Given the rich diversity and array of religions, and the First Amendment prohibitions both on the establishment of religion and impeding the free exercise of religion, the appointment and promotion of chaplains in the military has to be a singularly daunting task.  Those same difficulties ultimately proved to be the unraveling of a class challenging the method by which chaplains were selected by the United States Navy.  While the subject matter seems highly specialized, the case in fact addresses many logistic concerns that would apply to class actions involving other topics.

In In re:  Navy Chaplaincy, Case No. 1:07-mc-269 (GK) (Sept. 4, 2014), a group of non-liturgical protestant chaplains brought a putative class action against the Navy.  [An oversimplification:  Non-liturgical practitioners are less concerned with formal or structured worship services than other groups, such as Roman Catholics or Episcopalians.]   The crux of their claim was the contention that the Navy favored liturgical protestants and others (possibly Catholic priests and Jewish rabbis) to them in discipline, having to preside over more liturgical worship, and the making of promotions and related decisions.   You already know that the court denied certification (and did so seven years after the case was filed).  Why?  Many of the court’s reasons sprang from the Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), but others arose from inherent problems with the class and questionable tactical decisions from the plaintiffs’ attorneys.

Let’s start with an issue that is obvious, which is the difficult class definition and concept.   There are many major religions practiced in this country and by members of the military.  There are, of course, Christian, Jewish, Muslim, Hindu, and Buddhist military personnel, but even among the Christian practitioners there are over 200 denominations.  These denominations reflect an enormous range of beliefs across a vast spectrum from conservative to liberal and many points in between.  Further, there are countless theological difference that defy the “liberal” or “conservative” label.  In one sense, the class definition sought by the plaintiffs was impossible given the diversity and range of the various religions.  In another, the definition is difficult because, as a chaplain, the individual must meet the spiritual needs of others who do not necessarily share those beliefs or vice versa.  These fundamental problems were likely to plague the class in any case.  In fact, over time the plaintiffs’ theory actually changed as they asserted that the claimed bias had meandered from one between liturgical and non-liturgical Christians to one between liberal and other denominations.   This is very much unlike most discrimination actions where factors such as race and gender generally do not change, and age is a simple mathematical number.

A second issue was the plaintiffs’ difficulty in defining their claim.  On the one hand, according to the court, they contended that the Navy should be neutral as to the various religions and denominations.  On the other, at least at times, they seemed to push the idea that the makeup of the chaplain corps should mirror the makeup of the Navy’s personnel (itself a task plagued with difficulties).  As reflected above, changes over time caused them to try to redefine the class along different ideological lines.

A third was the innately subjective question of promotion decisions for officers such as chaplains.  Indeed, some of the evidence suggested issues such as personality conflicts with commanding officers, the content of their religious services, sexual harassment allegations, and a host of other performance matters that bore on the question of discipline and promotions.

Under the Dukes analysis, the court found that there was no commonality.  The plaintiffs alleged a “culture” of denominational favoritism, apparently patterning themselves on the early Dukes decisions, but, like Dukes, the Navy’s formal policies stressed nondiscrimination and accommodation.  Like the early Dukes decisions, the plaintiffs criticized what they claimed was excessive subjectivity in promotion decisions, but failed for lack of evidence that that subjectivity was used to discriminate on a class-wide basis.  The court rejected the plaintiffs’ statistical showing of a claimed 10% disparity to be too small to demonstrate commonality.   The plaintiffs also sought to use expert testimony that “some bias will creep in” to personnel decisions because chaplains of different faiths “cannot avoid having their judgment tainted by their faiths.”  The court found that the expert failed to show intentional discrimination and, to a large degree, that he denied that any bias was intentional.   The court found no typicality for largely the same reasons.

Interestingly, the court also found that adequacy of representation was lacking.  First, the court found that the plaintiffs had deliberately chosen a path of equitable and injunctive relief, characterized by the defense as “reform” rather than monetary relief.  The court questioned whether that tactic was really in the best interest of the absent class members.  Second, the court took issue with the attorneys’ strategy of filing frequent motions and even a separate suit when they did not receive rulings to their liking.

Given these rulings, the court did not have to reach Rule 23(b), but did anyway, finding issues such as the absence of predominance fatal under all three 23(b)(3) provisions.

The Navy Chaplaincy case has a number of lessons.  First, difficult class definitions will always be problematic, and the problems will only grow over time.  Second, the class action vehicle may not be the best for certain types of claims, and the lack of suitability may itself make it impossible to certify the class.  Third, when faced with such obstacles, the plaintiffs will need a clear theory and to stick with it, with appropriate expert testimony.

The bottom line:  Employment class actions with fuzzy class definitions or based on subjective traits will always be problematic.