139 F.R.D. 657 (D.Minn. 1991), Civ. 5-88-163, Jenson v. Eveleth Taconite Co.

Docket Nº:Civ. 5-88-163.
Citation:139 F.R.D. 657
Opinion Judge:ROSENBAUM, District Judge.
Party Name:Lois E. JENSON, Patricia S. Kosmach, and Kathleen O'Brien Anderson, on their own behalf and on behalf of all others similarly situated, v. EVELETH TACONITE COMPANY, Eveleth Expansion Company, Oglebay Norton Company, and Oglebay Norton Taconite Company, doing business as Eveleth Mines, and the United Steel Workers of America, Local 6860.
Attorney:Paul C. Sprenger, Sprenger & Lang, Minneapolis, Minn. and Jane Lang, Sprenger & Lang, Washington, D.C., for plaintiffs. Raymond L. Erickson, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, Duluth, Minn., for defendants Eveleth Expansion, Eveleth Taconite, Oglebay Norton, and Oglebay Norton Tacon...
Case Date:December 16, 1991
Court:United States District Courts, 8th Circuit, District of Minnesota
 
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Page 657

139 F.R.D. 657 (D.Minn. 1991)

Lois E. JENSON, Patricia S. Kosmach, and Kathleen O'Brien Anderson, on their own behalf and on behalf of all others similarly situated,

v.

EVELETH TACONITE COMPANY, Eveleth Expansion Company, Oglebay Norton Company, and Oglebay Norton Taconite Company, doing business as Eveleth Mines, and the United Steel Workers of America, Local 6860.

Civ. No. 5-88-163.

United States District Court, D. Minnesota, Fifth Division.

December 16, 1991

Female employees sought certification of class alleging discrimination on basis of gender and sought preliminary injunction directing employer to adopt and enforce policy for prevention of sexual harassment. The District Court, Rosenbaum, J., held that: (1) class would be certified consisting of all women who had applied for, or been employed in, hourly positions anytime since filing of Equal Employment Opportunity Commission (EEOC) complaint and to have been, were being, or, as a result of operation of current practices, would be discriminated against with regard to terms and conditions of their employment because of gender, and (2) female employees were not entitled to preliminary injunction.

Motions granted in part and denied in part.

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Paul C. Sprenger, Sprenger & Lang, Minneapolis, Minn. and Jane Lang, Sprenger & Lang, Washington, D.C., for plaintiffs.

Raymond L. Erickson, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, Duluth, Minn., for defendants Eveleth Expansion, Eveleth Taconite, Oglebay Norton, and Oglebay Norton Taconite.

John G. Engberg, Peterson, Engberg & Peterson, Minneapolis, Minn., for defendant United Steel Workers Union.

ORDER

ROSENBAUM, District Judge.

Plaintiffs in this putative class action lawsuit move for class certification, pursuant to Rule 23, Federal Rules of Civil Procedure (Fed.R.Civ.P.), alleging discrimination on the basis of gender, in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Minnesota Human Rights Act,

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Minnesota Statutes, §§ 363.01-.15.1 At the same time, plaintiffs seek a preliminary injunction directing defendants to adopt and enforce a policy for the prevention of sexual harassment. Finally, plaintiffs move to consolidate consideration of the class issues with trial on the merits.2 The Court heard this matter over the course of seven days between May 13, 1991, and June 3, 1991.

For the reasons set forth herein, plaintiffs' motion is granted in part and denied in part.

I. Background

The named defendants include Eveleth Taconite Company, Eveleth Expansion Company, Oglebay Norton Company, and Oglebay Norton Taconite Company (collectively, " Eveleth Mines" ). Eveleth Mines owns and conducts a taconite mining operation in Eveleth, Minnesota. Defendant United Steel Workers of America is the certified bargaining representative of a unit of Eveleth Mines employees. Plaintiffs press no separate claims against the union which is joined as a defendant for the sole purpose of obtaining full equitable relief. Amended Complaint, at 3.

Plaintiff Lois Jenson was hired by Eveleth Mines in March, 1975, and remains employed there to this date. Plaintiff Kathleen O'Brien Anderson was hired at Eveleth Mines in July, 1976, and continues her employment today. Plaintiff Patricia Kosmach was employed at Eveleth Mines from January, 1976, through October, 1988. All three women worked as laborers.

Plaintiffs charge that Eveleth Mines engages in a pattern of discriminatory practices, including discrimination in hiring, job assignment, discipline, promotion, and compensation.3 Plaintiffs also allege gender discrimination based on environmental sexual harassment— a hostile work environment. Plaintiffs seek damages, injunctive relief, and attorneys' fees.

II. Analysis— Class Action Motion

Pursuant to Rules 23(a) and 23(b)(2), Fed.R.Civ.P., plaintiffs seek to certify and represent a class of:

All women who have been employed by, applied for employment with, or were deterred from applying for employment with Eveleth Mines at any time since December 30, 1983, or who may in the future be employed by or apply for employment with Eveleth Mines, and who have been, are being, or as the result of the operation of current practices, will be discriminated against in hiring and with regard to the terms and conditions of their employment because of their sex.

Plaintiff's Motion to Certify the Class, at 2.

As the party seeking certification, plaintiffs bear the burden of showing that Rule 23's prerequisites have been satisfied. Smith v. Merchants & Farmers Bank, 574 F.2d 982, 983 (8th Cir.1978). The Court may certify a class action only if it is satisfied " after rigorous analysis," that the prerequisites have been fulfilled. General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). The Court may also certify a class as to one or more claims without certifying the entire complaint. Fed.R.Civ.P. 23(c)(4).

As a preliminary matter, plaintiffs must establish that a defined class exists and that the class representatives fall within the class. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977);

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Roby v. St. Louis Southwestern Ry. Co., 775 F.2d 959, 961 (8th Cir.1985). If these implicit requirements are fulfilled, plaintiffs must satisfy the explicit requirements of Rule 23 and show:

1) numerosity— the class is so numerous that joinder of all members is impracticable;

2) commonality— there are questions of law or fact common to the class;

3) typicality— the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

4) adequacy— the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a)(1)-(4).

Finally, plaintiffs must demonstrate that their action falls within one of the three categories listed in Rule 23(b). Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 163, 94 S.Ct. 2140, 2145-46, 40 L.Ed.2d 732 (1974). Here, plaintiffs seek certification under 23(b)(2), which requires that:

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....

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

A. Implicit Criteria

1. Defined Class:

To satisfy the implicit requirements of Rule 23, plaintiffs must bridge the " wide gap" between individual claims and class-wide claims. Falcon, 457 U.S. at 157-58, 102 S.Ct. at 2370-71. Here, plaintiffs must make an affirmative showing, beyond their individual claims, that discrimination has been suffered by the proposed class. Chaffin v. Rheem Manufacturing Co., 904 F.2d 1269, 1276 (8th Cir.1990).

Plaintiffs' complaint alleges gender discrimination in hiring and in various terms and conditions of employment, and by the existence of a hostile work environment. In support of their motion, plaintiffs offered statistical, affidavit, deposition, and in-court testimony. The Court will address each set of claims individually.

a. Failure to Hire:

Plaintiffs submitted statistical evidence that women were not hired at Eveleth Mines because of their gender. The evidence showed, for example, that Eveleth Mines hired 159 people into non-temporary hourly jobs between 1981 and 1990. Two of those hired, 1.3%, were women.4 Of the 47 people hired as laborers, one was a woman. Plaintiffs then offered data to demonstrate that, in the absence of gender-based discrimination, and depending on the available " hiring pool," 5 Eveleth Mines would have hired from 8 to 13 women as laborers during that period.

Plaintiffs also submitted anecdotal evidence that the application and hiring procedures at Eveleth Mines were predominantly subjective. The evidence showed that Eveleth Mines obtains prospective employees from walk-ins and direct referrals made by incumbent employees, the vast majority of whom are male. Little or no advertising is done for job openings. Hiring decisions are made by the personnel office using no written guidelines to evaluate relevant experience, education, or training. In plaintiffs' view, this subjective process is susceptible to gender bias.6

Defendants challenged plaintiffs' statistical analysis, claiming gender was not a factor in the hiring decisions made at Eveleth

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Mines. 7 At this threshold stage, however, the Court does not require certain proof of the merits of plaintiffs' claims. Eisen, 417 U.S. at 177, 94 S.Ct. at 2152. For certification purposes, the Court is simply concerned with whether a class exists. Based on plaintiffs' preliminary showing of significant under-representation of women in the workforce at Eveleth Mines and the subjective nature of the hiring process, the Court finds that a defined class of female job applicants exists.

b. Terms and Conditions of Employment:

Plaintiffs claim that Eveleth Mines discriminated against women in a number of terms and conditions of employment, including job assignment, discipline, promotion, and compensation.

Plaintiffs produced affidavits and testimonial evidence to support their allegations that women are not promoted,8 are discouraged from obtaining training for higher paying skilled jobs,9 are assigned less desirable duties,10 and are disciplined more harshly than male employees.11 Plaintiffs claim that, partially as a result of these practices, women, as a group, are paid less than men at Eveleth Mines. 12

Defendants admit the facts of many of these assertions, but state that...

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