Personal Anecdotes and Perceived Disparity in the Workplace Insufficient to Certify a Class Action
A federal judge in Kentucky recently ruled that anecdotal accounts alone cannot support a class claim of discrimination without “substantial statistical evidence of company-wide discrimination.” Freeman v. Delta Air Lines, No. 2:15-cv-160 (WOB-CJS) (E.D. Ky. June 14, 2019).
Federal District Judge William O. Bertelsman denied class certification to a putative class of six African-American part-time baggage handlers for Delta Airlines at the Cincinnati-Northern Kentucky International Airport (“CVG”). The plaintiffs alleged hostile work environment on the basis of racial harassment, race discrimination based on disparate impact and disparate treatment, and retaliation for complaining about discrimination and filing EEOC charges. They sought front and back pay, punitive damages, a declaratory judgment and a permanent injunction for roughly 36 part-time African-American “Ready-Reserve” baggage handlers, ground equipment maintenance workers, and ramp employees employed by Delta Airlines in Hebron, Kentucky.
The Court denied class certification because, among other things, the plaintiffs failed to provide adequate statistical evidence from the putative class over the class period to support their across-the-board theory of discrimination. “Plaintiffs have not directed the Court to a case where an employment discrimination class action was certified based solely on anecdotal evidence.”
The Court found that plaintiffs failed to establish several of the requirements for class certification, including class representative standing; commonality; typicality; and adequacy-of-representation. Further, the Court stated it was not convinced that certification would be appropriate under either Rule 23(b)(2) or (b)(3). The Court held that Rule 23(b)(2) did not apply to these claims because each individual class member would be entitled to a different injunction or declaratory judgment against Delta. The Court also found plaintiffs failed to satisfy Rule 23(b)(3) as they did not show through reliable statistical evidence that they could produce a common answer to the crucial question of why each plaintiff was individually disfavored and because their allegations involved various managers who exercised discretion over six years. The Court was not impressed with plaintiffs’ statistics expert who only examined data for two of the six years requested by plaintiffs in the class period resulting in a meager sample size (14 and 11 disciplinary corrective actions in 2013 and 2014, respectively).
Ultimately, the Court found that mini-trials would be inevitable even if plaintiffs had presented probative statistical evidence to make a prima facie case of discrimination applicable to every class member. It also found that individual damages calculations would inevitably overwhelm questions common to the class, because the plaintiffs would not be able to prove damages on a class-wide basis. Therefore, the Court denied plaintiffs’ motion to certify the case as a class action.