Atwell v. Gabow

248 F.R.D. 588, 2008 U.S. Dist. LEXIS 18619, 2008 WL 553559
CourtDistrict Court, D. Colorado
DecidedFebruary 28, 2008
DocketCivil Action No. 06-cv-02262-JLK
StatusPublished
Cited by2 cases

This text of 248 F.R.D. 588 (Atwell v. Gabow) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atwell v. Gabow, 248 F.R.D. 588, 2008 U.S. Dist. LEXIS 18619, 2008 WL 553559 (D. Colo. 2008).

Opinion

ORDER DENYING MOTION FOR CLASS CERTIFICATION

KANE, Senior District Judge.

These consolidated putative employment discrimination class actions are before me on Plaintiffs’ Motion for Class Certification (Doc. 58). Representative Plaintiffs relate individual instances of alleged race-based discrimination in their employment at Denver Health and Hospital Authority, contend this discriminatory treatment was the result of an overall policy of discrimination against nonwhite employees, and seek certification as representatives of a single class of all nonwhite current and former Denver Health employees who have suffered similar discrimina[590]*590tory treatment since 2003.1 Plaintiffs each claim to have suffered specific injuries resulting from Defendants’ adverse employment actions, including lost wages and benefits, damage to reputation, and emotional distress. For their relief, Plaintiffs seek compensatory, punitive and “liquidated” damages, statutory penalties, back pay, “instatement” or reinstatement to jobs they or individual class members would have held but for Defendants’ discriminatory actions (or, in lieu of reinstatement, awards of front pay and benefits), as well as generalized prohibitory and mandatory injunctive relief.

Plaintiffs’ Motion, as stated, fails to satisfy the prerequisites for the maintenance of Plaintiffs’ claims as a class action under Rule 23(a), Fed.R.Civ.P. Among other deficits, Plaintiffs’ assertion that allegations of an overarching “policy” of discrimination at Denver Health renders their claims “typical” of the class’s has been rejected by the United States Supreme Court. Conceptually, the Court stated in General Telephone Co. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), there is a “wide gap” between an individual’s claim, on the one hand, that he was denied promotion or retaliated against on discriminatory grounds and an otherwise unsupported allegation that the company has a policy of discrimination, and the existence, on the other, of a class of persons who have suffered the same injury as that individual. Plaintiffs have failed to bridge that gap in their Motion.

Even assuming, for the sake of argument, that Plaintiffs could establish the numerosity, commonality, typicality, and adequacy of representation prerequisites for maintaining their claims as a class action, no grounds would exist for certification under Rule 23(b)(2) or (b)(3). At best, these cases may be viewed as “hybrid” actions in which Plaintiffs seek both injunctive relief and money damages on behalf of the class. As such, they may be certified as a class action under Rule 23(b)(2) only if (1) appropriate final injunctive or declaratory relief is actually being sought and (2) only then if the monetary award sought is but “incidental” to that relief. See generally 7AA Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d, § 1784.1 at 347-55. The relief sought in this case fails on both counts.

That leaves Plaintiffs exclusively with the assertion that among this large group of individual discrimination claims — -in which class members’ specific requests for compensatory damages, back pay and reinstatement/instatement or front pay must be individually considered — common questions of law and fact so “predominate” that they are best maintained as a class action under Rule 23(b)(3). There is no basis in reason or in fact for the assertion, particularly where, as here, the individual claims of all eight representative Plaintiffs have already been consolidated for purposes of discovery and where allowing Plaintiffs to pursue the discrimination claims of others in a representative capacity ignores the individual nature of those claims and undercuts the procedural safeguards otherwise available them and to Defendants were they asserted on an individual basis.

For the foregoing reasons, as set forth more fully below, the Motion for Certification as a Single Class Action (Doc. 58) is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY.

Before addressing the merits of Plaintiffs’ request, I summarize the procedural history of these actions as follows:

This litigation began as an individual employment discrimination action brought by a single individual, Patricia Atwell, against Denver Health and Hospital Authority (“Denver Health” or “DH”) and DH Chief Executive Officer Patricia Gabow. See Compl. (Doc. 1), 06-cv-2262-JLK (filed November 13, 2006). In her original Complaint, Atwell claimed she had been retaliated [591]*591against and constructively discharged on the basis of her race after she complained about losing her office and being moved to a cubicle during her convalescence from carpal tunnel surgery. Atwell asserted claims under Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 1983, seeking a declaration that her rights had been violated as well as an award of back pay, benefits, and compensatory and punitive damages.

Defendants moved to dismiss (Doc. 5), asserting Atwell’s allegations failed on numerous grounds to state viable claims under Title VII or §§ 1981 or 1983. I set a briefing schedule, giving Atwell nearly three weeks to respond to Defendants’ Motion. (Doe. 6.) Atwell waited until the final day of her briefing period to file her Response (Doe. 9), which, it turned out, did not respond substantively to Defendants’ arguments but instead expressed a desire to amend her Complaint “to address all of the issues Defendants raise in their motion to dismiss.” Id. at p. 1. Specifically, Atwell stated her intent to seek to amend her Complaint to “make it clear” that (1) she was not bringing a Title VII claim against Gabow; (2) that her § 1983 claim was indeed directed to Denver Health as a political subdivision of the state of Colorado; and (3) that her complaints of racial discrimination actually preceded Defendants’ actions in removing her from her office. Id. at 1-2.

The Amended Complaint actually filed, however, had little to do with clarifying Ms. Atwell’s claim and was instead a dramatically changed document purporting to assert individual claims for discriminatory treatment on behalf of “all past and present non-white DH employees who have been or continue to be discriminated against on the basis of their race, color and/or ethnic group in the terms and/or conditions of their employment, including, but not limited to, training, promotion retention, assignment of duties, granting of rights and benefits, or any other personnel action.” Am. Compl. (Doc. 13). The Amended Complaint alleged all nonwhite employees suffer from a “policy, practice, custom, or usage” of discrimination at Denver Health Plaintiffs call “right person on the bus.” Specifically, the Amended Complaint alleged Denver Health used its facially neutral “Talent Plus” personnel policy to select and reward white employees and to discriminate against non-white employees. By adding three new Plaintiffs to the mix, moreover, the Amended Complaint achieved an end-run around Defendants’ original Motion to Dismiss, which, even if granted, would no longer be dispositive of the action.

Accordingly, Defendants filed a second Motion to Dismiss (Doc.

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Related

Atwell v. Gabow
311 F. App'x 122 (Tenth Circuit, 2009)

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Bluebook (online)
248 F.R.D. 588, 2008 U.S. Dist. LEXIS 18619, 2008 WL 553559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwell-v-gabow-cod-2008.