King v. UA Local 91

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RONALD KING, et al., )

)

Plaintiffs, )

)

v. ) Case No. 2:19-CV-01115-KOB

)

UA LOCAL 91, et al., )

)

Defendants. )

MEMORANDUM OPINION

This employment-discrimination case comes before the court on a motion to dismiss filed

by Defendants Day and Zimmermann, Inc. and Day and Zimmermann NPS, Inc. (collectively,

“D&Z”). (Doc. 35.) The Amended Complaint in this case alleges that D&Z and two other

Defendants violated Title VII of the Civil Rights Act of 1964 by discriminating against five

named Plaintiffs and a putative class of Defendants’ black employees. The instant motion asks

the court to both dismiss the Amended Complaint and decline to certify Plaintiffs’ proposed

class. For the reasons explained below, the court WILL GRANT D&Z’s motion.

Background

Defendant D&Z is a nationwide engineering, construction, and munitions company that

also “specializes in the general maintenance of power and industrial facilities, including nuclear

and fossil electric generating plants.” (Doc 30 at 4.) When one of D&Z’s client’s power plants

experiences an outage or undergoes routine maintenance, D&Z sends Union-referred employees

to the power plant to work on the plant’s equipment. D&Z “operates on client property and

conducts hires/layoffs of its employees for temporary periods of time which are usually tied

directly to plant outages and shutdowns.” Id. D&Z is generally contractually obligated to hire

Union members for “craft positions,” such as pipefitters, welders, boilermakers, carpenters, and

bricklayers. And D&Z hires craftsmen for work on power plants in Alabama through referrals

from the two Union Defendants in this case: United Association of Journeymen and Apprentices

of the Plumbing and Pipefitting Industry of the United States and Canada as well as its northern-

Alabama affiliate, UA Local 91. The employment relationships between the Union-referred

workers and D&Z is inherently temporary, as the contracts “typically last[] several weeks or

months.” Id.

The five named Plaintiffs are journeymen pipefitters and welders who have been

members of Defendant UA Local 91 for more than ten years; each has intermittently worked for

D&Z on maintenance and construction sites on properties owned and operated by Southern

Company (including its subsidiaries Alabama Power, Georgia Power, Mississippi Power, and

Southern Power). “Plaintiffs obtained such positions with Day and Zimmermann and other

contractors pursuant to the Defendant Unions’ hiring hall relationships with the Southern

Company and/or other companies who utilize the Defendant Unions’ hiring hall referral system.”

(Id. at 6.) All five named Plaintiffs are black males.

According to the Amended Complaint, the referral and selection process begins with

D&Z submitting a requisition form called a “manpower request” to the local Union. Id. “Once

the trade unions receive the manpower requests, their respective hiring halls nominate the

particular union members and tradesmen to be referred to Day and Zimmermann for that outage

by transmitting a ‘referral list.’” Id. The Union also nominates foremen and other supervisory

personnel for each job. “If the union does not nominate a member for referral to a foreman,

general foreman or other leadership position, Day and Zimmermann may ‘step-up’ someone for

such jobs. Such ‘step-up’ decisions are made by Day and Zimmermann’s site manager or the site

manager and a craft supervisor.” (Id. at 7.)

Although the Union Defendants referred—and D&Z selected—both leadership and

laborer positions in ad hoc fashion for each job, Plaintiffs allege that D&Z employed three

selection criteria in filling leadership positions when the Union failed to nominate anyone: “prior

experience,” “leadership,” and “absenteeism.” Id. Plaintiffs allege that over the last ten years, the

number of black foremen has been “substantially disproportionate” to the number of eligible

applicants. (Id. at 9.) Plaintiffs allege that black Union members were caught in a cycle of

exclusion because Defendants used two of the three criteria—“prior experience” and

“leadership”—to perpetually refer and select members of a mostly white in-group. Furthermore,

Plaintiffs allege that Defendants engaged in a “word-of-mouth” selection practice “without

posting or announcing the opportunity to apply for such positions, and without providing an

application or competitive bidding and selection process.” (Id. at 13.) Plaintiffs also allege that

Defendants created a culture of nepotism, as white Union members’ family members often

received positions over equally qualified black Union members. Ultimately, “[d]espite Plaintiffs’

qualifications and interest, they were not referred or selected for any of the leadership and/or

supervisory positions or opportunities they were interested in filling.” (Doc. 30 at 16.)

Two of the named Plaintiffs, Chris Samuel and Nolan Jones, also allege that Defendants

engaged in unlawful retaliation. Specifically, Plaintiffs allege that D&Z (a) removed Mr. Samuel

from his newly attained foreman position shortly after he filed a discrimination action with the

Equal Employment Opportunity Commission (Doc. 30 at 16–18); and (b) fired Mr. Jones from

his job as “a pretext for racial discrimination and retaliation.” (Id. at 18.)

Based on these alleged facts, Plaintiffs bring the following three claims under Title VII:

(I) disparate impact, (II) disparate treatment, and (III) retaliation. Plaintiffs assert these claims on

behalf of themselves and a putative class defined as follows:

all current and former African American members of the United Association of

Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United

States and Canada and/or its local union and affiliate, Local 91, during the

limitations period applicable to this case, and all current and former African

American pipefitters and welders employed by Day and Zimmermann during that

same limitations period, including, without limitation, all current and former

African American journeymen and apprentice pipefitters and welders.

(Id. at 19.)

Plaintiffs seek the following remedies for themselves, personally, and on behalf of the

putative class: (1) a declaratory judgment that Defendants systemically discriminated against

black persons by limiting their employment to inferior jobs; (2) a permanent injunction against

continuing discrimination; (3) a “restructuring of Defendants’ selection procedures so that

African Americans are able to learn about and fairly compete in the future for better jobs

traditionally enjoyed by white employees”; (4) a “restructuring of Defendants’ referral,

recruitment and selection procedures to prevent further racial discrimination and disparate

impact” (id.); (5) “[a]n Order restoring the named Plaintiffs and the class they seek to represent

to the jobs they would now be occupying but for Defendants’ discriminatory practices”; (6) “[a]n

Order requiring Defendants to initiate and implement systems of assigning, training, transferring,

compensating, and promoting African American employees in a non-discriminatory manner”; (7)

“[a]n Order directing Defendants to adjust the wages and benefits of the named Plaintiffs and the

class they seek to represent to the level that they would now be enjoying but for Defendants’

discriminatory practices”; (8)”[a]n Order requiring Defendants to initiate and implement

programs that provide (i) equal employment opportunities for African American members and

employees; (ii) remedy the effect of Defendants’ past and present unlawful employment

practices; and (iii) eliminate the continuing effects of the discriminatory and retaliatory practices

described above”; (9) “[a]n Order establishing a task force on equality and fairness to determine

the effectiveness of the foregoing programs and remedies, including, but not limited to

monitoring and reporting compliance and effectiveness of such programs and remedies”; and

(10) damages, attorneys’ fees, and costs. (Doc. 30 at 20, 33, 34.)

Plaintiffs filed the operative Amended Complaint on November 13, 2019. (Doc. 30.) The

two Union Defendants each filed answers to the Amended Complaint on December 18, 2019

(Docs. 34, 36). D&Z filed the instant motion to dismiss on December 18, 2019 (Doc. 35), to

which Plaintiffs responded on January 22, 2020 (Doc. 41) and D&Z replied on January 29, 2020.

(Doc. 42.)

Although the Parties discuss multiple issues in their briefing, the three central matters

concern (a) whether the Amended Complaint is a shotgun pleading; (b) whether the pleadings

and briefs regarding the instant motion provide the court with sufficient information to consider

class certification; and (c) whether the Amended Complaint plausibly alleges a certifiable class.

Standards

D&Z brings the instant motion primarily under Federal Rule of Civil Procedure 12(b)(6).

A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint, and in this case,

D&Z contends that Plaintiffs’ class claims are legally insufficient because the Amended

Complaint fails to plausibly allege the required elements of class claims under Federal Rule of

Civil Procedure 23.

The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting and explaining its decision in Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be plausible on its face, the claim must

contain enough facts that “allow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although “[t]he plausibility standard

is not akin to a ‘probability requirement,’” the complaint must demonstrate “more than a sheer

possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are

merely consistent with a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

The Supreme Court has identified two working principles for the district court to use in

applying the facial plausibility standard. The first principle is that, in evaluating motions to

dismiss, the court must assume the veracity of well-pled factual allegations; however, the court

does not have to accept as true legal conclusions even when “couched as [] factual allegation[s]”

or “threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.” Iqbal, 556 U.S. at 678. The second principle is that “only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus, under prong one, the

court determines the factual allegations that are well-pled and assumes their veracity, and then

proceeds, under prong two, to determine the claim’s plausibility given the well-pled facts. That

task is “context-specific” and, to survive the motion, the allegations must permit the court based

on its “judicial experience and common sense . . . to infer more than the mere possibility of

misconduct.” Id. If the court determines that well-pled facts, accepted as true, do not state a

claim that is plausible, the claim must be dismissed. Id.

In a footnote, D&Z also argues in the alternative that the court should strike or dismiss

Plaintiffs’ class allegations under Federal Rules of Civil Procedure 12(f) or 23(d)(1)(D). (Doc.

35 at 16.) Rule 12(f) permits a court, on its own or pursuant to a motion, to “strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” And Rule 23(d)(1)(D) gives a court authority to “require that the pleadings be amended

to eliminate allegations about representation of absent persons and that the action proceed

accordingly.” D&Z concludes, without expressly tying either Rule 12(f) or Rule 23(d)(1)(D) to

the instant facts, that “whether analyzed as a Rule 12(f) or Rule 23(d) motion to strike, or a Rule

12(b)(6) motion to dismiss, the DZ Defendants submit that the result is the same: Plaintiffs’ class

claims should not proceed past this Motion.” (Doc. 35 at 16.)

Because, as explained below, Plaintiffs’ class claims fail under Rule 12(b)(6) because the

Amended Complaint does not plausibly allege facts that satisfy Rules 23(a) and 23(b), the court

need not consider D&Z’s alternative arguments under Rule 12(f) or Rule 23(d).

Lastly, D&Z’s contention that the Amended Complaint is a shotgun pleading requires the

court to apply Federal Rules of Civil Procedure 8 and 10. Shotgun pleadings often violate Rule 8,

which requires that complaints provide defendants with notice of each claim as well as the basic

facts that support each claim. Grimsley v. Marshalls of MA, Inc., 284 F. App’x 604, 610 (11th

Cir. 2008). And Rule 10, which regulates the organization of pleadings, works in conjunction

with Rule 8 “so that [the plaintiff’s] adversary can discern what he is claiming and frame a

responsive pleading.” Id. See also Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313,

1320 (11th Cir. 2015) (“‘Shotgun’ pleadings, calculated to confuse the ‘enemy,’ and the court, so

that theories for relief not provided by law and which can prejudice an opponent’s case,

especially before the jury, can be masked, are flatly forbidden by the [spirit], if not the [letter], of

[Rules 8 and 10]”) (citation omitted). In short, the hallmark of a shotgun pleading—whether

intentionally crafted or shoddily drafted—is confusion among both defendants and trial courts.

Analysis

The Parties’ briefing in this case reveals three primary disagreements for the court to

resolve: (a) whether the Amended Complaint is an impermissible shotgun pleading that violates

Fed. R. Civ. P. 8; (b) whether a pre-discovery dispositive motion presents an appropriate

procedural vehicle for the court to evaluate certification of Plaintiffs’ proposed class; and (c)

whether the Amended Complaint plausibly alleges all elements of class certification pursuant to

Fed. R. Civ. P. 23. The court addresses each argument below.

Shotgun Pleading

D&Z’s motion to dismiss argues that Plaintiffs’ Amended Complaint is a shotgun

pleading. (Doc. 35 at 30–33.) The Eleventh Circuit recognizes four types of shotgun pleadings.

The first type includes “multiple counts where each count adopts the allegations of all preceding

counts”; the second includes “conclusory, vague, and immaterial facts not obviously connected

to any particular cause of action”; the third type fails to separate “into a different count each

cause of action or claim for relief”; and the fourth asserts “multiple claims against multiple

defendants without specifying which of the defendants are responsible for which acts or

omissions, or which of the defendants the claim is brought against”). Weiland v. Palm Beach

Cty. Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015). “The unifying characteristic of all

types of shotgun pleadings is that they fail to one degree or another, and in one way or another,

to give the defendants adequate notice of the claims against them and the grounds upon which

each claim rests.” Id. See generally Fed. R. Civ. P. 8, 10.

In this case, the court agrees with D&Z that the Amended Complaint is an impermissible

shotgun complaint because it features “vague,” non-specific facts and levels “multiple claims

against multiple defendants without specifying which of the defendants are responsible for which

acts or omissions.” See Weiland, 792 F.3d at 1323.

Plaintiffs sue four Defendants, broken down into two groups: two Union Defendants and

two D&Z Defendants. At certain points, the Amended Complaint clearly articulates which facts

apply to which Defendant or group of Defendants. For example, Plaintiffs specifically assert that

D&Z’s site managers and craft supervisors considered certain selection criteria when “stepping

up” foremen (Doc. 30 at 7), and that the Union Defendants (but apparently not D&Z) displayed

the “Confederate Flag as an official part of the Union’s meetings.” Id. at 12. But such clarity

within the Amended Complaint is the exception rather than the rule.

Most notably, the Amended Complaint regularly refers to “Defendants” without

specifying which of the four Defendants (or group of Defendants) committed the alleged wrong.

(See, e.g., Doc. 30 at 3, 10, 12, 13, 16, 22, 24, 25, 26, 27, 28, 33). Plaintiffs’ practice of referring

to all Defendants, generally, is especially confusing given that Plaintiffs allege that the two

groups of Defendants performed mostly distinct, non-overlapping functions. For example,

Plaintiffs allege that “Defendants followed a custom and practice of reserving and/or filling such

leadership and supervisory positions for Caucasians by refusing to post or announce vacancies.”

(Doc 30 at 13.) But, as Plaintiffs describe the referral and selection process, D&Z had no

anticipatory role to fill any position except to send a manpower request to the local Union, and

D&Z employees only “stepped up” foremen when the Union failed to do so. (Id. at 6–7.)

Accordingly, the court cannot reconcile Plaintiffs’ apparent contention that all Defendants,

generally, should be held liable for illegally “reserving,” “posting,” and “announcing” vacancies

over which the D&Z Defendants had no input or control.

The Amended Complaint also pervasively features passive-voice sentences that further

obscure the identities of the alleged wrongdoers. See, e.g., Doc. 30 at 9 (“referrals or

appointments to foreman and general foreman were substantially disproportionate”); (“referrals

and appointments were limited”); (“African Americans were . . . denied the opportunity”); 10

(“Plaintiffs and the class they represent were denied the opportunity”); (“Defendants’ referrals

and appointments of foremen and general foremen were also based on nepotism practices”); and

14 (“African American union members and employees were disproportionately excluded.”)) And

on the several occasions when the Amended Complaint specifically names individual foremen

who Defendants referred and selected, the Plaintiffs fail to specify which Defendant(s) placed the

individuals in their positions. (Id. at 9–11.)

Plaintiffs’ proposed class definition further exacerbates the confusion about which

alleged facts apply to whom. Plaintiffs define the class as “all current and former African

American members of the [Union], during the limitations period applicable to this case, and all

current and former African American pipefitters and welders employed by Day and

Zimmermann during that same limitations period, including, without limitation, all current and

former African American journeymen and apprentice pipefitters and welders.” (Doc. 30 at 19.)

Despite Plaintiffs’ contention that the Amended Complaint “does not allege two separate

classes, one for the Union Defendants and a separate one for DZ” (Doc. 41 at 39), the class

definition appears to describe two discrete sets of persons: (1) black Union members and (2)

black welders and pipefitters employed by D&Z. Although the Venn diagram of these two sets

likely features significant overlap (and one set may in fact be a strict subset of another), the court

does not believe, and Plaintiffs have not represented, that the two sets are identical. The lack of

uniformity between these two sets, along with the fact that both groups of Defendants play

different roles within the referral and selection process, creates confusion not only regarding the

Defendants’ alleged actions, but also regarding persons within the proposed class of Plaintiffs

and their relationships with the Defendants.

The Amended Complaint’s lack of clarity pervades not only allegations supporting

Plaintiffs’ disparate impact and disparate treatment claims (Counts I and II, respectively), but

also their retaliation claim (Count III). In places, the Amended Complaint seems to allege that

the retaliation claim applies not only to the two named Plaintiffs who were allegedly terminated

pursuant to an EEOC claim, but also to the putative class as a whole. See, e.g., Doc. 30 at 18–19

(describing the alleged retaliation against the two named Plaintiffs as a practice that “deprive[s]

Plaintiffs and other African Americans of the opportunity to work in a race neutral environment

and to supervise and/or be supervised by African Americans on the same basis as non-African

Americans. Such pattern or practice of racial discrimination adversely affects me and other

African American members/employees, applicants and potential members/employees as a class

on an ongoing basis”) (emphasis added).

Because not all potential Plaintiffs, as described in the class definition, were or are

associated with both groups of Defendants; because not all claims apply to both groups of

Defendants; and because the Amended Complaint is vague as to which allegations apply to

which Parties, the court WILL DISMISS without prejudice as to D&Z only the Amended

Complaint as an impermissible shotgun pleading.

The Timing of Class Certification

In response to the instant motion, Plaintiffs contend that a “motion to dismiss on the

pleadings is not the proper means to deciding whether [a plaintiff has] established the elements

of Rule 23 necessary to certify a class.” (Doc. 41 at 13.) Instead, Plaintiffs argue, courts should

permit discovery to determine whether a class is certifiable.

The relevant procedural rule gives district courts broad discretion concerning when to

address the class certification issue. Federal Rule of Civil Procedure 23(c)(1)(A) states that, “[a]t

an early practicable time after a person sues or is sued as a class representative, the court must

determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A).

This rule “demands an early consideration of class certification, including its practical

implications for case manageability.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1279 (11th

Cir. 2009).

To support the general assertion that discovery is always necessary for a district court to

properly evaluate class certifiability, Plaintiffs rely on cases such as Herrera v. JFK Med. Ctr.,

L.P., 648 Fed. App’x. 930, 934 (11th Cir. 2016), in which the Eleventh Circuit opined that class

certification “usually should be predicated on more information than the complaint itself affords.

The court may, and often does, permit discovery relating to the issues involved in

maintainability, and a preliminary evidentiary hearing may be appropriate or essential.” Id.

(internal citations omitted; emphasis added). But the Circuit Court’s use of the qualified

language “usually,” “may,” and “often” clearly demonstrates that class-related discovery is not

required for every complaint that proposes a class action. See also Gen. Tel. Co. of the Sw. v.

Falcon, 457 U.S. 147, 160 (1982) (“the class determination generally involves considerations

that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action”)

(emphasis added).

Whether a district court should address class certification pursuant to a motion to dismiss

turns in large part on the facial plausibility of the putative class action complaint. As the

Supreme Court explained, “[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

plaintiff’s claim, and sometimes it may be necessary for the court to probe behind the pleadings

before coming to rest on the certification question.” Id.

If a complaint plausibly alleges that class certification is appropriate, the district court

should hold an evidentiary hearing or permit discovery to ascertain the propriety of certifying the

proposed class. Huff v. N.D. Cass Co. of Ala., 485 F.2d 710, 713 (5th Cir. 1973). See Bonner v.

Prichard, 661 F. 2d 1206, 1209 (adopting all decisions of the former Fifth Circuit announced

prior to October 1, 1981, as binding precedent in the new Eleventh Circuit). But if a complaint

facially fails to plausibly allege the necessary elements of class certification, pursuing class-

related discovery is unnecessary. See Bohannan v. Innovak Int’l, 318 F.R.D. 525, 529 (M.D. Ala.

2016) (“nothing in Rule 23 precludes the consideration of class certification issues in the context

of a motion to dismiss. . . . The relevant inquiry here is whether the allegations are sufficient to

plausibly support the existence of an ascertainable class.”) See also Stepanovich v. City of

Naples, 728 F. App’x 891, 903 (11th Cir. 2018) (“[A]voiding the imposition of discovery on

facially implausible claims is one of the key functions of 12(b)(6)”) (citing Twombly, 550 U.S. at

558).

Plaintiffs also cite to Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008) for

the proposition that “[a]n evidentiary hearing is particularly necessary when the Defendant, as

here, argues facts that are not part of the record and are the opposite of those in the Complaint.”

(Doc. 41 at 15.) Although Plaintiffs accurately articulate one of the holdings in Mills, they

misconstrue D&Z’s motion to dismiss and accompanying brief. The Eleventh Circuit in Mills

indeed determined that evidentiary hearings are usually necessary when the parties disagree over

basic facts; specifically, the Circuit Court held that a district court should not have denied class

certification pursuant to a motion to dismiss in large part because the “vastly differing claims of

the parties” in the pleading documents demonstrated the need for limited discovery. Mills, 511

F.3d at 1311. But just as factual disputes heighten the need for class-related discovery, the

absence of disputed facts diminishes the need for such discovery.

Here, and contrary to Plaintiffs’ assertions, D&Z does not contest any facts presented in

the Amended Complaint. In fact, D&Z expressly states as much, agreeing that, for the purposes

of the motion, D&Z “accept[s] as true the relevant factual allegations of the Amended

Complaint” and then summarizing Plaintiffs’ basic facts and allegations. (Doc. 35 at 12–15.) Nor

did D&Z introduce any additional facts in its briefs supporting the instant motion to dismiss.

(Docs. 35, 42.) So unlike Mills, which featured “vastly differing claims” as to the facts, the

absence of contested facts in this case only further underscores the propriety of evaluating class

certification at the motion to dismiss stage. The court further notes that the court in Mills re-

affirmed that, “[i]n some instances, the propriety vel non of class certification can be gleaned

from the face of the pleadings.” Mills, 511 F.3d at 1309.

In this case, the relevant issue is whether Plaintiffs have adequately alleged a certifiable

class under Federal Rule of Civil Procedure 23. See Hudson v. Delta Air Lines, 90 F.3d 451, 457

(11th Cir. 1996) (“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.”) Because neither discovery nor an evidentiary

hearing would help answer this question, the court finds that “the issues are plain enough from

the pleadings”—as discussed below—to address the matter of class certification pursuant to the

instant motion to dismiss. See Falcon, 457 U.S. at 160.

Class Certification under Rule 23

The court begins by recognizing that “the presumption is against class certification

because class actions are an exception to our constitutional tradition of individual litigation.”

Brown v. Electrolux Home Prods., 817 F.3d 1225, 1233 (11th Cir. 2016). Based on this

presumption, the initial burden of establishing a certifiable class rests on the parties advocating

for the class. Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975) (rev’d on other grounds,

Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 479 n.2 (1978)). See Bonner, 661 F. 2d at

1209 (adopting for the new Eleventh Circuit all former Fifth Circuit precedent). Plaintiffs satisfy

this burden only if they meet all four requirements of Federal Rule of Civil Procedure 23(a) and

at least one alternative requirement of Federal Rule of Civil Procedure 23(b). Rutstein v. Avis

Rent-A-Car Sys., 211 F.3d 1228, 1233 (11th Cir. 2000).

The four requirements for class certification under Rule 23(a) are (1) numerosity, (2)

commonality, (3) typicality, and (4) adequacy. Calderone v. Scott, 838 F.3d 1101, 1104 (11th

Cir. 2016). And the relevant alternatives under Rule 23(b) permit class certification either if “the

party opposing the class has acted or refused to act on grounds that apply generally to the class,

so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

class as a whole,” Fed. R. Civ. P. 23(b)(2), or if “questions of law or fact common to class

members predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3).

D&Z’s motion to dismiss contends that Plaintiffs have failed to plausibly allege

commonality, typicality and adequacy under Rule 23(a) and both alternatives under Rule 23(b).

The Supreme Court explained that the “commonality and typicality requirements of Rule

23(a) tend to merge. Both serve as guideposts for determining whether under the particular

circumstances maintenance of a class action is economical and whether the named plaintiff’s

claim and the class claims are so interrelated that the interests of the class members will be fairly

and adequately protected in their absence.” General Telephone Co. of Southwest v. Falcon, 457

U.S. 147, 157–58 (1982). Often, courts will either consider commonality and typicality

simultaneously or analyze commonality first and then find that addressing the remaining

elements under Rule 23(a) is unnecessary. See, e.g., Hudson v. Delta Air Lines, 90 F.3d 451, 456

(11th Cir. 1996); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011).

The court follows this general template here and finds that, for the reasons explained

below, because Plaintiffs fail to satisfy the commonality element under Rule 23(a)(2), the court

need not separately analyze typicality or adequacy under Rules 23(a)(3) and 23(a)(4). See Wal-

Mart, 564 U.S. at 349 (“In light of our disposition of the commonality question, however, it is

unnecessary to resolve whether respondents have satisfied the typicality and adequate-

representation requirements of Rule 23(a).”) The court will analyze Rule 23(a)(2) commonality,

as well as the two alternative requirements under Rule 23(b), in turn.

a. Rule 23(a)(2) Commonality

Federal Rule of Civil Procedure 23(a)(2) requires a putative class to demonstrate that

“there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The U.S.

Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) provides the

paradigmatic explanation of Rule 23(a)(2)’s contours, and the Parties in this case devote almost

as much space in their briefs arguing over Wal-Mart than all the other cited cases combined. For

this reason, the court will describe the facts and holdings of Wal-Mart at length.

Wal-Mart featured three named plaintiffs who sued on behalf of themselves and a

putative nationwide class of roughly 1.5 million then-current and former female employees of

Wal-Mart; the plaintiffs alleged that the retail giant violated Title VII of the Civil Rights Act of

1964 because local managers disproportionately exercised their pay and promotion discretion in

favor of men, which created an unlawful disparate impact on female employees. Wal-Mart, 564

U.S. at 343. The plaintiffs also argued that Wal-Mart’s refusal to control its managers’ discretion

constituted unlawful disparate treatment. The district court certified the class—later affirmed by

a circuit court—defined as “all women employed at any Wal-Mart domestic retail store at any

time since December 26, 1998 who have been or may be subjected to Wal-Mart’s challenged pay

and management track promotions policies and practices.” Id. at 346.

The plaintiffs asserted “that a strong and uniform ‘corporate culture’ permit[ted] bias

against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one

of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim

of one common discriminatory practice.” Id. at 345. To demonstrate questions of law and fact

common to all the women of Wal-Mart, plaintiffs provided “statistical evidence about pay and

promotion disparities between men and women at the company, anecdotal reports of

discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a

sociologist.” Id.

The Supreme Court granted certiorari in large part to clarify the meaning of commonality

under Rule 23(a)(2). Id. at 349. The Court began its opinion by explaining that the commonality

element requires all putative class members to share not only common questions of law or fact,

but also common claims. “[C]laims must depend upon a common contention—for example, the

assertion of discriminatory bias on the part of the same supervisor. That common contention,

moreover, must be of such a nature that it is capable of classwide resolution—which means that

determination of its truth or falsity will resolve an issue that is central to the validity of each one

of the claims in one stroke.” Id. at 350. “What matters to class certification is not the raising of

common ‘questions’—even in droves—but, rather, the capacity of a classwide proceeding to

generate common answers apt to drive the resolution of the litigation. Dissimilarities within the

proposed class are what have the potential to impede the generation of common answers.” Id. at

350 (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U.

L. REV. 97, 132 (2009)).

The Supreme Court then explained that, in the Title VII context, class-seeking plaintiffs

must ordinarily illustrate commonality using either of two pathways. Plaintiffs can either (a)

show that the employer used “a biased testing procedure to evaluate . . . applicants,” or (b)

provide “significant proof that an employer operated under a general policy of discrimination.”

Id. at 353.

For the putative class of Wal-Mart employees, the Court determined that the first

pathway did not apply because Wal-Mart used no “testing procedure or other companywide

evaluation method.” Id. Similarly, the second pathway was also inapplicable because the only

clear policy that the plaintiffs established was “Wal-Mart’s ‘policy’ of allowing discretion by

local supervisors over employment matters.” But this policy of discretion “is just the opposite of

a uniform employment practice that would provide the commonality needed for a class action.”

Id. at 355.

The Court explained that, “in appropriate cases, giving discretion to lower-level

supervisors can be the basis of Title VII liability under a disparate-impact theory—since an

employer’s undisciplined system of subjective decisionmaking can have precisely the same

effects as a system pervaded by impermissible intentional discrimination.” Id. at 355. But the

Court hastened to add that such “appropriate cases” are individual claims, not class action cases,

because “one manager’s use of discretion will do nothing to demonstrate the invalidity of

another’s.” Id. at 356–57. See also id. at 350 (explaining that claims of a “disparate-impact Title

VII injury . . . must depend upon a common contention—for example, the assertion of

discriminatory bias on the part of the same supervisor”) (emphasis added). In cases involving

multiple managers, plaintiffs must show a “specific employment practice,” such as a “biased

testing procedure” or “general policy of discrimination” that connects each managers’ decision-

making. Id. at 353, 357 (citations omitted.)

The Court explained that the putative class “wish[ed] to sue about literally millions of

employment decisions at once. Without some glue holding the alleged reasons for all those

decisions together, it will be impossible to say that examination of all the class members’ claims

for relief will produce a common answer to the crucial question why was I disfavored.” Id. at

352. Ultimately, the Court concluded that because “[p]ay and promotion decisions at Wal-Mart

are generally committed to local managers’ broad discretion, which is exercised in a largely

subjective manner,” the plaintiffs failed to satisfy the commonality requirement under Rule

23(a)(2). Id. at 343 (internal citation omitted).

The Parties in this case disagree over whether the discrimination described in the

Amended Complaint was individualized and discretionary, as in Wal-Mart, or was instead based

on uniform corporate policy. Plaintiffs argue that their disparate impact claim is nothing like the

disparate impact claim in Wal-Mart because Plaintiffs here challenge D&Z’s corporate policies

instituted by the company itself, not the “localized, supervisory discretion,” of any individual

D&Z supervisor or manager. (Doc. 41 at 24.)

As the Court explained in Wal-Mart, individualized decision-making virtually precludes

class certification for both disparate impact and disparate treatment claims because

[when] left to their own devices most managers in any corporation . . . would select

[race]-neutral, performance-based criteria for hiring and promotion that produce no

actionable disparity at all. Others may choose to reward various attributes that

produce disparate impact—such as scores on general aptitude tests or educational

achievements. And still other managers may be guilty of intentional discrimination

that produces a [race]-based disparity. In such a company, demonstrating the

invalidity of one manager’s use of discretion will do nothing to demonstrate the

invalidity of another’s. A party seeking to certify a nationwide class will be unable

to show that all the employees’ Title VII claims will in fact depend on the answers

to common questions.

Wal-Mart, 564 U.S. at 355–56.

Where, as here, a set of plaintiffs seeks to certify a disparate impact class based on

“corporate policies and practices” (Doc. 41 at 24), the plaintiffs must plausibly identify an

objective, facially neutral but de facto biased testing procedure that systematically discriminates

against the alleged class. See Washington v. Brown & Williamson Tobacco Corp., 959 F.2d

1566, 1570 n.10 (11th Cir. 1992). In this case, the Parties agree that the referral and selection

“process for both leadership and journeymen positions occurred separately” for every job. (Doc.

30 at 7.) Although the Parties provide no numerical estimate of how many referral and selection

decisions the Defendant Unions or D&Z made over the last ten years, the court can safely

assume that, similar to Wal-Mart, Plaintiffs are attempting to litigate potentially hundreds of

discrete managerial decisions at once. See Wal-Mart, 564 U.S. at 352.

And as for company-wide procedures, Plaintiffs aver that D&Z’s “practices”

includ[e], but [are] not limited to, use of ‘prior experience’ and ‘leadership’ referral

and selection and [sic] criteria[;] nepotism practices[;] refusal to post or announce

vacancies or employment opportunities . . . reliance upon procedures and criteria

which permit and encourage the incorporation of racial stereotypes and bias of the

Defendants’ predominantly white managerial staff; refusal to establish or follow

policies, procedures, or criteria that reduce or eliminate disparate impact and/or

intentional racial bias or stereotypes in such defendants’ decision making process;

pre-selection of whites before vacancies or opportunities became known; and

discouragement of applications and expressions of interest by African Americans

through a reputation for racial bias, racially hostile conditions of work. [sic] and

unequal terms and conditions of employment in such areas as work hours and

position assignments.

Doc. 30 at 24–25 (numerals omitted).

Although many of these allegations, standing alone, may be actionable for individuals

bringing Title VII disparate impact claims, the sheer variety and inherently discretionary nature

of these ostensible practices underscores the lack of commonality among D&Z’s hundreds of

referral and placement decisions over the last decade.

Among Plaintiffs’ many contentions, the alleged practice most resembling a common

corporate policy is Plaintiffs’ assertion that some D&Z supervisors weighed the factors of

candidates’ “leadership” and “prior experience” when selecting step-up positions. See Gen. Tel.

Co. of the Sw. v. Falcon, 457 U.S. 147, 159 n.15 (1982) (noting that an employer’s use of a

“biased testing procedure to evaluate” applicants would satisfy Rule 23(a)(2)). But the concepts

of “leadership” and “prior experience” are malleable and subject a vast spectrum of private

interpretation—a far cry from the objective “testing procedures” described by the Supreme

Court, such as “scores on general aptitude tests or educational achievements.” Wal-Mart, 564

U.S. at 355.

Although Plaintiffs cite to several cases to support the proposition that some supervisors’

considering of “leadership” and “prior experience” is a biased testing procedure, each case is

factually distinguishable from the instant case. For example, in the disparate-impact case Walker

v. Jefferson Cty. Home, 726 F.2d 1554, 1558 (11th Cir. 1984)) the Eleventh Circuit found that an

organization’s requirements of a high school education and prior supervisory experience,

although facially neutral, were discriminatory because the organization previously had a policy

that excluded black persons from attaining supervisory experience. Id.

Similarly, in Craig v. Ala. State Univ., 804 F.2d 682, 686 (11th Cir. 1986), the Eleventh

Circuit held that a historically black university’s policy of hiring from within created a disparate

impact on a white applicant because the university had a previous policy of preferring black

employees.

Lastly, in the only post-Wal-Mart case to which Plaintiffs cite on the issue,1 the 4th

Circuit Court of Appeals examined a corporation’s four “company-wide practices: (1) a salary

range policy; (2) a pay raise percentage policy; (3) a ‘built-in headwinds’ policy; and (4) dual

pay system for hirees and promotes.” Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 116–17

(4th Cir. 2013). In its opinion remanding the case to allow the plaintiffs to amend their complaint

and the district court to consider class certification, the Fourth Circuit explained:

[w]e do not now rule on the sufficiency of the allegations of the proposed amended

complaint concerning the company-wide policies or on whether certification of the

putative class will ultimately be warranted. However, in considering whether

amendment of the complaint would be futile, we observe that the proposed

amended complaint’s allegations of uniform corporate policies and of high-level

corporate decision-making are substantively different from those that the Supreme

Court held sufficient in Wal-Mart. For instance, the dual pay policy referenced in

the proposed amended complaint is a company-wide policy that is in place in all

1 At one point, Plaintiffs also appear to argue that the Supreme Court’s 2016 decision in Tyson

Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) demonstrates that the Amended Complaint’s

allegations include de jure, top-down, discriminatory corporate polices to satisfy the

commonality requirement under Fed. R. Civ. P. 23(a)(2). (Doc. 41 at 23.) But the Court in Tyson

contemplated a Fair Labor Standards Act claim, not a Title VII claim, and the challenge to class

certification occurred in the context of Fed. R. Civ. P. 23(b), not 23(a). Furthermore, the relevant

issue in Tyson was not whether a corporate policy existed; the Court determined that the

defendant meat-processing company’s uniform requirement that its workers wear protective gear

was indeed a corporate policy, and the parties did “not dispute that there [were] important

questions common to all class members.” Id. at 1045-46. Instead, the relevant issue in Tyson was

the entirely inapposite evidentiary matter of “whether a representative sample may be used to

establish classwide liability.” Id. at 1049. So to the extent that Plaintiffs argue that Tyson applies

to the instant case, the court rejects Plaintiffs’ argument.

Family Dollar Stores. . . . These allegations of high-level decision-making authority

exercised by officials at corporate headquarters are thus different in kind from the

allegations in Wal-Mart, in which local supervisors were vested with almost

absolute discretion over pay and promotion decisions. Given these substantial

distinctions, Wal-Mart does not preclude as a matter of law a class certification.

Id. at 117.

In contrast to each of the above cases—which contemplated company-wide, objective,

and de jure policies implemented by high-level decisionmakers—Plaintiffs here allege

something altogether different. As Plaintiffs describe the referral and selection process, the only

scenario in which D&Z supervisors selected foremen was when the Union failed to do so—at

which point D&Z’s site manager or craft supervisor “may,” in apparent ad hoc fashion, “step-

up” someone to fill the missing role. (Doc. 30 at 7.) According to the Amended Complaint, the

factors that informed these decisions included considering “leadership,” “prior experience,” and

“absenteeism,” as well as “reliance upon procedures and criteria which permit and encourage the

incorporation of racial stereotypes and bias,” “intentional racial bias or stereotypes in such

defendants’ decision making process,” “pre-selection of whites,” “nepotism,” and

“discouragement of applications and expressions of interest by African Americans through a

reputation for racial bias, racially hostile conditions of work and unequal terms and conditions of

employment.” (Doc. 30 at 24–26.)

In short, Plaintiffs allege the same type of situation described in Wal-Mart, in which

some managers “select [race]-neutral, performance-based criteria for hiring and promotion. . . .

Others may choose to reward various attributes that produce disparate impact. . . . And still other

managers may be guilty of intentional discrimination that produces a [race]-based disparity.”

Wal-Mart, 564 U.S. at 355–56. Within such an environment, neither disparate impact claims nor

disparate treatment claims are certifiable. Id. See also Washington v. Brown & Williamson

Tobacco Corp., 959 F.2d 1566, 1570 n.10 (11th Cir. 1992); Bryant v. Southland Tube, 294

F.R.D. 633, 644-45 (N.D. Ala. 2013) (explaining that, even as a general rule, disparate treatment

claims are disfavored for class treatment because such “claims are by their very nature

individual.”)

Because Plaintiffs allege that D&Z supervisors engaged in a variety of discretionary, ad

hoc, and subjective behaviors which provide “no cause to believe that all their claims can

productively be litigated at once,” the court finds that neither the disparate impact nor disparate

treatment claims are suitable for class certification under Fed. R. Civ. P. 23(a)(2). See Wal-Mart,

564 at 350.

b. Fed. R. Civ. P. 23(b)

Beyond meeting all four requirements of Rule 23(a)—which, as explained above,

Plaintiffs have failed to accomplish here—a proposed class must also satisfy at least one of the

alternative requirements of Rule 23(b). See Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999,

1005 (11th Cir. 1997). In this case, Plaintiffs plead their claims pursuant to Rules 23(b)(2),

which allows class certification for plaintiffs seeking declaratory or injunctive relief, and

23(b)(3), which permits class certification of plaintiffs seeking all types of relief, including

damages. (Doc. 30 at 23.) See also AA Suncoast Chiropractic Clinic, P.A. v. Progressive Am.

Ins. Co., 938 F.3d 1170, 1174 (11th Cir. 2019) (describing 23(b)(2) as the “injunction class” rule

and 23(b)(3) as the “damages class” rule); Wal-Mart, 564 U.S. at 362 (explaining that Rule

23(b)(3) is an “adventuresome innovation” that “allows class certification in a much wider set of

circumstances” than Rule 23(b)(2)).

Rule 23(b)(2) permits class certification if “the party opposing the class has acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2). Rule 23(b)(3) permits class certification when “questions of law or fact common to

class members predominate over any questions affecting only individual members, and that a

class action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). The Eleventh Circuit explained that “Because these rules

establish different threshold certification requirements and different procedural safeguards—

protective of both defendants and absent class members—it is important that courts insist on the

proper treatment of different types of classes. Injunction classes can go forward under Rule

23(b)(2); damages classes must satisfy Rule 23(b)(3).” AA Suncoast, 938 F.3d at 1174.

In this case, Plaintiffs do not seek to certify separate injunctive and damages classes. As

explained above, Plaintiffs instead propose a single class while simultaneously seeking both

injunctive/declaratory relief, such as “[a]n [o]rder restoring the named Plaintiffs and the class

they seek to represent to the jobs they would now be occupying but for Defendants’

discriminatory practices,” as well as “back-pay (plus interest), punitive damages, and attorney’s

fees and costs and expenses.” (Doc. 30 at 33.) Regardless, as explained below, Plaintiffs’

putative class fails under either Rule.

Rule 23(b)(2)

By the very terms of Plaintiffs’ demanded remedies, Plaintiffs’ proposed class is

uncertifiable under Rule 23(b)(2). The Supreme Court explained that “Rule 23(b)(2) applies only

when a single injunction or declaratory judgment would provide relief to each member of the

class. It does not authorize class certification when each individual class member would be

entitled to a different injunction or declaratory judgment against the defendant . . . [or] when

each class member would be entitled to an individualized award of monetary damages.” Wal-

Mart, 564 U.S. at 360–61. Simply put, individualized money claims, such as Plaintiffs’ demand

for backpay and punitive damages here, “should not be certified under Rule 23(b)(2) at all”

because such “claims belong in Rule 23(b)(3).” See id. at 362, 365.

Plaintiffs cite to the pre-Wal-Mart case Williams v. Mohawk Indus., 568 F.3d 1350, 1360

(11th Cir. 2009), for the proposition that the court should certify the class under a “hybrid”

arrangement, which would allow certification of the proposed class’s injunctive and declaratory

claims under Rule 23(b)(2) and its damages claims under Rule 23(b)(3). (Doc. 30 at 23; Doc 41

at 38.) Two years before Wal-Mart, the Eleventh Circuit in Williams explained a possible hybrid

approach as follows: “If the district court determines that common issues predominate and

certifies a class for damages under subsection (b)(3), the district court must consider whether to

certify a class under subsection (b)(2) with respect to the employees’ claim for equitable relief.”

Id.

But as the Eleventh Circuit has since explained, “Before Wal-Mart, we allowed plaintiffs

to seek monetary relief through a Rule 23(b)(2) injunction class if the monetary relief was

incidental to injunctive relief—that is, if it would flow automatically to class members without

complex individualized determinations. In Wal-Mart, the Supreme Court appeared to lower the

gate on that pathway to certification but did not fully slam it shut.” AA Suncoast, 938 F.3d at

1174 n.2 (internal quotations omitted).

In “lowering the gate,” the Supreme Court in Wal-Mart stopped just shy of categorically

preventing a district court from ever certifying a class under Rule 23(b)(2) when the plaintiffs

seek any monetary damages, but the Court unequivocally determined that class demands for

backpay claims are unsuitable for class certification under Rule 23(b)(2). See Wal-Mart, 564

U.S. at 360 (“[A]t a minimum, claims for individualized relief (like the backpay at issue here) do

not satisfy the Rule.”) Plaintiffs’ backpay demand, then, precludes certification under Rule

23(b)(2).

Lastly, Plaintiffs also argue that because their equitable claims predominate over their

damages claims, the court should certify the class under Rule 23(b)(2). See Doc. 30 at 23

(“Injunctive, declaratory and equitable remedies are the predominant relief sought.”) But the

Supreme Court also extensively addressed, and rejected, this line of reasoning. See Wal-Mart,

564 U.S. at 363–365 (holding that such a “predominance” test violates plain meaning of Rule

23(b)(2), “does obvious violence to the Rule’s structural features,” creates perverse incentives

for plaintiffs, and requires the trial court to “reevaluate the roster of class members continually”

to determine who has standing.)

For all of these reasons, the court finds that Plaintiffs’ alleged class, as pled, is not

certifiable under Rule 23(b)(2).

Rule 23(b)(3)

A court may certify a class under Rule 23(b)(3) if “questions of law or fact common to

class members predominate over any questions affecting only individual members, and that a

class action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). The Eleventh Circuit breaks down this Rule into two

distinct elements: (1) predominance and (2) superiority. AA Suncoast, 938 F.3d at 1175. In this

case, D&Z argues, and the court agrees, that Plaintiffs’ proposed class fails the predominance

element. (See Doc. 35 at 28–29.)

The predominance analysis is similar the commonality analysis under Rule 23(a), but

“Rule 23(b)(3)’s predominance criterion is even more demanding than Rule 23(a).” Comcast

Corp. v. Behrend, 569 U.S. 27, 34 (2013). Evaluating predominance begins by identifying the

elements of the parties’ claims and defenses. Brown v. Electrolux Home Prods., 817 F.3d 1225,

1234 (11th Cir. 2016). “The district court should then classify these issues as common questions

or individual questions by predicting how the parties will prove them at trial. Common questions

are ones where the same evidence will suffice for each member, and individual questions are

ones where the evidence will vary from member to member.” Id. Once the court identifies the

common and individual questions, it then evaluates predominance—that is, the court

pragmatically considers the relative importance of each type of question with the “overarching

purpose” of “ensuring that a class action would achieve economies of time, effort, and expense,

and promote uniformity of decision as to persons similarly situated, without sacrificing

procedural fairness or bringing about other undesirable results.” Brown, 817 F.3d at 1235

(quotation and ellipses omitted).

Plaintiffs primarily argue, citing to Brown, that Rule 23(b)(3) is satisfied because

“individualized damages alone do not defeat predominance.” (Doc. 41 at 30.) The Eleventh

Circuit has indeed determined that “the presence of individualized damages issues does not

prevent a finding that the common issues in the case predominate.” Brown, 817 F.3d at 1239. But

the Circuit Court simultaneously held that “individual damages defeat predominance if

computing them will be so complex, fact-specific, and difficult that the burden on the court

system would be simply intolerable. . . [or] when they are accompanied by significant

individualized questions going to liability”) (citation omitted).

In this case, the wide variety of requested damages, injunctions, and declarations, coupled

with the intensely fact-specific nature of each Plaintiff’s proposed remedies, clearly illustrates

the predominance of individualized questions. (See Doc. 30 at 33–34) (requesting orders from

the court “restoring the named Plaintiffs and the class they seek to represent to the jobs they

would now be occupying but for Defendants’ discriminatory practices” and retroactively

“adjust[ing] the wages and benefits” for each proposed class member). See also AA Suncoast,

938 F.3d at 1175 (a proposed class fails to satisfy Rule 23(b)(3) when each member must “jump

through a series of hoops to establish an individualized entitlement to damages.”)

Even a perfunctory glance at the elements of Plaintiffs’ claims and alleged facts show

that individualized questions predominate in this case. See Brown, 817 F.3d at 1234 (requiring

the court to first consider whether the elements of the plaintiffs’ claims tend toward generality or

specificity and then predict how plaintiffs would prove the elements at trial). For Count I,

disparate impact, Plaintiffs must prove three elements at trial: (1) “significant statistical disparity

between the proportion of members of the protected class available in the labor pool and the

proportion of members of the protected class hired [or promoted]”; (2) “a specific, facially

neutral employment practice; and (3) a causal nexus exists between the employment practice and

the statistical disparity.” Jefferson v. Burger King Corp., 505 F. App’x 830, 834 (11th Cir. 2013).

But as the court explained in the Rule 23(a) analysis, supra, Plaintiffs have failed to demonstrate

the existence of a facially neutral policy common to all proposed class members. And without

such a policy, Plaintiffs can satisfy neither the second nor third element of a disparate impact

claim.2

Similarly, Plaintiffs’ Count II for disparate treatment requires Plaintiffs to prove

“discriminatory intent either through direct or circumstantial evidence.” Denney v. City of

Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). On the matter of evidence in this context, the

2 As for the first element, significant statistical disparity, Plaintiffs allege that the “referral and

selection rate for African Americans was less than 80% of the rate of non-African Americans.”

(Doc. 30 at 9.) Because the second and third elements of Plaintiffs’ disparate impact claim are

not met, the court makes no determination about the sufficiency of the first element.

Eleventh Circuit explained that “[i]f common issues truly predominate over individualized issues

in a lawsuit, then the addition or subtraction of any of the plaintiffs to or from the class should

not have a substantial effect on the substance or quantity of evidence offered.” Brown, 817 F.3d

at 1235. But in this case, every new Plaintiff would necessarily require additional evidence

regarding the context of each choice a Defendant’s supervisor or manager made in selecting

someone else for every position, thus requiring the court to consider the circumstances

surrounding each of thousands of placement decisions made by an unstated but certainly high

number of decisionmakers over the course of a decade.

The court finds D&Z’s description of the situation apt:

Plaintiffs claim they—and members of the classes—were denied leadership

positions, supervisory positions, promotion opportunities, transfer opportunities,

equal compensation, and equal terms and conditions of work. According to them,

the reason for any one of these decisions may have been because the Union

Defendants, the DZ Defendants, or some combination of the two, allegedly failed

or refused to announce or post . . . employment opportunities, hiring assignments,

job opportunities, leadership opportunities, transfer opportunities, training

opportunities, or apprenticeship opportunities; engaged in nepotism; failed or

refused to otherwise take steps to undo the continuing effects of past racial

discrimination; or some combination thereof. So, for each Plaintiff and each

member of each class, the Court would need to first identify the adverse

employment action at issue, the reasons for it, defenses related to it, and whether,

on the whole, it was or was not discrimination based on race.

(Doc. 35 at 28–29.) The court finds that because the evidence needed at trial—for both proving

the element of discriminatory intent and in determining remedies—would vary significantly from

Plaintiff to Plaintiff, individual questions also predominate for Plaintiffs’ disparate treatment

claim.

For all of these reasons, the court finds that Plaintiffs’ proposed class fails to satisfy the

predominance element of Federal Rule of Civil Procedure 23(b)(3) and is therefore uncertifiable.

Conclusion

Because Plaintiffs’ Amended Complaint is an impermissible shotgun pleading and

because Plaintiffs’ class claims fail to satisfy Federal Rules of Civil Procedure 23(a) and 23(b),

the court WILL GRANT D&Z’s motion to dismiss (Doc. 35), and WILL DISMISS Plaintiffs’

entire Amended Complaint, as to D&Z, WITHOUT PREJUDICE. The court also WILL

STRIKE Plaintiffs’ class claims. Plaintiffs’ Amended Complaint remains operative as to the

Union Defendants. The court will enter a separate order accompanying this memorandum

opinion.

DONE and ORDERED this 15th day of July, 2020.

____________________________________

KARON OWEN BOWDRE

UNITED STATES DISTRICT JUDGE