D. Colorado Denies Putative Title VII Class Certification Because Common Questions Fail to Predominate

BNA’s Class Action Litigation Report in Vol. 7, No. 24 (Dec. 22, 2006) highlighted the case Britton v. Car Toys, Inc., Slip Copy, 2006 WL 3487686 (D. Colo. Nov. 30, 2006). Here is an excerpt from the case:

As discussed above, the commonality requirement under Rule 23(a) is much less demanding than the predominance requirement of Rule 23(b)(3). See Monreal, 367 F.3d at 1237. Here, while I find that Plaintiff has established commonality with respect to her failure to promote claim, I must conclude that she fails to meet the far more demanding "predominance" requirement of Rule 23(b)(3). Plaintiff has failed to allege any common issue of fact or law other than violation of Title VII. Plaintiff maintains that she has alleged both a pattern of discrimination in Defendants' failure to promote women as well as a "standardized employment practice or policy" common to all members of the putative class.

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Plaintiff essentially contends that Car Toys' failure to implement objective criteria for the selection of individuals to store manager positions has resulted in a lack of women store managers and allowed those individuals hiring store managers to discriminate against women who apply for such positions. However, these allegations do not articulate a specific, overarching policy of discrimination that was applied to all class members in the same way. The United States Supreme Court noted in General Telephone Co. v. Falcon, 457 U.S. 147, 157 (1982), that while across-the-board discrimination is "class discrimination," such allegations "neither determines whether a class action can be maintained in accordance with Rule 23 nor defines the class that may be certified." See also Monreal, 367 F.3d at 1237 ("despite the 'pattern and practice' characterization of their claim, Plaintiffs have not identified any overarching policy which commonly affects the class members"); Thiessen, 267 F.3d at 1108 ("[w]e do not hold that whenever there is evidence of a pattern-or-practice, a class must be certified"). While Plaintiff has alleged that Car Toys' failure to promote her was the result of a pattern of discrimination, she has failed to articulate a common nucleus of operative facts that affect all class members with any degree of specificity. Allegations that a defendant allowed management to intentionally discriminate against a particular group of individuals in connection with their promotion, is insufficient to meet the requirements of Rule 23(b)(3). Monreal, 367 F.3d at 1237. Therefore, I find that Plaintiff has failed to satisfy the "predominance" requirement and the putative class cannot be certified under Rule 23(b)(3).

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