IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-30489 AUDREY T. CELESTINE, et al., Plaintiffs-Appellants, v. CITGO PETROLEUM CORP., Defendant-Appellee. On Appeal from the United States District Court for the Western District of Louisiana BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFFS-APPELLANTS C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ROBERT J. GREGORY Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4059 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES................................... ii STATEMENT OF INTEREST.................................. 1 STATEMENT OF THE ISSUE................................. 1 STATEMENT OF THE CASE.................................. 1 SUMMARY OF ARGUMENT.................................... 4 ARGUMENT............................................... 5 THE DISTRICT COURT ERRED IN DENYING CLASS CERTIFICATION UNDER RULE 23(b)(2)................. 5 A. Private Class Actions Play a Vital Role in the Enforcement of Title VII.................. 6 B. Courts Have Routinely Certified Title VII Classes under Fed.R.Civ.P. 23(b)(2) in Cases Where the Rule 23(a) Prerequisites Are Met.... 8 C. The Damage Provisions of the Civil Rights Act of 1991 Do Not Affect the Availability of Class Certification Under Rule 23(b)(2).... 14 CONCLUSION............................................. 20 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).............................................. 6 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994)......................... 13 Avagliano v. Sumitomo Shoji Am., Inc., 614 F. Supp. 1397 (S.D.N.Y. 1985)................................ 5, 9 10 Barefield v. Chevron, 48 FEP Cases 907 (N.D. Cal. 1988)............................................... 19 Butler v. Home Depot, 70 FEP Cases 51 (N.D. Cal. 1996)............................................... 18, 19 20 Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322 (N.D. Ill. 1995)................................ 20 Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463 (W.D. La. 1995)..................................... 1, 2 3, 4 14, 15 17, 18 Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980)........ 9, 11 17 Forbush v. J.C. Penney Co., 994 F.2d 1101 (5th Cir. 1993)............................................... 18 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)............ 12 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)...... 12 General Tel. Co. v. EEOC, 446 U.S. 318 (1980).......... 8 Griffin v. Home Depot, 70 FEP Cases 1678 (E.D. La. 1996)............................................... 17 Hutchings v. United States Indus., Inc., 428 F.2d 303 (5th Cir. 1970)................................. 6 Johnson v. General Motors Corp., 598 F.2d 432 (5th Cir. 1979).......................................... 4, 9 10 Johnson v. Goodyear Tire & Rubber Co., 491 U.S. 1364 (5th Cir. 1974)..................................... 14 Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir. 1981)..................................... 4, 9 10 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).............................................. 12 McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995)...................................... 5, 6 13, 16 Parker v. Local Union No. 1466, 642 F.2d 104 (5th Cir. 1981)............................................... 11 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974)..................................... 9, 11 20 Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115 (1979).............................................. 13 Probe v. State Teachers' Retirement Sys., 780 F.2d 776 (9th Cir.), cert. denied, 476 U.S. 1170 (1986).............................................. 9, 10 11 Rodriguez v. United States, 480 U.S. 522 (1987)........ 17 Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir.), cert. denied, 510 U.S. 991 (1993)................... 9, 13 18 Smith v. Secretary of Navy, 659 F.2d 1113 (D.C. Cir. 1981)............................................... 12 Stolz v. United Bhd. of Carpenters and Joiners of Am., 620 F. Supp. 396 (D. Nev. 1985)..................... 11 Teamsters v. United States, 431 U.S. 324 (1977)........ 12, 13 14, 18 Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011 (1975)........... 4, 7 9, 10 2(1), Pub. L. 102-166, 105 Stat. 1071 (1991)......... 15 2(3), Pub. L. 102-166, 105 Stat. 1071 (1991)......... 15 3(4), Pub. L. 102-166, 105 Stat. 1071 (1991)......... 15 Fed.R.Civ.P. 23........................................ 1, 8 Fed.R.Civ.P. 23(a)..................................... 1, 2 4 Fed.R.Civ.P. 23(b)..................................... 2 Fed.R.Civ.P. 23(b)(2).................................. 2, 3 4, 9 10, 11 12, 14 17, 18 19, 20 Fed.R.Civ.P. 23(b)(3).................................. 3, 4 16, 17 18 OTHER AUTHORITIES Advisory Committee Notes, Fed.R.Civ.P. 23(b)(2), 1966 Amendment........................................... 5, 9 10, 11 Robert L. Carter, The Federal Rules of Civil Procedure as a Vindicator of Civil Rights, 137 U. PENN. L. REV. 2179 (1989).................................... 7, 8 H.R. Rep. No. 40(I), 102nd Cong. 1st Sess., reprinted in, 1991 U.S.C.C.A.N. 549........................... 15, 16 3B J. MOORE, MOORE'S FEDERAL PRACTICE (1996)........... 4, 7 9, 10 Jack B. Weinstein, Some Reflections on the "Abusiveness" of Class Actions, 58 F.R.D. 299 (1973).............. 7 7A C. WRIGHT, A. MILLER, & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE (1986)................................ 4, 9 10, 11 12 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency charged with the enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"). This appeal raises an important issue concerning the impact of the damage provisions of the Civil Rights Act of 1991 on the ability of individuals to maintain private class actions under Title VII. Because of the importance of this issue to the effective enforcement of Title VII, the Commission offers its views to the Court. STATEMENT OF THE ISSUE Whether a putative class of Title VII claimants that otherwise meets the requirements of Fed.R.Civ.P. 23(a) should be denied certification because, by virtue of the enactment of the Civil Rights Act of 1991, individual claims for damages predominate over the class-based claim for injunctive relief. STATEMENT OF THE CASE This case involves the consolidation of three lawsuits filed by 240 named individuals. The plaintiffs allege that the defendant, Citgo Petroleum Corporation ("Citgo"), has violated Title VII by engaging in class-wide racial discrimination in hiring, promotions, pay, and training. See Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463, 465 (W.D. La. 1995). In the district court, the plaintiffs sought class certification under Fed.R.Civ.P. 23, proposing a class of some 1000 potential members consisting of "'[a]ll African-American employees and applicants of Citgo Petroleum Corporation (Citgo) from April 11, 1979 until the present.'" Id. Citgo opposed certification, arguing that class claims were "truly individual claims for damages." Id. at 466. The district court agreed with Citgo and denied certification. In ruling on the certification issue, the district court first assessed whether the plaintiffs had met the four prerequisites to class certification under Rule 23(a). Noting that the plaintiffs alleged "that the putative class consists of more than 1000 persons," the court found that the plaintiffs had "satisfied the numerosity requirement." Id. The court also determined that the plaintiff had satisfied the "commonality" requirement, stressing that the claims advanced by the plaintiffs were "common to all class members." Id. The court specifically found that "each plaintiff's claim arises from [a] general policy which affects all aspects of Citgo's workforce regardless of the specific area in which he or she may work." Id. at 467. Next, the court ruled that the plaintiffs had asserted claims that were "typical" of the class they seek to represent, since the plaintiffs "challenge the employment policies and procedures in place at Citgo and allege that they have suffered discrimination as a result of the subjective criteria used by Citgo to hire, train, and promote." Id. Finally, the court held that the designated class representatives provided "adequate representation" for the class. Id. While the court found that the requirements of Rule 23(a) had been met, it refused to certify the class under Rule 23(b). Citing specifically to Rule 23(b)(2), the court noted that the Rule applies to actions in which "injunctive and/or declaratory relief" is "the predominant relief sought for the class." Id. at 468. The court acknowledged that there is historical support for certifying Title VII classes under Rule 23(b)(2) even in cases where the class members are "seeking monetary damages [e.g., back pay]." Id. The court asserted, however, that this case law is not on point because it precedes Congress' enactment of the Civil Rights Act of 1991, which "makes compensatory and punitive damages available to plaintiffs in cases involving intentional discrimination." Id. Noting that "[c]ompensatory damages are by their very nature individualized damages which are designed to compensate the individual for the injury sustained by him and her," the court found "that the need for individualized determinations of the claims for monetary damages lessens the cohesiveness and homogeneity of the class." Id. at 469. The court also opined that the "issues surrounding the claim for injunctive relief and the claim for monetary damages are not common," stressing that, in the case of monetary damages, "it will be necessary for the parties to present individualized evidence and separate hearings would be necessary to deal with this evidence." Id. The court ruled that since "monetary damages is the predominant type of relief sought," class certification under Rule 23(b)(2) "is not appropriate." Id. SUMMARY OF ARGUMENT The district court erred in denying class certification. The district court ruled that the plaintiffs had satisfied the four prerequisites to class certification (i.e., numerosity, commonality, typicality, and adequate representation). See Fed.R.Civ.P. 23(a). Under Fed.R.Civ.P. 23(b)(2), a court may certify a class, when the Rule 23(a) requirements are met, if "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." Historically, courts routinely certified Title VII class actions under Rule 23(b)(2) on the theory that such suits are, by their very nature, directed at the eradication of class-based discrimination. See, e.g., Kincade v. General Tire and Rubber Co., 635 F.2d 501, 506 & n.6 (5th Cir. 1981); Johnson v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 250-51 (3d Cir.), cert. denied, 421 U.S. 1011 (1975); 7A C. WRIGHT, A. MILLER, & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE 1776, at 495-96 (1986). Indeed, "Rule 23(b)(2) was enacted in part for the specific purpose of assuring that the class action device would be available as a means of enforcing the civil rights statutes." 3B J. MOORE, MOORE'S FEDERAL PRACTICE 23.02[2.-6], at 23-44 (1996) (citing Advisory Committee Notes, Fed.R.Civ.P. 23(b)(2), 1966 Amendment); accord Wetzel, 508 F.2d at 250; Avagliano v. Sumitomo Shoji Am., Inc., 614 F. Supp. 1397, 1400 (S.D.N.Y. 1985). Contrary to the district court's ruling, nothing in the enactment of the damage provisions of the Civil Rights Act of 1991 changes the established practice of certifying class actions under Rule 23(b)(2). While there may be individual, claim-specific issues that arise at "Stage II" of the proceeding, that was equally true prior to the availability of compensatory and punitive damages. The principal focus of a Title VII suit continues to be on "'the elimination of discrimination in the workplace,'" McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879, 884 (1995), an objective for which the class action procedure is particularly well-suited. ARGUMENT THE DISTRICT COURT ERRED IN DENYING CLASS CERTIFICATION UNDER RULE 23(b)(2). This case raises an important issue affecting the viability of the class-action procedure in Title VII cases. The district court denied class certification on the ground that the plaintiffs advanced claims for compensatory and punitive damages under the Civil Rights Act of 1991. The decision amounts to a legal determination that class certification is inappropriate in a Title VII case anytime the putative class members assert claims for relief under the Civil Rights Act of 1991. We believe that the district court erred in relying upon the availability of compensatory and punitive damages to deny class certification. A. Private Class Actions Play a Vital Role in the Enforcement of Title VII From the Commission's perspective, the significance of the district court's ruling stems from the importance of private class actions to the effective enforcement of Title VII. Title VII provides for a system of overlapping public and private enforcement. It has long been recognized that "the private right of action [is] an essential means of obtaining judicial enforcement of Title VII." Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). "[O]nce the judicial machinery has been set in train," Title VII actions "take[] on a public character in which remedies are devised to vindicate the policies of the Act, not merely to afford private relief to the employee." Hutchings v. United States Indus., Inc., 428 F.2d 303, 311 (5th Cir. 1970). In bringing suit under Title VII, "the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices." Alexander, 415 U.S. at 45; see also McKennon v. Nashville Banner Publishing Co., 115 S. Ct. at 884 ("The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the [anti-discrimination statutes]."). Class actions play a particularly vital role in the private enforcement of Title VII. Class actions provide the means for attacking broad patterns of workplace discrimination. Class actions "are powerful stimuli to enforce Title VII," providing for the "'removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.'" Wetzel v. Liberty Mutual Ins. Co., 508 F.2d at 254. Class actions "are the cutting edge of the Title VII sword which Congress has fashioned to fight a major enemy to continuing progress, strength, and solidarity in our nation, discrimination in employment." Id. Indeed, the class action device exists, in large part, to vindicate the interests of civil rights plaintiffs. "Class action status is particularly suitable in civil rights actions." 3B J. MOORE, MOORE'S FEDERAL PRACTICE  23.02[2.-6], at 23-43. The "device of the class action is closely associated with the figure of the 'private attorney general,'" who seeks to vindicate the public interest under those federal statutes "which are thought to be so vital as to justify enhanced enforcement, above and beyond that which the Executive branch is able or willing to undertake." Robert L. Carter, The Federal Rules of Civil Procedure as a Vindicator of Civil Rights, 137 U. PENN. L. REV. 2179, 2185 (1989). There is evidence that a high percentage of class action suits are rooted in civil rights and employment claims and that curtailing the class action procedure will have a "disproportionate" negative impact on "those classes of right-seekers." Id. at 2186. Class actions permit the court to get at the "heart" of "institutional" discrimination, thereby ensuring that invidious discrimination is effectively eradicated. Jack B. Weinstein, Some Reflections on the "Abusiveness" of Class Actions, 58 F.R.D. 299, 304 (1973). That the Commission also has enforcement authority under Title VII does not diminish the importance of the private class action to the effective enforcement of the statute. The Commission has broad authority to attack widespread patterns of discrimination. See General Tel. Co. v. EEOC, 446 U.S. 318, 324 (1980) (ruling that the Commission's authority to bring a "class-based" suit "is in no way dependent upon Rule 23," which has "no application" to a Commission suit). Private suits, however, still play an "'essential'" role in the "'judicial enforcement of Title VII.'" Id. at 332-33. The Commission does not have unlimited resources. It does not (and cannot) bring all Title VII suits challenging unlawful acts of employment discrimination. In particular, it does not (and cannot) initiate all actions challenging systemic, class-wide discrimination. Maintaining a viable private class action procedure is critical to the effective enforcement of Title VII. See Robert L. Carter, The Federal Rules of Civil Procedure as a Vindicator of Civil Rights, 137 U. PENN. L. REV. at 2185 n.30 (noting congressional recognition of the fact that "'effective enforcement of Federal civil rights statutes . . . depends largely on the efforts of private citizens,'" because "'[a]lthough some agencies of the United States have civil rights responsibilities, their authority and resources are limited'"). B. Courts Have Routinely Certified Title VII Classes under Fed.R.Civ.P. 23(b)(2) in Cases Where the Rule 23(a) Prerequisites Are Met In light of Title VII's heavy reliance on private suit enforcement, it is not surprising that the class action procedure has played a prominant historic role in Title VII litigation. From the outset, courts have been receptive to the use of class actions in Title VII cases. Courts have routinely certified Title VII classes under Rule 23(b)(2) in cases where the Rule 23(a) prerequisites are met. See, e.g., Probe v. State Teachers' Retirement Sys., 780 F.2d 776, 780 (9th Cir.), cert. denied, 476 U.S. 1170 (1986); Coley v. Clinton, 635 F.2d 1364, 1378-79 (8th Cir. 1980); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d at 250-51; Avagliano v. Sumitomo Shoji Am., Inc., 614 F. Supp. at 1400; 7A C. WRIGHT, A. MILLER, & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE 1776, at 495-504 (collecting cases). This Court, in particular, has recognized the applicability of Rule 23(b)(2) to Title VII actions. See, e.g., Kincade v. General Tire and Rubber Co., 635 F.2d at 506 & n.6; Johnson v. General Motors Corp., 598 F.2d at 435; Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 256-57 (5th Cir. 1974); see also Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir.) (ruling that the district court properly certified a Title VII class), cert. denied, 510 U.S. 991 (1993). This Court has stressed that "most class actions in the civil rights area" are properly certified under Rule 23(b)(2). Kincade, 635 F.2d at 506. The widespread use of the class action procedure in Title VII cases is supported by the history of the Rule itself. Rule 23(b)(2) was added to the Federal Rules in 1966. "Rule 23(b)(2) was enacted in part for the specific purpose of assuring that the class action device would be available as a means of enforcing the civil rights statutes." 3B J. MOORE, MOORE'S FEDERAL PRACTICE  23.02[2.-6], at 23-44 (citing Advisory Committee Notes, Fed.R.Civ.P. 23(b)(2), 1966 Amendment); see also Kincade, 635 F.2d at 506 n.6 ("'[S]ubdivision (b)(2) was added to Rule 23 in 1966 primarily to facilitate the bringing of class actions in civil rights area."); Avagliano, 614 F. Supp. at 1400 ("'Courts and commentators alike recognize that Rule 23(b)(2) was intended for use in civil rights cases, including employment discrimination litigation.'"). The "drafters of Rule 23 specifically contemplated that suits against discriminatory hiring and promotion policies would be appropriately maintained under (b)(2)." Wetzel, 508 F.2d at 250. The Rule assumes that broad-based attacks upon discriminatory policies are typically suitable for class action status, since "the plaintiff class is homogeneous" and "the conduct is challenged on a ground that is applicable to the entire class." Avagliano, 614 F. Supp. at 1400; see Advisory Committee Notes, Fed.R.Civ.P. 23(b)(2), 1966 Amendment; 3B J. MOORE, MOORE'S FEDERAL PRACTICE  23.02[2.-6], at 23-45. As one commentator has put it: [The] success [of Rule 23(b)(2)] stems from the fact that the class suit is a uniquely appropriate procedure in civil rights cases, which generally involve an allegation of discrimination against a group as well as the violation of rights of particular individuals. By their very nature, civil rights class actions almost invariably involve a plaintiff class . . . . 7A C. WRIGHT, A. MILLER, & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE 1776, at 495-96. Notably, courts have certified Title VII class actions even though they include claims for monetary relief (e.g., back pay) on behalf of the class members. See, e.g., Probe v. State Teachers' Retirement Sys., 780 F.2d at 780; Johnson v. General Motors Corp., 598 F.2d at 437; Wetzel, 508 F.2d at 251. Rule 23(b)(2) contemplates that the "primary" relief sought in the case be injunctive. 7A C. WRIGHT, A. MILLER, & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE 1775, at 467. It does not, however, preclude class certification in cases in which the class seeks monetary damages. See Advisory Committee Notes, Fed.R.Civ.P. 23(b)(2), 1966 Amendment (stating only that the suit should not relate "exclusively or predominantly to money damages"). Courts have recognized that in a class-based Title VII action, any claim for "money damages" is "incidental" to the claim for injunctive relief, which seeks to eliminate the employer's discriminatory policy. Probe, 780 F.2d at 780. Courts have stressed that "[b]ecause one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule 'must be read liberally in the context of civil rights suits.'" Coley v. Clinton, 635 F.2d at 1378. As this Court has stated: "All that need be determined is that conduct of the party opposing the class is such as makes such [injunctive] relief appropriate. This is no limitation on the power of the court to grant other relief to the established class, especially where it is required by Title VII. . . ." Pettway v. American Cast Iron Pipe Co., 494 F.2d at 257; see also Parker v. Local Union No. 1466, 642 F.2d 104, 105-07 (5th Cir. 1981) (class properly certified under Rule 23(b)(2) even though the plaintiffs sought and obtained compensatory and punitive damages); Stolz v. United Bhd. of Carpenters and Joiners of Am., 620 F. Supp. 396, 407 (D. Nev. 1985) (class properly certified under Rule 23(b)(2) despite the availability of punitive damages); 7A C. WRIGHT, A. MILLER, & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE 1775, at 470 (suggesting that "[d]isputes over whether the action is primarily for injunctive or declaratory relief rather than a monetary award . . . should be avoided[;] . . . [i]f the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, . . . [t]hose aspects of the case not falling within Rule 23(b)(2) should be treated as incidental"). In part, courts have routinely certified Title VII class actions under Rule 23(b)(2) because of the pronounced significance of the liability determination in discrimination cases. "The primary purpose of Title VII [is] 'to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.'" Teamsters v. United States, 431 U.S. 324, 348 (1977) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973)). Because an illegal act of discrimination is a "wrong in itself," the award of monetary damages, while not insignificant, is not the central focus of the suit. Smith v. Secretary of Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981); see Ford Motor Co. v. EEOC, 458 U.S. 219, 230 (1982) (stating that Title VII's "primary goal" is "to end discrimination," while its "secondary, fallback purpose is to compensate the victim for their injuries"). The Supreme Court has made clear that because "'[c]laims under Title VII involve the vindication of a major public interest,'" Franks v. Bowman Transp. Co., 424 U.S. 747, 778 n.40 (1976), merely establishing the existence of unlawful conduct serves important public policies. See McKennon v. Nashville Banner Publishing Co., 115 S. Ct. at 885. The Court has indicated that "[t]he disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry-wide significance." Id. Title VII actions exist mainly to eradicate unlawful employment practices. The class action procedures for Title VII cases reflect these views. A "Title VII class action suit imposes on the plaintiff a bifurcated burden of proof." Shipes v. Trinity Indus., 987 F.2d at 318; see also Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1210 (5th Cir. 1978) ("[The Fifth Circuit] has established a bifurcated approach to . . . [Title VII] class actions."), cert. denied, 439 U.S. 1115 (1979); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 458-59 (N.D. Cal. 1994) (noting that "most courts adjudicating civil rights class actions in the employment context opt to bifurcate the liability and damage phases of the trial"). At "Stage I" of the proceeding, the plaintiffs must demonstrate that "the class has been subjected to unlawful racial discriminatory practices." Shipes, 987 F.2d at 318. The plaintiffs are not required to offer evidence, at Stage I, "that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy." Teamsters v. United States, 431 U.S. at 360. Only upon a finding of class-wide liability does the court, at "Stage II," settle the issues of individual relief for the class members. See id. at 361 (stressing that "the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination"). While the Stage II proceeding requires "a separate determination on an individual basis as to who is entitled to recovery and the amount of such recovery," Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th Cir. 1974), the proliferation of these individual relief issues does not detract from the central focus of the suit: the systemic discrimination against the class as a whole. Under the procedural construct for Title VII class actions, the individual damage issues raised by the case are, by definition, secondary to the threshold issue of class-wide liability. C. The Damage Provisions of the Civil Rights Act of 1991 Do Not Affect the Availability of Class Certification Under Rule 23(b)(2) Based on the principles set forth above, there is a compelling argument that the district court erred in denying class certification in this case. The district court held that class certification was not appropriate under Rule 23(b)(2) even though each plaintiff's claim arose from the same "general policy which affects all aspects of Citgo's workforce." Celestine, 165 F.R.D. at 467. The court acknowledged that there was historical support for the certification of Title VII class actions under Rule 23(b)(2) but urged that the provisions of the Civil Rights Act of 1991, providing for the award of compensatory and punitive damages, changed the law. The court ruled that the class-based claim for injunctive or declaratory relief is no longer predominant where the suit is brought "under the new provisions of the Civil Rights Act of 1991." Id. at 468. The district court's rationale turns the 1991 Civil Rights Act on its head. The 1991 Act was passed "to provide additional protections against unlawful discrimination in employment." 2(3), Pub. L. 102-166, 105 Stat. 1071 (1991). The damage provisions, in particular, were adopted "to deter unlawful harassment and intentional discrimination in the workplace." Id. 2(1). Nothing in the text or history of the Act indicates that Congress intended to limit the well-established use of the class action procedure in Title VII actions. Quite to the contrary, the Act was designed to "expand[] the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." Id. (3)(4). Indeed, the history of the 1991 Act demonstrates that Congress intended Title VII's equitable remedies to retain their predominant role in the enforcement of the statute. The damage provisions of the 1991 Act were the subject of substantial congressional debate. There was criticism, in particular, that the new Act would "jettison" Title VII's "existing remedial and conciliatory mechanisms . . . in favor of compensatory and punitive damages." H.R. Rep. No. 40(I), 102nd Cong. 1st Sess., 73, reprinted in, 1991 U.S.C.C.A.N. 549, 611. In responding to these criticisms, the House Committee assured that "expanding Title VII's remedial scheme to permit recovery of damages in cases of intentional discrimination would [not] 'scuttle' any of the statute's existing remedial or conciliation procedures." Id. Stressing that the "damage remedies added by [the Act] are in addition to the equitable remedies . . . already available under Title VII," id. at 74 n.71, U.S.C.C.A.N. at 612 n.71, the Committee reaffirmed that the Title VII litigant acts "as a 'private attorney general' to vindicate the precious rights secured by that statute." Id. at 47, U.S.C.C.A.N. at 585. The Committee intoned that a broad injunctive power was still necessary to carry out Title VII's principal objective: "'root[ing] out discriminatory practices'" and opening "'formerly closed avenues of opportunity to women and minorities.'" Id. (stating that such relief was appropriate regardless of the availability of monetary damages). This history confirms that Title VII's primary goal continues to be the "'elimination of discrimination in the workplace,'" McKennon, 115 S. Ct. at 884, to which the award of monetary damages plays an important, but subservient role. The district court's rationale, if accepted, would prohibit the use of the class action procedure in any case in which the plaintiffs add claims for compensatory and punitive damages to their claim for class-wide injunctive relief. It would mean that Rule 23(b)(2), adopted with the precise purpose of facilitating the use of class actions in the civil rights field, would be nullified as an enforcement tool in Title VII cases unless the plaintiffs were willing to forego any claim for compensatory and punitive damages (which, in turn, would nullify the damage provisions of the 1991 Act in class actions). There is nothing to indicate that Congress intended to limit the damage provisions of the 1991 Act to individual disparate treatment claims. Nor can it be reasonably inferred that, by its enactment of the 1991 Act, Congress intended to repeal Rule 23(b)(2) as it applies to Title VII class actions. See Rodriguez v. United States, 480 U.S. 522, 524 (1987) (repeals of statutes by implication not found absent "'clear and manifest'" evidence of an intent to repeal). The 1991 Act in no way detracts from the continued use of Rule 23(b)(2) in Title VII cases. See Griffin v. Home Depot, 70 FEP Cases 1678, 1680 (E.D. La. 1996) (stating that a finding "that the 1991 amendments" preclude the possibility of class certification under Rule 23(b)(2) "is not supported by the legislative history of the amendments nor logical in light of Congress' intent"). The district court suggested that class certification was inappropriate under Rule 23(b)(2) because it would be "necessary for the parties to present individualized evidence" on the damage issues, thus resulting in "separate" damage hearings. Celestine, 165 F.R.D. at 469. This, however, was also true of the Title VII class actions prior to the 1991 Act. Stage II proceedings have always required "a determination on an individual basis as to which class members are entitled to damages and the amount of such recovery." Shipes, 987 F.2d at 318. It has long been recognized that "a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief." Teamsters, 431 U.S. at 361. Courts have routinely certified Title VII classes under Rule 23(b)(2), despite the possibility of individual damage proceedings, because of the central, defining significance of the class-based attack on the lawfulness of the employer's policies. The 1991 Act in no way alters the fundamental nature of the Title VII class action procedure. See, e.g., Butler v. Home Depot, 70 FEP Cases 51, 54- 56 (N.D. Cal. 1996) (certifying the class under Rule 23(b)(2) despite the plaintiffs' claims for compensatory and punitive damages under the 1991 Civil Rights Act). The district court's procedural concerns, moreover, are overstated. Compensatory damages may raise individualized issues of relief that necessitate the type of Stage II proceedings conducted, historically, in the case of individual claims for make whole relief (e.g., back pay and job instatement). Punitive damages, however, are largely class-based. "Because the purpose of punitive damages is not to compensate the victim, but to punish and deter the defendant, any claim for such damages hinges, not on facts unique to each class member, but on the defendant's conduct toward the class as a whole." Barefield v. Chevron, 48 FEP Cases 907, 911 (N.D. Cal. 1988). The amount of punitive damages can be appropriately determined on a class-wide basis at Stage I of the proceeding, leaving only the prorata apportionment of the damage award at Stage II. Id. at 912. Finally, the district court's concerns, even if valid, are speculative and premature. As noted above, Title VII class actions are tried under a bifurcated procedure. Under this procedure, the issue of monetary damages is not relevant to the case until the threshold issue of class-based liability is resolved. A court can certify a class under Rule 23(b)(2) without the necessity of determining, in advance, the precise procedure by which the individual claims for relief will be resolved. See Pettway v. American Cast Iron Pipe Co., 494 F.2d at 256-61 (class can be certified under Rule 23(b)(2) without deciding in advance whether to award monetary damages on an "individual-by-individual" or "class-wide" basis); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 335-36 (N.D. Ill. 1995) (certifying class under Rule 23(b)(2) even though the "individual claims for damages," should they arise, would have "to proceed separately"); Butler, 70 FEP Cases at 55-56 (certifying the class under Rule 23(b)(2), while reserving any ruling on class certification of the individual claims for compensatory damages). CONCLUSION The district court erred in denying class certification under Rule 23(b)(2). The district court's ruling threatens to extinguish the use of the class action procedure in Title VII cases. The district court's denial of class certification should be reversed. Respectfully Submitted, C. GREGORY STEWART General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ROBERT J. GREGORY Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4059 October 30, 1996 CERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that two copies of the attached brief were sent this 30th day of October, 1996, by first- class mail, postage prepaid, to each of the following counsel of record: Robert L. Wiggins Gordon, Silberman, Wiggins & Childs 1400 SouthTrust Tower Birmingham, Alabama 35203 Walter W. Christy Kullman, Inman, Bee, Downing and Banta P.O. Box 60118 New Orleans, Louisiana 70160 ____________________________________ Robert J. Gregory __________________________ 1 The court also determined that the class could not be certified under Rule 23(b)(3), which provides for certification of a class when "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." The court denied class certification under Rule 23(b)(3) because of concerns about the "manageability" of the case as a class action. Id. at 470-71. Our brief focuses on the court's ruling under Rule 23(b)(2), which we believe is the appropriate class-action vehicle for vindicating civil rights claims. 2 Conceivably, the district court's approach would not preclude a court from certifying the class under Rule 23(b)(3). Such an approach, however, would leave the district court with the discretion to deny class certification in cases that have been historically certified as class actions as a matter of course under Rule 23(b)(2). See Coley v. Clinton, 635 F.2d at 1378 (stressing that because Rule 23(b)(2) was designed "to enable plaintiffs to bring lawsuits vindicating civil rights," the "district court's discretion" in denying class certification under Rule 23(b)(2) is "limit[ed]"). Indeed, in this case, the district court refused to certify the class under Rule 23(b)(3), citing to concerns with the "manageability" of the class. Celestine, 165 F.R.D. at 470-71. 3 The district court suggested that the 1991 Act, by establishing the right to a jury trial for damage claims, undermined the "manageability" and "efficiency" of the class action procedure. Celestine, 165 F.R.D. at 470-71. As the court recognized, however, concerns about the "manageability" or "efficiency" of a class action are relevant, if at all, only to the court's analysis under Rule 23(b)(3). Id. See also Forbush v. J.C. Penney Co., 994 F.2d 1101, 1105 (5th Cir. 1993) ("questions of manageability and judicial economy are . . . irrelevant to 23(b)(2) class actions"). Further, while the district court expressed concern with "the practical considerations of having one jury sit long enough to adjudicate all of the claims of the putative class," the court's concern was based on the questionable legal premise that an employer has a "'Seventh Amendment right'" to have the same jury determine liability and damages. 165 F.R.D. at 470-71. "As evidenced by the numerous cases across the country that have addressed this issue, the Seventh Amendment does not mandate that all phases of the litigation be heard by the same jury." Butler v. Home Depot, 70 FEP Cases 51, 56 (N.D. Cal. 1996) (stressing that in a Title VII class action, the "individual claims" adjudicated "in the second phase of the proceedings" would be sufficiently distinct from the issue of class-wide liability to permit consideration by separate juries).