In Davis v. Cintas Corp., No. 10-1662 (6th Cir. May 30, 2013), the Sixth Circuit affirmed the denial of a class certification bid in a sexual discrimination hiring case à la Wal–Mart Stores, Inc. v. Dukes and dismissed the plaintiff’s individual disparate treatment claim where the plaintiff claimed she was at least as qualified (if not more so) than male candidates who were hired. By way of key takeaways, Davis demonstrates that the Sixth Circuit endorses Dukes, so much so that it used the United States Supreme Court’s analysis in Dukes, which covered pay and promotion in employment class claims, and extended it to take down hiring, pre-employment class claims.
The crux of the claims (Tanesha Davis was the named plaintiff and sued on behalf of herself and those similarly situated to her) was that Cintas discriminated against females in hiring by refusing to hire them for the company's entry-level sales jobs. Specifically, that Cintas’ company-wide “Meticulous Hiring System” — which was made up of a 16-step process (that included interviews, route rides, and background screens among others) used to hire Service Sales Representatives (“SSRs”) was discriminatory. Evidence introduced in the case demonstrated that, historically, Cintas' SSRs were predominantly male, but after the company put the Meticulous Hiring System into practice in 2003, the percentage of women hired rose noticeably.
Davis claimed that Cintas' hiring practices led to company-wide gender discrimination in violation of Title VII, and the she herself had been subjected to disparate treatment on two separate occasions; once in 2003 when she applied for a position while managing a LensCrafters store, and in 2004. During the 2003 hiring process, the interviewer's notes indicated that she (yes, the interviewer was a female, which came into play in the Sixth Circuit’s discussion of the issue) screened out Davis because she said she disliked having to sell products she believed were overpriced and wanted to continue working at LensCrafters. In 2004, Davis got further along in the hiring process — she made it through the initial screen and went on a route ride — but the interviewer noted that, while Davis "did a lot of things well out on the route," he did have concerns about her level of physical energy and her efficiency. That critique cost Davis the position.
After Davis was not hired, she sued, but she was not the first to make such claims against Cintas. The first case started in California and it was later accompanied by Serrano v. Cintas, a case in the Eastern District of Michigan, with which Davis' case was later consolidated. In her suit, like the other two, Davis sought to bring class action claims for “all females who unsuccessfully applied for the SSR job..." and individual claims regarding her individual disparate treatment.
The district court denied Davis’ motion for class certification citing differences among hiring managers at different locations, as well as conflicts among the then plaintiff representatives and the proposed classes and threw out her individual claims as well. Davis appealed, and during that appeal, the United States Supreme Court decided the employer-friendly, anti-class action case, Dukes.
First Things First – The Class Claims
Given the Supreme Court's analysis in Dukes, there was little doubt that the Davis case would not be certified. Specifically, Davis argued the class certification portion of her case almost exactly like the Dukes plaintiffs did to the Ninth Circuit, who had been successful in their arguments until the Supreme Court overruled the Ninth Circuit. For example, she argued that the company's hiring practice was nationwide and faulted Cintas' corporate culture. She also presented expert testimony that Cintas had a "white-male dominated business culture", and produced statistical and anecdotal evidence to prove her claims.
The Sixth Circuit first reviewed the class claims pleaded under Rules 23(a)(2) and, relying heavily on Dukes, found that Davis could not establish the required commonality element. Under Dukes, Davis had to demonstrate that Cintas “used a biased testing procedure” or “operated under a general policy of discrimination." Davis did not and could not argue that there was some objective hiring criteria that led to the gender discrimination. Instead, she argued, wrongfully, that the discrimination was the result of individual hiring manager preference. No objective hiring criteria → no common question of fact → no commonality.
As for all of the evidence — sociological, statistical, anecdotal and otherwise — the Sixth Circuit determined it was “…not sufficient to show a uniform, companywide practice of exercising discretion in a way that favored men over women…” and found Cintas’ experts more persuasive.
Davis had also moved for class certification under Rule 23(b)(2), which provides that class certification is permissible where a class representative meets all the Rule 23(a)’s requirements and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The district court had found that Davis did not meet this requirement because her claim for backpay monetary relief required an “individualized determination” that was not appropriate for a Rule 23(b)(2) class.
At the Sixth Circuit level, Davis argued that her “shortfall-based model” for calculating damages, which was different than the trial-by-formula system the Supreme Court rejected in Dukes, was sufficient to meet the Rule 23(b)(2) requirements. I will not go into any detail about Davis’ proposed method for calculating backpay damages other than to say that it would have required the court to declare Cintas’ hiring practices discriminatory, issue an injunction ordering Cintas to hire class members “randomly selected in numbers equal to the proven shortfalls for each facility,” and calculate backpay liability for the class by multiplying the proven shortfall time lost wage and distribute that among class members. Whew, that was a lot, not to mention confusing. And apparently, I am not the only one to think so because the Sixth Circuit, without much ado, found Davis’ proposed system as suffering from many of the same issues as the trial-by-formula theory, and in fact, found it “even more troubling,” and held that the individualized monetary relief sought was not incidental to the injunctive and declaratory relief and affirmed the district court’s denial of class certification.
Next Up – Disparate Treatment
Davis’ remaining claims alleged disparate treatment. In those claims she alleged that she had been discriminated against because of her sex when she was rejected for employment in 2003 and 2004. These claims fared slightly better than her bid for class certification — well her 2003 one did anyway.
With respect to the 2003 rejection, the court found that the district court should not have granted summary judgment because Cintas’ proffered reason for not hiring her, i.e., her dislike for “up-selling,” her desire to remain employed part-time at LensCrafters, and that she was applying for other jobs was enough for Davis to meet her pretext burden because the court did not buy Cintas' reasoning in light of the fact that the company moved three men who were less qualified than Davis farther along in the hiring process.
On the 2004 non-hire, the Sixth Circuit affirmed summary judgment, concluding that the fact that Davis, unlike the two male candidates who were being considered, failed to demonstrate an adequate level of physical energy for the positions for which Cintas was hiring was sufficient to exclude her from the hiring process. Davis’ disparate treatment claim on the 2003 hiring issue is the only claim that remains pending.
Takeaways. As far as using the class certification process for Title VII claims, the Sixth Circuit resoundingly endorsed Dukes, which is great news for employers. This case, however, gives employers a little something extra because unlike Dukes, which concerned pay and promotion decisions, Davis concerned discriminatory hiring practices, meaning that employers within the Sixth Circuit can rely on Dukes and Davis to challenge class actions alleging pre-employment and employment discrimination.
Davis is helpful to employers in challenging plaintiff’s formulaic models for determining individuals damages for backpay and front pay. With Dukes, the trial-by-formula method is out and with Davis, so is the shortfall-based model.