Lemon v. International Union of Operating Engineers Local 139 Brief Amicus Curiae in Support of Plaintiffs-Appellees

    No. 99-4101

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

Jeff Lemon, Karen Meyer, John Duncan, Odell Williams, Virgil Eiland, Pat 
Haynes, Craig Anderson, the Estate of John Beamon, Shirley Nyman, and Franklin 
Edmonds, individually and on behalf of a class of similarly situated individuals

Plaintiffs-Appellees,

V.

International Union of Operating Engineers Local 139 
Defendant-Appellant.

On Appeal from the United States District Court 
for the Eastern District of Wisconsin

Joint Brief of Amici Curiae NAACP Legal Defense And Educational Fund, Inc. 
and Chicago Lawyers' Committee For Civil Rights Under Law 

In Support Of Plaintiffs-Appellees

C l y d e  E. M u r p h y  E l a in e  R. J o n e s

C h ic a g o  L a w y e r s ’ C o m m it t e e  f o r  D ir e c t o r -C o u n s e l  
C iv il  R ig h t s  U n d e r  L a w , In c . N o r m a n  J. C h a c h k in

100 N. L a S a l l e  S t r e e t  C h a r l e s  S . R a l s t o n

C h ic a g o , IL  60602 O l a t u n d e  C.A. Jo h n s o n

(312)630-9744 D e b o r a h  N. A r c h e r

NAACP L e g a l  D e f e n s e  
&  E d u c a t io n a l  F u n d  

99 H u d s o n  S t r e e t , 16th F l . 
N e w  Y o r k , NY 10013 
(212) 965-2200

Attorneys for Amici Curiae



Table of Contents

Table of Authorities...................................................................................... jj

Statement of Interest of Amici Curiae ................................................................ 1

Summary of Argument ...............................................................  3

Argument ........................................................................................................ 4

A.

B.

C.

Denying Class Certification in Actions Seeking Damages as well as Injunctive 
Relief Would Undermine the Purposes of Title VII, and Frustrate Attempts 
to Combat Employment Discrimination............................................................ 4

1 .

2 .

Congress Intended to Authorize Class Action Title VII Suits to Achieve the 
Goals o f  Eliminating Employment Discrimination and Providing Effective 
Redress to Victims o f  Discriminatory Practices as Efficiently as Possible, 
Without the Necessity o f Individual Actions................................................... 4

Congress's Expansion o f  Title VII to Allow Compensatory and Punitive 
Damages Does Not Preclude Plaintiffs from  Bringing Rule 23 Class 
Actions..............................................................................  5

3. Allison v. Citgo Should be Rejected by This Court............................ .......... 7

Injunctive Actions Seeking Compensatory and Punitive Damages May be 
Certified Under Rule 23(b)(2)...........................................................................9

Bifurcation of Liability and Damages Claims Does Not Offend The 7th 
Amendment........................................................................................  12

CONCLUSION ....................................................................................................................... ..

1



TABLE OF AUTHORITIES

FEDERAL CASES

Alaniz v. California Processors, 73 F.R.D. 269 (N.D. Cal. 1976) ................................................ 10

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)..........................................................  1, 4, 6, 8

Allison v. Citgo Petroleum, 151 F.3d 402 (5th Cir. 1998)...................................................... passim

Arnold v. United Artists Theatre Circuit, 158 F.R.D. 439 (N.D. Cal. 1994)................................  12

Barefeld v. Chevron, 1988 U.S. Dist. LEXIS 15816,48 Fair Emp. Prac. Case (BNA) 907 (N D Cal 
1988) ...................................................................................................................................................... 7

Bowe v. Colgate-Palmolive, 416 F.2d 711 (7th Cir. 1 9 6 9 )......................................................  4, 5, 8

Boyd v. Bechtel, 485 F. Supp. 610 (N.D. Cal. 1979 )..........................................................................7

Butler v. Home Depot, 1996 U.S. Dist. LEXIS 3370 (N.D. Cal. 1996) ................................  11-12

Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir. 1985) ........................ .......................... 13, 14

Cooper v. Federal Reser\’e Board, 467 U.S. 867 (1984).................................................................  14

Crocket v. Green, 534 F.2d 715 (7th Cir. 1976) ................................................................................ 4

Edmondson v. Simon, 86 F.R.D. 375 (N.D. 111. 1980)................................................................... 7 9

Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) .....................................................................  10

Fontana v. Elrod, 826 F.2d 729 (7th Cir. 1987) .......................................................................... 9 12

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)...................................................... 4 5

Gasoline Products Co., Inc. v. Champlin Refining Co., 283 U.S. 494 (1931) ............................  12

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981).......................................................................... 4

Hoffman v. Honda o f  America, 1999 U.S. Dist. LEXIS 16553 (S.D. Ohio 1999) ...................... 11

Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983 ).................................................. 10

-ii-



. 13

13

13

12

12-

11

. 7

13

. 5

. 8

.4

.4

11

10

,5

13

11

-6

12

5

Houseman v. United States Aviation Underwriters, 171 F.3d 1117 (7th Cir. 1999)

In re Innotron Diagnostics, 800 F.2d 1077 (Fed. Cir. 1986).....................................

In re Paoli R.R. Yard, 113 F.3d 444 (3rd Cir. 1997)..................................................

In re Rhone-Poulenc Inc., 51 F.3d 1293 (7th Cir. 1995)

International Bhd. o f  Teamsters v. United States, 431 U.S. 324 (1977)

Jefferson v. Ingersoll Intern. Inc., 195 F.3d 894 (7th Cir. 1999)..............................

Johnson v. Railway Express Agency, 421 U.S. 454 (1975)

King v. General Elec. Co., 960 F.2d 617 (7th Cir. 1992) .........................................

Kolstad v. American Dental 'n, 119 S. Ct. 2118 (1999)

Lowery’ v. Circuit City’ Stores, Inc., 158 F.3d 742 (4th Cir. 1998)............................

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995)

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) ................. ..........

Orlowski v. Dominick’s Finer Foods, 172 F.R.D. 370 (N.D. 111. 1997)

Probe v. State Teachers ’ Retirement Systems, 780 F.2d 776 (9th Cir. 1986)

Sledge v. J.P. Stevens & Co., 585 F.2d 625 (4th Cir. 1978) .......................................

Stewart General Motors Corp., 542 F.2d 445 (7th Cir. 1976)................................

Warned v. Ford Motor Company, 189 F.R.D. 383 (N.D. 111. 1999)

Wetzel v. Liberty Mutual Insurance, 508 F.2d 239 (3rd Cir. 1975)............................

Williams v. Burlington Northern, 832 F.2d 100 (7th Cir. 1987)

Wright v. Universal Maritime, 119 S. Ct. 391 (1998)

-in-



FEDERAL STATUTES

Civil Rights Act of 1991, P.L. 102-166......................................................................................passim

Pub. L No. 102-166, 105 Stat. 1071 ............................................................................................... 5, 7

42 U.S.C. 2000e-2(n) (1 9 9 1 )...................................................................................................... 7

OTHER AUTHORITIES

H.R. Rep. No. 102-40(1), reprinted in 1991 U.S.C.C.A.N. (105 Stat................................................7

S. Rep. No. 415, 92d Cong., 1st Sess., 27 (1 9 7 2 )................................................................................ 5

Subcommittee on Labor, Legislative History of the Equal Employment Opportunity Act 
OF 1972, 92d Cong......................................................................................................................... 6

RULES

Fed. R. Civ. P. 23(b)(2) .............................................................................................................. passim

Fed. R. C iv. P. 23(b)(2) advisory committee’s note, 39 F.R.D. 69, 102-03 (1966)...................  5, 9

Fed. R. C iv. P. 23(b)(3) ..................................................................................................................... 10

-iv-



Statement of Interest of Amici Curiae

The NAACP Legal Defense and Educational Fund, Inc. ("the Legal Defense Fund") is a non­

profit corporation that was established for the purpose o f assisting African Americans in securing 

their constitutional and civil rights. The Supreme Court has noted the Legal Defense Fund's 

"reputation for expertness in presenting and arguing the difficult questions of law that frequently 

arise in civil rights litigation." NAACP v. Button, 371 U.S. 415, 422 (1963). The Legal Defense 

Fund has taken a leading role in the development of the law of employment discrimination under 

Title VII of the Civil Rights Act of 1964 and other statutes, acting as counsel in many of the leading 

cases brought under these statutes. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971); 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Albemarle Paper Co. v. Moody, 422 U.S. 

405 (1975); and McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).

The Legal Defense Fund has a particular interest in the issue of certification of class actions 

in employment discrimination cases, since it has for many years specialized in bringing class actions 

in EEO cases and has been involved in many of the leading cases regarding class certification and 

the rights o f class members. See. e.g., Coopery. Federal Reserve Board, 467 U.S. 867(1984); Gulf 

Od Co. v. Bernard, 452 U.S. 89 (1981); Franks v. Bowman Transportation Co., 424 U.S. 747 

(1976); Albemarle Paper Co. v. Moody, supra; Bazcmore v. Friday, 848 F.2d 476 (4th Cir. 1988).

The Chicago Lawyers' Committee was founded in 1969 as a cooperative effort of Chicago's 

major law firms to ameliorate poverty and discrimination by providing legal assistance to the poor, 

and to members of minority and other disadv antaged groups seeking equal access to employment, 

public accommodations, housing and quality education. The Chicago Lawyers' Committee focuses 

its efforts on civil rights cases and projects that will benefit the community at large. Since its



inception, the Chicago Lawyers' Committee has enlisted the pro bono services of many hundreds of

attorneys from Chicago law firms in addressing a wide range of legal problems, including 

employment discrimination.

2



Summary of Argument

Appellant s argument against class certification of Title VII actions that request injunctive 

relief as well as compensatory and/or punitive damages is wholly inconsistent with the explicit 

purposes of Title VII and of the Civil Rights Act of 1991, P.L. 102-166. Congress has long endorsed 

the use of class actions as a mechanism for redressing systemic employment discrimination and has 

forcefully rejected attempts to limit the availability of the class action mechanism. The 1991 Act, 

in allowing plaintiffs to recover both compensatory and punitive damages, sought to expand the 

arsenal o f remedies available to plaintiffs, and contains no hint that the use of class actions should 

in any way be curtailed. Not only would the interpretation urged by Appellants do violence to the 

purposes of Title VII and the 1991 Act, but it contravenes the plain language of Federal Rule of Civil 

Procedure 23. Specifically, nothing in 23(b)(2) forbids class certification for injunctive relief actions 

that also seek compensatory and punitive damages, and, to the extent that the Fifth Circuit’s decision 

in Allison v. Citgo Petroleum, 151 F.3d 402 (5,h Cir. 1998), adopts a blanket rule to the contrary, that 

decision should be rejected by this Court. Finally, damages actions certified under Rule 23(b)(2) 

can be managed by employing the bifurcated framework of International Bhd. o f  Teamsters v. 

United States, 431 U.S. 324 (1977), commonly used in employment discrimination cases. Because 

such a framework does not require the jury deciding damages to revisit any issues decided by the 

first jury in determining liability, it does not offend the Seventh Amendment.

3



Argument

A. Denying Class Certification in Actions Seeking Damages as well as Injunctive Relief
Would Undermine the Purposes of Title VII, and Frustrate Attempts to Combat
Employment Discrimination.

Appellant’s argument that cases brought pursuant to Title VII of the Civil Rights Act, in 

which compensatory and/or punitive damages are requested, are unsuitable for class certification 

pursuant to Federal Rule o f Civil Procedure 23 is inconsistent with both the underlying purposes of 

Title VII and the legislative history of the Civil Rights Act of 1991 in particular.

1. Congress Intended to Authorize Class Action Title VII Suits to Achieve the Goals o f  
Eliminating Employment Discrimination and Providing Effective Redress to Victims 
o f Discriminatory Practices as Efficiently as Possible, Without the Necessity o f  
Individual Actions.

Congress designed Title VII to serve the dual purpose of ending systemic employment 

discrimination and providing full relief for all the victims of prohibited discrimination. See 

McKennon v. Nashville Banner, 513 U.S. 352, 358 (1995); Albemarle Paper Company v. Moody, 

422 U.S. 405, 418 (1975). Decisions of the Supreme Court and of the Courts of Appeals, including 

this Court, have recognized the importance of class actions as the most effective means for achieving 

this dual purpose. See, e.g., Gulf Oil v. Bernard, 452 U.S. 89, 99 n.l 1 (1981); Franks v. Bowman 

Transportation, 424 U.S. 747, 771 (1976); Sledge v. J.P. Stevens & Co., 585 F.2d 625, 634 (4th Cir. 

1978), cert, denied, 440 U.S. 981 (1979); Crocket v. Green, 534 F.2d 715, 718 (7th Cir. 1976); 

Wetzel v. Liberty Mutual Insurance, 508 F.2d 239, 250 (3rd Cir. 1975); Bowe v. Colgate-Palmolive, 

416 F.2d 711,719 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 

1968). The consistent theme of these decisions is that relief to all members of a class of persons who

4



have been the victims of employment discrimination is essential both to the vindication of the

important public policies underlying Title VII and to carrying out the goal of making such victims

whole and placing them, to the extent possible, in the same position they would have been in the

absence of discrimination. See Franks, 424 U.S. at 763-64; Sledge, 585 F.2d at 643-44. In recent

years, the Supreme Court has been hostile to attempts by lower courts to cut back the available

remedies, and thus the effectiveness, of Title VII. See, e.g., Kolstadv. American Dental Ass ’n, 119

S. Ct. 2118, 2124 (1999); Wright v. Universal Maritime,119 S. Ct. 391, 396 (19,98).

Class actions have been the primary means of achieving the dual purposes of Title VII. In

that regard, this Court has emphasized that "[a] suit for violation o f Title VII is necessarily a class

action as the evil sought to be ended is discrimination on the basis of a class characteristic." Bowe,

416 F.2d at 719; see also Wetzel, 508 F.2d at 250. Indeed, the specific purpose of section 23(b)(2),

first adopted when Rule 23 of the Federal Rules of Civil Procedure was amended in 1966, was to

facilitate the bringing of class actions in civil rights cases. See Fed. R. Civ. P. 23(b)(2) advisory

committee’s note, 39 F.R.D. 69, 102-03 (1966). Thus, the Advisory Committee's note cites a series

of civil rights decisions as examples of cases intended to be certified under Rule 23(b)(2). Id. at 102.

The 1972 Amendments to Title VII specifically endorsed the use o f class actions in Title VII

cases and rejected proposed efforts to curtail Title VII class actions. See S. Rep. No. 415, 92d Cong.,

Is1 Sess., 27 (1972). The Senate Report stated:

This section [706] is not intended in any way to restrict the filing o f class complaints.
The committee agrees with the courts that title VII actions are by their very nature 
class complaints], and that any restriction on such actions would greatly undermine 
the effectiveness of title VII.

5



Id. at 27. Congress further emphasized that:

[t]he courts have been particularly cognizant of the fact that claims under Title VII involve 
the vindication of a major public interest, and that any action under the Act involves 
considerations beyond those raised by the individual claimant. As a consequence, the 
leading cases in this area to date have recognized that many Title VII claims are necessarily 
class action complaints and that, accordingly, it is not necessary that each individual entitled 
to relief be named in the original charge or in the claim for relief.

Subcommittee on Labor, Legislative History of the Equal Employment Opportunity Act

OF 1972, 92d Cong., at 1773; see also Albemarle, 422 U.S. at 414 n.8 (noting Congress’s explicit

rejection of limitations on class actions in Title VII cases).

2. Congress's Expansion o f Title VII to Allow Compensatory and Punitive Damages 
Does Not Preclude Plaintiffs from Bringing Rule 23 Class Actions.

Appellant’s argument for a blanket prohibition against class actions in Title VII damages

cases also lacks any support in the legislative history of the Civil Rights Act of 1991. There is no

evidence that Congress, in amending Title VII to allow recovery of compensatory and punitive

damages, sought in any way to curtail use of class actions by plaintiffs. To the contrary, Congress’s

clear purpose in passing the 1991 Act was to expand available remedies so that plaintiffs could better

vindicate their rights. See Pub. L No. 102-166, §3, 105 Stat. 1071 (Act’s purpose is “(1) to provide

appropriate remedies for intentional discrimination and unlawful harassment in the workplace.”).

In that regard. Congress not only sought to add compensatory and punitive damages to the arsenal

of a\ailable remedies so that plaintiffs could better “deter unlawful harassment and intentional

discrimination in the workplace,” id. §2, but it also reversed several Supreme Court decisions that

sought to limit the scope of Title VII, § 3. In fact, the only change made by Congress that had any

direct effect on class actions enured to the benefit of civil rights plaintiffs, by limiting collateral

6



attacks on judicial decrees rendered in employment discrimination class actions, see id. §108 

(codified at 42 U.S.C. 2000e-2(n) (1991)).

Moreover, Congress’s clear intent in passing the 1991 Act was to provide victims of 

employment discrimination the same right to compensatory and punitive damages under Title VII 

that had long been provided to plaintiffs under section 1981 pursuant to Johnson v. Railway Express 

Agency, 421 U.S. 454, 460 (1975). See H.R. Rep. No . 102-40(1), reprinted in 1991 U.S.C.C.A.N. 

(105 Stat.) 603. Given that under section 1981, plaintiff classes sought compensatory or punitive 

damage awards — see, e.g., Barefield v. Chevron, 1988 U.S. Dist. LEXIS 15816, at *13, 48 Fair 

Emp. Prac. Case (BNA) 907,910-11 (N.D. Cal. 1988); Boyd v. Bechtel, 485 F. Supp. 610,613 (N.D. 

Cal. 1979); Edmondson v. Simon, 86 F.R.D. 375, 383 (N.D. 111. 1980) — and that Congress sought 

to expand Title VII to allow the same recovery permissible under section 1981, it is inconceivable 

that Congress could have perceived such damage awards to be inconsistent with Rule 23. Certainly, 

nothing in the legislative history of 1991 Act suggests this.

3. Allison v. Citgo Should be Rejected by This Court.

Appellant urges this Court to follow the Fifth Circuit’s recent decision in Allison v. Citgo 

Petroleum, 151 F.3d 402 (5lh Cir. 1998), and adopt a blanket rule prohibiting plaintiffs in Title VII 

cases from seeking both injunctive relief and compensatory damages in a class action. This Court’s 

adoption of such a ruling would have a deleterious effect on the ability of Title VII plaintiffs to 

eradicate employment discrimination by erecting unnecessary barriers to class actions that will have 

a deep and far reaching impact. By imposing this restriction on the scope of class action litigation, 

the ruling in Allison places class-action plaintiffs in the untenable position of choosing either to 

forfeit their right to seek compensatory' damages in order to challenge systemic discrimination, or

7



to pursue "make whole" relief in the form of compensatory damages for themselves while leaving 

institutionalized discrimination intact. This not only bars plaintiffs from exercising their rights to 

the full extent permitted by law but also undermines Congress’s intent that Title VII provide 

effective and complete remedies to victims of employment discrimination.

As discussed above, because "[t]he clear purpose of Title VII is to bring an end to the 

proscribed discriminatory practices and to make whole, in a pecuniary fashion, those who have 

suffered by it, [permitting] only injunctive relief in the class action would frustrate the 

implementation of the strong Congressional purpose expressed in the Civil Rights Act of 1964." 

Bowe, 416 F.2d at 720. Allowing plaintiffs to seek injunctive relief and compensatory damages has 

an obvious connection with this purpose: "If employers faced only the prospect of an injunctive 

order, they would have little incentive to shun practices of dubious legality." Albermarle, 422 U.S. 

at 417.

The effect of the inability of victims of discrimination to pursue both compensatory and 

injunctive relief through class actions is exacerbated by the potential inability o f such victims to 

receive complete relief through individual EEO suits. In Lowery• v. Circuit City/ Stores, Inc., 158 

F.3d 742 (4th Cir. 1998), vacated on other grounds, 119 S. Ct. 2388 (1999), the Fourth Circuit held 

that individual plaintiffs "do not have a private, non-class cause of action for pattern or practice 

discrimination" under Title VII. Id. at 759. Thus, if read in conjunction with Lowery, the rule in 

Allison would prevent Title VII plaintiffs, in any forum, from seeking both compensatory and broad 

injunctive relief and would severely retard Title VII’s ability to end systemic employment 

discrimination and secure full relief for all the victims of discrimination.

8



B. Injunctive Actions Seeking Compensatory and Punitive Damages May be Certified
Under Rule 23(b)(2).

Any suggestion that actions for injunctive relief and damages, as a matter o f law, cannot be 

certified pursuant to Rule 23(b)(2) must also be rejected. Class actions in employment 

discrimination cases have historically been certified under Rule 23(b)(2), because these actions seek 

primarily injunctive and declaratory relief. But even where compensatory and punitive damages are 

sought in addition to equitable relief, Rule 23(b)(2) remains an appropriate vehicle.

By its terms, Rule 23(b)(2) requires only that “final relief of an injunctive nature or a 

corresponding declaratory nature, settling the legality of behavior with respect to the class as a 

whole, [be] appropriate.” Fed. R. Civ. P. 23(b)(2). The accompanying guidance in the Advisory 

Committee notes specify that “[t]he subdivision does not extend to cases in which the appropriate 

final relief relates exclusively or predominantly to money damages.” Fed. R. Civ . P. 23(b)(2) 

advisory committee’s note, 39 F.R.D. at 102. Thus courts allow certification under this subsection 

where declaratory and injunctive relief is the predominant relief requested. See, e.g., Warnell v. 

Ford Motor Company, 189 F.R.D. 383, 388-89 (N.D. 111. 1999); Edmondson v. Simon, 86 F.R.D. 

375, 383 (N.D. 111. 1980). However, nothing in the language of the Rule -  or the Advisory 

Committee notes -  can be read to imply that when damages are sought in addition to declaratory or 

injunctive relief Rule 23(b)(2) certification is inappropriate. See Fontana v. Elrod, 826 F.2d 729, 

732 (7!h Cir. 1987) (approving class certification procedures in 23(b)(2) action requesting punitive 

damages); Edmondson, 86 F.R.D. at 383 (certifying class requesting compensatory and punitive 

damages under section 1981). As the Ninth Circuit held in the context of a request for legal damages 

in a case brought under both the Equal Pay Act and Title VII, “Rule 23(b)(2) is not limited to actions

9



requesting only injunctive or declaratory relief, but may include cases that also seek monetary 

damages” Probe v. State Teachers ’ Retirement Systems, 780 F.2d 776, 780 (9th Cir.) (emphasis 

added), cert, denied, 476 U.S. 1170 (1986); see also Holmes v. Continental Can Co., 706 F.2d 1144, 

1152 (11th Cir. 1983). In fact, courts in employment discrimination cases have long permitted 

certification under this rule even where substantial — and often complicated — monetary relief 

remains a significant part of the remedy. See, e.g., Eubanks v. Billington, 110 F.3d 87, 95- 97 (D.C. 

Cir. 1997); Alaniz v. California Processors, 73 F.R.D. 269, 281-86 (N.D. CaL 1976); see also 

Stewart v. General Motors Corp., 542 F.2d 445, 451-54 (7th Cir. 1976) (discussing mechanics of 

awarding classwide backpay).

Appellant’s argument that injunctive actions that include requests for compensatory and 

punitive damages will always be inappropriate for Rule 23(b)(2) certification— and indeed for 

certification under 23(b)(3)— should be rejected. For this argument, Appellant again places great 

reliance on the Fifth Circuit’s singular decision in Allison v. Citgo Petroleum. As an initial matter, 

the contours of the Allison decision itself are not clear. While Appellant interprets the Fifth Circuit 

to announce a blanket rule that actions for compensatory and punitive damages are not proper 

23(b)(2) actions, the Allison Court simply expounds, in much of its opinion, on the unremarkable 

proposition that 23(b)(2) certification is inappropriate where requests for money damages are the 

predominant relief sought. See, e.g., 151 F.3d at 414-17. The Allison Court, consistent with the 

ruling of other courts, leaves the determination of whether a “given monetary remedy qualifies as 

incidental damages to the discretion of the trial court. See id. at 416 (“We recognize that, as a 

matter of degree, whether a given monetary remedy qualifies as incidental damages will not always 

be a precise determination . . . .  The district courts, in the exercise o f their discretion, are in the best

10



position to assess whether a monetary remedy is sufficiently incidental to a claim for injunctive or 

declaratory relief to be appropriate in a (b)(2) class action.”).

The Allison court’s subsequent determination that (b)(2) and (b)(3) certification were 

inappropriate stemmed in substantial part from the difficulty of determining damages in the case 

before it — one which called for the certification of a class o f a “thousand potential plaintiffs spread 

across two separate facilities, represented by six different departments, challenging various policies 

and practices over a period of nearly twenty years.” Id. at 417; see also id. at 419-20. Moreover, 

the Fifth Circuit on rehearing maintained that the panel majority’s decision was not even about rule 

23. According to the Court, “[t]he trial court utilized consolidation under rule 42 rather than class 

certification under rule 2j> to manage this case. We review that decision for abuse of discretion and 

we find no abuse in this case.” Id. at 434. Thus, the Allison court’s pronouncements on Rule 23 

appear to be dicta with no precedential value in the Fifth Circuit, much less in other Circuits.

This Court’s recent query in Jefferson v. Ingersoll Intern. Inc., 195 F.3d 894, 897-98 {7th Cir.

1999) as to whether 23(b)(2) certification is ever appropriate for actions that request both injunctive 

relief and damages should thus be answered in the affirmative. As explained above, a blanket rule 

that any request for compensator)' and punitive damages — or at least one that might necessitate 

bifurcation — is inconsistent with Rule 23(b)(2), is not supported by either the language of Title VII 

or the language of Rule 23 . And, contrary to Appellant’s assertions, most courts that have addressed 

the issue have declined to adopt such a rule. See. e.g.. Hoffman v. Honda o f  America, 1999 U.S. 

Dist. LEXIS 16553, at *2-25 (S.D. Ohio 1999); Warnell v. Ford Motor Co., 189 F.R.D. 383, 389 

(N.D. 111. 1999); Orlowskiv. Dominick's Finer Foods, 172 F.R.D. 370, 374 (N.D. 111. 1997); Butler

11



V. Home Depot, 1996 U.S. Dist. LEXIS 3370, at *13-15 (N.D. Cal. 1996); Arnold v. United Artists 

Theatre Circuit, 158 F.R.D. 439, 464 (N.D. Cal. 1994).

Finally, it is worth noting that if a class is certified under Rule 23(b)(2), a court has power 

under Rule 23(d) to require the provision of notice to class members to inform them of their 

individual monetary claims. See Williams v. Burlington Northern, 832 F.2d 100, 103-04 (7th Cir. 

1987); Elrod, 826 F.2d at 732. In any event, the provision o f notice is not at issue in this case: 

Plaintiff-Appellees have agreed to provide notice and opt-out rights to class mpmbers. Brief of 

Appellees, at 21.

C. Bifurcation of Liability and Damages Claims Does Not Offend The 7th Amendment.

Plaintiff-Appellees’ suggestion that the liability phase of this case be tried to a jury and that, 

if necessary, a second jury try the damages claims, does not offend the Constitution. Bifurcation 

of liability and damages phases of trial, approved in International Bhd. o f  Teamsters v. United 

States, 431 U.S. 324, 361 (1977), has long been the procedure for adjudicating classwide and 

individual relief claims in employment discrimination contexts. Under Teamsters, at the liability 

stage, the plaintiff class has the burden of showing that the employer has engaged in a regular 

practice of discrimination, after which classwide injunctive relief may be ordered. Id. at 361. To 

get individual relief, the trial court “must usually conduct additional proceedings after the liability 

phase,” at which point the burden then rests on the defendant to show that “the individual applicant 

was denied an employment opportunity for lawful reasons.” Id. at 361-62. To the extent that the 

classwide liability claims and the class members' damages claims may depend on common issues 

of fact, the court must simply instruct the jury in the second stage not to revisit the issues decided 

in the first phase. See Gasoline Products Co.. Inc. v. Champlin Refining Co., 283 U.S. 494, 497-99

12



(1931 );see also In re Rhone-PoulencInc., 51 F.3d 1293,1303 (7th Cir. 1995). Courts have routinely 

applied this procedure in employment discrimination class actions. See, e.g., King v. General Elec. 

Co., 960 F.2d 617, 621-24 (7th Cir. 1992)\ Coates v. Johnson & Johnson, 756 F.2d 524, 533 (7th Cir. 

1985); Stewart v. General Motors Corp., 542 F.2d 445, 451 (7th Cir. 1976) (employing Teamsters 

framework), cert, denied, 433 U.S. 919 (1977).

This practice does not offend a defendant’s Seventh Amendment right to a fair trial, which 

only forbids separatejuries from examining the same issue. See Houseman v. United States Aviation 

Underwriters, 171 F.3d 1117, 1126 (7th Cir. 1999); see also Champlin, 284 U.S. at 499. In a Title 

VII action for compensatory damages, the issue of whether the employee has been “actually injured” 

by an unlawful discriminatory policy does not, given proper instructions by the judge, require ajury 

to revisit the question of whether the defendant in fact has a discriminatory policy. See Butler v. 

Home Depot, 1996 U.S. Dist. LEXIS 3370. at *16 (N.D. Cal. 1996) (bifurcation of class liability and 

individual damage claims does not offend Seventh Amendment); see also Allison, 151 F.3d at 433 

(Dennis, J., dissenting) (where the court clearly instructs the second jury not to revisit issues decided 

by the jury in the first phase, the Seventh Amendment is not violated). That separatejuries may 

consider “overlapping evidence” does not offend the Constitution, see Houseman, 171 F.3d at 1126, 

nor does the fact that some of the same evidence must be presented, as long as the two juries don’t 

decide the same essential issues. See In re Paoli R.R. Yard, 113 F.3d 444, 452-53 n.5 (3rd Cir. 

1997); In re Innotron Diagnostics, 800 F.2d 1077, 1086 (Fed. Cir. 1986).

In the final analysis, the Seventh Amendment concern raised by Appellant is essentially a 

red herring: it is difficult to see how an adjudication of the individual claims for damages in a 

proceeding by a second jury could unfairly benefit any party but the employer. If the jury fails to

13



find classwide liability, the individual claimants are bound by the ruling that the employer did not 

engage in a pattern and practice of discrimination in any subsequent litigation, see Cooper v. Federal 

Reserve Bank o f  Richmond, 467 U.S. 867 (1984); Coates, 756 F.2d at 553. Conversely, if the jury 

does find classwide liability, a jury that were to unconstitutionally reexamine the determination of 

a discriminatory employment pattern decided in the first phase of trial would be likely to conclude 

that none of the individual plaintiffs were actually injured, in which case the employer, again, would 

benefit.
*

CONCLUSION

Amici respectfully urge this Court to reject a rule prohibiting Rule (23)(b)(2) class 

certification in Title VII actions in which compensatory and punitive damages are requested, and to 

affirm the District Court’s grant of class certification in this case.

14



January 25, 2000

Respectfully submitted,

Clyde E. Murphy

Chicago Lawyers Committee for Civil 
Rights Under Law , Inc.

100 N. LaSalle Street 
Chicago, IL 60602 
(312) 630-9744

Elaine R. Jones 
Director-Counsel 

Norman J. Chachkin

Olatunde C.A. Johnson 
DeborahN. Archer 
NAACP Legal Defense 

& Educational Fund 
99 Hudson Street, 16th Fl. 
New York, NY 10013 
(212)965-2200

Attorneys for Amici Curiae

15



CERTIFICATE OF SERVICE

I hereby certify that copies of the accompanying Motion fo r  Leave to File B rief as Amicus 

Curiae and Brief o f  Amici Curiae NAACP Legal Defense & Educational Fund and Chicago 

Lawyer s Commiteefor Civil Rights In Support o f Plaintiff-Appellees have been served by depositing 

same in the United States mail, first class postage prepaid, on January 25, 2000 to the following:

Marianne Goldstein Robbins 
John J. Brennan
Previant, Goldberg, Uelmen, Gratz 
Miller, & Brueggeman, s.c.
1555 N. RiverCenter Drive, Suite 202 
P.O. Box 12993 
Milwaukee, WI 53212

Charles Barnhill, Jr.,
Miner, Barnhill & Galland, P.C 
64 East Mifflin St., Suite 803 
Madison, WI 53703

Judson Miner
Miner, Barnhill & Galland, P.C. 
14 West Erie Street 
Chicago, IL 60610

OLATUNDE C.A. JOHNSON