Dukes v. Wal-Mart, Inc.

• Decision Date: 06 February 2007
• Docket Number: No. 04-16720.,No. 04-16688.,04-16688.,04-16720.
• Citation: 474 F.3d 1214
• Parties: Betty DUKES; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellees, v. WAL-MART, INC., Defendant-Appellant. Betty Dukes; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellants, v. Wal-Mart, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.3d 1214

Betty DUKES; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellees, v. WAL-MART, INC., Defendant-Appellant.

Betty Dukes; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellants, v. Wal-Mart, Inc., Defendant-Appellee.

No. 04-16688.

No. 04-16720.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 8, 2005.

Filed February 6, 2007.

Theodore J. Boutrous, Jr., (argued & briefed) Gibson, Dunn & Crutcher, Los Angeles, CA, for the defendant-appellant-cross-appellee.

Brad Seligman (argued), The Impact Fund, Berkeley, California, and Elizabeth A. Lawrence, Steve Stemerman, Davis, Cowell & Bowe, LLP, San Francisco, CA. Christine E. Webber, Joseph M. Sellers, Julie Goldsmith Reiser, Cohen, Milstein, Hausfeld & Toll, PLLC, Washington, D.C., Irma D. Herrera, Debra A. Smith, Equal Rights Advocates, San Francisco, CA, Stephen Tinkler, Charles Firth, Tinkler & Firth, Santa Fe, NM, Debra Gardner, Public Justice Center, Baltimore, MD, Merit Bennett, Merit Bennett, P.C., Santa Fe NM and Jocelyn D. Larkin, The Impact Fund (briefed), for the plaintiffs-appellees-cross-appellants.

Terri L. Ross, McDermott Will & Emery LLP, New York, NY, for the amicus curiae.

Marissa M. Tirona, National Employment Lawyers Association, San Francisco, CA, for the amici curiae.

Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP, Washington, DC, for the amicus curiae.

Michael Foreman, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for the amici curiae.

Daniel B. Kohrman, AARP Foundation Litigation, Washington, DC, for the amici curiae.

Jeffrey A. Berman, Sidley Austin Brown & Wood, Los Angeles, CA, and Bill Lann Lee, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, for the amici curiae.

Richard A. Samp, Washington Legal Foundation, Washington, DC, for the amicus curiae.

Evelyn L. Becker, O'Melveny & Meyers LLP, Washginton, DC, for the amicus curiae.

Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. Nos. CV-01-02252-MJJ, CV-01-02252-MJJ.

Before HARRY PREGERSON, ANDREW J. KLEINFELD, and MICHAEL DALY HAWKINS, Circuit Judges.

PREGERSON, Circuit Judge.

Plaintiffs filed a class action suit against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act. The district court certified the class with minor modifications to Plaintiffs' proposed class. We have jurisdiction under 28 U.S.C. § 1292(e). For the reasons set forth below, we affirm the district court, concluding that it did not abuse its discretion when it certified the class.

BACKGROUND

Plaintiffs' Third Amended Complaint, brought on behalf of six named plaintiffs and all others similarly situated, asserts claims against Wal-Mart for sex discrimination under Title VII of the 1964 Civil Rights Act. Plaintiffs alleged that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority, and (2) receive fewer — and wait longer for — promotions to in-store management positions than men. Plaintiffs contend that Wal-Mart's strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.

Plaintiffs seek class-wide injunctive and declaratory relief, lost pay, and punitive damages. They do not seek any compensatory damages on behalf of the class, which is estimated to include more than 1.5 million women. The class encompasses women employed in a range of Wal-Mart positions — from part-time, entry-level, hourly employees to salaried managers.

On April 28, 2003, Plaintiffs filed a motion to certify a nationwide class of women who have been subjected to Wal-Mart's allegedly discriminatory pay and promotions policies. Plaintiffs proposed that the district court certify the following class pursuant to Federal Rule of Civil Procedure 23:

All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices.

Dukes v. Wal-Mart Stores, Inc. ("Dukes I"), 222 F.R.D. 137, 141-42 (N.D.Cal. 2004). On September 23, 2004, after the parties had conducted extensive discovery and filed copious briefs, the district court heard oral argument. At the hearing, Wal-Mart emphasized the "historic" nature of Plaintiffs' motion, inasmuch as it concerns a class of approximately 1.5 million women who work or worked in one or more of Wal-Mart's 3,400 stores in 41 regions at any time since 1998. The court acknowledged Wal-Mart's concerns but noted that, while the class size was large, the issues were not unusual. Before ruling on the class certification motion, the district court clearly stated that its decision would be limited to procedural questions because an adjudication of the merits was not appropriate at that early stage.

I. DISTRICT COURT PROCEEDINGS

On June 21, 2004, the district court issued an eighty-four-page order granting in part and denying in part Plaintiffs' motion for class certification. See Dukes I, 222 F.R.D. at 187-88. With respect to Plaintiffs' claims for equal pay, the district court granted Plaintiffs' motion as to issues of alleged discrimination and all forms of requested relief. With respect to Plaintiffs' promotion claim, the court's finding was mixed. The court certified the proposed class as it related to issues of alleged discrimination (including liability for punitive damages) as well as injunctive and declaratory relief. However, the court denied Plaintiffs' request for certification with respect to backpay because data relating to challenged promotions were not available for all class members. Both parties appealed.

II. THE APPEAL

Pursuant to Federal Rule of Civil Procedure 23(f), Wal-Mart appealed, contending that the district court erred by: (1) concluding that the class met Rule 23(a)'s commonality and typicality requirements; (2) eliminating Wal-Mart's ability to respond to individual Plaintiff's claims; and (3) failing to recognize that Plaintiffs' claims for monetary relief predominated over their claims for injunctive or declaratory relief. Plaintiffs cross-appealed, asserting that the district court erroneously limited the backpay relief for many of Plaintiffs' promotion claims.

DISCUSSION

I. STANDARD AND SCOPE OF REVIEW

We review a district court's decision regarding class certification for abuse of discretion. See Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). The district court's decision to certify this class is subject to "very limited" review and will be reversed "only upon a strong showing that the district court's decision was a clear abuse of discretion." Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir.2001) (citation omitted); see also Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.2005) ("Abuse of discretion is `a highly deferential standard,' under which the appellate court cannot substitute its `view of what constitutes substantial justification for that of the district court'; rather, the review `is limited to assuring that the district court's determination has a basis in reason.'" (citation omitted)); Blyden v. Mancusi, 186 F.3d 252, 269 (2d Cir.1999) ("A district court's decision to certify a class is reviewed for abuse of discretion, and'[a] reviewing court must exercise even greater deference when the district court has certified a class than when it has declined to do so.'" (citation omitted)); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir.1977) ("[J]udgment of the trial court should be given the greatest respect and the broadest discretion" (citation omitted)). A court abuses its discretion if it applies an impermissible legal criterion. See Molski v. Gleich, 318 F.3d 937, 946 (9th Cir.2003). Moreover, the district court's factual findings as to the applicability of Rule 23 criteria are entitled to the traditional deference given to such a determination. Local Joint Executive Trust Fund v. Las Vegas Sands, 244 F.3d 1152, 1161 (9th Cir.2001) (citation omitted).

Rule 23 provides district courts with broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court. See Armstrong v. Davis, 275 F.3d 849, 872 n. 28 (9th Cir.2001). If later evidence disproves Plaintiffs' contentions that common issues predominate, the district court can at that stage modify or decertify the class, see Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation."), or use a variety of management devices, see In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir.2001); 1 Newberg on Class Actions § 4.26 at 4-91 to 4-97.

Our review is limited to whether the district court correctly selected and applied Rule 23's criteria. See Bogus v. Am. Speech & Hearing Ass'n., 582 F.2d 277, 289 (3d Cir.1978); Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000) ("An abuse occurs when a court, in making a discretionary ruling, relies upon an improper factor, omits consideration of a factor entitled to substantial weight, or mulls the correct mix of factors but makes a clear error of judgment in assaying them.") Thus, if Plaintiffs demonstrate that they meet Rule 23's requirements, they should be allowed to pursue their action as a class. See Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40...