By Rebecca S. Bjork and Gerald L. Maatman, Jr.

After Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), class action litigants are re-booting their theories in employment discrimination class actions. The stakes are high and the legal theories are novel in these workplace class actions, especially when an employer’s decision-making processes – either objective, subjective, or both – are challenged.

Most recently, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia denied class certification in a long-running employment discrimination case involving discretionary decision making and, in the process, expressed cogently what it now takes to satisfy the commonality requirement of Rule 23(a). The order in Artis v. Yellen, No. 01-CV-400, 2014 U.S. Dist. LEXIS 136753 (D.D.C. Sept. 29, 2014), is helpful for its clarity on that subject, even if the specific record before the Court is (hopefully) not likely to arise in many future cases.

The History Of The Litigation

Why, you may ask? Well, if you read the decision, involving allegations of race discrimination against African-American and Native American secretaries and clerical staff working for the Federal Reserve Board, you’ll quickly see why. The Court was clearly not impressed with the litigation tactics of the plaintiffs’ attorneys. For starters, the named plaintiffs refused to participate in class discovery, including depositions, until ordered to do so. Id. at 9. Worse, they failed to notice any depositions of the defendant until after the close of class discovery (id. at 10-11); their statistics “expert” with a B.A. degree had, by his own admission, never before run statistical analyses of employment data in a discrimination case, and did not use any differential statistics to attempt to measure statistical significance (id. at 29-30); they attempted to file multiple corrected and supplemental briefs and expert reports after deadlines had passed (id. at 15-19); and more.

The Court’s Commonality Analysis

His patience apparently having been worn thin, Judge Sullivan struck the untimely filings and denied class certification. The commonality clarification he provided, beginning on page 25 of his ruling, is helpful and worth reading, despite the background noise created during the discovery phase of the litigation. First, consider his cogent discussion of the post-Wal-Mart v. Dukes legal landscape. Commonality can be shown in cases alleging subjective discretion in employment decisions, the Court writes, if (1) a common mode of exercising that discretion has been proven; (2) the exercise of discretion is tied to a specific employment practice and that subjective practice affected the class in a uniform manner; or (3) there is evidence uniting acts of discretion under a single policy or practice. Id. at 26 (citing Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013), Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013), and In Re Countrywide Fin. Corp. Mortg. Lending Practices Litig., 708 F.3d 704, 708 (6th Cir. 2013)).

The Court then worked through each of these three ways to show commonality, and found no record support for them presented by the plaintiffs. As for “common mode,” the depositions that were compelled elicited testimony that some supervisors made discriminatory decisions, but many others did not. Artis, at 27. (Nor did the plaintiffs have any evidence that “a single high-level manager was involved” in the challenged decisions. Id. at 28.) As for “affecting the class in a uniform manner,” the Court held the plaintiffs’ statistical evidence was unimpressive in multiple ways, failing to demonstrate any uniform effect. Id. at 28-31. And the only “uniting policy” in the record was the Fed’s anti-discrimination and affirmative action policy, which applies agency-wide and certainly does not provide glue tying the allegations of discrimination together. For these reasons, the Court reasoned that “the discrimination [the plaintiffs] allege stems from an array of individualized decisions of low-level supervisors who operate with significant discretion to design subjective criteria for making personnel decisions.” Id. at 25.

Implications Of The Decision

Corporate counsel who follow class action law should refer to this decision as a roadmap for how to engineer an effective class certification defense. Always remember that is it the plaintiffs’ burden to build an evidentiary record to support class certification, which was lacking here in several ways. And drilling down into the commonality test as explained in case law — in granular detail — will allow the defense to analyze the evidence pro or con as to the Rule 23 elements, and build the best arguments in the circumstances.