* The Honorable Louis F. Oberdorfer, United States Dist rict Judge for the District of Columbia, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

File Name: 06a0034p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R ACHEL R EEB , et al., Plaintiffs-Appellees,

v.

O HIO D EPARTMENT OF R EHABILITATION AND C ORRECTION
, B ELMONT C ORRECTIONAL I NSTITUTION
, Defendant-Appellant. 

### X - - - -

> 

### , - - - - - N No. 04-3994

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 00-00774—Algenon L. Marbley, District Judge.

Argued: October 26, 2005

Decided and Filed: January 24, 2006

Before: KEITH and BATCHELDER, Circu it Judges; OBERDORFER, District Judge. *

_________________ COUNSEL

ARGUED: Stephen P. Carney, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellant. Nicholas E. Kennedy, KENNEDY, REEVE & KNOLL, Columbus, Ohio, for Appellees. ON BRIEF: Stephen P. Carney, Douglas R. Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, Jack W. D ecker, Columbus, Ohio, for Appellant. Nicholas E. Kennedy, KENNEDY, REEVE & KNOLL, Columbus , Ohio, for Appellees. Ann E. Reesman, McGUINESS, NORRIS & WILLIAMS, Washington, D.C., for Amici Curiae.

BATCHELDER, J., delivered the opinion of the court, in which OBERDORFER, J., joined. KEITH, J. (pp. 12-19), delivered a separate dissenting opinion.

1No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 2

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circuit Judge. Four named female employees of the Belmont Correctional Institution (“Belmont”), a prison operated by the State of Ohio, filed a class action against Belmont and certain officials under Title VII of the Civil Rights Act of 1964, alleging that female corrections officers have been treated differently from similarly situated male corrections officers and accordingly have been denied promoti ons, denied leave and overtime, given undesirable positions, and replaced by men. The plaintiffs specifically requested money damages and an injunction, though they did not specify the conduct they sought to have enjoined. The U.S. District Court for the Southern District of Ohio certified th e plaintiff class, finding that the plaintiffs had shown the requirements of Federal Rule of Civ il Procedure 23(a) and (b)(2) had been met, and refused to certify the class under subdivision (b)(3). Reeb v. Ohio Dep’t of Rehab. & Corr. , 203 F.R.D. 315 (S.D. Ohio 2001) (hereinafter Reeb I ). We granted an interlocutory appeal pursuant to Federal Rule of Civil Procedure 23(f) and reversedthe grant of certification, finding that the record did not demonstrate that the distri ct court had engaged in the rigorous analysis required to determine whether the Rule 23(a) requirements had been met. Reeb v. Ohio Dep’t of Rehab. & Corr. , 81 Fed. Appx. 550 (6th Cir. 2003) (hereinafter Reeb II ).

Upon remand, the district court received no new evidence and re-certified the plaintiff class, again finding the requirements of Rule 23(a) and (b)(2) met and declining to certify the class under subdivision (b)(3). Reeb v. Ohio Dep’t of Rehab. & Corr. , 221 F.R.D. 464, 469 (S.D. Ohio 2004) (hereinafter Reeb III ). We again permitted Belmont’s appeal. Because the district court did not follow our instructions and conduct a “rigorous an alysis” of the requirements of Rule 23(a), and because Title VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought as class actions under Rule 23(b)(2) because such individual claims for money damages will always predominate over requested in junctive or declaratory relief, we VACATE the district court’s grant of class certification and REMAND the case to the district court for further proceedings.

I. Factual and Procedural Background

The facts of this case have been stated in th e two prior district court opinions and the prior decision of this court. We therefore adopt the background as set forth in the opinion of the first panel of this court to deal with this case:

[Belmont] is a prison operated by the Ohio Department of Rehabilitation and Corrections. It employs approximately 528 people, some of whose positions are covered by Ohio’s civil service laws while others are covered by collective bargaining agreements with three distin ct unions, District 1199, OCSEA, and OEA. One Hundred Forty-One of [Belmont’s ] employees are female-some unknown number of whom are OCSEA members. . . .

Plaintiffs Reeb and Brown, me mbers of OCSEA, work as female corrections officers at BeCI. Plaintiff Mackey, a member of OCSEA, also works as a corrections officer at BeCI; yet, for some period of time starting on May 18, 2000, Mackey worked as a secretary in a Temporary Work Level. Plaintiff Beabout, a member of OCSEA, began working at [Belmont] in 1995 as a corrections officer; on January 16, 2000, Beabout received a promotion to records officer on a permanent basis after holding that position on a Temporary Work Level as of December 1, 1999.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 3

Plaintiffs’ complaint alleges that: 1) plai ntiffs “have been treated differently, held to a different standard, and given different duties . . . [than] similarly situated male corrections officers”; 2) plaintiffs “are frequently required to perform undesirable positions at BeCI . . . [while] similarly s ituated male employees are not assigned to such duties”; 3) plaintiffs “are routinely pulled off of their posts and replaced with male [o]fficers because [p]laintiffs are not seen as able to handle difficult situations that may arise with inmates”; 4) plaintiffs “are routinely denied leave and/or overtime, despite having valid excuses or reasons, while similarly situated male [o]fficers are granted leave and/or overtime for much less valid excuses”; 5) plaintiffs are “routinely written up for alleged infractions or rule violations . . . while similarly situated males are not disciplined for the same or more severe infractions”; 6) plaintiffs “have been denied training for various reasons . . . [while] similarly situated male employees have not been denied such training for the same or any reasons”; 7) those female employees who “claimed to have had [sexual] relations with the [w]arden . . . and other supervisors” are “treated substantially better than the rest of the class”; 8) plaintiffs are not promoted while less qualified male officers are promoted because such officers socialize w ith and bestow various gifts or services upon the warden; 9) plaintiffs have been re taliated against “in the form of increased scrutiny on their behavior and more disparate treatment” because they filed “numerous grievances and complaints regarding such discriminatory treatment” and, subsequently, hired legal counsel; 10) “[m]ale officers routinely allow the male inmates to harass, intimidate, and threat en [p]laintiffs”; 11) the warden “has interfered with the methods and developed processes” that are to protect employees such that plaintiffs have been unable to obtain relief with [Belmont]; and 12) plaintiffs “have routinely been deni ed promotions . . . over less qualified, similarly situated male correction[s] officers” such that males hold seventeen out of eighteen captain and lieutenant positions. Regarding this last allegation, plaintiffs further allege that [Belmont] “circumvent s the [usual] requirements of posting and interviewing for a [promotion] position” by routinely using “a ‘temporary position’ to place hand-selected males into a promotion position over more qualified females” and later making such “temporary positions” permanent so as to prevent plaintiffs “from even applying for such positions.”

The complaint seeks $2 million in compensatory da mages, $3 million in punitive damages, attorneys’ fees and costs, and declaratory relief. The complaint explicitly seeks neither injunctive relief nor a preliminary injunction. Plaintiffs assert that their request “[t]hat the rights of class members to the relief sought herein be adjudicated and declared” is sufficient to state a claim for injunctive relief. In their motion for class certification, plaintiffs expressly state that, among other relief, they seek injunctive relief. Plaintiffs do not specify what that injunctive relief would entail.

Reeb II, 81 Fed. Appx. at 551-52.

On October 25, 2001, the district court certifie d the class to include “[a]ll those female employees of Defendant Belmont Correctional Institu te [sic], past or present, who are members of the OCSEA and who now work, or at any time during the five years preceding the commencement of this action, worked for [Belmont].” Reeb I, 203 F.R.D. at 320. It found the commonality and typicality requirements met because each of the indivi dual plaintiffs claimed to have been the victim of discrimination on the basis of sex as a result of the defendant’s general policy. Id. at 320-22. In finding that the class should be certif ied under Rule 23(b)(2), the court stated that the plaintiffs “will feel their rights have been vindicated not by an award of monetary damages alone, but by effecting a change in the way their employer treats females.” Id. at 323-24. However, the court did not make any findings detailing how it reached its conclusion that the requirements of the rule had been metNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 4

other than to state that it could certify a class action under Rule 23(b)(2) “as long as money damages do not constitute the predominate [sic] type of relief requested.” Id. at 323. It did find, however, that it could not certify the class under Rule 23(b)(3 ) because the individual considerations regarding the employer’s motivation behind its actions towards each plaintiff and her entitlement to compensatory damages would predominate over th e common issues in the case, namely Belmont’s policy of gender discrimination. Id. at 324.

We permitted an appeal of the certification for the purpose of determining when injunctive relief “predominates” in an action in which compen satory damages are also claimed for the purposes of certification under Rule 23(b)(2). Reeb II, 81 Fed. Appx. at 553-54. However, we believed it improper to rule on that basis because the record did not show that the di strict court had conducted a rigorous analysis of the Rule 23(a) factors, and we therefore remanded for closer consideration of whether the Rule 23(a) factors had been met. Id. at 554, 559. Moreover, we noted that the district court, at the time it originally certified the cla ss, did not have the benefit of our opinion in Coleman v. GMAC , 296 F.3d 443 (6th Cir. 2002), in which we stated that Equal Credit Opportunity Act (ECOA) plaintiffs seeking compensatory damage s cannot seek class certification under subdivision (b)(2) because the request for such damages necessarily predominates over any requested injunctive or declaratory relief.

On remand, the district court did not provide th e parties the opportunity to present additional evidence or briefs, but issued an order recertif ying the class as “all those female employees of Defendant Belmont Correctional Institute [sic], past or present, who are members of the OCSEA and who now work, or at any time during the five years preceding the commencement of this action, worked for the Defendant Belmont Correctional Institute [sic] as corrections officers.” Reeb III, 221 F.R.D. at 469. Addressing commonality, the court st ated that it needed to find only one issue in common among the class members and that “the issu e of whether the Defendant’s alleged practices violate federal law is a question common to the class.” Id. at 475. The district court then went on to say that this was not a case where one person suffered a discrete act of discrimination and then sued on behalf of a class of which he happened to be a member; rather, this is a case where the allegation is that the plaintiffs are all members of a class that has been discriminated against based on membership in that class. Id. at 476.

The district court stated that the typicality requirement is met “as long as each class member’s claim arises from the same course of events.” Id. at 478 (citing Robidoux v. Celani , 987 F.2d 931, 936 (2d Cir. 1993)). The typicality requireme nt was satisfied, the court said, because all members of the class—including the named plainti ffs—allegedly suffered as a result of the broad policy of sex discrimination. Id. at 478-79.

Finally, with regard to certification under Rule 23(b)(2), the district court distinguished Coleman and found that the damages sought in this case would be “relatively simple” to determine and are more like back pay than th e compensatory damages sought in Coleman

. Id. at 481. It did not discuss the other damages sought, such as the Title VII damages sounding in tort, the claims for medical damages by the four named class members, and two instances of depression claimed by the named members. The district court certified the class under subdivision (b)(2), noting the rationale of the Second Circuit in Robinson v. Metro-North Commuter R.R. Co. , 267 F.3d 147, 164 (2d Cir. 2001): “(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. at 482.

Belmont again appeals, arguing that Rule 23(b )(2) classes cannot be certified when plaintiffs request compensatory damages or that, at the very least, they can not be certified in Title VII cases when the plaintiffs request compensatory damages.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 5

II. Standard of Review

We may permit an immediate appeal of a district court’s decision as to class certification, F ED

. R. C IV

. P. 23(f), and we review the order for an abuse of discretion. Alkire v. Irving , 330 F.3d 802, 810 (6th Cir. 2003); Coleman , 296 F.3d at 446; Sterling v. Velsicol Chem. Corp. , 855 F.2d 1188, 1197 (6th Cir. 1988). The district court maintains substantial discretion in determining whether to certify a class, as it possesses the inhe rent power to manage and control its own pending litigation. Stout v. J.D. Byrider , 228 F.3d 709, 716 (6th Cir. 2000). However, we will find an abuse of discretion when the district court relies on e rroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard wh en reaching a conclusion, or makes a clear error of judgment. Schachner v. Blue Cross & Blue Shield , 77 F.3d 889, 895 (6th Cir. 1996); Bowling v. Pfizer, Inc. , 102 F.3d 777, 780 (6th Cir. 1996); First Tech. Safety Sys., Inc. v. Depinet , 11 F.3d 641, 647 (6th Cir. 1993).

III. Rule 23(a)

Federal Rule of Civil Procedure 23(a) provide s the prerequisites to certifying a class under one of the Rule 23(b) provisions, stating:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

F ED

. R. C IV

. P. 23(a).

In Reeb II, we instructed the district court to conduct a “rigorous analysis” of the issues necessary to show that the requirement s of Rule 23(a) have been met. Reeb II, 81 Fed. Appx. at 559. We noted that the court could not perform this f unction without more precise information as to the nature of each of the named plainti ffs’ individual discrimination claims. Id. at 556, 559. Upon remand, the district court did not conduct any more hearings and simply attempted to clarify its earlier order by issuing a new one with a new analys is. In doing so, it failed to explicitly examine the named plaintiffs’ claims and noted only the pl aintiffs’ assertion that Belmont had a “general policy” of discrimination. Reeb III, 221 F.R.D. at 474.

As we noted in Reeb II, the Supreme Court’s decision in Gen. Tel. Co. of the Southwest v. Falcon , 457 U.S. 147 (1982), requires plaintiffs requesting class certification in a case raising generalized Title VII discrimination claims to a llege “‘significant proof’ that [Belmont] operated under a general policy of gender discrimination that resulted in gender discrimination manifesting itself in ‘the same general fashion’ as to each of the kinds of discriminatory treatment upon which the pattern-or-practice class action rests.” Reeb II, 81 Fed. Appx. at 559. The district court, upon remand, noted that Falcon dealt with only one plaintiff whose case could have been significantly different from the claims of other class members, whereas this case presents several named plaintiffs who suffered a variety of harms. Reeb III, 221 F.R.D. at 475.

We believe that the record inthis case is not sufficient for the district court to have conducted the analysis it needed to do in order to make sure the Falcon requirements were met. The district court’s opinion after the first remand did not adequately examine just what the named plaintiffs are seeking, nor did it review any evidence as to the likely claims thatthe rest of the class will assert. For example, in order to find typicality and commonality, the precise nature of the various claims must be examined.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 6

The district court found the commonality elemen t of subdivision (a) me t “[b]ecause the issue of whether the Defendant violated Title VII will be common to the class . . . .” Reeb , 221 F.R.D. at 477. If this were the test, every plaintiff seeking to certify a class in a Title VII action would be entitled to that certification. Plaintiffs argue that the Falcon case allows for a finding of commonality whenever a plaintiff asserts that anemployer’s decision-making with regard to all employees in the protected group manifests itself in the same general fashion. However, this argument ignores the fact that the same general policy of discrimination can affect many different aspects of employment, such as hiring, firing, promoting, giving benefits, providing vacation time, or delegating work assignments.

Moreover, the typicality requirement is not met if the named plaintiffs do not represent an adequate cross-section of the claims asserted by the rest of the class. Employment discrimination claims require proof that particular managers took particular employment actions and that either the managers were motivated by a discriminatory animus or the actions resulted in a disparate impact upon the class; the district court is therefore re quired to examine the incidents, people involved, motivations, and consequences regarding each of the named plaintiffs’ claims to determine the typicality element of Rule 23(a). See Falcon , 457 U.S. at 159 n.15 (“Title VII prohibits discriminatory employment practices , not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of anidentifiable class of persons of the same race or national origin is insufficient to establish his st anding to litigate on their behalf all possible claims of discrimination against a common employer”) (emphasi s in original). If there are members of the class that will be asserting any or all of these claims, then there needs to be a class representative who is arguing the same thing–or the plaintiffs must show how their claims are typical in the absence of such a named plaintiff–in order for the district court to find typicality.

Here, the district court seems to have found that the presence of a common question of law regarding whether Belmont had a policy of discriminating against women satisfied both the typicality and commonality elements, but a general po licy of discrimination is not sufficient to allow a court to find commonality or typicality. See Falcon , 457 U.S. at 159. Because the district court did not examine the nature of the claims raised by the named plaintiffs and the claims likely to be raised by other members of the class, the court did not perform the required analysis of these issues. Indeed, it seems impossible for the court to have doneso on the scant record before it at the time it issued the certification order. Nonetheless, b ecause we conclude below that certification of a plaintiffs’ class under Rule 23(b)(2) is improper ina Title VII case in which the plaintiffs seek individual compensatory damages, and because the district court has already determined that Rule 23(b)(1) and (b)(3) class certification is not appropriate in this case, we do not reach the question of whether the plaintiffs should have the opportun ity to present evidence sufficient to make the required Rule 23(a) showing.

IV. Rule 23(b)(2)

Federal Rule of Civil Procedure 23(b) authori zes three types of class action suits. To meet the requirements of the rule, the class representatives must show that action meets all of the requirements of Rule 23(a) and, for subdivision (b)(2 ) classes, that the party opposing the class has affected the class in a way generally applicable to the class as a whole so that final injunctive or declaratory relief with respect to the entire class is appropriate. F ED

. R. C IV

. P. 23(b)(2). Rule 23(b)(1) and Rule 23(b)(2) authorize “mandatory” class actions under which potential class members do not have an automatic ri ght to notice or a right to opt out of the class. Rule 23(b)(3), designed to accommodate claims for money damages, requires notice to the class members, including the member’s right to opt out of the class, see F ED

. R. C IV

. P. 23(c)(2)(B), and specifies the factors that a court needs to consider in determining whether common issues predominate. See F ED

. R. C IV

. P. 23(b)(3).No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 7

A. Text and History of Rule 23(b)(2)

The starting point in answering th e question of when, if ever, a pl aintiff class that is seeking compensatory damages may be certified under Rule 23( b)(2) is the text of the Rule: “the party opposing the class has acted or refused to act on gr ounds generally applicable to the class, thereby making appropriate final injunctive relief or corre sponding declaratory relief with respect to the class as a whole.” F ED

. R. C IV

. P. 23(b)(2). One interpretation of this language is that the rule allows class certification for classes that seek injunctive relief or declaratory relief only ; the other interpretation allows class certification wherever a class is formed in which class-wide injunctive or declaratory relief would be one appropriate means of adjudicating the claim.

The Advisory Committee Notes to the 1966 ame ndments to Rule 23 further muddy the issue, stating that the “subdivision is intended to reach s ituations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” F ED

. R. C IV

. P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2). Continuing, the Committee stated that the subdivisi on is not intended to “extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Id. Subsequent amendments in 1987, 1998, and 2003 have either made no substantive change or have changed other provisions of the rule not applicable to the interpretation of subdivision (b)(2).

The Supreme Court has never determined whether subdivision (b)(2) classes can be certified in cases in which, in addition to an injuncti on, the plaintiffs seek monetary relief. In Ticor Title Ins. Co. v. Brown , 511 U.S. 117 (1994), a (b)(2) class action, th e Court granted certiorari in order to address whether awarding money damages in a mandatory class (one which does not require notice and opt-out procedures) violates the due pro cess rights of the absent class members. Id. at 120-21. The Court dismissed the case, however, because it had not yet decided whether Rule 23(b)(2) allows a class to pursue money damages, which is a preliminary non-constitutional question. Id. at 121.

B. Other Circuits’ Treatment of the Issue

In Allison v. Citgo Petroleum Corp. , 151 F.3d 402 (5th Cir. 1998), the Fifth Circuit reviewed a district court’s decision not to certify under subdi vision (b)(2) a class that involved more than 1000 potential members seeking relief under Title VII for alleged racial discrimination, requesting back pay, front pay, pre-judgment interest, and attorney’s fees. Id . at 407. The court noted that the Civil Rights Act of 1991changed Title VII to allow plaintiffs to recover compensatory and punitive damages from an employer that engaged in an unlawful employment practice. Id. at 409-10 (citing 42 U.S.C. § 1981a(a)(1)). Compensatory damages may include future pecuniary losses, emotional damages, suffering, inconvenience, mental distre ss, hedonic losses, and other nonpecuniary losses. Id. at 410 (citing 42 U.S.C. § 1981a(b)(3)). The 1991 Act’ s introduction of jury trials into Title VII cases, the court explained, created manageability pr oblems with regard to class action cases under Title VII seeking monetary damages, because th e Seventh Amendment and practical considerations make bifurcation, the appropriate method of adjudi cating these claims before the 1991 Act, difficult. Id.

The Allison court then noted that the language of Rule 23(b)(2) is silent as to whether monetary relief may be sought in conjunction with th e stated injunctive or declaratory relief, and that the Advisory Committee Notes state that the rule is intended to cover situations where the requested relief “relates exclusively or predominantly to money damages.” Id. at 411. From this, the court opined that “at least some form or amount of monetary relief” could be allowed in (b)(2) class actions. Id.

The question, therefore, was what “predominant” means. To answer this question, the court turned first to the different types of class ac tions provided for in Rule 23, each of whichNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 8

“represent[s] a balance struck . . . between the needand efficiency of a class action and the interests of class members to pursue their clai ms separately or not at all.” Id. at 412. The (b)(2) class “was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary” and the (b)(3) class “was intended to dispose of all other cases in which a class action would be ‘convenient and desirable,’ including those involving large-scale, complex litigation for money damages.” Id. (citing Holmes v. Cont’l Can Co. , 706 F.2d 1144, 1155 n.8 (11th Cir. 1983), and Amchem Prods., Inc. v. Windsor , 521 U.S. 591 (1997)).

The mandatory notice and opt-out availability fo r (b)(3) classes, the court said, demonstrates the particular concerns that class members have with being members of a class when money damages are at issue. Id. at 413 (citing F ED

. R. C IV

. P. 23, Advisory Committee Notes, stating that, to “the degree [that] there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend towarda minimum”). The disparate intentions and motivations of plaintiffs are most noted where monetary damages are at issue, which is why the (b)(3) class mandates notice and the opportunity to opt out and why the (b)(2) class, in which the form of relief sought is declaratory or injunctive in nature, does not contain such a requirement. Id. Where claims for individual damages become the more important form of requested relief, “the presumption of cohesiveness decreases while the needfor enhanced procedural safeguards to protect the individual rights of class members increases . . . thereby making class certification under (b)(2) less appropriate.” Id. Therefore, the court concluded, monetary relief predominates when its importance in the litig ation suggests that the procedural safeguards found in (b)(3) are necessary. Id. If monetary relief does predominate, then s ubdivision (b)(3) is the appropriate means of class certification. Id. ; see also Ortiz v. Fibreboard Corp. , 527 U.S. 815, 844-45 (1999) (stating that, in class actions for money damages, class members ar e entitled to notice and an opportunity to opt out).

The court then stated its holding, finding that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief,” and interpreting “incidental” to mean “damages that fl ow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief, as the text of subdivision (b)(2) refers to ‘relief appropriate with respect to the class as a whole.’” Id. (internal quotation marks omitted) (emphasis in original). To be more specific, th e court stated that damages in these cases should be “concomitant with, not merely consequential to, cla ss-wide injunctive or declaratory relief” and that the computation of such damages should not be “d ependent in any significant way on the intangible, subjective differences of each class member’s circumstances.” Id. at 415. Damages recoverable would be those that inure to the group benefit, which the court felt was most consistent with the purpose of the (b)(2) class to begin with. Id.

The Fifth Circuit viewed this approach as consistent with the position it had taken in past decisions that back pay could be awarded in T itle VII cases to members of a (b)(2) class because back pay is an equitable remedy that has alwa ys been available under Title VII, as opposed to compensatory and punitive damages, which are legal in nature. Id. at 415-16. It then went on to find that the plaintiffs in that case had specifi cally requested back pay, front pay, compensatory damages, punitive damages, prejudgment interest, attorneys’ fees, and retroactive benefits, and affirmed the district court’s finding that the presence of claims for individual compensatory and punitive damages were very particularized inquiries th at involve considerations of the effect of the defendant’s broad policy to an individual’s particular circumstances, and therefore, the damages were not “incidental” to the requested injunctive or declaratory relief. Id. at 415-17.

The court found that, especially with regard to emotional harm and other intangible injuries, plaintiffs must submit proof of actual injury that necessarily differs from person to person because the nature of the injury is the eff ect on the person as an individual. Id. at 417. Furthermore, findings with regard to availability and amount of punitive damages must be tied to the amount of compensatory damages awarded, so this too turns on individual considerations and is not just aNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 9

blanket award based on a showing that a de fendant’s conduct has caused some harm. Id. at 417-18 (citing BMW of N. Am., Inc. v. Gore , 517 U.S. 559 (1996)). It concluded that, because of the individual attention required for determining whether non-class-wide compensatory or punitive damages may be awarded, claims for such damages are not appropriate for a class that is seeking certification under subdivision (b)(2). The Seventh and Eleventh Circuits have adopted Allison ’s reasoning. See Lemon v. Int’l Union of Opera ting Eng’rs, Local No. 139, AFL-CIO , 216 F.3d 577, 581 (7th Cir. 2000); Jefferson v. Ingersoll Int’l, Inc. , 195 F.3d 894 (7th Cir. 1999); Murray v. Auslander , 244 F.3d 807 (11th Cir. 2001).

Not all circuits addressing the issue have agr eed with this assessment. The Second Circuit noted a textual ambiguity in Rule 23(b)(2) and adopted one of the interpretations of the Advisory Committee Notes cited by the dissenting judge in Allison , stating that a district court may certify a class under subdivision (b)(2) despite the presence of a request for compensatory and punitive damages if

it finds in its informed, sound judicial disc retion that (1) the positive weight or value [to the plaintiffs] of the injunctive or d eclaratory relief sought is predominant even though compensatory or punitive damages ar e also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy.

Robinson , 267 F.3d at 164 (2d Cir. 2001) (internal citation and quotation marks omitted). The court added that a district court, in deciding whether to certify a class under subdivision (b)(2), must make sure that plaintiffs would bring the suit to obtai n the injunctive or declaratory relief sought even in the absence of any monetary remedies, and that th e injunctive or declaratory relief requested would be both necessary and appropriate if the plaintiffs were to succeed on the merits. Id. The Ninth Circuit has also chosen to perform a weighing anal ysis when determining whether or not injunctive or declaratory relief predominates over requested damages in an individual case. See Molski v. Gleich , 318 F.3d 937, 950 (9th Cir. 2003) (refusing to follow Allison because it “would nullify the discretion vested in the district courts through Rule 23” and might have “troubling implications for the viability of future civil rights actions, particularly those under the Civil Rights Act of 1991”).

C. Coleman v. GMAC and the ECOA

We noted in Reeb II that, upon remand, the district court should consider the effect of our opinion in Coleman v. GMAC on the class-certification decision. Reeb II, 81 Fed. Appx. at 554. On remand, the district court found that Coleman did not apply and expressly adopted the reasoning articulated by the Second Circuit in Robinson in reaching its certification decision. See Reeb III

, 221 F.R.D. at 480.

In Coleman , we reviewed a district c ourt’s decision to certify a pl aintiff class in which the plaintiffs asserted that GMAC discriminated agai nst them on the basis of race in violation of the ECOA. We vacated the class-certification order and remanded for further proceedings in the district court based primarily on the reasoning in Allison . 296 F.3d at 445-50. The named plaintiff in Coleman sought certification of a class of plaintiffs defined as “[a]ll African American consumers who obtained financing from GMAC in Tennessee pursuant to GMAC’s ‘Retail Plan-Without Recourse’ between May 10, 1989 and the date of j udgment and who were charged a finance charge markup greater than the average finance ch arge markup charged white consumers.” Id. at 445-46. GMAC opposed the certification, arguing that “the individualized issues regarding liability and damages render the suit inappropriate for class treatment.” Id. at 446. As did the district court in the case before us here, the district court in Coleman found that the proposed class met the requirements of Rule 23(b)(2), but did not meet the requirements of Rule 23(b)(3) because theNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 10

plaintiff “had failed to show that individuali zed factors do not play a role in the [claimed discriminatory practice].” Id.

We first noted that there is an “apparent c onsensus that money damages are recoverable to some extent in a Rule 23(b)(2) class action,” but we noted as well that the Supreme Court has expressed concern about the co nstitutionality of certif ying a mandatory class where claims for money damages were involved. Id. at 447; see also In re Telectronics Pacing Sys., Inc. , 221 F.3d 870, 881 (6th Cir. 2000) (stating that “principles of sound judicial management and constitutional considerations of due process and the right to jury trial all lead to the conc lusion that in an action for money damages class members are entitled to personal notice and an opportunity to opt out”). We then held that compensatory damages sought under the ECOA are not recoverable by a Rule 23(b)(2) class. Id.

In making this determination, we found that the defining characteristic of the “mandatory classes” is the homogeneity of th e interests of the members of the class; the more individualized determinations come into play, the more divergent the interests of the memb ers of the class become. Id. at 447-48. The (b)(3) class, we said, was creat ed for members with divergent interests, and provides the protections of notice and the opportunity to opt out. Id . at 448. Further, “class treatment of the claims for money damages implicates the Seventh Amendment and due process rights of individual class members.” Id. at 448. Because of these concerns, “close scrutiny is necessary if money damages are to be included inany mandatory class in order to protect the individual interests at stake and ensure thatthe underlying assumption of homogeneity is not undermined.” Id. (citing Telectronics , 221 F.3d at 881).

In Coleman , we also examined the Advisory Committee Notes to subdivision (b)(3), something not done by other courts facing the issue of when to certify a (b)(2) class where compensatory damages are sought. In examining that commentary, we noted that a district court can only certify a (b)(3) class where it finds that the co mmon issues predominate because that is the only situation in which the class action format can se rve its function in promoting judicial economy. Id. A similar concern arises in the (b)(2) contex t, and one “critical factor” must be whether compensatory relief requested by the plaintiffs will require individualized damages calculations or if that relief will be calculable on a class-wide basis. Id.

Furthermore, we found that the purposes of the class action suit are judicial economy and the opportunity to bring claims that would not be brought absent the class action forum because it might not be economically feasible to bring them as individual claims. Id. at 448-49. These benefits would not be realized where plaintiffs requestedcompensatory damages under the ECOA, we said, for three reasons: (1) the request for compensatory damages “undermines the assumption of homogeneity” of the class because each individual member has a stake in the outcome of the litigation but would not have the opportunity to opt out in order to protect that interest; (2) the efficiencies that are to come with class certification would not be realized because of the individual determinations that would be necessary to calcu late the amount of damages to which each class member is entitled; and (3) the ECOA provision that provides for an award of attorney’s fees and costs to successful plaintiffs reduces the likelihood that these claims would not be brought absent class certification. Id. at 449. We found persuasive the fact that the compensatory damages requested would have to be determined by an individualized inquiry into the amount of interest charged to each class member, an inquiry which would predominate over the requested injunctive or declaratory relief. Id.

Finally, we explained that our holding is not inconsistent with our precedents allowing back pay as a requested remedy for a certified (b)(2) class because “back pay generally involves less complicated factual determinations and fewer individualized issues” than the computation of compensatory damages, and back pay is an equitable remedy that does not implicate the proceduralNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 11

and constitutional issues that a damage award does. Id. at 949-50. In sum, we concluded that ECOA compensatory damages are not recoverable by a Rule 23(b)(2) class, and that the district court had abused its discretion in certifying the class under Rule 23(b)(2). Id. at 450.

D. Title VII Cases

Coleman ’s reliance on the reasoning in Allison dictates the outcome of this case. Title VII and the ECOA are virtually indistinguishable in th e areas which we thought relevant to our analysis in Coleman and, in most instances, the characteristics of Title VII counsel more strongly against allowing individual compensatory damage claims in Rule 23(b)(2) certifications than do those of the ECOA. First, the individual compensatory damages available under the ECOA involve a fairly straightforward interest rate calculation, whereas the damages available under Title VII include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses. Compare 15 U.S.C. § 1691e(a), with 42 U.S.C. § 1981a(a)(1); see also Coleman , 296 F.3d at 449.

Furthermore, in an ECOA case, only the issue of damages would need to be determined on an individualized basis. See Coleman , 296 F.3d at 449 (citing Buycks-Roberson v. Citibank Fed. Savings Bank , 162 F.R.D. 322, 335 (N.D. Ill. 1995)). But in a Title VII case, whether the discriminatory practice actually was responsible for the individual class member’s harm, the applicability of nondiscriminatory reasons for the ac tion, showings of pretext, and any affirmative defense all must be analyzed on an individual basis.

Finally, we explained in Coleman that whether plaintiffs would bring a suit in the absence of the availability of a class action is a factor to be considered in determining whether or not to allow class certifications. Id.; see also Deposit Guaranty Nat’l Bank v. Roper , 445 U.S. 326, 329 (1980). We found that such suits would be brought on an individual basis because of statutory provisions calling for attorney’s fees and costs to be awarded to successful plaintiffs. Coleman , 296 F.3d at 449. The same can be said in Title VII cases. Title VII provides the same inducement through its fee-shifting provision, provides an administrative scheme meant to remedy these problems without ever resorting to lawsuits, and allows the EEOC to bring suit on the individual’s behalf. 42 U.S.C. § 2000e-5(a), (b) & (k). There is certainly no lack of individual plaintiffs lining up to bring Title VII actions, as any cursory search on Lexis-Nexis orWestlaw will illustrate. Indeed, Title VII after the 1991 amendments appears designed specifically w ith individual plaintiffs in mind. The district court cited the possibility of retaliation against those who refused to opt out of the class as a possible deterrent to bringing suit, but Title VII provides a cause of action for those retaliated against for participating in a protected activity. See 42 U.S.C. § 2000e-3(a).

Accordingly, we hold that, because of the indi vidualized nature of damages calculations for Title VII plaintiffs and the ability of those plain tiffs to bring individual actions, the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunctive relief, and i ndividual compensatory damages are not recoverable by a Rule 23(b)(2) class. The district court therefore abused its discretion in certifying this class under Federal Rule of Civil Procedure 23(b)(2). We emphasize, however, that this holding does not foreclose all Title VII class actions. Plainti ffs now have the choice of proceeding under Rule 23(b)(3) in an action for money damages or in an action under Rule 23(b)(2) for declaratory or injunctive relief alone or in conjunction with comp ensatory and punitive damages that inure to the group benefit. And, as always, plaintiffs remainfree to bring Title VII actions as individuals.

V. Conclusion

For the foregoing reasons, we VACATE the district court’s certification of the class and REMAND the case to the district court for further proceedings consistent with this opinion.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 12

_________________
DISSENT

_________________ DAMON J. KEITH, Circuit Judge, dissenting. I write separately to express my disagreement with the majority’s holding. The majority imprope rly holds that the plaintiffs, female corrections officers, who claim that their employer Belmont Correctional Institution discriminated against them based on their sex, cannot bring a class action under Fed. R. Civ. P. 23(b)(2) to collectively enforce the rights and remedies afforded for such viol ations under both the Civ il Rights Act of 1991, 42 U.S.C. § 1981a, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

Rejecting the majority’s analysis, I would affirm the district court and hold that it did not abuse its discretion by not engaging in a Falcon “ rigorous analysis” under Rule 23(a). Further, the district court did not abuse its discre tion when it applied the standard in Robinson v. Metro-North Commuter R.R. Co. , 267 F.3d 147 (2d Cir. 2001) to certify Plaintiffs’ case as a Rule 23(b)(2) class. See Reeb v. Ohio Dep’t. of Corr. and Rehab. , 221 F.R.D. 464, 480 (S.D.Oh. 2004) (“ Reeb III ”).

I. RIGOROUS ANALYSIS UNDER RULE 23(a)

In Reeb II, this Court remanded with instructions for the district court to conduct a “rigorous analysis” necessary to show that the Plaintiffs had met all of Rule 23(a)’s requirements. Reeb v. Ohio Dep’t. of Rehab. , 81 Fed.Appx. 550, 559 (6th Cir. 2004) (unpublished) (“ Reeb II ”). The Court directed the district court to fo llow the Supreme Court’s precedent in Gen. Tel. Co. of the Southwest v. Falcon , 457 U.S. 147 (1982).

The district court admittedly rejected the in structions on remand and properly distinguished Falcon . The district court distinguished this case from Falcon stating that “ Falcon involved one plaintiff who has been subjected to one form of discrimination, yet he sought to represent a class – of which he was not a part– that had been subjected to a completely different form of discrimination.” Reeb v. Ohio Dep’t. of Rehab. , 221 F.R.D. 464, 475-76 (S.D.Oh. 2004) (“ Reeb I ”).

Notably, the district court properly held the Pl aintiffs were able to establish the commonality and typicality requirements. In regards to commona lity, the district court stated that the Plaintiffs needed only to have one common question of law or fact for class certification. Reeb III at 474. The district court reasoned that the one common issue of fact was the named Plaintiffs’ allegation that the defendant maintained a policy of gender discri mination that manifested itself in various ways. Id. at 474-75 (citing Rule 23(a)(2) and Sprague v. Gen. Motors Corp ., 133 F.3d 388, 397 (6th Cir. 1998) (stating that the requirements for Rule 23(a)(2) are low, requiring that there only be “one common issue the resolution of whic h will advance the litigation.”)). Here, the Plaintiffs assert that the discriminatory employment practices affected th em as well as other members of the class. The district court properly noted that

many of the alleged practices– such as the general claims of different treatment and standards, the requirement that women more often perform the undesirable duties, and the inability to apply fo r promotions based on the use of temporary positions– are likely to apply to all members of the class, including the named Plaintiffs. Other practices– such as the denial of training opportunities and leave, the use of excessive discipline as compared to male employees, and the failure to promote– are more likely to have applied only to certain of the female corrections officers.

Id . at 475.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 13

Further, the district court prope rly held that Rule 23(a)(3)’s typicality requirement is satisfied as long as each class member’s claim arises from the same course of events. Reeb III at 478 (citing Robidoux v. Celani , 987 F.2d 931, 936 (2d Cir. 1993)). The distri ct court explained that “substantial identity between the operative facts of the named plaintiffs and the class in general is not necessary. . . . [w]hen an overarching policy of di scrimination is adequately alleged, the fact that both the named Plaintiffs and the putative class members were equally subjected to that policy is more important than precise identity between th e facts of how the policy impacted each class member.” Id

. The majority rejects the district court’s attempt to distinguish Falcon and finds that the district court did not obtain any new evidence to determine whether Plaintiffs met Rule 23(a) requirements. Based on the district court’s analys is, I would hold that the district court engaged in a rigorous analysis sufficient to certify the class under Rule 23(a). While Falcon requires an individual analysis of each plaintiff, this analysis is not necessary here where the members of the class have been subjected to a general policy or pr actice and the legality of that policy is the focus of the litigation. Reeb III

. II. CERTIFICATION UNDER RULE 23(b)(2)

The issue before this Court is one of first impression – namely, whether Title VII plaintiffs can bring a class action for injunctive or decl aratory relief in the same action that seeks compensatory damages under Fed. R. Civ. P. 23(b)(2). The majority holds that “Title VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought as class actions under Rule 23(b)(2) because such claims for money damages will always predominate over requested injunctive or declaratory relief.” Majority Op. at 2 (emphasis added).

The majority’s holding usurps the legislative disc retionary power granted to the district court to certify class actions under Fed. R. Civ. P. 23(c) and ignores the plain language of the Rule. The majority adopts a standard wherein class certification is automatically denied whenever plaintiffs request individual monetary and injunctive or declaratory relief in the same action.

A. Class Actions as a Tool for Fighting Systemic Workplace Discrimination

The majority’s holding disregards the widespread implications that this holding will have on Title VII plaintiffs ability to file a class action to address and remedy systemic discrimination in the workplace. By creating an irrebutable presum ption in Rule23(b)(2) class actions that whenever monetary and injunctive or declaratory relief is sought in the same action, monetary relief always predominate, the majority prevents plaintiffs who have valid claims for injunctive and monetary relief from filing a class action under 23(b)(2). Th is holding eliminates class actions’ power as a tool to address systemic workplace discrimination and turns the clock back on civil rights.

The Plaintiffs correctly argued against this approach asserting that it “places victims of discrimination in a quandary that Congress never in tended: they must either abandon the claims for compensatory damages . . . or they must forfeit the class treatment that may be the only hope for prevailing and for an injunction that will finally end discrimination.” (Appellee’s Br. at 20.)

Congress passed the 1991 Civil Rights Amendments “to provide appropriate remedies for intentional discrimination . . . and [expand] the scope of relevant civil rights statutes in order to provide adequate protection to victims of disc rimination.” Civil Rights Act of 1991, Pub. L. No. 102-166, 3, 105 Stat. 1071 (1991). “In the battle against institutional discrimination, in 1991 Congress amended the Civil Rights Act and provide d for the availability of compensatory and punitive damages for individuals claiming intenti onal discrimination.” Lesley Frieder Wolf, Evading Friendly Fire: Achieving Class Certification After the Civil Rights Act of 1991 , 100 Colum. L. Rev. 1847, 1848-49 (2000). The majority’s holding adversely affects this goal and decreases theNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 14

remedies available to Title VII plaintiffs. See Allison , 151 F.3d at 432 (Dennis, J., dissenting) (citing H.R.Rep. No. 102-40 (I), at 64-65, reprinted in 1991 U.S.C.C.A.N. 549, 602-603 (stating “After the 1991 Civil Rights Act the thrust of Title VII action c ontinues to be society’s interest in eliminating discrimination and the individual’s interest in being made whole.”)).

The Advisory Committee Note to Rule 23(b)(2) sp ecifically states that the primary cases that fall within this Rule are “various actions in th e civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Fed. R. Civ. P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2) (citing pre-1991 amendment civil-rights cases Potts v. Flax , 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson , 323 F.2d 201 (5th Cir. 1963), cert. denied , 376 U.S. 910, (1964); Brunson v. Bd. of Trustees of Sch. Dist. No. 1, Clarendon Cty., S.C. , 311 F.2d 107 (4th Cir. 1962), cert. denied , 373 U.S. 933 (1963); Green v. Sch. Bd. of Roanoke, Va. , 304 F.2d 118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush , 242 F.2d 156 (5th Cir. 1957), cert. denied , 354 U.S. 921 (1957); Mannings v. Bd. of Public Inst. of Hillsborough County, Fla. , 277 F.2d 370 (5th Cir. 1960); Northcross v. Bd. of Educ. of City of Memphis , 302 F.2d 818 (6th Cir. 1962), cert. denied , 370 U.S. 944 (1962); Frasier v. Bd. of Trustees of Univ. of N.C. , 134 F.Supp. 589 (M.D.N.C. 1955, 3 judge court), aff'd 350 U.S. 979 (1956)). These cases demonstrate that historically Rule 23(b)(2) has been used to enjoin invidious discriminatory policies and practices.

The majority suggests that the alternative to Title VII class actions that seek injunctive or declaratory and monetary relief in the same action is for each individual plaintiff to file separate claims or for the Plaintiffs to proceed under Rule23(b)(3) for solely monetary damages or 23(b)(2) for only injunctive or declaratory relief. MajorityOp. at 11. The majority asserts that Title VII plaintiffs will not be foreclosed from filing acti ons because of the fee shifting provision in 42 U.S.C. § 2000e-5(a),(b), and (k) and asserts that there is no lack of Title VII plaintiffs lining up to file claims. Id

. This analysis ignores the overall purpose of class actions and the fact that filing a class action provides greater protections than filing an individual civil rights cl aim or case where both injunctive and compensatory damages are sought. “Class action lawsuits are an important and valuable part of the legal system [because] they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.” Class Acti on Fairness Act of 2005, 28 U.S.C. § 1711(a)(1) Note, Pub. L. No. 109-2, 119 Stat. 4 (2005).

The inconsistent adjudication of claims on a case by case basis will do absolutely nothing to remedy systemic workplace discrimination. This holding eliminates the power of class actions to address systemic discrimination on a broad scal e that is unparalleled to filing individual suits. See W. Lyle Stamps, Notes and Comments : Getting Title VII Back on Track: Leaving Allison Behind for the Robinson Line , 17 BYU J. Pub. L. 411 (stating that under the Allison rule “potential defendants are almost relieved from the large monetary and public relations liabilities concomitant with class action litigation.”).

In addition, the majority’s holding “derogate[s] from the class action goals of judicial economy and efficiency; affording aggrieved persons a remedy not otherwise economically feasible; enhancing access to the courts by spreading cost s; and protecting defendants from inconsistent adjudications.” Allison , 151 F.3d at 428 (Dennis, J. dissenti ng). Judicial economy and efficiency are not facilitated by having each individual file separate claims. Id . Further, the adjudication of multiple suits will only adversely affect the de fendant-employer who will have to comply with multiple inconsistent adjudications.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 15

Ultimately, the majority’s holding disarms legitimate classes seeking injunctive and compensatory relief to enforce statutory rights under Title VII. Id

. B. Addressing Coleman and Allison

The majority relies on the Fifth Circuit case, Allison , and this Circuit’s case, Coleman, in support of its holding. The majority ’s holding creates a rule with an irrebutable presumption where plaintiffs seeking individual monetary and injunctive or declaratory relief in the same action will always be denied certification under Rule 23(b)(2). Majority Op. at 2.

In Allison , the Fifth Circuit set the standard whereby Rule 23(b)(2) certification is only proper when injunctive relief “predominates” over monetary relief. 151 F.3d at 413. Even though Allison adopted a rule in which it would be nearly impossible to certify Title VII class actions under Rule 23(b)(2), it left open the possibility that in some cases where monetary and injunctive relief are sought the class could be certified. Id . at 411. The Allison court stated “this circuit has chosen an intermediate approach, neither allowing certification without regard to the monetary remedies being sought, nor restricting certification to cla sses seeking exclusively injunctive or declaratory relief.” Id . at 411. See Majority Op. at 7.

The majority adopts a standard wherein Title V II plaintiffs must seek exclusively injunctive or declaratory relief to be certified under Rule 23(b )(2). Specifically, the majority holds that “Title VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought as class actions under Rule 23(b)(2) because such claims for money damages will always predominate over requested injunctive or declar atory relief.” Majority Op. at 2 (emphasis added). See also , Majority Op. at 11 (holding that “because of the individualized nature of damage calculations for Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunc tive relief, and individual compensatory damages are not recoverable by a Rule 23(b)(2) class.”) (emphasis added).

Other circuits that have adopted the Allison standard, including this Circuit in Coleman , have not adopted an unduly restrictive standard lik e the majority does in the instant case. See Jefferson v. Ingersoll Int’l, Inc. , 195 F.3d 894 (7th Cir. 1999); see also Murray v. Auslander , 244 F.3d 807 (11th Cir. 2001); In re Monumental Life Ins. Co. , 365 F.3d 408, 416-17 (5th Cir. 2004).

This Court in Coleman , relied on Allison , but did not adopt a standard where a request for monetary and injunctive or declaratory relief in a case would be fatal to the plaintiffs’ claim. In Coleman , the plaintiffs alleged that the defendant credit company discriminated against them on the basis of their race in violation of the Equa l Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f (“ECOA”). We applied Allison to assess whether the plaintiffs’ request for compensatory relief undermined the assumption of homogeneity in a Rule23(b)(2) action. In making this determination, we examined (1) whether each individual had a stake in the outcome of the litigation that could be protected by the opportunity to opt out of the cla ss; (2) whether the individualized determinations necessary to calculate the amount of damages to each class member would be entitled to eliminates the efficiencies created by adjudicating these cl aims on a classwide basis; and (3) whether the primary justification for class treatment of the claims is largely absent. Coleman , 295 F.3d at 449.

In Coleman , this Court did not adopt the irrebutable presumption that the majority adopts today. Instead, the Court stated that the district court must make a determination based on the facts whether the injunctive relief requested predominates over monetary damages, and noted that money damages may be recoverable under Rule 23(b)(2). Id

.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 16

C. Plain Language of Rule 23(b)(2)

The majority exceeds the scope of Coleman and Allison and ignores the plain language of Rule 23(b)(2). The plain language of Rule 23(b)(2) gives the district court the power to certify a class when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc tive relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2).

The plain language establishes only two require ments: (1) that the party opposing the class has acted or refused to act on grounds generally app licable to the class and (2) the plaintiffs seek injunctive relief. “When these two requirements have been met, certification should be granted because neither the text or its plain meaning establish any further criteria.” Stamps, 17 BYU J. Pub. L. at 426 (citing Chevron USA v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984)).

Further, the Advisory Committee Notes support the plain language reading. The Notes indicate that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages.” Fed. R. Civ. P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2) (emphasis added). Neither the text of Rule (b)(2), nor the Advisory Committee Note expressly prohibit district courts from certifying class actions in which the class seeks both injunctive relief and monetary damages. Thus, the majority’s holding does not comport with the plain language of Rule 23(b)(2) or the Advisory Note.

D. Majority Exceeds Judicial Power and Us urps the District Court’s Discretion

The majority exceeds its judicial power by a dopting this rule. The Supreme Court has admonished that:

Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committ ee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U.S.C. §§ 2073, 2074. The text of a rule thus proposed and reviewed limits judici al inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure “shall not abridge . . . any substantive right.” § 2072(b).

Allison , 151 F.3d at 430 (Dennis, J. dissenting) (citing Amchem Prod., Inc. v. Windsor , 521 U.S. 591 (1997)).

Specifically, the majority’s holding usurps the discretion granted to district courts in Rule 23(c)(1). Rule 23(c)(1) states “when a person sues or is sued as a representative of a class, the court must – at an early practicable time – determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1). This Circ uit and the majority opinion acknowledge that “the district court has broad discretion in determining whether to certify a class, within the dictates of Rule 23.” In re. Am. Med. Sys., Inc. , 75 F.3d 1069, 1079 (6th Cir. 1996); Majority Op. at 5 (citing Stout v. J.D. Byrider , 228 F.3d 709, 716 (6th Cir. 2000) (stating th at “[t]he district court maintains substantial discretion in determining whether to certify a class, as it possesses the inherent power to manage and control its own pending litigation.”)). By adopting an irrebutable presumption rule, the majority improperly eviscerates the district cour t’s legislatively granted discretion to certify class actions under Rule 23(c)(1).

To give effect to all of the provisions of Rule 23, this Court must adopt a standard wherein the district court is given discretion “to consider all of the evidence and ar guments of counsel before certifying a class.” Hoffman v. Honda of America Mfg. , 191 F.R.D. 530, 535 (N.D. Oh. 1999). See also

, Moliski v. Gleich , 318 F.3d 937, 949-950 (9th Cir. 2002) (hol ding that decisions based on perNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 17

se rules are not appropriate because they nullify the discretion vested in the district court through Rule 23). See also

, Reeb I at 323 (properly noting that the c ourt exceeds its judicial powers when it reads the Rules of Civil Procedure as eviscer ating substantive rights granted by Congress). See also Broadcast Music, Inc. v. Roger Miller Music, Inc. , 396 F.3d 762 (6th Cir. 2005) (stating that “a statute should be construed to accord meaning and effect to each of its provisions.”); Caferelli v. Yancy , 226 F.3d 492 (6th Cir. 2000) (same); Menuskin v. Williams , 145 F.3d 755 (6th Cir. 1998) (same); Fed. Express Corp. v. United States Postal Serv. , 151 F.3d 536, 546 (6th Cir. 1998) (same). In adopting a narrow rule, the majority exceeds its judicial power.

E. Individualized Treatment of Class Plaintiffs

The majority’s holding is based on the asserti on that allowing Title VII class actions under 23(b)(2) will result in numerous individualized de terminations for damages, which will undermine the homogeneity of a class action. Majority Op. at 10-11. The majority states that the damages available under Title VII, “includ[ing] future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses” will result in individualized determinations. Majority Op. at 11. Further, the majority claims that this case cannot be certified under Rule 23(b)(2) because “whe ther the discriminatory practice actually was responsible for the individual class member’s harm, the applicability of nondiscriminatory reasons for the action, showings of pretext, and any a ffirmative defense all must be analyzed on an individual basis.” Majority Op. at 11.

The majority’s rationale underlying its holding would make it impossible to certify a Title VII class action under any of the provisions in Rule 23(b)(2). Further, other courts have already addressed this issue by bifurcating the liability and damages phases of the trial. Allison , 151 F.3d at 433 (Dennis, J. dissenting) (noting “Title VII class actions for disparate treatment have traditionally been conducted in two stages.”)). The Allison dissent, cites Baxter v. Savannah Sugar Refining Corp. , 495 F.2d 437, 443-44 (5th Cir. 1974), to explai n the bifurcation of Title VII class actions. The Baxter court stated that:

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

Allison , 151 F.3d at 443 (emphasis in original) (citing Baxter , 495 F.2d at 443-44; Int’l Brotherhood of Teamsters v. United States , 431 U.S. 324, 360, 97 S.Ct. 1843 (1977); Franks v. Bowman Transp.

, 424 U.S. 747, 772, 96 S.Ct. 1251 (1976)).

Bifurcated phases of Title VII class actions contemplate separate and distinct issues. Id . The first stage focuses exclusively on class-wide claims. Id . (citing Price Waterhouse v. Hopkins , 490 U.S. 228, 245 n. 10 (1989) (stating that the focus inStage I is not on indi vidual hiring decision, but on a pattern of discriminatory decisionmaking) ( quotations and citations omitted). Once it has been shown that the employer maintaineda policy or practice that unlawfu lly discriminates in the first stage, the second stage focuses on whether individual employment decisions were made pursuant to any such procedure or policy. Id

.No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 18

Some courts have expressed concerns with the constitutionality of certifying a class action for monetary relief under Rule 23(b)(2) under this procedure. The constitutional concern is that certification under Rule 23(b)(2) is never appropriatebecause it binds all class members without the safeguards of notice and opportunity to be heard. Robinson , 267 F.3d at 164. This concern arises from the Supreme Court cases Ticor v. Brown , 511 U.S. 117, 114 S.Ct. 1359 (1994) and Ortiz v. Fiberboard Corp. , 527 U.S. 815, 119 S.Ct. 2295 (1999). In Ticor , the Supreme Court stated that there is at least a substantial possibility that inactions seeking monetary damages, classes can be certified only under Rule 23(b)(3), which permits opt-out. 511 U.S. at 121. In Ortiz , the Supreme Court suggested that a mandatory class seeking monetary damages should not be certified under Rule 23(b)(2) because such a class compromises the due process rights of absent class members. See also

, Coleman , 296 F.3d at 447.

The solution may be to bifurcate the liability and damages portion of the trial and grant the plaintiffs opt-out rights with regards to their claims for monetary damages. See Rule 23(c)(4)(A) (providing that “an action may be brought or maintained as a class action with respect to particular issues.”); Eubanks v. Billington , 110 F.3d 87, 94 (D.C. Cir. 1997) (holding that the language of Rule 23 is sufficiently flexible to afford the district court discretion to gr ant opt-out rights in Rule (b)(1) and (b)(2) class actions). This would resu lt in the certification of a hybrid class action under Rule (b)(2) and (b)(3). This may address the cons titutional concerns that could arise when certifying a Rule 23(b)(2) class that seeks monetary damages.

F. The Appropriate Standard

The district court did not abuse its discretion when it adopted the Robinson standard. Preliminarily, the Coleman case, on which the majority relies, can be distinguished from this case and is not applicable. Further, in Robinson , the Second Circuit adopted a standard that appropriately gives the district court discretion and is congruent with the purpose of both the Fed. R. Civ. P. 23(b)(2) and the amendments 1991 to T itle VII, 42 U.S.C. § 1981a. This Court should do the same.

The majority improperly states that Coleman ’s reliance on Allison dictates the outcome of this case. Majority Op. at 11. First, this cas e is a Title VII case, which necessitates applying a different standard than the ECOA claim in Coleman . In Coleman , this Court specifically stated “it is unnecessary for us to reach the question of wh ether money damages are ever recoverable in a 23(b)(2) class action, however, because we hold that compensatory damages under the ECOA are not recoverable by a 23(b)(2) class.” 296 F.3d at 447. Thus, this Court in Coleman limited its holding to ECOA cases, and left open the possibility that monetary relief may be recoverable to some extent in other Rule 23(b )(2) class actions. The holding of Coleman does not affect this case since it was limited to the ECOA and did not extend to Title VII cases.

In addition, the district court properly distinguished Coleman on the basis of the individualized determinations required to calculate damages. Reeb III at 481. The district court stated that “the damages sought here, however, seem more akin to back pay than to the compensatory damages sought in Coleman . In Coleman , the court noted that ‘determining the damages of each class member in this case would i nvolve investigation into the practices of multiple auto dealerships whereas a back pay claim typica lly involves the practices of a single employer.’” Reeb III at 481. The district court went on to note that individual damage assessment would be necessary, if the case proceeded to the liability phase, but stated that a damages’ determination would involve only the practices of a single employer and would be simple in comparison to the damage claims in Coleman

. Id

. This Court should adopt the Second Circuit’s holding in Robinson . The Robinson court adopted an ad hoc balancing test where the “district court should at minimum, satisfy itself of theNo. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 19

following: (1) even in the abse nce of a possible monetary recove ry, reasonable plaintiffs would bring the suit to obtain injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were plaintiffs to succeed on the merits.” 267 F.3d at 164. In adop ting this standard, the court intended “that when presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must consider the evidence presented at a class certification hearing and the arguments of counsel, and then a ssess whether (b)(2) certification is appropriate in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case.” Id. See also

, Hoffman , 191 F.R.D. at 536; Eubanks , 110 F.3d at 92 (stating that Title VII and other civil rights class actions are frequen tly certified pursuant to Rule 23(b)(2) noting that “although the defining characteristic of the (b)(2) class is that it seeks declaratory or injunctive relief application to the class as a whole, it is not uncommon in employment discrimination cases for the class also to seek monetary relief in the form of front or back pay.” (citations omitted)).

III. CONCLUSION

For the foregoing reasons, I affirm the district court’s decision. The majority improperly holds that Title VII plaintiffs will never be able to obtain certificati on under Fed. R. Civ. P. 23(b)(2) to collectively enforce the rights and remedies under both the 1991 Civil Rights Act, 42 U.S.C. § 1981a, and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e. This holding eliminates class actions’ power as a tool to address systemic workplace discrimination and turns the clock back on civil rights. I cannot endorse this holding becau se it curtails the relief available to Title VII plaintiffs. This holding will obstruct employees’ ability to eradicate an employer’s discriminatory workplace policies and practices. I vigorously dissent. It is unfortunate that the majority has chosen this case to roll back the clock on years of workplace based civil rights legislation. Until Congress has definitively spoken on this issue, neither should we.