Carpenter v. Boeing Co.

• Decision Date: 07 August 2006
• Docket Number: No. 04-3351.,No. 04-3334.,No. 04-3350.,No. 04-602.,04-3334.,04-3350.,04-3351.,04-602.
• Citation: 456 F.3d 1183
• Parties: Karla CARPENTER; Linda Wilkerson; Sheryl Landon; Sandy Wilcynski; Sonya Phillips; Charlene Chapman; Cheryl Lee Persinger; Nena Holder; Ruby Ryherd, individually & on behalf of all others similarly situated; Mary Dean; Faith Bridgewater; Verlene Maholmes, individually, Plaintiffs-Appellants/Cross-Appellees, v. The BOEING COMPANY, Defendant-Appellee/Cross-Appellant. Karla Carpenter; Linda Wilkerson; Sheryl Landon; Sandy Wilcynski; Sonya Phillips; Charlene Chapman; Cheryl Lee Persinger; Nena Holder; Ruby Ryherd, individually, and on behalf of all other persons similarly situated, Petitioners, v. The Boeing Company, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.3d 1183

Karla CARPENTER; Linda Wilkerson; Sheryl Landon; Sandy Wilcynski; Sonya Phillips; Charlene Chapman; Cheryl Lee Persinger; Nena Holder; Ruby Ryherd, individually & on behalf of all others similarly situated; Mary Dean; Faith Bridgewater; Verlene Maholmes, individually, Plaintiffs-Appellants/Cross-Appellees, v. The BOEING COMPANY, Defendant-Appellee/Cross-Appellant.

Karla Carpenter; Linda Wilkerson; Sheryl Landon; Sandy Wilcynski; Sonya Phillips; Charlene Chapman; Cheryl Lee Persinger; Nena Holder; Ruby Ryherd, individually, and on behalf of all other persons similarly situated, Petitioners, v. The Boeing Company, Respondent.

No. 04-3334.

No. 04-3350.

No. 04-3351.

No. 04-602.

United States Court of Appeals, Tenth Circuit.

August 7, 2006.

Jeffrey T. Sprung, Hagens Berman Sobol Shapiro LLP, argued for Plaintiffs-Appellants/Cross-Appellees, (Steve W. Berman, Andrew M. Volk, Ivy D. Arai, Hagens Berman Sobol Shapiro LLP, Seattle, WA, and Mark B. Hutton and Derek S. Casey, Hutton & Hutton, Wichita, KS, with him on the brief).

James M. Armstrong, Foulston Siefkin LLP, argued for Defendant-Appellee/Cross-Appellant, (Mary Kathleen Babcock, Trisha A. Thelen, Carolyn L. Matthews, Foulston Siefkin LLP, Wichita, KS, and C. Geoffrey Weirich, Paul, Hastings, Janofsky & Walker LLP, Atlanta, GA, with him on the brief).

Mary Dean, Faith Bridgewater and Verlene Maholmes, pro se Plaintiffs-Appellants/Cross-Appellees, submitted a brief.

Before HARTZ, ANDERSON, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiffs appeal from the district court's disposition of the employment-discrimination claims of female employees at the Boeing Company's Wichita, Kansas, facility. They have sought to bring class-action claims alleging several unlawful employment practices under both disparate-impact and disparate-treatment theories of discrimination. The two subclasses relevant to this appeal are a subclass of hourly female workers (the Hourly Subclass) and a subclass of salaried female workers (the Salaried Subclass). Before us now are both (1) the district court's summary judgment on the Hourly Subclass's disparate-impact claim relating to overtime assignments, certified by the district court as a final judgment under Fed.R.Civ.P. 54(b); and (2) several of the district court's class-certification decisions relating to both the Hourly and Salaried Subclasses, on which we provisionally granted interlocutory appeal under Fed.R.Civ.P. 23(f). Boeing has cross-appealed to challenge the district court's class certification of the Hourly Subclass's disparate-impact claim in the event that we reverse the district court's grant of summary judgment on that claim.

We affirm the district court's summary judgment because Plaintiffs' statistical evidence is not adequately based on data restricted to persons eligible for overtime assignments. This affirmance moots the cross-appeal. Also, we dismiss Plaintiffs' appeal of the district court's class-action decisions because they were not filed within 10 days of the district court's initial decision denying class certification. Finally, we reject the claims of three former class representatives who were stripped of that designation by the district court on the ground that they could not "fairly and adequately protect the interests of the class," Fed.R.Civ.P. 23(a)(4).

I. BACKGROUND

Title VII of the Civil Rights Act of 1964 prohibits, among other things, discrimination on the basis of sex. See 42 U.S.C. § 2000e-2(a). Two types of claims are recognized under Title VII: disparate treatment and disparate impact.

"Disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . .

Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate-impact theory. Either theory may, of course, be applied to a particular set of facts.

Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (citations omitted). In a disparate-impact claim the plaintiff is challenging an employment practice that is "`fair in form, but discriminatory in operation.'" Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir.1999) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). "[A] plaintiff may establish a prima facie case of disparate impact discrimination by showing that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group." Id. (internal quotation marks omitted). This burden, which had been imposed by caselaw, see, e.g., Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991), was codified by statute in 1991. See 42 U.S.C. § 2000e-2(k); Civil Rights Act of 1991, Pub.L. No. 102-166, § 105(a), 105 Stat. 1071, 1074-75. The 1991 statute departed from case law in several respects, but none are relevant here.

Discrimination suits are often filed as putative class actions. Whether a suit can proceed as a class action is governed by Fed.R.Civ.P. 23. Under that rule the district court must determine "at an early practicable time," Fed.R.Civ.P. 23(c)(1)(A), whether a suit (or a particular claim within a suit) satisfies the prerequisites of numerosity, commonality, typicality, and adequacy of representation, see id. 23(a), and falls within one of the categories of actions maintainable as class actions, see id. 23(b). We review de novo whether the district court applied the correct legal standard in its decision to grant or deny class certification; when the district court has applied the proper standard, the decision will be reversed only for abuse of discretion. See Shook v. El Paso County, 386 F.3d 963, 967-68 (10th Cir.2004). The district court can modify or amend its class-certification determination at any time before final judgment in response to changing circumstances in the case. See Fed.R.Civ.P. 23(c)(1)(C).

In 2000, Plaintiffs, among others, filed a putative nation-wide class-action suit in the United States District Court for the Western District of Washington, alleging gender discrimination in a variety of Boeing's compensation practices. The district court, however, certified only a class of female employees working at Boeing's Washington facilities. In 2002 non-Washington plaintiffs filed suits in several states, including this suit in the District of Kansas.

Boeing's Wichita facility includes operations of three major business units: Boeing Commercial Airplanes, which is the largest group at the facility and is responsible for commercial production; the Wichita Development and Modification Center, which is responsible for the site's military business; and the Shared Services Group, which provides infrastructure support. According to the complaint, the Wichita facility is Boeing's largest manufacturing business. In December 2001 Boeing had approximately 16,700 employees in Kansas.

This appeal concerns Plaintiffs' Title VII claims alleging gender discrimination in Boeing's compensation and overtime policies. Nine of the Plaintiffs (the Carpenter Plaintiffs) seek to represent themselves and a class of similarly situated current and former female employees at Boeing's Wichita facility. The other three Plaintiffs (the Dean Plaintiffs) are members of the class but represent only themselves on appeal.

The Hourly Subclass's overtime claims were brought under both disparate-impact and disparate-treatment theories. The claims are based on the allegation that the discretion given to supervisors in assigning overtime resulted in women receiving consistently fewer overtime assignments than their male counterparts. In their disparate-treatment claim, they allege further that Boeing's failure to act upon knowledge of the denial of those assignments constituted intentional discrimination against its female employees. The Salaried Subclass made a disparate-impact claim that Boeing's company-wide practices for setting both starting salaries and raises systematically disadvantaged its female employees and a disparate-treatment claim that the company had failed to take action to correct the discriminatory impact since learning of it in 1995. Not at issue are other claims brought by the two subclasses and the claims of a putative subclass of female salaried engineers.

II. CLASS CERTIFICATION

There have been several class-certification proceedings before the district court in this case. The court's initial certification decision, on April 25, 2003, granted certification under Rule 23(b)(2) to both the Hourly and Salaried Subclasses on their disparate-impact claims. Certification was denied on all disparate-treatment claims. On February 24, 2004, following merits discovery, the court granted Boeing's motion to decertify the disparate-impact claim of the Salaried Subclass, leaving the overtime disparate-impact claim of the Hourly Subclass as the only claim certified for class-action treatment under Rule 23.

Plaintiffs filed a Renewed Motion for Class Certification (First Renewed Motion) on April 2, 2004, seeking recertification of the Salaried Subclass's disparate-impact claims. The court promptly denied the motion. Plaintiffs filed a Second Renewed Motion for Class Certification (Second Renewed Motion) on August 27, 2004, seeking...