Moore v. Boeing Company

Full title: EVELEAN MOORE, et al., Plaintiffs, v. THE BOEING COMPANY, et al.…

Court: United States District Court, E.D. Missouri, Eastern Division

Date published: Mar 31, 2004

Case No. 4:02CV80 CDP (E.D. Mo. Mar. 31, 2004)

Opinion

Case No. 4:02CV80 CDP

March 31, 2004

MEMORANDUM AND ORDER

CATHERINE PERRY, District Judge

Nine plaintiffs brought this employment discrimination action on behalf of themselves and other women, alleging that McDonnell Douglas and The Boeing Company have engaged in gender discrimination. Plaintiffs' First Amended Class Action Complaint alleges claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); the Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat. § 213.010et seq.; and the Missouri Equal Pay Act, Mo. Rev. Stat. § 290.400. The complaint asserts a wide range of discrimination, including discrimination in pay, promotion, training, discipline and terminations, and sexual harassment. However, in their motion for class certification, plaintiffs only seek class treatment of their Title VII and MHRA claims that Boeing discriminated against them by giving them lower salaries than similarly qualified males, and by assigning them less overtime than similarly qualified males.

Plaintiffs seek certification of the following class:

All salaried female employees, and all hourly female employees represented by the International Association of Machinists ("IAM") of Boeing in facilities in or around St. Louis, Missouri, from February 25, 1998 to the present. Excluded from the Class and Subclasses are executives, and engineers (Paycode "E" employees), officers and directors of Boeing; members of their immediate families; and each of their heirs, affiliates, successors or assigns.

Plaintiffs seek certification of two subclasses:

(1) the "Salary Subclass," consisting of all salaried non-executive and non-engineer (Paycode "E") female employees, and

(2) the "Overtime Subclass," consisting of hourly female employees who are represented by the IAM.

Boeing has filed a motion for partial summary judgment, seeking to exclude certain claims as time barred, and arguing that plaintiffs' claims of disparate impact in salary and any claims relating to overtime were not raised in plaintiffs' EEOC charges. Both sides have filed extensive briefs and evidence, as well as a variety of motions to strike.

After careful consideration of the facts and the parties' briefs, I agree with Boeing that no plaintiff raised a claim of overtime discrimination before the EEOC. I will therefore grant Boeing summary judgment on all overtime claims and will deny the motion to certify the overtime subclass. Additionally, I agree with Boeing that any Title VII claims for acts predating April 16, 1999, and any MHRA claims for acts predating August 14, 1999, are time-barred, so I will grant summary judgment to that extent. I will deny Boeing's summary judgment motion to the extent it argues that plaintiffs' claims of disparate impact in pay were not properly raised in the administrative process. Finally, I will deny the motion for class certification, for a variety of reasons, and I will deny all other pending motions as moot.

I. FACTS

Plaintiffs Michelle Diggs, Lori Maris, Martha McFerren, Pamela Meeks, Evelean Moore, Beneva Rimson, Rosie Turner, Terri Wertz and Angela Zasserati-Smith are all employees or former employees of defendants The Boeing Company and McDonnell Douglas. Each of these women filed charges with the EEOC and the MCHR alleging sex discrimination. Their charges claim that Boeing has engaged in a pattern or practice of discrimination against female employees at its St. Louis facilities. The women argue that as a result, they are paid less than men and are assigned less overtime than men.

Six of the plaintiffs in this suit were plaintiffs in Beck v. The Boeing Company, No. C00-301P, United States District Court for the Western District of Washington. In that case, plaintiffs sought certification of a class of females who had worked at Boeing's facilities in four areas: the Puget Sound region in Washington; Wichita, Kansas; St. Louis, Missouri; and Long Beach, California. The Washington district court certified only a class of women employed in Washington, at the Puget Sound facilities. Beck v. The Boeing Co., 203 F.R.D. 459, 464 (W.D. Wash. 2001). After the court clarified its order to state that all plaintiffs working at other facilities were "free to pursue their claims in the appropriate forums," plaintiffs filed this action.

Boeing acquired McDonnell Douglas' operations in 1997. Boeing's Missouri operations include production, design, and development of military aircraft and missiles. Boeing has two campuses in the St. Louis area, one in St. Louis County and one in St. Charles County, each spanning more than 100 acres. Until mid-2002, four business units operated in St. Louis. These four units were Military Aircraft and Missile System, Shared Services Group, Phantom Works, and Company Offices. In 2002, Aircraft and Missile combined with Space and Communications, a large California-based unit, to form Integrated Defense Systems, which is now based in St. Louis. Within each of the business units, there are different job groups including quality, production operations, accounting, procurement, contracts administration, engineering, and law. Each business unit has its own management structure and its own human resources support.

Plaintiffs Moore, McFerren, Meeks, Rimson, Wertz and Zassaretti-Smith were plaintiffs in Beck. Moore began working for Boeing in 1966 as a sheet metal worker. In 1993 she became a senior manufacturing engineer. Later, in 1996, her position was reclassified as a manufacturing engineer. She alleges that her salary is below the median for her job level despite receiving good performance reviews. McFerren began working at Boeing in 1986, and until July 2000 she was a level one planner in the military aircraft division. She left Boeing in July 2000, but claims she was paid at the low end of the salary band while employed at Boeing. Meeks has been at Boeing since 1981. Her job title is quality specialist level four in the military aircraft division. She claims she has been paid below the minimum level, or at least less than the middle to maximum range while working at Boeing. Rimson was terminated from Boeing in September 1999. At the time of her termination she was an administrative assistant in aerospace support. She alleges that she was paid less than men who held the same job, and that she received no raise in 1999. Wertz has worked in the International New Business (Contracts) group since she transferred to that department in 1998. She claims that she remains below the bottom salary range for a contracts and pricing administrator, level three. Zassaretti-Smith works in the military aircraft division. Her only claim is discrimination with respect to promotions.

These women are joined in this suit by Diggs, Maris and Turner. Diggs is a long-time Boeing union employee. In her declaration in support of the motion for class certification, she asserts that Boeing discriminated against union women in overtime assignments. Maris worked from 1997-2000 as an engineer. She became an accountant in July 2000, but claims she was discriminated against with respect to pay while she was an engineer. Finally, Turner began working at Boeing in 1978 as a material control planner. From 1990 until her termination in June 1999 she was a procurement agent in the military aircraft division. She claims that while at Boeing she was paid less than male co-workers.

Plaintiffs and Boeing agree that the earliest date that any named plaintiff filed a charge of discrimination with the EEOC for the proposed Salary Subclass was February 10, 2000. Diggs is the only named plaintiff representing the proposed Overtime Subclass. She filed her charge of discrimination with the EEOC on September 9, 2002. Her charge does not mention "overtime," but rather alleges that she was discriminated against with regard to "compensation, retention rating, and other terms and conditions of employment." In the charge she provided detailed information about her claims of disparate discipline, but she did not mention overtime.

According to plaintiffs, managers at Boeing are given wide discretion in setting both starting salaries and annual salary increases. Plaintiffs discuss two categories of starting salaries: (1) existing employees hired into new positions; and (2) outside hires. For the former group, plaintiffs claim that managers decide for themselves what factors they will use to set the salary. With respect to outside hires, plaintiffs again allege that ultimately it is the hiring manger's decision, although a human resources department provides them with a sheet of variables to calculate starting salary. According to plaintiffs, however, these guidelines are only used for engineering and some business jobs.

For annual salary determinations, plaintiffs state that Boeing headquarters issues guidelines, but they contain only vague considerations for managers. The overall compensation policy is that all employees are to be paid based on their performance. Boeing uses salary review groups to determine annual salaries. This process involves a group of managers measuring performances to determine salaries. Plaintiffs allege that individual organizations and managers have substantial discretion as to how they conduct performance reviews, the criteria to be used for comparative judgment calls, and where they place the employees within their peer salary ranges.

According to Boeing, the process does not require as much subjectivity as plaintiffs claim. Instead, Boeing contends that there is a seven-step procedure that managers follow. First, the size of the fund or budget is set. Then employees are organized into salary review groups with Compensation and Human Resources attempting to place employees in salary review groups with managers who are most knowledgeable about their performance. Then Boeing issues guidelines to managers on how to make salary decisions, although some business units issue their own guidelines. Managers then make salary recommendations for their employees based on the value of each employee's contributions during the year. The salaries proposed by managers are then reviewed by Human Resources and Compensation. After this, functional managers conduct a review to ensure consistency in salary decisions across each function and to address equity issues. Finally, employees are informed of the salary decisions.

II. BOEING'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Boeing seeks summary judgment on the grounds that plaintiffs failed to exhaust their administrative remedies with respect to two of their claims: (1) that women receive fewer overtime assignments than men; and (2) that Boeing's salary policies have a disparate impact on women. In addition, Boeing argues that some of plaintiffs' claims are time barred.

To determine whether to grant summary judgment, I must view the facts and inferences from the facts in the light most favorable to the plaintiffs. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The defendants have the burden to establish both the absence of a genuine issue of material fact and that they are entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the defendants have met this burden, the plaintiffs may not rest on the allegations in their pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e). A. Exhaustion of Administrative Remedies

In order to exhaust administrative remedies, an individual must timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge. 42 U.S.C. § 2000e-5(b),(c),(e). This provides the EEOC the first opportunity to investigate discriminatory practices. Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996). Exhaustion requires a claimant to give notice of all claims of discrimination in the administrative complaint. Stuart v. General Motors, 217 F.2d 621, 631 (8th Cir. 2000).

A plaintiff may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge. Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838 (8th Cir. 2002); Nichols v. American National Insurance Co., 154 F.3d 875, 886 (8th Cir. 1998). To determine whether an allegedly discriminatory act falls within the scope of a claim, the administrative complaint must be construed liberally in order to further the remedial purposes of applicable legislation. Dorsey, 278 F.3d at 838; Shannon, 72 F.3d at 685. The breadth of a civil suit is as broad as the scope of any investigation that reasonably could have been expected to result from the initial charge of discrimination. Dorsey, 278 F.3d at 838; Stuart, 217 F.3d at 630-31.

1. Denial of Overtime

Plaintiffs assert that the proposed overtime subclass should be certified as a class for putative class claims "for the hourly women in the form of less overtime than similarly situated males." Boeing argues that plaintiffs failed to exhaust their administrative remedies because no named plaintiff alleged this type of discrimination in her charge with the EEOC. Michelle Diggs, the only named plaintiff for the overtime subclass, claimed in her EEOC charge that she was discriminated against with respect to "training, compensation, retention rating and other terms and conditions of employment." According to plaintiffs, Diggs' reference to "compensation" is enough to encompass the overtime claim.

Although overtime pay can obviously be a part of an employee's total compensation, see Ridgway v. United Hospitals, 563 F.2d 923, 925 (8th Cir. 1977), a claim of discrimination in compensation does not necessarily equate to a claim of discrimination in providing opportunities for overtime. Plaintiffs are not complaining that union women were paid a lower hourly rate than union men for overtime, but rather that they received fewer overtime assignments than their male co-workers. Nothing in Diggs' EEOC charge would put Boeing on notice that this was what she was claiming. Her charge provided details about discriminatory discipline, but as to pay, it only made a reference to "compensation," with no further explanation. Diggs testified in her deposition that she was, in fact, not given less overtime, but in her later-filed declaration, she clarified that she believed the workforce was improperly segregated into different departments, with the males being placed in the department that was eligible for more overtime. This claim is not like or reasonably related to any of the issues she raised in her EEOC charge.

As Boeing points out, if a charge of discrimination in compensation is reasonably related this type of claim of discrimination in overtime assignments, almost any adverse employment action could be exhausted by a charge alleging discrimination in compensation. For example, under plaintiffs' arguments, any plaintiff who alleges discrimination in compensation could then sue for failure to promote, since it follows that a promotion usually means an increase in compensation. This is not the law. Because I find that neither Diggs nor any other plaintiff properly exhausted her administrative remedies with respect to a claim of denial of overtime assignments, I will grant summary judgment to Boeing as to all claims relating to overtime.

2. Disparate Impact

Plaintiffs seek class certification on their salary discrimination claims, both under a disparate treatment theory and under a theory of disparate impact. Boeing argues that plaintiffs failed to exhaust their administrative remedies with respect to all claims of disparate impact because their EEOC charges only alleged disparate treatment. Plaintiffs respond that the disparate impact claim could have been reasonably expected to grow out of the allegations in their EEOC charges.

Disparate treatment and disparate impact are "alternative theories upon which a right to relief under Title VII may be established in a given case." Williams, v. Colorado Springs, Colorado, School District, 641 F.2d 835, 839 (10th Cir. 1981); see also Watkins v. City of Chicago, 992 F. Supp. 971, 973 (N.D. Ill. 1998). Title VII plaintiffs are entitled to significant leeway, and no specific words or phrases are required to allege a disparate impact claim. Daniels v. Nationwide Insurance, 1999 WL 753945, at *2 (N.D. Ill. Sept. 17, 1999). However, disparate treatment and disparate impact cases do differ fundamentally. Disparate treatment occurs when a plaintiff is intentionally treated less favorably than others because of her sex. Disparate impact, on the other hand, exists where an employment practice, although neutral on its face, has a disproportionally negative effect on the plaintiff. Id.; Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996); Williams, 641 F.2d at 840.

In their charges of discrimination each named plaintiff alleged that Boeing engaged in a pattern or practice of discrimination. They also stated that they had been treated differently than similarly situated males with respect to pay. Although plaintiffs did not expressly point to a facially neutral practice or policy that was adversely affecting female employees, it is reasonable to expect that an EEOC investigation of these charges would have included an investigation into Boeing's policies regarding pay and the effects of these policies on women.

Furthermore, the examples plaintiffs provided in their charges of discrimination suggest that Boeing's practices with regard to salary determinations are subjective, which is the basis for plaintiff's disparate impact theory. For example, in her charge of discrimination, Lori Maris claims that when she was hired, her starting salary was below that of similarly situated males starting at the same time and that the males had a better raise history. Boeing could have expected than any investigation into this charge would uncover its salary structure and guidelines as well as the impact they had on women. While plaintiffs did not use the phrase "disparate impact," a disparate impact theory of discrimination is reasonably related to the allegations in their EEOC charges. Therefore, I will deny Boeing's motion for summary judgment for failure to exhaust administrative remedies as to the disparate impact theory.

B. Timeliness

Plaintiffs allege that the proper beginning date for the class is February 25, 1998. The parties agree that the first EEOC filing by any plaintiff was February 10, 2000. Boeing therefore argues that any Title VII claims for actions before April 16, 1999 are untimely, as are any MHRA claims for actions occurring before August 14, 1999. Plaintiffs respond that the violations are all "continuing violations," and thus there is no time limit. They argue the violations have been ongoing since at least January 1, 1998.

Before brining a civil action under Title VII, a plaintiff in a deferral state such as Missouri must file a charge with the EEOC within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000-5(e)(1); see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002); Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 835 (8th Cir. 2002). Allegations of discrete discriminatory acts that occurred more than 300 days before the filing of an EEOC administrative charge are not recoverable in a Title VII action. Morgan, 536 U.S. at 114.

Similarly, a plaintiff claiming an unlawful employment practice under the MHRA must file a complaint with the Missouri Commission on Human Rights within 180 days of the alleged discriminatory act. Mo. Rev. Stat. § 213.075.1; Dorsey, 278 F.3d at 835. A plaintiff's compliance with the 180-day time limit is a prerequisite to the maintenance of an employment discrimination action, and failure to comply with the deadline bars the claim.Daffron v. McDonnell Douglas Corp., 874 S.W.2d 482, 484 (Mo.Ct.App. 1994); Hill v. St. Louis University, 920 F. Supp. 124, 124 (E.D. Mo. 1996).

In a Title VII class action, it is not necessary for all class members to have filed EEOC charges or to have received notice of the right to sue in order to be members of the class. Alexander v. Fulton County, Ga., 207 F.3d 1303, 1333 (11th Cir. 2000). The timely filing of an administrative charge by a named plaintiff satisfies the charge obligation of all members of the class.See United Airlines, Inc. v. McDonald, 432 U.S. 385, 389 n. 6 (1977); Albermale Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975); Robinson v. Sears, Roebuck and Co., 111 F. Supp.2d 101, 1117 (E.D. Ark. 2000).

In National R.R. Passengers Corp. v. Morgan, 536 U.S. 01 (2002), the Supreme Court clarified that the continuing violations doctrine does not save untimely-filed claims alleging discrete acts of discrimination:

Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after discrete discriminatory acts occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

Morgan, 536 U.S. at 113. The Court included termination, failure to promote, denial of transfer, and refusal to hire in its definition of discrete discriminatory acts. Id. at 114. The Court distinguished this type of discrete discriminatory act from a claim of hostile work environment, which by its nature is a continuing violation. Id. at 114-115.

With respect to pay discrimination, the Supreme Court has held the "[e]ach week's paycheck that delivers less to a [female] than to a similarly situated [male] is a wrong actionable under Title VII." Bazemore v. Friday, 478 U.S. 385, 395-96 (1986). This means that each allegedly discriminatory paycheck represents a new Title VII violation. See also Tademe v. St. Cloud State University, 328 F.3d 982, 989 (8th Cir. 2003) (a charge of pay discrimination must be filed within 300 days of receiving allegedly discriminatory paychecks).

Under prevailing Supreme Court and Eighth Circuit precedent, pay discrimination is a discrete act of discrimination. Therefore, any claim of discrimination in pay relating to paychecks received outside of the Title VII and MRHA limitations period are untimely filed and are no longer actionable. Boeing submitted February 10, 2000 as the earliest date a named plaintiff filed a charge of discrimination, and plaintiffs do not dispute that fact. Therefore, all Title VII claims for pay discrimination occurring prior to April 16, 1999 are time barred. All MHRA pay discrimination claims arising before August 14, 1999, which is 180 days before February 10, 2000, are also time barred.

III. PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Plaintiffs request certification of the following class:

All salaried female employees, and all hourly female employees represented by the International Association of Machinists ("IAM"), of Boeing in facilities in or around St. Louis, Missouri, from February 25, 1998 to the present. Excluded from the Class and Subclasses are executives and engineers (Paycode "E") employees.

Plaintiffs also propose two Subclasses: (1) the "Salary Subclass," consisting of all salaried non-executive female employees (excluding engineers), and (2) the "Overtime Subclass," consisting of hourly female employees who are represented by the IAM.

The court has wide discretion in determining whether to certify a class. Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980). Fed.R.Civ.P. 23(a) establishes four prerequisites to the maintenance of a class action: (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be present common questions of law and fact; (3) the claims or defenses of the class representative must be typical of the claims or defenses of the class; and (4) the class representative must be in a position to fairly and adequately protect the interests of the class. The person seeking to represent the class bears the burden of demonstrating that all four prerequisites are satisfied. Wakefield v. Monsanto Company, 120 F.R.D. 112, 115 (E.D. Mo. 1988).

In determining whether to certify a class, the question before the Court "is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but whether the requirements of Rule 23 are met." Wakefield, 120 F.R.D. at 115 (quoting Eisen v. Carlisle Jacquelin, 417 U.S. 156 (1974)). When conducting its Rule 23 analysis, the court accepts the substantive allegations in the plaintiff's complaint as true.Mathers v. North Shore Mining Co., 217 F.R.D. 474, 483 (D. Minn. 2003). However, because "the class determination generally involves considerations that are `enmeshed in the factual and legal issues comprising the plaintiff's cause of action,' . . . sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." General Telephone Co. v. Falcon, 457 U.S. 147, 160 (1982) (citations omitted).

Although discrimination cases are often well-suited for class actions, Title VII contains no special provision relieving the plaintiffs of the burden of satisfying the Rule 23 prerequisites.See Falcon, 457 U.S. at 157; Morgan v. United Parcel Service of America, 169 F.R.D. 349, 354 (E.D. Mo. 1996). Therefore, a Title VII class action, like any other class action, may only be certified if, after rigorous analysis, the trial court is satisfied that the prerequisites of Rule 23(a) have been satisfied. Falcon, 457 U.S. at 161; Roby v. St. Louis Southwestern Railway Co., 775 F.2d 959, 961 (8th Cir. 1985). Certification of the class requires that I answer "the substantive question whether, under either of the available theories, there exists the requisite pattern or practice sufficiently and comparably affecting an identifiable class of protected employees." Stastny v. Southern Bell Tel. Tel. Co., 628 F.2d 267, 274 (4th Cir. 1980); Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 421 (N.D. Ill. 2003).

A. The Salary Subclass

1. Numerosity

A class may not be certified unless the proposed class is so large that joinder of all class members would be "impracticable." Fed.R.Civ.P. 23(a)(1). The Eighth Circuit has not established rigid rules regarding the necessary size of a class. Mathers, 217 F.R.D. at 484. The question of what constitutes impracticability depends upon the facts of each case. Id. Plaintiffs aver that the proposed class includes "over 2000 women employees at Boeing's St. Louis facility." Defendants do not dispute that plaintiffs meet the numerosity requirement. I find that plaintiffs have satisfied this requirement.

2. Commonality and Typicality

Commonality and typicality are required to "bridge the gap" between an individual action and one brought on behalf of a group:

Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim.

Falcon, 457 U.S. at 157-58. Plaintiffs allege that they were each paid less because they were women, and they allege that Boeing treated all women this way. As plaintiffs assert both disparate treatment and disparate impact, I must determine whether their claims of both forms of discrimination present common questions of law and fact and are typical of those of the class.

The analysis of commonality and typicality often requires a discussion of overlapping facts. Clayborne v. Omaha Public Power District, 211 F.R.D. 573, 590 (D. Neb. 2002). In Falcon, the Supreme Court stated:

The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.

457 U.S. at 158 n. 13.

The commonality requirement does not mean that every question of law or fact must be common to every member of the class.Mathers, 217 F.R.D. at 485. The requirement may be met if a common issue pervades the class members' claims. Paxton v. Union National Bank, 688 F.2d 552, 561 (8th Cir. 1982); Wakefield, 120 F.R.D. at 116. In Stastny, the Fourth Circuit discussed commonality in the context of disparate treatment and disparate impact theories:

Central to both theories of liability where class-wide sex discrimination is alleged is the existence of an identifiable employment pattern, practice or policy that demonstrably affects all members of a class in substantially, if not completely, comparable ways. In disparate treatment theory, this is the pattern or practice followed as an employer's regular or standard operating procedure . . . In disparate impact theory, it is the practice or policy, which though demonstrably neutral, . . . bears with disproportionately adverse impact and without any justification of business necessity upon women. It is in relation to the pattern or practice element of both substantive theories that the commonality criteria for class action maintenance becomes most critical in Title VII litigation. Indeed, at this point the class action and merit inquiries essentially coincide.

Stastny, 628 F.2d at 273-74 (internal citations and quotation marks omitted). Factors relevant to commonality include: (1) the nature of the employment practices charged; (2) the uniformity or diversity of the employer's employment practices; (3) the uniformity or diversity of the class membership; and (4) the nature of the employer's management organization. Clayborne, 211 F.R.D. at 590; Wakefield, 120 F.R.D. at 116; see also Stastny, 628 F.2d at 277.

Typicality requires "a demonstration that there are other members of the class who have the same or similar grievances as the plaintiff." Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977); see also Chaffin v. Rheem Manufacturing Co., 904 F.2d 1269, 1275 (8th Cir. 1990); Clayborne, 211 F.R.D. at 590-91. Factors relevant to typicality include: (1) plaintiffs' employment situation and that of the prospective class members; (2) the circumstances surrounding plaintiffs' grievances and those surrounding the prospective class members; and (3) the relief sought by plaintiff and that sought by the class.Clayborne, 211 F.R.D. at 591; Wakefield, 120 F.R.D. at 116.

Plaintiffs argue that Boeing's centralized policy, which affects all members of the class, is to allow managers unfettered discretion in setting salaries, and that this discretion fosters discrimination. Plaintiffs argue that this policy gives rise to common questions of fact and warrants certification of the proposed class. Boeing contends that under a disparate treatment theory the inquiry is too individualized because "establishing the nature and degree of subjectivity faced by numerous class members in different jobs and departments at different times . . . would require an extremely detailed examination of dozens of discrete practices." With respect to a disparate impact theory, Boeing argues that the "policy" that forms the basis of plaintiffs' complaint is not an employment practice capable of being isolated and studied statistically for disparate impact.

I agree with Boeing that plaintiffs cannot show the requisite commonality and typicality. Plaintiffs' disparate treatment claim asserts that they, and all other class members, were individually treated unfairly, but the only "policy" or pattern or practice they can point to is what they refer to as "excessive subjectivity." In other words, they claim that because Boeing's managers make the decisions subjectively, each subjective decision discriminates against women class members. This type of claim of disparate treatment requires individualized determination, rather than class treatment. Because of this obvious problem, plaintiffs spend most of their briefs relying on their disparate impact theory.

Normally a disparate impact theory points to a facially neutral policy which the plaintiffs attempt to prove has a disparate impact on the protected category of employee. Here, plaintiffs have not pointed to an actual policy as one normally understands policies. Rather, they claim that Boeing has a "policy" of "excessive subjectivity" in salaries, and that this excessive subjectivity results in women generally being paid lower.

Under certain circumstances subjective employment practices may give rise to a claim of discrimination. See Falcon, 457 U.S. at 159 n. 15. Some courts have held that a company's policy of delegating discretionary authority to subordinate managers and supervisors to make employment decisions can constitute a common issue of fact pervading each class member's claim sufficient to satisfy Rule 23(a)'s commonality requirement. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2nd Cir. 1999);Mathers, 217 F.R.D. at 485; Beckmann v. CBS, 192 F.R.D. 608, 613 (D. Minn. 2000); Morgan, 169 F.R.D. at 349; Shores v. Publix Super Markets Inc., 1996 WL 407850 at *6 (M.D Fla. March 12, 1996). However, as the Second Circuit noted in Caridad:

Of course, class certification would not be warranted absent some showing that the challenged practice is causally related to a pattern of disparate treatment or has a disparate impact on [the proposed class].

191 F.3d at 292.

Several courts have held that disparate treatment claims alleging that a company's policy of delegating discretionary employment decisions to local supervisors are not appropriate for class certification. Reap v. Continental Casualty Co., 199 F.R.D. 536, 545 (D.N.J. 2001); Zachery v. Texaco Exploration Prod. Inc., 185 F.R.D. 230 (W.D. Tex. 1999); Zapata v. IBP, Inc., 167 F.R.D. 147, 159 (D. Kan. 1996); Appleton v. Deloitte Touche, L.L.P., 168 F.R.D. 221 (M.D.Tenn. 1996). Thus, although a disparate impact claim can be based on entirely subjective employment practices, where there are objective factors, even a generally subjective process will not satisfy Rule 23(a)'s commonality and typicality requirements.See Betts v. Substrand Corp., 1999 WL 436579 at *6 (N.D. Ill. June 21, 1999) (compiling cases); Appleton, 168 F.R.D. at 228.

Recently, in Grosz v. The Boeing Company, No. SACV 02-0071 CJC (C.D. Cal. Nov. 7, 2003), a district court refused to certify a class of women from Boeing's Southern California facilities. The court held that plaintiffs had not identified a company-wide policy or practice that might have caused salary disparities between men and women. The court found that Boeing has numerous policies and practices that vary depending on such factors as the business group and the employee's position. The Court stated that "excessive subjectivity" was a criticism, not a policy. Slip opinion at p. 11. Cf. EEOC v. McDonnell Douglas Corp., 17 F. Supp.2d 1048, 1054 (E.D. Mo. 1998) ("the decentralized and subjective nature of the decision making process undermines the claim that age discrimination was MDC's `standard operating procedure'"), aff'd 191 F.3d 948 (8th Cir. 1999). I recognize that plaintiffs disagree with the Grosz decision, and I understand both that it is on appeal and that it is not binding on me, but I agree with its reasoning regarding whether "excessive subjectivity" is a company-wide policy.

The evidence in this case shows that across different business units and job aggregation groups different criteria are used in setting salaries. Although Boeing issues general corporate statements regarding salary planning, implementation of the procedures remains the province of the individual business units. The decentralized nature of the decision-making defeats plaintiffs' attempt to convert separate decisions by separate managers into a company-wide policy. Moreover, even if I were to conclude that "excessive decisionmaking" were a company-wide policy, plaintiffs have not shown that this policy discriminates against women or has a disparate impact on them throughout Boeing's St. Louis facilities.

To establish commonality, plaintiffs submitted anecdotal evidence in the form of a declaration from a human resources expert as well as the declarations of the named plaintiffs and a few putative class members. They also rely heavily on the statistical evidence of Dr. Bernard Siskin. The declarations of the named plaintiffs do little to bolster their case. The evidence suggests that Moore is not a member of the putative class because her allegations of discrimination occurred while she was an engineer, a group that is not part of the class definition. Similarly, Maris, although currently working as an accountant, alleges that she was discriminated against while she was an engineer. Furthermore, the liability period in this case begins on April 16, 1999, and several of the named plaintiffs only have allegations of discrimination before the period began, or for only a very short time after.

The statistical evidence plaintiffs offer does not show a pattern or practice of discrimination. Instead, it suggests that whatever subjective processes were utilized, they did not affect all female employees in similar ways. This is not surprising, given that in different job groups there were different decision-makers using different objective and subjective criteria. Plaintiff's statistical argument contains at least two major problems: it relies on data from time periods outside the limitations period, and it aggregates data inappropriately.

Because the liability period begins in April 1999, only Siskin's data beginning in March 2001 is relevant. This is because annual salary decisions in St. Louis are made each year in early March. The first salary planning exercise during the applicable liability period was the March 2000 exercise. Siskin, however, studied data from March 1 of every year, which is generally before salary planning decisions have been implemented. Therefore, the March 2000 decisions are reflected in the March 2001 study. The March 2000 study may contain some decisions during the liability period, but the majority were made during the 1999 salary planning exercise, which was done prior to the liability period.

Assuming, as Siskin suggests, that a standard deviation of at least 2.00 is statistically significant, an examination of his statistics beginning in March 2001 does not support plaintiffs' claims. Siskin studied management (Paycode "M"), non-exempt employees (Paycode "N"), and exempt employees (Paycode "X"). He subdivided the workforce by site and job group. Although the aggregation of all of the job groups within a site may suggest a pay disparity favoring men, within many of the job groups there is not a statistically significant disparity, and in some groups, women are actually favored. For example, in Table 11 Siskin studied all managers at all sites in all job groups. Beginning in March 2001 the pay disparity for managers actually favors women. Even considering the March 2000 data, although women managers were paid less than men the number was not statistically significant. This data takes into consideration managers at all sites that Siskin studied, meaning that even in the aggregate, there is no evidence of discrimination.

In Table 20, Siskin analyzed the job groups at one specific site. Again, even in March 2000, the data illustrated in Table 20 does not help plaintiffs' argument. In that year Siskin studied fourteen job groups. In eleven of the fourteen women were in fact paid less than men. However, in only three of these job groups were the statistics significant, and in one job group women were favored. Yet, plaintiffs rely on the aggregation of the statistics, which yields a standard deviation of 5.91. When the decision-making processes and the criteria used vary from one job group to the next, it is difficult to see how the aggregation of these decisions is useful. While the data suggests that some managers in some groups may use their discretion to discriminate against women, the data does not show that there is a company-wide policy of discrimination.

Examining some of Siskin's other data yields a similar conclusion. In the March 2001 study, referenced in Table 19, Siskin studied thirteen job groups. In nine of those women were paid less than men, but only one job group was statistically significant, and in four job groups women were actually favored. Again, in the aggregate, this does yield a statistically significant number, 2.48 units of standard deviation. But, since it cannot be said that salary decisions are centralized, and in fact they vary from one job group to the next, this number is not useful. From the March 2002 study forward, even the aggregation of the job groups does not yield a statistically significant number.

All of the above data was taken from one job site, which Siskin labeled 702. In another job site that he studied, 205, he found no pay pattern adverse to females in category N or X jobs. This further illustrates the point that any discrimination against women that did occur with respect to salary was not the result of any classwide policy, and any action alleging discrimination would require individualized considerations. Therefore, plaintiffs have not met the requirements under Rule 23(a) of commonality or typicality.

3. Adequacy of Representation

Adequacy is met when "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). In making this determination, the following must be considered: (1) whether the representatives and their attorneys are able and willing to prosecute the action completely and vigorously, and (2) whether each representative's interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge. Mathers, 217 F.R.D. at 486.

Because I find that plaintiffs do not meet the commonality and typicality requirements, I need not discuss the adequacy requirement in any great detail. However, while I have no doubt that plaintiff's counsel has adequate experience to maintain a class action, I do not believe the named plaintiffs could adequately represent the class. Several of the named plaintiffs, including Moore, Maris, and Diggs are no longer even part of the putative class. Others allege discrimination during only a very small portion of the liability period. Finally, the statistics do not necessarily show that plaintiffs would possess the same interests and have suffered the same injuries as other class members. Therefore, I find that plaintiffs do not adequately represent the class members.

B. The Overtime Subclass

Because I have granted Boeing's motion for summary judgment on all overtime claims, the motion for certification of the overtime subclass is moot. Even were the claim not unexhausted, however, I would deny class certification, for all the reasons stated by Boeing in its briefs. Plaintiffs support their overtime claims with testimony by their expert that men worked more overtime, and that therefore Boeing's facially neutral overtime policy had a disparate impact on women. However, there is no evidence comparing the amounts of overtime worked by men and women who sought overtime or were available for it. From the evidence presented it is impossible to determine whether women were offered the same amount of overtime as men but declined it at higher rates or whether the facially neutral policies may have a class-wide discriminatory impact on women. Although plaintiffs complain that this is the fault of the discovery Boeing produced, they did not file motions to compel or otherwise seek additional discovery during the time they were allowed to do so. In any event, since there is no plaintiff who filed a timely charge of discrimination on this basis, the issue is moot.

IV. FURTHER PROCEEDINGS

I will direct the parties to file a joint proposal setting out a schedule for completing all further proceedings in this case. In advance of the filing, the parties shall meet and confer in an attempt to reach agreement on the appropriate procedures and schedule. Any disagreements shall be set out in the joint proposal.

Both parties in this case have abused the court's permission that they could file matters under seal, by filing almost everything under seal. In the future I expect the parties to file under seal only those exhibits or other documents that truly require it, with all other matters to be filed in the public record.

Accordingly,

IT IS HEREBY ORDERED that Boeing's motion for partial summary judgment [#112] is granted as to the overtime claims, as to all Title VII claims arising before April 16, 1999, and as to all MHRA claims arising before August 14, 1999. The motion for summary judgment is denied in all other respects.

IT IS FURTHER ORDERED that plaintiffs' motion for class certification [#107] is denied.

IT IS FURTHER ORDERED that Boeing's motion to strike expert testimony [#114], Boeing's motion to strike declarations submitted in support of motion for class certification [#113], Boeing's motion for sanctions for violating the protective order [#0], and Plaintiffs' motion to strike Boeing's supplemental memorandum in support of Boeing's motion to exclude testimony of Dr. Wayne Cascio, or in the alternative, for leave to file response [#128] are all denied as moot.

IT IS FURTHER ORDERED that no later than May 14, 2004 the parties shall file a joint proposal setting forth a schedule for completion of all matters remaining to be resolved in this case.