FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 11 2000 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 99-10782

D. C. Docket No. 97-807-CV-ASG

DAVID RUTSTEIN, Plaintiff, ZEREI AGUDATH ISRAEL BOOKSTORE, LEVI SUFRIN, Plaintiffs-Appellees,

versus AVIS RENT-A-CAR SYSTEMS, INC., a Delaware Corporation, authorized to do business in the State of Florida, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida

(May 11, 2000) Before TJOFLAT, Circuit Judge, RONEY and FAY, Senior Circuit Judges.1 One of the named plaintiffs in this action is the Zerei Agudath Israel Bookstore. For ease of discussion, we refer to all plaintiffs as persons (and, therefore, as “he or she” instead of “it”).

2 We refer to plaintiffs’ allegations as a compla int for discrimination on the basis of plaintiffs’ ethnicity.

3 As amended, 42 U.S.C. § 1981 provides: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enfo rce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is en joyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “m ake and enforce contracts” includes the making, performance, modification, and termin ation of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 2 TJOFLAT, Circuit Judge: Jewish plaintiffs 1 brought this civil rights lawsuit in the United States District Court for the Southern District of Florid a on behalf of themse lves, and all others similarly situated, against Av is Rent-A-Car System, Inc. (“ Avis”). Plaintiffs alleged that Avis had denied them their right to make and enforce contr acts because of their race, ancestry, and ethnic characteristics, 2 in violation of 42 U.S.C. § 1981 (1994). 3 They sought compensatory damages, punitiv e damages, and inj unctive relief. The district court certified the case as a class action under Federal Rule of Civil Procedure4 Federal Rule of Civil Procedure 23(a) and (b) provides: (a) Prerequisites to a Class Action. 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 de fenses 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. (b) Class Actions Maintainable. An action ma y be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establis h incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, there by making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matte rs pertinent to the findings include: (A) the interest of members of the class inindividually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentra ting the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

5 Federal Rule of Civil Procedure 23(f) provides: A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certifi cation under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. 3 23(b)(3). 4 Pursuant to Rule 23(f), 5 we permitted Avis to appeal the district court’s class certification decision. We now reverse.6 A corporate account is a vehicle rental account offered by Avis that provides account holders with discount car rentals, bonus plans, and other financial incentives.

7 Webster’s Third defines a “Yeshiva” as “a school for advanced Talmudic study.” Webster’s Third New International Dictionary2651 (1993). 4 I. The procedural history of this case is so mewhat complicated by the fact that the original plaintiff, David Rutstein, was apparently not all that he claimed to be. On May 6, 1997, Rutstein filed a complaint a lleging that Avis, a corporation engaged in the business of renting cars, had “adopted as an official corporate policy a practice to discriminate against Jewish customers as a class of people and [had] instructed its employees to decline to open a corpor ate account for a business owned and/or operated by this class of people.” 6 Rutstein claimed that at Avis’ World Reservations Center in Tulsa, Oklahoma (the “Reservati on Center”), employees had been instructed not to open corporate accounts for “Yeshivas.” A Yeshiva was understood to be someone with a “Jewish sounding name” or “Jewish accent.” 7 When a telesales representative at the Reservations Center identified a caller requesting to open a corporate account as a Yeshiva, the caller was either denied the account entirely, or was issued a “bogus” account that was not accorded the same benefits as those associated with a legitimate corporate account.5 Rutstein claimed that he had applied for, but was denied, a corporate account because he is Jewish. Specifi cally, Rutstein alleged that [c]ommencing January 1993, [he] resi ded in North Miami Beach, Florida and operated Rutstein Insurance Agen cy. Upon application to Avis to open a corporate account and advising the account representative that [he] formerly lived in Crown Height s, New York and that the purpose of the opening of the account was to permit . . . Rutstein to visit his rabbi in New York and to conduct ongoing bus iness in New York, the Plaintiff was advised that he w ould not qualify for the opening of a corporate account. Three months later Rutstein moved the c ourt to certify a class, under Federal Rule 23(b)(2) and Rule 23(b)(3), of “all Jewishindividuals and Jewish-owned businesses who have attempted to contract, have contracted, or w ill in the future contract with Avis to open a corporate rental account and who were or will be subjected to the policies and practices known as the ‘Yeshiva policy’.” Immediately after Rutstein filed his class certification motion, however , events occurred wh ich made it apparent that he might not be an adequate class repr esentative. Rutstein failed to appear at a court-ordered deposition schedul ed for October 28, 1997, prom pting Avis to move the court to dismiss the action, hold Rutstein incontempt, and direct him to pay expenses,8 Rutstein’s counsel claimed that Rutstein failed to appear because he was “not feeling well.” On December 3, 1997, the district court issued an order requiring Rutstein to pay all costs incurred by Avis as a result of his failure to appear at the deposition, and to schedule a time, within 10 days, at which he could be deposed. 6 including attorneys’ fees, incurred by Avis as a result of his failure to appear. 8 Further, Avis moved the court for summary judgment, contending that [e]vidence independently obtained by Avis demonstrates that plaintiff does not have a valid claim against Avis. Among other things, plaintiff never owned and operate d a “Rutstein Insurance Agency” which he claims had existed since January1993 and which he claims was wrongfully denied a corporate account by Avis. The evidence reveals that it was not until November 1993 that plaintiff even obtained an insurance license for himself as an individual and received his first appointment as an insurance agent by an insurer. No Rutstein Insurance Agency has ever been registered with the Florida Department of Insurance. Plaintiff’s current business, known as Senior Allican, Inc., was not incorporated until August 1997, five months after this lawsuit was filed. At a hearing before the district court on January 30, 1998, Rutstein’s counsel admitted that Rustein was not an appropriate representative of the class. Counsel claimed that Rutstein had become “in timidated” by Avis’s aggressive defense strategies, and that Rutstein had decided that he did not want to represent a class of “thousands” after all. Counsel assured the court that there was no cause for concern, however, and that the action could live on. On December 5, 1997, counsel had filed a motion on behalf of the Zerei Agudath Isr ael Bookstore (“ZAI”), located in Chicago, Illinois, to intervene in the case as a pl aintiff and proposed class representative under9 Federal Rule of Civil Procedure 24(b) provi des that “[u]pon timely application anyone may be permitted to intervene in an action . . . when an applicant’s claim or defense and the main action have a question of law or fact in common.”

10 In an amended complaint filed on February 23, 1998, ZAI detailed the circumstances of the alleged discrimination: In early 1995, ZAI, through its employee Joshua Borenstein, applied to Avis for an account, so that the bookstore’s employees might get discounts when they rented automobiles. The bookstore uses re ntal cars frequently for trips to New York and other cities to pick up specially ordered books. ZAI’s application, made in its full name of Zeirei Agudath Israel, wa s turned down. ZAI is an ongoing business and should have qualified to receive an Avis account, but upon information and belief, ZAI was denied the account because of its obviously Jewish sounding name. About a year later, ZAI applied again. The store was at a new address, and this application was made in the name of Z.A.I. bookstore, which is the name it is commonly known by, rather than Zeirei A gudath Israel bookstore, the name it used the first time it applied to Avis for an account. This time, the account was approved. Upon information and belief, ZAI was approved the second time it applied to Avis for an account, because the account represen tatives at Avis did not recognize ZAI as a Jewish sounding name. Before ZAI started renting vehicles from Avis, however, Mr. Borenstein requested an application for credit. He wa s sent the application, filled it out, sent it back and waited. Eventually ZAI received a perplexing letter from Avis, informing it that because of excessive use by drivers under the age of 25, the account was rescinded. No one had ever used the Avis account. Upon information and belief, Avis rescinded ZAI’s account because through the credit application process, Avis discovered that the Z.A.I. bookstore stood fo r Zeirei Agudath Israel bookstore, which it concluded was a “Yeshiva”. 7 Federal Rule of Civil Procedure 24(b). 9 ZAI alleged that it was “a Jewish business which was subject to the precise discrimina tory business practices which lie at the heart of [Rutstein’s] complaint. [ZAI] applied for and received Avis account status, but once Avis discovered that [ZAI] was what Avis considered a ‘Yeshiva’, it terminated [ZAI’s] account . . . .” 10 On February 23, 1998, ZAI sought class certification under Rules 23(b)(2) and (3), seeking to represent a class of11 The district court initially consolidated Suffrin ’s case with Rutstein’s before granting Suffrin’s motion to intervene under Rule 24(b). 8 [a]ll Jewish individuals and Jewish -owned businesses who, subsequent to January 1, 1990, have attempted to contract, have contracted, or will in the future contract with Avis to open an account for use in their business, and who were refused anaccount, had their account canceled, or were given a less advantageous account because of their religion, ancestry, and/or ethnicity. On March 27, 1998, the district court granted ZAI’s Ru le 24(b) motion to intervene, reasoning that because Rutste in was plainly inadequate as a class representative, intervention by ZAI woul d “strengthen the adequacy of class representation.” The court also denied Avis’ motion for summary judgment against Rutstein, denied Rutstein’s request to act as class representativ e, and concluded that Rutstein could remain in the case as a nonr epresentative class member. A month later, the court also granted Levi Suffrin’s moti on to intervene as a plaintiff and proposed class representative under Rule 24(b). Su ffrin had filed a comp laint on February 23, 1998, allegi ng that his corporate account had beenterminated by Avis, and that the explanation Avis proffered for the term ination (that he had presented a false identification when trying to rent a vehicle) was pretextual. 11 Finally, on February 8, 1999, the dist rict court granted ZAI and Suffrin’s motion for class certification under Federal Rule 23(b)(3). The court also denied class12 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 9 certification under Rule 23(b)(2). Avis sought an interlocutory appeal of the class certification decision under Rule 23(f) and we granted permission to appeal.

II. The initial burden of proof to establish th e propriety of class certification rests with the advocate of the class. Jones v. Diamond , 519 F.2d 1090, 1099 (5th Cir. 1975). 12 Assuming that the district court corr ectly interpreted the applicable law, we review the court’s grant of class certificati on for an abuse of di scretion. Andrews v. American Tel. & Tel. Co. , 95 F.3d 1014, 1022 (11th Cir. 1996).

III.
A. “A class action may be maintained only when it satisfies all the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of Rule 23(b).” Jackson v. Motel 6 Multipurpose, Inc. , 130 F.3d 999, 1005 (11th Cir. 1997) (footnote omitted). In the instant case, the district court certified a class under Rule 23(b)(3), which provides that13 In Stein v. Reynolds Securities, Inc. , 667 F.2d 33, 34 (11th Cir. 1982), this court adopted as binding precedent all decisions of Unit B of the fo rmer Fifth Circuit handed down after September 30, 1981. 10 [a]n action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition . . . (3) the court finds that the questi ons of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class ac tion is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). That common questions of law or fact predominate over individualized questions means that “the issu es in the class action that are subject to generalized proof, and thus applicable to th e class as a whole, must predominate over those issues that are subject only to indivi dualized proof.” Kerr v. City of West Palm Beach , 875 F.2d 1546, 1558 (11th Cir. 1989) (quoting Nichols v. Mobile Bd. of Realtors, Inc. , 675 F.2d 671, 676 (5th Cir. Unit B 1982)). 13 “The predominance inquiry focuses on ‘the legal or factual questions that qualify each class member’s case as a genuine controversy,’ and is ‘far more demanding’ than Rule 23(a)’s commonality requirement.” Jackson , 130 F.3d at 1005 (quoting Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623-24, 117 S. Ct. 2231, 2249-50, 138 L. Ed. 2d 689 (1997)). In order to determine whether common questions predominate, “we are called upon to examine the cause[] of action assert ed in the complaint on behalf of the11 putative class.” McCarthy v. Kleindienst , 741 F.2d 1406, 1412 (D.C. Cir. 1984). Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue w ill have in each class member’s underlying cause of action. See Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623, 117 S. Ct. 2231, 2249 138 L. Ed. 2d 689 (1997) (“[The pre dominance] inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy.”); Coopers & Lybrand v. Livesay , 437 U.S. 463, 469, 98 S. Ct . 2454, 2458, 57 L. Ed. 2d 351 (1978) (“[C]lass determination genera lly involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ”) (quoting Mercantile Nat. Bank v. Langdeau , 371 U.S. 555, 558, 83 S. Ct. 520, 522, 9 L. Ed. 2d 523 (1963)); id. at 469 n.12, 98 S. Ct. at 2458 n.12 (“ ‘The more complex determinations required in Rule 23(b )(3) class actions entail even greater entanglement with the merits.’ ”) (quo ting 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911, p. 485 n.45 (1976)); Castano v. American Tobacco Co. , 84 F.3d 734, 744 (5th Cir. 1996) (“Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”); Huff v. N.D. Cass Co. , 485 F.2d 710, 714 (5th Cir. 1973) (en banc) (“It is inescapable th at in some cases there will be overlap between the demands12 of [Rule] 23(a) and (b) and the questi on of whether plaintiff can succeed on the merits.”). In Jackson , plaintiffs sought class certification for, inter alia , a class of AfricanAmerican customers who alle ged that Motel 6 discriminated against its customers on the basis of race by either denying African-Americans motel accommodations altogether, or providing them with substandard accommodations. The substantive law of the underlying cause of action in Jacksonrequired each plaintiff to establish that “(1) a Motel 6 employee denied him a room (or rented him a substandard room) on the basis of his race and either (2) that th at employee had the gene ral authority to rent motel rooms or (3) that that employee wa s acting in accordance with a Motel 6 policy or practice of racial discrimination.” Jackson , 130 F.3d at 1006 n.13 (emphasis omitted). Given this, we held that “the si ngle common issue in the . . . case – whether Motel 6 has a practice or polic y of discrimination – is not . . . predominant over all the other issues that will attend the Jacksonplaintiffs’ claims.” Id. at 1006. We explained that [t]he Jacksonplaintiffs’ claims will require distinctly case-specific inquiries into the facts surr ounding each alleged incident of discrimination. The issues that must be addressed include not only whether a particular plaintiff was denied a room or was rented a substandard room, but also whethe r there were any rooms vacant when that plaintiff inquired; whether the plaintiff had reservations; whether unclean rooms were rented to the plaintiff for reasons having nothing to do with the plaintiff’s race; whether the plaintiff, at the time that he14 This formulation differs, somewhat, from th at articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Under McDonnell Douglas , an individual complaining of disparate treatment in employment can establish a presumption that the individual was discriminated against on the basis of his or her race by showing that (i) he or she belongs to a racial minority; ( ii) he or she applied and was qualified for a job for which the employer was seeking applicants; (iii) the applicant was rejected despite his or her qualifications; and (iv) after the rejection, the position remained open and the employer continued to seek applicants from persons of the compla inant’s qualifications, or the position was filled by a member of an unprotected class. 13 requested a room, exhibited any non-racial characteristics legitimately counseling against renting him a room; and so on . . . . These issues are clearly predominant over the only i ssue arguably common to the class – whether Motel 6 has a practice or policy of racial discrimination. Indeed, we expect that mo st, if not all, of the plaintiffs’ claims will stand or fall, not on the answer to the que stion whether Motel 6 has a practice or policy of racial discrimination, but on the resolution of these highly case-specific factual issues. Id. In light of our decision in Jackson , we cannot see how plaintiffs can maintain a class action under Rule 23(b)(3) in the instant case. In order to make out a prima facie case of non-employment discrimination sufficient to withstand a motion for judgement as a matter of law under section 1981, a plaintiff will have to establish that (1) he or she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimi nation concerned one or more of the activities enumerated inthe statute (in this case, the making and enforcing of a contract). 14 See Bellows v. Amoco Oil Co. , 118 F.3d 268, 274 (5th Cir. 1997); Morris v. Office Max, Inc. , 89 F.3d 411, 413 (7th Cir. 1996); Mian v. Donaldson,14 Lufkin & Jenrette Sec. Corp. , 7 F.3d 1085, 1087 (2d Cir. 1993). The critical element, obviously, is the second. Each plaintiff will have to bring forth evidence demonstrating that the defendant had an intent to treat him or her less favorably because of the plaintiff’s Jewish ethnicity. See General Bldg. Contractors Ass’n, Inc. v. Pennsylvania , 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L. Ed. 2d 835 (1982) (holding that “§ 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination”); Freeman v. Motor Convoy, Inc. , 700 F.2d 1339, 1350 (11th Cir. 1983); Lee v. Wash ington County Bd. of Educ. , 625 F.2d 1235, 1237 (5th Cir. 1980) (“A showing of discriminatory purpose is required to prove a prima facie case of discrimination under 42 U.S.C. [§] 1981.”). As in Jackson , plaintiffs in the instant case argue that the issue of whet her Avis maintains a policy or practice of discrimination predominates over all the le gal and factual questions affecting only individual members of the class. Given th at each plaintiff mustdemonstrate that he or she suffered from intentional discriminati on, however, “we expect that most, if not all, of the plaintiffs’ claims will stand or fall, not on the answer to the question whether [Avis] has a practice or policy of [ethnic] discrimination, but on the resolution of . . . highly case-speci fic factual issues.” Jackson , 130 F.3d at 1006. Whether Avis maintains a policy or prac tice of discrimination may be relevant in a given case, but it certainly cannot establish that the company intentionally15 discriminated against every member of the putative class. The individual issues that must be addressed include not only whether Av is actually denied a particular plaintiff a corporate account, gave the plaintiff a less advantageous account, or cancelled the plaintiff’s account, but also whether the particular plaintiff was of the age required by Avis to qualify for a corporate account; whethe r the plaintiff met the financial criteria for a corporate account; whether the nature of the plaintiff’s expected use of Avis vehicles would make the transaction cost -justified for Avis; whether the plaintiff would be renting cars from Avis in a crim inally high-risk or low-risk geographical area; whether the Avis employee who alle gedly denied the plaintiff a corporate account judged the caller-applicant to be lyi ng about his or her qualifications based on information not related to the caller’s ethni city; and so on, and so on. All of these issues are clearly case-specifi c, and they will all have to be addressed in one way or another in order for each plaintiff to demonstrate a prima facie case of intentional discrimination. “[S]erious drawbacks to the maintenan ce of a class action are presented where initial determinations, such as the issue of liability vel non , turn upon highly individualized facts.” McCarthy , 741 F.2d at 1415; see Andrews , 95 F.3d at 1024 (in action against telephone companies’ provi sion of 900-number services in which plaintiffs claimed, inter alia , that companies were violating gambling laws, court held15 The nature of plaintiffs’ allegations makes th is issue especially significant, since Avis will apparently be able to argue in defense that an individual plaintiff does not have a “Jewish sounding name” or a “Jewish accent.” If Avis was unable to determine whether a caller-applicant was Jewish at the time that the caller applied for a corporat e account, then it would have been impossible for Avis to have intentionally discriminated against the caller on the basis of his or her ethnicity. 16 that “aspects of each 900-number program w ill have to be individually examined to determine whether a particular program actually involves gambling or runs afoul of state gaming laws”); Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 420 (5th Cir. 1998) (“The success of [claims for intentiona l discrimination] will turn ultimately on the special circumstances of each indivi dual’s case.”). The importance of these individualized issues, relative to the one common issue of whether Avis maintains a policy or practice of discrimination, is amplif ied by the fact that ev en if plaintiffs can demonstrate that a general policy or practi ce of discrimination was applied in their cases, Avis can escape liability by showing that an individual plaintiff would have been denied or terminated even if no such policy or practice had existed. 15 See Mabra v. United Food & Commercial Workers Local Union No. 1996 , 176 F.3d 1357 (11th Cir. 1999) (holding that the mixed-motive am endments to Title VII enacted in the Civil Rights Act of 1991, see Pub. L. No. 102-166, 105 Stat. 1071, 1075 (1991) (codified as amended at 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)), do not apply to claims brought under section 1981); Villa ge of Arlington Heights v. Metropolitan Housing Dev. Corp. , 429 U.S. 252, 270-71 n.21, 97 S. Ct. 555, 566 n.21, 50 L. Ed. 2d17 450 (1977) (in race discrimination case brought under the Fourteenth Amendment, proof by the defendant “that the same decision woul d have resulted even had the impermissible purpose not been considered” would establish that “the complaining party . . . no longer fairly could attribut e the injury complained of to improper consideration of a discriminatory purpose”); cf. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 285, 97 S. Ct. 568, 575, 50 L. Ed. 2d 471 (1977) (same, in case alleging violation of plaintiff’s free speech rights under the First and Fourteenth Amendments). For these reasons, we hold that the plaintiffs have failed to meet the predomination requirement of Rule 23(b)(3).

B. Plaintiffs argue that the Supreme Cour t’s decision in International Brotherhood of Teamsters v. United States , 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), compels a different result. Teamsters was a pattern or practice employment discrimination case in which the government proved that “racial discrimination was the company’s standard operating procedur e – the regular rath er than the unusual practice.” Id. at 336, 97 S. Ct. at 1855. Given this finding, the Court held that [t]he proof of the pattern or prac tice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. [With regard to individual relief,] [t ]he Government need only show that16 The importance of a finding of class-wide disc rimination in subsequent individual proceedings in the employment context is justified by the burde n imposed on the plaintiff class to bring forth evidence of a policy or practice of discrimination su fficient to allow a court to conclude (absent an employer’s rebuttal) that every member of the plaintiff class suffered illegal discrimination by the employer. Compare Teamsters , 431 U.S. at 342 n.23, 97 S. Ct. at 1858 n.23 (finding pattern or practice of discrimination where number of African-Americans and Spanish-surnamed persons hired for line-driver positions approached “the inexor able zero”) (citation omitted); Paradise v. Prescott , 767 F.2d 1514, 1529 (11th Cir. 1985) (pattern or practi ce established where plaintiffs demonstrated that “in the 37 years preceding the institution of [the lawsuit] the [employer] did not have a single black on its . . . payroll”) withReynolds v. Roberts , 202 F.3d 1303, 1319 n.27 (11th Cir. 2000) (suggesting that it would be difficult to establis h that the employer was engaged in a pattern or practice of racial discrimination since “it is undi sputed that the [employer] hired thousands of blacks” and promoted many of them to positions equal or superior to those to which their white counterparts were assigned). 18 an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in [Franks v. Bowman Tr ansportation Co., Inc. , 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976)], the bur den then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. Id. at 362, 97 S. Ct. at 1868 (footnote omitted). 16 It is clear that Teamsters applies in private class actions alleging systemic di sparate treatment in employment. See Franks , 424 U.S. at 772, 96 S. Ct. at 1268 (holding in class action context that a demonstration by the plaintiff class of the existence of a discriminatory pattern or practice establishes a presumption that the individual class members had been discriminated against on account of r ace); Cooper v. Federal Reserve Bank , 467 U.S. 867, 875-76 & n.9, 104 S. Ct. 2794, 2799 & n. 9, 81 L. Ed. 2d 718 (1984) (affirming Franks ); Foster v. Board of School Comm’rs , 872 F.2d 1563, 1565 (11th Cir. 1989);17 Some of our cases have beenin conflict with re gard to whether, subsequent to the establishment of a pattern or practice of discrimination, individual plaintiffs get a presumption in favor of individual relief, or whether the showing of class-wide discrimination creates an inference that any particular employment decision was made pursuant to the employer’s discriminatory policies. Compare Foster , 872 F.2d at 1565 (“Because plaintiffs had already proven that the school board had engaged in a pattern or practice of di scrimination . . . [each] member presumptively was entitled to relief . . . .”) withFreeman , 700 F.2d at 1356 (“[D]uring the remedial phase of [a pattern or practice case] an inference existed that any particular employment decision was made pursuant to the Company’s discriminatory employment policies.”). We need not address the issue here, because we find that the Teamsters rationale does not apply in the instant case. 19 Freeman , 700 F.2d at 1356. 17 Further, Teamsters applies in employment discrimination cases brought under section 1981 to the same degree that it applies in cases brought under Title VII. As the former Fifth Circuit stated in Lee , the principles governing an individual’ s right to back pay and injunctive relief in cases of class-based em ployment discrimination brought under 42 U.S.C. §§ 1981 and 1983 are clear. Once purposeful discrimination against a class is proved, a presumption of an entitlement to back pay and individual injunctive relief arises with respect to the members of that class. The burden of proof then shif ts to the employer to show . . . that the individual member of the class seeking relief would not have been hired absent the discrimination.
Lee , 625 F.2d at 1239. Plaintiffs therefore ar gue that since the establishment of a policy or practice of discrimination shifts th e burden to the defendant to establish that each member of the plaintiff class is not entitled to relief, the policy or practice issue must necessarily predominate under Rule 23(b)(3). The argument must fail for two r easons. First, the Teamsters rationale is particularly appropriate in employmen t discrimination cases because of the18 The primary relief afforded to the plaintiff cla ss in a pattern or practice case is declaratory or injunctive. See Teamsters , 431 U.S. at 361, 97 S. Ct. at 1867 (holding that after a pattern or practice of discrimination has been established, “[w]ithout any further evidence . . . a court’s finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive order . . . .”). Individual plaintiffs are required to come forward and show that they unsuccessfully applied for a job only if they want individual relief. 20 relationship between a finding of systemic disparate treatment by an employer, and a plaintiff’s burden under McDonnell Douglas to establish a prima facie case of individual disparate treatment. After a patte rn or practice of discrimination has been proven, Teamsters mandates that in order to gain i ndividual relief plaintiffs must come forward and “show that [they] unsuccessfully applied for a job.” Teamsters , 431 U.S. at 362, 97 S. Ct. at 1868. 18 On the other hand, without a finding of class-wide discrimination, under McDonnell Douglas individual plaintiffs would have to come forward and show that (i) they belong to a racial minority; (ii) they applied and were qualified for the job at issue; (iii) they were rejected; and (iv) af ter the rejection, the position remained open and the employer conti nued to seek applicants, or the position was filled by a member of an unprotected class. See McDonnell Douglas , 411 U.S. at 802, 93 S. Ct. at 1824. By compari ng these two burdens imposed on individual plaintiffs (the burden on the plaintiff who can benefit from a previous finding of classwide discrimination (as in Teamsters ), and the burden imposed on the plaintiff who does not have the benefit of such a finding (as in McDonnell Douglas )), it becomes clear that the way in which a finding of sy stemic disparate treat ment functions in an19 Requiring a plaintiff to demonstr ate that he or she unsuccessfully applied for a job necessarily implies that the plaintiff must demonstrate that there was a job available for which the employer was seeking applications. This is somewhat differe nt, however, from the fourth requirement imposed on a plaintiff in a McDonnell Douglas case to establish that after the plaintiff was rejected, the position remained open and the employer continued to seek applicants, or the position was filled by a member of an unprotected class. See McDonnell Douglas , 411 U.S. at 802, 93 S. Ct. at 1824. The fourth McDonnell Douglas requirement in part focuses on the same issue that individual plaintiffs are required to address in a Teamsters case – that is, whether or not there was ever a job available for which the employer was seeking applications. If there never was a job, it would be inappropriate to allow suits against the employer for wrongful re jection. Every member of every protected class would have a right to a job of his or her choice, re gardless of whether or not there is a job to be had. But the fourth requirement in McDonnell Douglas asks the plaintiff to establish not only that there was a job available when the plai ntiff applied, but also that the job was not filled by a member of a protected class (the job either has to have rema ined open, or it has to have been filled by a member of an unprotected class in order for the plaintiff to survive judgment as a matter of law). In a Teamsters case, plaintiffs have already brought fo rth evidence of a pattern or practice of discrimination sufficient to allow a court to conclude (absent an employer’s rebuttal) that every member of the plaintiff class suffered illegal discrimination by the employer; therefore, if the individual plaintiff in a Teamsters case can establish that there was a job available when the plaintiff applied, then the court can assume that the positi on was not filled by a member of a protected class. 21 individual plaintiff’s case is as a substitute for a prima facie finding that the plaintiff was qualified. The requirement that indi vidual plaintiffs must come forward and “show that [they] unsuccessfully applied for a job,” after it is already established that the employer was engaged in a pattern or practice of discrimination, means that individual plaintiffs are never relieved of their burden of establishing that (i) they belong to a racial minority (otherwise, they would not fit within the definition of the class); (ii) they applied for the job; (iii) they were rejected; and (iv) there was a position available for which the employer was seeking applications when the plaintiff applied. 19 The only McDonnell Douglas factor that individual plaintiffs are relieved from establishing in the first instance in a Teamsters case is that they were fully22 qualified for the job atissue. Teamsters therefore stands for the proposition that where a plaintiff class can demonstrate a policy or practice of discrimination so pervasive that a court is justified in c oncluding that qualifications were entirely irrelevant to the employer (because the employer would not hire, for example, an African-American, or a woma n, or a Roman Catholic, no matter how well qualified), then individual plaintiffs are relieved of the prima facie burden of demonstrating that they were qualified for the job at issue in subsequent individual proceedings. To understand this point is to see why the Teamsters rationale cannot apply in the instant case. In contrast to a McDonnell Douglas case, a plaintiff in this nonemployment discrimination case will have to demonstrate that (1) he or she is a member of racial minority; (2) the defendant had an intent to disc riminate on the basis of race; and (3) the discrimination concerne d one or more of the activities enumerated in the statute. The second requirement is more demanding than any of the requirements imposed on plaintiffs in a McDonnell Douglas case, requiring, as it does, that the plaintiff bring forth evidence of actual intent on the part of the defendant. A finding that Avis has a policy or practice of discrimination could not possibly function as a meaningful substitute for the establis hment of an actual intent to discriminate against an individual plaintiff on the basis of his or her ethnicity. This is because the legitimate reasons why Avis might have judged an individual plaintiff to be20 See supraPart III.A., listing some of the many le gitimate reasons why Avis might choose to deny a corporate account to a particular applicant, or terminate an existing account. 23 “unqualified” for a corporate account are far more various and individualized than in the employment context. The requirement that an individual demonstrate that he or she is “qualified” for a job under McDonnell Douglas is not particularly rigorous; the same does not hold true in the instant case where Avis may have refused to contract with a plaintiff for any number of reasons having nothing to do with the plaintiff’s ethnicity. 20 Thus, even if plaintiffs could esta blish a generalized policy or practice of discrimination, they still would not have es tablished that the policy was implemented (and, thus, that Avis actually intended to discriminate) in their individual cases

. Second, and more important, the relief to which individual plaintiffs were entitled after a finding of a pattern or pr actice of discrimination in Teamsters (and in all subsequent cases employing the Teamsters rationale) was equitable in nature.
Teamsters concerned awards of seniority to me mbers of the putativ e class. Back pay has also been characterized as anequitable form of relief. See Holmes , 706 F.2d at 1152 (“[A] demand for back pay is not in the nature of a claim fo r damages, but rather is an integral part of the statutory e quitable remedy.”) (quoting Johnson v. Georgia Highway Express, Inc. , 417 F.2d 1122, 1125 (5th Cir. 1969)); Allison , 151 F.3d at 415 (“Back pay, of course, ha[s] long beenrecognized as an equitable remedy under24 Title VII.”). In the instant case, plaintiffs have prayed for compensatory and punitive damages under section 1981. These forms of relief are anything but equitable in nature; they are, in fact, the very definition of legal relief. The Supreme Court’s decision in Carey v. Piphus , 435 U.S. 247, 264, 98 S. Ct . 1042, 1052, 55 L. Ed. 2d 252 (1978), makes clear that in order to r eceive compensatory damages, individual plaintiffs must prove that “injury actually wa s caused.” This is es pecially true since compensatory damages under section 1981 caninclude damages for emotional and psychological distress. See Ferrill v. The Parker Group, Inc. , 168 F.3d 468, 476 (11th Cir. 1999). The Teamsters framework is, theref ore, inappropriate in the instant case because the establishment of a policy or pr actice of discrimination cannot trigger the defendant’s liability for damages to all the plaintiffs in the putative class. To establish that they are entitled to compensation, plain tiffs will have to prove that they actually suffered some injury, whether it be emotiona l or otherwise. The idea that individual injury could be settled on a cl ass-wide basis is preposterous. Plaintiffs’ claims for damages must “focus almost entirely on fact s and issues specific to individuals rather than the class as a whole: what kind of di scrimination was each plaintiff subjected to[, and] how did it affect each plaintiff emoti onally and physically, at work and at home.” Allison , 151 F.3d at 419; see also Holmes , 706 F.2d at 1156 (“[M]oney damages are25 directly related to the disparate merits of individual claims and are not generally applicable to the claims of the class as a whole.”) (quoting Rosen, Title VII Classes and Due Process: To (b)(2) Or Not To (b)(3) , 26 Wayne L. Rev. 919, 923 (1980)); Bogard v. Cook , 586 F.2d 399, 409 (5th Cir. 1978) (finding that case would probably not have been certifiable under Rule 23(b)(3 ) if money damages had been sought for each member of the class, b ecause “[g]iven the lack of common questions of fact as to many of those claims, and the unmanageab ility of the suit had they been included, we cannot believe that the district court woul d have allowed the claims as part of that action if they had been recognized as potentially possible”). To understand, further, why liability for damages is a necessarily individualized inquiry, we have only to consider the disaster that would befall any class-wide settlement of this case. Suppose that the district court was ca lled upon to approve a settlement fund to compensate all worthy plain tiffs in the class. First, what could possibly be a fair amount for such a fund? $100 thousand? $10 million? $100 million? We have no idea, and neither w ould the district court. It would be impossible to calculate the sum of damage s necessary to compensate all the class members (including a sum of damages repres enting the mental and emotional distress suffered by all the plaintiffs), because eachplaintiff’s damages will be dependent on what kind of discrimination the plaintiff was subject to, and what harm resulted. Any26 class-wide figure arrived at would not just be a guess at a fair settlement amount; the court might as well come up with ten numbe rs at random, take their average, square that amount, and add six. Whatever number the court came up with through this “method” would bear just as much a re lationship to a reasonable settlement amount as a number arrived at through any other means. Moreover, how could the court identify individual members of the class who would be entitled to compensation from the fund? Is every Jewish person who has ever been denied a corporat e account by Avis entitled to compensation? What if the individual was able to procure a corporat e account elsewhere, and therefore suffered no actual damage? What of the Jewish applicant who does not have a “Jewish sounding name” or a “Jewish accent”? We are not even certain what a “Jewish sounding name” or a “Jewish accent” is. But a pparently, if an individual plaintiff did not have one or the other, then there is no way that Avis could have identified the plaintiff as Jewish (absent some other sel f-identification initiative on the part of the plaintiff – there is no allegation that Avis ever actually asked anyone if they were Jewish). Should plaintiffs without a “Jewish sounding name” or a “Jewish accent,” therefore, be compensated? All of this goes to demonstrate the profoundly individualistic nature of each plaintiff’s cl aim for damages, and the complete lack of judicial economy in certifying this case as a class action.21 At oral argument, counsel for the plaintiffs cl aimed that a decision by this court to decertify the class in the instant case under Jackson would “eviscerate more than 100 years of civil rights cases.” Doubtless, counsel was warning against a return to the Supreme Court’s infamous decision to uphold the doctrine of “separate but equal” in Plessy v. Ferguson , 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). We are mystified as to how our decision to require conformance with the requirements of Federal Rule of Civil Proce dure 23 could possibly be equated with the now repudiated Plessydecision. Given that individual plaintiffs may be entitled to substantial compensatory and punitive damage recoveries should they prevail, the most compelling justification for a Rule 23(b)(3) class action – the possibility of negative value suits, see Amchem , 521 U.S. at 617, 117 S. Ct. at 2246 – is absent inthis case. Once one understands that the issues involved in the instant case are predominantly case-specific in natu re, it becomes clear that there is nothing to be gained by certifying this case as a class action; nothing, that is, except the bl ackmail value of a class certification that can aid the plaintiffs in coercing the defendant into a settlement. 27 IV. Counsel for the plaintiffs and amici pred ict that a denial of class certification in this case will mean the e nd of all disparate treatment class actions in the Eleventh Circuit. 21 In response to this dire predicti on, we find it appropriate to note, in conclusion, what this case is notabout. This is not a case alleging employment discrimination. Nor is it a case only involving claims for injunctive and declaratory relief. This is a case in which plaintiffs have sought to represent a class of “thousands” of Jewish plaintiffs who purportedly reside throughout the United States, and who, plaintiffs allege, were all either turned down for a corporate account, given a less advantageous account, or had their account terminated because the defendant discovered their ethnic identity through its practice of monitoring customer calls to identify callers with a “Jewish sounding name” or “Jewish accent.” Every member28 of the putative class seeks compensatory and punitive damages. The idea that proof of a policy or practice of discrimination could establish that every memberof the class is entitled to such damages is, given the substantive elements of the underlying cause of action, untenable. Similarly, given that every member of the class will have to prove actual damage in order to receive compensation for their loss, the policy or practice issue cannot possibly predominate over all the other issues in the case that are necessarily capable of only individualized resolution. Our decision today, therefore, does not represent the end of the disparate treatment class action in the Eleventh Circ uit. Today we merely recognize, and not for the first time, that Rule 23 imposes certain requirements on civil rights class actions, just as it does on any ot her kind of class action. See Falcon , 457 U.S. at 156, 102 S. Ct. at 2369-70. In the future, to determine whether class action status is appropriate, parties should look to the substa ntive law relating to the cause of action that is common to each class member, in cluding whether the substantive law supports a “pattern or practice” theory of individual recovery, as well as to the type of relief sought and whether that relief is capable of class-wide resolution or is necessarily individualized.

V.29 For the foregoing reasons, we find that the district court abused its discretion in certifying a class under Rule 23(b)(3). We REVERSE the district court’s class certification decision, and REMAND for furthe r proceedings not inconsistent with this opinion.
SO ORDERED.