Kerner v. City and County of Denver
Filing
103
OPINION AND ORDER granting in part and denying in part 73 Motion to Certify Class; adopting 87 Report and Recommendation; overruling 89 90 Objections. By Chief Judge Marcia S. Krieger on 3/25/13. (kfinn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-00256-MSK-KMT
MARIAN G. KERNER; and
JACOBO GONZALES, on behalf of themselves and all others similarly situated,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
Defendant.
______________________________________________________________________________
OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING
RECOMMENDATION AND GRANTING IN PART MOTION TO CERTIFY CLASS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to Defendant’s Objections (# 89) to
the Magistrate Judge’s November 30, 2012 Recommendation (# 87) that the Plaintiffs’ Motion
for Class Certification be granted in part, the Plaintiffs’ response (# 94), and the Defendant’s
reply (# 97); and the Plaintiffs’ Objections (# 90) to that Recommendation, the Defendant’s
response (# 93), and the Plaintiffs’ reply (# 98).
FACTS
According to the Amended Complaint (# 26), between January 2005 and February 2008,
the Career Service Authority (“CSA”) for the City and County of Denver (“Denver”),
administered a test called the AccuPlacer/WritePlacer (“the test”) to “establish eligibility lists for
persons seeking employment” with Denver. The Plaintiffs claim that the test was not designed
or validated for employment testing or screening and that it has a disparate impact on black and
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Hispanic applicants, who fail the test with greater frequency than members of other racial and
ethnic groups. They assert two claims, one sounding in disparate impact in violation of Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and one sounding in intentional discrimination
in violation of Title VII.
The Plaintiffs have moved (# 73) to certify the matter as a class action pursuant to Fed. R.
Civ. P. 23, consisting of a class of individuals defined as “All black applicants and
hispanic/latino applicants for employment or promotion with [Denver] who were denied
employment or promotion upon failing the AccuPlacer Test between March 8, 2007 and the
present or who otherwise suffered any negative employment status . . . or were otherwise
negatively affected by the AccuPlacer Test in its use by [Denver].”
The Court referred the motion to the Magistrate Judge and on November 30, 2012, the
Magistrate Judge issued a thorough and well-reasoned Recommendation (# 87) that the motion
be granted and part and denied in part. Specifically, the Magistrate Judge found : (i) that the
Plaintiffs met the numerousity requirement, insofar as although they only produced declarations
from 33 putative class members claiming to have been adversely affected by the test, discovery
indicated that there were potentially 386 potential class members (but not including 49 persons
who took the test only as part of career counseling services, and thus, did not “fail” it or suffer
adverse employment actions as a result); (ii) that there is a common question of law as to
whether the test was biased and discriminatory; (iii) that the named Plaintiffs were typical of the
class members as it related to the common question; (iv) that the named Plaintiffs and Plaintiffs’
counsel would adequately represent the class; (v) that as to Rule 23(b)(3), that the common
questions of law (and fact) among class members predominate over individualized
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determinations that would be required; (vi) that although the need for individualized
determination of damages will be burdensome, a class action is nevertheless superior to other
procedural methods for addressing the issues; but (vii) that certification of a class for injunctive
relief under Rule 23(b)(2) was not appropriate, as Denver is admittedly no longer using the test
for employment decisions.
Both sides filed timely Objections (# 89, 90) to the Recommendation. Denver’s
Objections argue: (i) the Magistrate Judge erred in finding sufficient numerousity given that the
Plaintiffs have submitted only 33 declarations from potential class members; (ii) the Magistrate
Judge erred in finding that the named Plaintiffs would be adequate class representatives due to
Ms. Kerner having re-taken (and passed) the test and thus having gained employment with the
City and due to Mr. Gonzalez having made false statements in his deposition about his efforts to
mitigate his damages; (iii) the Magistrate Judge erred in finding that common issues
predominated over individualized ones, insofar as each class member will have to show,
individually, that they would have received a job had they passed the test; and (iv) the Magistrate
Judge erred in considering the claims here to be a type of “negative value” case (i.e. one with
low potential for individual damages creating a disincentive for bringing individualized claims),
when, in fact, the two named Plaintiffs are asserting claims for considerable damages.
The Plaintiffs’ Objections argue that the Magistrate Judge erred in finding that the class
should exclude individuals who took the test only as part of career counseling services offered by
Denver, insofar as such services may have “discourage[d] employees from seeking promotions
or supervisory positions” if they failed the test in counseling sessions.
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ANALYSIS
A. Standard of review
The Court reviews objected-to portions of a Recommendation de novo. Fed. R. Civ. P.
72(b).
B. Denver’s Objections
1. Numerousity
Denver argues that the Court should find insufficient numerousity here because only 33
potential class members have submitted declarations in this case, and that, as a matter of law, 33
persons is insufficient to meet Rule 23’s numerousity requirement. Denver does not address, in
any way, the Magistrate Judge’s finding that a “methodology [that] appears sound” concluded
that there were at least 386 potential class members arising out of the period from March 20072008 alone, nor the sufficiency of the Magistrate Judge’s determination that a class of 386
potential members (or more) was sufficiently numerous.
Denver offers no particular explanation as to why the Court should assume that the scope
of the proposed class should be limited to those persons for whom the Plaintiffs had been able to
already secure declarations. Class actions typically expand the universe of participating class
members beyond known individuals after certification has been granted and notice has been sent
out to all potential class members; it is only at this point that many putative class members even
learn about (or decide to pay attention to) the litigation that is proceeding on their behalf. Thus,
purporting to measure a class’ size by the number of declarations submitted during the
certification phase seems particularly unsound.
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The Court agrees with the Magistrate Judge that a proper estimation of the size of the
class is that in the 2007-2008 period alone, potentially 386 class members existed. In such
circumstances, Denver does not dispute that the numerousity element would be satisfied. The
Court, upon de novo review, reaches the same conclusion on this point as did the Magistrate
Judge, and for the same reasons.
2. Adequacy
Denver contends that the named Plaintiffs would serve as inadequate class
representatives for various reasons. The Court notes that the Magistrate Judge expressly
considered and rejected these same arguments in the Recommendation. Upon de novo review,
this Court finds the arguments no more persuasive than did the Magistrate Judge. The Court sees
no meaningful conflict arising out of Ms. Kerner’s hiring by Denver that would preclude her
from seeking damages on behalf of non-hired class members; a finding in the Plaintiffs’ favor on
the merits would not displace Ms. Kerner or otherwise implicate her ongoing employment with
Denver. Moreover, the Court sees no relevance, at least for class certification purposes, from the
possibility that Mr. Gonzales may have been less than forthright during his deposition. The
issues common to the class – e.g. Denver’s use of the test, the test’s bias, and the business
necessity of such a test -- are not matters for which the Plaintiffs will have to rely on Mr.
Gonzales’ testimony to establish. Thus, Mr. Gonzales’ credibility, or lack thereof, is not an issue
that could adversely impact the class. Accordingly, the Court overrules Denver’s objections on
this point.
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3. Predominance
Under Rule 23(b)(3), a class can only be certified that “questions common to class
members predominate over any questions affecting only individual members.” Denver argues
that, because each individual member must individually prove that they would have been hired
had they passed the test, those individualized questions of causation predominate over questions
common to the class.
The Magistrate Judge acknowledged that this was a difficult question, as “significant
adjudicative time may be spent on individual damages,” but ultimately concluded that such
individualized questions did not predominate over the common questions of law and fact. This
Court agrees. In any class action, there will be some class members whose claims for
individualized damages are stronger or weaker than others, and there may often be considerable
obstacles to those individuals proving such damages. Nevertheless, that fact that individualized
damages must be calculated, or even that such individual determinations raise additional issues
of concern, does not defeat class certification where the common issues of law and fact are broad
and substantial. See e.g. In re Thornbug Mortg. Inc. Securities Litig., ___ F.Supp.2d ___, 2012
WL 6004176 (D.N.M. Nov. 26, 2012) (slip op.).
Denver’s reliance on this Court’s recent decision in Folks v. State Farm Mut. Auto. Ins.
Co., 281 F.R.D. 608, 619 (D.Colo. 2012), overlooks a key distinguishing factor in that case:
there, the common questions had already been “exhaustively litigated” and the defendant had
“essentially conceded liability” on the substantive claim, leaving individualized damage
determinations as the only matter remaining. Were Denver to concede that the test had a
disparate impact on blacks and hispanics, this Court might very well follow Folks and deny class
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certification, as the only remaining questions would be individualized damage determinations.
But the Court understands that Denver intends to dispute the substance of the Plaintiffs’ disparate
impact claim, and, as a result, common questions of fact and law relating to that substantive
claim predominate over individual damage issues.
4. Superiority
The final inquiry into whether to certify a class under Rule 23(b)(3) considers whether a
class action is “superior to other available methods for fairly and efficiently adjudicating the
controversy.”
Denver’s argument on this point is limited to the contention that the Magistrate Judge
erred in considering this to be a “negative value” case – that is, one in which “the expense of
pursuing relief on an individual basis would likely exceed the expected individual recovery.” In
other words, Denver does not argue that a particular alternative vehicle would allow the case to
be resolved more fairly and efficiently than a class action.
The Court disagrees with Denver that this is not a “negative value” case. Disparate
impact claims are different from ordinary disparate treatment claims, where establishing a claim
often involves little more than telling the story of what happened. Disparate impact claims
usually turn on complex statistical proof gathered across a large population of employees, and,
where the claim implicates employer testing, extensive validity studies. See Solo Cup. Co. v.
Federal Ins. Co., 619 F.2d 1178, 1188 (7th Cir. 1980) (“statistical proofs in disparate impact
actions, most particularly those involving employment testing, have become increasingly
complex and employers now often retain batteries of experts to validate their selection criteria”);
see e.g. Bazile v. City of Houston, 858 F.Supp.2d 718, 725-728 (S.D.Tx. 2012) (discussing the
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issues of proof in disparate impact case involving employment testing). Marshaling the
resources and proof necessary to bring such a claim on behalf of any one individual employee is
a formidable task, both in terms of time and effort. Thus, these types of cases are far more
amenable to class certification than ordinary discrimination claims.
Moreover, the Court finds the record insufficient to support Denver’s suggestion that this
case presents the potential for “large individual damage claims” by each class member.
Denver’s objections belie some skepticism as to whether either of the named Plaintiffs can
recover the sums they claimed in their depositions ($1.5 million by Ms. Kerner, and $200,000 by
Mr. Gonzales), and the Magistrate Judge appeared to share that skepticism, noting that “at least
one of the two named plaintiffs in the instant action appears to be seeking an unreasonable
recovery.” It is highly likely that some, perhaps even many, of the class members will be unable
to prove that they suffered any injury, as they will be unable to prove that they would likely have
been awarded a job but for the fact that they failed the test. Others may have only limited
monetary damages, owing to successful mitigation efforts or the fact that they sought only parttime or seasonal work with Denver (as Ms. Kerner was). Under these circumstances, the Court
finds no reason to disagree with the Magistrate Judge’s designation of the claims here as
presenting a type of “negative value” case, nor her conclusion that the Plaintiffs had met the
superiority requirement of Rule 23(b)(3).
Accordingly, the Court overrules Denver’s Objections and adopts the Recommendation
that the motion to certify the class be granted.
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C. Plaintiffs’ Objections
The Plaintiffs’ objections are limited to challenging that portion of the Recommendation
in which the Magistrate Judge concluded that the class should not include those whose
involvement with the test was limited to career counseling services provided by Denver, where
the test was administered as an assessment tool, rather than a screening one.
The Court need not address these objections in detail. Having reviewed the Plaintiffs’
arguments and supporting authority, this Court agrees with the Magistrate Judge that there are far
fewer common questions of fact or law in claims arising out of the use of the test as a career
assessment tool. Among other things, the Court notes that questions of how the test was used
and the effect that it may have on employees in the assessment context are not necessarily
uniform, as they are in the screening context. In such circumstances, the Magistrate Judge’s
conclusion that certification of a class including employees who took the test as part of career
services assessment was inappropriate was correct.
CONCLUSION
For the foregoing reasons, both sides’ Objections (# 89, 90) are OVERRULED. The
Court ADOPTS the Recommendation (# 87) in its entirety. The Plaintiffs’ Motion for Class
Certification (# 73) is GRANTED IN PART and DENIED IN PART. Pursuant to Fed. R. Civ.
P. 23(a), (b)(3), and (c)(1)(B), the Court certifies a class in this action, consisting of “AfricanAmerican/Black applicants and Hispanic/Latino applicants for employment or promotion with
the City and County of Denver who were denied employment or promotion upon failing the
AccuPlacer test between March 8, 2007 and the present.” Pursuant to Rule 23(c)(1)(B) and (g),
the Court appoints Ms. Kerner and Mr. Gonzales as class representatives and appoints Mr.
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Padilla as class counsel. Within 21 days of this Order, the Plaintiffs shall move for approval of a
plan for giving notice to the class pursuant to Rule 23(c)(2).
Dated this 25th day of March, 2013.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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