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7th Circuit rules on Rolls-Royce job-bias case

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A day after the nation’s highest court heard arguments on the largest female gender-discrimination case in history, the 7th Circuit Court of Appeals has delved into that same territory and upheld a federal judge’s decision denying class certification in a sex discrimination suit in which a group of female Rolls-Royce employees accused the manufacturer of paying women less than men for the same or similar work.

The 18-page decision came late Wednesday afternoon in the case of Sally A. Randall, et al. v. Rolls-Royce Corp., No.10-3446, delving into how far the federal class-certification rules can be stretched when questions exist about the adequacy of certain plaintiffs and potential class members.

U.S. Judge Sarah Evans Barker in the Southern District of Indiana last year denied a class-certification motion by Sally Randall and Rona Pepmeier, who asked the court to certify a class comprised of all women who’d been employed by Rolls-Royce in Indianapolis at certain pay levels since October 2004. The suit alleged the company had paid women less than men for the same or similar work, and perpetuated the pay disparity over time by failing to equitably adjust female workers' salaries. The January 2009 suit alleged both intentional and disparate impact pay discrimination and retaliatory acts, and violations of Title VII and the Equal Pay Act.

They filed the suit under Federal Rule of Civil Procedure 23(b)(2), which offers slightly more relaxed requirements in proving class status than Rule 23(b)(3), which mandates notice for all potential class members. Randall and Pepmeier argued that the commonality requirement of the class-certification rule was met because Rolls-Royce had a company-wide policy of premising pay on prior base salaries carried forward from the past, but Judge Barker was skeptical of whether that so-called policy had any meaning or value in determining whether all the plaintiffs or potential class members shared similar facts.

Judge Barker also questioned whether there was a common element between all the named plaintiffs and potential class members.

The 7th Circuit affirmed Judge Barker’s denial of the plaintiffs' class-certification motion and determined that she had rightly granted summary judgment in the company’s favor. The appellate panel agreed with Judge Barker that the named plaintiffs here appear to be inadequate class representatives because of varying pay issues and even conflicts about their involvement in management decisions applying to those lower employees who could be class members.

Judge Richard Posner wrote for the panel that the proper approach in this case would have been for the plaintiffs to seek class certification under Rule 23(b)(3) — which requires full notice so they can opt out if they want to bring an independent suit for damages or other monetary relief. Plaintiffs should ask for injunctive as well as monetary relief, he wrote. Reversing the denial of class certification would actually jeopardize the ability of unnamed class members to obtain relief in individual suits or in a subsequent class action, according to the ruling.

“The plaintiffs argue that if only equitable relief is sought, a class action suit may be maintained under Rule 23(b)(2) even if the equitable relief is mainly monetary,” Judge Posner wrote. “We disagree. To read ‘injunctive’ in the rule to mean ‘equitable’ is to become mired in sticky questions of differentiating between ‘legal’ and ‘equitable’ actions – and such questions abound.”

In noting how this case illustrates a need to calculate back pay for all class members and that 500 separate hearings would likely be needed for that, Judge Posner also said, “The monetary tail would be wagging the injunction dog” and that it wouldn’t provide final injunctive relief as the plaintiffs are contending.

While this appellate ruling affirms the District judge, it may not end there as larger questions still exist about the scope of Rule 23(b)(2) as the 7th Circuit interpreted it here. That is the same question being explored by the Supreme Court of the United States, which on Tuesday heard arguments in the giant gender-discrimination suit of Walmart v. Dukes, No. 10-277. The case involves a nationwide class-action suit potentially encompassing hundreds of thousands of female Wal-Mart employees alleging gender discrimination, and the legal question is whether claims of monetary relief can be certified under 23(b)(2) and if so, under what circumstances.

In writing this Rolls-Royce ruling on the Indiana suit, Judge Posner pointed out that “the present case is not as big a stretch, but it is big enough” as it relates to how far Rule 23(b)(2) can be stretched.

No timeline stands for the nine justices to decide the Wal-Mart case, but they’ll likely issue a ruling by the time their current term concludes at the end of June.
 

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  • RUINED CAREERS
    Since this involves 500 women of Rolls-Royce, and there are probably all of the female employees being discriminated against there,I would think there is an obvious gender discrimination culture that not only affects the women's finances, but also ruins their trust in the male culture of this country to the point they lose their faith in mankind. Another lawsuit should be brought forth, based on the pain and suffering these women must be going through, as their careers are ruined and their lives are shattered.

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  3. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  4. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  5. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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