By Gerald L. Maatman, Jr. and Laura J. Maechtlen
On May 30, 2013, the Sixth Circuit decided that class certification denial was proper in a proposed nationwide sex discrimination class action against Cintas Corporation brought by female applicants rejected for sales representative jobs. See Davis v. Cintas Corp., No. 10-1662 (6th Cir. May 30, 2013). Notably, the Sixth Circuit relied extensively on Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2562 (2011), demonstrating the applicability of the Wal-Mart decision’s reasoning in a hiring case.
Background Of Davis v. Cintas Corporation
Tanesha Davis sued Cintas, individually and on behalf of a class of female job applicants denied employment as entry-level sales representatives. Davis v. Cintas Corp., No. 10-1662, at 2. The case focused on the company-wide “Meticulous Hiring System” used to hire Service Sales Representatives (“SSRs”), which requires Cintas to identify “must have” and “preferred” traits and competencies for hire, in addition to “additional preferred” traits identified by Division, Group or Location. Id. at 3-4. Further, the process requires sixteen steps, involving — among other activities — screening interviews, pre-employment testing, multiple “in-depth” interviews, “route rides,” a “final” interview, a conference among personnel involved in the interview process, criminal background, drug screening and reference checks, and driving-record and credit-record tests. Id. Although SSRs were historically male, after Cintas implemented the Meticulous Hiring System in 2003, the percentage of women hired rose significantly. Id. at 4.
Davis alleged that Cintas’s hiring practices led to gender discrimination, in violation of Title VII, and caused Cintas to reject her application for employment twice. Id. at 4-5. The case was consolidated with another pending case, Serrano v. Cintas Nos. 04-40132, 06-12311 (E.D. Mich.) (discussed in part, here) for purposes of pretrial proceedings and plaintiffs in both cases made a joint motion to certify a class consisting of “all females who unsuccessfully applied for the SSR job...” Id. at 6.
The district court denied Davis’s motion for class certification, and ultimately granted summary judgment for Cintas on her individual claims. Serrano v. Cintas Corp., Nos. 04-40132, 06-12311, 2009 WL 910702, at *1 (E.D. Mich. Mar. 31, 2009). It reasoned that the putative class did not satisfy Rules 23(a)(2), 23(a)(3), 23(a)(4), 23(b)(2), or 23(b)(3), because the case involved a “hiring process . . . conducted by thousands of Cintas managers at hundreds of Cintas facilities,” there was a “conflict between the interests of the named and unnamed class members,” and “the damages sought by Plaintiffs would require individualized determinations inappropriate for a [Rule 23(b)(2)] class action [because she sought front and back pay].” Id. at *5, 9 and 10. Davis appealed, individually and on behalf of the gender- discrimination class, although our interest lies with the class certification aspects of the appeal.
Sixth Circuit Opinion - Rule 23(a)(2)
Citing extensively to Wal–Mart Stores, Inc. v. Dukes, the Sixth Circuit determined that Davis failed to meet Rule 23(a)(2) because, under the Wal-Mart framework, Davis would have to show that Cintas “used a biased testing procedure” or “operated under a general policy of discrimination,” and she failed to do so. Id. at 14-15. Indeed, like Wal-Mart, Davis did not argue Cintas's objective hiring criteria led to anti-female bias, but rather that “subjective decisions made by some of Cintas's managers favored males because of Cintas's male-dominated corporate culture.” Id. at 15.
While Davis submitted sociological, statistical, and anecdotal evidence, like the determination in Wal-Mart related to similar types of evidence, the Sixth Circuit determined that the evidence was “…not sufficient to show a uniform, companywide practice of exercising discretion in a way that favored men over women…” Id. Indeed, Cintas’s experts were found more persuasive, and moreover, there was evidence that Cintas had made “sincere attempts” to achieve greater diversity at the company.” Id.
Similarly, the anecdotal evidence submitted by Davis of Cintas managers telling women that the job involved heavy lifting, entering male locker rooms and dealing with dirty laundry was insufficient because it could interpreted as some Cintas managers “giving applicants full disclosure of the demands and duties” of the job, and such comments “illustrate that the circumstances of discrimination are highly individualized and cannot be adequately treated in a generalized class action setting.” Id. at *16.
In the end, the Sixth Circuit determined that there was no abuse of discretion by the district court. Id. at 16. Davis did not satisfy Rule 23(a)(2) because she could not show that a number of women, who failed to obtain employment at many places, over a long time, under a largely subjective hiring system, shared a common question of law or fact. Id.
Sixth Circuit Opinion - Rule 23(b)(2)
Davis proposed a “shortfall-based model” for calculating damages to meet Rule 23(b)(2). Under this proposal, the district court could declare Cintas's hiring practices discriminatory and issue an injunction ordering Cintas to hire class members “randomly selected in numbers equal to the proven shortfalls” of women at each facility. Id. at 18. Davis would then calculate back pay liability by multiplying the proven shortfall times lost wages. Id. That calculation would be the limit of Cintas's liability for back pay, which then would be distributed pro rata among eligible class members. Id.
Continuing to rely on the Wal-Mart decision, the Sixth Circuit deemed the “shortfall-based model” “similar” to a “trial by formula” system that was rejected by the Supreme Court because it was found to have “abridged or modified Wal-Mart's statutory right” under Title VII of the 1964 Civil Rights Act to assert individual defenses to individual back pay awards. Id. at 18. Indeed, the Sixth Circuit noted that Davis's proposal “suffers from a similar, but even more troubling, infirmity,” noting that “Dukes made clear that Cintas has the right to present defenses before paying any person an award of back pay. Davis's system deprives Cintas of that right. But worse, Davis's ‘shortfall-based' model, unlike the ‘trial-by-formula' system, makes no attempt to individualize damages at all.” Id. Instead, under the “shortfall-based model,” a female class member denied a job in 1999 would “receive precisely the same recovery” as a class member Cintas failed to hire in 2004. Id. Under the trial by formula system, plaintiffs at least had “statistical similarity” when it came to allocating class-wide monetary awards. Therefore, the proposed system was “worse” than the system “unanimously rejected in Dukes.” Id. For that reason, the Sixth Circuit concluded that individualized monetary relief was not incidental to the injunctive and declaratory relief, and the district court was correct to deny certification. Id.
Implications For Employers
In citing so extensively to the Wal-Mart v. Dukes decision, the Sixth Circuit in Cintas not only resoundingly endorsed the Wal-Mart decision itself, but also its applicability in cases involving allegations of discriminatory hiring practices (as compared to pay and promotion decisions like those challenged in Wal-Mart). Moreover, Cintas is instrumental for employers challenging the plaintiffs’ strategy of formulaic models for determining the amount of individualized damages in the form of front and/or back pay. The Cintas decision clearly rejected the “shortfall-based model,” it found similar to the “trial by formula” model asserted in the Wal-Mart case, which is useful to cite in cases where plaintiffs attempt to assert similar formulaic models to justify certification pursuant to Rule 23(b)(2). Finally, the Cintas decision can serve as a reminder to employers that workplace policies and procedures that provide guidelines for the hiring process remain a recommended best practice, especially when used in conjunction with a diversity and inclusion initiatives.