On May 30, 2013, the Sixth Circuit issued its decision in Davis v. Cintas Corporation, Case No. 10-1662 (6th Cir. May 30, 2013), in which it upheld a district court’s refusal to certify a disparate impact Title VII case, but interestingly found that questions of fact precluding summary judgment on the lead (and now only) plaintiff’s individual claim. The Davis case provides guidance on a number of issues including the continued application of the decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), efforts by plaintiffs to find clever ways around Duke’s holding, and related challenges to employment practices under a disparate impact theory.
This is the third blog we’ve written on essentially the same two cases brought in the Northern District of California and the Eastern District of Michigan against uniform supplier Cintas. These cases involve alleged conduct as far back as 2003, ten years ago, but the litigation is ongoing. Our prior postings, which discuss the EEOC’s involvement, were referenced in September 2010 and November 2012.
In a nutshell, the plaintiffs and EEOC assert that Cintas discriminated on the basis of sex in hiring for its entry-level sales positions. In the Davis case the plaintiff asserted both disparate treatment and disparate impact claims and purported to bring those claims on behalf of a class of unsuccessful female applicants for those positions. The district court refused to certify the class, citing differences among hiring managers at different locations, as well as conflicts among the then plaintiff representatives and the proposed classes. It ultimately granted summary judgment against Davis on her individual claims.
Along the way, several other plaintiffs dismissed their individual claims, so that only Davis herself appealed. While the appeal was pending, the United States Supreme Court decided the Dukes case.
The plaintiff appeared to have made the right arguments at the time the case was before the district court. First, it is apparent that during the course of the case she patterned her class claims after the ones successful (at least up until 2011) in Dukes. She challenged the company’s hiring practices on a nationwide basis. She blamed the company’s “corporate culture” for the alleged discrimination, and presented both statistical and anecdotal evidence to support her claims. In parallel with that approach, she pointed to the company’s detailed hiring policies as well as the fact that the same system was used on a nationwide basis. She also retained an expert to assert that the company had a “white-male dominated business culture.” The problem, of course, with that approach was that once the Ninth Circuit’s decision in Dukes was overruled, it was largely a foregone conclusion that the Cintas case could not be certified either. In fact, relying heavily on Dukes, the Sixth Circuit found that the plaintiff could not establish commonality under Rule 23(a)(2) due to the involvement of individual managers in hiring decisions.
The district court had also declined to certify the case due to a lack of predominance and superiority under Rule 23(b)(3), a ruling the plaintiff did not challenge. Instead, she asserted that the case should have been certified under Rule 23(b)(2), but, of course, the Dukes decision precluded that avenue as well because she had prayed for front and back pay, inherently individual relief. The plaintiff tried to side-step Dukes by arguing that she was not advocating “trial by formula,” but, rather a “short-fall based model,” but the court found that, if anything, her model made the problems that troubled the Supreme Court in Dukes even worse. Absent commonality under Rule 23(a), it didn’t matter whether the plaintiff could establish Rule 23(b)(2) because the case could not have been certified anyway.
The court also addressed the grant of summary judgment and, here, gave the plaintiff some relief although it also gave a very positive ruling for employers generally on disparate impact claims. Davis sought to challenge the company’s hiring policies as a whole on a disparate impact basis, but the Sixth Circuit held, consistent with Supreme Court authority, that she could not attack the hiring process itself but had to challenge some discrete employment practice. Davis advanced the argument that she was singling out the subjective aspects of the company’s hiring process, but the Sixth Circuit held she could not do so unless she could show that they were “so intertwined that they were not capable of separation for analysis.” The fact that different managers conducted different interviews under different guidelines precluded such a claim.
While affirming the dismissal of Davis’s disparate impact claims, the court did find a question of fact as to one of her disparate treatment claims, arising in 2003, based upon a comparison of Davis and the facially equal or weaker qualifications of the male candidates who advanced in the hiring process. The court remanded the case for further consideration of that claim. The case as a whole had to be a disappointment for the plaintiffs, however, as they had hoped for a broad nationwide disparate impact case and ended up with a decade-old single-plaintiff disparate treatment case.
The bottom line: The Dukes case remains a considerable bar to challenges to nationwide hiring and employment practices. Plaintiffs cannot skirt the need in disparate impact cases to identify a specific employment practice simply by pointing to subjective decisions generally.