Sometimes, class certification decisions read to us like checklists, where a judge will recite line and verse the requirements under Rule 23 one by one, and often find that all of them are satisfied with little discussion of the evidentiary basis for the rulings. At other times, however, a decision will be released that represents a more nuanced and fully-reasoned analysis of not only the requirements of the rule and its sub-parts, but also the underlying policy purposes of class action litigation. A fine example of the latter – for the defense side, anyway – was issued on September 4 by U.S. District Judge Gladys Kessler in the District for the District of Columbia in a class action involving chaplains in the U.S. Navy.
In In Re Navy Chaplaincy, No. 07-MC-269 (GK), 2014 U.S. Dist. LEXIS 122913 (D.D.C. Sept. 4, 2014), which you can read here, Judge Kessler admittedly had an lengthy record and history of litigation before her that informed her decision. But her analysis of why the plaintiffs did not satisfy the commonality requirement under Rule 23(a) in particular, reveals that focusing on the factual experiences of the named plaintiffs can be a solid approach for defense practitioners to take to resist certification, particularly in multi-named plaintiff cases.
The plaintiffs, who were 65 current and former Navy Chaplains and a coalition of Evangelical Christian church organizations, alleged that the system by which the Navy appoints and promotes chaplains allows for bias against “non-liturgical” protestant chaplains to operate, thus violating their religious liberty and the U.S. Constitution. Id. at 6-7. (This was not a Title VII case, but rather, the plaintiffs sued under the Religious Freedom Restoration Act and the Constitution. Id. at 10. Nonetheless, as our loyal readers know, many non-Title VII class cases shed light on how to defend them, so we like to keep up with all kinds of class cases.) These plaintiffs sought to represent a class numbering approximately 2,500 Navy Chaplains, including those serving all the way back to 1976. Id. at 24.
Plaintiffs‘ Class Certification Theory
The plaintiffs alleged that the assignment and promotion process for Navy Chaplains, when analyzed statistically, revealed a pattern of religious preferences favoring liturgical protestants (those arising from the protestant Reformation, such as Lutherans and Episcopalians) and Roman Catholics over non-liturgical protestants. Id. at 6-9. They also challenged procedures such as secret balloting and an alleged quota system, which they said resulted in a disparate impact against Evangelicals, who they contended should be represented more strongly in the Chaplaincy Corps due to the alleged presence of more Evangelical Christians in the general population than other Christian, Jewish, or other religious groups. Id. They also alleged instances of individual discriminatory treatment they alleged stemmed from their faith. Id. at 9-10. Their class theory was that, in addition to statistical evidence purporting to show systemic bias against non-liturgical protestant Chaplains over time, the boards who selected members of the Chaplain Corps and who recommended Chaplains for promotions were given discretion to make those decision without adequate and specific guidelines to ensure they were not based on impermissible religious preferences. Id. at 32-33. This allowed bias against non-liturgical protestants to infect their decisions.
The plaintiffs sought what Judge Kessler described as “sweeping injunctive and declaratory relief that would place this Court in an essentially perpetual oversight role with respect to the Navy’s personnel practices.” Id. at 10. Specifically, they sought an injunction requiring the Navy to enact policies they enumerated that would, among other things, “match religious representation in the general population” by granting preferences to Evangelical Christians, who they contend are the majority. Id. at 10-12 & n.6.
The Court’s Decision
Plaintiffs’ theory of commonality was rejected by Judge Kessler as identical to the failed theory presented in Wal-Mart Stores, Inc. v. Dukes. She relied on evidence in the record to show that decisions were dispersed amongst 500 officers in different geographical regions, and that the Chief of Chaplains does not control those “local” decisions about individual Chaplains’ placements. Id. at 34-35. She also noted the Navy Chaplaincy’s official policy documents that expressly forbid religious preferences, along with an oath decision-makers took to affirm their commitment to avoid preferences, as counter to the plaintiff’s evidence that the Navy Chaplaincy’s “culture” was biased against non-liturgical protestants. Id. at 33-34.
Ultimately, the evidence pertaining to each individual named plaintiff’s experiences as a Navy Chaplain essentially doomed any effort to show there was a common thread tying them all together, necessary for commonality under Rule 23(a). As Judge Kessler opined, after enumerating in a lengthy footnote the individualized issues and challenges each Chaplain testified affected his career, “while Plaintiffs may have suffered individual instances of religious intolerance, there is no evidence to suggest their experiences reflect a culture that is consistent across time and space and common to the entire class.” Id. at 36.
Implications For Employers
This decision is well worth reading because in our view, it reveals the vulnerabilities in the increasingly common post-Wal-Mart dual track plaintiffs’ strategy, whereby they challenge a company’s “culture” with statistical evidence, coupled with anecdotal allegations of discrimination, and pronounce that a certifiable class exists. Defendants who focus like a laser on individual reasons behind employment decisions for each class member will be more likely to reach a favorable result like the one in this case.