390 F.3d 695 (11th Cir. 2004), 03-12230, Cooper v. Southern Co.

Docket Nº:03-12230.
Citation:390 F.3d 695
Party Name:Cornelius COOPER, Michael Edwards, et al., Plaintiffs-Appellants, v. SOUTHERN COMPANY, Georgia Power Company, et al., Defendants-Appellees.
Case Date:November 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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390 F.3d 695 (11th Cir. 2004)

Cornelius COOPER, Michael Edwards, et al., Plaintiffs-Appellants,


SOUTHERN COMPANY, Georgia Power Company, et al., Defendants-Appellees.

No. 03-12230.

United States Court of Appeals, Eleventh Circuit

November 10, 2004

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Steven Jason Rosenwasser, Michael B. Terry, Joshua F. Thorpe, Emmet J. Bondurant, Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for Plaintiffs-Appellants.

W. Christopher Arbery, Eric Jon Taylor, Hunton & Williams, W. Ray Persons, King & Spalding, LLP, Richard Gerakitis, Stephen W. Riddell, Ashley Z. Hager, Troutman Sanders, LLP, Sheldon W. Snipe, BellSouth Corp. Legal Dept., Atlanta, GA, for Defendants-Appellees.

Dori K. Berstein, U.S. E.E.O.C., Pamela Coukos, Mehrl & Skalet, PLLC, Washington, DC, Robert F. Childs, Jr., Wiggins, Childs, Quinn & Pantazis, Birmingham, AL, for E.E.O.C., Amicus Curiae.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, CARNES and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Cornelius Cooper and six other plaintiffs appeal from the district court's orders denying class certification in their employment discrimination suit and entering final summary judgment in favor of the defendants, the Southern Company, Georgia Power Company, Southern Company Services, Inc., and Southern Company Energy Solutions, Inc. Seven current or former employees 1 of the various defendants brought this putative class action, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981 ("Section 1981"). The plaintiffs claimed discrimination in promotions and compensation, and sought declaratory and injunctive relief, back pay, and compensatory and punitive damages. After denying class certification, the district court entered seven separate orders of summary judgment in favor of the defendants.

After painstaking review of the record, as well as careful consideration of the briefs and oral argument, we conclude that the district court did not abuse its discretion in denying class certification, because the plaintiffs demonstrated neither that they had satisfied the commonality and typicality requirements of Federal Rule of Civil Procedure 23(a), nor that damages were incidental to equitable and declaratory relief or that common questions of law or fact predominated, as required under Federal Rule of Civil Procedure 23(b) (2) or (b) (3).

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In addition, we are persuaded by none of the plaintiffs' arguments regarding the individual summary judgment orders and, accordingly, affirm in all respects the judgments of the district court.


The complex facts and procedural history underlying this appeal are these. Seven African-American past or present employees of the defendant companies filed suit on July 27, 2000, alleging that the Southern Company and several of its subsidiaries--Georgia Power Company, Southern Company Services, Inc. and Southern Company Energy Solutions, Inc.--unlawfully discriminated against their employees on account of race. 2 The plaintiffs alleged that the defendants discriminated against them in connection with promotion opportunities and performance evaluations, as well as in terms of compensation, and claimed that the defendants tolerated a racially hostile working environment. Notably, the plaintiffs sought to represent a Rule 23 class that they described in the following terms:

All African-American persons employed by Southern Company's Corporate Office, Georgia Power Company, Southern Company Services, Inc. or Southern Company Energy Solutions, Inc., in the United States at any time from July, 1998 to the present, who are subject to the Defendants' employment, personnel and human resources policies and practices and who have been, continue to be, or may in the future be adversely affected by the Defendants' racially discriminatory employment policies and practices ("the Class").

Cooper v. Southern Co., 205 F.R.D. 596, 598-99 (N.D.Ga.2001). At the time suit was filed, the proposed class included approximately 2,400 individuals residing in Georgia, Alabama, Florida, and Mississippi, and working at locations dispersed throughout the four states. The proposed class consisted of entry-level manual laborers and skilled professionals, among others, and encompassed exempt, non-exempt, 3 unionized and non-unionized workers.

In essence, the plaintiffs maintain that the various defendant companies share a common system for personnel decision-making, which constitutes a "common policy or practice" that is appropriately challenged on a class-wide basis. Specifically, plaintiffs say that there are "common promotion and compensation policies and practices, which give managers unfettered discretion to make subjective, non-job-related decisions." Appellants' Brief at 2. According to plaintiffs, these "common policies and practices ... foster a pattern or practice of race discrimination or have a disparate impact on black employees," id., and plaintiffs sought to redress the claimed wrongdoing in the form of a class action.


The defendants include four companies that provide a wide range of energy-related products and services throughout the

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southeastern United States. The Southern Company ("TSC") is a holding company that itself has no employees, but which owns stock in the other defendant companies, all Southern Company subsidiaries. TSC is a Delaware corporation that is domesticated under the laws of Georgia and maintains its corporate headquarters in Atlanta, Georgia. In addition, TSC is the corporate parent of various other utility companies not directly involved in the lawsuit.

Georgia Power Company ("GPC") is the Southern Company's largest subsidiary, and provides electricity to approximately 1.9 million customers in 153 of Georgia's 159 counties. GPC employs approximately 9,000 employees in the state of Georgia, some 44% of whom are covered by a collective bargaining agreement ("CBA") with the International Brotherhood of Electrical Workers ("IBEW"), Local No. 84. GPC's operations are extremely diversified, and its facilities, workforce, and management are dispersed across the entire state of Georgia. Certain functions within GPC are divided among different regions in the state, and widely divergent operating and management structures exist within different regions. Thus, for example, GPC's Customer Operations function across 16 regions that have very different workforces. The expansive and rural Southeast Region has very different characteristics with respect to technology, customer service, and distribution capacity than does the metropolitan Atlanta region, a dense and highly-populated area that includes numerous commercial clients.

Southern Company Energy Solutions ("SCES"), in turn, is a non-regulated, non-utility subsidiary of the Southern Company that develops for sale various energy-related products and services. SCES consults with commercial and industrial clients on energy efficiency, provides energy efficiency and environmental programs and services, and offers other services to commercial and residential customers. Most of the fewer than 300 employees employed by SCES are exempt employees whose compensation is determined by sales commissions; none of SCES's employees is a member of a union.

Finally, Southern Company Services ("SCS") provides the other defendants with human resources services and administers common compensation and promotion policies. SCS also provides various public relations and employee relations services to the other defendant companies. SCS employs approximately 3,500 non-unionized employees who work primarily in Georgia and Alabama, although they also coordinate services in Mississippi, Florida, New York, and Washington, D.C.

The differences in management structures, working environments, and criteria for employment decisions vary substantially among the defendant companies. The promotion and compensation decisions affecting laborers involved in electrical power transmission and distribution, for example, take into account very different criteria than do decisions involving the professional and managerial ranks of the companies. Similarly, the more than 200 locations in which employees of the different defendants work are spread throughout a widely dispersed geographical area and encompass an extremely diverse range of working environments.

While the operations and workforces of the defendant companies are substantially different, they are linked in several ways. All the defendants maintain a common job, salary, and pay-grade system that dictates salary ranges for both exempt and non-exempt employees. Non-exempt employees are classified from grade NE1 through NE9; exempt employees are classified at grades E1 through E15. Salary ranges

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for each grade vary significantly. 4 While the same pay-grade system is used within all of TSC's subsidiaries, the workforces within the different companies are strikingly different. Not every position exists in every company, and in some subsidiaries the job responsibilities for a given position differ greatly from the responsibilities for the same position in another subsidiary. Job positions may also correspond to different pay-grade ranges within different subsidiaries.

The terms of compensation for unionized workers are strictly governed by the terms of the CBA, giving managers precious little discretion over salary and similar issues. For non-unionized workers, hiring and promotion decisions are made by managers of various rank based in geographically dispersed facilities within each of the...

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