Opposition Brief — Sheehan v. Purolator, Inc.
Supreme Court brief1988
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
>
PATRICIA SHEEHAN, ELIZABETH HENOCH, and KAYHAN
HELLRIEGEL, on Behalf of Themselves and All Others
Similarly Situated,
Petitioners,
—VvV.—
PUROLATOR, INC. and PUROLATOR COURIER CORP.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF IN OPPOSITION
COLLEEN MCMAHON
1285 Avenue of the Americas
New York, New York 10019
Counsel of Record
for Respondents
Of Counsel:
Morris B. Abram
Jay Cohen
Diana Hassel
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON
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QUESTIONS PRESENTED
1. Should this Court review the Second Circuit’s affirmance
of the discretionary decision not to certify a class in this action,
where that decision was based on a failure of proof—
specifically, petitioners’ failure to satisfy the court that their
application for class certification complied with the require-
ments of Fed. R. Civ. P. 23(a), as required by General Tele-
phone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982)?
2. Should this Court review the denial of class certification in
light of Watson v. Fort Worth Bank & Trust, LS. ‘
108 S. Ct. 2777 (1988), even though (a) Watson did not change
the standard for obtaining class certification articulated in Fal-
con, and (b) the sole issue addressed in Watson—namely,
whether claims of subjective discrimination can be analyzed
under the so-called ‘‘disparate impact’? model—was raised by
petitioner in the District Court but abandoned on appeal?
il
List of Parties and Rule 28.1 List
The parties are listed in the petition. Respondent Purolator
Courier Corp. (‘‘Courier’’) is a wholly owned subsidiary of
Emery Air Freight Corp.
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TABLE OF CONTENTS
EES eee
Lest Of Parties and Rule 28.1 List. .........cccccscces
cc. esas dgesdeesbhenenenneces
es ko ccd owes en ec.evdecebanec ns
chad daadsdcesssesescbaeces
Reasons for Denying the Writ.............cccccccees
I. This Case Presents No Question of General
Importance Warranting Review by this Court..
A. Petitioners Are Seeking Review of Affirmed
Findings of Fact, Which Is Not The Prov-
EE i. eo Son cdeabeneaecesee
B. Petitioners’ Attucks on the Decisions Below
Under Eisen and Bazemore Do Not Raise
Issues Worthy of Certiorari..............
Il. Watson v. Fort Worth Bank & Trust Does Not
Require that this Court Review the Denial of
et ede daweeeeeeene
A. Falcon, Not Watson, Controls The Propri-
ety of Class Certification ................
B. Petitioners Cannot Raise The Disparate
Impact Issue Here Because They Abandoned
tis cote sagt babies sue aues és
ee ee aaneaee
i ss eee widened ethecéckeesecnsobe ee
PAGE
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12
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15
17
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TABLE OF AUTHORITIES
Cases: PAGE
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)..... 1S
Bazemore v. Friday, 478 U.S. 385 (1986)........... 9, 10, 11
Berenji v. District Director, Immigration and Naturaliza-
OR BOVIS, SES U.S. GRO CHOY cn cccccccccscscces i)
Branti vy. Finkel, 445 U.S. 507 (1980). ................ y
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ... i]
Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)... 15
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ..... 9, 10
General Telephone Co. of the Southwest v. Falcon, 457
Se ee ES Cc tokyo ncuu areas vb bases eens passim
Graver Tank & Mfg. Co. vy. Linde Air Products Co., 336
Ser ee es Sa wsn asd as VaR E 6s 64k sakenee 2
Helvering y. Clifford, 309 U.S. 331 (1940)............ 16
Helvering v. Wood, 309 U.S. 344 (1940). ............. 16
International Brotherhood of Teamsters v. United
ee. Se Se Te 6c edn deb ceeeesesetaencs 4, 10
Layne & Bowler y. Western Well Works, 261 U.S. 387
DN cciaceeruseonss cere eeneetkeieeerssaesekes 7
Neely v. Martin 4. by Construction Co., Inc., 386 U.S.
ee te des ch ee nese aaa a's ag wh bg 5's 15
Rogers v. Lodge, 458 U.S. 613 (1982) ................ 9
Rossini v. Ogilvy & Mather, Inc., 798 F. 2d 590 (2d Cir.
PAGE
Watson v. Fort Worth Bank & Trust, __. U.S. ___,
SOP S. Ch. SIRF CUBR s voce cicccrevenccccssasasane 16
Watson v. Fort Worth Bank & Trust, __. U.S. ___.,
' § Se Mrrel|\,. PRPPPPrrererer ieee er passim
Statutes and Regulations:
ro Rik Foe >. rr rrr rr rrr rer eo. 3
Bod, RR. Clu. BP. ZOD occ cccccccccasdccestnaccaneces passim
Sep. Ct. Ru 17 onc cccccccncesscccscescccecceasecses 1]
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
No. 88-281
PATRICIA SHEEHAN, ELIZABETH HENOCH, and KAYHAN
HELLRIEGEL, on Behalf of Themselves and All Others
Similarly Situated,
Petitioners,
—
PUROLATOR, INC. and PUROLATOR COURIER CORP.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
>
BRIEF IN OPPOSITION
Preliminary Statement
In Generai Telephone Co. of the Southwest v. Falcon, 457
U.S. 147 (1982), this Court held that it was not appropriate to
certify a class in a Title VII case unless the named plaintiffs sat-
isfied the trial court, after rigorous analysis, that they shared
common claims of discrimination with an identifiable class of
similarly situated persons.
In this Title VII case, the United States District Court for the
Eastern District of New York, after reviewing the meager and
2
unpersuasive evidence presented by petitioners in support of
their motion for class certification, ruled that petitioners had
not met their burden under Falcon and declined to certify a
class. On appeal, a panel of the United States Court of Appeals
for the Second Circuit examined the same evidence and decided
that the District Court's assessment of that evidence was not
clearly erroneous. The Court of Appeals therefore ruled—
unanimously—that the District Court had not erred in denying
the class certification motion.
Petitioners now ask this Court to review—for a third time-—
whether their evidence was sufficient to sustain their burden
under Falcon. To put it in petitioners’ own words, they ask this
Court to find that, ‘*[t}he District Court committed clear error
and abused its discretion’’ by not certifying a class, and that,
““[t}he Second Circuit erroneously disregarded . . . highly
probative evidence”’ in affirming that decision. (Pet. 6)
This Court, however, sits to decide questions of federal law
that raise novel, general or important issues. It does not exercise
its jurisdiction to review findings of fact that relate solely to an
individual case. Indeed, as described in Graver Tank & Mfg.
Co. v. Linde Air Products Co., 336 U.S. 271, 275 (1949), this
Court is “‘a court of law. . . rather than a court for correction
of errors in fact finding, [and] cannot undertake to review the
concurrent findings of fact by two courts below. . . .** Under
this long-established principle, nothing presented by this case is
worthy of review by this Court.
Petitioners also assert that certiorari should issue because the
denial of class certification is inconsistent with this Court's
recent decision in Watson v. Fort Worth Bank & Trust
U.S. _
, 108 S. Ct. 2777 (1988), in which allegations that
subjective employment practices are discriminatory were
deemed amenable to analysis under the “‘disparate impact”’
model. But the propriety of certifying a class in this particular
case presents no issue that warrants further review in light of
Watson, because Watson did not modify the standards for class
certification established by this Court in Falcon for all class
actions, whether brought under a disparate impact or disparate
treatment theory.
Moreover, while the District Court rejected petitioners’ argu-
ment that subjective employment practices could be analyzed
under the disparate impact model, petitioners abandoned that
argument when they took their appeal, as the Court of Appeals
specifically noted. (App. 6)' This Court customarily declines to
review questions that were not presented to the Court of
Appeals; the fact that the issue was raised and then abandoned
only reinforces the propriety of not making an exception to that
rule in this case.
Statement of the Case
In February 1982, Patricia Sheehan and Elizabeth Henoch,
along with a third plaintiff,’ filed a class action under Title VII,
42 U.S.C. § 2000(e). They alleged that Courier had discrimi-
nated against them and other women on the basis of their sex in
job assignment, pay, fringe benefits, promotion and transfer
and had retaliated against them for filing discrimination
charges with the EEOC.
Each of the three plaintiffs had unique jobs at Courier. (App.
$8-59, 64) They were all highly successful, well-paid employees.
(App. 53, 59, 64) Two of the plaintiffs—Sheehan and
Henoch—were officers of the company. The third was the sen-
ior regional manager of Courier’s Chicago terminal and one of
the highest paid managers—male or female—in Courier’s field
operations. (App. 64)
Proceedings Below
District Court Decisions
On March 23, 1983, petitioners moved for class certification.
After extensive discovery and briefing, the motion was denied
by the District Court on December 26, 1984. (App. 35)
l Appendix references are to the petition appendix unless otherwise
noted.
2 The third plaintiff, Kayhan Hellriegel, entered into a stipulation
with Courier dismissing her complaint with prejudice.
4
The trial court articulated two bases for its decision.
First, the District Court held that petitioners failed to show
that an aggrieved class of similarly situated persons existed, as
required by General Telephone Co. of the Southwest v. Falcon,
457 U.S. 147 (1982). Although petitioners introduced what they
referred to as ‘‘significant proof that [Courier] operated under
a general policy of discrimination,’’ Falcon, supra, 457 U.S. at
159, n.15, in support of their class certification motion, the Dis-
trict Court concluded that the evidence did not amount to ‘‘sig-
nificant proof’”’ of anything.
The court ruled that the statistical evidence (including regres-
sion analyses) submitted by petitioners in support of their
motion was fundamentally flawed because it did not ‘‘offer the
relevant comparison of similarly situated female and male
employees (i.e., females and males with the same qualifications
and experience). . . .’’ (App. 52) (Emphasis added)
In light of the defects in petitioner’s statistical evidence, the
non-statistical evidence about similarly aggrieved women that
they introduced to bring ‘‘the cold numbers convincingly to
life,’’ International Brotherhood of Teamsters v. United States,
431 U.S. 324, 339 (1977), assumed great importance. (App. 52)
The District Court, however, found that evidence to be both
inadequate and unpersuasive. It held that an affidavit from one
member of the proposed class and a list of employees who had
filed discrimination complaints against Courier—only three of
whom would have been members of the proposed class—did
not establish a class of aggrieved employees that bore ‘‘some
Statistically significant relationship to the size of the relevant
parts of the employer’s work force.’’ (App. 50, citing Falcon at
457 U.S. 157-158)’
In the alternative, the District Court concluded that class cer-
tification was not warranted because petitioners, with their
unique jobs and high ranking status, were atypical of the broad
3 The proposed class consisted of approximately 315 women, consti-
tuting all women in jobs categorized as ‘‘exempt,’’ no matter what job
they held. (App. 50)
2
class they sought to represent. (App. 54-59, 61-67)* The District
Court judge acknowledged that a narrower class of high rank-
ing women employees might have been appropriately certified,
but noted, ‘‘[pji. intiffs have not articulated any basis for defin-
ing such a class.’’ (App. 68-69)
After class certification was denied, petitioners pressed their
individual claims at an eight-day trial, following which the Dis-
trict Court entered judgment in favor of Courier. (App. 22) The
trial court, sitting as fact-finder, found that petitioners had
failed to carry their burden of proof on any of their individual
claims of discrimination. That court described petitioners’ evi-
dence as ‘‘unpersuasive,’’ ‘‘lack[ing] merit’’ and ‘‘not credi-
ble.’’ (App. 22-33)
Petitioners introduced at trial the same flawed statistics that
had been submitted and found wanting on the motion for class
certification. They offered this evidence both in support of their
individual claims and in support of a renewed request for class
certification, which was made during trial. The District Court
again held that the statistics proved nothing, this time remark-
ing that the ‘‘statistical evidence is not persuasive because it
does not take into account non-discriminatory variables that
explain disparities in pay.’’ (App. 25)
Court of Appeals Decision
The Second Circuit Court of Appeals issued its opinion
affirming the judgment on February 12, 1988.
The panel unanimously affirmed the District Court’s denial
of class certification. The Court of Appeals held that the Dis-
trict Court had not erred in denying class certification, because
petitioners failed to present ‘‘class-wide proof of an aggrieved
class’’ as required by Falcon. (App. 7)°
4 Job categories within the proposed class included positions as
diverse as officers and professionals, on the one hand, and customer
service representatives and secretaries, on tiie other. (App. 57)
5 The Court of Appeals did not reach the alternate ground relied on
by the District Court in denying class certification; namely, that peti-
tioners were atypical of the class they wanted to represent. (App. 7)
6
In the view of the Court of Appeals, the District Court was
not clearly erroneous in finding petitioners’ statistical evidence
not probative of whether petitioners satisfied the requirements
of Fed. R. Civ. P. 23(a), because ‘‘[t]he regression analysis did
not take into account various relevant non-discriminatory fac-
tors, such as education and prior work experience.’’ (App. 9)
The Court of Appeals observed that Courier had presented evi-
dence which showed that such factors could explain any dispari-
ties between men and women to which petitioners pointed.
(App. 9)
The Second Circuit also affirmed the District Court’s conclu-
sion that petitioners’ ‘‘limited amount’’ (App. 9) of anecdotal
evidence about the existence of a class was insufficient to sup-
port certification of a class. Reviewing the particular pieces of
evidence, the Court of Appeals agreed with the District Court
that a list of employees who had filed charges against Courier
with the EEOC (only a few of whom were even members of the
putative class) ‘‘had little probative value.’’ (App. 9) It also
affirmed the District Court’s finding that a single affidavit
from only one potential class member out of a proposed class of
315 members ‘‘was insufficient to establish a class of aggrieved
individuals’’ under Rule 23(a). (App. 9) Finally, the Court of
Appeals noted that statements from outdated personnel man-
uals that petitioners had introduced did not establish that there
existed a class of similarly situated women with grievances simi-
lar to theirs because the manuals ‘‘were not in effect at corpo-
rate headquarters,’’ where petitioners worked. (App. 9)
By a 2-1 vote, the Court of Appeals also upheld the District
Court’s decision to dismiss petitioners’ individual claims, ruling
that the findings of fact made by the District Court with respect
to those claims were also not clearly erroneous. (App. 16) Judge
Kearse dissented from the decision to affirm the judgment dis-
missing the individual claims, on the sole ground that she would
have accorded more weight to certain non-statistical evidence
presented at trial. (App. 17-21)
On April 13, 1988, petitioners’ request for a rehearing was
denied by the Court of Appeals.
On August 15, 1988, respondents received the petition for a
writ of certiorari. Petitioners sought review only of the Court of
Appeals’ unanimous affirmance of the decision denying class
certification. They did not ask this Court to review the dismissai
of their individual claims.
Reasons for Denying the Writ
I.
THIS CASE PRESENTS NO QUESTIONS OF GENERAL
IMPORTANCE WARRANTING REVIEW
BY THIS COURT
A. Petitioners Are Seeking Review of Affirmed Findings of
Fact, Which is Not the Province of This Court
The Court of Appeals did not decide in this case any impor-
tant question of federal law that requires further review. There
is no conflict among the circuits on any point that needs to be
resolved. Nor does this matter raise any novel, general or
important legal issue. The Court of Appeals held only that the
District Court did not clearly err when it found that petitioners
had failed to meet their evidentiary burden of proving that a
class of similarly aggrieved women existed, and, hence, that
class certification was unwarranted. That ruling, which is of no
moment to any case but this one, hardly raises an issue worthy
of certiorari. Layne & Bowler v. Western Weli Works, 261 U.S.
387, 393 (1923) (Supreme Court will not review a case unless it
involves principles of public importance).
That the named plaintiffs in a Title VII case must convince a
court that they are proper representatives of a defined class as a
prerequisite to obtaining class certification has been settled ever
since this Court recognized that
. . the allegation that such discrimination has occurred
neither determines whether a class action may be main-
tained in accordance with Rule 23 nor defines the class that
may be certified. Conceptually, there is a wide gap
between (a) an individual’s claim that he has been denied a
promotion on discriminatory grounds, and his otherwise
unsupported allegation that the Company has a policy of
discrimination, and (b) the existence of a class of persons
who have suffered the same injury as that individual, such
that the individual’s claim and the class claims will share
common questions of law or fact and that the individual’s
claim will be typical of the class claims. For respondent to
bridge that gap, he must prove much more than the valid-
ity of his own claim.
Falcon, supra, 457 U.S. at 157. To bridge that gap, any putative
class representative in a Title VII case must demonstrate that he
or she and others share grievances against their employer that
arise out of common questions of law and fact. Jd. at 158. Only
‘‘if the trial court is satisfied, after rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied’’ may it certify a
Title VII class. Jd. at 161.
Petitioners do not contest the proposition that the District
Court and Court of Appeals were bound to follow Falcon in
this case. What petitioners do challenge is the District Court’s
holding, affirmed by a unanimous Court of Appeals, that class
certification was appropriately denied because the evidence they
presented in support of their motion for class certification did
not suffice to bridge the gap identified in Falcon.
Before denying class certification, the District Court engaged
in the rigorous analysis required by Falcon. It rested its decision
squarely on factual findings that were thereafter reviewed by
the Court of Appeals and found not to be clearly erroneous.
Petitioners recognize this. The petition frames the issue raised
by the case as follows: ‘‘The District Court committed clear
error and abused its discretion in failing to recognize that sub-
jective decisions at Purolator were being made in a highly sex-
biased atmosphere and by officers and supervisors with
company mandated sex-biased directives. The Second Circuit
erroneously disregarded this highly probative evidence.’’ (Pet.
6) In page after page of the petition, petitioners catalogue the
9
evidence that allegedly proves their point—never once pointing
to the rebuttal evidence that the trial court found more convinc-
ing, and never once alluding to the actual findings of fact
(including credibility findings) that were made and affirmed
below.
But this Court, unlike petitioners, does defer to factual deter-
minations in which the District Court and Court of Appeals
have concurred. It has repeatedly held that it will not review
such findings. Rogers v. Lodge, 458 U.S. 613, 623 (1982);
Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980); Berenji v. Dis-
trict Director, Immigration and Naturalization Service, 385
U.S. 630, 635 (1967). And where, as here, there is no dispute
that the lower courts correctly followed controlling legal prece-
dent in making and reviewing those factual findings, there is no
basis for further review by this Court.
B. Petitioners’ Attacks on the Decisions Below Under Eisen
and Bazemore Do Not Raise Issues Worthy of Certiorari
In an attempt to mask their request for further review of the
District Court’s factual findings, petitioners also assert that the
lower courts committed two errors of law which require certio-
rari. The assertion is baseless.
Petitioners first argue that the decisions below run afoul of
this Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S.
156 (1974). According to petitioners, the lower courts, in con-
travention of Eisen, required them to prove the merits of their
claims of discrimination in order to obtain class certification.
That is simply not the case.
Under Eisen, a court cannot hold a hearing on the ultimate
merits of the claim to determine whether to certify a class. But
as this Court has observed in several post-Eisen decisions,
‘*it]he class determination generally involves considerations
that are ‘enmeshed in the factual and legal issues comprising the
plaintiff’s cause of action.’ ’’ Coopers & Lybrand v. Livesay,
437 U.S. 463, 469 (1978), cited in Falcon, supra, 457 U.S. at
160. The Court has never suggested that this enmeshing of
10
issues either contravenes Eisen or places an impossible burden
on putative class plaintiffs.
Here, neither the District Court nor the Court of Appeals
held, or even suggested, that petitioners were required to prove
the merits of their class claims in order to obtain certification.
The lower courts only required, in accordance with Falcon, that
petitioners satisfy the court that the prerequisites of Rule 23(a)
had been met. That petitioners chose to do so by offering what
they contended was ‘‘significant proof’’ of Courier’s discrimi-
natory practices—evidence that was necessarily ‘‘enmeshed in
the factual and legal issues’’ raised by their complaint—is of no
moment. The District Court evaluated that evidence and found
it insufficient to bridge the Fa/con gap. That does not run afoul
of Eisen; it does not even implicate Eisen.
Second, petitioners allege that the Court of Appeals erred in
not overturning the denial of class certification because the Dis-
trict Court failed to consider petitioners’ statistical evidence, as
required by Bazemore v. Friday, 478 U.S. 385 (1986). As the
Second Circuit held on appeal, this argument has no merit.
As petitioners read Bazemore, the trial court was required to
find that they had discharged their burden under Fa/con simply
by offering statistical evidence to support their claim that other
women had grievances similar to theirs—no matter how defec-
tive those statistics might be. That, of course, is not what Baze-
more says. All Bazemore holds is that a court may not ignore
statistics simply because they do not control for all relevant var-
iables. This Court also recognized in Bazemore that the failure
to include all relevant variables would necessarily affect the
weight accorded to statistical evidence. /d., 478 U.S. at 400.
And in a post-Bazemore Title VII decision, Justice O’Connor
observed, ‘‘courts or defendants [are not] obliged to assume
that plaintiffs’ statistical evidence is reliable. ‘If the employer
discerns fallacies or deficiencies in the data offered by the plain-
tiff, he is free to adduce countervailing evidence of his own.’ ”’
Watson, supra, 108 S. Ct. at 2789. See also Teamsters, supra,
431 U.S. at 340 (“‘[S]tatistics, are not irrefutable, they come in
infinite variety and, like any other kind of evidence, they may
1]
be rebutted. In short, their usefulness depends on all of the sur-
rounding facts and circumstances.’’)
That is precisely what happened here. The District Court did
not ignore petitioners’ statistics. That evidence was part of the
record, both on the motion for class certification (App. 50-51)
and at trial (App. 25, 30), and it was discussed in both lower
court opinions. Contrary to petitioners’ assertion (Pet. 13), the
statistical evidence was controverted; Courier introduced unre-
butted evidence which showed that elementary non-
discriminatory factors, such as education, prior job experience
and job level, could (and did) explain any disparities in pay
between men and women employees at Courier. (App. 9) Peti-
tioners failed to control for those basic factors in their statisti-
cal analyses. (App. 8-9)
Obviously, the District Court, after rigorous analysis, found
Courier’s countervailing evidence more persuasive than peti-
tioners’ seriously flawed statistics, and its conclusion was
affirmed by the Court of Appeals as not clearly erroneous.
Such a finding, as the Court of Appeals held, does not run
afoul of Bazemore. (App. 8-10)
Thus, petitioners cannot identify any error of law that was
committed by the Court of Appeals, let alone an error of law
that qualifies as worthy of certiorari under Rule 17 of the
Supreme Court Rules. There is, therefore, no ground for this
Court to review the decision below.
12
il.
WATSON V. FORT WORTH BANK & TRUST DOES NOT
REQUIRE THAT THIS COURT REVIEW THE DENIAL OF
CLASS CERTIFICATION
A. Falcon, Not Watson, Controls The Propriety of Class
Certification
Petitioners also argue that certiorari should issue to review
the decision denying class certification because the District
Court held that the purely subjective employment practices at
issue in this case could not be analyzed under the disparate
impact model as well as the disparate treatment model. That
holding, petitioners argue, does not accord with this Court’s
recent decision in Watson v. Fort Worth Bank & Trust,
U.S. , 108 S. Ct. 2777 (1988).
The flaw in petitioners’ argument is that Watson did not con-
cern class certification or anything related to class certification.
It is Falcon, not Watson, that outlines the burden a putative
class plaintiff must assume in order to obtain class certification.
That burden is no different in disparate impact cases than in
disparate treatment cases—to bridge the gap between individual
and class claims by satisfying the court, after rigorous analysis,
that the prerequisites of Rule 23(a) have been complied with.
Nothing said in Watson alters that settled principle of law.
Indeed, the Watson Court specifically declined to address any
questions other than whether disparate impact analysis could
apply to a subjective promotion system. Jd. at 2791. Thus, there
is no support for petitioners’ assertion that Watson rendered
the decision denying class certification erroneous in any respect.
Further misreading Watson, petitioners suggest that Falcon
has minimal or no relevance in disparate impact cases. (Pet. 9)
However, that is clearly not correct. In Falcon, the class certi-
fied contained members who had disparate impact claims as
well as disparate treatment claims. Falcon, supra, 457 U.S. at
154. This Court overturned certification of the class on the
ground that the lower courts had failed to require fhe named
13
plaintiff to prove that the case satisfied the requirements of
Rule 23(a). At no point did the Court suggest that its discussion
of the burdens imposed on putative class plaintiffs by Rule
23(a) applied only when disparate treatment complaints, rather
than claims of disparate impact (whether objective or subjec-
tive), were involved. And no subsequent decision of this
Court—including Watson—has so held.
But even assuming that Watson had some relevance on the
question of class certification, certiorari would still be inappro-
priate, because the findings of the District Court, as affirmed
by the Court of Appeals, demonstrate conclusively that no class
could be certified under any theory.
As the Watson plurality noted, the burden on a plaintiff seek-
ing to prove that subjective employment practices had a dispar-
ate impact on a class of employees is not met as easily as in a
case involving facially neutral practices, such as height require-
ments or intelligence tests. The plaintiff must both identify the
specific employment practice that is challenged and then offer
statistics ‘‘of a kind and degree sufficient to show that the prac-
tice in question’’ has resulted in the exclusion of those in a pro-
tected group from some job benefit, such as employment or
promotion. Watson at 2777-78. Further, courts and defendants
are not ‘“‘obliged to assume that plaintiffs’ statistical evidence is
reliable. ‘If the employer discerns fallacies or deficiencies in the
data offered by the plaintiff, he is free to adduce countervailing
evidence of his own.’ ’’ Watson at 2789.
That is precisely what happened here. Respondents estab-
lished, to the satisfaction of both courts below, that the statis-
tics offered in support of petitioners’ motion for class
certification were so fallacious and deficient as to prove nothing
because:
1) they failed to offer comparisons between similarly situ-
ated men and women (App. 9, 52); and
2) they failed to control for the most elementary non-
discriminatory factors that can account for differences in treat-
14
ment among employees, such as education and prior work
experience. (App. 9, 25)
Nothing in Watson suggests that such patently defective sta-
tistics would be any more acceptable as evidence that a dispar-
ate impact class exists than they were under the disparate
treatment model. Indeed, the plurality’s recognition of the need
for rigorous statistical proof in a disparate impact case involv-
ing subjective decisions compels the conclusion that the class
certification decision would have been the same if this had been
analyzed as a disparate impact case from the beginning.
Relying on extensive quotations from Judge Kearse’s dissent,
petitioners also assert that their non-statistical evidence alone
would be sufficient to guarantee certification of a class under
the disparate impact theory. But nothing in Watson suggests
that the minimal and largely irrelevant anecdotal evidence
rejected by the courts below would be sufficient, in and of
itself, to certify a class under the disparate impact model.
Moreover, petitioners’ reliance on Judge Kearse’s dissent is
misplaced, inasmuch as she was concerned solely with evidence
she thought should have been given more weight by the District
Court in deciding petitioners’ individual claims. As petitioners
recognize, (Pet. 5) Judge Kearse joined the majority in affirm-
ing the District Court's denial of class certification. Even Judge
Kearse did not believe petitioners’ anecdotal evidence was suffi-
cient to warrant class certification.
In sum, Watson neither vitiates a plaintiff's burden of prov-
ing the existence of a class under Falcon nor endows evidence as
flimsy as that introduced by petitioners with sufficient proba-
tive value to sustain that burden. Thus, petitioners’ reliance on
Watson is misplaced.
15
B. Petitioners Cannot Raise The Disparate Impact Issue Here
Because They Abandoned It On Appeal
In any event, petitioners are in no position to invoke Watson
here because, while they raised the disparate impact issue in
their motion for class certification, they abandoned it on
appeal. (App. 46)
Petitioners assert that the District Court's ruling on the dis-
parate impact question was affirmed by the Court of Appeals.
(Pet. 9) It was not. The briefs submitted to the appellate court
by petitioners make no mention of the issue (Courier’s App. la-
88a), and the Court of Appeals took pains to note that the Dis-
trict Court’s ruling on the question “‘has not been challenged on
appeal.’’ (App. 6)°
This Court has repeatedly held that it will not normally con-
sider an issue that was not considered by the Court of Appeals.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970)
(‘‘Where issues are neither raised before nor considered by the
Court of Appeals, this Court will not ordinarily consider
them.’’); Delta Air Lines, Inc. v. August, 450 U.S. 346, 362
(1981); Neely v. Martin K. Eby Construction Co., Inc., 386
U.S. 317, 330 (1967).
Petitioners obviously believe that, in light of Watson, this
Court should invoke an exception to this well-established rule
However, there is no reason to depart from customary practice
in this case. Only in exceptional cases will this Court consider
an issue that was not raised in the Court of Appeals; this case
hardly qualifies as exceptional. And where the petitioner (like
6 The Court of Appeals stated: **The court analyzed the case as one of
disparate impact, requiring proof of discriminatory motive. This find
ing has not been challenged on appeal."’ (App. 6) It is obvious, Dorh
from reading the District Court's decision and from the Court of
Appeals’ reference to discriminatory motive (which only comes into
play in disparate treatment cases) that the word “‘impact™’ should be
““treatment."* Petitioners recognize this. (Pet. 17 n.6) It is equally clear
from context that this error is far more likely to be the result of care-
less proofreading than some misunderstanding of the law, as petition-
ers suggest.
16
petitioners here) has expressly waived reliance on a particular
issue On appeal, this Court will not consider that issue on certio-
rari, even in cases where the Court has addressed a previously
unsettled point of law in a supervening opinion. Helvering v.
Wood, 309 U.S. 344, 349 (1940). (Supreme Court declined to
consider an issue when petitioner specifically waived reliance on
that issue in the Court of Appeals, even though, under opinion
announced in a companion case, Helvering v. Clifford, 309
U.S. 331 (1940), petitioner would have prevailed on the merits.)
Attempting to avoid the impact of their waiver, petitioners
apparently suggest that they should be excused from their fail-
ure to press their disparate impact argument on appeal in this
case because the Second Circuit had already rejected the identi-
cal argument in a prior case. Rossini v. Ogilvy & Mather, Inc.,
798 F. 2d 590 (2d Cir. 1986). (Pet. 5 n.2, 9 n.3) Such a conten-
tion is unpersuasive for two reasons.
First, the Second Circuit in Rossini did not even consider the
question that petitioners failed to preserve here—whether dis-
parate impact treatment for subjective employment practices
would affect the propriety of certifying a class in a Title VII
case. Thus, petitioners could not rely on the decision in Rossini
to excuse their failure to raise the issue, even if the pendency of
an adverse decision would otherwise have vitiated their
waiver—which it would not.
Second, petitioners’ failure to preserve their disparate impact
argument is particularly inexplicable in light of the fact that the
issue was the subject of conflict between the circuits; indeed,
petitioners’ counsel (who were, coincidentally, counsel in Ros-
sini ) made that very point to the Second Circuit in Rossini. /d.,
798 F.2d at 605. And this court granted certiorari in Watson to
resolve that conflict a mere three weeks after the District Court
announced its decision in this case, which was well before the
instant appeal was perfected. Watson v. Fort Worth Bank &
Trust Co., cert. granted, _U.S. , 107 S. Ct. 3227 (June
22, 1987). Petitioners could have apprised the Second Circuit of
the pendency of Watson and, if they deemed the case important
or relevant here, they could even have moved for a stay of pro-
17
ceedings in the Court of Appeals pending the decision in Wat-
son. That they chose not to do so, thereby depriving this Court
of the Second Circuit’s views on the question they now pro-
pound, speaks volumes about the irrelevance of Watson to the
issue of class certification in this case.
Conclusion
The petition for a writ of certiorari should be denied.
Dated: New York, New York
September 13, 1988
Respectfully submitied,
COLLEEN MCMAHON
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
Counsel of Record for
Respondents
Of Counsel:
Morris B. Abram
Jay Cohen
Diana Hassel
la
No. 87-7540
United States Court of Appeals
FOR THE SECOND CIRCUIT
te
PATRICIA SHEEHAN, ELIZABETH HENOCH, and KAYHAN
HELLRIEGEL, on Behalf of Themselves and All Others
Similarly Situated,
Plaintiffs-Appellants,
—against—
PUROLATOR, INC. and PUROLATOR COURIER CORP.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
PLAINTIFFS-APPELLANTS’ BRIEF
VLADECK, WALDMAN, ELIAS
& ENGELHARD, P.C.
Attorneys for Plaintiffs-Appellants
1501 Broadway, Suite 800
New York, New York 10036
(212) 354-8330
Of Counsel:
Judith P. Vladeck
Joseph J. Garcia
Laura S. Schnell
2a
TABLE OF CONTENTS
TAREE CD ALR SUD ccc ckssccssescnsasecneen
FIED WEG NMED oc cn cece vecsencenseaneeouapes
POINT |
DENIAL OF CLASS CERTIFICATION WAS AN
Pe AOE CEC hb 6c nc nkg ns ackadkan donne
A. The District Court Erroneously Required Affi-
davits From Class Members When Plaintiffs
Presented Substantial Evidence of Defendants’
Discriminatory Policies .................eee-
B. The District Court’s Refusal To Certify The
Plaintiffs As Class Representatives Was An
Pa SE TORR «no vk Se a ex dvkeus
POINT II
THE DISTRICT COURT’S FINDINGS ON
SHEEHAN’S AND HENOCH’S DISCRIMINA-
TION CLAIMS ARE CLEARLY ERRONEOUS..
A. The District Court’s Failure To Consider The
Discriminatory Atmosphere And The Sex-
Biased Attitude Of Purolator’s Decisionmakers
Constitutes Reversible Error
PAGE
19
19
19
26
36
36
ean oan
3a
PAGE
B. The District Court Improperly Evaluated the
Statistical Evidence........----++e essere eee: 39
POINT Ill
THE DISTRICT COURT’S FAILURE TO EXAM-
INE FULLY PLAINTIFFS’ RETALIATION
CLAIMS REQUIRES REVERSAL .........----- 44
Pe a os 50
4a
TABLE OF AUTHORITIES
Cases: PAGE
AFSCME y. County of Nassau, fe
FEP Casts SB3 C.07.00. 8. PTs ohaktacncsaadencen 4
Anderson v. City of Bessemer City, 470 U.S. 564 (1985) 46
Avagliqano v. Sumitomo Shoki America, Inc., 104
ie ROR ae | ee rr re 28
Bauman vy. U.S. District Court, 557 F.2d 650 (9th Cir.
oe) A er On BAPE Em eet y rer ENE t See u ee Met 21
Bazemore vy. Friday, aah , 106 S.Ct. 3000, 92
| Me BEd CUES ci ee Lao ae secu hw da 3, 7, 25, 42, 43, 44
Bell v. Birmingham Linen Service, 715 F.2d 1552 (11th
Cees Woe ba ke kobe Ree ahd aneene sarees 36
Benson vy. Little Rock Hilton Inn, 30 Empl. Prac. Dec.
Ser DS oe ee, Ps RE eka aan aeeeuuden eens 23
Carpenter v. Stephen F. Austin State University, 706
oe fe Ee oe. er er eee 28
Castaneda v. Partida, 430 U.S. 482 (1977)............ 8
Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th
Cir. 1986), cert. denied, U.S. , 107 S.Ct. 274
CURR a 5 60 05 ioe 40 oP EES Oh ahha ois AGES 20, 21, 28
Davis v. State University of New York, 802 F.2d 638 (2d
Cs Sd sine has Ws eae aR eee ae 44
DeCintio v. Westchester County Medical Center,
F.2d , 44 FEP Cases 32 (2d Cir. 1987)...... 44, 45, 49
De La Fuente v. Stokley-Van Camp, Inc., 713 F.2d 225
(7th Cir. 1983)
SCH ESL ECHABHHRSEBEA HEC CCE ALH OD TAB E ODE SE 6 0
ig. anon
Sa
PAGE
Dominic v. Consolidated Edison Co., F.2d ?
eo et UU Re ef rere 45
Duke v. University of Texas at El Paso 729 F.2d 994 (Sth
Cir.), cert. denied, U.S. , 105 S.Ct. 386
RE Wns WHO's oe ke RES Ee CNT REWER Seas 7
Eastland v. TVA, 704 F.2d 613 (11th Cir. 1983), cert.
Ge ia FO CR evans cen donccaakadnes 43
Eisen v. Carlisle, 417 U.S. 1567 (1974) ............... 28, 35
Equal Employment Opportunity Commission v. Sage
Realty Corp., 87 F.R.D. 365 (S.D.N.Y. 1980)....... 39
Francis vy. American Telephone & Telegraph Co., 55
Fee. ee NEED ci iio cb wlkn saab eda Raa des 47
General Telephone Company of the Southwest v. Falcon,
ee Pe I io hes oe cdg oe uaale eee oe 3, 4, 20, 27
Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir.
SN ceed acn each Ke ed Cte bb hae eae eee 45
Grant v. Morgan Guaranty, 548 F.Supp. 1189 (S.D.N.Y.
264k CERES CLEAN R VEES RGN a OREN 22
Griffin v. City of Omaha, 785 F.2d 620 (8th Cir. 1985) 36
Hansen v. Webster, 41 FEP Cases 223 (D.D.C. 1986).. 29
Hazelwood School District v. United States, 433 U.S. 299
SE See Doce ie teat ade bug ease sloaede ae 8
Herbst v. Able, 46 F.R.D. 11 (S.D.N.Y. 1969) ........ 35
Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984). 35
Hopkins v. Price Waterhouse, F.2d ___, 44 FEP
eee eee ee, ED oh oh ec ba waa ke eee ncn ae 38
6a
PAGE
Jordan v. Wilson, 649 F.Supp. 1038 (M.D. Ala. 1986) . 39
Lilly v. Harris Teeter Supermarket, 720 F.2d 326 (4th
Cir. 1983), cert. denied, 466 U.S. 951 (1984)........ 27
Lo Re v. Chase Manhattan Corp., 431 F.Supp. 189
(S.D.N.Y. TS7F bs ik cceceeakeea eres 33
Martin vy. Eastern Pub. Co., 73 F.R.D. 678 (E.D. Pa.
IDTT). oc cccrivccncsdawiae pase ee eee ee 34
McDonnell Douglas v. Green, 411 U.S. 792 (1973)..... 45
McKenna v. Weinberger, 729 F.2d 789 (D.C. Cir. 1984) 38
McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) .... 28
Mersey v. First Republic Corporation, 43 F.R.D. 465
(S.D.N. 7. YOR. i oscsca va cane eens 35
Meyer v. MacMillan Publishing Co., Inc., 95 F.R.D. 411
(S.D.N.Y . FO) 66nd dense 33
Moffett v. Gene B. Glick Co., 621 F. Supp. 244 (N.D.
ind. 96S) 2 occa kceec¢asaae eee eee 46
Mosley vy. General Motors Corp., 497 F. Supp. 583,
aff'd, 691 F.2d S04 (Gth Cir, JOBE)... occ ncccacesc 49
Odom vy. U.S. Homes Corp., 76 F.R.D. 381 (S.D. Tex.
W975)... ucccsthans desde eee eee 34
Richardson v. Restaurant Marketing Associates, Inc., 83
F.B.D. 268 GN.0D. Cae. Biles see ee ee 24
Rossini v. Ogilvy & Mather, 798 F.2d 590 (2d Cir.
| POPPER ere ry rere el he ery ra oe passim
Rowe v. Bailar, 26 FEP Cases 1145 (D.D.C. 1981)..... 31
Rule v. Iron Workers, Local 296, 568 F.2d 558 (8th Cir.
+ cna lll
7a
PAGE
Sheehan v. Purolator, 103 F.R.D. 641 (E.D.N.Y.
Sai penis PPPereeee reer erereee errr e eee passim
Sheehan v. Purolator, 676 F.2d 877 (2d Cir. 1981)..... 2
Sheehan v. Purolator, 36 FEP Cases 1449 (E.D.N.Y.
eee ia sua seaseceaescasesecss 2
Society for Good Will to Retarded Children v. Cuomo,
ee 19
Sperry Rand Corp. v. Larson, 554 F.2d 868 (8th Cir.
Os 35
Steffin v. First Charter Financial Corporation, 77 F.R.D.
es dei aheacecseceeadicdusss 26
Teamsters v. United States, 431 U.S. 324 (1977)....... 7, 25
Thompkins v. Morris Brown College, 752 F.2d 558 (11th
Cs eel beedesaceuneeenewes errr. 36
Warren v. ITT World Communications, 95 F.R.D. 425
Ee a 23
Wheeler v. City Of Columbus, 686 F.2d 1144 (Sth Cir.
ee eC aaiddesbscecewans 38
Womack v. Munson, 619 F.2d 1292 (8th Cir.), cert.
Se ee EO, PW COMED caso cect cesecsscascecs 45
Williams v. Boorstin, 451 F. Supp. 1117 (D. D.C. 1978),
rev’d on other grounds, 663 F.2d 109 (D.C. Cir. 1980),
ey SS EE UP. DOS CEDUED ccc cece ticscesees 34
Wright v. Stone Container Corp. , 524 F.2d 1058 (8th Cir.
8a
PAGE
Statutes and Rules:
ra ery passim
Ge SPs NEED 6 645d Saks cee tescccdseducawene 2
Rule 23, Federal Rules of Civil Procedure............ passim
Treatise:
Manual for Complex Litigation ..................... 20, 21
9a
ISSUES PRESENTED
1. Whether the District Court erred in its class certification
decision in requiring affidavits from class members when plain-
tiffs presented substantial evidence of defendants’ discrimina-
tory policies, discriminatory attitude and statistical evidence of
discrimination.
2. Whether the District Court erred in holding that the plain-
tiffs were inadequate class representatives.
3. Whether the District Court clearly erred in finding that
plaintiffs did not suffer from discrimination, when it failed to
consider the discriminatory atmosphere at Purolator and the
sex-biased attitude of defendants’ officials, and when it
improperly rejected plaintiffs’ statistical evidence.
4. Whether the District Court’s findings of no retaliation
against Sheehan and Henoch are clearly erroneous.
10a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 87-7540
~~
PATRICIA SHEBHAN, ELIZABETH HENOCH, and KAYHAN
HELLRIEGEL, on behalf of themselves and all others simi-
larly situated,
Plaintiffs-Appellants,
—against —
PUROLATOR, INC. and PUROLATOR COURIER CORP.,
Defendants-Appellees.
STATEMENT OF THE CASE
This action was brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e ef seq.
(‘Tithe VII'"), by plaintiffs Patricia Sheehan (‘‘Sheehan’’),
Elizabeth Henoch (‘‘Henoch’’) and Kayhan Hellriegel
(‘*Hellriegel’’), on behalf of themselves and a proposed class of
female exempt (salaried) employees and former employees
of Purolator Courier Corporation and Purolator Inc.
(‘‘defendants’’/**Purolator’’). The Complaint generally alleged
that defendants unlawfully discriminated against plaintiffs, and
the class of women they sought to represent, in assigning them
to lower paying, lower status positions, in promotion and trans-
fer opportunities and in the payment to them of lower salaries
and other benefits than those given to similarly-situated males.
In addition, plaintiffs Sheehan and Henoch asserted that they
were retaliated against for having filed charges of discrimina-
tion. See Tithe VII, 42 U.S.C. [2] § 2000e-3(a). Plaintiffs
requested injunctive relief and monetary compensation for
back pay and other benefits lost by them and by members of the
proposed class as a result of the defendants’ unlawful practices.
a
In March, 1983 plaintiffs moved, pursuant to Rule 23(b)(2)
of the Federal Rules of Civil Procedure, for class certification. '
That motion was denied by the Hon. |. Leo Glasser in Decem-
ber, 1984. The Court’s decision is reported at 103 F.R.D. 641.
After the class certification motion was denied, Hellriege! and
Purolator entered into a settlement agreement resolving all of
her claims.
The claims of discrimination and retaliation’ alleged by plain-
tiffs Sheehan and Henoch were tried to the Court from June 24
through July 3, 1985. The District Court issued its decision on
May 27, 1987, dismissing all of plaintiffs’ claims. That decision
is unreported. (See J.A. 3224-38). Plaintiffs renewed their
motion for class certification at the conclusion of the trial on
the merits (J.A. 3152-53) and, although in its decision on the
merits the District Court acknowledged that [3] plaintiffs’
renewed motion was pending, it did not comment on it further.
(See J.A. 3224-38). Judgment was entered on June 2, 1987. On
June 30, 1987, plaintiffs Sheehan and Henoch appealed from
all adverse opinions and orders of the Court below. (J.A. 3240-
41).
SUMMARY OF ARGUMENT
Plaintiffs appeal from the denial of their motion for class cer-
tification pursuant to Rule 23 of the Federal Rules of Civil Pro-
cedure and from the dismissal of their individual claims, which
alleged sex discrimination in the terms and conditions of their
! Many months of discovery, at large expense to plaintiffs, were
wasted in resisting defendants’ motion to dismiss the complaint as against
Purolator, Inc. Well after all papers were filed on the class certification
motion, Purolator, Inc. and Purolator Courier announced consolidation of
their headquarters and that the executive officers of Purolator, Inc. were
assuming responsibility for their respective functions at Courier. This made
de jure what plaintiffs had asserted was the fact at an earlier time. (See Joint
Appendix 1199-1200; “J.A.”*).
2 = This District Court earlier denied defendants’ motion for summary
judgment with respect to Sheehan's retaliation complaint. 6 FEP Cases 1449
(1982). This case was before this Court in 1981 when the Court reversed the
District Court's holding that it was without jurisdiction to hear Sheehan's
retaliation claim. 676 F.2d 877 (1981)
l2a
employment, and retaliation for having complained of discrimi-
nation.
In its analysis of plaintiffs’ application for class certification,
the Court below ignored plaintiffs’ factual showing and made
fundamental errors of law in applying General Telephone Com-
pany of the Southwest v. Falcon, 457 U.S. 147 (1982). These
errors resulted not only in the incorrect initial denial of the
motion, but also permeated the Court's erroneous assessment
of the merits of the individual plaintiffs’ claims. The District
Court’s failure to consider or rule on the renewed motion for
class certification in its final opinion is inexplicable and in disre-
gard of the additional evidentiary support for the motion devel-
oped on trial. It also is contrary to controlling decisions of this
Court and the United States Supreme Court issued after the
trial, but before issuance of the Court’s opinion and order of
May 27, 1987. See Bazemore vy. [4] Friday, 478 U.S. , 106
S.Ct. 3000, 92 L.Ed.2d 315 (1986); Rossini v. Ogilvy & Mather,
798 F.2d 590 (2d Cir. 1986).
The Court’s rulings not only disregard the requirements of
Rule 23(c)(1), but also reject sub silentio the express admonition
of this Court in Rossini that ‘‘the primary thrust of Falcon was
that satisfaction of Rule 23a) requirements may not be pre-
sumed’’ and that the Supreme Court in Falcon ‘‘did not hold
that a plaintiff asserting one particular type of claim can never
represent a class of employees asserting other types."’ 798 F.2d
at 597 (emphasis in original). In addition, had the District
Court applied Bazemore, 92 L.Ed.2d at 329-33, to the statistical
evidence, it would have been obliged to credit plaintiffs’ proof
both for purposes of class certification and liability.’
3 The Court's failure to address Rossini is even more baffling in view
of the citation to it in an opinion issued by the same Court less than two
months after it issued its final opinion in this case, in which the Court
granted class certification on allegations similar to those herein. See
AFSCME v. County of Nassau, F.Supp. , 44 FEP Cases 583,
$86 (E.D.N.Y. 1987). Applying the law as it was set forth in AFSCME, id.
at 585-86, the Court could not have denied plaintiffs’ motion for class certifi-
cation here. There, the Court, in what it deemed a disparate treatment case
l3a
The Court below misapprehended the law, and its obligations
under Rule 23(c)(1), in the following critical respects:
1. The Court ruled that, since Falcon, class representatives
are required to supply affidavits from class members to demon-
strate not only the ‘‘existence of an aggrieved class’’, but also
that other class members ‘‘feel aggrieved’’ in order to show typ-
icality. 103 F.R.D. at 648-49. In so doing, the Court errone-
ously required what in effect was an opt-in procedure.
[5] 2. The Court, ignoring the facts and prevailing law, found
that Sheehan, Henoch, and Hellriegel could not represent a
class of all female exempt employees because they occupied
‘‘relatively high level’’ positions. 103 F.R.D. at 650, 653, 655.
3. The Court ruled that Sheehan, Henoch and Hellriegel
could not be proper class representatives because they asserted
that they had suffered unlawful retaliation, in addition to their
class wide claims of discrimination in compensation, promo-
tion, and other conditions of employment. 103 F.R.D. 652,
653-54, 656.
The District Court also made far-reaching and fundamental
errors in evaluating the evidence before it, at both the class cer-
tification and trial stages of the litigation. The Court committed
clear error and abused its discretion in failing to recognize that
decisions were being made in a highly sex-biased atmosphere
and by officers and supervisors with company mandated sex-
biased directives. Thus,
1. The District Court never mentioned Purolator’s blatantly
sex-biased written policies, which were distributed to all officers
of the company and ‘‘to all managers within the field organiza-
tion, terminal mangers, [and] those people having direct day to
day responsibility for running the operations,’’ and which were
issued in 1971, renewed in 1975, and not withdrawn until
of salary discrimination, certified a class of all female Nassau County civil
service employees who were employed in traditionally female jobs (those hav-
ing 70% or more females).
l4a
shortly before trial in 1983 or 1984. (J.A. 2101-02, 2106; E.A.
1). Those policies and interperations included:
(a) An express belief that ‘‘{t]he sex of the individual is
more often related to job success than one might expect.”’
(Exhibit Appendix 1; ‘‘E.A. ___’’). ‘‘The sex of the
employee is often related to turnover.’’ (/d.)
(b) An admonition that the amount of responsibility an
employee may be allowed to assume should be related to
the number of dependents. Specifically, ‘‘[i]n the case of
women applicants, the number and ages of children are
important.’’ Managers and supervisors also are directed to
determine how the children are to be cared for while the
‘*mother’’ works. (/d.)
(c) An express preference for promoting men by
instructing managers and supervisors that, ‘‘before decid-
ing on a man for promotion’”’ consider such highly subjec-
tive criteria such as the candidate’s ‘‘heat [6] resistance’’
and loyalty because ‘‘being loyaltothe Company. . . . is
a quality of men who are responsible for the success of its
operation.’’ (J.A. 726) (emphasis added).
The District Court also ignored testimony that showed the
sex-biased attitude of Purolator officials:
2. The District Court erroneously ignored an admission by
Sheehan’s supervisor that he did not take her request for trans-
fer seriously because he knew she had children. (J.A. 2203).
This testimony not only demonstrated the biased attitude of her
supervisor, but also showed that he took seriously and imple-
mented the express policy that women with children were not to
be given responsibility within Purolator.
3. It was erroneous for the District Court to ignore the testi-
mony of a former male manager that he was told to pay women
low salaries because they had husbands, and that based upon
his management experience within Purolator, he observed
women were paid less than their male counterparts, and that it
was more difficult to get promotions or salary increases for
women than for men. (E.A. 362-63, 365-66, 394, 399).
lSa
4. The District Court erroneously refused to allow a witness
to testify at trial that John Delany (‘‘Delany’’) (both Henoch’s
and Sheehan’s supervisor) told her she would not be considered
for a position because no one would be respectful of a woman
in that position. (J.A. 2524-25).
5. The District Court completely ignored testimony support
ing Purolator’s former affirmative action officer that Purolator
only paid lip service to affirmative action (B.A. 125; J.A. 2174-
77), including the written admission that women in Purolator’s
work force are underutilized as officials and managers (E.A. 3)
and that Purolator’s affirmative action deficiencies disqualified
it for certain government contracts. (J.A. 2277-79)
6. The District Court erroneously rejected plaintiffs’ statis-
tics in foto on the ground that plaintiffs’ regression analysis,
which included all exempt employees, did not have variables for
education and prior experience, even though defendant’s expert
testified that he could not state what effect, if any, including
those variables would have on the results—and defendants
offered no study of all exempt employees although it had the
data available to do so.
These errors, independently and cumulatively, so tainted the
District Court’s evaluation of plaintiffs’ case as to require
reversal and vacation of both the class certification [7] decision
and the decision on the merits. Both Sheehan’s and Henoch’s
individual claims were unfairly burdened by the Court’s errone-
ous Class certification determination. As the Fifth Circuit noted
in Duke v. University of Texas ai El Paso, 729 ¥.2d 994, 997
(Sth Cir.), cert. denied, 469 U.S. 982 (1984), ‘‘had [plaintiff’s}
class claims prevailed, she would have faced a distinctly less
onerous burden at the trial of her individual claim.’’ See also
Rossini, 798 F.2d at 606. Findings in favor of the class would
have simplified plaintiffs’ proof in the individual! claims and
shifted the burden of proof to Purolator on their claims. See
Teamsters v. United States, 431 U.S. 324, 362 (1977)
l6a
FACTS
Work Force Distribution
Purolator is engaged in the business of providing courier ser-
vice over ground and air routes. Of the 1,113 salaried employ-
ees in 1982, 798 were male and 315 female; women thus
comprised approximately 28% of defendants’ exempt (salaried)
work force. (J.A. 727).* In Corporate Headquarters, of 109 sal-
aried positions, 34 were occupied by women (31%); in the East-
ern division, of 482 salaried employees, 155 were women
(32%); in the Western division, of 240 salaried employees, 67
were women (28%); and the Southern division, 57 of 264 sala-
ried employees were women (22%). (J.A. 727-28)
[8] The women represented in Purolator’s exempt work force
were at the lowest levels and in a few job categories: in 1982,
there were 39 officers, of whom only two were women; of 32
directors, only one was a female; there were no female senior
managers, and of the 222 managers, only 31 were female. (J.A.
729). Almost one-half of the male exempt employees were in the
high salaried, upper level ranks; about one-fourth of the
women were at those levels. (See id.)
Purolator admitted that it underutilized women in manage-
rial, professional, and sales areas. (E.A. 3). It was also shown
that from 1976 forward, 60% to 88% of all exempt job titles
were sex segregated. (J.A. 730).° The facts were confirmed by
plaintiffs’ unchallenged statistical analysis, which showed that
there was a statistically significant underrepresentation of
4 Plaintiffs sought to represent a class comprised of defendants’
female exempt employees. The facts provided herein are derived from the
record the District Court had before it for initial determination of the Rule
23 motion and after trial.
5 There are no jobs in Purolator that require male only/female only
assignments. Purolator has a promote from within policy, and as Paul
Wolfrum, a Senior Vice President testified, a high school education, ‘‘with
experience’’ was sufficient qualification for most jobs. (J.A. 2860).
hae TatSe
17a
women in Purolator’s exempt work force, when compared with
a census-derived nationally qualified work force. (E.A. 110).°
Criteria Used In Personnel Decision Making
The District Court was provided with, and totally ignored,
direct evidence of highly subjective and gender-related [9] crite-
ria applied by Purolator in all aspects of employment.’ The
Supervisory Manual instructs personnel conducting initial inter-
views of applicants for jobs that it is ‘‘especially important to
detect’’ the applicant’s marital status and ages of any children.
(J.A. 723). The Manual goes on to explain:
Inahe case of women applicants, the number and ages of
children are important. Follow-up in the interview should
ascertain how the children are to be taken care of while the
mother works and whether it will be necessary for her to
leave her job in the event that they are sick.
(E.A. 1). The Supervisory Manual explains that ‘‘the sex of the
individual is more often related to job success than one might
expect’? and further that the ‘‘sex of the employee is related to
turnover.’’ (E.A. 1). These policies remained in effect at least
until 1983 or 1984. (J.A. 2102).
Two high level company officials, James Rapp (‘‘Rapp’’)
and Paul Wolfrum (‘‘Wolfrum’’), confirmed that promotions
are based on supervisors’ selections, for which no objective
qualifications are established; nor is there job posting within
Purolator. Both Rapp and Wolfrum testified that they never
had to request a promotion to a higher position; rather, each
6 The results of this study were statistically significant at two standard
deviations or greater. See Castaneda vy. Partida, 430 U.S. 482, 497 n.17
(1977). ‘‘As a general rule for such large samples, if the difference between
the expected value and the observed value is greater than two or three stan-
dard deviations,’’ then the hypothesis that exempt employees at Purolator
were hired without regard to sex would be suspect. Jd. See also Hazelwood
School District v. United States, 433 U.S. 299, 309 n.14 (1977).
7 The Court ignored this direct evidence both in the denial of class cer-
tification and in its ultimate decision on liability. The evidence was uncon-
troverted and clearly highly relevant; the Court simply made no reference to
it.
18a
was tapped for each promotion by another male superior. (See
J.A. 668; 2862). In conformity with that practice, Purolator’s
manuals instruct supervisors that, ‘‘before deciding on a man
for promotion,’’ they should weigh subjective criteria, such as
the candidates’ ‘‘heat resistance’’ or ability ‘‘to handle himself
when [the] heat is on’’, [10] whether he is a ‘‘self-starter’’, or is
‘‘loyal’’ because ‘‘being loyal to the Company. . . is a quality
required of men who are responsible for the success of its oper-
ation.’’ (J.A. 668).
The trial evidence also showed, without contradiction, that
Sheehan’s supervisor refused to ‘‘take [ ] seriously’’ her request
for transfer to a field position because she had children. (J.A.
2203).° A former male manager testified that he was told to pay
women low salaries because they had husbands, that women
were paid less than their male counterparts and that based upon
his management experience within Purolator, it was more diffi-
cult to get salary increases and promotions for women than for
men. (E.A. 362-63, 365-66, 394, 399).
Finally, Purolator’s former affirmative action officer
believed that affirmative action at Purolator was given only lip
service. (E.A. 125; J.A. 2174-77). This was borne out by the
admission in Purolator’s affirmative action plan that women
were underutilized at the official managerial levels. (E.A. 3-4).
Another witness testified without contradiction that Purola-
tor’s affirmative action deficiencies disqualified it for certain
government contracts. (J.A. 2277-79).
8 Another female employee would have testified that Delany
(Sheehan’s and Henoch’s supervisor) told her that she would not be consid-
ered for a position because no one would be respectful of a woman in it.
(J.A. 2524-25). The Court did not permit the employee to testify on the
ground that her testimony went to the classwide issues. In so doing, the
Court erroneously rejected the argument that the testimony was relevant to
show Delany’s sex-biased attitude in personnel decisionmaking. (See infra,
pp. 38-39).
19a
Salary Disparities
[11] Plaintiffs established that women were not only relegated
to a limited number of jobs, but that they were paid far less
than men who occupied male only jobs. Thus, plaintiffs’ evi-
dence showed:
Average Weekly Average Weekly
Salary of Female- Salary of Male- Difference
Only Job Titles Only Job Titles Weekly Annually
1976 $248 $364 -$116 -$ 6,032
1977 293 437 - 144 - 7,488
1978 261 444 - 183 - 9,516
1979 277 476 - 199 - 10,348
1980 311 513 - 202 - 10,504
1981 31] 621 - 310 - 16,120
1982 362 711 - 349, - 18,148
(E.A. 108; J.A. 733).
In 1982, the mean salary for all exempt employees was
$435.41 per week. The mean salary of the 798 male exempts was
$490.21 per week; the mean salary of the 315 female exempts
was $296.58. That difference between male and female salaries
translated into an annual disparity of $10,068.76 in favor of
men. (E.A. 107; J.A. 733-34).
Gross salary differences between Purolator’s male and
female exempt employees were shown to exist even within job
groupings. For example, in 1982, male managers earned $622
per week—female managers earned $387 (an annual difference
of $12,220); similarly, in 1982, male supervisors earned $450
per week—female supervisors earned $322 (an annual differ-
ence of $6,656). The male salary advantage persisted even
where males and females with comparable tenure were com-
pared. (j.A. 734-35).
[12] Plaintiffs’ regression analysis, which remained unrebutted
by defendants (see, infra, p. 41) showed that when sex, age of
employee, tenure with Purolator, and job groupings were fac-
tored and considered simultaneously, male salary domi-
20a
nance persisted at a statistically significant level of two standard
deviations or greater:
Weekly Annual
Male-Female Salary Male-Female Salary
Difference Difference
1980 -$60 ~$3,120
1981 - 81 - 4,212
1982 - 99 - 5,148
(J.A. 735; E.A. 106).’
Promotion and Training
Plaintiffs’ evidence established, through proof of longstand-
ing sex-segregation of Purolator’s work force and gross male
salary advantage, that defendants’ promote from within policy
was not applied evenhandedly and that Purolator’s written
preference for promoting men over women (see J.A. 726) was
in fact applied to personnel decisions.
Promotion discrimination also was demonstrated by the fact
that men who achieve high-level, male-only positions are pro-
moted out of job categories occupied by both sexes. For exam-
ple, in 1982, men who were in the male-only job categories of
Division Transportation Manager, Regional Operations Man-
ager, [13] District Operations Manager, Divisional Vice Presi-
dent, District Manager, and Account Executive had at one time
occupied sex-integrated ‘‘feeder’’ positions of courier, courier
Supervisor, dispatcher, and sales representative. (J.A. 735).
Plaintiffs established, without contradiction, that during the
years 1981 and 1982, ten men and no women were appointed to
defendant’s Management Training program, and that since
1975, thirty-nine men and five women held the position of Man-
agement Trainee. (E.A. 113). In 1982, a woman who had gone
9 When geographic location was factored in, the male-female salary
difference increased; to wit, in 1980—$3,432; 1981—$4,524; and 1982—
$5,356. (J.A. 1258). These disparities were statistically significant at two
standard deviations or greater.
Pa RAR ae 0 tt BRB OO 8! ont esta i
PD nts:
2la
through the Training Program was earning approximately
$108.00 less per week than the male who had completed that
same Program. (E.A. 113).
Women also have been denied the right to certain important
fringe benefits, including corporate automobiles, a not incon-
siderable supplementary form of compensation. (See, infra,
p. 41).
Personnel Policies
Purolator is highly centralized and all decisions affecting its
employees at all locations emanate from Corporate Headquar-
ters. All business decisions come from Headquarters; all
personnel decisions, including job descriptions, lines of pro-
gression, hire, discipline, termination and salary are dictated by
Headquarters. Uniformity is achieved through periodic meet-
ings with management personnel and issuance by Headquarters
of standarized policies and procedures. (See J.A. 707-22).
[14] Additionally, for many personnel matters, managers from
headquarters go into the field to assure uniformity of response
to particular problems. (See J.A. 712-22). Purolator’s efforts to
portray itself as decentralized were put to rest during trial, when
its former Senior Vice President for Human Resources
explained his resignation in 1982 as arising from his philosophi-
cal differences with Senior Management: He espoused decen-
tralization; they insisted on strict centralization. (J.A. 2156).
Claims of the Proposed Class Representatives
The plaintiffs are women who were employed by Purolator in
exempt positions.'° Plaintiffs’ claims were typical of those of
the proposed class. Sheehan and Henoch asserted that, as other
class members had been, they had been discriminated against in
the terms and conditions of their employment because they
were women; that they had been denied opportunities open to
similarly qualified or less qualified men; and were paid low sal-
aries and denied other benefits because they were women.
10 ~=At the time of the class certification motion, Sheehan’s employment
had been terminated; Hellriegel had quit, claiming that harassment had made
her continued employment impossible; Henoch remained employed.
22a
Just before she was fired, Sheehan was classified as a Staff
Vice President, Administration. She alleged that her employ-
ment was unlawfully terminated on August 5, 1981 in retalia-
tion for her complaints against defendant. (J.A. 34). Prior to
joining Purolator in 1969, she had been employed as a [15]
manager with another company for nine years. (J.A. 697-98,
1785).
From early in her employment, Sheehan sought opportunities
to move from a staff position at Corporate Headquarters into a
line position in the field, where there were better opportunities
for advancement and increased salary. (J.A. 698, 1819-22). She
repeatedly expressed to top management her observation that
women in the Corporation were being denied a chance to move
into higher level positions and were being grossly under-
compensated in comparison to similar males. (J.A. 698, 1819,
1838, 1840). She pointed out that a simple head count would
confirm the longstanding practice of excluding women from
upper-level jobs. (J.A. 698). John Nichols (‘‘Nichols’’), one of
the supervisors, recorded for the file Sheehan’s discussions with
him reflecting her efforts to obtain a fair salary and promotion
opportunity. One of his memoranda quotes her as saying in
1980 that she would wait to see what the new President’s ‘‘pol-
icy toward women and men in similar positions was.’’ (E.A. 8).
Sheenan’s requests for equity for herself and other women in
the Corporation first were rebuffed by either the excuse that
there were no available positions, although she saw her male
subordinates getting the jobs she had sought, or the promise to
‘*get back to her’’. (J.A. 698). Nichols, Sheehan’s supervisor at
the time. testified at trial that he did not take seriously
Sheeha, . request for transfer because she had children (J.A.
2203).
[16] Henoch received a B.S. in Marketing from New York Uni-
versity in 1947. (J.A. 700, 2233). At the time Henoch was hired
as a secretary by defendant in 1967, she had acquired business
experience. (J.A. 700, 2233-34). Shortly after her hire, Henoch
became responsible for handling applications to the Interstate
Commerce Commission (‘‘ICC’’) for Purolator’s tariff approv-
als. (J.A. 700, 2239-43).
On her own time and at her own expense, Henoch pursued a
course to become licensed as an ICC practitioner. (J.A. 700).
— a
23a
Despite the responsibilities she had assumed in the handling of
tariffs, and despite the title changes which resulted in her ulti-
mately acquiring the title of Staff Vice President, Henoch’s sal-
ary did not keep pace with that of men who were promoted
faster or paid more than she, although their responsibilities and
qualifications were comparable to hers. (J.A. 700). Like
Sheehan, Henoch was denied use of a company automobile
while her male counterparts enjoyed this perquisite. (J.A. 700-
01).
Henoch’s requests for consideration for transfers and for
promotions were ignored by Purolator. During the seventies,
she applied for a position in the Marketing Department,
because she had a marketing degree and was seeking opportuni-
ties to advance. (J.A. 2247-48). Her application, in her words,
was ‘‘not taken seriously.’’ (J.A. 2248). Henoch spoke on a
number of occasions to Delany, Nichols and to Executive Vice
President, James Perry (‘‘Perry’’), about the slowness of her
progress in the Company. (J.A. 2311-12). In those conversa-
tions, Henoch [17] emphasized that she was seeking a line posi-
tion with decision-making functions. (J.A. 2312). She was
never offered such an opportunity.
Like Sheehan, Henoch was denied salary and bonuses equiv-
alent to those granted similarly qualified males. As early as
1975, Henoch began to complain about her salary, after she saw
less qualified and lower ranking males being hired at higher
wages than she was making. (J.A. 2308).
Retaliation
Within months of filing her EEOC charge Sheehan was fired.
Almost immediately after she filed the charge, her responsibili-
ties were changed drastically. (See J.A. 1908-11, 1894-95). Her
long-time subordinates were called into a meeting to witness her
demotion. She was the target of insults; her ability and integrity
were impugned. Her hours were montiored, she was yelled at by
her supervisors and a memo-writing campaign was designed to
keep her on the defensive. (See J.A. 1902, 1904-07).
Sheehan finally reached the end of her rope when she was
required to endure a meeting to review her job responsibilities
24a
and was asked whether her main job function was typing the
purchase orders. (J.A. 1911-12). Rather than blow up and cause
a scene, as other Purolator employees were wont to do,
Sheehan simply left the meeting. When summoned back to the
meeting, she returned as directed, only to be accused of having
constructed a false job description. She again left and refused
to go back because she ‘‘was so upset and could not take any-
more.’* {18} (J.A. 1912-20). She was immediately fired for what
the District Court called ‘‘gross insubordination.’’ (J.A. 3225).
Sheehan was forced to leave Purolator’s premises immedi-
ately and was denied severance pay. As a result, Sheehan was
not permitted to vest in her pension (which she would have done
just one month later), and her son was forced to withdraw from
college in order to support his mother. (J.A. 1923).
The District Court’s own findings show the infirmity of its
ruling that Sheehan was not retaliated against. The Court found
that ‘*‘Delany’s temper was manifested indiscriminately, against
men and women both subordinate and superior to him.”’ (J.A.
3233). Yet, Purolator tolerated that behavior from him, and,
unlike Sheehan, allowed him to resign.
Although not as dramatic, Henoch suffered from a similar
pattern of retaliation—a day-to-day harassment in the form of
memos, surveillance, insults and maligning her to outsiders.
(See, e.g., J.A. 2271, 2304, 2339, 2340-42). Again, that Purola-
tor tolerated the outrageous, unprofessional behavior from
Delany, while not putting an end to the abuse suffered by
Henoch, mandated a finding of unlawful retaliation.
119) ARGUMENT
POINT I
DENIAL OF CLASS CERTIFICATION WAS
AN ABUSE OF DISCRETION
The District Court’s decision refusing to certify the class was
an abuse of discretion, and in direct contravention of the pre-
vailing law in this Circuit. See Rossini v. Ogilvy & Mather, Inc.,
798 F.2d 590, 594 (2d Cir. 1986); Society for Good Will to
25a
Retarded Children v Cuomo, 737 F.2d 1239, 1243 (2d Cir.
1984). The Court’s failure to rule on plaintiffs’ motion in light
of the evidence adduced at trial is also error. See Rossini, 798
F.2d at 594-96.
A. The District Court Erroneously Required Affidavits from
Class Members When Plaintiffs Presented Substantial Evi-
dence of Defendants’ Discriminatory Policies and Statisti-
cal Evidence of Discrimination
The District Court incorrectly held that, in its view of Falcon,
the following substantial evidence was insufficient to show an
aggrieved class:
1) a lengthy affidavit describing the experiences of the
three named plaintiffs, including their deposition testi-
mony; 2) affidavits from two former employees, one, a
woman formerly employed, describing pervasive sex dis-
crimination, and one from a male officer, no longer
employed by the company, describing Purolator’s person-
nel policies and practices; 3) hundreds of pages of exhibits
from defendants’ own records which constituted direct
evidence of Purolator’s discriminatory personnel policies;
and 4) unrebutted statistics showing sex segregation of
jobs and an unrefuted regression analysis showing statisti-
cally signficant male-female salary disparities.
{20} Despite the evidence of discrimination presented by plain-
tiffs, the District Court nonetheless refused to certify a class
primarily because of its view that, since Falcon, plaintiffs are
required to provide affidavits from class members showing that
they too felt aggrieved. 103 F.R.D. at 648-49.
The Court’s clear belief, couched in terms of either the
‘existence of an aggrieved class,’ or commonality or typical-
ity, is that there must be a show of hands by the class on
whether they support the class action and whether they want the
named plaintiffs to be their representatives. 103 F.R.D. at 648;
see also J.A. at 1670-71. Such an “‘opt-in’’ procedure is anti-
thetical to the class action device and has been rejected. See,
e.g., Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1556-
26a
$7 (llth Cir.), cert. denied, 107 S.Ct. 274, 93 L.Ed.2d 250
(1986); Rule v. Iron Workers, Local 296, 568 F.2d 558 (8th Cir.
1977): Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir.
1977).
Rule 23 does not require that class members opt-in. At most,
class actions certified under 23(b)(3) require class members to
be permitted to opt-out.'' The Manual for Complex Litigation
recommends that courts not make submission of a proof of
claim by class members a condition to membership in the class
because this would be the equivalent of an ‘‘opt-in’’ procedure
and inappropriate under Rule 23. MCL 2d (1985) § 30.232. It
also provides that courts should avoid class definitions that
“depend on . . . the seeking of relief (for example, persons
claiming [21] injury or seeking damages from some stated prac-
tice),’” because such a definition would constitute ‘‘an improper
opt-in procedure.”’ Jd. ¢ 30.14.
In Rule v. Iron Workers, Local 296, the district court certi-
fied a class action under 23(b)(3) and directed that notice be
sent to the class stating that any member who did not request
exclusion or who did not return the notice would be in the class.
The district court then decertified the class on the ground that
the number of persons affirmatively requesting inclusion in the
class was so small in relation to the entire class that it failed to
meet the numerosity requirement. See Rule, 568 F.2d at 561.
The Court of Appeals for the Eighth Circuit reversed, explain-
ing that “‘to use as a yardstick the number of class members
who affirmatively opted in (17) although not ever requested to
do so, was to employ a totally unreliable, if not irrelevant, sta-
tistic.”’ Id. at 564. The court noted that a required response
would be inconsistent with the opt-out provisions of Kule 23.
Id. at 563 n.4. See also Bauman v. United States District Court,
557 F.2d 650, 659 (9th Cir. 1977) (“‘If the district court intends,
however, to use non-responses [to notices to class members] to
determine that the nunerosity requirement has not been satis-
fied, it is abusing its discretion because the probable practical
effect of the notice would be to preclude all class actions in
11 =Plaintiffs’ motion was brought pursuant to Rule 23(b,(2), not
2b).
a
27a
major employment discrimination cases.’’) Similarly, in Cox v.
American Cast Iron Pipe Co. , 784 F.2d at 1556-57, the Court of
Appeals for the Eleventh Circuit reversed the use of discovery
sanctions to dismiss class members [22] on the grounds that it
had the same effect as an affirmative opt-in procedure and was
contrary to Rule 23.
Here, the District Court ignored the purpose of class actions,
which are designed to vindicate the rights of persons in the class
who need not come forward and be named, nor expend funds to
litigate their claims. A requirement of affidavit submissions by
class members would be tantamount to an opt-in requirement,
which is unquestionably inappropriate in any Rule 23(b)(2)
class action, and especially so in employment cases where many
of the class members are currently employed by the defendant.
The Court below, in applying its view of the need for such
affidavits, referred to fifty-six sex discrimination complaints
that had been filed by Purolator female employees but dis-
counted that evidence. 103 F.R.D. at 649. The Court assumed
that most of the complaints were automatically irrelevant on
the theory that they had come from non-exempt (hourly paid)
female employees. Jd. The Court failed to recognize that these
complaints were relevant to the discriminatory atmosphere in
which women were forced to function at Purolator and about
which they were complaining. Such evidence of biased attitude
in the work place is not irrelevant, as the Court apparently
believed.
The decisions cited by the Court below do not support its
erroneous view that, since Falcon, affidavits from class mem-
bers who “‘feel aggrieved’’ are essential. In Grant v. Morgan
Guaranty Trust Company, 548 F.Supp. 1189, 1193 (S.D.N.Y.
1982), plaintiffs’ counsel conceded during argument on the
class [23] certification motion that the class claims rested pri-
marily on the allegation that defendant had discriminated
against plaintiff individually. Warren v. [TT Worid Communi-
cations, Inc., 95 F.R.D. 425 (S.D.N.Y. 1982) was similar.
There, the individual plaintiff's EEOC charge was limited to
plaintiff's individual complaint that her job description dis-
criminatorily omitted some of the tasks for which she was
responsible, thereby depressing her compensation. In refusing
28a
to certify a class, the court concluded that her class claim rested
entirely on her allegation that she had been discriminated
against individually.'* 95 F.R.D. at 428-30.
The Arkansas opinion, Benson v. Little Rock Hilton Inn, 30
Empl. Prac. Dec. (CCH) 4 33, 188 (E.D. Ark. 1982) is so
wholly inapposite as to make puzzling the Court’s citation to it.
That court initiated its own inquiry concerning the facts under-
lying the class allegations:
The Court’s inquiries have been directed to a number of
specific areas in which the plaintiffs’ case for class certifi-
cation appeared questionable. Despite the ample opportu-
nity the Court has afforded the plaintiff to factually
support the allegations with respect to the certification
requirements enumerated above, the plaintiff has failed to
adequately document her claims with affidavits, deposi-
tions, interrogatories, or otherwise, and has failed even to
properly proffer the supportive facts which would be
adduced at an evidentiary hearing, if one were held.
[24] Jd. at p. 27,701."°
The District Court also referred to pre-Falcon decisions in
which some courts had refused to certify Title VII class actions
where the plaintiffs had failed to produce affidavits or other
evidence to establish the existence of an aggrieved class. How-
ever, the cases do not support the Court’s broad statement, and
to the extent they support an absolute requirement of affidavits
from class members, plaintiffs submit they are wrong and con-
trary to controlling law of this Circuit.
12 Nor do the two cases from the Northern District of Georgia support
the proposition that affidavits of class members are needed for class certifi-
cation. See 103 F.R.D. at 648. Those two cases, decided by the same District
Court Judge, invited renewed submissions by plaintiffs on class certification
motions as a result of the Court’s view of the impact of Falcon on pending
motions. Nowhere in either opinion is it said that such affidavits are required
by Falcon.
13 Here, during the argument on the class certification motion, the
Court inquired concerning procedures to satisfy it of compliance with Rule
23. Plaintiffs’ counsel informed the Court that the Court could hold a hear
ing to receive additional evidence. (J.A. 1671)
29a
Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir.
1975}, simply has no relevance to the case at bar. Nowhere in
the decision did the court state that affidavits from the class
members were necessary.“
Richardson vy. Restaurant Marketing Associates, Inc., 83
F.R.D 268, 270 (N.D. Cal. 1978) is also inapposite. In that case,
the court denied certification on the ground that plaintiffs
sought to certify six restaurant facilities owned by [25] defen-
dant while the allegations concerned only one restaurant that
was no longer managed by the defendant and its previous man-
ager, who was no longer employed by the company.
Compounding its error in requiring affidavits, the District
Court’s class certification decision failed to consider plaintiffs’
substantial evidence of defendants’ discriminatory policies, as
well as plaintiffs’ unrebutted statistical showing of sex-based
salary differences between men and women.
The District Court found fault with the statistics offered by
plaintiffs in support of the class certification motion, and stated
that the statistics did not, by themselves, establish the existence
of an aggrieved class of female employees. Since Teamsters v.
United States, 431 U.S. 324, 339 (1977), it has been axiomatic
that employment discrimination may be established by statisti-
cal proof. See also Rossini, 798 F.2d at 604. Teamsters has been
uniformly endorsed by subsequent decisions of the Supreme
Court. Falcon did not overrule it or diminish its vitality. To
require preliminary proof for class certification of a different
14 In the instant case, the named plaintiffs in their depositions referred
to other women who, in their opinion had suffered discriminatory treatment.
The Court was provided this information. (J.A. 697-704).
The Court also was referred to Sheena’s deposition testimony that she had
urged defendants to review their own records to confirm her statements that
women were underpaid. (J.A. 698-699) When, during trial, a female
employee was called as a witness by plaintiffs to testify as to her own experi-
ence which showed a general attitude of discrimination against women by
defendants, and specifically by a male who had supervised both Sheehan and
Henoch, the Court refused to hear her testimony. (See, infra, pp. 38-39)
30a
kind than is required to prove liability to the class is simply
unwarranted.
[26] Finally, in rejecting plaintiffs’ statistics, the District Court
reiterated its view that plaintiffs needed to submit additional
affidavits from class members because ‘‘statistics alone [do not]
indicate that other female employees feel aggrieved,’’ citing
Steffin v. First Charter Financial Corporation, 77 F.R.D. 498
(C.D. Cal. 1978). 103 F.R.D. at 649. As discussed infra, such
requirement, standing alone, is error.'®
B. The District Court’s Refusal To Certify The Plaintiffs
As Class Representatives Was An Abuse Of Discretion
The District Court’s reasons for finding that plaintiffs did
not meet the commonality or typicality requirements of Rule
23(a) can be summarized as follows: (1) the plaintiffs were too
‘thigh level;’’ (2) the plaintiffs were unique; and (3) the plain-
tiffs filed retaliation charges. These reasons are wrong as a mat-
ter of law and fact. The Court misconstrued the class claims,
placed undue emphasis on plaintiffs’ titles and elevated plain-
tiffs to an unduly high status. The Court also imported a new
requirement into Rule 23—plaintiffs cannot be different in any
respect from other members of the class.
Although the District Court purportedly rejected defendant.’
attempt to have it rule that disparate treatment Title VII class
actions were barred by Falcon, the District Court’s decision, if
1S The Court, on the class certification motion, had substantial statisti-
cal evidence of both sex segregation and gross male/female salary disparities
presented by plaintiffs based on a study of a// exempt employees. (See J.A.
727-35). Defendants responded with a study based on an artificial sample, '/2
male and '/2 female (where females constituted less than 30% of all
exempts), ‘‘randomly”’ selected employees, which in total were fewer than
8% of all exempt employees in 1982. (See J.A. 1255-60), Defendants’ expert
admitted ‘‘that the sample size was not large enough to permit [him] to draw
a firm conclusion about all exempt employees.’’ (J.A. 1072). The Court,
nonetheless, rejected plaintiffs’ statistics on the ground that all relevant vari-
ables had not been considered, a view that is directly at variance with Baze-
more, 92 L. Ed. 2d at 331.
16 To the extent that Steffin turns on the absence of class member affi-
davits, its holding is erroneous, and certainly not good law in this Circuit or
elsewhere.
3la
left undisturbed, would have nearly the same effect. In Rossini,
this Court rejected a narrow reading of Falcon and reversed the
District Court’s decertification of [27] promotion and training
claims very similar to those alleged here. 798 F.2d at 596-600.
As in Rossini, the plaintiffs here claimed they had to ‘‘ ‘per-
form’ at a higher level than men in order to advance their
careers.’’ Id. at 599.
In Falcon, the Supreme Court did not create a new require-
ment that a class representative have individual claims identical
to all of the class claims. See Rossini, 798 F.2d at 596-600; Lilly
v. Harris Teeter Supermarket, 720 F.2d 326, 333 (4th Cir.
1983), cert. denied, 466 U.S. 951 (1984) (‘‘the [Supreme] Court
also rejected those cases. . . . requiring that the class repre-
sentatives necessarily have suffered discrimination in precisely
the same employment practice as did all the other members of
the class’’). Class claims need only be ‘‘fairly encompassed”’ in
the named plaintiff’s claims. Falcon, 457 U.S. at 156. While the
Supreme Court rejected the use of unsupported inferences as
satisfying the requirements of Rule 23, id. at 158, it directed the
focus to defendants’ practices, and whether the different prac-
tices operated ‘‘in the same general fashion such as through
entirely subjective decisionmaking processes.’’ Jd. at 159 n.15.
Focus on the practice at issue in the instant case reveals that,
as plaintiffs both alleged and demonstrated, those practices
operated in the ‘‘same general fashion’’ and Purolator’s policy
of sex discrimination affected the class in the same way that it
did the individual plaintiffs. Jd. at 159 n. 15. This showing is
sufficient for commonality and typicality under Rule 23. See
Rossini, 798 F.2d at 598-99; Cox v. American Cast Iron [28]
Pipe Co., 784 F.2d at 1557-58 (holding it was an abuse of dis-
cretion to decertify class raising compensation, promotion, and
training claims); McKenzie v. Sawyer, 684 F.2d 62, 74 (D.C.
Cir. 1982) (‘‘similar employment practices, applied to related
employment decisions’’); De La Fuente v. Stokely-Van Camp,
Inc. , 713 F.2d 225, 232 (7th Cir. 1983) (‘‘similarity of legal the-
ory may control even in the face of differences of fact’’). Plain-
tiffs, therefore, need not, for example, hold the same job title
as other class members. See Rossini, 798 F.2d at 599; Carpenter
v. Stephen F. Austin State University, 706 F.2d 608, 616-17
32a
(Sth Cir. 1983) (custodial employees can represent class includ-
ing clerical workers in case alleging channeling of female work-
ers).
Rather than following Falcon as it purported to do, the Dis-
trict Court erroneously ventured into the merits of the class
claims and required virtual identicality rather than typicality of
the claims. See Eisen v. Carlisle, 417 U.S. 156, 177 (1974). See
also Avagligano v. Sumitomo Shoki America, Inc., 104 F.R.D.
562, 573 (S.D.N.Y. 1984) (rejecting a similar attempt by a
defendant to inject a merits of inquiry into the class certifica-
tion proceeding in order to narrow the class).
1. High Level. The District Court’s refusal to certify plain-
tiffs as class representatives based on their ‘‘high level’’ is espe-
cially troubling. Plaintiffs sought to represent a class of exempt
employees, not Purolator’s entire female work-force. The
Court rejected the plaintiffs as class representatives because
over the years they had received [29] ‘‘promotions’’ and salary
increases. However, the class promotion claim was that females
were promoted more slowly than similarly situated males, and
that defendants refused to promote women into line jobs, not
that they were never promoted. (See J.A. 33). The named plain-
tiffs claimed, in common with the class, that if they had been
male, they would have advanced more rapidly and would have
reached higher levels; they would have been considered for line
rather than staff positions; and they would have been paid
higher salaries. (See J.A. 32-33).
Plaintiffs claimed that men who started at low levels as the
plaintiffs had were promoted far more often and received much
higher salaries. (J.A. 33). Just because plaintiffs managed to
have been promoted does not mean that their experience was
unrelated to that of other women who were at different points
in their careers but who, like the plaintiffs, encountered the
Same sex-based barriers. The fact that a plaintiff is subject to
the same discriminatory practices ‘‘and yet overcame them does
not disqualify her from serving as a class agent provided there is
‘significant proof that an employer operated under a policy of
discrimination.’ ’’ Hansen v. Webster, 41 FEP Cases 214, 223-
24 (D.D.C. 1986) (quoting Falcon, 457 U.S. at 159, n.15)
(emphasis in original). As discussed supra, plaintiffs provided
33a
such proof in the form of evidence of discriminatory personnel
policies, other direct evidence of discrimination, as well as sta-
tistical evidence.
In any event, plaintiffs were not nearly as high level as tne
District Court suggested. In rejecting defendants’ [30] argu-
ment that Henoch’s officer title disqualified her from being a
class representative, the District Court claimed to reject an
argument that emphasized form over substance. See 103 F.R.D
at 651 n.10. Nonetheless, the Court, in effect, let the plaintiffs’
titles determine its decision. The District Court simply ignored
other compelling evidence, such as plaintiffs’ salaries and job
functions. Sheehan was earning $28,000 per year when her
employment was terminated in 1981, hardly the salary of a high
level executive. (E.A. 115). Henoch’s salary at the time the class
complaint was filed was $34,240. (E.A. 119). At trial, defen-
dants’ strategy was to attempt to protray Henoch essentially as
a clerical. (See generally J.A. 2398-2410).
Purolator’s former Senior Vice President of Human
Resources candidly testifed at trial that titles were often given
instead of salary increases. (J.A. 2191). Although plaintiffs
were among the higher-ranking women at Purolator, the Dis-
trict Court in finding plaintiffs to be inadequate representatives
ignored the many higher-level men and the virtual, if not total,
absence of women at higher levels. Sheehan and Henoch both
had titles of Staff Vice President, the ‘‘entry level into the offi-
cer hierarchy’’ (J.A. 2192); there were many levels of officers
above them, virtually all of which were occupied by males.
(J.A. 2191-92; E.A. 105).
The effect of ‘he District Court’s rule is that any employee at
one end or another of a group could not be an appropriate class
representative, a proposition which finds no support in the law.
Rowe v. Bailar, 26 FEP Cases 1145 (D.D.C. [31] 1981), upon
which the District Court so heavily relied, see 103 F.R.D. at
651, is inconsistent with the law in this Circuit, and its facts also
bear no resemblance to those presented here. In Rowe, the
plaintiff, unlike Sheehan and Henoch, does not appear to have
alleged salary discrimination. In addition, the court there sug-
gested that statistics cannot be used as the primary proof of dis-
crimination in a disparate treatment case, 26 FEP Cases at
34a
1146, a position emphatically rejected by the Supreme Court in
Bazemore, and by this Court in Rossini. The court also found
the class allegations to be ‘‘conclusory allegations of discrimi-
nation’’ and noted that the defendant had facially neutral per-
sonnel policies, id. at 1147; neither factor is found in this case."
Finally, the Rowe court noted that the plaintiff had received
generally favorable treatment throughout his employment; that
question goes to the merits of the plaintiffs’ discrimination
claims and should not be resolved at the class certification
stage.
Ultimately, the District Court’s finding that the plaintiffs
were inappropriate representatives because of their high level
rests on the Court’s erroneous, unsupported, statement that:
The interests of secretaries and customer-service represent-
atives may not be co-extensive with the interests of a Staff
{32} Vice President or Director. Nor can it be assumed that
the same practices and criteria are applied to employment
decisions including low level and high level employees.
103 F.R.D. at 652. The District Court’s reference to secretaries
and customer service representatives is inexplicable. In early
1982, Purolator reclassified the salaried position of Customer
Service Representative as ‘‘salaried, non-exempt’’, although
from the creation of the classification in or about 1978 through
early 1982, the position was classified as exempt. (J.A. 706
n.10). At the time the job was reclassified, a few secretarial
positions were also changed from exempt to non-exempt status.
(/d.) The Court’s decision cites to Defendants’ Supplemental
Memorandum of Law, at 13, where defendants claimed without
citation that ‘‘[w]omen exempt employees at Courier run the
gamut from secretaries and customer service representatives to
17 _—_— in this case, the District Court found that plaintiffs failed to specify
acts of discrimination with respect to the class claims and equated that
alleged failure to the general conclusory class claims in Rowe. 103 F.R.D. at
651 n.11. As discussed supra, plaintiffs provided the Court with more than
should be required on a motion for class certification. Moreover, plaintiffs
presented additional evidence at trial showing defendants’ discriminatory
policies. The Court simply ignored that evidence and plaintiffs’ motion for
_ reconsideration of the class certification motion.
35a
corporate officers and professionals.’’ This memorandum was
submitted in February 1983 a year after Courier had changed
the status of these women to non-exempt.'®
Finally, noticeably absent from the District Court’s opinion
is any reference to the many decisions in which courts have cer-
tified classes of exempt or professional employees similar to
that sought here. See, e.g., Rossini, 798 F.2d 590; Meyer v.
MacMillan Publishing Co., Inc., 95 F.R.D. 411 (S.D.N.Y.
1982). If the Court had legitimate concerns about some women,
such as secretaries, being included in the class, it should have
[33] certified the class expressly omitting them from the defined
class. See, e.g., Lo Re v. Chase Manhattan Corp., 431 F.Supp.
189, 198 (S.D.N.Y. 1977) (certifying a class of all females who
‘fare now employed, have been employed, or have sought
employment with the corporate defendants in official, manage-
rial or professional positions’’ and excluding clericals, tellers
and secretaries from the class.)
2. Uniqueness. The District Court also found Henoch to be
an inappropriate representative ‘‘because of the particularly
unique circumstances of her employment.’’ 103 F.R.D. at 652.
Because Henoch might have to prove additional facts to sup-
port her claim, does not mean she is not a proper class repre-
sentative. ‘‘Commonality was not destroyed merely because
[the plaintiff’s] individual claim also required proof of some
facts that differed from those of the class claim.’’ Rossini, 798
F.2d at 599. The effect of the Court’s ruling, if left to stand,
would mean that a company like Purolator, which has a myriad
of job titles and functions in its exempt work force, many of
which could be called ‘‘unique’’ would be immune from class
actions.
It simply is not required that a representative perform the
same type of work as class members. See Rossini, 798 F.2d at
599 (‘‘The distinction that [the class representative] was per-
forming on creativity tests while class members were perform-
18 In moving for class certification of a class of exempt employees
plaintiffs should not be faulted for defendants’ erroneous inclusion of cer-
tain employees in the exempt category, arguably in violation of the federal
wage and hour laws.
36a
ing on day-to-day work assignments is of little importance in
light of the allegation that it was the same standardless, subjec-
tive evaluation system that operated in both cases’’). The cases
cited by the District Court to support its disqualification [34] of
Henoch present extreme examples where the class claims clearly
were added as an afterthought to individual litigation over ter-
mination of employment. The cases do not involve employees
who occupy a “‘special position.’’””
3. Retaliation. Finally, the Court found the plaintiffs to be
inadequate representatives because they made retaliation
claims. The Court held that Sheehan’s retaliatory discharge
claim made her an inadequate representative of the class, and,
similarly, that Hellriegel’s harassment and retaliation claims
and Henoch’s retaliation claims made them inadequate repre-
sentatives, 103 F.R.D. at 652, 656. The disqualification of
plaintiffs by virtue of their retaliation claims has no basis in fact
and is contrary to the policies underlying the laws prohibiting
retaliation. For a court to hoid that a plaintiff becomes an
inadequate class representative by [35] virtue of claiming retali-
ation invites retaliation as a means of defeating a class suit. See
19 In Williams v. Boorstin, 451 F.Supp. 1117, 1124 (D.D.C. 1978),
rev'd on other grounds, 663 F.2d 109 (D.C. Cir. 1980), cert. denied, 451 U.S.
985 (1981), the plaintiff, although apparently alleging class claims of discrim-
ination in recruitment, hiring, promotion, and termination, claimed only his
discharge in common with the class. The termination of his employment
occurred in the very unusual circumstances of his having masqueraded as a
law student and lawyer during his employment although he had attended
only one year of law school. See id. at 1119-21. The other two cases cited by
the District Court similarly involve discrimination actions arising out of
employment termination, without a showing, as here, of discriminatory poli-
cies. See Martin v. Easton Pub. Co., 73 F.R.D. 678 (E.D. Pa. 1977); Odom
vy. U.S. Homes Corp., 76 F.R.D. 381 (S.D. Tex. 1975).
20 In rejecting Hellriegel as a class representative, the Court cited the
lower court decision in Rossini, 80 F.R.D. 131, 135-36, reversed by this
Court, to hold that because Hellriegel supervised some members of the class,
she could not be a representative for those members. 103 F.R.D. at 655 n.12.
That position was rejected in this Court's decision in Rossini, 798 F.2d at
596.
37a
Holsey v. Armour & Co., 743 F.2d 199, 217 n.8 (4th Cir.
1984).”"
The test of adequacy of representation is whether the pro-
posed representative has interests antagonistic to those of the
class members. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562
(2d Cir. 1968). Any antagonism between the representative and
the class must be real rather than academic, Herbst v. Able, 46
F.R.D. 11 (S.D.N.Y. 1969), and must relate to the subject mat-
ter in controversy. Sperry Rand Corp. v. Larson, 554 F.2d 868,
874 (8th Cir. 1977); Mersey v. First Republic Corporation, 43
F.R.D. 465, 468 (S.D.N.Y. 1968). Here, there was no showing
of a conflict with the proposed class members over the subject
matter of the litigation. Defendants made no such showing, nor
did they submit any affidavits from class members in opposi-
tion to certification of the plaintiffs as class representatives.
Accordingly, the Court abused its discretion in refusing to
certify a class of exempt employees.
[36] POINT Il
THE DISTRICT COURT’S FINDINGS ON SHEEHAN’S
AND HENOCH’S DISCRIMINATION CLAIMS ARE
CLEARLY ERRONEOUS
A. The District Court’s Failure To Consider The Discrimina-
tory Atmosphere And The Sex-Biased Attitude Of Purola-
tor’s Decisionmakers Constitutes Reversible Error
A district court’s findings are clearly erroneous ‘‘to the extent
they fail to recognize [important] incidents and reject or fail to
draw inferences which [are] found [to be] inescapable from the
record.”’ Griffin v. City of Omaha, 785 F.2d 620, 628 (8th Cir.
1985) (quoting Alexander v. National Farmers Organization,
21 During oral argument, the Court asked plaintiffs’ counsel whether
the plaintiffs would forgo their ‘‘personalized’’ retaliation claims. (J.A.
1672-73). Although believing this to be a totally improper request, counsel
stated that if necessary plaintiffs would. (/d.) Nonetheless, the Court per-
sisted in holding that the retaliation claims made the plaintiffs unique and,
therefore, atypical.
38a
687 F.2d 1173, 1203 (8th Cir. 1982), cert. denied, 461 U.S. 637
(1983)) (bracketed [important] in original). It is also error for a
court to ignore, without comment, highly probative evidence of
discrimination. ‘‘When direct evidence of discrimination has
been introduced, the lower court must, as an initial matter, spe-
cifically state whether or not it believes plaintiff's proffered
direct evidence."’ Thompkins v. Morris Brown College, 752
F.2d 558, 564 (llth Cir. 1985). If the court rejects such evi-
dence, it should state ‘‘why this apparently highly probative evi-
dence was discredited. . . [since] [i}n these circumstances some
indication of the Court’s reasons for rejecting this evidence
must be given in order for us to exercise properly our function
of appellate review.’’ Jd. (quoting Lee v. Russell County Board
of Education, 684 F.2d 769, 775 (11th Cir. 1982) (bracketed
[since] [in] in original.) See also Bell v. Birmingham Linen Ser-
vice, 715 F.2d 1552, 1557 (11th Cir. 1983). The District Court
committed such error here, where it totally [37] ignored plain-
tiffs’ direct evidence of discrimination, offered both at the class
certification stage and during trial, and provided no explana-
tion in either opinion for the failure to give weight even to
uncontraverted, direct evidence.
Plaintiffs offered written policies in which Purolator specifi-
cally referred to sex as an important element to be considered in
personnel decisionmaking (E.A. 1), expressed a preference for
promoting males (J.A. 726), and advised supervisors to con-
sider the number of children that female employees have in
order to determine level of responsibility to give them. (E.A. 1).
Significantly, these policies were signed by James Rapp and
Robert Ulrich, former President of Purolator, who made deci-
sions with respect to plaintiffs Sheehan and Henoch, and whose
Signatures on those policies indicated their attitudes with
respect to gender as a consideration in Purolator’s decision-
making. The testimony at trial was that these policies were dis-
tributed company-wide to all managerial personnel and not
superceded until December 1983 or January 1984—three years
after this litigation was commenced. (J.A. 2101-02). None of
this evidence was even commented upon by the District Court.
In addition to those written policies the Court also ignored
testimony from a former manager of Purolator that he had
Wa
been told by Rapp, among others, to hire women at lower sala-
ries than comparably situated men because women have ‘‘hus-
bands.”’ (E.A. 399). The witness also observed that, based on
his managerial experience within Purolator, it was more diffi-
cult to get women promoted than men and that if you were
female ‘‘you weren't going to move ahead with Purolator.”’
(E.A. 381).
At trial, the Court precluded a witness, Providence Balzano
(‘‘Balzano’’), from testifying that Delany (one of the defen-
dants’ major policy makers) told her she could not have a job
because men would not respect a woman in that particular posi-
tion. (J.A. 2525). The Court’s rationale for precluding this tes-
timony was that this was not a class action case.” The Court
abused its discretion in precluding this testimony, where it was
highly relevant to show Delany’s bias.
The Court’s utter failure to acknowledge such highly relevant
evidence of discrimination is puzzling, and its decision should
be reversed on that ground alone. See Hopkins v. Price
Waterhouse, _____ F.2d ___, 44 FEP Cases 825, 833 (D.C.
Cir. 1987) (violation of Title VII established by plaintiff's
showing that ‘‘Price Waterhouse was impermissibly infected by
stereotypical attitudes towards female candidates’’); Wheeler v.
City of Columbus, 686 F.2d 1144, 1154 (Sth Cir. 1982) (decision
vacated for lower court’s failure to consider and analyze dis-
crimination claim in the light of sexist comments and pattern of
discriminatory hiring practices, which ‘“‘would constitute proof
probative of the existence of intentional discrimination’’);
McKenna v. Weinberger, 729 F.2d 789, 790 (D.C. Cir. 1984)
(‘‘Where a woman is frustrated in her attempts to work [39]
cooperatively by the sexist attitudes and actions of her male co-
workers, she is a victim of discrimination.’’) See also Equal
Employment Opportunity Commission v. Sage Realty Corp.,
87 F.R.D. 365, 368 (S.D.N.Y. 1980) (‘‘[Njo matter what form
the sex-biased or sex-stereotyped decision may take, when it
operates as an impediment to employment opportunity for
22 It is ironic that the Court prevented Balzano from testifying in view
’
the Court's concern in its class certification decision that plaintiffs had r
supplied affidavits from women complaining about Purolator’s discrimina
40a
women, Title VII requires its elimination.”’); Jordan v. Wilson,
649 F.Supp. 1038, 1058 n.13 (M.D. Ala. 1986) (general state-
ments about women probative evidence of discrimination
because they “‘help| ] illuminate the department's general atti-
tude towards female officers.’’)
B. The District Court Improperly Evaluated The Statistical
Evidence
At trial and in support of class certification, plaintiffs
offered an array of statistical evidence in support of their
claims, including a regression analysis which showed that on
average Purolator’s exempt male employees were earning
between three and five thousand dollars per year more than
Purolator’s exempt female employees, and that difference in
pay was Statistically significant at 2 standard deviations or
greater.’ (See J.A. 727-36; E.A. 106).
Plaintiffs also demonstrated that, based upon a comparison
between the 1982 census-derived, nationally qualified female
work force and the Purolator work force, there was an [40]
underrepresentation of females in Purolator’s exempt job cate-
gories, and the underrepresentation was statistically significant
at two standard deviations or greater. (J.A. 732; E.A. 110).
Furthermore, unlike what appears generally to be true in the
United States, the salary differential between Purolator’s male
and female exempt employees, based on seniority, is increasing:
1982 PERCENT MALE SALARY, ADVANTAGE BY YEAR
OF EXEMPT EMPLOYEE’S HIRE AT PUROLATOR
Pre- 1966 1966-75 1976-7 1978-79 1980-81 1982
(N/A—only 48.87% 49.1% 62.3% 49.5% 66.1%
one female
current employee
hired pre-1966)
23 Plaintiffs’ regression analysis included variables for sex, age, years
of service with Purolator, and job itle. (E.A. 106). A study including these
same variables and geographic jocation showed similar results. (J.A
1255-60)
———eooO
4la
(E.A. 111). Thus, for example, in 1982, men who had from
seven to sixteen years of service with Purolator were earning
about 49% more than women with the same seniority; and men
who had from three to four years of service with Purolator were
earning 62% more than women with equal seniority. This in a
company which has an express policy of promoting from
within, and in which a high school education ‘‘with experience”’
are sufficient qualifications for most jobs. (J.A. 2860).
As to traiuing, plaintiffs showed that during 1981-82, ten
men and no women were allowed to participate in Purolator’s
Management Training Program and during the period [41]
1975-1980 of thirty-four participants in that same Program,
only five were women. As of 1982, a female employed by Puro-
lator who had gone through the Management Training Pro-
gram was earning about $108.00 less per week than the
remaining male who had been appointed to that same program.
(E.A. 113).
Finally, with respect to fringe benefits, plaintiffs showed that
the proportionate difference between the number of women
employed in job categories eligible to receive the automobile
fringe benefit and men employed in job categories eligible to
receive that same benefit was statistically significant at two
standard deviations or greater. (E.A. 114).
Defendants did not challenge the validity of any of plaintiffs’
studies. Their expert conceded the accuracy of plaintiffs’
regression analysis and testified that the methodology employed
for that study was sound. (J.A. 3026-27). Nor did he comment
on or challenge plaintiffs’ work force analysis or plaintiffs’
automobile fringe benefit study.
Rather, defendants’ expert criticized plaintiffs’ regression
analysis on the ground that it excluded variables {primarily edu
cation and prior experience) that might make a difference in the
results. He testified that, although he had performed an analy-
sis of only one hundred of Purolator’s employees, he could
draw no conclusion about what effect, if any, the omission of
these variables would have on plaintiffs’ regression analysis,
which included a// exempt employees:
42a
Court: You indicated several minutes ago that two very
Significant variables are education and total job experi-
ence?
[42] Witness: Yes.
* * *
The Court: What effect would the exclusion of those vari-
ables have, upon the validity of this? [Plaintiffs’ regres-
sion analysis (Ex. 227) (E.A. 106)}.
* + *
The Witness: That’s a terrific question. I don’t know. The
answer is, it could have a big effect. And unless you have
the data you don’t know.
(J.A. 3037). With respect to his own regression, defendants’
expert stated “‘the sample size of his study was not large enough
to permit me to draw a firm conclusion about all exempt
employees.’’ (J.A. 3142). Accordingly, defendants’ expert con-
cluded:
[I]t [defendants’ study] doesn’t prove there is no signifi-
cant difference for the whole group of exempts.
[T}hat could only be shown by doing the calculations and
doing the collecting the data for all the exempts.
(J.A. 3143). Plaintiffs’ studies, however, included ‘‘the whole
group of exempts’’ and remained unrebutted.
!n Bazemore, the Supreme Court reaffirmed its approval of
the use of regression analysis to prove a plaintiffs’ case of dis-
crimination, and in so doing, stated:
Importantly, it is clear that a regression analysis that
includes less than all measurable variables may serve to
prove a plaintiff’s case. A plaintiff in a Title VII suit need
not prove discrimination with scientific certainty; rather,
his or her burden is to prove discrimination by a prepon-
derance of the evidence.
[43] 92 L.Ed.2d at 331 (citations omitted). The Supreme Court
in Bazemore also disapproved the rejection based on specula-
tion of uncontradicted statistical evidence. Thus, in finding that
43a
the lower court had improperly rejected plaintiffs’ regression
studies by crediting the questionable evidence offered by the
defendant, the Court explained:
There was very little evidence to show that there was in
fact no disparity in salaries between blacks and whites, or
to demonstrate that any disparities that existed were the
product of chance. . . . Respondents’ strategy at trial
was to declare simply that many factors go into making up
an individual employee’s salary; they made no attempt
that we are aware of—statistical or otherwise—to demon-
strate that when these factors were properly organized and
accounted for there was no significant disparity between
the salaries of blacks and whites.
Bazemore, 92 L.Ed.2d at 333 n.14.
This Court, too, found the rejection of a plaintiff's regres-
sion study to be an abuse of discretion when that rejection was
based ‘‘on the speculative basis that the table’s results might
‘possibly’ have been different if [the] military experience [vari-
able] had been included.’’ Rossini, 798 F.2d at 604, citing Baze-
more, for the proposition that regression analysis excluding
some variables may still be valid evidence of employment dis-
crimination.” See also Eastland v. TVA, 704 F.2d 613, 623
(11th Cir. 1983) (variables in statistical models should be those
[44] likely to have actual effect in decision-making process
under study), cert. denied, 465 U.S. 1066 (1984)).*°
It was error for the District Court to reject plaintiffs’ uncon-
tradicted statistical proof on the ground that the regression
analysis excluded certain variables, when defendants’ own
expert testified that he did know what effect the exclusion of the
variable had on the results. As in Bazemore, the defendants
here offered no evidence to show that there was ‘‘in fact no dis-
24 This Court found an abuse of discretion, notwithstanding the pres-
ence of other statistical studies in which inclusion of a military experience
variable had reduced the male-female salary differential. 798 F.2d at 603-04.
25 The inclusion of a variable for education in a study of Purolator’s
workforce would have been highly questionable given defendants’ admission
that high school was deemed a sufficient educational background for most
jobs. (J.A. 2860).
44a
parity in salaries between [males] and [females], or to demon-
Strate that any disparities that existed were the products of
chance.’’ Bazemore, 92 L.Ed.2d at 333 n.14. It offered only a
limited study, from which its expert conceded, no conclusions
could be drawn. And with respect to plaintiffs’ work-force and
automobile benefit analyses, defendants offered no evidence to
undermine them and simply never questioned them. The
Court’s rejection of these studies without comment is reversible
error.
POINT Ill
THE DISTRICT COURT’S FAILURE TO EXAMINE
FULLY PLAINTIFFS’ RETALIATION CLAIMS
REQUIRES REVERSAL
To establish a prima facie claim of retaliation under Title
VII, a plaintiff may show: (a) known statutorily protected
opposition; (b) adverse employment action against the plaintiff;
and (c) a causal connection between the two, i.e., a retaliatory
[45] motive playing a part in the adverse employment action.
Davis v. State University of New York, 802 F.2d 638, 642 (2d
Cir. 1986). See also DeCintio v. Westchester County Medical
Center, F.2d , 44 FEP Cases 33, 36-37 & n.8 (2d Cir.
1987); Dominic v. Consolidated Edison Co.., F.2d ,
44 FEP Cases 268, 272 (2d Cir. 1987). Once the plaintiff has
established those three elements, a prima facie case of retalia-
tion has been made, and the employer is obliged to articulate a
legitimate, non-retaliatory reason for the adverse action in
order to attempt to refute any inference of retaliation which
may be drawn from the plaintiff’s prima facie showing. See
Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980).
If such a justification is offered, plaintiff then is entitled to
offer evidence calculated to show that the employer’s articu-
lated justification for the employment action was pretextual,
i.e., *‘a cover up for retaliation.’’ See Womack v. Munson, 619
F.2d 1292, 1296 (8th Cir. 1980), cert. denied, 450 U.S. 979
4Sa
(1981); see, generally, McDonnell Douglas v. Green, 411 U.S.
792, 802-04 (1973).
Evidence that an employee who has complained of discrimi-
nation is disciplined for an infraction, while the employer does
not take similar action against others for ‘‘similar derelic-
tions,’’ provides the causal connection between protected activ-
ity and retaliation. DeCintio, 44 FEP at 36. See also at id. at 37
n.8.
The District Court simply made no effort either to analyze
defendants’ purported reasons for the treatment of [46]
Sheehan and Henoch after they filed charges, compared with
how they were treated before that event, or to assess the credi-
bility of the evidence with regard to the reasons offered by
defendants for their actions against those women. In addition,
the Court below ignored direct evidence of defendants’ retalia-
tory motive and failed to weigh defendants’ asserted reasons in
light of that evidence. The Court’s finding must be reversed, for
it does not represent the result of a choice between two permis-
sible views of the evidence, Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985), but rather is supported by no plausi-
ble evidence whatsoever.
The District Court simply ignored substantial evidence that
the filing of charges had a very profound effect on Sheehan’s
and Henoch’s supervisors, which was reflected in their subse-
quent treatment of Sheehan and Henoch. The Court below
made no mention of the direct evidence of retaliatory intent,
including Delany’s emotional reaction to their filing of charges
(J.A. 2551-55), or uncontradicted testimony from a non-party
witness that defendants undertook to solicit unfavorable com-
ments about Sheehan’s job performance and ‘‘set her up.”’
(E.A. 370-76).
Both plaintiffs were subject to surveillance by their super-
visors (see E.A. 61, 62-67) and subjected to memo-writing cam-
paigns. None of this evidence is even hinted at in the Court’s
opinion. Yet this type of behavior has been found to constitute
retaliation. Moffett v. Geme B. Glick Co., 621 F. [47] Supp.
26 One of defendants’ owm witnesses testified about how Delany blew
up when told of the charges and had to be calmed down with ‘‘booze.’’ (J.A.
2554-55).
46a
244, 282 (N.D. Ind. 1985) (‘‘[t]he attempt to build up documen-
tation to justify a dismissal after an employee has filed a charge
against the employer can be evidence of retaliation’’). See Fran-
cis v. American Telephone & Telegraph Co., 55 F.R.D. 202,
207 (D.D.C. 1972).
The District Court examined Sheehan’s retaliation claim in a
vacuum, ignoring evidence that Sheehan’s one-time infraction
under great duress, was de minimis as compared to the routine
behavior of Courier’s male officers, who went unpunished or
were dealt with far less severely. In contrast, the Court below,
while discussing few facts at all, referred to events that defen-
dants did not even offer as bases for Sheehan’s discharge as if
the Court were searching for non-discriminatory explanations.
The Court stated that Sheehan on occasion left work early,
ignoring evidence that other officers also left early and came in
late. (J.A. 2527). The Court stated that Sheehan ‘‘left work’’
for more than one month, ignoring the fact that she was out of
work because of a medically certified severe back problem.
(J.A. 1876). And there is absolutely no support in the record for
the Court’s statement that Sheehan was frequently absent after
she returned to work.
The District Court found that Sheehan began to act differ-
ently after she filed EEOC charges. (J.A. 3230).”’ Again, the
Court ignored substantial evidence that it was Purolator’s [48]
top management who began to act differently toward Sheehan.
A review of the long series of petty memos directed at Sheehan,
usually by Delany, (see, e.g., E.A. 14, 16, 17, 20, 22, 23, 24, 29,
45, 171, 181, 184) shows that something more than the normal
course of business was going on. Many of the inemoranda were
criticisms of Sheehan for the mail and supply room and with
respect to the telephones, areas over which Sheehan no longer
had responsibility. (See E.A. 14, 20, 22, 23, 181; J.A. 1890,
1900). Sheehan continued to receive these memos, even after
she requested that the campaign stop. (E.A. 34).
One of the examples the Court cites is that Sheehan sought an exten-
sion of a loan she had from Courier. This was incorrect; she protested having
her loan called in before it was due. (J.A. 3230). No explanation is offered of
how this is an example of ‘‘different behavior.’’
47a
Finally, the District Court erroneously analyzed the termina-
tion of Sheehan’s employment without reference to evidence of
Purolator’s treatment of male, non-complaining employees.
Sheehan, who worked for Purolator for ten years was fired for
one act of insubordination, that is, leaving a meeting. Yet
Delany, who kicked a hole in Henoch’s desk (J.A. 2328, 2544-
45), and who the Court found had a temper which ‘‘manifested
[itself] indiscriminately, against men and women both subordi-
nate and superior to him,’’ (J.A. 3233) was never fired for any
of his behavior, which included ‘‘blow[ing] up on more than
one occasion with senior officers, officers of rank equal to him
and subordinates.’’ (J.A. 2958). Anthony Graziano, Purola-
tor’s Senior Vice President of Legal and Corporate Affairs sim-
ilarly testified that Delany was well known for losing his temper
and was not fired when he did so with executives. (J.A. 3002-
03). Only after many years of his behavior did Purolator ask for
his [49] resignation—he was not fired as was Sheehan.”* Disci-
plining employees in a protected class more harshly than
employees outside the class is a violation of Title VII, and evi-
dence of retaliation. See DeCintio, 44 FEP Cases at 36 n.8. See
also Mosley v. General Motors Corp., 497 F. Supp. 583, 589
(E.D. Mo. 1980), aff’d 691 F.2d 504 (8th Cir. 1982). Tie i*=-
trict Court’s failure to recognize the disparity in treatment
between Delany and Sheehan and between Delany and Henoch,
revealed by the Court’s own findings, constitutes reversible
error.
[50] CONCLUSION
For the foregoing reasons, and based upon the record,
plaintiffs-appellants respectfully request that this Court reverse
the decisions below in their entirety, and order certification of
the class and entry of judgment in favor of plaintiffs Sheehan
and Henoch on their individual claims, or, alternatively reverse
the decisions below and remand the case to the District Court
for further proceedings consistent with this Court’s opinion.
28 If Sheehan has been permitted to resign, she would have qualified
for severance benefits (see J.A. 2110) and her pension would have vested.
48a
Dated: New York, New York
September 4, 1987
Respectfully submitted,
VLADECK, WALDMAN ELIAS
& ENGELHARD, P.C.
By: JUDITH P. VLADECK
Attorneys for Plaintiffs-Appellants
1501 Broadway, Suite 800
New York, New York 10036
(212) 354-8330
Of Counsel:
Judith P. Vladeck
Joseph J. Garcia
Laura S. Schnell
49a
87-7540
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT
>
PATRICIA SHEEHAN, ELIZABETH HENOCH, and KAYHAN
HELLRIEGEL, on Behalf of Themselves and all Others Simi-
larly Situated,
Plaintiffs-Appellants,
—against—
PUROLATOR, INC. and PUROLATOR COURIER CORP.,
Defendants-A ppellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
PLAINTIFFS-APPELLANTS’ REPLY BRIEF
VLADECK, WALDMAN, ELIAS
& ENGELHARD, P.C.
Attorneys for Plaintiffs-Appellants
1501 Broadway, Suite 800
New York, New York 10036
(212) 354-8330
Of Counsel:
JUDITH P. VLADECK
JOSEPH J. GARCIA
LAURA S. SCHNELL
TABLE OF CONTENTS
ARGUMENT
POINT I
DEFENDANTS FAIL TO JUSTIFY THE
COURT’S REFUSAL TO CERTIFY A CLASS
A. Defendants Misread Falcon ..............
B. Centralization of Personnel Decisionmaking
C. Class Representatives... ..........ccesece
D. Effect of Dismissal of Plaintiffs’ Individual
MeN wae usa ee ness vexed eel
\
POINT II
DEFENDANTS HAVE FAILED TO JUSTIFY
THE DISTRICT COURT’S ERRONEOUS
TREATMENT OF THE EVIDENCE.........
A. Statistical Evidence .....................
B. Non-Statistical Evidence.................
C. Plaintiffs’ Individual Salary and Other
RR sare oe rae or, ore eee
POINT III
THE DISTRICT COURT’S DECISION ON
RETALIATION IS WHOLLY INDEFENS-
IBLE, AND DEFENDANTS’ ATTEMPT TO
wwEwwms 0) FALLS SHORT . 2... cece css
et St. fn Rear
aon > Lf
S5la
TABLE OF AUTHORITIES
Cases:
Alexander v. Gino’s Inc., 621 F.2d 71 (3d Cir.) cert.
denied. 4490 US. 953 GOD) cc uansccvnnsvtaccvewens
Bazemore v. Friday, ___ U.S. ___, 106 S.Ct. 3000
1, Ore reer yr rrrr ry verre ty ree |
Betts v. Reliable Collection Agency Ltd., 659 F.2d 1000
| A, || rrr y ror rar rns yc ae
Carpenter v. Stephen F. Austin State University, 06
wit: F. ve ae, °) errr rr ry
Craik v. Minnesota State University, 731 F.2d 465 (1984)
Coser v. Moore, 739 F.2d 746 (2d Cir. 1984)..........
General Telephone Company of the Southwest v. Falcon,
AST G5 .S TET CURD so an cc dad wncdd wha ceseneeaeees
Goodman vy. Lukens Steel Co., 777 F.2d 113 (3d Cir.
PPE Pee eee rer Prete ee fe
Harris v. Pan American World Airways, Inc., 74 F.R.D.
rT A & gi Serre rnp reer rer rrr
Hazelwood School Dist. v. United States, 433 U.S. 299
Le) ee ee ree eer ean e erry ey
Lo Re v. Chase Manhattan Corp., 431 F.Supp% 189
OO UTS ick ccna cee tenes ko kere e seen
Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985)
Martin v. Citibank, 762 F.2d 212 (2d Cir. 1985).......
Martin yv. Easton Publishing Co., 73 F.R.D. 678 (E.D.
et ed ie a LN cag a ala a ne eee eee
PAGE
tJ
‘fs Vacn in Publishine Cy
~ y~N y IR&.>
/ , Shultz, 815 F.2d 84 (D.¢
f? r ' 4 ’] \ d ‘ rai Ban A 5
( 8D) er lenied,. 460 LS 1OR3 (1983)
Penh Or n State Board of Higher Education. 816
| ad 458 (Oth Cir 1987)
Perrymar lohnson Products Co., 698 F.2d 1138 (1th
{ sy 4)
Rossi Or: & Mather, Inc., 597 F.Supp. 1120
S.D.N.Y. 1984)
R 4 () a Via ier Ine 798 I 2d $90 (2d Ci
WA) 6. 12. 13, 14,
\, ‘ Vy ; fl» er 656 | Sup] SR7 (CS 1) N y
jx)
sone Yes 20? er 797 I 2d 1478 (2d ¢ ir 1986)
lean er U? ed States, 431 U.S 324 (1977)
Vlorris Brow nC Olle
Thompkins \
’
Cir. 1985)
l lé a Siates Parok {
IRR (TORO)
ve
, YS F.R D. 411
Cir
88 F.2d $52,
$62 (8th
, 752 F.2d 558 (11th
1987) are 8
A)
18
19
S3a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 87-7540
—_> —
PATRICIA SHEEHAN, ELIZABETH HENOCH, and KAYHAN
HELLRIEGEL, on behalf of themselves and all others simi-
larly situated,
Plaintiffs-Appellants,
—against—
PUROLATOR, INC. and PUROLATOR COURIER CORP..
Defendants-Appellees
PRELIMINARY STATEMENT
Defendants’ Brief is filled with smoke and mirrors. In an
attempt to justify the glaring failure of the District Court even
to acknowledge the existence of highly probative evidence,
defendants misrepresent the facts, attribute findings to the Dis-
trict Court that the Court did not make, and misstate the hold-
ings and reasoning of controlling precedent. For example:
1. Defendants say that ‘‘the undisputed record showed that
appellants’ claims were atypical of those of the alleged class.”’
(Def. Br. at 1-2) (emphasis added). Not only did plaintiffs
establish otherwise, but also for defendants to call the record
‘**undisputed’’ shows how hyperbole is substituted for fact.
2. Defendants attempt to distinguish Rossini on the ground
that Purolator’s decisionmaking was decentralized. (Def. Br. at
26-27). The [2] District Court made no such finding, and the
record overwhelmingly establishes highly centralized decision-
making. (See, infra, pp. 5-8).
3. Defendants say that the Supreme Court’s decision in
Bazemore addresses the admissibility of regression analyses,
S4a
not the proper evidentiary weight to be accorded them. (Def.
Br. at 16-17). They are wrong. All of the regression analyses
addressed by the Supreme Court in Bazemore had been admit-
ted into evidence. The Supreme Court reversed the lower court
because it had improperly discounted the plaintiffs’ analyses
tor having excluded certain variables.
4. Defendants say that the District Court ignored the Com-
pany’s gender-biased policies because those policies were ‘‘old’’
and because they allegedly were not applied at corporate head-
quarters. (Def. Br. at 19, 43). The District Court made no such
finding. Those policies were not old; they were issued in 1971,
renewed in 1975 and remained in effect until 1983 or 1984.
(J.A. 2101-02, 2106; E.A. 1). It also is disingenuous at best for
defendants to ask this Court to overlook such highly relevant
evidence when the policies emanated from corporate headquar-
ters, were signed by a former President of Courier, and were
contained in the Transportation Manual—the Manual consid
ered to be every field supervisor’s ‘‘bible’’ and the prime refer-
ence for corporate policy. (J.A. 1212 n.9).
5. Defendants characterize plaintiffs’ salaries of $28,000
(Sheehan) and $38,000 (Henoch) as ‘‘substantial,’’ without
comparing them with those earned by males. (Def. Br. at
3-4, 6).
6. Without citation, and without disputing plaintiffs’ state-
ment to the contrary, defendants continue to assert that secre-
taries and customer service representatives would be part of the
class (Def. Br. at 9, [3] 24), notwithstanding defendants’ knowl-
edge that those two grours *ad been misclassified as exempt
employees on the computer tapes defendants had given plain-
tiffs in discovery. (J.A. 706 n.10).
Defendants, in attempting to justify the District Court’s
failure to give proper weight to plaintiffs’ regression analysis,
say that the study excluded ‘‘concededly’’ relevant variables.
(Def. Br. at 16). Nowhere have plaintiffs conceded the rele-
vance of the variables; in fact, plaintiffs assert that education
level (one of the variables) is totally irrelevant given that many
corporate officers started as couriers (J.A. 667-68), and many
SSa
officers, including Purolator’s President, had only a high
school diploma. (J.A. 2860). A high school diploma plus expe-
rience was sufficient for most jobs in the company. (/d.)
8. Defendants repeatedly say that plaintiffs did not have
‘‘anecdotal’’ testimony, apparently contending that ‘‘anec-
dotal’’ evidence can come only from affidavits or testimony of
class members. That argument is nothing more than an attempt
io avoid the facts that: plaintiffs submitted written policies of
discrimination; a witness who had been a manager for many
) 2ars testified that he was told to pay women less because they
had husbands and that in his experience as a manager he found
it more difficult to get women promoted than men (E.A. 362
63, 365-66, 394, 399); a witness was precluded from testifying
that she was told by Delany that she could not be promoted into
a certain position because she was a woman (J.A. 2524-25);
another female employee submitted an affidavit on the Rule 23
motion that described discrimination against women as the
defendants’ standard operating procedure throughout the
Company (J.A. 1234-38)—the affidavit was discounted by
defendants because this woman was “‘in the field’’ (Def. Br. at
9 [4] n.5); Purolator’s former affirmative action manager test)
fied that affirmative action at Purolator was a negative subject
and given lip service at best. (E.A. 125; J.A. 2174-77). All of
this evidence was ignored by the District Court in both deci
sions, and defendants deal with it no better here.
9. Defendants in their Brief never address the District
Court’s failure to decide plaintiffs’ renewed motion for class
certification made at the end of trial. This silence is sharply at
odds with defendants’ suggestion that this Court should con
sider facts concerning the individual claims developed at trial in
reviewing the class certification decision. (Def. Br. at 16, 25)
56a
ARGUMENT
POINT I
DEFENDANTS FAIL TO JUSTIFY THE COURT’S
REFUSAL TO CERTIFY A CLASS
A Defendants Misread Falcon
Defendants say that Falcon, 457 U.S. 147 (1982) requires
plaintiffs to show for class certification that there existed ‘‘a
significant number of female empioyees at Courier who share
appellants’ claims.’’ (Def. Br. at 1; see also, Def. Br. at 9, quot-
ing the District Court). Defendants never give a citation to a
page in Falcon for that proposition. In view of the fact that
numerosity was never in issue, with a putative class of 315
women, that argument simply should have no place in this case.
Moreover, in so arguing, defendants resolutely ignore, as did
the District Court, plaintiffs’ proof of defendants’ corporate-
wide policy of discrimination. The District Court’s memoran-
dum opinion fails even to mention plaintiffs’ unrebutted
showing of defendants’ blatantly discriminatory employment
[5] practices. The Supreme Court in Falcon made clear, how-
ever, that with the showing of such biased practices ‘‘a class
action on behalf of every employee who might have been preju-
diced . .. would satisfy the commonality and typicality
requirements of Rule 23(a).’’ See 457 U.S. 147, 159 n. 15.
Nor does Falcon make any mention of affidavits from class
members as either a necessary or a preferred form of evidence
supporting class certification. At the urging of defendants, the
District Court erroneously focused on the lack of affidavits
from class members here. This approach to Rule 23(a)’s com-
monality and typicality requirements finds no support in the
applicable case law.’
] During oral argument on the class certification motion, the Court
asked: ‘‘Is it your view that affidavits from other persons who feel aggrieved
by a discriminatory or disparate practice are required as a precedent to my
making a class certification determination?’’ Counsel for defendants
responded: ‘‘Your Honor, I believe that is the case. . . I refer your Honor
57a
B. Centralization of Personnel Decisionmaking
In attempting to distract attention from the District Court’s
failure to assess properly plaintiffs’ statistical evidence, and to
make any findings whatsoever with respect to the plaintiffs’
direct evidence of defendants’ sex-biased, corporate-wide writ-
ten policies, defendants focus on an issue as to which the Dis-
trict Court made no reference, allusion or finding: the
centralization of defendants’ personne! decisionmaking. Defen-
dants state, as if the District Court had so found, that Purolator
is decentralized. (Def. Br. at 2, 26-27). Defendants’ ipse dixit is
flatly contradicted by the record. Substantial submissions on
the Rule 23 motion [6] were addressed to the issue of defen-
dants’ centralized decisionmaking, and plaintiffs showed, over-
whelmingly, that defendants’ corporate headquarters
completely controlled the development and implementation of
all personnel policies. (J.A. 1203-22; 1247-54; 1265-1300).
Nonetheless, defendants attempt to distinguish this case from
Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986)
on the totally specious basis that defendants’ personnel deci-
sions allegedly were made on a decentralized basis. Defendants
claim that in Rossini all employment decisions were made ‘‘by a
small group of people at headquarters’’ (Def. Br. at 2), and
then argue that the ‘‘record in this case demonstrates that Cou-
rier did not make centralized decisions in that way.’’ /d.
Apart from the fact that the District Court’s denial of class
certification neither turned on centralization of decisionmak-
ing, nor, indeed, even referred to it, defendants’ absolute, rigid
centralization of all personnel decisionmaking could not have
been matched or exceeded in any business establishment.’
to the discussion of the Hicks case— . . .”’ (J.A. at 1663). As explained at
length in plaintiffs’ initial Brief to this Court, however, defendants in fact
can cite no meaningful authority standing for such a proposition (See
Plaintiffs-Appellants’ Br. at 19-26). The District Court’s novel and mis-
guided prerequisite to class certification should be reversed.
2 While defendants argued ‘‘decentralization’’ before the District
Court, they were arguing more strenuously before the N.L.R.B. that they
were highly centralized. (J.A. 1272-84).
58a
Some of the undisputed facts that were before the District
Court on this issue are summarized here:°
1. All personnel policies issued from corporate headquarters
in New Hyde Park and all personnel records were maintained
there regardless of [7] where the employee worked. All pay-
checks issued from corporate headquarters. (J.A 654, 830).
2. Qualifications for various jobs were standardized and,
according to Senior Vice President Rapp, persons with the same
title should be reasonably interchangeable throughout the coun-
try. (J.A. 654).
3. Uniform job descriptions applicable nationally were
developed by the Director of Compensation, a member of the
corporate staff. (J.A. 661).
4. Purolator had standardized numbers of holidays, dress-
codes, employee benefits, etc. It had a standard layoff policy,
the implementation of which was monitored from New Hyde
Park. (J.A. 661).
5. Corporate guidelines governed discipline of employees.
When an employee in any location was to be discharged or sus-
pended, the local manager was required to check with the divi-
sional vice president, who in turn called corporate headquarters
to ensure that the discipline was consistent with uniform
corporate-wide policy. (J.A. 656).
6. Corporate Headquarters investigated and responded to all
EEO charges filed by any employee. Since 1976 Douglas, a
Group Vice President at Headquarters, determined whether an
EEO charge should be litigated or settled. (J.A. 656).
3 All statements in this summary are taken from affidavits submitted
in support of plaintiffs’ Rule 23 Motion. They were, without exception,
based on Defendants’ Answers to Interrogatories or deposition testimony of
defendants’ officers. (J.A. 649-64). Plaintiffs’ motion papers also described
the total centralization of all business decisionmaking in corporate headquar-
ters, including marketing, legal, financial and purchasing. (J.A. 650-54).
Additionally, defendants admitted that Courier’s personnel practices ‘‘are
fixed by Mr. Borgna [defendants’ then Senior Vice President for Human
Resources], in consultation with Courier’s President’’ (J.A. 797).
59a
7. Douglas developed job application forms that were dis-
tributed nationally and that he ‘‘sanitized to insure compli-
ance’’ with the law. Douglas’ office prepared the EEO-1 report
for all field locations and the Corporation’s consolidated EEO-
1 report. (J.A. 657).
8. Salary administration policies, salary structures and
ranges, and all salary expense budgets for all categories of
employees were approved and authorized by the President and
Chief Executive Officer of the Corporate Office of Personnel.
Salary increases were determined at New Hyde Park for all
employees. (J.A. 659).
9. The Corporate Personnel Department reviewed all salary
actions recommended by supervisory personnel in the field to
ensure compliance with established policy and consistency
between Departments; reviewed and approved all merit
increases recommended by the field for non-managerial
employees; approved salary adjustments resulting from a
reclassification, promotion, or merit review; reclassified posi-
tions upon a substantial change in the job’s content. (J.A. 659-
60).
10. Corporate perquisites, such as use of a company auto-
mobile, were the subject of detailed policy. (J.A. 660).
11. Personnel selection clinics, at which attendance of area
managers was mandatory, were held around the country to
teach interviewing skills. Recruitment was centralized to the
extent that classified advertisements for job openings in any
part of the Corporation, and anywhere in the country, were
placed by someone on Eugene Borgna’s staff. (J.A. 661).
[8] 12. Corporate headquarters coordinated all recommenda-
tions for promotions of management and sales personnel. No
commitment could have been made to any employee in the Cor-
poration without Headquarters’ review of the intended promo-
tion. (J.A. 662).*
4 In 1982, then President Wilfred Lebert issued a memorandum to
Courier executives which stated that: ‘‘/NJo promotion or transfer of person-
nel will occur unless authorized by me with cost and position evaluations
fully documented.”’ (J.A. 1209) (emphasis in original).
60a
13. Supervisory skills were taught through standardized
training programs conducted by the Training Department at
Corporate Headquarters. Its purpose was to expose trainees to
work in the various areas of the Corporation in both the field
and Headquarters, so that at the end of two years they would
have been able to choose the area in which they wished to work.
(J.A. 663).
14. All requests for intracompany transfers were handled by
the Corporate Office of Personnel in the case of non-exempt
employees, and by the Corporate Office of Executive Planning
in the case of exempt employees. (J.A. 664).
Defendants’ statement in its Brief that ‘‘the push’’ for cen-
tralization began in 1984 (Def. Br. at 30. n.19) is belied so
resoundingly by every one of defendants’ witnesses that the
statement cannot have been inadvertent error. Eugene Borgna
and James Rapp testified that since at least 1975 Purolator
attempted to achieve national uniformity with respect to wages
and salaries (J.A. 654); Douglas testified that even before he
was hired in 1974, defendants had begun to standardize person-
nel policies, such as wages, number of holidays, dress habits,
employee benefits, and that he continued those efforts. (J.A.
655). The statements referred to in the summary above
described long standing practices, not those planned for some
time in the future.
C. Class Representatives
Defendants’ assertion that plaintiffs ‘‘cannot and do not dis-
pute’’ what defendants characterize as ‘‘the essential element
underlying the [9] trial court’s conclusion’’-—that ‘‘they (the
named plaintiffs) were atypical of other women’’ is patently
absurd. (Def. Br. at 23). Plaintiffs, from the inception of this
action have been steadfast in their claim that they were
5 Defendants’ argument that this Court should ignore Hellriegel in its
review of the District Court’s decision is erroneous. At the time the District
Court decided the class certification motion Hellriegel had not settled her
claims. Had the Court correctly decided the motion, the ‘‘expiration’’ of
Hellriegel’s claims would not have affected the class action. See U'niied
States Parole Commission v. Geraghty, 445 U.S. 388 (1980).
6la
typical—typical of all women in the proposed class—in that
they shared a workplace where men were given preferred treat-
ment and job opportunities because they were male. They urged
the District Court to see that the jobs of all women in the class
did not have to be the same; that only their legal claims had to
be the same. The plaintiffs never said they were clones of the
other class members; they said they were women, and, as all
women in the class, suffered different and less favorable treat-
ment than men. (J.A. 1646-8; 1670).
Defendants combine argument on the merits with argument
on class certification in their discussion of typicality. Their
argument that plaintiffs were too successful is an extension of
their argument that plaintiffs were not discriminated against,
since if they were successful, they could neither claim discrimi-
nation nor be typical. Both on the class certification motion and
at trial plaintiffs claimed that had they been male they would
have been successful, that they would have been paid as well as
comparable males and given opportunities to move up the
ranks.°
[10] Rather than address plaintiffs’ arguments that plaintiffs
were not atypical of the class of women salaried employees,
defendants claim that the District Court’s ruling is consistent
with ‘‘well-established’’ case law precluding high ranking
employees from being class representatives. (Def. Br. at 24).
Defendants fail to cite to such well-established case law and
completely ignore the case law to the contrary cited in plain-
tiffs’ Brief. In any event, defendants never answer plaintiffs’
claim that had plaintiffs been male they would have been more
successful, they would have been paid as well as comparable
men and they would have been given different and better
opportunities to move up. These are the typical and common
elements plaintiffs share with the class.
6 Defendants’ reference to Sheehan’s ‘‘success,’’ for example, is heavy
with irony. They say she was responsible for purchasing office supplies—
approximately 15% of Courier’s purchases ‘‘company-wide.’’ Defendants
also report her salary after ten years with the company as $28,000, a fraction
of that earned by similarly ‘‘successful’’ males. (See Def. Br. at 4; J.E. 115-
18; J.A. 1760).
62a
Defendants also rely on clear misstatements about the com-
position of the putative class to attack plaintiffs’ ‘‘typicality.’’
Without disputing plaintiffs’ assertion that secretaries and cus-
tomer service representatives were excluded from the class for
which plaintiffs sought certification, that is, a class of exempt
employees, defendants, again without citation, rely on their
presence ‘‘in the class.’’’
Defendants further erroneously claim that plaintiffs suggest
the District Court should have certified a ‘‘narrower class of
higher ranking female employees.’’ (Def. Br. at 24). To the con-
trary, plaintiffs argued that, if the District Court had consid-
ered the presence of secretaries and service representatives in
the class to have been inappropriate (despite the fact that few if
any would have remained in the class after defendants corrected
their records), it could have excluded them from the class.
[11] As to the claim that plaintiffs were ‘‘unique,’’ defendants’
arguments would preclude class certification in any workforce
such as Purolator’s and limit class actions only to workforces
composed of employees with the same job. This is not the law:
The fact that the jobs performed by the named plaintiffs
are, in some sense unique, is not a bar to their being class
representatives. If it were, no class of professional employ-
ees could ever be certified.
Meyer v. Macmillan Publishing Co., Inc., 95 F.R.D. 411, 414
(S.D.N.Y. 1982) (citing Lo Re v. Chase Munhattan Corp., 431
F.Supp. 189 (S.D.N.Y 1977)). See also Rossini, 597 F.Supp.
1120, 1131-32 (S.D.N.Y. 1984), rev’d on other grounds, 798
F.2d 590 (2d Cir. 1986); Carpenter v. Stephen F. Austin State
University, 706 F.2d 608, 617 (Sth Cir. 1983); Paxton v. Union
National Bank, 688 F.2d 552, 562 (8th Cir. 1982), cert. denied,
460 U.S. 1083 (1983).
7 Defendants do not and cannot dispute that women !n those catego-
ries had prior to 1982 been erroneously classified as exempt employees by
Purolator. Plaintiffs’ complaint described the putative class as including only
exempt (salaried) employees, using defendants’ terminology and classifica-
tion.
63a
Defendants again repeat the erroneous argument made to the
District Court that plaintiffs disqualified themselves from serv-
ing as class representatives because they asserted retaliation
claims in addition to salary, promotion and transfer claims.
(Def. Br. at 10). As usual, defendants fail to address plaintiffs’
arguments, no doubt because there is no legitimate response to
the fact that a rule such as that proposed here would require
plaintiffs to abandon retaliation claims in order to pursue class
claims. Nothing in the law requires class representatives to
make such a choice. In any event, Sheehan’s “‘principal’’ claim
is not retaliation. (Def. Br. at 28). She claims and claimed dis-
crimination in salary, promotion, transfer and retaliation.
(J.A. 34-5; J.A. 14-16).
Finally, the cases cited by defendants are not on point. (Def.
Br. at 25). In Alexander v. Gino’s Inc., 621 F.2d 71 (3d Cir ).
cert. denied, [12] 449 U.S. 953 (1980), for example, the court
did not consider whether a plaintiff working at one level or
location within a company could represent a class that included
employees at different levels. The Alexander court rejected a
class action challenge to Gino’s discharge and promotion poli-
cies because members of the proposed discharge class each left
the company under very different circumstances and because
the plaintiff could not specify any member of the proposed pro-
motion class. In Martin v. Easton Publishing Co., 73 F.R.D.
678 (E.D. Pa. 1977) and Harris v. Pan American World Air-
ways, Inc., 74 F.R.D. 24 (N.D. Cal. 1977) the plaintiffs’
employment was terminated and they then brought class actions
alleging discrimination in virtually all terms and conditions of
employment. Indeed, in Pan American the plaintiff refused
another position with the defendant, 74 F.R.D. at 56. Here,
Sheehan was fired only after complaining about discrimination
in terms and conditions of employment and Henoch remained
employed. Thus, the nexus with the class in this case was estab-
lished and continued throughout the litigation.
— =
64a
D. Effect of Dismissal of Plaintiffs’ Individual Claims
Defendants’ claim that class certification is now precluded
because plaintiffs failed to prevail on the merits at the trial of
their individual claims is plainly wrong. (See Def. Br. at 31).
They ask this Court to review this case in a wholly inappro-
priate and backwards way. The Court first should look to the
class certification decision; if it is reversed, the Court should
then remand the individual cases to be considered in the light of
a decision on the class claims. Rossini, 798 F.2d at 606. That is
so because, as this Court ruled in Rossini, if class certification
were granted and plaintiffs prevailed in proving class-wide dis-
crimination, [13] they would then be entitled to a presumption
of discriminatory intent. See Jd.
The Fifth Circuit decision Trevino v. Holly Sugar Corp., 811
F.2d 896 (Sth Cir. 1987), cited by defendants, is not consistent
with the law of this Circuit.* The rule in this Circuit is to look at
the class certification first. If it is in error, the named plaintiffs’
individual claims should be remanded. Rossini, 798 F.2d at 606.
The Trevino court did just the opposite, first affirming the
judgment against the plaintiffs on their individual claims, then
affirming denial of class certification because these plaintiffs
without individual claims could not serve as class representa-
tives. This backward logic totally ignores the interests of the
class. Significantly, however, in contrast to the trial here, the
District Court in Trevino did analyze evidence of class-wide dis-
crimination in considering the individual claims. The Trevino
defendants ‘‘presented legitimate, non-discriminatory reasons
to account for the disparities that plaintiffs attributed to dis-
crimination.’’ 811 F.2d at 905. In this case, the District Court
refused to consider any class-type evidence during the trial of
the individual claims, and defendants’ counsel repeatedly
8 The Ninth Circuit decision cited by defendants, Betts v. Reliable
Collection Agency Ltd., 659 F.2d 1000 (9th Cir. 1981) (Def. Br. at 31), is not
on point. That court held that the district court had no authority under Rule
23 to create one “‘subclass’’ two years after judgment, for which there was no
representative.
65a
argued that this was not a class trial.” Evidence of class-wide
discriminatory practices by [14] defendants remains unrebutted
and has been ignored by the trial court. Under these circum-
stances, both the class claims and the individual claims should
be remanded. Rossini, 798 F.2d at 606.'°
POINT Il
DEFENDANTS HAVE FAILED TO JUSTIFY
THE DISTRICT COURT’S ERRONEOUS TREATMENT
OF THE EVIDENCE
A. Statistical Evidence
In discussing plaintiffs’ arguments on the statistics, defen-
dants again resort to hyperbole, distortion and outright mis-
statements. For example, defendants say that the Supreme
Court’s decision in Bazemore v. Friday, ____, U.S. , 106
S.Ct. 3000, 92 L.Ed.2d. 315 (1986) controls only as to the
admissibility of regression analyses, and that the District Court
here complied with Bazemore because it admitted plaintiffs’
studies into evidence and ‘‘considered’’ them. Thus, defendants
9 In an offer of documents into evidence by plaintiffs, the following
colloquy occurred:
The Court: What is your position with respect to those?
Plaintiffs’ Counsel: Our position with respect to all these documents is
that it shows a pattern of treatment of women and the attitude of
supervisors toward women as either permitted or encouraged by the
upper level management which issues these documents.
The Court: It seems to me that goes to proof which may be relevant in
a class action. We are not dealing with a class action. We’re dealing
with claimed discrimination against Ms. Sheehan and Ms. Henoch.
(J.A. 2592-93; see also, J.A. 3089; 2522-24).
10 ‘The failure of the named plaintiffs to prove that they were victims of
individual instances of discrimination does not necessarily prevent the court
from finding the existence of a “pattern or practice of discrimination as to
the class.’’ Perryman v. Johnson Products Co., 698 F.2d 1138, 1146 (11th
Cir. 1983) (citations omitted). See also Goodman v. Lukens Steel Co., 777
F.2d 113, 123 n.6 (3d Cir. 1985) (*‘[t}he fact that some of the named piain-
tiffs did not prevail on their individual claims does not make them inade-
quate class representatives’).
66a
state: ‘‘In Bazemore, the district court refused to admit into evi-
dence a regression analysis that, like [15] appellants’ here, did
not include all possible variables that might contribute to salary
disparities.’ (Def. Br. at 16).
Defendants’ reading of Bazemore is plainly and simply
wrong, for ali the regression analyses addressed by the Supreme
Court in Bazemore had been admitted into evidence. See 92
L.Ed. at 330-33. The Supreme Court reversed the lower court,
not because of a refusal to admit studies into evidence but
because, like the District Court here, the court did not accord
Proper evidentiary weight to the
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