advisory Committee Notes on Rule 23(b)(2), in pertinent part, state that “[tjhis subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.... The subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R. Civ. P. 23 advisory committee’s note (discussing Subdivision (b)(2) under 1996 Amendments). The advisory note does not state that a Rule (b)(2) class may not extend to cases in which a plaintiff seeks money damages. The advisory exclusion applies only to cases in which (i) the appropriate final relief (ii) relates exclusively or predominantly (iii) to money damages. In other words, if the plaintiffs seek relief of an in-junctive nature temporarily or not as the final relief for the whole class but instead seek a final relief relating exclusively or predominantly to money damages, a (b)(2) class would not be appropriate. In fact, a plain reading of the advisory note clearly indicates that money damages may be sought in a (b)(2) class action along with final injunctive relief so long as money damages are not be the exclusive or predominant relief sought.

Even if one disregards the text of Rule 23(b)(2) and focuses only on the Advisory Committee Note, the majority’s extrapolation of a rule therefrom, arbitrarily barring (b)(2) certification if the plaintiffs seek any compensatory damages to make individual members of the class whole, is unwarranted. The plain language of the note does not support the formulation of such a rule and its sweeping preclusion of certification of all cases involving compensatory or punitive damages conflicts with the specifications and the dear intent and concerns of the drafters of the rule.

The Advisory Committee pointed to, as the outstandingly clear or typical example or archetype of a case eligible for (b)(2) certification, “actions in the civil-rights field where a *429 party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Id. (collecting civil rights cases including Potts v. Flax, 313 F.2d 284 (5th Cir.1963) and Bailey v. Patterson, 323 F.2d 201 (5th Cir.1963), cert. denied, 376 U.S. 910 , 84 S.Ct. 666 , 11 L.Ed.2d 609 (1964)). In fact, “Rule 23(b)(2) was promulgated ... essentially as a tool for facilitating civil rights actions.” 5 MoüRE, supra, § 23.43[l][a], at 23-191. Under the majority’s bright-line rule, however, no consideration is given or importance attached to the fact that the case not only qualifies under the text of Rule 23(b)(2), but also is a civil rights action seeking to permanently enjoin unlawful discrimination. Cf. Jenkins v. United Gas Corp., 400 F.2d 28, 32-33 (5th Cir.1968) (“[The claim to remedy class-wide discriminatory employment practices] has extreme importance with heavy overtones of public interest.”); Young v. Pierce, 544 F.Supp. 1010, 1028 (E.D.Tex.1982)(“[W]hen the relief sought is injunctive relief, the benefits ... would inure not only to knowm class, but also to a future class of indefinite size.”); Note, Antidiscrimination Class Actions Under the Federal Rules of Civil Procedure: The Transformation of Rule 28(b)(2), 88 Yale L.J. 868 , 873 n.32 (“The desirability of an injunction to shield all putative class members against whom the discrimination was by its ‘very nature’ directed, provided the ‘most important’ reason for upholding class treatment in the (b)(2) sithation.”)(citing Potts v. Flax, 313 F.2d 284, 289 (5th Cir.1963) and Bailey v. Patterson, 323 F.2d 201, 206-07 (5th Cir.1963)). Instead, the majority decrees that if compensatory or punitive damages are prayed for, the case is automatically classified as “predominantly” related to money damages and therefore not certifiable under (b)(2). By the same token, the majority’s hard and fast rale distorts the meaning of Rule 23(b)(2) and the Advisory Committee Note so as to reclassify such a civil rights action as a (b)(3) situation, in which “class-action treatment is not as clearly called for as in” (b)(1) or (b)(2) situations. Fed. R. Civ. P. 23 advisory committee’s note (discussing Subdivision (b)(3)). If civil rights plaintiffs combine their otherwise (b)(2) class-worthy claim for injunctive relief with claims for compensatory or punitive damages, even if the damage claims are small and do not predominate, the rale formulated by the majority would deny (b)(2) class certification.

The Advisory Committee, in stating that the (b)(2) class “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages,” most certainly did not have in mind the incongruous meaning derived from the commentary by the majority, i.e. an absolute, inflexible rale precluding (b)(2) certification when the plaintiffs seek to recover compensatory or punitive damages regardless of the nature or significance of the class-wide final injunctive relief sought. In referring to a case in which “the appropriate final relief relates exclusively or predominantly to money damages” the Advisory Committee may have intended to exclude situations in which the plaintiffs either do not seek final injunc-tive relief for the whole class or do so only as a sham to obtain easier certification for what is truly only an action for money damages. Or the committee may have meant for the court to compare the quantity and quality of the injunctive and monetary remedies in the particular case to see which was predominant, a consideration that has been at least suggested by this court, see Jenkins, 400 F.2d at 32-33 . (“Considering that in this immediate field of labor relations what is small in principal is often larger in principle, [the claim to remedy class-wide discriminatory employment practices] has extreme importance with heavy overtones of public interest.”), and yet, would be precluded by the majority’s strict no plenary damages rule. 3

The assessment of the value of each remedy sought in a particular class action suit is problematic. However, the majority’s no-damage-claim-or-no-certification rule pre- *430 eludes even ballpark estimates of equitable and money damage remedies for purposes of determining whether potential damages predominate or rather are so small individually as to make the final injunctive relief sought more important, valuable, and predominant.

C.

The majority’s rule improperly prevents the exercise of informed, sound judicial discretion by a trial court to determine that in a particular Title VII class action suit the positive weight or value of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed." The majority’s judicially invented limitation upon the district court’s power is contrary to Rule 23, the congressional drafters’ and reviewers’ intent, and the well-established precedents of the Supreme Court and this court.

Rule 23(b)(2) provides that “[a]n action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition [] the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as á whole[.]” The text of the rule does not contain a predominance requirement or purport to grant a district court the discretion to deny certification if the prerequisites of (a) and (b)(2) are satisfied. The Advisory Committee Note that subdivision (b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages” implies an intention to vest the trial court with the discretion to deny certification in such cases. Rule 23(c)(1) provides that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Thus, the discretion to determine whether money damages predominate in a particular case, requiring that it not be maintained as a (b)(2) class action, is clearly delegated to the district court as part of its certification function. There is simply no justification for an appellate court to use the Advisory Committee Note as a pretext for formulating a judicial rule that nullifies the .district court’s legislatively granted authority or discretion in this respect. Cf. 1 Hebert B. Newberg & Alba Conte, New-berg on Class Actions § 4.14, at 4^49 (3d ed. 1992), (“No clear standards have or could be developed ... in this area so pregnant with judicial discretion.”) (emphasis added).

The Supreme Court, in Amchem Products, Inc. v. Windsor, - U.S. -, -, 117 S.Ct. 2231, 2235 , 138 L.Ed.2d 689 (1997), held that federal courts “lack authority to substitute for Rule 23’s certification criteria a standard never adopted by the rulemakers — that if a settlement is ‘fair,’ then certification is proper.” Thus, the majority exceeds the limits of its judicial power by substituting for the certification criteria a rule based on its own definition of terms in the Advisory Committee Note that in effect usurps the district court’s legislated authority to perform its certification function. For, as the Supreme Court admonished:

And, of overriding importance, courts must be mindful that the rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U.S.C. §§ 2073 , 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure “shall not abridge ... any substantive right.” § 2072(b).

Id.

*431 Our decisions and those of the Supreme Court have held that the district court, within the bounds of the Federal Rules, has broad discretion to decide whether to allow the maintenance of a class action; that inherent in that discretion is the district court’s duty to rigorously analyze each case to determine whether the certification prerequisites have been satisfied; and that the district court, when necessary, must probe behind the pleadings before coming to rest on the certification question. General Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160-161 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982); Gulf Oil Co. v.. Bernard, 452 U.S. 89, 100 , 101 S.Ct. 2193 , 68 L.Ed.2d 693 (1981). As this court, in Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir.1996), recently held:

A district court must conduct a rigorous analysis of the rule 23 prerequisites before certifying a class. General Tel. Co. v. Falcon, 457 U.S. 147, 161 , 102 S.Ct. 2364, 2372 , 72 L.Ed.2d 740 (1982); Applewhite v. Reichhold Chems., 67 F.3d 571, 573 (5th Cir.1995). The decision to certify is within the broad discretion of the court, but that discretion must be exercised within the framework of rule 23. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 , 101 S.Ct. 2193, 2200 , 68 L.Ed.2d 693 (1981).

We have found no other circuit court that has adopted a jurisprudential rule completely barring (b)(2) certification when compensatory damages are sought as well as final in-junctive relief. The majority cites Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.), cert. denied, 459 U.S. 971 , 103 S.Ct. 302 , 74 L.Ed.2d 283 (1982), as being in accord with its position. But the Ninth Circuit did not adopt such a rule in that case. Rather, it merely affirmed the trial court’s exercise of discretion in limiting the issues in a class action to claims for injunctive relief, although the plaintiffs had also prayed for compensatory damages. Id. at 928-29. In fact, if the textual prerequisite of Rule 23(a) and (b)(2) have been satisfied, many courts and leading commentators favor either leaving the trial court’s discretion untrammeled or using a variety of flexible and practical approaches that encourage the certification of some type of class even when money damages are sought along with final injunctive relief. 4 1 Newberg, supra, § 4.14 (discussing these approaches with approval and collecting cases therein); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1775, at 470 (2d ed. 1986) (“If the Rule 23(a) prerequisites have been met and in-junctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2). Those aspects of the case not falling within Rule 23(b)(2) should be treated as incidental.”).

The rule adopted by the majority in the present case exceeds the bounds of its authority because it usurps the district courts’ authority granted by Rule 23 (wdien a member of a class seeks to maintain a class action under (b)(2) for both final injunctive relief and compensatory or punitive damages) to rigorously analyze the case, probe behind the pleadings if necessary, and exercise its own discretion within the framework of the rules in determining whether the action is to be so maintained.

D.

By adopting an absolute rule against compensatory or punitive damages claims in (b)(2) class actions, the majority ignores the intent of the drafters of Rule 23 that class actions against discriminatory employment practices would be maintained under (b)(2). The majority’s rule, contrary to the intent of the drafters and Congress, threatens a drastic curtailment of the use of (b)(2) class actions in the enforcement of Title VII and other civil rights acts.

Courts routinely have certified Title VII class actions under Rule 23(b)(2) on the theo *432 ry that such suits, by their very nature, are directed at eliminating class-based discrimination. See, e.g., Kincade v. General Tire and Rubber Co., 635 F.2d 501 , 506 & n. 6 (5th Cir.1981). As the Third Circuit in Wetzel v. Liberty Mutual Insurance Company, 508 F.2d 239, 250 (3rd Cir.)(emphasis added), cert. denied, 421 U.S. 1011 , 95 S.Ct. 2415 , 44 L.Ed.2d 679 (1975), observed:

[A] Title VII suit against discriminatory hiring and promotion policies is necessarily a suit to end discrimination because of a common class characteristic, [such as race]. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir.1968). The conduct of the employer is actionable “on grounds generally applicable to the class,” and the relief sought is “relief with respect to the class as a whole.” The class, all sharing a common characteristic subjected to discrimination, is cohesive as to the claims alleged in the complaint. Thus, a Title VII action is usually particularly jit for (b)(2) treatment, and the drafters of Rule 23 specifically contemplated that suits against discriminatory hiring and promotion policies would be appropriately maintained under (b)(2). Advisory Committee, supra at 102.

This court and others have held that a (b)(2) class is appropriate in a Title VII suit where both final injunctive and monetary relief are granted. See Franks v. Bowman Transp. Co., 495 F.2d 398, 422 (5th Cir.1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir.1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th Cir.1974); Robinson v. Lorillard Corp., 444 F.2d 791, 801-802 (4th Cir.1971); Bowe, 416 F.2d at 720 . The basic nature of a Title VII suit has not been altered merely because the plaintiff may also pray for compensatory or punitive damages, if money damages are not the exclusive or dominant relief sought.

After the 1991 Civil Rights Act the thrust of a Title VII action continues to be society’s interest in eliminating discrimination and the individual’s interest in being made whole. H.R.Rep. No. 102-40(1), at 64-65, reprinted in 1991 U.S.C.C.A.N. 549, 602-03. Title VII plaintiffs may still seek extensive and systematic injunctive relief for claims that arise from a system of employment action that has been unifonnly imposed based on a characteristic common to all class members, such as race. Therefore, “[t]he conduct of the employer is still answerable ‘on grounds generally applicable to the class,’ and the primary relief sought is still ‘relief with respect to the class as a whole,’ ” Wetzel, 508 F.2d at 251 , even when nonpredominant money damages are sought. Cf. Thomas v. Albright, 139 F.3d 227 , 1998 WL 135494, 234-35 (D.C.Cir.1998) (assumption of cohesiveness underlying certification of a (b)(2) class is not necessarily destroyed when claims for injunctive relief are coupled with individual claims for monetary damages).

As this court stated in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir.1974):

All that need be determined is that conduct of the party opposing the class is such as makes such equitable relief appropriate. This is no limitation on the power of the court to grant other relief to the established class, especially where it is required by Title VII[.]

Citgo’s employment practices and policies were alleged to be such that final injunctive relief was appropriate. The text of Rule 23(b)(2) requires nothing more. The nature of those alleged racially discriminatory policies, and the nature of the class opposing those policies does not change merely because the plaintiffs also seek monetary damages if they are not the exclusive or predominant relief sought. Cf. Wetzel, 508 F.2d at 251 .

II.

Because I disagree fundamentally with the path followed by the majority and the district court in interpreting and applying Rule 23(b)(2), I see no need to address the particular Seventh Amendment problems that might arise under the application of their erroneous interpretation of the rule. If, upon remand, the district court were to certify a class action after applying the correct principles of law, care must be taken to accommodate the parties’ rights to a jury trial of the compensatory and punitive damages issues with the court’s trial of the injunctive and declaratory *433 relief issues. Under the circumstances of a particular ease, this task may be difficult, but it is by no means impossible in every instance when proper safeguards are used.

Title VII class actions for disparate treatment have traditionally been conducted in two stages. In Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-44 (5th Cir.1974), this court explained the bifurcation of a Title VII class action as follows:

A Title VII class action presents a bifurcated burden of proof problem. Initially, it is incumbent on the class to establish that an employer’s employment practices have resulted in cognizable deprivations to it as a class. At that juncture of the litigation, it is unnecessarily complicating and cumbersome to compel any particular discriminatee to prove class coverage by showing personal monetary loss. What is necessary to establish liability is evidence that the class of black employees has suffered from the policies and practices of the particular employer. Assuming that the class does establish invidious treatment, the court should then properly proceed to resolve whether a particular employee is in fact a member of the covered class, has suffered financial loss, and thus entitled to back pay or other appropriate relief.

Id. at 443-44 . See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977); Franks v. Bowman Transp., 424 U.S. 747, 772 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976).

This approach allows the court and the jury to focus on the employment practices of the employer as they affect the defendant’s liability to the class during the liability stage. Cf. 6 Newberg, supra, § 24.122, n. 1000 (citing Swint v. Pullman-Standard, 539 F.2d 77 (5th Cir.1976); United States v. United States Steel Corp., 520 F.2d 1043 (5th Cir.1975)). If the class does establish to the satisfaction of the jury that policies or practices of discrimination exist, the jury may then resolve in a stage II proceeding whether individual class members are entitled to receive compensatory or punitive damages and the quantum of any award. Cf. Id.

Because equitable relief and legal claims may depend on common issues of fact, the court must allow the jury to determine in stage I the issue of legal liability to the class before the court determines whether the class is entitled to injunctive or declaratory relief. See Dairy Queen v. Wood, 369 U.S. 469, 479-480 , 82 S.Ct. 894 , 8 L.Ed.2d 44 (1962). Also, in stage II, the court must clearly instruct the jury that it is not to revisit the issues decided by the jury in the first phase as to whether the defendant had an employment policy of unlawful discrimination but must decide only the issues of whether individual plaintiffs are entitled to compensatory or punitive damages. See Gasoline Products Co., Inc. v. Champlin Refining Co., 283 U.S. 494 , 51 S.Ct. 513 , 75 L.Ed. 1188 (1931)

Because the issue of whether an individual employee has been damaged by the employer’s intentional discriminatory conduct is separate and distinct from the issue of whether the employer had an unlawful discriminatory practice or policy so that, with adequate instructions and guidance by the court, a trial of it alone may be had without injustice, the Seventh Amendment does not prohibit the separate jury trials of those issues. See id. That is, the issues may be divided between separate trials if done “in such a way that the same issue is [not] reexamined by different juries.” In re Rhone-Poulenc, 51 F.3d 1293, 1303 (7th Cir.1995); see also Castano v. American Tobacco Co., 84 F.3d 734, 750 (5th Cir.1996)(“Thus, Constitution allows bifurcation of issues that are so separable that the second jury will not be called upon to reconsider findings of fact by the first.”); Alabama v. Blue Bird Body Co., 573 F.2d 309, 318 (5th Cir.1978) (“[I]nherent in the Seventh Amendment guarantee of a trial by jury is the general right of a litigant to have only one jury pass on a common issue ... ”).

In other words, the bifurcated phases of a Title VII class action contemplate separate and distinct issues. The first stage of a Title VII class action focuses exclusively on class-wide claims, Price Waterhouse v. Hopkins, 490 U.S. 228 , 245 n. 10, 109 S.Ct. 1775 , 104 L.Ed.2d 268 (The focus in Stage I is “ ‘not [ ] on [the] individual hiring decisions, but on a pattern of discriminatory decisionmaking.’ ”) (quoting Cooper v. Federal Resene Bank of Richmond, 467 U.S. 867, 876 , 104 S.Ct. 2794 , 81 L.Ed.2d 718 (1984)), whereas the second stage focuses on individual claims.

*434 At the first stage the class must establish “that discrimination against a protected group was essentially the employer’s ‘standard practice,’ there has been harm to the group and injunctive relief is appropriate.” Id. at 266, 109 S.Ct. 1775 (O’Connor, J, concurring); see also United States Steel Corp., 520 F.2d at 1053 ; 6 Newberg, supra, § 24.123. Once it has been shown that the employer maintained a policy or practice that unlawfully discriminates in the first stage, that issue will not be revisited in the second stage. See International Brotherhood of Teamsters, 431 U.S. at 361-62 , 97 S.Ct. 1843 . Rather, at the second stage the issue is whether individual employment decisions were made pursuant to any such procedure or policy. Id. at 362 , 97 S.Ct. 1843 ; Manual FOR Complex Litigation, third § 33.54 (1995)(“Individual [class members] ... are permitted to present their individual claims of injury.”). Therefore, the issues to be decided in the two stages — class-wide liability at Stage I and individual claims at Stage II— are separate and distinct and the second jury will not reexamine issues decided by the first jury. Nor does the fact that some of the same evidence may be presented in both phases make the bifurcation unconstitutional, for the “prohibition is not against having two juries review the same evidence, but rather against having two juries decide the same essential issues.” In re Innotron Diagnostics, 800 F.2d 1077, 1086 (Fed.Cir.1986); see also In re Paoli R.R. Yard, 113 F.3d 444 , 452-53 n. 5 (3d Cir.1997).

In summary, I respectfully dissent from the majority opinion because it adopts an unauthorized and erroneous interpretation of Rule 23(b)(2), affirms the district court decision based on the same error of law, and raises constitutional questions that would not be encountered under a correct interpretation and application of the rule.

Before JOLLY, SMITH and DENNIS, Circuit Judges.

. The majority is forced to create an exception to its "incidental” damages rule in order to preserve our case law permitting (b)(2) certifications when both injunctive and monetary relief (back pay) were sought under Title VII. See, e.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.1974). Although back pay has often been characterized as an equitable remedy for practical purposes, functionally there is little to distinguish back pay awards from compensatory damages. Both require complex individualized determinations, Johnson v. Goodyear Tire and Rubber Co., 491 F.2d 1364, 1375 (5th Cir.1974) ("There should be a separate determination on an individual basis as to who is entitled to recover! ] [back pay] and the amount of such recovery.”); Shipes v. Trinity Indust., 987 F.2d 311 , 317 (5th Cir.) (”[F]ashioning a class-wide back pay award is exceedingly complex and difficult ...."), cert. denied, 510 U.S. 991 , 114 S.Ct. 548 , 126 L.Ed.2d 450 (1993), of t he sort eschewed by the majority's new "incidental” damages test. Moreover, the equitable characterization of back pay as the only basis for allowing back pay award in a (b)(2) case was explicitly rejected by the court in Franks v. Bowman Transp., 495 F.2d 398, 422 (5th Cir.1974) ("Even if back pay is considered as equivalent to damages [and not equitable] under Rule 23, in this case back pay is not the exclusive or predominant remedy sought.”). Even with the back pay exception, the majority’s formulation runs afoul of our precedent which has held that compensatory and punitive damages may be recovered in a (b)(2) class action in situations where they would not be "incidental” as so defined by the majority. See, e.g., Parker v. Local Union No. 1466, 642 F.2d 104, 107 (5th Cir.1981).

. For example, the majority opinion states: "Clearly, after Patterson , compensatory damages under Title VII and 42 U.S.C. § 1981 are not incidental to class-wide injunctive or declaratory relief for discrimination.” slip op. at 29. "[B]e-ing dependent on non-incidental compensatory damages, punitive damages are also non-inciden-lal[.]”

. The latter interpretation of the Advisory Committee's note is also suggested by a court's approach in considering the propriety of its certification of a (b)(2) class action in evaluating an objection to settlement. In Stewart v. Rabin, 948 F.Supp. 1077 (D.D.C.1996), aff'd, No. 96-5377, slip, op., 124 F.3d 1309 (D.C.Cir. May 22, 1997) (unpublished), involving a class of Treasury Department Special Agents, the court concluded that the equitable relief predominated. It elaborated:

Although the compensatory damage award is substantial, $4,025,000, it constitutes an average of less than $16,500 for each member of *430 the class, and no class member is guaranteed any award form the Backpay or Compensatory Damage Funds unless h/s or she provides evidence of discrimination and resulting damage. Weighed against the possible receipt of $16,-500 is each class member’s right to participate in the individualized equitable relief procedure, receive promotions, reinstatement, new or adjusted performance evaluations, adjusted personnel records, including awards, lateral changes of assignments, correction or removal of disciplinary action, and a host of other equitable measures. Any one of these equitable remedies could be worth more than $16,500 to a Special Agent for the life of his or her career. Cumulatively, they can make or break a Special Agent’s career.

Id. at 1092.

. For a sensible approach lo certification of civil rights class actions under Subsection (b)(2) when claims for injunctive relief are coupled with individual claims for damages see Thomas v. Albright, 139 F.3d 227 (D.C.Cir.1998). See also 1 Newberg, supra, § 4.41, at 4-51 to 52(noting that courts have employed one of four options either (1) limiting the certification to certain issues, (2) certifying the claims for injunctive relief under Subseclion (b)(2) and the damage claims under Subsection (b)(3); (3) certifying the entire class under Subsection (b)(2) and reconsidering the certification category if the class is successful at the liability stage; or (4) certifying certain issues and treating other issues as incidental ones to be determined separately after liability to the class has been decided.).