United States District Court, E.D. Pennsylvania
January 6, 2004.
ROSE THOMPSON, individually and on behalf of all others similarly situated
MERCK & CO., INC, MERCK-MEDCO MANAGED CARE, L.L.C.; DONNA RODGERS, individually and on behalf of all others similarly situated, VS. MERCK & CO., INC.; VALERIE CATES, individually and on behalf of all others similarly situated, VS. MERCK & CO., INC.; CYNTHIA MARTIN, MARCELLA R. TAMS, STEVEN C. LEE AND JAMES E. THOMAS, individually and on behalf of all similarly-situated African-Americans VS. MERCK & CO., INC.; JOSEPHINE L. CHISOM AND ADRIENNE S. DIXON, individually and on behalf of all others similarly situated VS. MERCK & CO., INC.; CAROL STITH, individually and on behalf of all others similarly situated VS. MERCK & CO., INC
The opinion of the court was delivered by: CHARLES WEINER, Senior District Judge
MEMORANDUM OPINION AND ORDER
In the case of Webb v. Merck, 206 F.R.D. 399 (E.D.
Pa. 2002), the twenty named plaintiffs brought an employment discrimination
action against Merck & Co., Inc. ("Merck"), alleging that Merck
engaged in intentional ("disparate treatment") discrimination in
the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VI of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000d and Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Plaintiffs sought to have this court certify a class to adjudicate
"compensation disparity" claims made by or on behalf of the following
class members: "All black employees who work (or former employees who
have worked since January 1, 1989) for Merck & Co., (a) in the Merck
Manufacturing Division at a plant in Pennsylvania, New Jersey or Georgia,
or (b) as a Merck sales representative in the Mid-Atlantic Regional
Business Group of Merck's United States Human Health Division."
Webb, 206 F.R.D. at 401. Although plaintiffs sought
compensatory and punitive damages, they sought class certification only
as to liability issues as well as their damage claims seeking equitable
relief regarding compensation issues.
We denied the motion for class certification. At the outset, we noted
the enormity of the potential class. The class would have included "all
black employees at every level and every grade at six separate facilities
in five states, in two divisions, including union and non-union
employees and their supervisors, managers and non-managers, sales
representatives and secretaries and their supervisors and any other
employee from vice-president to janitor." Id. We noted that
plaintiffs themselves estimated that the number of potential class
members could exceed 5000.
We found that plaintiffs could not satisfy the commonality and
typicality requirements of Rule 23(a) of the Federal Rules of Civil
Procedure for class certification. We noted that "other than sharing the
common position of being black employees of Merck, the plaintiffs'
allegations are discrete and individualized. Plaintiffs were employed in
different states, in different divisions, in different facilities and at
different levels within the company hierarchy.
Their grievances are not susceptible to generalized proof or
defenses. In essence, this action is nothing more than a consolidation of
20 accounts of individualized disparate treatment." Id. at 408.
We also concluded that "resolution of the merits of the claims would
degenerate into an unmanageable plethora of multiple individual
determinations for each individual proposed class member."
Webb, 206 F.R.D. at 406.
We also found that there were too many individualized issues to allow a
class action to be maintained under Rule 23(b)(2). We stated that "in
order to resolve each putative class member's claim, the fact finder will
be forced to evaluate the individualized facts and circumstances
surrounding compensation decisions relating to initial assignments,
performance reviews, job postings, promotions and overall compensation."
Id. at 409.
The plaintiffs sought permission with our Court of Appeals pursuant to
Rule 23(f) of the Federal Rules of Civil Procedure to appeal this Court's
ruling denying class certification. Plaintiffs' request was denied by
Order dated June 18, 2002.
The above-captioned actions are all related to Webb and
indeed were filed by the same counsel who represented the plaintiffs in
Webb, Like Webb, the main impediment to class
certification in these actions is that they challenge hundreds if not
thousands of independent employment decisions. The Rodgers, Cates,
Thompson, and Martin actions were filed on behalf of a
class consisting of all African-Americans who have been employed or were
denied employment by Merck during a relevant time period. The
Stith action was filed "on behalf of present and former
African-American employees who work(ed) at Merck's facility in Rahway,
NJ." Stith Complaint at paragraph 7. The Chisom
action was filed "on behalf of present and former African-American
employees who work(ed) at Merck's facility in Whitehouse Station,
NJ. Chisom Complaint at paragraph 7. In all of the
actions, plaintiffs contend they have been subjected to a continuous and
pervasive pattern of racial discrimination by Merck in that Merck's
managers and supervisors have created a racially hostile work
environment, Merck's equal employment and anti-discrimination policies
are applied by its managers and supervisors in aa subjective manner with
little guidance from Merck, and Merck has condoned the general practice
of discriminating against Blacks in the areas of hiring, compensation,
promotion, demotion, job assignments, training, transfer, layoff,
discharge and discipline. In all of the actions, plaintiffs seek
declaratory and injunctive relief as well as compensatory and punitive
damages "in amounts to be determined at trial." Presently before the
Court is Merck's renewed motion to strike plaintiff's class allegations
in all of these actions pursuant to Rules 23(c)(1) and 23(d)(4) of the
Federal Rules of Civil Procedure. For the reasons which follow, the
motion is granted.
At the outset, we note that plaintiffs argue that this court lacks
authority to strike class action allegations from the complaint until
after the plaintiffs have filed a motion for class certification. We do
not agree. Rule 23(c) provides that the court should make a
determination as to whether a class action is maintainable "as soon as
practicable after the commencement of an action." If the court determines
that the prerequisites of Rule 23 are not satisfied, then the court may
issue an order "requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent persons." Fed.R.Civ.
Despite the length of time which has expired since these actions were
filed, plaintiffs have never filed a motion for class certification in
any of them. There is no point in waiting any further. It is clear from
the allegations in the complaints and the affidavits plaintiffs
have since submitted that plaintiffs' claims cannot satisfy the
requirements of Rule 23(b)(2) or (b)(3). No amount of additional class
discovery will alter this conclusion. To the contrary, additional
discovery will in all likelihood further illuminate the subjective and
intangible differences of each class member's individual circumstances.
To obtain class certification, plaintiffs must establish all four
elements of Rule 23(a) of the Federal Rules of Civil Procedure along with
one provision of Rule 23(b). Johnston v. HBO Film Management.
Inc., 265 F.3d 178, 183 (3d Cir. 2001). If all four elements of
Rule 23(a) are satisfied, the court must also find that the class is
maintainable under Rule 23(b)(1), (2) or (3). In these cases, plaintiffs
seek certification pursuant to either 23(b)(2) or 23(b)(3). Because
plaintiffs cannot satisfy either Rule 23(b)(2) or (3), we need not
address whether the proposed class meets the requirements of Rule 23(a).
Rule 23(b)(2) allows certification where, "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." Class actions
certified under (b)(2) are restricted to those cases where the primary
relief sought is injunctive or declaratory relief. Barnes v.
American Tobacco Co., 161 F.3d 127, 142-43 (3d Cir. 1998), cert
denied, 526 U.S. 1114 (1999). The reason for this restriction is
that unnamed members of classes certified under Rule 23(b)(2) cannot opt
out as they can in Rule 23(b)(3) actions. As a result, class cohesion is
necessary and is presumed where a class suffers from a common injury and
seeks class-wide injunctive relief. Id. at 142-143. In
contrast, when a class seeks monetary relief, the class becomes less
cohesive because assessing these damages often necessitates an
examination into individual claims.
The Court of Appeals for the Fifth Circuit has held that "monetary
relief predominates in (b)(2) class actions unless it is incidental to
requested injunctive or declaratory relief." Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998).
Incidental damages are those "that flow directly from liability to the
class as a whole on the claims forming the basis of the
injunctive or declaratory relief." Id. (emphasis in original).
The Allison Court also identified the following three factors
that would define "incidental" damages:
(1) whether such damages are of a kind to which
class members would be automatically entitled;
(2) whether such damages can be computed by
"objective standards" and not standards
significantly reliant upon "the tangible,
subjective differences of each class member's
(3) whether such damages would require additional
hearings to determine.
The Allison standard has been adopted by the Fifth, Sixth,
Seventh and Eleventh Circuit Courts of Appeal. See Coleman v.
General Motors Acceptance Corp., 296 F.3d 443, 447-49 (6th Cir.
2002); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001);
James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001);
Lemon v. International Union of Operating Engineers,
216 F.3d 577, 589 (7th Cir. 2000). It has also been adopted by several courts
within this Circuit. See Miller v. Hygrade Food Products Corp.,
198 F.R.D. 638, 641 (E.D.Pa. 2001) petition for appeal denied,
No. 01-8005 (3d Cir. March 21, 2001); Reap v. Continental Casualty
Co., 199 F.R.D. 536, 546-547 (D.N.J. 2001); Osgood v. Harrah's
Entertainment, Inc., 202 F.R.D. 115,
128-129 (D.N.J. 2001).
Our Court of Appeals has also indicated its intention to follow the
Allison approach. In Barabin v. Aramark Corp., No.
02-8057, 2003 WL 355417 (3rd Cir. Jan. 24, 2003), our Court of Appeals
issued an Order denying the plaintiffs' petition brought under Rule 23(f)
of the Federal Rules of Civil Procedure seeking permission to appeal the
district court's denial of their motion for class certification. In the
Order, the Court of Appeals explained in detail their reasons for denying
the petition by citing the Allison approach. The Order, while
not published in the Federal Reporter, was published on both Westlaw and
Lexis. The Order was also not marked "Judgment Order" or
"Non-Precedential". Based on all the above authority, we elect to follow
the Allison approach as well.*fn1
In response to the motion to strike, plaintiffs have submitted 84
affidavits from potential class members attesting to alleged
discriminatory practices they suffered at the hands of Merck.
See Exhibits in Support of Plaintiffs' Opposition to Merck's
Renewed Motion to Strike Class Action Allegations at B. If anything,
however, these affidavits underscore the individualized nature of the
plaintiffs' claims. Plaintiffs do not claim that their damages can be
computed on the basis of some objective, uniform calculation or in an
amount which naturally follows from an entitlement to a declaration or
injunction against further harm. Rather, plaintiffs claim in each of the
above six actions that they have been damaged in an "amount to be proven
trial." Plaintiffs' request for compensatory and punitive damages
on behalf of each class member would necessarily require individualized
proof of injury. For example, evaluating claims for mental anguish and
pain and suffering would necessarily involve a determination of whether
and how each class member was personally affected by the alleged
discriminatory conduct. Such damages, awarded on the basis of intangible
injuries and interests, are uniquely dependent on the subjective and
intangible differences of each class member's individual circumstances.
As noted in Allison, "[t]he plaintiffs' claims for compensatory
and punitive damages must therefore focus almost entirely on facts and
issues specific to individuals rather than the case as a whole: what kind
of discrimination was each plaintiff subjected to, how did it affect each
plaintiff emotionally and physically, at work and at home; what medical
treatment did each plaintiff receive and at what expense; and so on and
so on." Allison, 151 F.3d at 419. Plaintiff's claims therefore
cannot as a matter of law satisfy the prerequisites for class
certification under Rule 23(b)(2).*fn2
Rule 23(b)(3) provides for certification where, "the court finds that
the questions of law or fact common to the members of the class
predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for the fair
and efficient adjudication of the controversy." Like (b)(2)
certification, (b)(3) certification is precluded where individual issues
predominate. Barnes, 161 F.3d at 143. Although all the
plaintiffs claim they were discriminated against by Merck on the basis of
their race, they allege
that they were exposed to the alleged discrimination in varying
ways, by different people, for different amounts of time and experienced
different injuries. For example, affiant Jeannette Brown avers that she
was denied a promotion to a "position in Merck's Institute for Science
Education" in Merck's MRL division at Rahway, N.J. because that position
"went to a Hispanic woman." J. Brown Aff. at 5, 9. Affiant Toya Copeland,
who worked in Merck's Calgon subsidiary in New York from 1982 to 1995,
claims that she was denied a promotion to a District Manager position in
1990. T.Copeland Aff. at 3, 5. Affiant Kimberly Grant avers that he was
discharged from his service worker position at Merck's MMD facility in
Albany, Georgia in 1995. K. Grant Aff. at 4. Affiant Patricia Harris
avers that while she was employed in Merck's USHH division's ophthalmic
sales organization in Chicago from 2000 to 2002, her supervisor unfairly
reprimanded her. P.Harris Aff. at 9, 11.
Of course, Merck states that it has defenses that are unique to each
individual claim. These include the statute of limitations, res judicata,
signed settlement agreements and general releases by several of the
affiants and a littany of potential, legitimate non-discriminatory
reasons for taking action that are unique to each claimant. Simply put,
no two plaintiffs were discriminated against in the same manner. Under
such circumstances, an action conducted nominally as a class action would
degenerate in practice into multiple lawsuits separately tried.
Allison, 151 F.3d at 419. As in Webb, the fact finder
would have to make individualized inquiries regarding the nature of each
member's claim to determine whether he or she was the victim of
intentional discrimination. These individualized fact issues would
predominate during the liability phase of any trial as well as in the
damage phase. As such, the individualized determinations that the fact
finder would have to make to for each member of the proposed class
would clearly "predominate" over any common issues, thus precluding
certification under Rule 23(b)(3).
For similar reasons, we find that plaintiffs have failed to meet the
superiority requirement of (b)(3). Since individual issues dominate with
respect to both liability and damages, the economies of time, effort and
expense which are the very goals of the class action would not be
achieved. Thus, the superiority of the class action is undermined.
For the foregoing reasons, we conclude that the classes presented here
cannot meet the requirements of Rule 23(b) and therefore the class
allegations must be stricken from the complaints.
[EDITOR'S NOTE: THIS PAGE CONTAINED CA LINE.]
The renewed motion of the defendant to strike plaintiffs' class
allegations (C.A. No. 01-1004 Document # 14, C.A. No. 01-1328 Document
#23, C.A. No. 01-3011 Document #10, C.A. No. 01-6029 Document #6, C.A.
No. 02-1196 Document #10, C.A. No. 02-4176 Document #7) is GRANTED.
All class allegations are STRICKEN from the above-captioned Complaints.
IT IS SO ORDERED.