Davis, et al v. Cintas Corporation

Filing

OPINION and JUDGMENT filed : The denial of class certification and the grant of summary judgment on Davis's disparate-impact claims and her 2004 disparate-treatment claim are AFFIRMED. The grant of summary judgment on Davis's 2003 disparate-treatment claim is REVERSED, and the case is REMANDED to the district court for further proceedings. Decision for publication. Danny J. Boggs (AUTHORING), John M. Rogers, and Jeffrey S. Sutton, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0154p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________________
X
No. 10-1662
v.
>
,
CINTAS CORPORATION,
Defendant-Appellee. N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-cv-12311—Sean F. Cox, District Judge.

TANESHA DAVIS,

Plaintiff-Appellant,

Argued: January 27, 2012
Decided and Filed: May 30, 2013
Before: BOGGS, ROGERS, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Judson H. Miner, MINER, BARNHILL & GALLAND, P.C., Chicago,
Illinois, for Appellant. Nancy L. Abell, PAUL HASTINGS LLP, Los Angeles,
California, for Appellee. P. David Lopez, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF: Judson H. Miner,
MINER, BARNHILL & GALLAND, P.C., Chicago, Illinois, for Appellant. Nancy L.
Abell, Heather A. Morgan, PAUL HASTINGS LLP, Los Angeles, California, for
Appellee. P. David Lopez, Jennifer S. Goldstein, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., Jocelyn Larkin, IMPACT FUND,
Berkeley, California, Lenora M. Lapidus, Dennis D. Parker, Ariela Migdal, Yelena
Konanova, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York, Kary L. Moss, Michael J. Steinberg, Jessie J. Rossman, AMERICAN CIVIL
LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Amici Curiae.

1

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_________________
OPINION
_________________
BOGGS, Circuit Judge. Tanesha Davis sued Cintas Corporation, individually
and on behalf of a class of female job applicants denied employment as entry-level sales
representatives. She alleged that Cintas’s hiring practices led to gender discrimination,
in violation of Title VII, and caused Cintas to reject her application for employment
twice. The district court denied Davis’s motion for class certification, and ultimately
granted summary judgment for Cintas on her individual claims. Davis appeals. We
affirm the district court’s denial of class certification. We also affirm its grant of
summary judgment on her individual disparate-treatment claim arising in 2004 and her
disparate-impact claim. However, we reverse the district court’s grant of summary
judgment for Cintas on Davis’s disparate-treatment claim arising in 2003, and remand
for further proceedings consistent with this opinion.
I
According to Cintas’s promotional materials, service sales representatives are
“[t]he #1 link between our customers and our company operations. The Service Sales
Representative is Cintas.” More specifically, the position involves delivering and selling
Cintas’s wares—“corporate identity uniforms and value-added products”—and
providing direct customer service.
Although Cintas is a large corporation with many locations nationwide, its
corporate policy is “to run one business in many different cities instead of running
many different businesses in different cities.” “[A]ll Cintas operations use the same
terminology, use the same forms and paperwork, and ‘run their stores’ the same way.”
Hiring for the service-sales-representative position is no exception. All Cintas locations
use—and used at all times relevant to this claim—the “Meticulous Hiring System.” This
policy provides: “No person will be hired in the company until [Cintas has] identified
the traits and competencies needed to be successful in the position. The traits and

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competencies must be documented in a list of ‘must have’ and ‘preferred’ hiring
standards for each position.”
For the service-sales-representative position, “Must Haves” include both
objective and subjective elements. Objectively, applicants must achieve a minimum
score on a standardized test given to all service-sales-representative applicants, have a
driver’s license and a GED or high-school diploma, and be able to lift forty pounds.
Subjectively, applicants must demonstrate customer orientation, sales orientation,
integrity, dependability, achievement orientation, flexibility, stress tolerance, openness
to differences, tenacity, initiative, persuasiveness, professionalism, compensation
compatibility, and a stable employment history. There are also both objective and
subjective “Preferreds.” Objectively, Cintas would like candidates to achieve a score
between twenty-one and twenty-seven on the Wonderlic-WPT test (a type of intelligence
test); subjectively, it seeks candidates who have successful sales experience, successful
customer-service experience, and the ability to work without supervision.
Cintas uses a sixteen-step process to determine whether candidates meet these
criteria. After Cintas decides that a location needs a service sales representative and
posts the job, managers screen applications and resumes. Next, managers conduct
screening interviews, using a guide that contains pre-scripted questions, and invite
qualified applicants to visit a Cintas location and take pre-employment tests. Managers
then collect the applicant’s application materials, and administer the Wonderlic-WPT
test and the “ePredix SSR Test.”

If an applicant scores well enough on these

examinations, she receives a “1st In-depth Interview using [Cintas’s service-salesrepresentative] 1st In-depth Interview Guide.” After this first interview, qualified
applicants go on a “route ride,” and Cintas “[c]ollect[s] paperwork,” including tax forms
and driving records. If the applicant completes her “route ride” successfully, she
receives a “2nd In-depth Interview using [Cintas’s service-sales-representative] 2nd Indepth Interview Guide.” The applicant’s last step is a final interview, often with a
Location’s general manager. Management then confers with everyone involved in the
interview process, performs a criminal background check, a drug screening, a driving-

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record and credit-record check, contacts the applicant’s references, and finally
determines whether to offer the candidate a job.
Although this process has well-defined steps, set as a matter of corporate policy,
individual managers at different locations ultimately make the hiring decisions, based
on local needs. Cintas’s national hiring profile states that “[a]dditional Preferreds can
be added to accommodate the needs of the Division, Group, or Location.” Some
locations, for instance, emphasized sales experience over customer-service experience
because of intense market competition, while others preferred the inverse because
difficult economic conditions made keeping existing customers crucial.
Service sales representatives were historically male. From June 1999 to October
2006, more than ninety percent of the managers charged with hiring service sales
representatives were male. This overwhelmingly male group overwhelmingly hired
males. After Cintas implemented the Meticulous Hiring System in 2003, however,
female hiring rose dramatically. Between 1999 and 2002, the percentage of women hired
for the service-sales-representative position never rose above seven percent. In 2003,
the year corporate-level management instructed other managers to “put the myth that
females cannot be SSRs out of [their] mind and hire more women SSRs,” and
implemented the Meticulous Hiring System, that number rose to 7.8 percent. In 2004,
it rose to 10.9 percent, and in 2005 it rose to 20.8 percent.
Anecdotal accounts support the data suggesting that Cintas managers saw the
service-sales-representative position as a man’s position. According to a former
manager, who was male, other managers at one Cintas location opined that women could
not handle the responsibilities of a service sales representative. Sharon Punch-Johnson,
a female applicant who was ultimately rejected, averred that a manager asked whether
her husband would be comfortable with his wife working predominantly with males. In
her deposition, Kristi Clement Williams, another female applicant, claimed that a Cintas
manager suggested that females might not be comfortable in the service-salesrepresentative position because the job required going into men’s locker rooms, and
depended on interactions with customers in “a predominantly male environment.” Still

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another female applicant claimed in a declaration that a Cintas manager bluntly told her:
“Cintas preferred to hire men in [the service-sales-representative] position[].”
Tanesha Davis, then a store manager for LensCrafters, first applied for a servicesales-representative position at Cintas’s Franklin, Wisconsin location, Location 447, in
2003. Human-Resources Manager Christine Richards conducted a screening interview
and took notes.

Although she does not now recall the interview, Richards’s

contemporaneous notes suggest that she rejected Davis at the screening stage because
Davis said that she disliked having to sell products that she considered overpriced, and
that she wanted to continue working another job part-time. Richards, of course, is
adamant that she did not reject Davis because of her race or gender. Rather, Richards
claims, Davis was simply not the best-qualified applicant for Location 447’s available
service-sales-representative position. Approximately three months before Davis applied,
Location 447 had hired another female service sales representative. It hired one male
service sales representative just before Davis applied, and another two while her
application was pending.
Davis applied again one year later. This time, she advanced further into the
hiring process. She passed her initial screening interview, even though she expressed
concerns about working in bad weather, and achieved the second highest score recorded
during 2003 and 2004 on one of Cintas’s standardized tests. Matt Presendofer, the
manager who observed Davis’s route ride, reported that “she did a lot of things well out
on the route.” Presendofer even opined that, “from a customer standpoint . . . and from
a sales standpoint[] [s]he had all the . . . attributes we wanted for a SSR candidate.” He
expressed concerns, however, about her level of physical energy and her efficiency. As
in 2003, Cintas ultimately chose not to hire Davis. Eight days after Davis’s route ride
in 2004, Location 447 hired another woman. While her 2004 application was pending
Cintas hired three male service sales representatives, and hired a fourth man within two
months after rejecting Davis’s application.
This lawsuit, though, did not start with Davis. It began instead in January 2004
in the United States District Court for the Northern District of California, where a group

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of Cintas employees, which did not include Davis, filed a civil-rights class-action lawsuit
under 42 U.S.C. § 1981 and the California Unfair Business Practices Act. The plaintiffs
amended their complaint five months later, adding a Title VII claim, a claim under the
California Fair Employment and Housing Act, and two additional plaintiffs. The parties
then agreed to transfer the California action to the United States District Court for the
Eastern District of Michigan, where another hiring-discrimination case was pending
against Cintas, and to consolidate the two cases for pretrial proceedings.
Cintas next moved (1) for summary judgment on the individual claims of one of
the California plaintiffs, and (2) to limit the Michigan case’s purportedly nationwide
class to the State of Michigan. Counsel in the California case sought leave to add Davis
and another woman, Cindy Patterson, as named plaintiffs.
While these motions were pending, plaintiffs in both cases made a joint motion
to certify a class, consisting of “all females who unsuccessfully applied for the SSR job
at any time on or after June 12, 1999.” They requested certification for claims involving
declaratory and equitable relief under Federal Rule of Civil Procedure 23(b)(2) and
certification for their classwide punitive-damages claim under Rule 23(b)(3). Before
resolving the class-certification motion, the district court granted leave to add Davis and
Patterson as plaintiffs, granted summary judgment for Cintas on the California plaintiff’s
claim, and limited the Michigan claims to Michigan.
Ultimately, the district court denied class certification. Serrano v. Cintas Corp.,
Nos. 04-40132, 06-12311, 2009 WL 910702, at *1 (E.D. Mich. Mar. 31, 2009). It
reasoned that the putative class did not satisfy Rules 23(a)(2), 23(a)(3), 23(a)(4),
23(b)(2), or 23(b)(3), because the case involved a “hiring process . . . conducted by
thousands of Cintas managers at hundreds of Cintas facilities,” id. at *5, there was a
“conflict between the interests of the named and unnamed class members,” id. at *9, and
“the damages sought by Plaintiffs would require individualized determinations
inappropriate for a [Rule 23(b)(2)] class action.” Id. at *10. The court denied a Rule
23(f) petition for interlocutory appeal. All remaining plaintiffs, except for Davis,
dismissed their individual claims and all class claims, except for the gender-

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discrimination claim before us.
discrimination claim.

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Davis maintained her individual employment-

Cintas, however, moved for—and was granted—summary

judgment on that issue. Davis appeals, individually and on behalf of the genderdiscrimination class.
II
A
Federal Rule of Civil Procedure 23 allows a plaintiff to pursue claims on behalf
of a class of similarly situated individuals if she demonstrates that she is “part of the
class and ‘possess[es] the same interest and suffer[s] the same injury’ as the class
members.” East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
To justify this “exception to the usual rule that litigation is conducted by and on behalf
of the individual named parties only,” Califano v. Yamasaki, 442 U.S. 682, 700–01
(1979), the plaintiff must meet a series of conditions laid out in Rule 23 to ensure, first,
that she is an appropriate representative for absent class members, and, second, that her
claim is appropriate for classwide resolution. See Fed. R. Civ. P. 23.
Class-certification litigation is the process of determining whether a plaintiff can
meet these conditions. The analysis proceeds in two steps. Rule 23(a) is “the starting
gate.” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2562 (2011) (Ginsburg, J.,
concurring in part and dissenting in part). It establishes four requirements:
(1) the class [must be] so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.

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Fed. R. Civ. P. 23(a)(1)–(4).1 If the plaintiff does not satisfy each of these requirements,
her class claim fails at the threshold. If, however, the plaintiff shows that she is an
appropriate representative within the meaning of Rule 23(a), the focus shifts to the case
itself.
Under Rule 23(b), four types of lawsuits may proceed as class actions.
Specifically, class resolution is appropriate when:
(1) prosecuting separate actions by or against individual class members
would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish
incompatible standards of conduct for the party opposing
the class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be dispositive
of the interests of the other members not parties to the
individual adjudications or would substantially impair or
impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a
whole; or
(3) the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.
Fed. R. Civ. P. 23(b)(1)–(3). If the plaintiff’s claim does not fall into one of these
categories, class certification is inappropriate, even if the plaintiff meets each of Rule
23(a)’s four threshold requirements.
In sum, then, a plaintiff must show that she meets all four Rule 23(a) criteria, and
that her case falls into at least one of the four Rule 23(b) categories. If she fails to satisfy
any of these requirements, class certification is not appropriate.

1

Some courts also impose two “implicit requirements,” definiteness and membership in the class,
in addition to Rules 23(a)(1)–(4). See 5 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS
ACTIONS § 3:1 (2011). These supplemental—perhaps superfluous—prerequisites, however, are not at issue
here.

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The district court must conduct “a rigorous analysis,” Gen. Tel. Co. of the Sw.
v. Falcon, 457 U.S. 147, 161 (1982), at “an early practicable time . . . [to] determine by
order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A).
“Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the
plaintiff’s underlying claim. That cannot be helped.” Dukes, 131 S. Ct. at 2551. Thus,
in the class-certification context, courts are permitted to “probe behind the pleadings,”
Falcon, 457 U.S. at 160, and “touch[] aspects of the merits.” Dukes, 131 S. Ct. at 2552.
Because “[a] district court’s class-certification decision calls for an exercise of
judgment,” our review is narrow. Pilgrim v. Universal Health Card, LLC, 660 F.3d 943,
946 (6th Cir. 2011). We reverse only if the district court abused its discretion or applied
an erroneous legal standard. Ibid.
B
“Title VII . . . contains no special authorization for class suits maintained by
private parties. [Therefore,] [a]n individual litigant seeking to maintain a class action
under Title VII must meet the prerequisites of numerosity, commonality, typicality, and
adequacy of representation specified in Rule 23(a).” Falcon, 457 U.S. at 156. In 2011,
the Supreme Court addressed this particular type of class certification in Dukes.
Accordingly, our first task is to determine precisely what impact that case has on Davis’s
bid for class certification.
Dukes, like this case, involved allegations of gender discrimination. The
plaintiffs alleged that Wal–Mart systematically discriminated against women in pay and
promotion decisions. Dukes, 131 S. Ct. at 2547. Those “decisions at Wal–Mart [were]
generally committed to local managers’ broad discretion,” although, particularly for
promotion decisions, some objective requirements did apply. Ibid.
The plaintiffs brought a class-action lawsuit on behalf of 1.5 million women,
under Title VII. Ibid.
Importantly for [the Court’s] purposes, [the plaintiffs] claim[ed] that the
discrimination to which they [had] been subjected [was] common to all

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Wal–Mart’s female employees. The basic theory of their case [was] that
a strong and uniform “corporate culture” permit[ted] bias against women
to infect, perhaps subconsciously, the discretionary decisionmaking of
each one of Wal–Mart’s thousands of managers—thereby making every
woman at the company the victim of one common discriminatory
practice. [The plaintiffs] therefore wish[ed] to litigate the Title VII
claims of all female employees at Wal–Mart’s stores in a nationwide
class action.
Id. at 2548. They sought “injunctive and declaratory relief, punitive damages, and
backpay,” but not compensatory damages. Ibid.
For a 5–4 majority, Justice Scalia held that the case could not proceed as a class
action because the plaintiffs could not establish commonality, within the meaning of
Rule 23(a)(2). He began by noting that, to have suffered a violation of the same
provision of law—Title VII, for instance—is not necessarily to have suffered the same
injury. To satisfy commonality, Justice Scalia reasoned, a putative class representative’s
claims must depend upon a common contention—for example, the
assertion of discriminatory bias on the part of the same supervisor. That
common contention, moreover, must be of such a nature that it is capable
of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of
the claims in one stroke.
Id. at 2251.
Justice Scalia next discussed commonality in the Title VII context, where
plaintiffs like Dukes “wish to sue about literally millions of employment decisions at
once.” Id. at 2252. “Without some glue holding the alleged reasons for all those
[employment] decisions together,” he wrote, “it will be impossible to say that
examination of all the class members’ claims for relief will produce a common answer
to the crucial question why was I disfavored.” Ibid.
To determine whether Dukes’s class had sufficient commonality, Justice Scalia
went to a familiar source: Falcon. That case, he held, “describes how the commonality
issue must be approached.” Id. at 2252–53. In Falcon, “an employee who claimed that
he was deliberately denied a promotion on account of race obtained certification of a

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class comprising all employees wrongfully denied promotions and all applicants
wrongfully denied jobs.” Id. at 2253. The Supreme Court reversed. It noted:
Conceptually, there is a wide gap between (a) an individual’s claim that
he has been denied a promotion on discriminatory grounds, and his
otherwise unsupported allegation that the company has a policy of
discrimination, and (b) the existence of a class of persons who have
suffered the same injury as that individual, such that the individual’s
claim and the class claims will share common questions of law or fact
and that the individual's claim will be typical of the class claims.
Falcon, 457 U.S. at 157. To bridge that conceptual gap, Justice Scalia reasoned, the
party seeking class certification must show that the defendant “used a biased testing
procedure,” Dukes, 131 S. Ct. at 2553 (citing Falcon, 457 U.S. at 159 n.15), or she must
produce “[s]ignificant proof that an employer operated under a general policy of
discrimination . . . if the discrimination manifested itself in hiring and promotion
practices in the same general fashion, such as through entirely subjective decisionmaking
processes.” Ibid. (citing Falcon, 457 U.S. at 159 n.15). Dukes succeeded in neither of
these tasks and thus did not meet Rule 23(a)(2)’s threshold commonality requirement.
Justice Scalia also held, this time for a unanimous court, that “claims for
monetary relief . . . may not [be certified under Rule 23(b)(2)], at least where . . . the
monetary relief is not incidental to the injunctive or declaratory relief.” Id. at 2557. He
reasoned:
at a minimum, claims for individualized relief (like the backpay at issue
here) do not satisfy the Rule . . . . Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide relief to each
member of the class. It does not authorize class certification when each
individual class member would be entitled to a different injunction or
declaratory judgment against the defendant. Similarly, it does not
authorize class certification when each class member would be entitled
to an individualized award of monetary damages.
Ibid. The only possible exception, Justice Scalia continued, is “monetary relief that is
incidental to requested injunctive or declaratory relief.” Id. at 2560 (internal quotation
marks omitted). But the court did not decide the issue because the monetary relief

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Dukes sought, backpay, was not incidental to declaratory or injunctive relief. To the
contrary, Wal–Mart had the right to raise affirmative defenses to each individual
backpay determination.2 “And because the necessity of that litigation will prevent
backpay from being ‘incidental’ to the classwide injunction,” Rule 23(b)(2) certification
was not appropriate. Id. at 2561.
Justice Ginsburg concurred in part and dissented in part. She agreed with Justice
Scalia’s conclusion that Rule 23(b)(2) certification was not appropriate. Id. at 2561
(Ginsburg, J., concurring in part and dissenting in part). She took issue, however, with
the majority’s interpretation of Rule 23(a)(2), arguing that the Opinion of the Court
“import[ed] into the Rule 23(a) determination concerns properly addressed in a Rule
23(b)(3) assessment.” Id. at 2562. “The Court’s emphasis on differences between class
members,” she argued, “mimics the Rule 23(b)(3) inquiry into whether common
questions ‘predominate’ over individual issues. And by asking whether the individual
differences ‘impede’ common adjudication, the Court duplicates 23(b)(3)’s question
whether ‘a class action is superior’ to other modes of adjudication.” Id. at 2566.
Therefore, while she agreed that Dukes’s claim failed under Rule 23(b)(2), she believed
that “[a] putative class of this type may be certifiable under Rule 23(b)(3),” and
suggested: “Whether the class the plaintiffs describe meets the specific requirements of
Rule 23(b)(3) . . . [should be] reserve[d] . . . for consideration and decision on remand.”
Id. at 2561.
Dukes, in many ways, is similar to this case. Each involves a challenge to a
national corporation’s employment practices. In each, the allegedly discriminatory
employment decisions are ascribed to a corporate culture allegedly unfavorable to

2

As a solution to this problem, Dukes proposed a “Trial by Formula” process. Under this system,
the district court would appoint a master to determine whether and how much backpay was due to a sample
set of class members. The court would then multiply the total number of class members by the percentage
of claims the special master determined were valid. Next, it would multiply that number by the average
backpay award for sample claimants with a valid claim to determine the class’s recovery. The Court did
not make clear whether Dukes proposed that the class’s recovery would be distributed pro rata, whether
there would be some sort of claims procedure, based on the particular applicant’s date of non-promotion,
or whether class counsel would dispose of the money through a cy pres distribution. Regardless, the Court
held that the Trial by Formula approach would violate the Rules Enabling Act because it would abridge
or modify Wal–Mart’s right to present affirmative defenses to individual backpay determinations. Dukes,
131 S. Ct. at 2561.

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women. In each, applicants had to meet a basic set of criteria, but managers retained
significant discretion over the challenged employment decisions. And in each, the class
representative sought to prove her discrimination claim with a combination of statistical
and anecdotal evidence.
C
The district court declined to certify Davis’s proposed class, based on Rules
23(a)(2)–(4), and 23(b)(2)–(3). Because the district court did not abuse its discretion as
to Rule 23(a)(2) or Rule 23(b)(2), we affirm its decision denying class certification. We
express no opinion on the district court’s treatment of Rules 23(a)(3) and 23(a)(4).3
Rule 23(a)(2): Commonality
Under Rule 23(a)(2), a plaintiff must show that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). Dukes clarified the scope of this
inquiry. To satisfy Rule 23(a)(2), a plaintiff’s “claims must depend upon a common
contention . . . . [which is] of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct.
at 2551. The crucial inquiry, the court explained, is “the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the litigation.”
Ibid. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97, 132 (2009)). “In other words, Plaintiffs must have a common
question that will connect many individual promotional decisions to their claim for class
relief.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011).
The district court held that Davis did not satisfy this requirement. It reasoned,
first, that Cintas’s hiring process was not entirely subjective, and therefore might not
“support a finding of a ‘general policy of discrimination.’” Serrano, 2009 WL 910702,
at *5 (quoting Bacon v. Honda of Am. Mfg., 205 F.R.D. 466, 477 (S.D. Ohio 2001)). But

3

23(b)(3).

Davis does not appeal the district court’s determination that her suit does not satisfy Rule

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“[m]ore importantly,” it continued, “the hiring process in this case is conducted by
thousands of Cintas managers at hundreds of Cintas facilities. Hiring decisions are made
for a diverse range of reasons and depend on widely differing circumstances at each
facility.” Ibid. The district court also pointed out that Cintas’s hiring process had many
different steps and, at some points, involved hiring managers who are women
themselves. It reasoned, therefore: “Putative class members would have suffered the
alleged discrimination in different ways at different stages of the hiring process, and
depending on the different Cintas employees involved at each hiring stage.” Ibid. The
court found Davis’s statistical evidence unpersuasive, holding that Cintas’s experts
pointed to “discrepancies [that] undermine[d] a conclusion that the statistics are
sufficient to demonstrate that there is a common, class-wide discriminatory impact
against the putative class members.” Id. at *6. Equally unconvincing, it held, was Dr.
Barbara Reskin’s expert opinion that Cintas had a white-male-dominated business
culture, which replicated itself in hiring decisions. Finally, the court did “not find that
[Davis’s anecdotal accounts were] . . . compelling instances of discrimination against
women.” Id. *7.
In response, Davis argues that her “statistical evidence establishes a pattern of
underhiring across locations . . . [that] is more than sufficient to satisfy commonality.”
Appellant’s Br. 36. She also argues that the district court erred by holding that “the
existence of the few minimal objective standards for the SSR job . . . per se precluded
certification,” ibid., and that “commonality was barred per se because the challenged
decisionmaking is made by multiple managers at multiple locations.” Id. at 38. Finally,
Davis claims that the existence of individual questions, such as Cintas’s justification for
an individual hiring decision or who Cintas hired instead of the class member, does
not necessarily preclude commonality.

Rather, she suggests, “these are issues

for . . . additional remedial proceedings.” Id. at 41.
Davis’s arguments do not show that the district court abused its discretion,
particularly in light of Dukes. Under the Dukes framework, Davis would have to show
that Cintas “used a biased testing procedure” or “operated under a general policy of

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discrimination.” Dukes, 131 S. Ct. at 2553. As in Dukes, the gravamen of Davis’s claim
is not that the Meticulous Hiring System’s objective criteria led to an anti-female bias,
but that subjective decisions made by some of Cintas’s managers favored males because
of Cintas’s male-dominated corporate culture.
“[S]ubjective or discretionary employment practices may be analyzed under the
disparate impact approach in appropriate cases.” Watson v. Fort Worth Bank and Trust,
487 U.S. 977, 991 (1988); accord Dukes, 131 S. Ct. at 2554. When plaintiffs challenge
employment practices in a large, national corporation, however, “demonstrating the
invalidity of one manager’s use of discretion will do nothing to demonstrate the
invalidity of another’s.” Dukes, 131 S. Ct. at 2554. Unless a plaintiff can somehow
show that the corporation’s managers all used “a common mode of exercising discretion
that pervades the entire company,” Dukes explains, “[a] party seeking to certify a
nationwide class will be unable to show that all the employees’ Title VII claims will in
fact depend on the answers to common questions.” Id. at 2554–55.
The court in Dukes explained that the plaintiffs’ sociological, statistical, and
anecdotal evidence—all of which was similar to the evidence offered here—was not
sufficient to show a uniform, companywide practice of exercising discretion in a way
that favored men over women. Applying the abuse-of-discretion standard, we affirm the
district court’s determination that Davis’s statistical evidence, sociological analysis, and
anecdotal accounts did not satisfy Rule 23(a)(2). As to each type of evidence, the
district court weighed the parties’ competing arguments and found that Davis’s proffered
evidence did not support a finding of companywide gender discrimination. We may not
overturn this determination unless the district court “relie[d] on erroneous findings of
fact, applie[d] the wrong legal standard, misapplie[d] the correct legal standard when
reaching a conclusion, or ma[de] a clear error of judgment.” Pipefitters Local 636 Ins.
Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir. 2011).
Davis’s experts suggested that women and minorities were under-represented
in service-sales-representative positions companywide. Serrano, 2009 WL 910702, at
*6 Cintas’s experts countered by questioning Davis’s experts’ methods and models, and

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concluding that “although some Cintas locations under-hired women and racial
minorities, other locations over-hired women and racial minorities during the same
period.” Ibid.4 The district court found Cintas’s experts more persuasive.
Davis presented a report from Dr. Barbara Reskin, “purporting to show that a
common white male business culture at Cintas tends to perpetuate its culture by
discriminating against women and racial minorities.” Ibid. Cintas, of course, argued
that Reskin’s conclusion was untenable. “After a close consideration of the parties’
respective positions, the Court [concluded] . . . that Dr. Reskin’s report [was] not
persuasive.” Ibid. It questioned Reskin’s methodology, the applicability of her general
thesis to specific instances of discrimination, and noted that Cintas had made “sincere
attempts to achieve greater diversity in its company.” Id. at *7.
Finally, Davis presented anecdotal evidence of Cintas managers telling women
that the job involved heavy lifting, entering male locker rooms, and dealing with dirty
laundry. The court found, first, that these statements “could be interpreted as instances
of Cintas managers giving applicants full disclosure of the demands and duties of the
SSR position,” and second that “[e]ven assuming that these statements constituted
particular instances of discrimination, commonality is not satisfied; on the contrary,
these statements illustrate that the circumstances of discrimination are highly
individualized and cannot be adequately treated in a generalized class action setting.”
Ibid.
None of these evidentiary determinations was an abuse of discretion. Combined,
they led the district court to the same conclusion that the Supreme Court reached in
Dukes: the plaintiff did not satisfy Rule 23(a)(2) because she could not show that a
number of women, who failed to obtain employment at many places, over a long time,
under a largely subjective hiring system, shared a common question of law or fact. We
affirm.
4

The district court, for the purposes of argument, accepted Davis’s data on this point, meaning
that it measured under- or over-hiring in relation to employment rates in certain classes of jobs, based on
one or more census codes. Census codes are numbers assigned to particular jobs (not necessarily the same
as Cintas’s jobs) when tallying responses to a census.

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Rule 23(b)(2): Injunctive or Declaratory Action
Davis moved for class certification under both Rule 23(b)(2) and Rule 23(b)(3).
However, she only challenges the district court’s determination that class certification
under Rule 23(b)(2) was inappropriate. Any appeal from denial of certification under
Rule 23(b)(3) is, therefore, forfeited. See Miller v. Admin. Office of the Courts, 448 F.3d
887, 893 (6th Cir. 2006) (holding that issues not raised in opening appellate briefs are
considered forfeited).
Rule 23(b)(2) provides that class certification is permissible where a class
representative meets all of Rule 23(a)’s requirements and “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class
as a whole.” Fed. R. Civ. P. 23(b)(2).
The district court held that Davis did not meet this requirement because, in
addition to seeking declaratory and injunctive relief, she sought front pay and back pay.
Serrano, 2009 WL 910702, at *9–10. It reasoned that Cintas’s decentralized hiring
policy meant that it did not act in a manner that applied generally to the class, and held:
“the damages sought by Plaintiffs would require individualized determinations
inappropriate for a [Rule 23(b)(2)] class action.” Id. *10. Front pay and back pay
calculations, the court continued, would “necessarily predominate over requested
declaratory or injunctive relief and the requested damages cannot be recovered pursuant
to Rule 23(b)(2).” Ibid. (internal quotation marks omitted).
The Supreme Court unanimously spoke in a similar vein in Dukes. “[W]e think,”
it wrote, “that, at a minimum, claims for individualized relief (like the backpay at issue
here) do not satisfy the Rule.” Dukes, 131 S. Ct. at 2557. It continued:
Rule 23(b)(2) applies only when a single injunction or declaratory
judgment would provide relief to each member of the class. It does not
authorize class certification when each individual class member would
be entitled to a different injunction or declaratory judgment against the
defendant. Similarly, it does not authorize class certification when each

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class member would be entitled to an individualized award of monetary
damages.
Ibid. The Court reasoned that there might be an exception to this rule if monetary relief
were incidental to the declaratory or injunctive relief the plaintiffs sought. Id. at 2560.
In the Title VII context, however, the Court held that defendants are entitled to
“individualized determinations of each employee’s eligibility for backpay,” and thus
“the necessity of [litigating individuals’ claims] will prevent backpay from being
incidental to the classwide injunction.” Id. at 2560–61.
Davis claims that Dukes does not bar certification of her Rule 23(b)(2) class
action because her “shortfall-based model” is distinguishable from the “trial-by-formula”
system the Supreme Court expressly rejected in Dukes. Appellant’s Supp. Br. 4–5.
Under Davis’s system, the court would declare Cintas’s hiring practices discriminatory
and issue an injunction ordering Cintas to hire class members “randomly selected in
numbers equal to the proven shortfalls for each facility.” Id. at 5. “Davis will [then]
calculate Cintas’ backpay liability for the class as a whole by multiplying the proven
shortfall times lost wages.5 This calculation will be the limit of Cintas’ liability for
backpay, which will be distributed among eligible class members, pro rata.” Ibid.
The “trial-by-formula” system, which the Supreme Court rejected in Dukes, was
similar. It provided that the district court would appoint a master to determine whether
and how much backpay was due to a sample set of class members. The court would then
multiply the total number of class members by the percentage of claims the special
master determined were valid. Next, it would multiply that number by the average
backpay award for sample claimants with a valid claim to determine the class’s recovery.
Dukes, 131 S. Ct. at 2560–61. The Supreme Court rejected this system under the Rules
Enabling Act, holding that it abridged or modified Wal–Mart’s statutory right to assert
individual defenses to individual awards of backpay. Id. at 2561.

5

Davis’s expert calculated the shortfall as approximately 900 jobs. Appellant’s Supp. Br. 5 n.8.
Davis does not, however, explain how it would calculate when the shortfall occurred. For instance, a
hypothetical woman not hired in 1999 would be due substantially more than a hypothetical woman not
hired in 2003.

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Davis’s proposed system suffers from a similar, but even more troubling,
infirmity. Dukes made clear that Cintas has the right to present defenses before paying
any person an award of backpay. Davis’s system deprives Cintas of that right. But
worse, Davis’s “shortfall-based” model, unlike the “trial-by-formula” system, makes no
effort to individualize damages at all. Under the “shortfall-based” model, a woman
denied a job in 2004 would receive precisely the same recovery as a woman denied a job
in 1999. At least in the “trial-by-formula” system, plaintiffs have statistical similarity.
Davis’s system for determining class recovery, therefore, is worse than the system that
the Supreme Court unanimously rejected in Dukes. Individualized monetary relief is
therefore not incidental to the injunctive and declaratory relief Davis seeks, and the
district court was correct to deny class certification under Rule 23(b)(2). Ibid.
III
That class certification is inappropriate in this case does not vitiate Davis’s
individual claims. We therefore proceed to consider whether the district court properly
granted summary judgment for Cintas on Davis’s individual disparate-treatment and
disparate-impact claims.
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). We review the grant of a motion for summary judgment
de novo, construing all evidence and drawing all inferences against the moving party.
Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011). However, “the mere
existence of a scintilla of evidence in support of [the non-moving party’s] position will
be insufficient; there must be evidence on which the jury could reasonably find for the
[non-moving party].” Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 576 (6th Cir.
2008).
A
When a plaintiff alleges, based on circumstantial evidence, that she suffered
disparate treatment in violation of Title VII, we analyze her claim using the familiar

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McDonnell Douglas burden-shifting analysis. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973). In the McDonnell Douglas framework, Davis must make
out a prima facie case of discrimination. Id. at 802. If she meets this requirement,
Cintas must offer some legitimate, nondiscriminatory explanation for its employment
decision. Ibid. If the company produces such an explanation, Davis must point out
“evidence from which a jury could reasonably reject [Cintas’s] explanation.” Chen v.
Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). Davis bears this third burden, even
when opposing a motion for summary judgment. Ibid. She must, therefore, point to
evidence that, taken in a light most favorable to her, could lead a reasonable jury to
reject Cintas’s proffered explanations.
While “a plaintiff’s prima facie case, combined with sufficient evidence to find
that the employer’s asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated,” there are also “instances where, although
the plaintiff has established a prima facie case and set forth sufficient evidence to reject
the defendant’s explanation, no rational factfinder could conclude that the action was
discriminatory.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
Davis alleges two separate instances of disparate treatment—one by Richards in
2003, and one by Cintas’s collective hiring personnel in 2004. Below, as here, Cintas
conceded that Davis established a prima facie case of discrimination, and only litigated
the issue of pretext.
A plaintiff may show pretext by demonstrating: “(1) that the proffered reasons
had no basis in fact, (2) that the proffered reasons did not actually motivate [the adverse
employment action], or (3) that they were insufficient to motivate [the adverse
employment action].” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 460 (6th
Cir. 2004); Chen, 580 F.3d at 400. This test, however, is not rigid, and “it is important
to avoid formalism in its application, lest one lose the forest for the trees. Pretext is a
commonsense inquiry: did the employer fire [or, as here, refuse to hire] the employee
for the stated reason or not?” Chen, 580 F.3d at 400 n.4. “[B]ecause a prima facie case
[of discrimination] and sufficient evidence to reject the employer’s explanation may

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permit a finding of liability . . . [Davis need not] introduce additional, independent
evidence of discrimination” to survive summary judgment. Reeves, 530 U.S. at 149.
1
The district court concluded that Richards’s decision not to hire Davis in 2003
was based on legitimate, nondiscriminatory reasons. Specifically, it held that Davis did
not provide evidence that Richards’s proffered reasons for not hiring her—Davis’s stated
dislike for “up-selling,” her desire to remain employed part-time at LensCrafters, and the
fact that she was applying for other jobs—were a pretext for gender discrimination.
Avalos v. Cintas Corp., No. 06-12311, 2010 WL 1417804, at *7 (E.D. Mich. Apr. 5,
2010). Davis responds that: (1) Richards’s reasons were mere speculation, since she
could not recall the specifics of her screening interview with Davis, and thus had to rely
on notes she made during the interview process; and (2) Richards advanced a number
of men past the screening stage who were not as well qualified as Davis.
Davis’s first argument ignores her ultimate burden to prove pretext. To survive
summary judgment, Davis must provide evidence that could lead a reasonable jury to
find that Cintas’s proffered reasons for declining to hire her were pretextual. See Chen,
580 F.3d at 400. While Davis questions the reliability of Richards’s “contemporaneous
. . . business records,” Appellee’s Br. 60, she offers no evidence that Richards’s notes
were misleading, unreliable, or anything other than what Richards claimed they were:
a record of the red flags that motivated her not to advance Davis past the screening stage.
Davis’s second argument—that Richards’s advancing less qualified men to later
stages of the screening process is evidence of pretext—fares better.

“Whether

qualifications evidence will be sufficient to raise a question of fact as to pretext will
depend on whether a plaintiff presents other evidence of discrimination.” Bender v.
Hecht’s Dept. Stores, 455 F.3d 612, 626 (6th Cir. 2006). If a plaintiff presents such
evidence, “that evidence, taken together with evidence that the plaintiff was as qualified
as or better qualified than the successful applicant, might well result in the plaintiff’s
claim surviving summary judgment.” Id. at 626–27. If, however, “there is little or no
other probative evidence of discrimination, to survive summary judgment the rejected

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applicant’s qualifications must be so significantly better than the successful applicant’s
qualifications that no reasonable employer would have chosen the latter applicant over
the former.” Id. at 627.
Whether Davis produces “other evidence of discrimination,” id. at 626, depends
on the outcome of a battle of experts. Davis’s expert, Dr. Thomas DiPrete, analyzed
hiring data for Location 447. He stated: “Between 1999 and 2004, 78 men were hired
into SSR positions [at Location 447], but only 2 women were hired into these positions.
All of the hires in the period from 1999–2002 were men. During 2003 and 2004, 32
hires occurred; 30 of these hires were men and 2 were women.” This was so, even
though women accounted for between 26% and 27% of service-sales-representative
applicants and 30% to 38% of the external labor market during that time period. “No
women at all were hired into SSR jobs in Cintas location 447 for the four years prior to
2003.” From July 1, 2003 to December 31, 2004, “there were 27 hires into SSR
positions. Only one of these hires (3.7% of the hires) was a woman even though more
than 25% of these applicants were women.”
To calculate the number of women available in the labor market, Dr. DiPrete
used an amalgam of ninety-three different census codes. He “analyzed in detail the last
occupation of a sample of approximately 300 applicants who were hired into the SSRUniform or SSR-FS jobs,” and “defined labor market availability by weighting the
occupations from which Cintas hired in proportion to their presence in [his] sample.”
Cintas’ expert witnesses, Drs. Mary Baker and Janet Thornton, claimed that Dr.
DiPrete’s analysis was fundamentally flawed. Of importance to this discussion,6 Drs.
Baker and Thornton criticized DiPrete for “measur[ing] availability [of applicants in the

6

Drs. Baker and Thornton also criticized DiPrete’s aggregating data from different Cintas
locations nationwide, and some of his methods of analyzing the aggregated data. These points, however,
are relevant only to Davis’s class claim, since her individual claim implicates only Location 447.

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labor market] using the demographic composition of workers in many occupations,”
instead of “using hiring benchmarks based on occupation 913 alone.”7
As Drs. Baker and Thornton point out, Dr. DiPrete’s availability measure hinges
on the assumption that “the men and women . . . who work in the origin jobs are
similarly interested and qualified for the SSR job.” However, as Dr. DiPrete points out,
“census code 913 includes many jobs which are not ‘highly similar’ to the Cintas SSR
job.” Which view to accept is ultimately an issue for the fact finder. But, in the current
posture of this case, we must draw all inferences in Davis’s favor. We therefore assume
that Davis would win the battle of experts, and treat DiPrete’s statistical analysis as
evidence of discrimination. Accordingly, we now consider whether a reasonable jury
could conclude that Davis was “as qualified as or better qualified than the successful
applicant[s].” Bender, 455 F.3d at 626–27.
Location 447 hired three men soon after interviewing Davis. At least on paper,
their credentials appear equal to, or slightly less impressive than, Davis’s.8 One of the
men, Tim Koelbl, was a onetime route sales driver for an ice company, who had a
master’s degree in education. Another, Andrew Hansen, had participated in a rental car
agency’s management program, which “stressed . . . [c]ustomer service, sales, marketing
and management.” The third, Damian Vertz, was a former college football player, who
had worked as a parts technician and machine operator.
None of the three men had real-world experience in management; none had
extensive experience in sales. Davis, by contrast, had worked as a manager for three
different companies. She had significantly more customer-service and sales experience
than any of the three male candidates, even if she disliked up-selling products and
planned to continue working for LensCrafters part-time. She was, in other words, “as
qualified or better qualified than [any of] the successful applicant[s].” Bender, 455 F.3d
7

As discussed above, census codes are numbers assigned to particular jobs when tallying
responses to a census. Census code 913 comprises “driver/sales” jobs, including “truck driver, light or
delivery services . . . [and] truck driver, heavy and tractor-trailer.”
8

Since, in 2003, Davis did not advance past the application screening stage, the applicants’
qualifications on paper are the focus of the inquiry.

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at 626–27. This, together with Dr. DiPrete’s statistical analysis, is enough at this stage.
The district court should not have granted summary judgment to Cintas on Davis’s
2003 disparate-treatment claim.
2
The district court also rejected Davis’s 2004 disparate-treatment claim. It
reasoned that Cintas chose not to hire Davis because of her poor performance on the
route ride, not because she was female. Avalos, 2010 WL 1417804, at *7. It also
dismissed as speculation Davis’s claim that Cintas delayed another female applicant’s
route ride so that it could compare the two and hire one. Id. at *8.
On appeal, Davis opposes the first of these conclusions vigorously. She suggests
that the district court erred by holding that she did not perform well on her route ride,
since, in fact, the manager who conducted the route ride recommended her for a route
that involved less physical exertion. Appellant’s Br. 61. But, as Cintas notes, such a
route did not exist when Davis applied for her position. Id. at 63. The two male
candidates Cintas hired soon after Davis interviewed in 2004, unlike Davis, performed
well on their route rides, demonstrating an adequate level of physical energy for the
positions Cintas then sought to fill. Davis has not produced evidence suggesting that
Cintas’s hiring decisions were based on these candidates’ gender, rather than their ability
to perform necessary job functions.
Davis leaves mostly untouched the district court’s ruling that dismissed as
speculation her argument that Location 447 had determined to hire only one female
applicant in 2004. She discusses the factual basis for this claim, id. at 21, but only
mentions it in passing in her summary-judgment argument, claiming that Location 447’s
general manager wanted to hire only one woman, and deferred to a lower-level
manager’s preference for a woman other than Davis.

Such a perfunctory,

unsubstantiated statement does not preserve the issue for appeal. Davis has not carried
her burden to create an issue of material fact on pretext. The district court was correct
to dismiss her 2004 disparate-treatment claim.

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B
“By enacting § 2000e-2(k)(1)(A)(i), Congress allowed claims to be brought
against an employer who uses a practice that causes disparate impact, whatever the
employer’s motives.” Lewis v. City of Chicago, 130 S. Ct. 2191, 2200 (2010). To
establish a prima facie disparate-impact case, a plaintiff must: (1) identify a specific
employment practice; and (2) present data indicating that the specific practice had an
adverse impact on a protected group. Grant v. Metro. Gov’t of Nashville and Davidson
Cnty., 446 F. App’x 737, 740 (6th Cir. 2011); see also Kovacevich v. Kent State Univ.,
224 F.3d 806, 830 (6th Cir. 2000). “[I]f the complaining party can demonstrate to the
court that the elements of a respondent’s decisionmaking process are not capable of
separation for analysis, the decisionmaking process may be analyzed as one employment
practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i).
Once the plaintiff succeeds in making a prima facie disparate-impact case, the
defendant may avoid liability by showing “that the protocol in question has ‘a manifest
relationship to the employment.’” Dunlap v. Tenn. Valley Auth., 519 F.3d 626, 629 (6th
Cir. 2008) (citing Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). If the
defendant makes such a showing, the plaintiff’s disparate-impact claim will succeed only
if she demonstrates “that other tests or selection protocols would serve the employer’s
interest without creating the undesirable discriminatory effect.” Ibid. (citing Albemarle
Paper Co. v. Moody, 422 U.S. 405, 425, 432 (1975)).
The district court held that Davis failed to establish her prima facie case because
she did not identify a specific employment practice. Citing our decision in Phillips v.
Cohen, 400 F.3d 388, 398 (6th Cir. 2005), it explained that, while an entire
“decisionmaking process may be analyzed as one practice,” before such analysis is
appropriate, “the plaintiff [must] demonstrate[] that the elements of a respondent’s
decisionmaking process are not capable of separation for analysis.” The district court
found that Davis did not meet this burden. “[T]he fact that [she] advanced to different
points,” it reasoned, “demonstrates that the hiring process is capable of separation.”

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Avalos, 2010 WL 1417804, at *10. Thus, the district court rejected her claim at the
threshold.
Davis argues that the district court erred. She suggests that she did “identify the
system’s subjective elements as the cause of the challenged underhiring: (a) the
managers’ subjective assessment of the applications and interviews; and (b) their
unconstrained discretion to weigh the mix of negatives and positives for each applicant.”
Appellant’s Br. 63–64.
Davis’s briefs, below and in this court, do discuss the possibility of considering
an entire hiring system as one employment practice when its discrete parts cannot be
separated for analysis. The gravamen of her claim, though, is somewhat different. At
bottom, Davis argues that the Meticulous Hiring System’s subjective elements, together,
caused a disadvantage to women in Service-Sales-Representative hiring.
Even though it does not address the issue specifically, the district court’s opinion
suggests that, in a multi-step system, a “particular employment practice” must be one
specific test, or one specific manager’s exercise of discretion. Davis, by contrast,
necessarily claims that “particular employment practice” is broad enough to comprise
many different steps of a multi-step process, as long as those steps share a common
characteristic: subjectivity.
To determine which of these interpretations is correct, we must give content to
the phrase “particular employment practice” in 42 U.S.C. § 2000e-2(k)(1)(B)(i). The
language of the statute, our starting point, is somewhat enigmatic. Title VII provides:
It shall be an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employment

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opportunities or otherwise adversely affect his status as
an employee, because of such individual’s race, color,
religion, sex, or national origin.
Id. at § 2000e-2(a)(1)–(2).

Section 2000e-2(k)(1)(A), however, uses the term

“employment practice” differently. Under that section, an employer faces liability if:
a complaining party demonstrates that a respondent uses a particular
employment practice that causes a disparate impact on the basis of race,
color, religion, sex, or national origin and the respondent fails to
demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity . . . .
Id. at § 2000e-2(k)(1)(A)(i). “Employment practice” here cannot mean the same thing
that it means earlier in the statute. Such a construction would make § 2000e-2(k)
hopelessly question-begging: it would ban discrimination based on a prohibited
classification that causes discrimination based on a prohibited classification. Instead,
the two provisions must use the term in distinct ways: § 2000e-2(a) defines an act of
discrimination, a specific “employment practice” in which a person must not engage.
Conversely, § 2000e-2(k) does not define a specifically forbidden act—it prohibits an
unacceptable outcome arising from some undefined “employment practice.”
However, the starting point of § 2000e-2(k) analysis is still some discrete
“employment practice,” that is, something that the employer does. That “something”
cannot be the hiring system itself, since § 2000e-2(k)(1)(B)(i) distinguishes an
“employment practice” from “a respondent’s decisionmaking process.” Id. But whether
the “something” must be one isolated element of a multi-step hiring procedure, or
whether it can include all of the elements of such a procedure that share a common
characteristic (subjectivity, for example) is not entirely clear.
The text of § 2000e-2(k)(1)(B)(i), though, sheds some light on the issue. That
section softens the Supreme Court’s decision in Wards Cove Packing Co., Inc. v. Atonio,
490 U.S. 642 (1989), superseded by statute, 42 U.S.C. § 2000e-2(k), by allowing
plaintiffs to identify a decision-making process as the “particular employment practice”
in a disparate-impact case if that process is incapable of separation for analysis. Section

Case: 10-1662

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2000e-2(k)(1)(B)(i) requires that, as a general rule, “the complaining party [must] . . .
demonstrate that each particular challenged employment practice causes a disparate
impact.” Two features of this language are suggestive. First, the language that deals
with the “employment practice” is entirely in the singular, not the plural. This syntax
would be strange if a plaintiff could bundle a number of discrete steps of a multi-phase
hiring process together, based on a common characteristic. Second, the words “each”
and “particular” suggest specificity, not amalgamation.

The text of § 2000e-

2(k)(1)(B)(i), then, suggests that Davis must identify one specific step of the Meticulous
Hiring Process as a particular employment practice, rather than pointing to a group of
steps that share a common characteristic.
Precedent from the Supreme Court, our circuit, and our sister circuits supports
this conclusion.

True, “[i]f an employer’s undisciplined system of subjective

decisionmaking has precisely the same effects as a system pervaded by impermissible
intentional discrimination . . . [the employer’s] subjective or discretionary employment
practices may be analyzed under the disparate impact approach.” Watson, 487 U.S. at
990–91.9 But even after Watson, “a plaintiff must [normally] demonstrate that it is the
application of a specific or particular employment practice that has created the disparate
impact under attack.” Wards Cove Packing Co., 490 U.S. at 657. It is simply not
enough to “point out that the [hiring practices] at issue [are] relatively less generous” to
some workers than to others. Smith v. City of Jackson, 544 U.S. 228, 241 (2005).
We too have acknowledged that, even if an employment practice “involve[s]
subjectivity, [it] may nonetheless constitute [an] ‘employment practice[]’ for purposes
of the disparate impact analysis.” Phillips, 400 F.3d at 398. At the same time, though,

9

In Dukes, Justice Scalia stated: “Other than the bare existence of delegated discretion,
respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million
claims together.” Dukes, 131 S. Ct. at 2555–56. It is possible to argue that this language undermines
Watson’s core holding by requiring that plaintiffs do more than allege that managers’ discretion led to
discrimination. Justice Scalia, however, gave no indication that he intended such a drastic consequence,
or even that he intended significantly to dilute Watson’s import. Indeed, he called Watson “the landmark
case of ours which held that giving discretion to lower-level supervisors can be the basis of Title VII
liability under a disparate-impact theory.” Id. at 2555. The better reading of this language takes into
account that Justice Scalia discussed Watson in the class-certification context. His point was that, on a
nationwide scale, bare discretion was too tenuous to support class certification, absent some showing that
all managers exercised their discretion in the same way.

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we have emphasized “that a plaintiff is responsible for isolating and identifying the
specific employment practices that are allegedly responsible for any observed statistical
disparities.” Grant, 446 F. App’x at 740 (quoting Watson, 487 U.S. at 994). In keeping
with this obligation, we have required that “Plaintiffs make [some] effort to isolate any
. . . [allegedly adverse] practices [and] to examine their individual effects on the
promotions process.” Ibid. Our sister circuits have done the same. See, e.g., McClain
v. Lufkin Indus., Inc., 519 F.3d 264, 275–78 (5th Cir. 2008) (noting that plaintiff must
“demonstrate that each particular challenged employment practice causes a disparate
impact,” and upholding use of subjective decision-making as specific employment
practice); E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1279 (11th Cir. 2000)
(holding that subjective interview could trigger Title VII disparate-impact liability, but
holding that liability was not appropriate because no showing of causation).
Thus, Davis did not identify a “particular employment practice” within the
meaning of Title VII by pointing to all of the subjective elements in the Meticulous
Hiring System. She could still survive summary judgment, however, if she showed that
the Meticulous Hiring System’s many steps were so intertwined that they were not
capable of separation for analysis. As the district court noted, though, Davis did not
explain why the well-defined, discrete elements of the Meticulous Hiring System are
“not capable of separation for analysis.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). Indeed, not
all of the system’s subjective elements are the same. Each different interview, for
instance, has a specific interview guide, and different managers conduct interviews at
different stages of the process.
Of course, as Davis pointed out at oral argument, the same small group of
managers does conduct all of Location 447’s interviews. And surely, Davis might urge,
if the statistical data indicate that those managers have gender biases, their exercising
discretion at different steps of the Meticulous Hiring Process should not insulate Cintas
from disparate-impact liability.
This may be so, but the simple fact remains: Davis did not isolate the specific
practices that caused the disparate impact she alleges; nor did she show that the

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managers’ various exercises of discretion in the Meticulous Hiring System were
incapable of separation for analysis. Davis’s disparate impact claims for both 2003 and
2004, therefore, fail.
IV
This case presents a number of complex legal and factual issues. In sum, we
(1) AFFIRM the denial of class certification; (2) REVERSE the district court’s grant of
summary judgment on Davis’s 2003 disparate-treatment claim; and (3) AFFIRM the
district court’s grant of summary judgment on Davis’s 2004 disparate-treatment claim
and both of her disparate-impact claims. We remand to the district court for proceedings
consistent with this opinion.