Summary
In Street v. Diamond Offshore Drilling, 2001 WL 568111, at *4 (E.D.La. May 25, 2001), Judge Duval explained, " [a]lthough the number of members in a proposed class is not determinative of whether joinder is impracticable, it has been noted that any class consisting of more than forty members ‘ should raise a presumption that joinder is impracticable.’ "
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CIVIL ACTION NO. 00-1317 SECTION "K" (1)
May 24, 2001
ORDER AND REASONS
A Motion for Class Certification was filed by Dewey R. Street ("Street") (Doc. 17) in this suit brought pursuant to the Americans With Disabilities Act of 1990 ("ADA"); 42 U.S.C. § 12101 et seq. and 42 U.S.C. § 2000e, et seq., based on alleged violations of duties owed to plaintiff and the class he seeks to represent. (Complaint, ¶ 1). Street contends that he and at least 363 other people who passed physical examinations and back x-rays were wrongfully denied employment with Diamond Offshore Drilling, Inc. ("Diamond") solely because of the results of an improper limited study MRI. As such, he seeks to have the following class certified:
All persons denied employment by Diamond Offshore Drilling, Inc. and its predecessors from October 14, 1997 through November 1998 based on the results of imaging by Magnetic Resonance (MRI).
(Plaintiffs Reply Memorandum Doc. 25 at 3). Oral argument was heard on January 17, 2001. The Court has reviewed the pleadings, exhibits, deposition testimony, memoranda and the relevant law and finds that the motion must be denied for the reasons that follow.
Background
Street alleges that in January of 1998, he sought a roustabout job with Diamond. A roustabout for Diamond must repetitively lift objects ranging in weight from 25 lbs. to 65 lbs. Diamond thus classifies that position as "heavy work" requiring repetitive lifting of over 50 pounds. Street was instructed to go to the Westbank Surgical Clinic for a job interview and physical examination on February 11, 1998.
He, along with other applicants, were interviewed by a Diamond employee. Allegedly, if an applicant passed the interview, an applicant was instructed to go to the doctor's waiting room where the applicant would be asked to fill out a Diamond Medical Questionnaire that listed a number of potentially disabling impairments. The application requested an applicant to check any of the impairments he or she may have had. The applicant then had a back x-ray and underwent a physical examination. Street received a Certificate of Medical Examination which stated that he had "No limitations noted."
It is contended that all persons who successfully completed the physical examination were then instructed to go to Clearview Medical Imaging for a limited study MRI of the lumbar spine. if the results of the MRI were acceptable, a background check was performed on the applicant. Diamond contends that the physician that gave Street his examination rated him as capable of performing work requiring repetitive lifting of up to fifty pounds which would constitute a "medium" rating. Diamond claims that this classification was based on the physician noting that Street had a herniated disc in his back. On February 13, 1998, plaintiff was sent a letter informing him that during his "recent pre-placement examination, . . . an MRI of his lower back was obtained" which showed, "a significant abnormality." (Correspondence, attached as Exhibit "F" to Plaintiffs Memorandum in Support of Motion). As a result, he was not hired.
Street filed a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") contending that he was denied employment as a roustabout by Diamond on the basis of a perceived disability in violation of the ADA and EEOC Rules and Regulations. (Exhibit "H" to Plaintiffs Memorandum in Support of Motion). At the time of the EEOC determination, February 19, 1999, Diamond apparently admitted that it discriminated against Street by requiring him to take a medical examination before a job offer was made. (Exhibit "H" to Plaintiffs Memorandum in Support of Motion). That practice had ceased by November of 1998. On February 4, 2000, a "Notice of Right to Sue" letter from the EEOC was issued. (Exhibit "I" to Plaintiffs Memorandum in Support of Motion).
It is unclear exactly what date the charge was filed.
This suit was filed on May 2, 2000. Plaintiff and the putative class he represents contend that they were discriminated against in ways which deprive them of equal employment opportunities and otherwise adversely affected their status as employees because they are, were, and continue to be denied employment because they were regarded or perceived as having a substantially limiting impairment following a prohibited pre-employment medical examination and inquiry. (Complaint ¶ 7). They seek to recover compensatory damages for past and future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, as well as past and future loss of earnings and income earning capacity, back pay, front pay and all other relief authorized by 42 U.S.C. § 1981a, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 2101, et seq. and punitive damages. (Complaint ¶¶ 25 26). In plaintiffs first amended complaint, plaintiff seeks in addition all equitable relief, including final injunctive relief or corresponding declaratory relief.
With this factual background, the Court will first turn to an analysis of the specific statutory violation which allegedly provides the cause of action for plaintiff and the putative class.
The ADA and Employment Entrance Exams
Plaintiff bases his suit on 42 U.S.C. § 12112(d) of the ADA. The statute reads in relevant part:
(d) Medical examinations and inquiries (1) In general The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries. (2) Pre-employment (A) Prohibited examination or inquiry Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
(B) Acceptable inquiry A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions.
(3) Employment entrance examination A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if . . . the result of such examination are used only in accordance with this subchapter.42 U.S.C. § 12112(d).
Subsection (a) provides: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment
42 U.S.C. § 12112(a).
The term "qualified individual with a disability" is defined at § 12111:
The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation. can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.42 U.S.C. § 12111(8).
The term "disability" § 12102(2) as follows: (2) Disability The term "disability" means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
42 U.S.C. § 12102(2).
Street contends that if a real conditional job offer was not made, Diamond was prohibited from subjecting the job applicants to physical examinations and MRI's pursuant to § 12112(d)(2). If a real conditional job offer was made, Diamond would have been permitted to subject the job applicants to "Employment entrance examinations" so long as the results of the examinations were properly used. Plaintiff contends that no "real" conditional job offer was made to him or to the putative class members.
Another issue that arises as the class is constituted is whether a non-disabled individual can bring suit simply because of a violation of this statute. Plaintiffs rely on Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998) which held that a job applicant need not make a showing that he or she is disabled or perceived as having a disability or perceived as having a disability to state a prima facie case under 42 U.S.C. § 12112(d)(2). The Fifth Circuit in Armstrong v. Turner Indus., Inc., 141 F.3d 554 (5th Cir. 1998) clearly held that in order for a non-disabled person to pursue a claim under this statute, "damages liability under § 1211(d)(2)(A) must be based on something more than a mere violation of that provision. There must be some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation." Armstrong, 141 F.3d at 561. See Alllyson R. Behm, Note, The Americans With (or Without) Disabilities Act: Pre-Employment Medical Inquiries and the Non-Disabled 26 AMJLM 439, 444-51 (2000). Whether the Fifth Circuit would follow Griffin is unclear.
However, in determining the propriety of a class action, a court has no authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.Bertulli v. Independent Assoc. of Continental Pilots, 242 F.3d 290, 297 n. 29 (5th Cir. 2001); Eisen v. Carlisle Jacquelin, 94S.Ct. 2170, 2152 (1974). "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Id. at 2153 citing Miller v. Mackey lnternational, 452 F.2d 424, 427 (5th Cir. 1971). Thus, the issue becomes whether this cause of action brought by this plaintiff can be certified as a class action under the Federal Rules of Civil Procedure.
Certification of Class Pursuant to Rule 23
Rule 23 of the Federal Rules of Civil Procedure provide the criteria the Court must employ in determining whether to certify a class. Subsection (a) delineates four threshold requirements that must first be met before certification can occur. The rule states:
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 interest of the class.
Fed.R.Civ.P. 23(a). Then, Rule 23(b) delineates three different categories of class actions. The party moving for certification must demonstrate that the each of the elements of Rule 23(a) is met and that the action falls within one of the 23(b) categories. In re Ford Motor Co. Bronco II Product Liability Litigation, 177 F.R.D. 360, 365 (E.D.La. 1997). Street seeks certification of the class under both Fed.R.Civ.P. 23(b)(2) and (b)(3).
Rule 23(b)(2) provides that a class may be certified if:
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.
Rule 23(b)(3) aims at a different category of class action. Where plaintiffs seek to certify a class pursuant to Rule 23(b)(3), plaintiffs must demonstrate and the court must find "that 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 adjudication of the controversy." Fed.R.Civ.P. 23(b). Thus, certification as a (b)(3) class requires a showing of both predominance of common issues over individualized ones, and superiority of a the class action to other available methods for the fair and efficient adjudication of the controversy. In re Ford Motor Co., 177 F.R.D. at 368 citing Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 573 (5th Cir. 1995).
The Court will now turn to the four prerequisites found in Rule 23(a).
Rule 23(a)
(1) Numerosity
Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. Both parties agree that this condition is met. There are apparently 363 potential class members identified at this time. Although the number of members in a proposed class is not determinative of whether joinder is impracticable, it has been noted that any class consisting of more than forty members "should raise a presumption that joinder is impracticable." Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). Thus, the Court finds that plaintiffs have satisfied the numerosity requirement.
(2) Commonality
The test for commonality is not demanding and is met "where there is at least one issue, the resolution of which will affect all or a significant number of the putative class members." Mullen, 186 F.3d at 625 citing Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997). Diamond concedes that there are two common issues. The first issue is whether Diamond conducts medical examinations of applicants before extending a conditional offer of employment. The second issue is whether Diamond improperly relied on the results of non-diagnostic limited study MRI to restrict applicants from performing heavy work." (Doc. 23 at p. 5).
However, this factor "ordinarily is considered in connection with the Rule 23(b)(3) predominance inquiry because the court usually can find at least one issue that can be said to be "common" under the liberal wording of Rule 23(a)(2). In re Ford Motor Co. Bronco II, 177 F.R.D. 360, 366 (E.D.La. 1997). Thus, the Court will assume for purposes of Rule 23(a) that there are two common issues; however, commonality will be discussed in greater detail under the predominance inquiry of Rule 23(b)(3).
(3) Typicality
The test for typicality, like the test for commonality, is not demanding. Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 426 (5th Cir. 1997). Typicality "focuses on the similarity between the named plaintiffs' legal and remedial theories and the theories of those whom they purport to represent." Mullens, 186 F.3d at 625. That focus dominates the inquiry over the relative strengths of named and unnamed plaintiffs' cases. Bertulli, 242 F.3d at 298 n. 32 citing Jenkins v. Raymark Ind., Inc., 782 F.2d 468, 472 (5th Cir. 1986). "Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs' interest and the class members' interests."Musmeci v. Schwegmann Giant Super Markets, 2000 WL 1010254 (E.D.La. July 20, 2000), citing Mullen, 186 F.3d at 626.
As stated in In re Ford Motor Company Vehicle Paint Litigation, 182 F.R.D. 214 (E.D.La. 1998). citing Newberg on Class Actions § 3-13, at 3076 3d 3d. 1992):
"[A] plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory." On of the purposes of the typicality requirement is to ensure that the representative's interest is "aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members." In re American Medical Systems, Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). See Bronco II, 177 F.R.D. at 366-67 (noting that purpose of typicality element is to ensure that interests of absent class members are protected).Id. at 218.
Defendant has raised a number of arguments for the proposition that Street does not meet the typicality requirements. These bases include:
(1) Street allegedly has admitted that he was given a conditional offer prior to the examination in his deposition which would eviscerate his ADA claim;
(2) Street applied only for a position requiring heavy lifting so his claim would not be typical of persons applying for a medium lifting position;
(3) Street was not actually disabled, rather he was "regarded as disabled" such that the proof to be adduced and the duties owed to Street as opposed to a "disabled" person would not be the same;
(4) Street allegedly declined an unconditional offer of instatement as a roustabout which would limit his recovery of back pay to a nine month period and eliminates that possibility of the Court awarding Street instatement and/or front pay as remedies; Thus, he would have no interest in those remedies, in conflict with other plaintiffs.
(5) Street is not disabled; therefore, he would not be as interested in equitable remedies such as instatement; and
(6) Street's has as one of his retained counselors his nephew causing a conflict of interest since the amount of attorneys' fees in controversy may cause him to may decisions that would be more beneficial to his nephew than to the class.
This fact is contested
This allegation is also disputed
See Ford Motor Co. v. EEOC, 458 U.S. 219. 241 (1982) (declining unconditional offer of employment stops accrual of back pay and terminates opportunity for front pay).
In essence the legal and remedial theories upon which the class representative and the unnamed class members are relying are similar in nature. The gravamen of their claims is that medical tests were administered before an offer of employment was given to each plaintiff in contravention of the ADA, and all plaintiffs are seeking all possible remedies. As the facts which would preclude Mr. Street from certain remedies are contested, the Court cannot at this stage find as a certainty that his aims are at odds with those of the unnamed plaintiffs such that a conflict is created. Thus, the Court finds the typicality factor met. However, these factors do have a negative bearing on other issues which will be discussed in greater detail with respect to the predominance issue of Rule 23(b)(3).
The Court is aware that where the availability or ultimate success of a defense in the class representative's individual cause of action that is not present with respect to other unnamed class members does present a sufficient question of typicality to justify a district court's decision to deny class certification. Warren v. Reserve Fund, Inc., 728 F.2d 741, 747 (5th Cir. 1984). Nonetheless, because of the factual disputes surrounding whether an offer of employment was made prior to the medical examination or an unconditional offer was subsequently made, the Court believes that the better course is to utilize these infirmities in the context of the Rule 23(b)(3) analysis to deny class Certification.
4) Adequacy of Representation
To meet the fourth requirement, the Court must find that the representative parties fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). The adequacy requirement looks at both the class representatives and their counsel. Jenkins v. Raymak Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986). "There is no formula for deciding this issue; the adequacy determination is made based on the circumstances of each individual case." In re Ford Co. Bronco II, 177 F.R.D. 360, 367 (E.D.La. 1997)citing McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981).
Thus, the proposed representative must have common interests with the class members and be able to properly prosecute the class action. It is fundamental that adequacy is lacking if the interests of the putative class representative are antagonistic to or in conflict with the interests of other class members. . . . Adequacy does not exist when the representative is immune to an affirmative defense which will apply to other class members.
Markham R. Leventhal, Class Actions: Fundamentals of Certification Analysis, 72 May Fla. B.J. 10 (1998). There is no contention that counsel for the class does not have the requisite competency. The focus of this inquiry then is on the adequacy of Mr. Street as class representative.
Defendant contends that Mr. Street is inadequate because he demonstrated an unfamiliarity with the case and lack of interest in his deposition. Mr. Street appeared at the hearing and any infirmity in this regard was not present in his testimony. While it is true that generally the Fifth Circuit has refused to allow a litigant to alter or vary prior sworn testimony in order to manufacture a case-saving fact issue, Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000), in the context of this class action and the fluidity of the situation, the Court cannot find Street inadequate in this regard.
Diamond then incorporates its typicality arguments as to instatement and the fact that Street will likely focus on monetary damages to the exclusion of preferred equitable remedies. Again, as the underlying facts are contested as explained above, the Court cannot based on this argument find that Street is inadequate.
Finally, with respect to the argument that the presence of Street's nephew as class counsel creates a monetary conflict of interest, it is clear from testimony at the hearing on the subject motion that Paul Due will be lead counsel and will control this litigation. Furthermore, the Court will decide or approve any attorney's fees paid by Diamond.
As previously noted, while the requirements of Rule 23(a) have been met, the Court finds substantial impediments to the certification of the proposed class under either Rule 23(b)(2) or Rule 23(b)(3).
Rule 23(b)(2)
Predominance
Street seeks certification of the class under Rule 23(b)(2), which as previously discussed, focuses on class actions where "broad, class-wide injunctive or declaratory relief is necessary." Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998). Plaintiff contends that this category of certification is justified even though Diamond discontinued the use of the MRI screening tool in November 1998 because "if plaintiff ultimately prevails on the merits, injunctive or declaratory relief will be warranted in order to prevent Diamond from performing the same discriminatory practices in the future." (Plaintiffs Memorandum in Support of Certification at 24). In addition, plaintiff argues that the Court should follow the lead of the district court inSmith v. Texaco, Inc., 33 F. Supp.2d 663, 681-82 (E.D.Tex. 2000) and certify this class action both under Rule 23(b)(2) and Rule 23(b)(3). While recognizing that court's analysis, this Court's understanding ofAllison precludes it from taking such action.
Allison contains the Fifth Circuit's seminal explanation of the appropriateness of certifying a class action under Rule 23(b)(2) where both monetary and injunctive relief is sought, as is the case herein. The Fifth Circuit explained in Allison the differences between all three types of classifications as follows:
The (b)(1) class action encompasses cases in which the defendant is obliged to treat class members alike or where class members are making claims against a fund insufficient to satisfy all of the claims. . . . The (b)(2) class action was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary. . . . [T]he (b)(3) class action was intended to dispose of all other cases in which a class action would be "convement and desirable," including those involving largescale, complex litigation for money damages.Allison, 151 F.3d at 412.
The appellate court then noted that different presumptions with respect to cohesiveness and homogeneity of interest among members of (b)(1), (b)(2) and (b)(3) were reflected in the drafter's use of different procedural safeguards provided for each class. Under (b)(2) there are no opt-out provisions which are provided under (b)(3) for class members who might wish to pursue their claims for money damages in individual lawsuits. Id. As monetary remedies are more often related directly to the disparate merits of individual claims, a class seeking substantial monetary remedies will more likely consist of members with divergent interests. Id. at 413. In contrast, the premise that a (b)(2) class is homogenous and cohesiveness "`begins to break down when the class seeks to recover back pay or other forms of monetary relief to be allocated based on individual injuries.'" Id. citing Eubanks v. Billington, 110 F.3d 87, 95 (D.C.Dir. 1997). As such, class certification under (b)(2) becomes less appropriate where money damages begin to predominate the claims of the proposed class. Because Rule 23(b)(3) "automatically provides a right of notice and opt-out to individuals who do not want their monetary claims decided in a class action, Rule 23(b)(3) is the appropriate means of class certification when monetary relief is the predominant form of relief sought and the monetary interests of class members require enhanced procedural safeguards." Id.
The appellate court also found that by finding that a Rule 23(b)(2) certification was inappropriate where monetary damage predominates also preserves the legal system's interest in judicial economy because "actions for class-wide injunctive or declaratory relief are intended for (b)(2) certification precisely because they involve uniform group remedies. Such relief may often be awarded without requiring a specific or time-consuming inquiry into the varying circumstances and merits of each class member's individual case." Id. at 414.
Accordingly, where monetary relief "predominates", Rule 23(b)(2) certification is inappropriate. The Fifth Circuit restated the Allison test to determine whether monetary relief is predominant in Bolin v. Sears Roebuck Co., 231 F.3d 970, 975-76 (5th Cir. 2000) as follows:
"[M]onetary relief predominates . . . unless it is incidental to requested injunctive or declaratory relief." We explained that incidental means that "damages flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief" Thus, damages may be incidental when they are "capable of computation by means of objective standards and to dependent in any significant way on the intangible, subjective differences of each class member's circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual's case. [footnotes omitted].Bolin v. Sears. Roebuck Co., 231 F.3d 970, 975-76 (5th Cir. 2000).
Based on this test of predominance, the Court finds that the monetary damages sought by the putative class predominate these claims. The putative class seeks "to recover compensatory damages for past and future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, as well as past and future loss of earnings and income earning capacity, back pay, front pay and all other relief." (Complaint) Certainly, the non-pecuniary damages (loss of wage claims) sought are not sufficiently incidental to the injunctive and declaratory relief sought to permit them in a (b)(2) class action. As stated in
Allison:
We start with the premise that, in this circuit, compensatory damages for emotional distress and other forms of intangible injury will not be presumed from mere violation of constitutional or statutory rights. Compensatory damages may be awarded only if the plaintiff submits proof of actual injury, often in the form of psychological or medical evidence or other corroborating testimony.Allison, 151 F.3d at 416-417 citing Patterson v. P.H.P Healthcare Corp., 90 F.3d 927, 938-40 (5th Cir. 1996), cert. denied, 519 U.S. 1091 (1997). No objective standard can be used to measure compensation for a plaintiffs emotional and other intangible injuries; such claims "necessarily implicate the subjective differences of each plaintiffs circumstances; they are an individual, not class-wide, remedy. Id.
In addition, the putative class seeks punitive damages. This remedy is not available merely upon a finding that a defendant engaged in a pattern or practice of discrimination. Again as so cogently set forth inAllison:
Actual liability to individual class members, and their entitlement to monetary relief, are not determined until the second stage of the trial. And because punitive damages must be reasonably related to the reprehensibility of the defendant's conduct and to the compensatory damages awarded to the plaintiffs, recovery of punitive damages must necessarily turn on the recovery of compensatory damages.Id. at 417. Thus, the punitive award is dependent on a non-incidental compensatory damages award. As such, punitive damages are likewise non-incidental and outside of the realm of Rule 23(b)(2) certification. Accordingly, the Court shall not certify the class pursuant to Rule 23(b)(2). The Court will now turn to the factors required under Rule 23(b)(3).
Rule 23(b)(3)
Predominance
As previously noted, in order for the Court to certify this putative class under Rule 23(b)(3), it must inquire into whether (1) common issues predominate and (2) whether the class action is a superior method to resolve the controversy. To make this determination requires an understanding of the relevant claims, defenses, facts, and substantive law. Allison, 151 F.3d at 419. As previously stated the putative class consists of "all persons denied employment by Diamond Offshore Drilling, Inc. and its predecessors from October 14, 1997 through November 1998 based on the results of imaging by Magnetic Resonance (MRI)." (emphasis added). Having reviewed the case law, the statute and the defenses provided by statute, it becomes evident that there are insufficient "common issues" to certify this class.
Street argues that this case is identical to Mullens. In Mullens, the following class was certified by the district court and that decision was later upheld by the Fifth Circuit:
all members of the crew of the M/V Treasure Chest Casino who have been stricken with occupational respiratory illness caused by or exacerbated by the defective ventilation system in place aboard the vessel.
The Fifth Circuit characterized this class as fitting the Rule 23(b)(3) predominance requirement stating:
"the putative class members are all symptomatic by definition and claim injury from the same defective ventilation system over the same general period of time. Because all of the claims are under federal law, there are no individual choice-of-law issues. And, because negligence and doctrine-of-seaworthiness claims are timetested bases for liability, the district court could reasonably evaluate the significance of the common issues without first establishing a track record.Mullens, 186 F.3d at 627 (emphasis added). Unfortunately for plaintiffs, the same analysis simply does not hold true in this case.
First, and foremost, the denial of employment based on an MRI does not constitute a per se violation of 42 U.S.C. § 12112(d)(3). At a minimum Armstrong makes that clear; there must be "some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation." Armstrong, 141 F.3d at 562. This fact is the critical difference between the case at bar and Mullens.
In Mullens, the injury — occupational respiratory illness — is contained in the definition of the class and by operation of the Jones Act, there is a presumption of vessel liability. Here, "a mere violation of section 12112(d)(2)(A) does not automatically, or per se, give rise to damages." Armstrong, 141 F.2d at 562 n. 20. Thus, as the class is constituted, there is no presumption of liability as there was inMullens under the Jones Act.
The panoply of permutations and combinations created by the issues of the status of a member of the putative class and the injury, in fact, which is the legal and proximate cause for damages to that person under the ADA requires a highly, individualized inquiry. Indeed, the need for individualized, fact-driven determination under the ADA renders certain ADA actions ill-suited for class treatment. Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993) Burkett v. United States Postal Service, 175 F.R.D. 220 (N.D.W.Va. 1997) and cases cited therein.
Chandler arises in the context of the Rehabilitation Act which is the predecessor to the ADA. 56 Fed. Reg 35544.35545 (1991) Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997).
The Court is aware of numerous cases where classes have been certified in actions seeking specific injunctive relief for compliance with a provision of the ADA. Access Now. Inc. v. AHM CGH. Inc., 197 F.R.D. 522, 524 n. 1 (S.D.Fla. 2000); Civic Ass'n of Deaf of New York City, 915 F. Supp. 622 (S.D.N.Y. 1996). These cases did not require an individualized inquiry to determine the remedy or remedies available to each plaintiff; in each, there was one specific remedy sought. Moreover, it was clear in each that plaintiffs were "qualified individuals" that were covered by the ADA.
Such is not the case with respect to the instant case. The Court must address the threshold question as to whether the plaintiff and other putative class members are qualified individuals, and if not, whether there are any damages at all. To do so an individualized inquiry would have to be taken as to each such plaintiff. Armstrong, 141 F.3d at 562. Additionally, if a putative plaintiff is not a "qualified individual with a disability" or claims to be a "qualified individual with a disability" or is "perceived to be a qualified individual with a disability", each of these claims must be separately analyzed. Moreover, the remedies available to such individuals maybe different including accommodation, compensatory damages, punitive damages, front pay, back pay and any other relief authorized under the ADA. This inquiry into remedies likewise assumes that each plaintiff can prove a causal link between the premature MRI (pre-offer) and the injury alleged.
As stated in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999): The definition of disability also requires that disabilities be evaluated "with respect to an individual" and be determined based on whether an impairment substantially limits the "major life activities of such individual." § 12102(2). Thus, whether a person has a disability under the ADA is an individualized inquiry.
On its face, the putative class likely consists of (1) individuals with no disability who do not claim they were not hired and have no claim that they were not hired because of a disability; (2) individuals with no disability who do claim they were not hired because of the MRI; (3) individuals who claim they were perceived as disabled because of the MRI and were not hired; and (4) individuals who were in fact disabled and were not hired. Each group may have different remedies under the ADA depending on the extent of the disability, if any, and whether a reasonable accommodation could have been made. Moreover, this analysis will vary depending upon the job sought by each individual plaintiff.
Likewise, as stated in Allison:
the recovery of compensatory and punitive damages . . . requires individualized and independent proof of injury to, and the means by which discrimination was inflicted upon, each class member. . . . The plaintiffs' claims for compensatory and punitive damages must therefore focus almost entirely on facts and issues specific to individuals rather than the class as a whole: what kind of discrimination was each plaintiff subjected to; how did it affect each plaintiff emotionally and physically, at work and at home; what medical treatment did each plaintiff receive and at what expense; and so on and so on. Under such circumstances, an action conducted nominally as a class action would "degenerate in practice into multiple lawsuits separately tried." Castano [v. American Tobacco Co., 84 F.3d 734] at 745 .n 19 (citing Fed.R.Civ.P. 23 (advisory committee notes)).Allison, 151 F.3d at 419. Thus, the request for compensatory and punitive damages by the class under these circumstances also cuts against any argument that common issues predominate here when examined together with the myriad of other individual issues.
Plaintiffs have alternatively alleged that even if a conditional job-offer were made, the actions of the defendant must be job related and consistent with business necessity. This allegation raises the necessity for an individualized inquiry. Likewise, the defenses open to Diamond require an individualized inquiry in that certain plaintiffs may not have been hired based on facts unrelated to MRI. As stated in Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir. 1996):
Our reading of the ADA requires a causal link between the violation and the damages sought by the plaintiff. The remedies provided under the ADA are the same as those provided by Title VII, 42 U.S.C. § 2000e-4 to 2000e-6, 2000e-8, 2000e-9. Title VII allows a private suit by a plaintiff "aggrieved by the alleged unlawful employment practice." Generally, relief is not afforded to the plaintiff if he was not hired or otherwise subjected to adverse employment action "for any reason other than discrimination . . . ." Title VII does recognize as an unlawful employment practice discrimination "which was a motivating factor for any employment practice, even though other factors also motivated the practice." However, damages may not be awarded for such a violation if the defendant "would have taken the same action in the absence of the impermissible motivating factor . . ." In such circumstances relief is limited to certain declaratory and injunctive relief, costs and attorney's fees.Id. Thus, Diamond would have the right to assert a defense as to each of the putative plaintiffs, if applicable, that it would not have hired that particular person for another non-discriminatory reason. Again, such a particularized inquiry demonstrates that this class does not have common issues predominating.
Superiority
The predominance of individual-specific issues relating to plaintiffs' claims as outlined above guides the Court in finding that a class action is not a superior method or device in resolving these claims as well.Allison, 151 F.3d at 419. While the Court recognizes that there is no jury request and thus no Seventh Amendment problem, the fact remains that in this type of case, the existence of a "negative value suit" is missing. That factor has been recognized as "the most compelling rationale for finding superiority in a class action." As there is a maximum of $300,000 value per plaintiff and the availability of attorneys fees, there is no financial barrier that make individual lawsuit unlikely or infeasible. Id. citing 84 F.3d at 748. Accordingly, the factors necessary to certify this class under Rule 23(b)(3) are absent and the motion must be denied.
Conclusion
Having weighed the common issues presented by this suit against those issues that require an individualized analysis, it becomes evident that this case is not one that lends itself to resolution through a class action. In essence, each putative class member will be required to show what specific job he or she was seeking; the requirements of that job; the relation of the MRI to the failure to be hired for that job; whether the person was disabled; perceived to be disabled or not disabled; whether the person could have performed the specified job for which they applied; whether the person was not hired for a reason other than the MRI; whether the person could have been reasonably accommodated assuming a disability; or whether the person should receive compensatory and/or punitive damages as well as front pay or back pay. These are but some of the reasons this Court declines to certify this class. Accordingly,
IT IS ORDERED that the Motion for Class Certification (Doc. 17) is DENIED.