ROLLINS v. ALABAMA COMMUNITY COLLEGE SYSTEM

d to show that women on a statewide basis were paid less than men did not allow for an inference of a statewide pattern or practice to satisfy commonality because the individual pay decisions were subjective ones committed primarily to the individual supervisors.

In Cooper, the plaintiffs sought to establish a pattern and practice and disparate impact using expert statistical evidence. 390 F.2d at 721. The court affirmed the district court's denial of class certification. As noted earlier, the hiring, compensation, and promotion decisions were made by different managers at different companies implementing different policies. Id. at 716. The Eleventh Circuit determined that the district court did not abuse its discretion in determining that the statistical and anecdotal evidence did not establish a pattern and practice or disparate impact. Id. at 719. With respect to the statistics, the district court found that the expert analysis was insufficiently tailored because it failed to take into account pertinent information such as the type or level of acquired skills or the type of an employee's experience. Id. at 717.

In this case, the statistical evidence offered by the Plaintiffs is in the form of a report from Bradley which compares female employees and male employees paid under the C-3 schedule, and in which he concludes that female employees have more years of service, more years of education, and have a lower adjusted salary.

The court first notes that Bradley's evidence does not address the broader class of women paid on the C salary schedule sought to be certified by the Plaintiffs, but only the alternative class, consisting of persons affected by the C-3 schedule. The court also notes that although the Plaintiffs argue that there is a pattern and disparate impact in placement on the C-3 salary schedule, their expert only offers an opinion as to rates of pay of people paid on the C-3 schedule, not differences in selection for the C-3 schedule. Bradley Dep. at page 113: 2-6. Bradley's evidence, therefore, does not establish commonality as all women paid on the C salary schedule, or to placement on the C-3 schedule.

With respect to statistics offered by the Plaintiffs as to rates of pay on the C-3 schedule, Bradley conducted his analysis, adjusting for salary step, education group, and college of employment. Plaintiffs's Exhibit 1 at page 8. Bradley analyzed the data in terms of the categories relied on in other schedules to determine what variables should be controlled for in analyzing the C-3 data. Bradley Dep. at page 103: 13-17.

The Defendants argue that the court should not rely on the expert's conclusions to conclude that a pattern and practice or disparate impact can be proven on a common basis. The Defendants point to evidence of information not accounted for in Bradley's analysis. For instance, the Defendants' expert report relies on interrogatory responses that some of the colleges have different minimum and maximum salaries in the C-3 schedule. See Defs' Ex. B at page 5. The Defendants have provided the affidavit of Dr. James M. Mitchell, President of George Corley Wallace State Community College. He states that that institution does not use steps in the C-3 schedule, and that in setting the starting salary he considers education and experience within the job title, but not experience outside the job title. Id. at page 3. Interrogatory responses cited in the Defendants' evidence also indicate that Calhoun Community College and Athens State University set initial placement based in part on prior experience. Defs' Ex. B at page 6. In his deposition, however, Bradley stated that in his analysis, all new employees at an institution would be assigned to step zero, even if they had different years of prior experience. Bradley Dep. at page 105-06. Bradley explained that he was not provided that data, but agreed that his model does not accurately reflect a particular school if that school considers prior experience. Id. at page 109: 3-11.

Bradley also calculated his own steps for the C-3 schedule based on years of service in his analysis. Bradley Report at page 4. Bradley does not, however, mention having controlled for difference in starting pay in evaluating the steps he applied. He also apparently did not control for the effect that an institution's own C-3 steps would have on the analysis. Some of the ACCS institutions use steps for the C-3 schedule, which differ from institution to institution, but some do not. Defs' Ex. B at page 5. In addition, the rate of pay applied at those steps differs among the institutions which have steps. For instance, Jefferson State Community College uses a flat 2% increase each year, whereas Gadsden State Community College and Trenholm State Technical College receive specified raises at various steps. Id. at pages 5-6 (citing Interrog. Ex. 9). While the Plaintiffs have argued that institutions have changed their systems within the class period, without an accounting of any difference the change may have made the court is unable to conclude that Bradley's analysis is sufficiently tailored to establish commonality.

Despite the variables not considered by Bradley, the Plaintiffs argue that the court should accept the Plaintiffs's expert's evidence because the Defendants's expert confirmed that men and women are paid at different rates on the C-3 schedule. The Plaintiff concedes, however, that the Defendant's expert did not find statistical significance in the difference in pay between men and women. The Plaintiffs have argued that any difference in pay is cognizable, citing cases such as Hodgson v. Am. Bank of Commerce, 447 F.2d 416 (5th Cir. 1971). Hodgson, however, was an Equal Pay Act case, and did not analyze evidence of a pattern and practice as a theory to establish commonality. More important, a difference that is not statistically significant is not sufficient to prove a pattern and practice of discrimination under Title VII, see Griffin v. Carlin, 755 F.2d 1516, 1525 (11th Cir. 1985) (stating that statistics must be "sufficiently compelling"), or disparate impact. See Cooper, 390 F.3d at 716 (difference must be statistically significant").

The court has not attempted to engage in weighing expert testimony, or determining the admissibility of any expert opinions. Such inquiry would be improper at the motion for class certification stage. See, e.g., LaBauve v. Olin Corp., 231 F.R.D. 632, 666 (S.D. Ala. 2005). Instead, consistent with the analysis in Cooper, the court has attempted to discern whether the opinions offered by the Plaintiffs's expert are sufficiently tailored so as to establish that the identified policy of subjectivity in decision-making at the various ACCS institutions, subject to approval or disapproval by the Chancellor if in conflict with statutes or Board policy, can be proven to be a pattern and practice of discrimination, or to have a disparate impact. Given the variables discussed which were not considered by Bradley, and which have been supported with evidence by the Defendants as being relevant to the analysis, the court cannot conclude that the Plaintiffs have sufficiently satisfied the Cooper standard in supplying statistical proof of a common pattern and practice or disparate impact.

The Plaintiffs have also presented anecdotal evidence in support of class certification which relates to the experiences of four named Plaintiffs. Anecdotal evidence standing alone cannot establish disparate impact, see Cooper, 390 F.3d at 716, and it is doubtful that anecdotal evidence standing alone can establish disparate treatment in any case. See Davis v. City of Panama City, Fla., 510 F. Supp. 2d 671, 689 (N.D. Fla. 2007) (stating that anecdotal evidence without statistical evidence, much less strong statistical evidence, cannot establish pattern and practice). In this case, the anecdotal evidence relates only to the experiences of women at one two-year institution. Therefore, the court cannot conclude that the Plaintiffs have demonstrated that a pattern and practice of discrimination can be proven through anecdotal evidence.

The court concludes, therefore, that the commonality requirement has not been met in this case.

3. Typicality

Under the typicality requirement, a class representative's claims or defenses must be typical of the claims or defenses of the class. Fed.R.Civ.P. 23(a)(3). In other words, there must be a nexus between the class representative's claims or defenses and the common questions of fact or law which unite the class. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984). A sufficient nexus is established if the claims or defenses of the class and the class representatives arise from the same event or pattern or practice and are based on the same legal theory. Id. at 1337.

Having concluded that commonality has not been established by the Plaintiffs, the court similarly concludes that the individual named Plaintiffs, whether or not they have viable individual disparate treatment claims, have not been shown to have claims typical of unnamed class members employed through the two-year college system. Furthermore, the statistical analysis of the institution which employs the four named Plaintiffs revealed no statistical significance in the rate of pay between men and women on the C-3 schedule. Bradley Dep. at page 138: 14-17. Moreover, there are additional typicality concerns in that Thomas and Ward are not paid on the C-3 schedule, and only one of those named Plaintiffs asserts a promotion claim.

The Plaintiffs contend that typicality is satisfied as to all Plaintiffs, including Thomas and Ward, because they are challenging the discriminatory practice of paying women less money than that paid to men for similar work by use and manipulation of the C-3 salary schedule. Specifically with respect to Thomas's promotion claim, the Plaintiffs argue that even though statistics are not offered about promotions, all increases in pay are promotions, and the named Plaintiffs are representative of the class.

The significance of the difference between Thomas and Ward and members of the class who are paid on the C-3 salary schedule is apparent when examined in light of the Plaintiffs's remedy theory. In their argument that this case should be certified as a class action under Rule 23(b)(1) and (2), the Plaintiffs contend that a single policy change can be made to institute steps in the C-3 schedule, and back pay to be awarded to each class member can be calculated easily based on the steps in the C-3 salary schedule. People who are not currently paid on the C-3 schedule will have to establish, however, through evidence of qualifications and job responsibilities, that they should have been placed on that schedule, before they can be assessed back pay under the Plaintiffs's remedy theory. In other words, Plaintiffs not paid on the C-3 schedule have claims which are not typical of class members paid on the C-3 schedule because their entitlement to relief poses questions not posed by people already paid on the C-3.

Therefore, in addition to the fact that the Plaintiffs have failed to show that there is a common issue of a pattern of disparate treatment or impact in payment of C-3 schedule salaries, undermining the typicality of all named Plaintiffs, the Plaintiffs have also failed to show that claims of named class representatives not currently paid on the C-3 schedule are typical of the claims of the class of persons paid on the C-3 schedule.

4. Adequacy

Under the adequacy of representation requirement, representative plaintiffs must fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). The adequate representation inquiry involves questions of whether the Plaintiffs's counsel are qualified, experienced, and generally able to conduct the proposed litigation, and of whether the Plaintiffs have interests antagonistic to those of the rest of the class. Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985).

The Plaintiffs argue that they and their counsel will adequately represent the class or alternative subclass because the named Plaintiffs are challenging the same unlawful conduct and seeking the same relief as the rest of the class.

While the court is satisfied that class counsel meets the adequacy requirement, the court has great concern about the Plaintiffs's adequacy as class representatives. The Defendants maintain in their opposition to class certification that the Plaintiffs are asserting compensatory and punitive damages on behalf of the class, rendering certification under Rule 23(b)(1) and (b)(2) inappropriate. The Plaintiffs have vehemently denied that their Fourth Amended Complaint should be interpreted to bring claims for damages on behalf of the class. The Plaintiffs state that they are only seeking compensatory damages on behalf of the named Plaintiffs. Tellingly, the Plaintiffs state that the unnamed class members "though they have been humiliated and [are] suffering distress, will not necessarily have an opportunity to prove such and cannot be compensated for that which is not proven." Doc. #98 at page 134. In the face of this position by the Plaintiffs, the Defendants state that if the Plaintiffs have abandoned the class claims for damages, they are inadequate class representatives.

The Eleventh Circuit has expressed that "to the extent the named plaintiffs were willing to forego class certification on damages in order to pursue injunctive relief that consisted of an admonition to follow general principles of settled law, it is far from clear that the named plaintiffs would adequately represent the interests of the other putative class members." See Cooper v. S. Co., 390 F.3d 695, 721 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006).

The unnamed class members would not "have an opportunity to prove" the humiliation and suffering the Plaintiffs state that they experienced, because of the election of their named representatives. Furthermore, there is no opt out for a Rule 23(b)(2) class, see Holmes v. Cont. Can Co., 706 F. 2d 1144 (11th Cir. 1983), so if the Plaintiffs were to prevail on their motion, those unnamed class members could not opt out to pursue damages which the named Plaintiffs are seeking for themselves. The court concludes, therefore, that the adequacy requirement of Rule 23(a) also has not been satisfied in this case.

Having concluded that the Rule 23(a) requirements have not been satisfied, the court need not address the requests to have the class certified as a Rule 23(b)(1) and (2) case, or, alternatively, as a Rule 23(b) case.

Motion for Collective Action

The Plaintiffs ask for an Order of Conditional Certification and for notice to be sent to "all female individuals who are/were employed with the Defendants at all of its 2-year colleges throughout the state of Alabama within three (3) years of the Court's Order." Doc. #72. In their brief in support of certification, the Plaintiffs state both that they bring the Equal Pay Act claim on behalf of "all female employees paid pursuant to the Defendants' salary schedules," and that the Equal Pay Act claim is brought on behalf of all female employees paid pursuant to "C, D, and E" salary schedules. See Doc. # 73 at pages 1-2.

Collective action treatment under § 216(b) reflects a policy in favor of judicial economy by which "the judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity." See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). Accordingly, the Eleventh Circuit has held that a district court should make certain determinations before allowing an individual plaintiff to give notice to other potential members of a collective action under the FLSA. Specifically, "the district court should satisfy itself that there are other employees of the defendant-employer who desire to `opt-in' and are `similarly situated' with respect to their job requirements and with regard to their pay provisions." Dybach v. Fla. Dept. of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991).

Conditional certification of collective actions is usually examined under a fairly lenient standard, with the idea that the need for certification can be re-examined once discovery has been conducted in the case. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001). There has, however, been discovery in this case already, so there is less need for a lenient standard. See White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1313 n. 2 (M.D. Ala. 2002) (Albritton, J.). Instead, "the plaintiff must make some rudimentary showing of commonality between the basis for his claims and that of the potential claims of the proposed class, beyond the mere facts of job duties and pay provisions." Id. at 1314.

The Plaintiffs state that they have attached consent to join forms from female employees who are similarly situated to the named Plaintiffs. The Defendants concede that the Plaintiffs have submitted an adequate number of notices to demonstrate that there are persons who consent to opt-in. Doc. # 85 at page 17.

The similarly situated requirement, however, is not as easily met. While the court should not, and does not, require the Plaintiffs to prove the merits of their case at this point in the proceedings, the court must at least be satisfied that the Plaintiffs will be able to present evidence which will support their position that other employees who consent to opt in are similarly situated. The request for notice and certification of a collective action seeks to include "all female employees" of the 2-year institutions. The expert evidence provided only concerns employees paid on salary schedule C-3. See Pls.'s Ex. C at page 4. Furthermore, the Plaintiffs's arguments in support of certification, while referencing "all female employees," rely on C-3 salary schedule evidence. See, e.g., Doc. # 97 at page 11. Even viewing the evidence in light of the limitation in the Plaintiffs's brief to female employees paid on the C, D, and E schedules, the Plaintiffs have only presented evidence regarding two named Plaintiffs who are paid on the D and E schedules, and appear to have presented no evidence regarding women paid on the C-1 and C-2 schedules. Therefore, the Plaintiffs have not presented evidence regarding the identified group of "all female employees," or even all female employees paid on the C, D, and E schedules. The Motion is due to be DENIED on that basis alone.

Alternatively, the court notes that the limited evidence which has been submitted, that is, evidence regarding women paid on the C-3 schedule, is insufficient in light of the fact that the request for a collective action is for an Equal Pay Act claim. To establish a prima facie case under the Equal Pay Act, an employee must show that the employer pays different wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). Although formal job titles may be considered, a court must determine whether two jobs are "substantially equal" by examining the skills and qualifications needed to perform the jobs. Miranda v. B B Cash Grocery Store, 975 F.2d 1518, 1533 (11th Cir. 1992).

The expert evidence presented by the Plaintiffs in this case focuses on the salaries paid to men and women, the educational level, attained years of service, and job titles of women and men paid those salaries, but does not take into account job responsibilities. While there is some general testimony from named Plaintiffs that their job duties exceed those of their comparators, the court has not been pointed by the Plaintiffs to evidence of skills and qualifications needed to perform the jobs at issue. The consent forms indicating a desire to join a collective action which have been submitted to the court by the Plaintiffs merely say that the employee has knowledge or a good faith belief that she was paid less than men who performed work of similar skill, responsibility and effort under similar working conditions, but do not identify those job duties. The court cannot conclude from the evidence presented that there are persons similarly situated in their job duties. See Horne v. United Services Auto Ass'n, 279 F. Supp. 2d 1231, 1236 (M.D. Ala. 2003). The court must conclude, therefore, that in addition to certification being denied because the Plaintiffs have not presented evidence about the persons within the collective action they seek to have certified, conditional certification is also due to be DENIED on the alternative basis that the evidence which has been presented does not establish that persons who consent to opt-in to the collective action are similarly situated to the named Plaintiffs.

IV. CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:

1. The Motion to Substitute Brief (Doc. #103) is DENIED.

2. The Motion for Conditional Certification (Doc. #72) is DENIED.

3. The Motion to Certify Class (Doc. #76) is DENIED.

DONE this 25th day of October, 2010.

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c). (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998). (c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04 2. Time for Filing : The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. 3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).