Dean v. Boeing Company

Full title: MARY DEAN, et al., Plaintiffs v. THE BOEING COMPANY, Defendant

Court: United States District Court, D. Kansas

Date published: Apr 24, 2003

Case No. 02-1019-WEB (D. Kan. Apr. 24, 2003)

Opinion

Case No. 02-1019-WEB

April 24, 2003

MEMORANDUM AND ORDER

WESLEY E. BROWN, United States District Judge

Now before the Court are Plaintiffs' Motion for Class Certification (Doc. 137), Defendant's Motion for Partial Summary Judgment (Doc. 166), and Defendant' Motion to Exclude Expert Testimony (Doc. 190). The Court, having considered the numerous memoranda, declarations, and exhibits submitted by the parties, is now prepared to rule.

The Court is aware of a dispute between the parties regarding the timing of the Defendant's summary judgment motion, but since the issues raised by Defendant bear on the question of class certification, the Court will consider summary judgment first. Next, the Court will determine whether the opinion of Plaintiffs' expert is admissible on the class certification question. Finally, the Court will turn to class certification.

I. SUMMARY JUDGMENT

A. FINDINGS OF UNCONTROVERTED FACT

With one exception, Defendant's motion rests entirely upon procedural issues.¹ Defendant sets out numerous factual assertions regarding dates on which Plaintiffs worked for Defendant, various collective bargaining agreements under which they worked, dates Plaintiffs took or failed to take certain procedural steps in administrative agencies or union grievance procedures, and a lawsuit in the Western District of Washington, Beck v. Boeing Co., in which the parties to this suit also appeared. Plaintiffs do not dispute Defendant's factual assertions.² Plaintiffs allege additional facts concerning the proceedings before the administrative agencies and the Beck court which Defendant, for its part, does not materially dispute. Defendant also alleges additional facts which, once again, merely clarify the procedural history of the Plaintiffs' administrative actions and the Beck litigation and are not disputed.

1 Defendant also alleges that the Plaintiffs have not established an implied contract of employment under Kansas law. Because no discovery has been taken on the merits, summary judgment is premature regarding this issue. See section I(B)(3) of this Memorandum and Order.

2 The Court does not consider "Plaintiffs' Statement of Disputed Material Facts" to be genuinely disputed. The Plaintiffs simply relate steps they took before the Kansas Human Rights Commission after the Defendant filed its motion and memorandum in support.

The Court, having considered the parties' memoranda and supporting exhibits, finds that the parties' factual statements are uncontroverted for purposes of summary judgment. While the Court is not required to set out a detailed factual basis for its ruling, Fed.R.Civ.P. 52(a), the Court summarizes the uncontroverted facts as necessary to analyze the issues raised by the parties.

1. Plaintiffs

Plaintiffs Faith Bridgewater, Karla Carpenter, Charlene Chapman, Mary Dean, Nena Holder, Sheryl Landon, Verlene Maholmes, Cheryl Persinger, Sonya Phillips, Rudy Ryherd, Sandy Wilcynski, and Linda Wilkerson are 12 women have worked or are working at Defendant's facilities in Wichita, Kansas. Plaintiffs have been paid variously by the hour or on salary, and they have worked with or without union representation. While some of the Plaintiffs have been represented by the Society of Professional Engineering Employees in Aerospace (SPEEA), none of the Plaintiffs were employed as engineers.

2. Beck lawsuit

On February 25, 2000, Plaintiffs, along with certain other female employees of Defendant, filed gender-based employment discrimination claims in the Federal Court for the Western District of Washington. See Beck v. Boeing Co., 203 F.R.D. 459 (W.D.Wash. 2001). The parties agree that Plaintiffs asserted claims on behalf of all female employees of Defendant in both the original and amended Beck complaints.

On May 2, 2001, the Beck plaintiffs, including the instant Plaintiffs, moved to certify a class consisting of all non-executive salaried female employees, excluding SPEEA engineers, in Puget Sound, Wichita, St. Louis, and Long Beach, along with all hourly female employees in Puget Sound, Wichita, and St. Louis who were covered by collective bargaining agreements with the International Association of Machinists and Aerospace Workers (IAM).

On October 19, 2001, the Beck court certified only the Puget Sound employees as a class. On December 21, 2001, the Beck court issued an order clarifying that "all non-Puget Sound plaintiffs and putative class members shall not be deemed "dismissed on the merits" and that those persons are free to pursue their causes of action in other forums as they wish. This ruling shall be effective 14 days from the entry of the order." The Beck court further stated that "it was never the intention of the Court to foreclose those women from seeking legal redress of their allegations in an appropriate forum . . . the failure to certify that portion of the class was not a "dismissal on the merits" of the uncertified claims. Plaintiffs have proposed a 14-day delay from the date of this clarification order . . . and the Court will so order." This order was entered of record on December 27, 2001.

On June 5, 2002, the Beck court denied a request to transfer venue of the class claims. The court held that the class claims had already been "procedurally dismissed" under the December 21, 2001 order. The Beck court transferred venue of the individual claims of the non-Puget Sound plaintiffs to their respective jurisdictions, including the District of Kansas.

3. Administrative actions

The Plaintiffs all filed complaints with the Equal Employment Opportunity Commission (EEOC) and received Notices of Right to Sue. The earliest date on which any of the named Plaintiffs filed an EEOC charge was January 27, 2000. On the same day the EEOC issued Notices of Right to Sue to several Plaintiffs. Other Plaintiffs filed complaints later or received Notices of Right to Sue later, and these dates and their impact on the individual and class claims are agreed to by the parties as set out in section I(B)(1)(a) (b) of this order.

All of the Plaintiffs but Chapman and Wilcynski filed individual complaints with the Kansas Human Rights Commission (KHRC). Ryherd and Wilkerson also included putative class claims in their complaints. The KHRC dismissed these complaints administratively due to the filing of either the Beck suit or the instant litigation. Phillips petitioned for reconsideration on July 1, 2002. None of the other remaining Plaintiffs sought reconsideration until after Defendant moved for summary judgment in this case.³

3 Phillip's petition for reconsideration was denied on July 23, 2002. The petitions for reconsideration by Bridgewater, Carpenter, Dean, Holder, Landon, Maholmes, Ryherd, and Wilkerson were denied on February 17, 2003. Plaintiffs have also filed a Notice of Entry of Additional Authority establishing that Persinger's complaint was dismissed February 24, 2003. Plaintiffs assert in argument that she need not file a petition for reconsideration under Kansas law.

4. Collective bargaining agreements

Plaintiffs Bridgewater, Chapman, Dean, Maholmes, Phillips, and Wilcynski are or were represented by the IAM. Under two collective bargaining agreements (CBA's) covering 1995-1999 and 1999-2002, Boeing agreed to administer the terms and conditions of employment set out in the IAM CBA's without regard to gender except where gender may constitute a bona fide occupational qualification. The IAM CBA's also established a grievance and arbitration procedure which would be final and binding on the parties to the CBA's. This grievance and arbitration procedure, however, applied only to individual employees; "class grievances" were explicitly excluded.

Beginning on May 7, 2001, Plaintiffs Landon, Persinger, Ryherd, and Wilkerson were covered by a SPEEA CBA. The SPEEA CBA's specified that the terms and conditions of employment would be administered without regard to sex except where sex may constitute a bona fide occupational qualification. The SPEEA CBA also set out a grievance and arbitration procedure, which similarly applied only to individuals and excluded class grievances.

None of the Plaintiffs made use of these union grievance and arbitration procedures.

The SPEEA also entered CBA's with Defendant for its engineers. The SPEEA CBA for engineers similarly excluded sex discrimination, and it set out grievance and arbitration procedures for individual employees but not for class grievances. None of the Plaintiffs were covered by this CBA.

5. Dean lawsuit

The instant action was filed by Plaintiffs on January 16, 2002. Plaintiffs moved for class certification on January 10, 2003. Plaintiffs wish this Court to certify a class and subclasses of:

All women who were or are employed at Boeing's Kansas facilities and who have been, or continue to be, discriminated against on the basis of gender in compensation, assignment of overtime, and promotions.

Subclass 1: All non-executive salaried female employees, excluding engineers, who were or are employed at Boeing's Kansas facilities at any time from February 25, 1997 to the present and who have been, or continue to be, discriminated against on the basis of gender in compensation and promotions.

Subclass 2: All hourly female employees covered by collective bargaining agreements with the [IAM] who were or are employed at [Defendant's] Kansas facilities at any time from February 25, 1995 to the present and who have been, or continue to be, discriminated against on the basis of gender in the assignment of overtime or in promotions.

Subclass 3: All female engineers covered by collective bargaining agreements with the [SPEEA] . . . or its predecessor . . . who were employed at [Defendant's] Kansas facilities at any time from February 25, 1995 to the present and who have been, or continue to be, discriminated against on the basis of gender in the assignment of overtime.

B. ANALYSIS

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Court must examine the factual record and draw reasonable inferences in the light most favorable to the nonmoving party. See Simms v. Okla. ex rel. Dept. of Mental Health, 165 F.3d 1321, 1326 (10th Cir. 1999), cert. denied 528 U.S. 851 (1999).

1. Limitation periods for Plaintiffs' individual and class Title VII claims

The parties agree on both the limitation periods for Plaintiffs' individual Title VII claims and the limitation periods for the Title VII claims of putative Subclasses 1 2. The parties disagree over whether the limitation period for putative Subclass 3 has already run.

a. Individual claims

Charges under Title VII must be filed with the EEOC within 300 days of each discrete discriminatory act. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106, 122 (2002); Kennedy v. GMC, 226 F. Supp.2d 1257, 1263 (D.Kan. 2002). Therefore, any discriminatory act more than 300 days before each Plaintiff filed her respective charge is not individually actionable. For the purposes of summary judgment, the parties agree that the following dates are 300 days before each Plaintiff filed her respective charge:

Bridgewater, April 2, 1999; Carpenter, May 1, 1999; Chapman, April 8, 1999⁴; Dean, April 2, 1999; Holder, May 1, 1999; Landon, April 2, 1999; Maholmes, April 2, 1999; Persinger, May 1, 1999; Phillips, April 2, 1999; Ryherd, May 1, 1999; Wilcynski, April 2, 1999; Wilkerson, May 1, 1999.

4 Defendant calculates Chapman's limitation date as April 7, 1999. Plaintiffs note the Defendant's calculation but provide a date of April 8, 1999. Given Plaintiffs have knowingly provided the court with a less inclusive calculation, the Court will accept it as uncontroverted.

The Court, therefore, grants summary judgment to Defendant on the Plaintiffs' individual claims under Title VII regarding events occurring prior to the above-listed dates.⁵

5 The Court recognizes Defendant's reservation of right to argue at a later time that the Plaintiffs' claims, either individually or on behalf of a putative class, were not tolled during the entire period between the date the Beck lawsuit was filed, February 25, 2000, and the date the instant lawsuit was filed, January 16, 2002.

b. Class claims

The parties also agree that the limitation period for the class claim runs from the earliest of the individual limitation periods for any named plaintiff. See Payne v. Travenol Labs, Inc., 673 F.2d 798, 813-14 (5th Cir. 1982); Abrams v. Kelsey-Seybold Medical Group, Inc., 178 F.R.D. 116, 133 n. 15 (S.D.Tex. 1997). This date, the parties agree, is April 2, 1999. The Court, therefore grants summary judgment to Defendant on Plaintiffs' class claims under Title VII regarding events occurring prior to that date.

c. Putative Subclass 3

Defendant denies that there is a subclass of female engineers or that Plaintiffs can properly represent them. Aside from this argument, however, Defendant also contends that the limitation period on the Title VII claims of such a subclass has already run. The Court agrees that the limitation period has run for putative Subclass 3 as to any class claims under Title VII.

The point of a class action is, of course, to allow the named plaintiffs to sue, defend, and stand in judgement on behalf of others. See 1 Newberg on Class Actions, § 101, 1-2 (3rd ed. 1992). Class members, therefore, need not exhaust administrative remedies if a named plaintiff has already done so. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280, 294 n. 8 (1975); 1 Newberg on Class Actions, supra, at § 5.15. Litigation commenced by a named plaintiff also tolls the limitation period as to all putative class members. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 388, 391-94, 97 S.Ct. 2464, 53 L.Ed.2d 423, 428, 430-31 (1977); Milton v. Frank, 47 F.3d 385, 389 (10th Cir. 1995); 1 Newberg on Class Actions, supra, at § 5.05.

The first of the Plaintiffs to obtain Notices of Right to Sue received them on January 27, 2000. These Plaintiffs then had 90 days from that date to file suit. See 42 U.S.C. § 2000e-5(f)(1). Suit was filed in the Beck case within the 90 day period, on February 25, 2000, and further running of the 90 day period was tolled as to the Plaintiffs and all putative class members. Because the Beck complaint asserted claims on behalf of all Defendant's female employees, this putative class included putative Subclass 3.

On May 2, 2001, however, the Beck plaintiffs (including the Plaintiffs in this suit), moved for class certification and explicitly excluded female engineers from the Beck putative class. Because female engineers were no longer putative class members, the tolling effect of the Beck suit ceased for the class claims of the female engineers. See Crown, Cork Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 76 L.Ed.2d 628, 636 (1983) (tolling ceases when class certification is denied); Sawtell v. E.I. du Pont de Nemours and Co., Inc., 22 F.3d 248, 253 (10th Cir. 1994), cert. denied 513 U.S. 917 (1994) (limitation period is not tolled for non-members of a putative class); Ganousis v. E.I. du Pont de Nemours Co., 803 F. Supp. 149, 156-57 (N.D.Ill. 1992) (tolling ceases for putative class members who are excluded when a class is narrowed); In Re: Independent Service Organizations Antitrust Litigation, 1997 WL 161940, *3 (D.Kan. March 12, 1997) (same, citing Ganousis); CSU Holdings, Inc. v. Xerox Corp., 1995 WL 261158, *1 (D.Kan. April 5, 1995) (same).

Once the putative Beck class was narrowed, therefore, the 90 day period began running as to the excluded female engineers, and it clearly expired as to putative Subclass 3 before Plaintiffs commenced this litigation on January 16, 2002.

Plaintiffs raise a number of arguments against this result. Plaintiffs first assert that the claims of putative Subclass 3 need not be identical to those of the named parties. This is true, and the Court emphasizes that its ruling on the Title VII statute of limitations is not based on a determination that the Plaintiffs do not have standing to represent putative Subclass 3, or that there is not commonality and typicality between the Plaintiffs and putative Subclass 3. The fact remains, however, that the reason the 90 day limitation period did not run for putative Subclasses 1 and 2 was the tolling effect of the Beck suit. Any class claims of putative Subclass 3 could not have been tolled after May 2, 2001, because after that date they were no longer members of the putative Beck class.

Plaintiffs also contend that the Beck suit tolled both the 90 day period applicable to them and the 300 day period an aggrieved party has to file charges with the EEOC after an alleged violation. See 42 U.S.C. § 2000e-5(e)(1). Plaintiffs, rather inexplicably, wish the Court to apply the 300 day period to putative Subclass 3.

The Plaintiff's argument might have merit if the issue were how many days individual female engineers had to file EEOC charges on gender grounds after being excluded from the Beck suit, but that question is not before the Court. Putative Subclass 3, plainly enough, can have only class claims before this Court because none of the Plaintiffs are engineers. But class claims may be maintained only to the extent one of the Plaintiffs exhausted her remedies, and once that happens the time to sue is 90 days, not the 300 days allowed to file an initial EEOC charge. Plaintiffs, in other words, wish the Court to impute their Notices of Right to Sue to putative Subclass 3 for purposes of exhaustion of administrative remedies, but not for purposes of tolling. The Plaintiffs provide no authority in support of their argument, and the Court does not otherwise see its merit.

Plaintiffs, finally, argue that the Plaintiffs' claims were transferred to this Court from the Western District of Washington. As Plaintiffs statement of fact ¶ 12 recognizes, the Washington court transferred the individual claims. The actual transfer order Plaintiffs cite and attach as an exhibit shows that the Washington court refused to transfer any class claims, finding that they had already been procedurally dismissed. This is really beside the point, however, because the female engineers had already been excluded from the Beck putative class, and thus any transfer of class claims would not affect putative Subclass 3.

The Court grants summary judgment to Defendant regarding the Title VII class claims Plaintiffs have brought on behalf of putative Subclass 3.

2. Individual and class claims under the Kansas Act Against Discrimination

Defendant next argues that Plaintiffs have failed to exhaust their state administrative remedies.

a. Individual claims of Chapman and Wilcynski

Defendant contends that Chapman and Wilcynski are barred from pursuing individual claims under the Kansas Act Against Discrimination (KAAD) because they did not file charges with the Kansas Human Rights Commission (KHRC). Plaintiffs allege no facts to the contrary and do not otherwise respond to this argument. The Court, therefore, grants Defendant summary judgment as to the individual claims of Chapman and Wilcynski for violations of the KAAD.

b. Individual claims of Persinger, Bridgewater, Carpenter, Dean, Holder, Landon, Maholmes, Ryherd, Wilkerson, and Phillips

It is uncontroverted that Persinger, Bridgewater, Carpenter, Dean, Holder, Landon, Maholmes, Ryherd, Wilkerson, and Phillips failed to seek reconsideration by the KHRC on their KAAD individual claims before instituting this litigation.⁶ These Plaintiffs were required to exhaust their administrative remedies before bringing suit. Aramburu v. The Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997). Kansas state law clearly states what is required to exhaust administrative remedies before the KHRC:

6 As already noted, Plaintiffs argue that Persinger need not petition for reconsideration under Kansas law. Whether or not Plaintiffs accurately characterize Kansas law on this point, it is undisputed that Persinger raised her KAAD claim in this Court while her administrative claim was still pending before the KHRC.

No cause of action arising out of any order or decision of the [KHRC] shall accrue in any court to any party unless such party shall petition for reconsideration as herein provided. No party shall, in any court, urge or rely upon any ground not set forth in the petition for reconsideration.

K.S.A. § 44-1010. This statute "requires . . . withholding judicial action until the administrative process has run its full course." Sandlin v. Roche Labs., Inc., 268 Kan. 79, Syl. 4, 991 P.2d 883 (1999).

Plaintiffs bear the burden to show exhaustion of administrative remedies, Daneshvar v. Graphic Technology, Inc., 18 F. Supp.2d 1277, 1285 (D.Kan. 1998), and the uncontroverted facts show that the specified Plaintiffs filed this lawsuit before they had petitioned for reconsideration and received a denial. Under these facts, Plaintiffs have failed to exhaust their administrative remedies. See Davidson v. Mac Equipment, Inc., 878 F. Supp. 186, 189 (D.Kan. 1999) (before litigating a KAAD claim in court, plaintiff must file for reconsideration and receive a denial); O'Loughlin v. The Pritchard Corp., 972 F. Supp. 1352, 1361 (D.Kan. 1997) (same).

The fact that Plaintiffs petitioned for reconsideration and obtained denials after filing suit does not change the outcome. The KHRC denied the claims because Plaintiffs filed suit before exhausting administrative remedies, and under Kansas law this was not sufficient. See Sandlin, 268 Kan. at 88 ("It was [plaintiff's] filing of the civil suit that gave rise to the administrative dismissal of his KHRC complaint. We will not hold he can be said to have exhausted an administrative remedy by purposely interrupting the administrative process.")⁷

7 Contrary to Plaintiffs' suggestion, the plaintiff in Sandlin did file a petition for reconsideration. See 268 Kan. at 81.

The Plaintiffs allege that petitioning for reconsideration would have been futile under Kansas law, but the case they cite, Simmons v. Vliets Farmers Coop. Ass'n, 19 Kan. App. 2d 1, 861 P.2d 1345, rev. denied 253 Kan. 861 (1993), is of no help to them. In Simmons, a plaintiff did not petition for reconsideration because she was pursuing a federal suit alleging violations of Title VII. When a subsequent state suit alleging violations of the KAAD was dismissed for failure to exhaust administrative remedies, the plaintiff argued that petitioning for reconsideration would have been futile given the commission's policy of dismissing complaints while actions based on the same conduct are pending in a court. Id. at 2-3. The Kansas Court of Appeals held that petitioning for reconsideration would not have been futile, and that the plaintiff's failure to petition for reconsideration was a proper basis for dismissal. Id. at 5.

Plaintiffs respond that they faced conflicting timetables for their federal and state claims, but the remedy was to file the federal claims first and then amend to include the state claims after exhausting state administrative remedies. See Warner v. Kansas, 766 F. Supp. 1005, 1011 (D.Kan. 1991); Freeman v. Kansas State Network, Inc., 719 F. Supp. 995, 998 (D.Kan. 1989). Based on the requirements of K.S.A. § 44-1010 as interpreted and applied both by federal and state courts, summary judgment must be granted to Defendant on Plaintiffs individual claims for violation of the KAAD.

c. Class claims

The parties have not cited any authority regarding exhaustion of class claims under the KAAD, and this Court also has been unable to locate such authority. In the absence of authoritative precedent from the Kansas Supreme Court, this Court must predict how that court would rule. See Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).

Although Ryherd and Wilkerson filed both individual and putative class claims with the KHRC, the agency dismissed the claims without reference to or distinction between the individual and class aspects. See Thomas Aff. ¶¶ 29 30, Ex. 25 26. The Court notes that the administrative regulations governing the KHRC contemplate only individual, not class, complaints. See K.A.R. §§ 21-40-13(c), 21-41-1. In Dean v. Kansas, 250 Kan. 417, 423-25, 826 P.2d 1372 (1992), however, the Kansas Supreme Court required exhaustion of administrative remedies even where an administrative procedure provided no mechanism by which to review class claims.

Given the holding in Dean v. Kansas, the broad language of K.S.A. § 44-1010, and the rigorous application of that statute in cases such as Sandlin, the Court concludes that the Kansas Supreme Court would find the Plaintiffs' putative class had not exhausted its administrative remedies because none of the Plaintiffs have done so individually, and because the two Plaintiffs who raised class claims filed suit before the administrative procedure had run its full course.

Summary judgment is granted to Defendants on Plaintiffs class claims for violation of the KAAD.

3. State law implied contract claims

Defendant raises again the implied contract issue which this Court considered on Defendant's motion to dismiss. As the Court stated in denying Defendant's motion, "[t]he determination of whether an implied contract exists requires an examination of numerous factors." Dean v. Boeing, 2002 WL 1299772, *5 (D.Kan. June 4, 2002) (citing Allegri v. Providence — St. Margaret Health Center, 9 Kan. App. 2d 659, Syl. ¶ 5, 684 P.2d 1031 (1984)). Discovery is being conducted in stages, and the current stage concerns only class certification. Plaintiffs, in other words, have not had an opportunity to conduct discovery regarding the numerous factors this Court must consider in determining whether an implied contract exists. See Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (10th Cir. 1992); Fed.R.Civ.P. 56(f).

Defendant, nevertheless, insists there can be no contractual duty to avoid gender discrimination because it is already prohibited by federal law. The Court has considered the Adair case cited by Defendants, but as that case recognizes, an implied contract may impose a duty beyond federal law. See Adair v. Beech Aircraft Corp., 1991 WL 97610, *13 n. 8 (D.Kan. 1991). Given the broad manner in which the implied contract claim was pled,⁸ the Court is unwilling to rule until the factual based for the claim has been established by discovery. The Defendant may present its arguments upon the completion of discovery.

8 The manner in which the implied contract claim was pled is set out in section III(C)(1)(c) of this opinion.

Defendant requests, in the alternative, that the Court enter an order setting the limitation period for the claims. Plaintiff responds that the limitation period was tolled while the same claims were at issue in Beck litigation. Under our notice pleading standards, discovery is the means by which a more precise basis for a claim or defense is disclosed. See Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1373 (10th Cir. 1979) (citing Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)); Fed.R.Civ.P. 8(a). Given discovery has not been conducted on the merits, the Court is unable to compare with confidence the contract claims in this litigation with those raised in the Beck litigation. Summary judgment is denied.

4. Section 301 claims

In its order on Defendant's motion to dismiss, this Court allowed Plaintiffs to amend their complaint to state a claim under § 301 of the Labor Management Relations Act. See Dean v. Boeing, 2002 WL 1299772, *4 (D.Kan. 2002). In their First Amended Class Action Complaint (FACAC), Plaintiffs alleged that Defendant agreed in several enumerated CBA's not to discriminate; that Defendant thereby entered "binding contractual commitments with union member plaintiffs and members of the Class;" that Boeing breached these commitments; and that the alleged breaches caused damages to "plaintiffs and the Class." FACAC at ¶¶ 147, 152-55. Although Plaintiffs claimed the "union member plaintiffs" were beneficiaries of the CBA's and had suffered injuries due to Defendant's alleged breaches, Plaintiffs asserted their § 301 claim on behalf of the class members only. See id. at ¶¶ 115, 146.

This Court also noted in its order that CBA's typically contain grievance and arbitration procedures, and that "[plaintiffs under Section 301 are required to avail themselves of such procedures. . . ." Dean, 2002 WL 1299772 at *4 (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580, 583 (1964)); see Garvin v. American Tel. Tel. Co., 174 F.3d 1087, 1094 (10th Cir. 1999). Given this rule, the Court instructed Plaintiffs to plead whether the CBA's allegedly breached by Defendant provided for grievance and arbitration procedures. Dean, 2002 WL 1299772 at *4.

Plaintiffs first alleged that the CBA's "do not require that discrimination claims be arbitrated or grieved." FACAC at ¶ 151. Defendant denied this allegation in its answer, and Plaintiffs have now clarified their position. Plaintiffs admit that the CBA's provide grievance and arbitration procedures for individual union members, but they maintain that these grievance and arbitration procedures were not open to class claims. Plaintiffs also admit that they did not avail themselves of the procedures, either individually or as representatives of a class.

Defendant raises several arguments in support of summary judgment, but the issues may be reduced to one. Do Plaintiffs, none of whom pleaded individual claims under § 301, have individual standing to sue under § 301? The answer clearly is no.

"Anyone with individual standing who satisfies Rule 23 criteria may bring a class action." 1 Newberg on Class Actions, supra, at § 2.01 (emphasis supplied). This individual standing requirement is fundamental: "if none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of herself or himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674, 682 (1974) (emphasis supplied); see Hernadez v. Grey, 530 F.2d 858, 860 (10th Cir. 1976).

To establish standing, the Plaintiffs must show an injury in fact which is fairly traceable to the challenged action and is likely to be redressed by judicial intervention. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450, 460 (1976); Sierra Club v. U.S. Dept. of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Plaintiffs' assertion that the Defendant breached the CBA's is insufficient to establish an injury in fact which is fairly traceable to Defendant. As the United States Supreme Court explained in DelCostello v. Teamsters, 462 U.S. 151, 164-65, 103 S.CT. 2281, 76 L.Ed.2d 476, 489 (1983), a suit against an employer under § 301 is not a straightforward breach-of-contract suit. Instead, the employee must show not only that the employer breached the CBA, but also that the union breached its duty of fair representation. Even if the employee sues only the employer, the employee still must prove both elements. The case is, in other words, essentially a challenge to the private settlement of the dispute between the employer and the union. Id.

If an employee never brings an employer's alleged CBA violation to the union, and the union therefore had no chance to exercise its duty to resolve the matter with the employer, the employee obviously cannot show that he was injured by the union's breach of duty. Absent this allegation, the Plaintiffs have no standing to sue under § 301. See DelCostello, 462 U.S. at 164 (the claims for the employer's breach of the CBA and the union's breach of fair representation are "inextricably interdependent"); Edwards v. International Union, 46 F.3d 1047, 1051 (10th Cir. 1995) (a § 301 action is permitted "provided the employee simultaneously proves he would have obtained a remedy but for the union's misconduct."); Katir v. Columbia University, 15 F.3d 23, 25 (2nd Cir. 1994) (where a plaintiff was not a party to an arbitration between a union and an employer, and where there was no claim for the union's breach of duty, the plaintiff lacked standing).

Regarding whether judicial intervention would redress Plaintiffs' alleged individual injuries, Plaintiffs themselves do not seek judicial intervention for any individual injuries. This is understandable given that they did not first utilize the grievance and arbitration procedures under the CBA's:

Since the employee's claim is based upon breach of the [CBA], [the employee] is bound by terms of that agreement which govern the manner in which contractual rights may be enforced. For this reason, it is well settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the [CBA].

Vaca v. Sipes, 386 U.S. 171, 184, 87 S.CT. 903, 17 L.Ed.2d 842, 854 (1966); see Garvin, 174 F.3d at 1094.

Where an employee attempts to "sidestep the grievance machinery provided in the [CBA]," the employee's independent suit in district court will be dismissed. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S.CT. 1048, 47 L.Ed.2d 231, 241 (1976). The fact that Plaintiffs raise only class claims does not change the result. See Simon, 426 U.S. at 40, n. 20 ("That a suit may be a class action, however, adds nothing to the question of standing. . . .").

The Court grants summary judgment to Defendant for Plaintiffs' class claims under § 301.

II. EXPERT TESTIMONY OF PROFESSOR WAYNE F. CASCIO

Plaintiffs' expert Professor Wayne F. Cascio (Cascio) prepared a preliminary expert report, and Plaintiffs provided it to Defendant. Plaintiffs also filed a declaration from Cascio in support of class certification. Defendant moves to strike the preliminary report and the declaration under Fed.R.Evid. 702. Plaintiffs have now filed Cascio's reply declaration, and the Defendant asks the Court to strike it as well.

Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702 (emphasis supplied). Rule 702 was amended in 2000 in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. As the Advisory Committee Notes make clear, the 2000 amendments affirm "the trial court's role as a gatekeeper and provide some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." (Emphasis supplied.). Daubert, in fact, had articulated "the standard for admitting expert scientific testimony in a federal trial." 509 U.S. at 582, 113 S.Ct. at 2786 (emphasis supplied.).

Rule 702 and Daubert, in other words, are applied when the merits of a case are weighed. Courts do not conduct an inquiry into the merits at the class certification stage. See Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Fed.R.Civ.P. 23(c)(1). Courts, therefore, are unwilling to conduct a full Daubert analysis at the class certification stage. See In Re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132, n. 4 (2nd Cir. 2001) (a motion to strike expert testimony under Daubert "involves an inquiry distinct from that for evaluating expert evidence in support of a motion for class certification"); Vickers v. General Motors Corp., 204 F.R.D. 476, 479 (D.Kan. 2001) (Daubert analysis is not required at the class certification stage); Thomas Thomas Rodmakers v. Newport Adh. Comp., 209 F.R.D. 159, 162 (C.D.Cal. 2002) (lower Daubert standard is applied at class certification stage); Bacon v. Honda of America Mfg., Inc., 205 F.R.D. 466, 470 (S.D.Ohio 2001) (Daubert test is limited at class certification state to whether expert evidence is inadmissible as a matter of law); In Re Visa Check/Mastermoney Antitrust Litigation, 192 F.R.D. 68, 76 (E.D.N.Y. 2000) (Daubert test at class certification stage is limited to purpose for which expert opinion is offered); In Re Polypropylene Carpet Antitrust Litigation, 996 F. Supp. 18, 26 (N.D.Ga. 1997) (admissibility under Daubert is not before the court at the class certification stage).

A full Daubert analysis is also inappropriate because "[a] party and its experts should not be expected to have fully evaluated all data at the preliminary stage of class certification." Midwestern Machinery v. Northwest Airlines, Inc., 211 F.R.D. 562, 565-66 (D.Minn. 2001) (citations omitted).

Both because the Court cannot inquire into the merits, and because discovery on the merits has yet to be conducted in this case, the parties are not now subject to Rule 702 and Daubert as those tests are applied at trial. Instead, the Court will examine Cascio's declaration and reply declaration in light of the purpose for which they were submitted, which is class certification,⁹ and determine whether they are so fatally flawed as to be inadmissible as a matter of law. See In Re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d at 135; Vickers, 204 F.R.D. at 479.

9 The Court disagrees with Defendant's argument that the Court should not consider the purpose of the submission when deciding admissibility. See Reply in Support, at 4-5. Admissibility may be logically prior to class certification, but the Court must still consider what test to apply. The Court is conducting a rigorous analysis to ensure that the requirements of Rule 23 are met, not admitting evidence for a decision on the merits. See J.B. Ex Rel. Hart v. Valdez, 186 F.3d 1280, 1287-88 (10th Cir. 1999) (citing General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988)).

Defendant admits that Cascio is a well-credentialed industrial and organizational psychologist. Cascio has a Ph.D. in industrial and organizational psychology and is a professor in a graduate school of business. He is a member of several associations in his field. He has authored approximately 70 journal articles, 35 book chapters, and 6 textbooks in the field of human resource management. He states in his declaration that his opinions in this case "grow naturally and directly" out of this research, and that he has employed the same level of intellectual rigor in this case that he employs in his academic work. Declaration, at 2.

Specifically, Cascio states he has reviewed and relied upon more than 40 peer-reviewed publications to support his findings, and that he reviewed over 150 documents in preparing his report. He claims to have read deposition testimony from Defendant's senior officials and to have reviewed Defendants "official policies and procedures on compensation, performance appraisals, and promotions." Declaration, at 2. He generally avers that his "analysis used techniques that are widely accepted by industrial and organizational psychologists conducting these types of studies, that are generally accepted in our field, and that have been approved by courts in past employment-discrimination cases." Declaration, at 3.

Defendant raises a variety of complaints about Cascio's testimony. Defendant claims that Cascio has conducted little investigation beyond documents produced at the highest corporate level, but Plaintiffs' theories include that Defendant maintains a pattern or practice of discriminatory conduct, and that Defendant's policies have a disparate impact on class members. All things being equal, documents from the Defendant's highest corporate level would be relevant to these issues. Any failures by Cascio properly to supplement this information would go to his opinion's weight, not its admissibility.

Defendant also attacks instances in which Cascio allegedly applied corporate level information to Defendant's operations in Wichita. Defendant maintains, for example, that the review groups or "totems" in Wichita are smaller than elsewhere in Defendant's operations. The Court obviously cannot make findings at this stage regarding the size of totems in Wichita. This type of particularized dispute does not render Cascio's opinion so fundamentally flawed that it cannot be considered for purposes of class certification. See In Re Visa Check/Mastermoney Antitrust Litigation, 192 F.R.D. at 76 (a court should not delve into the merits of an expert's opinion at the class certification stage).

Defendant, similarly, insists that Cascio overestimates the amount of subjectivity in its employment decisions because he does not consider Defendants' efforts to monitor its managers. The degree to which Cascio's conclusion is overborne by other evidence goes to the weight of his expert opinion, not its admissibility at this stage of the proceedings. The Court obviously cannot conduct a inquiry into the degree of subjectivity in Defendant's Wichita operations before discovery has been conducted on the merits. Defendant contends that Cascio relied on information from 1997-1999 while ignoring recent developments. Given Plaintiffs are seeking class certification going back to 1997, it is not surprising that Cascio considered such evidence. Regarding Defendant's most recent practices, Cascio admits in his reply declaration that he has not had a chance to examine them and cannot yet offer an opinion. Once again, such gaps go to the weight the Court will give Cascio's opinion on class certification, not its admissibility. Defendant also complains about Cascio's reference to a 1997-1998 Thomas consulting report and a 1998 CAT audit. Defendant alleges that some comments considered by Cascio were not made by Wichita employees, but once again Plaintiffs allege a pattern or practice of disparate treatment and/or disparate impact based on policies which are set, in part at least, at the corporate level. At this stage of the litigation, the Court is in no position to find that Defendant's Wichita operations were so isolated from the rest of the Defendant's operations that the only relevant evidence on class certification comes from Wichita. Cascio's reliance upon such sources does not mean his opinion is fatally flawed.

While Defendant alleges that Cascio misleadingly utilized deposition testimony from a race discrimination case, the selection Cascio quoted was simply used to describe the "toteming" process in general. The only reference to race in the quoted portion was combined with a reference to gender.¹⁰ Defendant also does not explain why this general description of its toteming process does not apply in the instant litigation.

10 "Q. Do you know if the usual part of the Salary Planning Process that you have been involved in, has there been a review at the Company Offices Compensation Office to ensure that the salaries of females and minorities do not show statistical areas of bias? A. The reviews I've been involved in, we've not looked salary plans from a statistical, your definition, viewpoint." Casio Report, at 37-38.

Defendant asserts that an expert would be "expected" to rely on empirical compensation data. Defendant cites no evidence of its own in support of this assertion, however. Cascio's opinions go to the processes by which Defendant establishes compensation, overtime, and promotion. For example, he points out areas which, in his opinion, managers have too much subjective discretion. He claims that the totem process as Defendant has practiced it correlates to a "good old boy's network," and that the interview process is not sufficiently structured to prevent personal bias from influencing decisions on compensation, overtime, and promotion.

This evidence is not being offered, at this point in the litigation, to prove the merits of Plaintiffs' case. As already mentioned several times, the Court cannot yet consider the merits. The issue here is class certification. As evidence that women working for Defendant face common issues, and that Plaintiffs's claims are typical of such women, Cascio's testimony is not so fatally flawed as to be inadmissible as a matter of law.

Defendant finally argues that Cascio's opinions should be excluded under Rule 403. At the class certification stage there is no jury to be prejudiced, and the Court is not yet considering the merits. Defendant's contention is baseless.

III. CLASS CERTIFICATION

The Court's summary judgment rulings affect the putative subclasses in the following ways:

— Subclass 1: Title VII class claims run from April 2, 1999. Until sufficient discovery has been conducted to allow the Court to reconsider this issue, the state law implied contract claims run from February 25, 1997, the date identified by Plaintiffs. There are no class claims under the KAAD or § 301 of the LMRA.

— Subclass 2: Title VII class claims run from April 2, 1999. There are no class claims under the KAAD or § 301 of the LMRA.

— Subclass 3: The only remaining issue for this putative subclass is Plaintiffs' plea for injunctive and equitable relief.¹¹ Plaintiffs seek "relief restraining defendant from illegally discriminating against [P]laintiffs and the Class, and providing plaintiffs and the Class the benefits that they would have received but for the discrimination and other illegal conduct of [D]efendant." FACAC, at 34. Plaintiffs, therefore, are not hereby pleading a separate legal basis for such relief. See Howell Petroleum Corp. v. Leben Oil Corp., 976 F.2d 614, 622 (10th Cir. 1992) (a request for damages does not constitute a cause of action; it is the remedy sought for a legal wrong); Fare Deals Ltd. v. World Choice Travel.com, Inc., 180 F. Supp.2d 678, 682, n. 1 (D.Md. 2001) (a request for injunctive relief does not constitute an independent cause of action); 1 Am.Jur.2d, Actions, § 2 ("A cause of action arises from a wrong done, and not from the character of the relief sought or the measure of compensation.").

11 The Plaintiffs have not included their federal or state Equal Pay Act claims in their motion for class certification. See Memorandum in Support, at 10. Magistrate Judge Humphreys denied without prejudice Plaintiff's motion for court-approved notice to potential Equal Pay Act claimants. See Memorandum and Order, Doc. 127.

Because the Court has granted summary judgment to Defendant on the legal bases for relief raised by Plaintiffs on behalf of putative Subclass 3, the question of class certification for this subclass is moot.

A. Standards for Class Certification

"The trial court may certify a class only if, after rigorous analysis, it determines that the proposed class satisfies the prerequisites of Federal Rule of Civil Procedure 23(a)." J.B. Ex Rel. Hart, 186 F.3d at 1287-88. See also Reed, 849 F.2d at 1309 (requiring the plaintiff to meet a "strict burden of proof"). The Court may not inquire into the merits of the underlying case. Swisher v. U.S., 189 F.R.D. 638, 640 (D.Kan. 1999) (citing Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982); Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988)); Emig v. American Tobacco Co., Inc., 184 F.R.D. 379, 384 (D.Kan. 1998) (citing Adamson, 855 F.2d at 676, citing Eisen, 417 U.S. at 177, 94 S.Ct. at 2152). The Court may, however, probe behind the pleadings and consider the proof necessary to establish class-wide discrimination. Zapata v. IBP, Inc., 167 F.R.D. 147, 156 (D.Kan. 1996); Stambaugh, 151 F.R.D. at 671, (citing Falcon, 457 U.S. at 160). "Whether a case should be allowed to proceed as a class action involves intensely practical considerations, most of which are purely factual or fact-intensive." Marcus v. Kansas Dept. of Revenue, 206 F.R.D. 509, 511 (D.Kan. 2002) (quoting Reed, 849 F.2d at 1309). If the requirements of Rule 23(a) are met, the action must further qualify for one of the three categories of Rule 23(b). Id.

B. Rule 23(a)

This Court may certify a class only if:

(1) the class is 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.

Fed.R.Civ.P. 23(a). These prerequisites are known as numerosity, commonality, typicality, and adequacy of representation. Marcus, 206 F.R.D. at 509.

Although commonality and typicality, along with adequacy of representation, tend to merge, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626, n. 20, 117 S.Ct. 2231, 138 L.Ed.2d 689, 714 (1997), for sake of clarity the Court will consider the prerequisites separately. See 5 Moore's Federal Practice, § 23.23[3] (Matthew Bender 3rd ed.) ("commonality tests the sufficiency of the class itself . . . typicality focuses on the relation between the representative parties and the class as a whole."); Emig, 184 F.R.D. at 387 (a plaintiff may have a typical claim and still not be an adequate representative because of a conflict with the class). Each subclass must meet all four prerequisites. Monarch Asphalt Sales Co., Inc. v. Wilshire Oil Co. of Texas, 511 F.2d 1073, 1077 (10th Cir. 1975).

1. Numerosity

Plaintiffs allege the class ranges from 2,897 to 4,805 members. Plaintiffs do not state the numbers in each subclass, however. Reference to the tables cited by Plaintiffs show that while most of the class members are hourly employees in putative Subclass 2, significant numbers are salaried employees in putative Subclass 1. In addition, Defendant does not dispute that Plaintiffs satisfy the numerosity prerequisite. The Court finds that the putative subclasses are so numerous that joinder of all members is impracticable.

2. Commonality

The commonality prerequisite is satisfied if the Plaintiffs' grievances share a common question of law or fact. See J.B. Ex. Rel. Hart, 186 F.3d at 1288. The Plaintiffs need only show a single issue common to the class; factual differences among individual class members do not preclude certification of a claim seeking application of a common policy. Id.

Whether the members of putative Subclasses 1 and 2 suffered intentional discrimination because of their gender, and whether these members were disparately impacted by Defendant's facially neutral policies, are common questions of fact. As required, Plaintiffs offer more than conclusory allegations in support of their claims. See Zapata, 167 F.R.D. at 158 (mere allegation that discrimination has occurred is not sufficient, citing Falcon, 457 U.S. at 157). Plaintiffs have provided specific allegations regarding their own experiences, statistical analyses of Defendant's treatment of male and female employees, and other evidence obtained from Defendant, which taken together show common factual questions regarding intentional discrimination and disparate impact. The Court reached this conclusion without relying on the opinions of Plaintiffs' expert Cascio.

Defendant cites numerous cases in which the facts lead to the opposite conclusion, but these cases do not obscure the fact common to all the class members here — they are women who work or have worked at Defendant's Kansas operations. Defendant responds that its decision making is so "diverse and decentralized" as to prevent commonality, but Defendant also claims that the alleged subjective bias against women cannot exist because its human resource procedures are "well-organized" and subject to "substantial oversight." Memorandum in Opposition, at 118, 125. Indeed, the extensive human resource procedures detailed by Defendant, taken together with Plaintiffs' evidence as identified above, distinguishes this case from those in which the evidence indicated only isolated acts of subjective discretion exercised against individual plaintiffs. See Stambaugh v. Kansas Dept. of Corrections, 151 F.R.D. 664, 674-75 (D.Kan. 1993).

The Court is also not persuaded by Defendant's attack on Plaintiffs' statistical evidence. Defendant did not move to strike this evidence as fatally flawed, and similarly the Court does not find it inadmissable at the class certification stage. Plaintiffs' expert concludes that the disparities adverse to female employees are statistically significant, and the Court will not attempt to balance this conclusion against the findings of Defendant's expert. See Caridad v. Metro-North Commuter Railroad, 191 F.3d 283, 292 (2nd. Cir. 1999), cert. denied 529 U.S. 1107 (2000) (though defendant's critique of plaintiffs' statistics may prove fatal at the merits stage, statistical dueling is not relevant at the class certification stage); In Re Visa Check/Mastermoney Antitrust Litigation, 192 F.R.D. at 76 (a court should not conduct a battle of the experts at the class certification stage).

The Court, in addition, finds that the Plaintiffs have presented common questions of law. Commonality is satisfied where a discrete legal question linking the members is substantially related to the resolution of the litigation even if individual members are not identically situated See Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir. 1999); J.B. Ex. Rel. Hart, 186 F.3d at 1289; 6A Fed. Proc. L.Ed. § 12:87. Whether the intentional discrimination and/or disparate impact Plaintiffs allege violated Title VII presents a common question of law for putative Subclasses 1 and 2, and the members of putative Subclass 1 are also linked by an alleged breach of implied contract.

3. Typicality

Typicality is shown where the claims of the proposed class representatives are typical of the claims of the proposed class. Marcus, 206 F.R.D. at 512; Emig, 184 F.R.D. at 385; Zapata, 167 F.R.D. at 160. The Plaintiffs, in other words, must show they possess the same interests and suffered the same injuries as the class members. See Swisher, 189 F.R.D. at 640 (citing Falcon, 457 U.S. at 156). "Typicality determines whether a sufficient relationship exits between the injury to the named plaintiff and the conduct affecting the class so that the court may properly attribute a collective nature to the challenged conduct." Emig, 184 F.R.D. at 385 (quoting Zapata, 167 F.R.D. at 160, quoting 1 Newberg on Class Actions, supra, § 3.13, at 3-76).

The claims need not be identical as long as they are based on the same legal or remedial theory. Marcus, 206 F.R.D. at 512 (citing Adamson, 855 F.2d at 676). Claims which are factually different are still typical if they "arise from the same event or practice or course of conduct that gives rise to the claims of the other class members." Emig, 184 F.R.D. at 385 (quoting Zapata, 167 F.R.D. at 160, quoting 1 Newberg, supra, § 2.12, at 3-76). "Demonstrating typicality is not an onerous burden, but it requires more than conclusory allegations that proposed class members suffered discrimination." Zapata, 167 F.R.D. at 160 (citing Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir. 1982), cert. denied 460 U.S. 1083 (1983)).

The Court finds that the Plaintiffs' claims are typical of putative Subclasses 1 and 2. Like those subclasses, the Plaintiffs are or were female employees of Defendant's Wichita operations, and they are or were paid either a salary or an hourly wage. Plaintiffs have submitted their own declarations alleging acts of gender discrimination and/or disparate impact in compensation, overtime, and promotions. This is, of course, the gravamen of the class complaint, and the Plaintiffs' legal theories are also the same as the subclasses' legal theories. Plaintiffs have also submitted declarations from non-named female employees of Defendant who allege gender discrimination, and the Court considers these declarations as some further evidence that Plaintiffs' claims are typical. The Court, however, once again reached its decision independently of the opinions of Plaintiffs' expert Cascio.

The Court's ruling on summary judgment also resolves a few of the Defendant's objections to typicality. The fact that Plaintiffs belonged to different unions and worked under different CBA's is not as significant now that the Plaintiffs' claims under § 301 have been dismissed. Similarly, any typicality (or standing) difficulties the Plaintiffs suffered with regard to the female engineers of putative Subclass 3 are not at issue now that judgment has been granted to Defendant on those claims.

4. Adequacy of Representation

Under this prerequisite, the Court inquires whether the named plaintiffs and their counsel have conflicts of interest with other class members, and whether the named plaintiffs and their counsel will vigorously prosecute the action on behalf of the class. Rutter Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002). The class counsel must be qualified, experienced, and generally able to conduct the proposed litigation, and the representative's claims must be sufficiently interrelated to, and not antagonistic with, the class's claims so to ensure fair and adequate representation. Marcus, 206 F.R.D. at 512 (citing Falcon, 457 U.S. at 157 n. 13); Zapata, 167 F.R.D. at 160; 5 Moore's Federal Practice, supra, at § 23.25[3][a]. "This prerequisite is particularly important "because inadequate representation would infringe upon the due process rights of absentee class members who are bound by the final judgment of the suit." Marcus, 206 F.R.D. at 512.

Defendant raises no objection to the qualifications or experience of Plaintiffs' counsel, and there is no suggestion that Plaintiffs' counsel labor under a conflict of interest or otherwise will not vigorously prosecute this action on behalf of the class. The Court also has no concerns regarding the adequacy of Plaintiffs' counsel.

Defendant contends, however, that Plaintiffs themselves are not adequate representatives because the class contains both supervisory and non-supervisory employees. Defendant also notes that, according to some Plaintiffs, certain female employees within the class received more favorable treatment than other women. Finally, Defendants maintain that nearly all of the Plaintiffs have alleged discrimination based on factors other than gender, and that "[t]hese named [P]lainitffs cannot adequately represent a class of female employees in a gender discrimination lawsuit, when they claim their own circumstances are due to factors other than their sex." Memorandum in Opposition, at 136.

While the issues raised by Defendant are of some concern, the conflicts they suggest are speculative or hypothetical. See 5 Moore's Federal Practice, supra at § 23.25[4][b][ii] (most courts require more than a speculative or hypothetical conflict). Adequacy of representation is a question of fact which largely depends on the circumstances of each case, id. at § 23.25[3][b], and based on the circumstances of this case the Court does not find that the potential conflicts identified by Defendant render the Plaintiffs unwilling or unable to represent the interests of both putative subclasses.

With regard to the mixture of supervisory and non-supervisory members, the Plaintiffs allege that all of Defendant's female employees, both supervisors and non-supervisors, are subjected to gender discrimination. This showing of a coextensive interest among the female supervisors and other female employees is one factor in support of the Plaintiffs' adequacy. See 5 Newberg on Class Actions, supra, at § 24.42. Plaintiffs' reply declarations also identify the upper management as the source of the discrimination allegedly practiced by some female managers. The Court agrees with Defendant that this assertion is conclusory, but Plaintiffs further specify that upper management imposes discriminatory treatment even when female managers give good reviews. Plaintiffs further allege that the female managers, who are in the minority, are forced to conform to the discriminatory patterns established by male managers.

Defendants, in contrast, present no testimony or other evidence establishing an actual conflict. The Court, therefore, finds that the Plaintiffs are not so antagonistic to the class that they cannot adequately represent their interests. See McReynolds v. Sodexho Marriott Services, Inc., 208 F.R.D. 428, 446-448 (D.D.C. 2002), and cases cited therein. The Court remains mindful of its continuing duty to monitor the adequacy of representation and to address conflicts of interest which may develop. See In Re Integra Realty Resources, Inc., 262 F.3d 1089, 1112 (10th Cir. 2001).

Next, while it is true some Plaintiffs allege there were "favorites" among Defendant's female employees, Plaintiffs' evidence generally shows that even these favorites received less favorable treatment than men. Once again, the Defendant presents no evidence of an actual conflict between such alleged favorites and the Plaintiffs. Speculation regarding conflicts that may develop does not establish that the Plaintiffs cannot adequately represent the class. See Zapata, 167 F.R.D. at 161.

Finally, Defendant suggests that Plaintiffs, all of whom claim gender discrimination, are not adequate representatives because most Plaintiffs have also alleged other types of discrimination in separate forums. Defendant provides no evidence of such a conflict. This is not a case where Plaintiffs seek to represent all women on gender grounds as well as an entire minority, male and female, on race grounds, therefore setting up a conflict with women in the majority racial group. See 5 Newberg on Class Actions, supra, at §§ 24.51, 24.52 and cases cited therein. This case involves only allegations of gender discrimination, and the Plaintiffs, all of whom are women, may adequately represent that class. Steps they may have taken elsewhere with regard to alleged non-gender discrimination does not, without more, establish a conflict here.

C. Rule 23(b)

The three Rule 23(b) categories identify those occasions, among instances in which numerosity, commonality, typicality and adequacy of representation are met, in which class certification is also functionally appropriate. See 1 Newberg on Class Actions, supra, § 4.01, at 4-4. Plaintiffs seek certification under 23(b)(2) and 23(b)(3), which provide that a class action may be maintained where:

(2) 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; or

(3) 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 the fair and efficient adjudication of the controversy.

Fed.R.Civ.P. 23(b)(2) (3).

1. Title VII

In order to better explain its Rule 23(b) determinations, the Court first briefly discusses Title VII as it applies to Plaintiffs' claims. Plaintiffs contend that Defendant's conduct violates "the disparate treatment, disparate impact, and pattern and practice principles of Title VII and the state anti-discrimination laws. . . ."¹² FACAC at ¶ 127. Disparate treatment refers to intentional discrimination based on, in this case, gender, while disparate impact refers to facially neutral employment practices which fall more harshly on one group than another without justification based on business necessity. See Teamsters, 431 U.S. at 335 n. 15. "Pattern or practice" refers to class-wide (as opposed to individual) disparate treatment claims. See Teamsters, 431 U.S. at 336; Davoll v. Webb, 194 F.3d 1116, 1147-48 (10th Cir. 1999); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158-61 (2nd Cir. 2001); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 409 (5th Cir. 1998) Segar v. Smith, 738 F.2d 1249, 1265-66 (C.A.D.C. 1984). Disparate impact claims are typically class wide because they are, like pattern-or-practice disparate treatment claims, "attacks on the systemic results of employment practices." Segar, 738 F.2d at 1267; 21A Fed.Proc.L.Ed., § 50.1028; see also E.E.O.C. v. Horizon/CMS Healthecare Corp., 220 F.3d 1184, 1196 (10th Cir. 2000) ("disparate impact claims are more analogous to pattern-or-practice [disparate treatment] claims than they are to [individual] disparate treatment claims").

12 Plaintiffs, in addition, allege a hostile work environment in defining the putative class, FACAC at ¶ 113(a), and when identifying the issues of fact and law common to the putative class. FACAC at ¶ 117(h). Plaintiffs do not actually state a hostile work environment claim in pleading the alleged class-wide violations of Title VII, however. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (to form the basis of a claim, the sexual harassment must be sufficiently sever to alter the conditions of employment and create an abusive working environment). Plaintiffs affirmatively state in their briefing on class certification that "a hostile work environment claim . . . is not at issue here. . . ." Reply in Support, at 64.

The Court will distinguish between the Plaintiffs' various claims as they are material to the Court's analysis.

2. 23(b)(2)

Civil rights cases are "prime examples" of cases maintainable under subdivision b(2). Amchem Products, Inc., 521 U.S. at 614, 138 L.Ed.2d at 707 (citing Advisory Committee Notes, 1966 Amendment). These Advisory Committee Notes, however, also specify that "[t]he subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominately to money." Courts of the Tenth Circuit and District of Kansas have applied this test in several cases. See Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995) (no abuse of discretion where 23(b)(2) certification denied because relief sought was primarily money damages); Rich v. Martin Marietta Corp., 522 F.2d 333, 341 (10th Cir. 1975) (the primary relief must be injunctive or declaratory); Zapata, 167 F.R.D. at 162 (rejecting 23(b)(2) certification where plaintiffs were primarily seeking money damages).

a. Pattern-or-practice disparate treatment claim

The Court finds with little difficulty that the relief Plaintiffs seek on their pattern-or-practice disparate treatment claim relates predominately and primarily to money. The Plaintiffs request for injunctive and declaratory relief is exceedingly vague. Plaintiffs can specify only a "total reduction of statistical disparities in salaried compensation and overtime," and "increased objectivity in the promotion process for salaried and hourly workers. . . ." Reply in Support, at 55.¹³ These are proposed results, not particular mechanisms to be adopted by the Defendant pursuant to court order.

13 The Plaintiffs also seek back pay and front pay, which has long been allowed under Rule 23(b)(2) when imposed in furtherance of equitable relief. Rich, 522 F.2d at 341-42.

Plaintiffs point to Cascio's reply declaration for suggested remedies, but Plaintiffs also state that these are only preliminary opinions pending discovery on the merits. Cascio himself, moreover, admits that he has not examined the most recent of Defendant's policies, which gives the Court even more reason to question the extent of the injunctive and declaratory relief the Court would impose. In contrast, Plaintiffs seek damages "including and not limited to lost past and future earnings, lost benefits (including underpaid retirement plans), emotional and physical distress, and pain and suffering. . . ." FACAC at ¶ 128. In addition to the traditional equitable remedies of back and front pay, in other words, Plaintiffs seek compensatory damages. Plaintiffs also request punitive damages based on allegations of oppression, fraud, and malice. FACAC at ¶¶ 129, 135-36. Plaintiffs assert they would bring this action even if compensatory and punitive damages were unavailable to them, but that is not determinative. The Court must consider the action Plaintiffs actually brought, and it is primarily and predominately about money.

The parties have each urged the Court to consider seminal cases from other circuits. Defendants rely on Allison., 151 F.3d 402, while Plaintiffs cite Robinson, 267 F.3d 147. In Allison, the 5th Circuit concluded that monetary relief predominates under Rule 23(b)(2) unless it is incidental to the requested injunctive and declaratory relief. 151 F.3d at 415. In a direct rejection of that approach, the 2nd Circuit in Robinson adopted an "ad hoc balancing" approach, with several tests for the court to apply in reaching the proper balance. 267 F.3d at 164.

These cases are notable for their thorough discussions of how the Civil Rights Act of 1991, which allowed compensatory and punitive damages in disparate treatment cases,¹⁴ affected practice under Rule 23. See also Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003); Jefferson v. Ingersoll Intern. Inc., 195 F.3d 894 (7th Cir. 1999). This Court, however, is guided by the Tenth Circuit decision in Boughton, which was also decided after the 1991 amendments. Boughton shows that the Court has discretion to deny 23(b)(2) certification when the relief sought is primarily money damages. See 65 F.3d at 827.

14 "Prior to 1991, only equitable relief, primarily back pay, was available to prevailing Title VII plaintiffs; the statute provided no authority for an award of punitive or compensatory damages. With the passage of the 1991 Act, Congress provided for additional remedies, including punitive damages, for certain classes of Title VII . . . violations." Kolstad v. American Dental Assn., 527 U.S. 526, 533-34, 119 S.Ct. 2118, 144 L.Ed.2d 494, 504 (1999).

Plaintiffs ask, as an alternative, that the pattern-or-practice disparate treatment claim be bifurcated into liability and damages phases, and that the Court initially certify only the liability phase. Bifurcating the trial into liability and damages phases is standard practice in Title VII pattern-or-practice disparate treatment cases. See Teamsters, 431 U.S. at 360-62, 52 L.Ed.2d at 430-32; Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001), cert. denied ( 536 U.S. 934 (2002). Certifying the liability phase but delaying certification of the damages phase is not as common. Plaintiffs call this approach "deferred hybrid certification," but courts have referred to it as "partial certification." See Robinson, 267 F.3d at 167; Taylor v. District of Columbia Water Sewer Auth., 205 F.R.D. 43, 49 (D.D.C. 2002).

The Plaintiffs cite no authorities binding on this Court which require partial certification, and the Court's own research located none.¹⁵ To the extent the Court has discretion to order partial certification, it declines to do so under the facts of this case. The ephemeral character of the proposed injunctive and declaratory relief leads the Court to look beyond the liability phase, in which any injunctive and declaratory relief would be imposed, to the damages phase, which would require numerous individualized inquiries into compensatory and punitive damages.¹⁶ See Teamsters, 431 U.S. at 361, 52 L.Ed.2d at 431; Thiessen, 267 F.3d at 1106, n. 7. The Court recognizes that discovery on the merits may add some flesh to the bones of Plaintiffs' injunctive and declaratory relief, but the Plaintiffs move for certification now, and the Court must rule based on the record before it.

15 Teamsters is, of course, binding on this Court, and the Ninth Circuit in Beck relied on Teamsters in holding that the trial court had abused its discretion by certifying the damages phase before the liability phase was completed. See Beck v. The Boeing Company, 2003 WL 683797, *1 (9th Cir. Feb. 25, 2003). The Ninth Circuit, however, based its ruling on the district court's order that the punitive damages would "automatically" flow from the findings in the liability phase, which the Ninth Circuit said was contrary to the bifurcated trial scheme set out in Teamsters. Id. Of course, punitive damages should not automatically flow from a liability finding because both compensatory and punitive damages must be individually proven in the damages phase. 42 U.S.C. § 1981a(a)(1); Thiessen, 267 F.2d at 1106. The Court, therefore, does not take Beck to mean that a court must not only bifurcate the trial under Teamsters but also impose partial certification.

16 The Court is convinced that the damages phase in this case would require an examination of highly individualized harms ("emotional and physical distress, and pain and suffering, in amounts to be proven at trial." FACAC at ¶ 128) and highly individualized motives in support of punitive damages ("oppression, fraud, and malice. . . ." FACAC at ¶ 136). In other words, this case would not be amenable to class-wide compensatory and punitive damages.

The Court, moreover, sees no advantage in ignoring the damages phase of the litigation when considering class certification. Plaintiffs suggest that Defendant may be more willing to settle after partial certification, but the Court's focus is on the requirements of Rule 23(b)(2), not methods by which settlement may be imposed on either party. Given the nature of the damages sought in this case, the Court cannot find that the injunctive and declaratory relief sought by Plaintiffs predominates "with respect to the class as a whole."¹⁷ Rule 23(b)(2).

17 The Court is not imposing a 23(b)(3)-style manageability requirement in making this finding. The Court is simply declining to exercise whatever discretion it has under Rule 23(c)(4) to refashion Plaintiffs' pattern-or-practice disparate treatment claim so that injunctive and declaratory relief predominates. The Court similarly declines to provide notice and opt-out rights to a Rule 23(b)(2) class under Rule 23(d)(2) and (5) because the Plaintiffs' claim relates predominately and primarily to money damages.

b. Disparate impact claim

In contrast to Plaintiffs' pattern-or-practice disparate treatment claim, compensatory and punitive damages are not available on Plaintiffs' disparate impact claim. See 42 U.S.C. § 1981a(a)(1); Kolstad, 527 U.S. at 534, 144 L.Ed.2d at 504. Instead, Plaintiffs are limited to the equitable remedies of reinstatement, back pay, front pay, and declaratory and injunctive relief. See 42 U.S.C. § 1981a(b)(2); 42 U.S.C. § 2000e-5(g); Mallison-Montague v. Pocrnick, 224 F.3d 1224, 1236-37 (10th Cir. 2000); Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1347 (10th Cir. 1994); In Re Employment Discrimination Litigation, 198 F.3d 1305, 1315 n. 13 (11th Cir. 1999). Plaintiffs, therefore, contend that a class may be maintained under 23(b)(2) for the disparate impact claim, and the Defendant does little to deny this contention.

The Court finds that the relief sought by Plaintiffs' disparate impact claim is primarily injunctive or declaratory, and that even considering the requests for back and front pay, the disparate impact claim does not relate predominately to money. See Rich, 522 F.2d at 341; 5 Newberg on Class Actions, supra, at §§ 24.114 — 24.117. Under Rule 23(c)(4)(A), an action may be maintained as a class action with respect to particular issues. The Plaintiffs' disparate impact claim, therefore, may be maintained under Rule 23(b)(2), and the Court certifies Subclasses 1 and 2 for this question.

c. Implied contract claims

Plaintiffs make little reference to their class-wide implied contract claims in their briefs on class certification. See Memorandum in Support, at 78; Reply in Support, at 63. This claim is brought on behalf of non-union class members, and it alleges that Defendant made oral and written representations to Plaintiffs and members of the putative class "regarding the terms and conditions of their employment, including but not limited to assurances that women would and will have the same employment opportunities as others." FACAC, at ¶ 141. Plaintiffs seek "damages including, but not limited to, lost past and future earnings, lost benefits and consequential damages, in amount to be proven at trial" FACAC, at ¶ 144.

As with the pattern-or-practice disparate treatment claim, the relief sought is predominately or primarily money damages. The Court holds, therefore, that Plaintiffs' class-wide implied contract claims may not be maintained under Rule 23(b)(2). See Heartland Communications, Inc. v. Sprint Corp, 161 F.R.D. 111, 117 (D.Kan. 1995) (class-wide contract claim not maintained under Rule 23(b)(2) because money damages predominated).

3. 23(b)(3)

The 23(b)(3) requirement that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members is "far more demanding" than the 23(a)(2) commonality prerequisite. Amchem Products, Inc., 521 U.S. at 624, 138 L.Ed.2d at 713; see Adamson, 855 F.2d at 676 (emphasizing that while under Rule 23(a)(2) common questions of fact or law must exist, under Rule 23(b)(3) they must predominate). "[T]he predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchen Products, Inc., 521 U.S. at 623; 138 L.Ed.2d at 712. Although "courts have struggled" to delineate the predominance analysis, the inquiry is "whether the claims involve a common nucleus of operative facts and whether material variations in the claims exist." Edgington v. R.G. Dickinson and Co., 139 F.R.D. 183, 190-91 (D.Kan. 1991), citing Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968), cert. denied, 394 U.S. 928; see also Emig, 184 F.R.D. at 388 (same); 5 Moore's Federal Practice, supra, at § 23.46[1] (stating that no precise test governs predominance inquiry). Whether common questions of fact or law predominate is a practical, factual question over which this Court has discretion. Boughton, 65 F.3d at 827-28.

The Court also must find that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Fed.R.Civ.P. 23(b)(3). The rule provides four factors to aid the Court in determining whether class certification would be superior to other available means of handling the controversy. See 7A Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 1777, at 518; 5 Moore's Federal Practice, supra, at § 23.48[1]. These four factors are the interest of the class members in controlling the litigation individually, the nature of any litigation already commenced, the desirability of concentrating the litigation in a particular forum, and the difficulties of managing a class action. See Fed.R.Civ.P. 23(b)(3)(A-D). The four factors are non-exhaustive, and the Court need not necessarily include detailed findings on each factor so long as the factors do not negate the finding of the Court. See Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336, 345 (10th Cir. 1973).

a. Pattern-or-practice disparate treatment claim

Given that Plaintiffs' pattern-or-practice disparate treatment claim was not certifiable under Rule 23(b)(2), the Court now considers whether it may be maintained under 23(b)(3).¹⁸ Regarding predominance, the Plaintiffs argue that:

18 Since Plaintiffs' disparate impact claim may be maintained under Rule 23(b)(2), the Court will not consider whether it also qualifies under Rule 23(b)(3). See 7A Wright, Miller Kane, supra, § 1777, at 521.

[Defendant's] promotion, salary and overtime determinations are tainted by gender discrimination. Subjectivity afforded to [Defendant's] management perpetuates the discrimination. Regardless of Class members' individual work histories, they have been adversely impacted by gender discrimination. Thus, [Defendant's] alleged Class-wide perpetuation of discrimination through subjective decision-making processes is a common issue that predominates over any individualized questions concerning individual work histories. Accordingly, predominance is met here because the overwhelming focus in this case will be on the common course of conduct by [Defendant].

Reply in Support, at 65. In order to evaluate the Plaintiffs' argument, the Court will consider the proof Plaintiffs wish to present and determine whether the focus would indeed be on Defendant's common course of conduct. See Zapata, 167 F.R.D. at 156 (the court may consider the range of proof necessary to maintain the allegations).

Plaintiffs suggest three areas of proof for their pattern-or-practice disparate treatment claim: "statistically significant disparities adverse" to female employees, "[c]ompany-wide policies that fail to cabin managers' discretion," and "anecdotal evidence of discrimination." Memorandum in Support, at 1; Reply in Support, at 32-33.

Common questions would tend to predominate with the statistical evidence. In fact, Plaintiffs contend at one point that statistical proof may be enough to establish a prima facie case of pattern-or-practice disparate treatment.¹⁹ The Court need not analyze this question because Plaintiffs do not claim their statistical evidence is strong enough, without more, to prove pattern-or-practice disparate treatment. Instead, Plaintiffs propose to meet their burden by presenting both statistical and non-statistical evidence.²⁰ Cf. Teamsters, 431 U.S. at 339, n. 20 (the Government's case did not turn on statistics alone).

19 Reply in Support, at 36.

20 Memorandum in support, at 1, 27. See also Response to Surreply, at 2 (stating four types of proof offered to show commonality and typicality).

Turning to the alleged subjective decision making, such proof is often offered by individual plaintiffs in disparate treatment cases. See Garret v. Hewlett Packard Co., 305 F.3d 1210, 1218 (10th 2002) (subjective considerations not unlawful per se, but subjective decision making provides opportunity for unlawful discrimination); Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 342 (10th Cir. 1982) (same); Bauer v. Bailar, 647 F.2d 1037, 1045 (10th Cir. 1981) (same); see also Watson v. Ft. Worth Bank Trust, 487 U.S. 977, 988, 108 S.Ct. 2777, 101 L.Ed.2d 827, 840 (1988) ("we have consistently used conventional disparate treatment theory . . . to review hiring and promotion decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria").

Plaintiffs similarly maintain that the subjective discretion provided to Defendant's managers, together with the statistical and anecdotal evidence, will show that "discrimination was the company's standard operating procedure — the regular rather than the unusual practice." Teamsters, 431 U.S. at 336. The Defendant responds that Plaintiffs' approach, in the context of this pattern-or-practice claim, will lead to individual inquiries during the liability phase. Plaintiffs insist this will not occur because the emphasis will be on company-wide policies that allow managers subjective discretion, not on the specific decisions of individual managers.

Plaintiffs most fully develop their line of reasoning when briefing the commonality prerequisite. The seminal case on subjective decision making is Falcon, which held commonality could be shown by an "entirely subjective decisionmaking processes." 457 U.S. at 159 n. 15, 72 L.Ed.2d at 751 n. 15. Plaintiffs cite McReynolds, in which a defendant attempted to distinguish Falcon by arguing that its managers used objective criteria, and that therefore its decision making processes was not entirely subjective. See 208 F.R.D. at 442. The McReynolds' court disagreed, stating,

Whether a particular manager uses objective criteria in making particular promotional decisions is irrelevant to the commonality analysis; instead, what is significant is that the determination of which criteria to use is left entirely to the individual manager. That is, although individual promotional decisions may in isolated cases be made based on some objective criteria, [defendant's] overall promotion practices remain entirely subjective, because the decision of whether to use objective criteria — and if so, which criteria to use — is a matter left to the discretion of the individual manager.

208 F.R.D. at 442 (emphasis supplied).

Based on this analysis, the Plaintiffs suggest that any evidence regarding objective criteria applied by Defendants' individual decision makers would be irrelevant at trial. Instead, Plaintiffs maintain, the issue would be the overall processes followed by Defendant, which Plaintiffs say were subjective. Therefore, according the Plaintiffs, the liability phase will not be bogged down in individual inquires.²¹

21 "The proper focus of inquiry is on the process permitted by the employer's policies, not on the specific criteria adopted by the decision-makers. Indeed, Falcon refers to the "entirely subjective decisionmaking processes," not to entirely subjective criteria used by managers in applying those processes. . . . [Defendant's] detailed recitation of how individual managers allegedly made the challenged employment decisions is irrelevant, and provides no basis for denying certification." Reply in Support, at 33-34 (citations omitted, emphasis in original).

Contrary to McReynolds, however, the record in this case does not show that Defendant's company-wide policies were entirely subjective. Instead, there were different policies at place in different parts of Defendant's operations at different times, all of which affected class members in different ways depending on whether they were, for example, unionized hourly workers or non-union salaried supervisors.²² See Webb v. Merck Co., Inc., 206 F.R.D. 399, 406-07 (E.D.Penn. 2002) (decision making was not entirely subjective where the class included union members whose compensation and eligibility were governed by CBA's, and where the Defendant used at least some objective factors in personnel decisions).

22 As Plaintiffs observe, Defendant's polices are described "in numbing detail" in Defendant's response brief. Reply in Support at 32.

The Court is also not persuaded that the rather artificial distinction between criteria and processes is workable in this case. Plaintiffs would need to canvas Defendant's employment policies at trial and establish that there was sufficient subjectivity to allow the intentional discrimination they allege. See Bauer, 647 F.2d at 1045 (subjectivity may provide an opportunity for unlawful discrimination). The range of this proof is not difficult to imagine, given the parties' briefing thus far.²³ Evidence regarding each policy would be offered not to establish an entirely subjective decision making process, which is what Falcon envisioned, but too much subjective discretion in certain instances, or subjective discretion in practice contrary to Defendant's stated intentions. Establishing the level of subjectivity faced by the numerous class members in Defendant's various departments at different times would require an individualized examination of Defendant's practices, whether they are characterized as criteria or as processes.

23 Consider, for example, the following arguments by Plaintiffs: "[Defendant] provides an elaborate description of its job classification conversion process . . . in the conversion, however, old job classifications were simply converted into new ones . . . [Defendant] did not study whether the individuals occupying particular job classifications were misclassified, nor did it automatically reclassify individuals who were misclassified." Reply in Support, at 15 (citations and emphasis omitted). "[Defendant] also concedes that most employees' rankings are made by the "pooled judgment" of "multiple managers" . . . Multiple managers, however, would not have the personal knowledge of an employee's performance that is necessary for an objective assessment of performance." Reply in Support, at 18 (citations omitted). "[Defendant] admits that some salary review groups use a consecutive ranking method . . . which scholars in the field of compensation have rejected as fatally subjective." Id, (citations omitted). "Managers must "consider" employees who have pre-registered their interest in a position through the new "Quality Through Training Program," but they retain the discretion to select someone outside this process." Reply in Support, at 20 (citations omitted). "[Defendant's] proffered subject matter expert . . . asserts that the company provides "detailed instructions for overtime allocation" . . . but this testimony is contradicted by the testimony of [Defendants'] other declarants and earlier . . . deposition testimony of this same person." Reply in Support at 12.

The Court must also consider the anecdotal evidence Plaintiffs would offer. The Court is fully aware that Plaintiffs and other witnesses may offer their own personal experience to bring "the cold numbers convincingly to life." Teamsters, 431 U.S. at 339, 52 L.Ed.2d at 417. But such testimony would naturally vary given the different departments in which the witnesses worked, the various qualifications and standards for their respective jobs, the periods of time in which they worked, and the defenses Defendant might raise to explain each alleged discrepancy in salary, overtime, or promotions. The Court concludes that individual questions of fact and law would predominate in the liability phase.

Individual questions of fact and law would also predominate in any damages phase. As already noted, Plaintiffs seek compensatory and punitive damages based on highly individualized issues such as emotional distress, pain and suffering, and allegations of fraud and malice. Given such claims, the Court foresees a damages phase which is "essentially a series of individual lawsuits. . . ." Thiessen, 267 F.3d at 1106 n. 7 (quoting Newberg on Class Actions, supra, § 4.17). This procedural reality has lead other courts to deny 23(b)(3) certification. See Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 684 (N.D.Ga. 2001) ("entitlement to the compensatory and punitive damages pled in Plaintiffs' complaints will not derive merely from a finding that Defendants engaged in a pattern and practice of . . . discrimination"); Bacon, 205 F.R.D. at 487 ("A calculation of compensatory and punitive damages will require a highly individualized inquiry into the circumstances of each class member to determine if or how he or she was injured by the alleged discriminatory practices and to what extent."); Adams v. Henderson, 197 F.R.D. 162, 172 (D.Md. 2000) ("individualized damages inquiries . . . inevitably accompany a claim for compensatory and punitive damages").

Even with full consideration of the Teamsters' bifurcated framework, the Tenth Circuit has rejected the notion that "whenever there is evidence of a pattern-or-practice, a class must be certified." Thiessen, 267 F.3d at 1108. In other words, it comes down to the facts of each case. Taking into account both the liability phase and the damages phase of the proposed pattern-or-practice disparate treatment class action, the Court in its discretion finds that the proposed class and subclasses are not sufficiently cohesive to warrant adjudication by representation, that the claims do not involve a sufficiently common nucleus of operative facts, that material variations in the claims exist, and that, ultimately, questions of law or fact common to the members of the class and subclasses do not predominate over any questions affecting only individual members.

In addition, the Court finds that a class action is not superior to other available methods for the fair and efficient adjudication of the controversy. The compensatory and punitive damages potentially recoverable, along with the diverse circumstances of the class members, support the conclusion that the class members have an interest in individually controlling the prosecution. See Fed.R.Civ.P. 23(b)(3)(A); Bacon, 205 F.R.D. at 487. The fact that the class members may recover their attorney fees also supports this conclusion. See Zapata, 167 F.R.D. at 163.

The main obstacle to superiority, however, is the difficulty likely to be encountered in the management of a class action. See Fed.R.Civ.P. 23(b)(3)(D). Much of the rationale for this conclusion was already set out in the predominance analysis. Given the Court, and the jury, would be required to examine individual issues, the Court cannot conclude that a class action is superior from a management perspective. See Zapata, 167 F.R.D. at 163 ("Courts have held that claim for compensatory damages unique to each individual greatly complicate management of a class.").

Plaintiffs suggest, with little explanation, that the Court could order class-wide relief²⁴, but the Plaintiffs' compensatory and punitive damage claims are not the type of damages typically calculated by mathematical formula or statistical technique. See 5 Moore's Federal Practice, supra, § 23.49[5][b], at 23-270, 271. The Court is not suggesting that class-wide relief is an impossibility in such a case, but Plaintiffs bear the burden of proof on class certification, Reed, 849 F.2d at 1309, and based on Plaintiffs' contentions the Court anticipates individualized damage inquiries.

24 Reply in Support at 66.

Plaintiffs also suggest, once again with little explanation, that a magistrate judge or a special master could fashion the relief, or even that the Court could order the parties to devise a class-wide solution.²⁵ This would be more persuasive if the Plaintiffs had not demanded a jury trial on compensatory and punitive damages. Most of the authorities cited by Plaintiffs date from before the 1991 Civil Rights Act and/or deal with back pay and not money damages. Naturally a bench trial on injunctive and declaratory relief would provide more flexibility to all concerned. See, e.g., 5 Newberg on Class Actions, supra, § 24.121 (a special master may be used to calculate back pay). Given the Plaintiffs' pleadings, however, a class action is not superior to other available mechanisms for the fair and efficient adjudication of Plaintiffs' pattern-or-practice disparate treatment claims.

25 Reply in Support, at 58.

b. Implied contract claim

The Plaintiffs also ask the Court to certify their implied contract claim under Rule 23(b)(3). Common issues may predominate in a contract claim where, for example, the contracts at issue are form contracts executed by all class members, and where damages may be calculated by statistical methods. See Smilow v. Southwestern Bell Mobile Systems, 323 F.3d 32, 2003 WL 834892 (1st Cir. 2003); Heartland Communications, Inc., 161 F.R.D. at 117. Here, in contrast, Plaintiffs opposed summary judgment on the basis that they need discovery of Defendant's written or oral statements to establish the alleged implied contracts, and they seek damages including, but not limited to, consequential damages. Obviously, then, Plaintiffs cannot show either that common questions would predominate or that a class-wide adjudication would be superior. See Basco v. Wal-Mart Stores, Inc., 216 F. Supp.2d 592, 602-03 (E.D.La. 2002) (individual issues predominate regarding damages and defenses to oral contracts); Nagel v. ADM Investor Services, Inc., 65 F. Supp.2d 740, 746 (N.D.Ill. 1999) ("Who said what to whom and when, and who relied on which statements, are not things that can be resolved as to . . . a class."); Cullen v. Whitman Medical Corp., 188 F.R.D. 226, 233 (E.D.Pa. 1999) (even with a standard contract, analysis would require inquiry into which terms were breached with regard to each claimant).

4. Hybrid certification

Plaintiffs finally suggest that the Court certify a class under Rule 23(b)(2) for the declaratory and injunctive relief and under Rule 23(b)(3) for the compensatory and punitive damages. The Court has certified Subclasses 1 and 2 under Rule 23(b)(2) for the Plaintiffs' disparate impact claim, and the Court has rejected both Rule 23(b)(2) and Rule 23(b)(3) class certification for Plaintiffs' remaining claims for the reasons set out above. Hybrid certification is denied for the same reasons.

IT IS THEREFORE ORDERED that Defendant's Motion for Partial Summary Judgment (Doc. 166) is GRANTED IN PART AND DENIED IN PART as set out in Section I of this Memorandum and Order;

IT IS FURTHER ORDERED that Defendant's Motion to Exclude Expert Testimony (Doc. 190) is DENIED;

IT IS FURTHER ORDERED that Plaintiffs' Motion for Class Certification (Doc. 137) is GRANTED IN PART AND DENIED IN PART as set out in Section III of this Memorandum and Order;

IT IS FURTHER ORDERED that this matter is referred to Magistrate Judge Humphreys for the remaining discovery and the pretrial hearing.

SO ORDERED.