The Court made
some interesting observations about Cintas national corporate hiring practices:
Service sales representatives were historically male. From
June 1999 to October 2006, more than ninety percent of the managers charged
with hiring service sales representatives were male. This overwhelmingly male
group overwhelmingly hired males. After Cintas implemented the Meticulous
Hiring System in 2003, however, female hiring rose dramatically. Between 1999
and 2002, the percentage of women hired for the service-sales-representative
position never rose above seven percent. In 2003, the year corporate-level
management instructed other managers to “put the myth that females cannot be
SSRs out of [their] mind and hire more women SSRs,” and implemented the Meticulous
Hiring System, that number rose to 7.8 percent. In 2004, it rose to 10.9
percent, and in 2005 it rose to 20.8 percent.
According to the
Court’s opinion, the class certification motion could not survive the different
facts of each potential claim of the class.
The trial court found that there
was a conflict between the interests of the named and unnamed class members and
the individualized determinations required at the damage phase was
inappropriate for class action treatment. There were many steps in the defendant
employer’s hiring practices; some were subjective and some were not. The female class members dropped out at
different stages and for different reasons.
Relying heavily on the Supreme
Court’s decision in Wal–Mart Stores, Inc. v. Dukes, 131
S. Ct. 2541, 2562 (2011), the Court affirmed denial of class certification:
“[S]ubjective or discretionary employment practices may be
analyzed under the disparate impact approach in appropriate cases.” Watson v.
Fort Worth Bank and Trust, 487 U.S. 977, 991 (1988); accord Dukes,
131 S. Ct. at 2554. When plaintiffs challenge employment practices in a large,
national corporation, however, “demonstrating the invalidity of one manager’s
use of discretion will do nothing to demonstrate the invalidity of another’s.” Dukes,
131 S. Ct. at 2554. Unless a plaintiff can somehow show that the corporation’s
managers all used “a common mode of exercising discretion that pervades the
entire company,” Dukes explains, “[a] party seeking to certify a nationwide
class will be unable to show that all the employees’ Title VII claims will in fact
depend on the answers to common questions.” Id. at 2554–55.
The court in Dukes explained that the plaintiffs’
sociological, statistical, and anecdotal evidence—all of which was similar to
the evidence offered here—was not sufficient to show a uniform, companywide
practice of exercising discretion in a way that favored men over women.
Applying the abuse-of-discretion standard, we affirm the district court’s
determination that Davis’s statistical evidence, sociological analysis, and anecdotal
accounts did not satisfy Rule 23(a)(2). As to each type of evidence, the district
court weighed the parties’ competing arguments and found that Davis’s proffered
evidence did not support a finding of companywide gender discrimination. We may
not overturn this determination unless the district court “relie[d] on
erroneous findings of fact, applie[d] the wrong legal standard, misapplie[d]
the correct legal standard when reaching a conclusion, or ma[de] a clear error
of judgment.” Pipefitters Local 636 Ins.Fund v. Blue Cross Blue Shield of
Mich., 654 F.3d 618, 629 (6th Cir. 2011).
After all but one of the class members dropped out when the
interlocutory appeal was denied, the remaining plaintiff claimed that she had
been discriminated against on account of her sex when her applications for
employment were rejected in 2003 and 2004.
The Court found that her poor score on the driving portion of the hiring
process was a legitimate reason to deny her application in 2004 and she failed
to show that the explanation was pretextual.
However, the Court found that she identified factual disputes in why she
was dropped earlier in the hiring process in 2003.
The defendant
employer explained that it dropped her early in the process in 2003 because she
had mentioned that she disliked up-selling and wanted to keep her current
part-time job. The plaintiff showed that
these reasons could be pretext because the employer ultimately moved further
into the hiring process three men who were less qualified than her.
Location 447 hired
three men soon after interviewing Davis. At least on paper, their credentials
appear equal to, or slightly less impressive than, Davis’s. . . . . None of the three men had real-world
experience in management; none had extensive experience in sales. Davis, by
contrast, had worked as a manager for three different companies. She had
significantly more customer-service and sales experience than any of the three
male candidates, even if she disliked up-selling products and planned to
continue working for LensCrafters part-time. She was, in other words, “as qualified
or better qualified than [any of] the successful applicant[s].”
Moreover, Plaintiff’s
expert explained:
“Between 1999 and 2004, 78 men were hired into SSR positions
[at Location 447], but only 2 women were hired into these positions. All of the
hires in the period from 1999–2002 were men. During 2003 and 2004, 32 hires
occurred; 30 of these hires were men and 2 were women.” This was so, even though
women accounted for between 26% and 27% of service-sales-representative applicants
and 30% to 38% of the external labor market during that time period. “No women
at all were hired into SSR jobs in Cintas location 447 for the four years prior
to 2003.” From July 1, 2003 to December 31, 2004, “there were 27 hires into SSR
positions. Only one of these hires (3.7% of the hires) was a woman even though
more than 25% of these applicants were women.”
Although the employer’s experts claimed that the assumptions
of plaintiff’s expert were flawed concerning the labor market, the Court held
that this was a matter for the jury to decide.
In short, the statistical evidence and a comparison of the
plaintiff’s application with those of the successful male candidates were
sufficient to create a factual dispute for a jury to decide whether the failure
to hire the plaintiff in 2003 was on account of her gender.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
