Seyfarth Synopsis: In Savage, et al. v. The City of Springfield, Case No. 3:18-CV-30614, 2022 LEXIS 124587 (D. Mass. July 14, 2022), a federal court in Massachusetts recently denied Plaintiffs' motion for class certification, holding that (1) Plaintiffs failed to establish that a putative class of Black and Hispanic firefighters met the numerosity requirement of Rule 23(a)(1); and (2) that the seminal ruling in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class as sought by Plaintiffs.

This ruling is well worth a read by employers, and will be useful to cite when plaintiffs attempt to certify small class actions that hover near the 40-person threshold, as well as when potential damages may require an individualized analysis.

Case Background

On March 17, 1995, the City of Springfield, Massachusetts (the "City") implemented an ordinance requiring many municipal employees to reside in the City as a condition of employment. Id. at *3-4. In May of 2016, Plaintiffs sued the City, the Springfield Fire Department, the Springfield Fire Chiefs Association, and others, alleging a long-standing non-compliance with the residency ordinance prompted by promotions of non-resident employees of the Fire Department to higher ranking positions. Id. at *5.

In relevant part, Plaintiffs sought to certify a class of, "all current and former Black and Hispanic firefighters employed by the Springfield Fire Department since March 17, 1995." Id. at *26-27. At oral argument, counsel for Plaintiffs identified the primary class claim as emanating from the City's alleged arbitrary and capricious enforcement of the residency ordinance. Plaintiffs further alleged that the City had a practice of maintaining a racially hostile and retaliatory work environment, and sought to include hostile work environment as a claim asserted on behalf of the class. Following Plaintiffs' motion for class certification, Defendants sought to exclude various pieces of evidence, including Plaintiffs' expert declaration and supporting testimony, non-expert declarations, social media posts, and agency decisions.

The Court's Decision

The Court denied Plaintiffs' motion for class certification. First, analyzing the Rule 23(a)(1) class certification requirement, the Court held that Plaintiffs' calculation of fifty putative class members was insufficiently supported. Id. a *30. Specifically, the Court observed that Plaintiffs cited to three paragraphs of their expert's declaration that were not directed at the question of how many minority firefighters were denied promotional opportunities, but rather, the racial composition of the ranks of lieutenant, captain, and above. The Court opined that one of Plaintiff's declarations made no effort to explain how he arrived at the estimate of 50 potential class members, and at most, he established there would be 32 class members, which was below the 40 class member threshold required by Rule 23. Accordingly, the Court held that the numerosity requirement was not met. Id. at *35.

Second, the Court addressed the commonality requirement per Rule 23(a)(2). Id. Plaintiffs argued "that the common questions of law and facts are whether the City discriminated against Black and Hispanic firefighters in the Springfield Fire Department, in violation of the First and Fourteenth Amendments of the U.S. Constitution, Title VII of the Civil Rights Act of 1964 . . . and 42 U.S.C. §§ 1981, 1983, and 1988 by maintaining a racially hostile work environment and allowing white applicants to violate the City's valid and enforceable residency law for well over 20 years, and retroactively excusing white firefighters from compliance with the residency law after Plaintiff filed lawsuits challenging the City's enforcement practices." Id. After addressing and dismissing the constitutional challenges, the Court held in relevant part that pursuant to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), it was "not sufficient for Plaintiffs to merely allege 'that they have all suffered a violation of the same provision of law,' id., 564 U.S. at 350, which is precisely what Plaintiffs have done in their proposed common question." Id. at *37. After reviewing Plaintiffs' evidence, the Court held that Plaintiffs allegedly suffered the same injury (deprivation of promotional opportunities), from the same source (non-enforcement of the residency ordinance), and thus established commonality. Id. at *42.

Third, the Court held that Plaintiffs satisfied Rule 23(a)(4)'s adequacy factor, which dictates that the proposed class representatives must fairly and adequately protect the interests of the class. Id. at *44-45. Plaintiffs argued that they were adequate representatives because they had no conflicts of interest with the proposed members of the class; to the contrary, their interests in ensuring that Defendants are held accountable for their discriminatory promotion practices were perfectly aligned. Id. at *45. The Court held that Plaintiffs met the adequacy requirement since there appeared to be no conflicts between Plaintiffs and other current and former minority employees of the Fire Department, who would have the same interest in ensuring enforcement of the residency ordinance and recovering unpaid wages and benefits from Defendants. Id. at *46.

Finally, the Court held that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class, as sought by Plaintiffs. The Court explained that incidental damages that are permissible under Rule 23(b)(2) are those that would flow to the class as a whole by virtue of its securing the sought after injunctive relief. Id. at *47 (citations and quotations omitted). Noting that Plaintiffs' counsel acknowledged at oral argument that the award of damages would require individualized assessment for each minority firefighter denied a promotional opportunity, the Court held that monetary damages Plaintiff seek do not meet these requirements. Accordingly, because Plaintiffs failed to meet the requirements Rule 23(a)(1) and Rule 23(b)(2), the Court denied Plaintiffs' motion for class certification.

Implications For Employers

While Plaintiffs may have had potentially strong arguments for a handful of individuals, this ruling illustrates that courts will carefully examine motions for class certification in accordance with Rule 23, regardless of the strength of the claims of the lead Plaintiffs. In situations where the putative class size is close to 40 members but short of that baseline, and hence numerosity may be in question, employers would be wise to consider citing the Court's scrutiny here of Plaintiffs' declaration testimony. Finally, from a big picture standpoint in the class action litigation landscape, this ruling confirms that the U.S. Supreme Court's Wal-Mart Stores, Inc. v. Dukes decision remains a cornerstone case for employers to use when attempting to fracture a putative class action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.