Employment Law Daily Female Ford employees who alleged pervasive sexual harassment again denied class certification
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Friday, August 30, 2019

Female Ford employees who alleged pervasive sexual harassment again denied class certification

By Kathleen Kapusta, J.D.

To date, said the court, the plaintiffs “have not made a showing that any two individuals—much less the class they seek to certify—experienced the same misconduct in the same way.”

Denying, again, a motion for class certification brought by female employees of Ford Motor Company who are or were employed at one of its two Chicago area facilities, and who alleged they were subjected to a pervasively sexual, hostile, intimidating, and abusive work environment—including conduct ranging from exposure to sexual graffiti, to quid pro quo sexual propositions, to rape—a federal court in Illinois found they failed to satisfy any of Rule 23(a)’s requirements. Not only did the named plaintiffs fail to show commonality, there was no showing that any two individuals experienced the same misconduct in the same way. As to adequacy of representation, the court found concerns about counsel and significant conflicts of interest. Nor were they able to satisfy Rule 23(b)’s predominance and superiority requirements (Van v. Ford Motor Co., August 22, 2019, Dow, R., Jr.).

Prior proceedings. The named plaintiffs alleged that since the 1980s, male employees and supervisors at Ford’s two Chicago plants routinely made discriminatory and harassing remarks and gestures towards female employees and Ford took no action. They also claimed that Ford had a pattern and practice of inferior treatment of female employees in the terms and conditions of employment, including assignments, training, and promotions. In a March 2016 order, the court denied Ford’s motion to strike the class claims, but by August 2017, Ford and the EEOC had entered a conciliation agreement (and the EEOC issued a press release regarding the $10.125 million settlement).

In October 2017, just two days before notices of the settlement from the conciliation agreement were to issue, the plaintiffs filed a motion asking the court to stay issuance of the notices, arguing that the class certification issue should be resolved first and that Ford had “cut a back-room deal with the EEOC” in a settlement not overseen by the court in order to undercut class certification. The court nevertheless refused to stay the issuance of notice of the conciliation agreement itself until it decided whether to certify a class in this suit. In September 2018, the court denied class certification. Three months later, it refused to stay the distribution of notices about awards under the conciliation agreement.

In again moving for class certification on their Title VII sexual harassment and hostile work environment claims, the plaintiffs proposed the class be defined as “All women working at the Ford Chicago Assembly Plant and Chicago Stamping Plant from January 2012 to present.” In response, Ford moved to exclude the testimony, reports, and opinions of the plaintiffs’ expert and the plaintiffs moved to bar the testimony and reports of Ford’s rebuttal expert witnesses.

Expert witnesses. Ford argued that the plaintiffs’ expert testimony should be excluded because it was not actually based on the “social framework” method she purportedly used or on any other reliable scientific method. Apart from her unsupported testimony, the court found the plaintiffs failed to identify any evidence supporting the conclusion she properly applied this methodology. Further, said the court, they also failed to establish that her opinions regarding the prevalence of sexual harassment at the plant—she opined that the harassment was so pervasive as to have inevitably exposed every female employee of the plant to a greater or lesser degree—were otherwise reliable.

Noting other problems with her methods independent of whether she properly applied the social framework methodology, the court granted in large part Ford’s motion to exclude her testimony, reports, and opinions. As to the plaintiffs’ motion to exclude the expert testimony of Ford’s rebuttal expert witnesses, the court noted that, given they were offered as rebuttal witnesses, the exclusion of portions of the plaintiffs’ expert’s proposed testimony diminished the significance of their proposed testimony.

Commonality. Turning to the plaintiffs’ motion for class certification, the court first addressed Rule 23(a)’s commonality requirement. The plaintiffs argued that they established commonality by identifying significant proof that Ford operated under a general policy of discrimination. Noting that proof of commonality here overlapped with their merits contention that Ford engaged in a pattern and practice of sexual harassment, the court turned to the merits of their claims.

Pattern-and-practice. According to the plaintiffs, Ford maintained a policy of failing to take prompt remedial action in response to credible allegations of harassment, allowed known harassers to remain employed, failed to discipline harassers despite supervisors witnessing the harassment, threatened female complainants with adverse actions, assigned female employees who rejected sexual advances to less desirable tasks, and engaged in other misconduct. But even assuming these facts to be true, said the court, “a finding that an employer had a pattern and practice of tolerating sexual harassment in violation of Title VII does not necessarily establish that an individual claimant was exposed to harassment or that the harassment an individual claimant suffered violates Title VII.”

As to the plaintiffs’ contention that the sexual harassment was the common issue, the court found this overlooked the requirement that conduct be subjectively perceived by the victim to be abusive to be actionable. Thus, the court found the plaintiffs could not establish liability on their individual hostile work environment claims based on a pattern-and-practice theory. Accordingly, it turned to whether any of the elements of their sexual hostile work environment claims could be addressed on a classwide basis.

Objective element. The plaintiffs argued there were common questions as to whether harassment was severe or pervasive enough to establish a hostile work environment. But the objective hostility component depends on the specific conduct to which each named plaintiff and putative class member was exposed, said the court, noting evidence that the women were exposed to a wide range of conduct from exposure to sexual graffiti, to quid pro quo sexual propositions, to rape. Thus, they failed to establish that the objectively offensive element of their claim could be proven on a classwide basis. Further, given the size of the plants and the fact that the named plaintiffs did not work in many of the different departments, the anecdotal evidence of misconduct, while abundant, could not establish that the alleged conduct was universally occurring in all areas of the plants at all times.

Subjective element. Nor did the subjective element of their claim present common issues appropriate for classwide determination. While the plaintiffs argued that certain types of harassment such as assault, rape, and/or unwanted touching by their very nature were unwelcome, the court found it could not determine that touching was unwanted without first establishing the conduct occurred and then looking to the subjective intent of the person being touched. Further, said the court, if they could not establish they even were exposed to the same conduct on a classwide basis, they could not address on a classwide basis the differing conduct to which they were exposed was based on sex.

Employer liability. Finally, said the court, employer liability was not a common question in this case. While the plaintiffs argued Ford had a policy of failing to take prompt remedial action in response to credible allegations of improper conduct, they failed to establish significant proof that it acted under a general policy that manifested itself in the same general fashion. Noting evidence that there were approximately 42 different HR and labor relations personnel who investigated and disciplined hourly employees for harassment, the court found no indication that the investigative and disciplinary decisions regarding hourly employees were made “with some common direction.” And unlike discipline involving hourly employees, discipline of salaried employees was reviewed and determined by staff in the Personnel Relations Department, said the court, finding the plaintiffs failed to satisfy Rule 23(a)’s commonality requirement.

Typicality. As to typicality, the court first rejected Ford’s argument that the named plaintiffs’ claims were not typical because they accounted for a disproportionately large number of all sexual harassment complaints at the plants. “Because it is reasonable to assume that those willing to act as named plaintiffs also were more willing to make documented complaints, it is not surprising that named Plaintiffs make up a significant percentage of those who made documented complaints.”

Nonetheless, the court said it could not ensure that class members with stronger claims were not prejudiced by a representative with a weaker one. Rejecting the plaintiffs’ assertion that “minor variations” in their experiences could not defeat typicality, the court found that with such wide-ranging allegations, the plaintiffs’ claims could not be said to have the same essential characteristics as the class at large.

Further, by attempting to tie together the claims of all named plaintiffs and putative class members by using an objective hostile work environment analysis, the plaintiffs undermined the claims of those who were exposed to the most egregious misconduct, the court observed, noting that to date, the plaintiffs “have not made a showing that any two individuals—much less the class they seek to certify—experienced the same misconduct in the same way.” Thus, they also failed to satisfy Rule 23(a)’s typicality requirement.

Adequacy of representation. As to adequacy of representation, the court pointed to evidence that some named plaintiffs and putative class members contributed to the sexually hostile work environment the plaintiffs were challenging. While the plaintiffs argued that this alleged misconduct was not relevant because female harassment was not an issue in this case, the court noted that a conflict of interest arises when an attorney has an incentive to reject lines of inquiry or argument that might help his client’s case, which is what the plaintiffs appeared to be doing here with respect to the “female harassment” allegations.

The plaintiffs argued that the court could eliminate conflicts of interest by certifying a subclass of women who have been accused of engaging in sexual harassment and/or contributing to a sexually hostile work environment, but such a definition, the court reasoned, would be impermissibly vague. Moreover, the group would still include women who alleged they were harassed by other women within the subclass, and thus the proposed subclass did not eliminate the conflict.

Conciliation agreement. Ford also asserted that the plaintiffs’ pursuit of this case in the face of the 2017 EEOC conciliation agreement and their attempted interference with that agreement rendered them inadequate class representatives. However, the court pointed out that many claimants had their claims denied through the EEOC conciliation process and others did not accept an offered award. To the extent they have viable claims, it could not be said they already have remedies in place. And to the extent the plaintiffs sought injunctive relief, the court found it unclear that the monitoring mechanisms set forth in the conciliation agreement would duplicate the relief sought here.

Adequacy of council. The court denied the plaintiffs’ initial motion for class certification based on their failure to establish adequacy of class counsel. Since then, however, they added attorneys from another firm as co-counsel. And while the qualifications of those attorneys were not disputed, the court continued to have concerns regarding the adequacy of counsel as structured, as the original attorney continued to control pivotal aspects of the case. Pointing out that he was sanctioned in his prior class-action litigation, which resulted in numerous malpractice lawsuits, the court noted that he also made missteps here that called into question his ability to represent the class, including modifying a document to omit evidence that might demonstrate an intra-class conflict.

The court also was concerned that by excluding instances of female-on-female harassment, the plaintiffs were weakening the claims of the named plaintiffs and putative class members who were subjected to such harassment. “The fact that Plaintiffs’ counsel would reject a theory of harassment that could support the claims of certain named Plaintiffs and putative class members suggests that counsel may be more interested in certifying a class than in protecting the interests of putative class members.”

Rule 23(b) requirements. Turning to the requirements of Rule 23(b), the court found the plaintiffs also failed to show that common issues predominated. Even if they could proceed on a pattern-and-practice theory or could otherwise establish employer liability on a classwide basis, highly individualized hearings would still be necessary for each named plaintiff and putative class member and there was no streamlined way to resolve these individual issues.

Further, manageability concerns counseled against finding a class action to be superior to individual Title VII claims. The plaintiffs’ proposed litigation plan involved bifurcation with Phase I addressing employer liability, which assumed that liability could be addressed on a classwide basis. But the court had already found that was not the case. And even assuming it could be addressed on a classwide basis, the proposed litigation plan was still unmanageable as it would necessitate hundreds of separate hearings.

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