Carson v. Giant Food, Inc., CIV.A. JFM-96-2882.

• Citation: 187 F.Supp.2d 462
• Decision Date: 20 February 2002
• Docket Number: No. CIV.A. JFM-96-2882.,CIV.A. JFM-96-2882.
• Parties: Gregory CARSON, et al., Plaintiffs v. GIANT FOOD, INC., et al., Defendants
• Court: U.S. District Court — District of Maryland

187 F.Supp.2d 462

Gregory CARSON, et al., Plaintiffs v. GIANT FOOD, INC., et al., Defendants

No. CIV.A. JFM-96-2882.

United States District Court, D. Maryland.

February 20, 2002.

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Alan Byron Robinson, Law Office, Greenbelt, MD, Glenna E. Ellis, Law Office, Largo, MD, Samuel Y. Botts, Jordan Keys Jessamy & Botts, LLP, Greenbelt, MD, Oscar L. Amorow, Amorrow and Kum PA, Hyattsville, MD, Roger K. Clark, Jr., Jessamy & Botts, LLP, Washington, DC, William Michael Jacobs, Law Office of W. Michael Jacobs, Columbia, MD, for Plaintiffs.

Robert P. Watkins, Julie Hilden, Kumiki Gibson, Kathleen L. Jennings, Kristin E. Adler, Jeffrey M. Smith, Williams and Connolly LLP, Mark Scott London, London & Mead, Claudette V. Ferron, Law Office, Marc A. Stefan, Carey R. Butsavage, Butsavage and Associates, Washington, DC, for Defendants.

OPINION

MOTZ, District Judge.

Eleven plaintiffs have instituted this action against Giant Food, Inc. and several of its executives and managers, alleging employment discrimination. Nine of the plaintiffs have filed a motion for class certification. Although the propriety of class action treatment appeared doubtful on the face of the complaint, I did not want to judge the issue prematurely, particularly in light of allegations concerning racist graffiti, racial epithets used by co-workers and supervisors, and the display of nooses at Giant's warehouses. Accordingly, I permitted a full factual record to be developed before ruling on the class certification motion. That motion is now pending, together with motions for summary judgment filed by defendants as to the individual claims of each of the plaintiffs.

This opinion addresses several global issues raised by the litigation, relating to (1) class certification, (2) the effect of "early" right-to-sue notices issued by the Equal Employment Opportunity Commission ("EEOC"), (3) the applicability of the "continuing violation" doctrine to plaintiffs' claims, (4) the cognizability of various state law claims, and (5) a claim under 42 U.S.C. § 1981 against the individual defendants. It also addresses all of the claims asserted by Gregory Carson, the first named plaintiff, and hostile environment claims asserted by eight of the plaintiffs. I am issuing separate opinions addressing the merits of all of the other claims asserted by the ten other plaintiffs.¹

I.

Plaintiffs seek to have two subclasses certified:² (1) "[a]ll current, former and future African American ("Black") persons who were permanent union employees employed by Giant and worked at its Distribution Warehouses, including but not limited to Jessup, Landover and Bakery Warehouses during the period of 1980 to present;"³ and (2) "[a]ll African American ("Black") persons who are former, current and future vacation relief workers at Giant's Distribution Warehouses, including but not limited to Jessup, Landover and Bakery Warehouses who were rejected for permanent employment by Giant during the period of 1980 to present."⁴ (See Pl. Amended Mem. for Class Cert. at 4-5.) The first subclass alleges violations of Title VII through hiring, promotion, discipline, termination, training, racial harassment and hostile work environments, and Giant's fair employment and grievance process.⁵ The second subclass alleges violations of Title VII regarding Giant's hiring and promotion practices.

The burden is on Plaintiffs to demonstrate that their proposed classes meet the certification requirements of Fed.R.Civ.P. 23. First, they must show that the four prerequisites of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—are met. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). If those prerequisites are satisfied, Plaintiffs must then demonstrate that their proposed subclasses fit into one of the categories set forth in Rule 23(b). See Miller v. Baltimore Gas & Elec. Co., 202 F.R.D. 195, 198 (D.Md.2001) (citing Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Here, although Plaintiffs' first proposed subclass presumably would meet the numerosity requirement of Rule 23(a),⁶ neither it nor the second proposed subclass meets the other three requirements. Both subclasses also fail under Rule 23(b).

A.

The commonality requirement of Rule 23(a) is "more easily met when a disparate impact rather than a disparate treatment theory underlies a class claim." Stastny v. Southern Bell Tel. and Tel. Co., 628 F.2d 267, 274 n. 10 (4th Cir.1980). A disparate impact theory is based upon a practice or policy which is neutral or benign in intent but nevertheless has a disproportionately adverse impact upon a protected class without any business justification for the disproportionate impact. Id. at 273-74 (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)).

Plaintiffs have not identified any neutral practice or policy that lies at the basis of their claims. Rather, it is clear that what Plaintiffs are claiming is that African-Americans were subjected to disparate treatment. That fact alone would not necessarily preclude class action treatment. For example, it has been held that "the use of entirely subjective personnel processes that operate to discriminate ... satisfy the commonality and typicality requirements of Rule 23(a)." Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993). Here, however, the record is clear that although the disciplinary decisions about which Plaintiffs complain were individualized, they were not entirely subjective in nature but involved the application of general rules to particular employees.

In short, as reflected in my discussion of Giant's summary judgment motions as to the claims of individual employees, in effect, this litigation involves an aggregate of individual disparate treatment claims.⁷ Moreover, during the course of their careers, the putative class members worked in at least thirteen different facilities, located in five different towns or cities. This geographical diversity itself would make class treatment inappropriate. See Stastny, 628 F.2d at 278-79; Wright v. Circuit City Stores, Inc., 201 F.R.D. 526, 542 (N.D.Ala.2001); Zachery v. Texaco Exploration and Prod., Inc., 185 F.R.D. 230, 238-40 (W.D.Tex.1999); Bostron v. Apfel, 182 F.R.D. 188, 195 (D.Md.1998).⁸

For these reasons, Plaintiffs have not shown that their proposed subclasses meet the commonality and typicality requirements. Even if they had done so, I could not find that they would adequately represent the class.⁹

The adequacy of representation element requires both the class representatives and the class attorney to adequately represent the class. In this case, Jo Ann P. Myles, Esq., cannot adequately represent the proposed subclasses. Ms. Myles' frequent typographical errors, citation errors and clear misstatements of the law in memoranda and during oral argument prove that the interests of the putative class members will not be adequately served by her representation. Additionally, Ms. Myles has failed to include deposition pages that were essential to her clients' claims, thus, requiring the Court to ask for those transcript pages. Finally, significant financial resources (e.g., to provide notice and to retain experts) are required to represent a class of this size. The history of this litigation, including a dispute between the plaintiffs and their expert over payment, demonstrates the inability of Ms. Myles and the class representatives to meet the financial demands of representing the proposed classes.

B.

Although Plaintiffs' failure to demonstrate that their proposed subclasses would meet the commonality, typicality, and adequacy of representation requirements of Rule 23(a) is dispositive of the certification question, I will add that the highly individual nature of Plaintiffs' individual claims also would preclude certification under Rule 23(b)(3). Clearly, it cannot be said that whatever common questions of law or fact there might be "predominate over questions affecting only individual members." Lott v. Westinghouse Savannah River Co., Inc., 200 F.R.D. 539, 563 (D.S.C.2000). Certification also would be inappropriate under Rule 23(b)(2) because the final relief that would be appropriate were Plaintiffs to prevail would not be injunctive in nature but would "relate[] exclusively or predominately to money damages." See Fed R. Civ. P. 23(b)(2) advisory committee's note; Zimmerman v. Bell, 800 F.2d 386, 389 (4th Cir.1986). In this case, Plaintiffs have asked almost exclusively for money damages.

II.

Each plaintiff was issued a right-to-sue notice fewer than 180 days after he filed a charge of discrimination. Giant argues in its motions for summary judgment that the plaintiffs' Title VII claims are invalid because Title VII does not allow the EEOC to issue a right-to-sue notice fewer than 180 days after the plaintiff files a charge of discrimination. For the reasons stated below, I find that the early right-to-sue notices provided by the EEOC are valid.

Title VII provides in relevant part:

If a charge filed with the Commission ... is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge ... the Commission has not filed a civil action ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge.

42 U.S.C. § 2000e-5(f)(1). The EEOC has established a regulation that allows it "to issue a right to sue letter at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided that [an appropriate...