Tenth Circuit Holds that Interlocutory Review of Class Certification Orders Must be Sought within 10 days of Initial Order, not Order Denying Reconsideration, and that Plaintiffs’ Statistical Evidence Failed to Establish Prima Facie Case of Disparate Impact Because Males may have Worked more Overtime Hours for Reasons Other than Gender
Female employees filed a putative employment class action in federal district court alleging Title VII Civil Rights Act sex discrimination against Boeing on theories of both disparate impact and disparate treatment. Following substantial litigation, that included class certification of certain subclasses, the district court granted a defense motion for summary judgment as to the “hourly” wages subclass “disparate impact” overtime claim. Plaintiffs appealed this ruling – which the district court certified as a final judgment under FRCP Rule 54(b) – and several other class-certification ruling. The Tenth Circuit affirmed. Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006).
The Circuit Court began with the class certification rulings, noting that interlocutory appeal of class certification orders may be granted only if sought within 10 days of entry of the order. Carpenter, at 1189 (citing FRCP Rule 23(f)). In this appeal, plaintiffs filed a motion for class certification, which the district court granted in part and denied in part. Almost a year later, plaintiffs filed a “Renewed Motion for Class Certification”; the motion was denied. A few months later plaintiffs filed a “Second Renewed Motion for Class Certification”; this, too, was denied and plaintiffs filed their Rule 23(f) application within 10 days thereafter. Id., at 1188. Boeing argued that the application was untimely, id., at 1189; the Circuit Court agreed and dismissed the application for lack of jurisdiction, id., at 1190-92.
With respect to the summary judgment motion, the Tenth Circuit explained that the disparate impact overtime claim disposed of by the district court “rests on the assertion that supervisors are exercising their discretion . . . to award males a disproportionate share of available overtime assignments.” Carpenter, at 1193. The Circuit Court explained at page 1194:
To establish a prima facie case, it is not enough to Plaintiffs to show simply that more overtime assignments go to men than to women, or even that men get a higher percentage of those assignments than their percentage in the work force. They must compare qualified men to qualified women. That is, they must show that among men and women who are eligible for overtime assignments, a disproportionate share of overtime assignments go to men. (Italics in original.)
The district court concluded that the statistical analysis presented by the class representatives failed to establish a prima facie case, even though it reflected differences in overtime assignments that Boeing conceded were “statistically highly significant.” Carpenter, at 1195. The defense argued that plaintiffs’ evidence did not identify why men worked more overtime, and claimed that it was due to variables such as “job, grade, budget code, and shift.” Id., at 1196. The Circuit Court held that “Statistical evidence is an acceptable, and common, means of proving disparate impact,” but that “the data [must] concern those persons subject to the challenged employment practice” and in this regard plaintiffs’ evidence failed, id. Specifically, plaintiffs’ data was not “restricted to qualified employees,” id., at 1197, 1198-99, and there was no evidence that the reason for the substantial disparity was the gender of the employees, id., at 1202 [“The large number of standard deviations tells us nothing about what that ‘something’ is [that caused the statistical disparity], however, other than that it is not based on differences in job, grade, budget code or shift.”]. The bottom line was that plaintiffs failed to establish a prima facie case. Id., at 1204.
NOTE: The Circuit Court also addressed the argument by three plaintiffs that the district court erred in removing them as class representatives on the ground that they would not “fairly and adequately protect the interests of the class” within the meaning of Rule 23(a)(4), and erred in denying their motion for recusal. Carpenter, at 1204. The Court quickly disposed of these claims because (1) the evidence supported a finding that the plaintiffs “put their own interests above those of the class” and (2) the recusal motion was based on “unsubstantiated suggestions, speculations, [and] opinions.” Id.