*

The Honorable Louis F. Oberdorfer, United States District 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 _________________

RACHEL REEB, et al.,

Plaintiffs-Appellees,

v.

OHIO DEPARTMENT OF REHABILITATION AND

CORRECTION, BELMONT CORRECTIONAL

INSTITUTION,

Defendant-Appellant.

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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, Circuit 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. Decker, 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.

1
No. 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 promotions, 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 the plaintiff class, finding that the plaintiffs had

shown the requirements of Federal Rule of Civil 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 reversed the grant of certification, finding that the record

did not demonstrate that the district 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 analysis” 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 injunctive 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 the 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 distinct 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, members 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) plaintiffs “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 situated 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 with and bestow various gifts or services

upon the warden; 9) plaintiffs have been retaliated 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 threaten [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 denied 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] “circumvents 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 damages, $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 certified the class to include “[a]ll 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 [Belmont].” Reeb I, 203 F.R.D. at 320. It found the commonality and

typicality requirements met because each of the individual 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 certified 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 met
No. 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 the 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 compensatory 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 district 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 class, 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 damages 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 the parties the opportunity to present additional

evidence or briefs, but issued an order recertifying 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 stated that it needed to find only one issue in

common among the class members and that “the issue 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 requirement was satisfied, the court said, because all

members of the class—including the named plaintiffs—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 the 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,

FED.R.CIV. 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 inherent 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 erroneous findings of fact, applies the wrong legal

standard, misapplies the correct legal standard when 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) provides 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.

FED. R. CIV. P. 23(a).

In Reeb II, we instructed the district court to conduct a “rigorous analysis” of the issues

necessary to show that the requirements of Rule 23(a) have been met. Reeb II, 81 Fed. Appx. at 559.

We noted that the court could not perform this function without more precise information as to the

nature of each of the named plaintiffs’ 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 analysis. In doing so, it failed to explicitly examine

the named plaintiffs’ claims and noted only the plaintiffs’ 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 allege “‘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 in this 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 that the 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 element of subdivision (a) met “[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 an employer’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 required 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 an identifiable class of persons of the same race or

national origin is insufficient to establish his standing to litigate on their behalf all possible claims

of discrimination against a common employer”) (emphasis 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 policy 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 done so on the scant record before it at the time it

issued the certification order. Nonetheless, because we conclude below that certification of a

plaintiffs’ class under Rule 23(b)(2) is improper in a 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 opportunity to present evidence sufficient to make the

required Rule 23(a) showing.

IV. Rule 23(b)(2)

Federal Rule of Civil Procedure 23(b) authorizes 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. FED. R. CIV. 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 right 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 FED. R. CIV. P. 23(c)(2)(B), and specifies

the factors that a court needs to consider in determining whether common issues predominate. See

FED. R. CIV. 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 the question of when, if ever, a plaintiff 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 grounds generally applicable to the class, thereby

making appropriate final injunctive relief or corresponding declaratory relief with respect to the

class as a whole.” FED. R. CIV. 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 amendments to Rule 23 further muddy the issue,

stating that the “subdivision is intended to reach situations where a party has taken action or refused

to take action with respect to a class, and final relief of an injunctive nature or of a corresponding

declaratory nature, settling the legality of the behavior with respect to the class as a whole, is

appropriate.” FED. R. CIV. P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2).

Continuing, the Committee stated that the subdivision 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 injunction, the plaintiffs seek monetary relief. In Ticor Title Ins.

Co. v. Brown, 511 U.S. 117 (1994), a (b)(2) class action, the 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 process 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 subdivision (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 distress, 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 problems with regard to class action cases under

Title VII seeking monetary damages, because the Seventh Amendment and practical considerations

make bifurcation, the appropriate method of adjudicating 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 the 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 actions provided for in Rule 23, each of which
No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 8

“represent[s] a balance struck . . . between the need and efficiency of a class action and the interests

of class members to pursue their claims 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 for (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 FED.R.CIV. 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 toward a 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 need for 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 litigation suggests that the procedural safeguards found in (b)(3) are necessary.

Id. If monetary relief does predominate, then subdivision (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 are 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 flow 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, the court stated that damages in these cases should be

“concomitant with, not merely consequential to, class-wide injunctive or declaratory relief” and that

the computation of such damages should not be “dependent 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 Title VII cases to members of a (b)(2) class because

back pay is an equitable remedy that has always 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 specifically 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 that 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 effect 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 a
No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 9

blanket award based on a showing that a defendant’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 Operating 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 agreed 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 discretion that (1) the positive weight or value

[to the plaintiffs] of the injunctive or declaratory relief sought is predominant even

though compensatory or punitive damages are 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 obtain the injunctive or declaratory relief sought even in

the absence of any monetary remedies, and that the 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 analysis 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 court’s decision to certify a plaintiff class in which the

plaintiffs asserted that GMAC discriminated against 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 judgment and who were charged a finance charge

markup greater than the average finance charge 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 the
No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 10

plaintiff “had failed to show that individualized factors do not play a role in the [claimed

discriminatory practice].” Id.

We first noted that there is an “apparent consensus 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 constitutionality of certifying 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 conclusion 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 the interests of the members of the class; the more individualized

determinations come into play, the more divergent the interests of the members of the class become.

Id. at 447-48. The (b)(3) class, we said, was created 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 in any mandatory class in order to protect the

individual interests at stake and ensure that the 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 common issues predominate because that is the only

situation in which the class action format can serve its function in promoting judicial economy. Id.

A similar concern arises in the (b)(2) context, 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 requested compensatory 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 calculate 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 procedural
No. 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 the 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 action, 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 or Westlaw will illustrate. Indeed, Title VII after

the 1991 amendments appears designed specifically with 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 individualized nature of damages 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 injunctive relief, and individual 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. Plaintiffs 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 compensatory and punitive damages that inure to the

group benefit. And, as always, plaintiffs remain free 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 improperly 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 violations under both the Civil 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 discretion 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 follow 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 instructions 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 Plaintiffs were able to establish the commonality

and typicality requirements. In regards to commonality, 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 discrimination 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 which will advance the litigation.”)). Here, the Plaintiffs assert that

the discriminatory employment practices affected them 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 for 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 properly 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 district 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 discrimination 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 the 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 analysis, 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 practice 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 declaratory 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 discretionary 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 presumption 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). This 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 intended: 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 discrimination.” 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 provided for the availability of compensatory and

punitive damages for individuals claiming intentional 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 the
No. 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 continues 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) specifically states that the primary cases that

fall within this Rule are “various actions in the 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 Rule 23(b)(3) for solely monetary damages or 23(b)(2)

for only injunctive or declaratory relief. Majority Op. at 11. The majority asserts that Title VII

plaintiffs will not be foreclosed from filing actions 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 claim 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 Action 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 scale 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 costs; and protecting defendants from inconsistent

adjudications.” Allison, 151 F.3d at 428 (Dennis, J. dissenting). 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 defendant-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 classes seeking exclusively injunctive or declaratory

relief.” Id. at 411. See Majority Op. at 7. 

The majority adopts a standard wherein Title VII 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 declaratory 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 injunctive 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 like 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 Equal 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 Rule 23(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 class; (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 claims 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 injunctive relief with respect to the class as a whole.”

Fed. R. Civ. P. 23(b)(2). 

The plain language establishes only two requirements: (1) that the party opposing the class

has acted or refused to act on grounds generally applicable 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 Usurps the District Court’s Discretion

The majority exceeds its judicial power by adopting this rule. The Supreme Court has

admonished that:

Federal Rules take effect after an extensive deliberative process involving many

reviewers: a Rules Advisory Committee, public commenters, the Judicial

Conference, this Court, the Congress. See 28 U.S.C. §§ 2073, 2074. The text of a

rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to

amend a rule outside the process Congress ordered, a process properly tuned to the

instruction that rules of procedure “shall not abridge . . . any substantive right.”

§ 2072(b).

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 Circuit 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 that “[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 court’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 arguments 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) (holding that decisions based on per
No. 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 court exceeds its judicial powers when

it reads the Rules of Civil Procedure as eviscerating 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 assertion that allowing Title VII class actions under

23(b)(2) will result in numerous individualized determinations 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 “whether 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 affirmative 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 explain the bifurcation of Title VII class

actions. The Baxter court stated that:

A Title VII class action presents a bifurcated burden of proof problem. Initially, it

is incumbent on the class to establish that an employer's employment practices have

resulted in cognizable deprivations to it as a class. At that juncture of the litigation,

it is unnecessarily complicating and cumbersome to compel any particular

discriminatee to prove class coverage by showing personal monetary loss. What is

necessary to establish liability is evidence that the class of black employees has

suffered from the policies and practices of the particular employer. Assuming that

the class does establish invidious treatment, the court should then properly proceed

to resolve whether a particular employee is in fact a member of the covered class, has

suffered financial loss, and thus entitled to back pay or other appropriate relief.

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 in Stage I is not on individual hiring decision, but

on a pattern of discriminatory decisionmaking) (quotations and citations omitted). Once it has been

shown that the employer maintained a policy or practice that unlawfully 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 appropriate because 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 in actions 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 grant opt-out rights in Rule

(b)(1) and (b)(2) class actions). This would result in the certification of a hybrid class action under

Rule (b)(2) and (b)(3). This may address the constitutional 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 Title 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 case 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 whether 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 involve investigation into the practices of multiple

auto dealerships whereas a back pay claim typically 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 the
No. 04-3994 Reeb v. Ohio Dep’t of Rehab. and Correction Page 19

following: (1) even in the absence of a possible monetary recovery, 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 adopting 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 assess 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 frequently 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 certification 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 because 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.