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Williams v. Mohawk Indus., Inc., No. 08-13446 (11th Cir. May 28, 2009); Qamhiyah v. Iowa State University of Science and Technology, No. 08-2548 (8th Cir. June 1, 2009)

| May 31, 2009 | Daily Developments in EEO Law |

Grace (for the plaintiff’s bar) comes from an unexpected source, as the Eleventh Circuit — in an opinion signed by Judge Pryor — reverses denial of class certification in an employment-related dispute. In more garden-variety news, the Eighth Circuit affirms summary judgment in a “cat’s paw” case.

Williams v. Mohawk Indus., Inc., No. 08-13446 (11th Cir. May 28, 2009):  The claim was summarized by the panel as follows —

“On January 6, 2004, current and former employees of Mohawk who worked for hourly wages at various facilities in northern Georgia filed a complaint that Mohawk engaged in a pattern of racketeering activity prohibited by the Racketeer Influence and Corrupt Organizations Act, 18 U.S.C. § 1962(c), by hiring and harboring illegal aliens in violation of the Immigration and Nationality Act, 8 U.S.C. §§ 1324(a)(1)(A)(iii), (a)(1)(A)(iv), (a)(3)(A). The employees alleged that
Mohawk formed an enterprise with various temporary employment agencies to hire illegal aliens and depress wages. The employees alleged that they were harmed by the racketeering activity of Mohawk because their wages were depressed. The employees also alleged that Mohawk violated the Georgia statute that prohibits racketeering activity, Ga. Code Ann. § 16-14-4(a), (c), by committing various predicate acts involving fraud and misuse of visas, 18 U.S.C. §§ 1546(a), (b), and that Mohawk was unjustly enriched by its criminal activities under the law of
Georgia.”

The case survived an appeal to the Eleventh Circuit and a trip to the Supreme Court.  On remand, the hourly workers sought certification under both Fed. R. Civ. P. 23(b)(2) (for injunctive relief) and (b)(3) (damages). The district court denied certification on the grounds that there were no common question of law and that the class representatives’ claims were not typical of the proposed class.  It also held, attendant to Fed. R. Civ. P. 23(b)(3), that common issues did not predominate and class adjudication was not superior.

The Eleventh Circuit reverses, finding an abuse of discretion by the district court. It holds first that the allegation of a conspiracy that illegally suppressed the employees’ wages did indeed present a common issue:

“The employees presented two overarching questions that are common to all members of the class: (1) whether ‘Mohawk conducted or participated, directly or indirectly, in the conduct of an enterprise’s affairs’ under the federal RICO statute; and (2) whether ‘Mohawk engaged in a pattern of racketeering activity . . . . [or] a conspiracy to violate § 16-14-4(a) of the Georgia RICO statute.'”

The elements of these statutes require proof of a pattern which would be common to the class, in spite of the avowedly decentralized method of setting hourly wages.  (Regretably, the panel contrasted such a case with Title VII classes, which the panel contends may be more susceptible to the decentralization argument.)  The panel describes commonality as a “low hurdle” and holds —

“Whether Mohawk conducted the affairs of an enterprise through a pattern of racketeering activity that depressed the wages of all employees is a question common to each employee’s complaint. The district court abused its discretion when it ruled that the employees’ complaint did not present questions of law or fact common to the proposed class.

Second, “the district court abused its discretion when it ruled that the claims of Jones and Pelfrey were not typical of the claims of absent class members. Jones and Pelfrey allege that Mohawk conducted the affairs of an enterprise by hiring illegal labor, which depressed the employees’ wages. This claim is typical of the claims of other members of the class because the claims are based on the same legal theory.”

Third, the panel appears to side vaguely with a plaintiff-friendly standard for predominance that looks less at whether the plaintiff is likely to prove a classwide violation, and more to whether the class will use common methods of proof (“[a] district court must consider, for example, how the class will prove causation and injury and whether those elements will be subject to class-wide proof”).  The panel also finds that the district court, by taking a wrong turn on commonality, tainted its decision on superiority as well.

Finally, it remands the decision with instructions to consider a hybrid 23(b)(2)/(3) certification:

“If the district court determines that common issues predominate and certifies a class for damages under subsection (b)(3), the district court must consider whether to certify a class under subsection (b)(2) with respect to the employees’ claim for equitable relief. The district court declined to certify a hybrid class because allowing many individual suits for liability and monetary relief followed by judicial resolution of class-wide equitable relief would be ‘overly cumbersome, confusing, and highly inefficient.’ This inefficiency dissolves if the district court determines common issues predominate and certifies a class under subsection (b)(3). The definition of the hybrid class under subsection (b)(2) would be confined to current employees of Mohawk because only those members of the employees’ proposed class have standing to seek injunctive relief.”

Qamhiyah v. Iowa State University of Science and Technology, No. 08-2548 (8th Cir. June 1, 2009):  The plaintiff was a tenure-track professor who — according to the summary judgment record —  scored well as an instructor but fell behind in publication, funding and the training of graduate students.  When her opportunity for promotion was presented to a review committee of three, she prevailed 2-1, but the third vote against — by a Prof. Chandra — dogged her into subsequent rounds of review, with Chandra’s view apparently carrying more support up the chain.  She was eventually denied promotion by the Board of Regents, lost all levels of administrative review and sued under Title VII, claiming discrimination on account of national origin, religion, gender and pregnancy.

Plaintiff claimed to have marshalled direct evidence that her pregnancy was a factor in the promotion decision, with the upstream agencies functioning as “cat’s paws”:  “Qamhiyah cites to evidence related to actions by ME Department faculty members, an interview from the Ad Hoc Committee’s investigation indicating that her pregnancies may have been referenced in a College Committee meeting, a statement in an external letter referencing her pregnancies, and a 2003 ISU study discussing a university-wide problem with the recruitment and retention of women and minority faculty members.”  But the panel holds that lower-level chatter could not be imputed to the Board of Regents: “it is evident that Qamhiyah’s cat’s paw argument cannot rescue her direct evidence claim because, even assuming discrimination existed at the lower-levels of her review, there is simply no evidence that the Board of Regents ‘serve[d] as the conduit, vehicle, or rubber stamp by which another achieve[d] his or her unlawful design.'” [Citation omitted.]

The various levels of review supposedly scrubbed any taint from the lower-level events —

“As extensively outlined above, Qamhiyah’s tenure-review case received a vigorous and thorough review. It included, in some form, approximately eighteen different assessments involving dozens of faculty members and administrators. According to undisputed portions of the record, evaluators at almost every level of review criticized Qamhiyah’s scholarship, fundraising, and publishing records, and they overwhelmingly agreed that Qamhiyah did not satisfy ISU’s standards for tenure. Though we recognize that there is evidence that upper-level reviewers did consider lower-level recommendations when evaluating Qamhiyah’s case, the evidence
nonetheless shows that the upper-level reviews were independent and that many of the reviews took place after Qamhiyah had voiced her concerns regarding prior votes. Moreover, there is simply no evidence indicating that these later reviews relied on filtered facts or material misrepresentations from others with alleged discriminatory motives. To the contrary, the record clearly shows that each level in the process received Qamhiyah’s credentials for review and that, in the later stages of the process, Qamhiyah undisputedly received multiple opportunities to defend her record and respond to earlier criticisms.”

The panel affirms not only that the employee lacked a direct method of proving her claim, but the conventional McDonnell Douglas method of proof did not avail her either.  It rejects arguments that the school’s reasons for not promoting her were pretextual (i.e., “procedural irregularities in the voting process,” “shifting reasons for the decision,” and that “her credentials were sufficient to justify promotion”).  Finally, one judge on the panel files a concurring opinion, who would have affirmed simply on the basis outlined by the district court, without the discussion of cat’s paw.

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