Smith, et al v. Texaco Inc

REVISED OCTOBER 25, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40337
_______________
MATTHEWS SMITH, JOHN COMEAUX, JOHN LUMPKINS,
KENNETH FORD, AND DARLENE GREENE, ET AL.,
Plaintiffs-Appellees,
VERSUS
TEXACO, INC., ARAMCO SERVICES COMPANY, SAUDI REFINING, INC.,
SHELL OIL COMPANY, STAR ENTERPRISE, TEXACO, INC.,
TEXACO REFINING AND MARKETING INCORPORATED,
AND TEXACO REFINING AND MARKETING EAST, INC.,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
August 22, 2001
Before REAVLEY, SMITH, and DeMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this appeal brought pursuant to FED. R.
CIV. P. 23(f), the defendants challenge a class
certification. Concluding that the attempted
class does not meet the requirements of the
applicable rules, we reverse and remand.
I.
This case has its origins in race discrimina-
tion claims made against Texaco, Inc. (“Tex-
aco”), and its subsidiaries in Roberts v. Tex-
aco, Inc., 979 F. Supp. 185 (S.D.N.Y 1997).

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2
During that litigation, counsel for Roberts
mentioned in briefs that employees of Star
Enterprise (“Star”) were considered members
of the class; he also made representations to
Matthews Smith that Star employees were
included. When the Roberts case settled and
a settlement class was certified, however, Star
employees were written out of the class.1
A short time after the settlement was an-
nounced, Smith obtained a state court tempo-
rary restraining order prohibiting Star and
Texaco from removing or destroying docu-
ments; media reports had suggested that they
were destroying evidence.2 At this point, the
statute of limitations already had expired.
Star then removed the case to federal court.
After a hearing, the district court entered pre-
liminary injunctions and document preserva-
tion orders that Star and Texaco appealed.
This court affirmed.
The plaintiffs have filed a series of amended
complaints, including inter alia, claims against
Texaco based on agency principles and stem-
ming from its part ownership of Star (through
its wholly-owned subsidiaries Texaco Refining
and Marketing Incorporated (“TRMI”) and
Texaco Refining and Marketing East (“TRMI
East”)). TRMI and its wholly-owned subsid-
iary TRMI East were included, based on the
latter’s role as joint venturer in Star. Saudi
Refining Incorporated (“SRI”) was joined as
the other joint venturer in Star. Finally,
Aramco Services Company (“ASC”) was
joined because it owns SRI.
Plaintiffs, individually and as
representatives of a class of approximately two
hundred other salaried black employees, allege
that defendants discriminated on the basis of
race in violation of title VII of the Civil Rights
Act of 1964, as amended by the Civil Rights
Act of 1991, 42 U.S.C. § 2000e, and the Civil
Rights Act of 1871, as amended by the Civil
Rights Act of 1991, 42 U.S.C. § 1981. The
plaintiffs assert discrimination in promotions,
compensation, and other benefits and
privileges of employment throughout Star’s
facilities in various states.
The allegations involve Star’s evaluation,
job posting, and compensation/pay grade sys-
tems and promotion practices. Star and
Texaco also are accused of creating or
permitting the creation of a hostile work
environment for black employees.3 The claims
focus on the policies’ subjectivity, which
allegedly allows defendants to apply the
facially-neutral practices in a discriminatory
manner. Plaintiffs seek monetary damages
including, but not limited to, compensatory
and punitive damages. After a hearing, the
district court certified the following class:
All African-American employees of
Star Enterprise, at any time from March
23, 1991 to the present who have held
or who have tried to obtain, a
managerial, supervisory, or professional
salaried position, and who have been,
continue to be, or may in the future be
adversely affected by Star’s alleged
racially discriminatory employment and
1 Star was found not to meet the definition of a
Texaco subsidiary as defined by the agreement.
2 See Smith v. Texaco, Inc., 951 F. Supp. 109
(E.D. Tex.), aff’d, 117 F.3d 1417 (5th Cir. 1997)
(table) (unpublished).
3 To reduce repetition, we write predominantly
with regard to the particular evaluation policy
(“PMP”). Where necessary, we include specific
reference to the other challenged practices.

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3
practices. The class does not include
any hourly individuals who have tried to
obtain salary positions.
II.
A.
A district court maintains substantial
discretion in determining whether to certify a
class. See Jenkins v. Raymark Indus., Inc.,
782 F.2d 468, 471-72 (5th Cir. 1986). We
recognize the essentially factual basis of the
certification inquiry and defer to the district
court’s inherent power to manage and control
pending litigation, so we review certification
decisions only for abuse of that discretion. See
Pegues v. Miss. State Employment Serv., 699
F.2d 760, 763 (5th Cir. 1983). Nonetheless,
“[a] district court by definition abuses its
discretion when it makes an error of law.”
Koon v. United States, 518 U.S. 81, 99-100
(1996). Whether the court applied the correct
legal standard is a question subject to de novo
review. See Forbush v. J.C. Penney Co., 994
F.2d 1101, 1104 (5th Cir. 1993).
B.
As a guide, we compare the causes of ac-
tion before delving into the specifics of this
case. Class actions brought under title VII
typically proceed under two theories, disparate
impact4 and systemic disparate treatment5;
4 The disparate impact model of title VII lia-
bility is based on section 703(a)(2) of title VII, 42
U.S.C. § 2000e-2(a)(2), which forbids an employer
to “limit, segregate, or classify” employees “in any
way which would deprive or tend to deprive any
individual of employment opportunities or
otherwise adversely affect his status as an
employee” because of race or sex. Disparate im-
pact claims, recognized in Griggs v. Duke Power
Co., 401 U.S. 424 (1971), do not require proof of
intent to discriminate. Plaintiffs must identify spe-
(continued...)
4(...continued)
cific practices as being responsible for any ob-
served disparities, see Johnson v. Uncle Ben’s,
Inc., 965 F.2d 1363, 1367 (5th Cir. 1992), and
must present a systemic analysis of those
employment practices to establish their case, see
Black Fire Fighters Ass’n v. City of Dallas, 905
F.2d 63, 63 (5th Cir. 1990).
Disparate impact claims may be brought by
individual plaintiffs or by a class. In either case,
the evidence will focus on the degree of statistical
disparity between protected and non-protected
workers in regard to employment or promotion.
5 The disparate treatment model is based on
section 703(a)(1) of title VII, 42 U.S.C. § 2000e-
2(a)(1), which provides that it is an unlawful em-
ployment practice “to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment” because
of race or sex. The prima facie elements of a
claim for disparate treatment are (1) that the plain-
tiff is a member of a protected class under the
statute; (2) that he applied and was qualified for a
job or promotion for which his employer was
seeking applicants; (3) that, despite his
qualifications, he was rejected; and (4) that
afterwards the position remained open, and the
employer continued to look for candidates with
plaintiff’s qualifications. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
Disparate treatment claims can be brought as
class actions, as well. Plaintiffs must show a
“pattern or practice” of discrimination by the em-
ployer, i.e., that “racial discrimination was the
company’s standard operating procedureSSthe
regular rather than the unusual practice.” Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324
(1977). Proving a pattern or practice is necessary
to establishing a prima facie case in a disparate
treatment class action: “Proving isolated or spo-
radic discriminatory acts by the employer is in-
(continued...)

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4
plaintiffs advance both. The disparate impact
theory is used to challenge a facially-neutral
employment policy that affects a protected
employee class more harshly. Pouncy v. Pru-
dential Ins. Co. of Am., 668 F.2d 795, 799
(5th Cir. 1982). Disparate impact cases in
particular, which challenge specific, facially-
neutral policies with proof of statistical
disparit ies despite uniform application,
implicate class-based claims.
The disparate treatment theory focuses on
whether the employer engaged in a “pattern or
practice” of intentional discrimination, that is,
whether discrimination was the employer’s
standard operating procedure rather than a
sporadic occurrence. See Teamsters, 431 U.S.
at 336. We previously have upheld class ac-
tion certifications involving both causes of
action.6
Class actions in which an employer engaged
in a pattern o r practice of intentional dis-
crimination ordinarily are handled in bifurcated
proceedings imposing different burdens of
proof in the respective phases. See Shipes v.
Trinity Indus., 987 F.2d 311, 318 (5th Cir.
1993). During the first or “liability” stage,
plaintiffs seek to prove a pattern or practice of
invidious class-based discrimination. See id.
When successful, individual class members
benefit from a presumption of equitable pay
(i.e., back pay), their entitlement to which is
determined during the second or “remedial”
stage.
To obtain back pay, class members need
only prove that they were denied employment
opportunities and the extent of their loss; the
burden then shifts to the employer to
demonstrate that the denial was for legitimate
reasons. See Richardson, 709 F.2d at 1021;
see also Teamsters, 431 U.S. at 362.
Although this final determination typically
involves individual hearings, see Johnson v.
Goodyear Tire & Rubber Co., 491 F.2d 1364,
1375 (5th Cir. 1974), courts, until 1991,
streamlined the process by employing special
masters, see NEWBERG & CONTE, NEWBERG
ON CLASS ACTIONS §§ 24.119-24.121 (3d ed.
1992).
The Civil Rights Act of 1991 fundamentally
changed the procedures and remedies available
under title VII. Inter alia, the act now permits
plaintiffs to recover, in cases raising individual
disparate treatment and pattern or practice
claims, compensatory and punitive damages
for unlawful intentional discrimination. See 42
U.S.C. § 1981a(a)(1). Compensatory
damages include relief for “future pecuniary
losses, emotional pain, suffering,
inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary
losses. § 1981a(b)(3). The act also allows
punitive damages if the employer discriminated
with malice or with reckless indifference to the
federally protected rights of an aggrieved
individual. § 1981a(b)(1)(2). Damages are
capped at $300,000 per plaintiff. See §
1981a(b)(3). Finally, in all cases in which a
plaintiff seeks compensatory and punitive dam-
ages, either party may demand a jury. See §
1981a(c).
5(...continued)
sufficient to establish a prima facie case . . . .”
Cooper v. Fed. Reserve Bank, 467 U.S. 867, 875-
76 (1984).
6 See, e.g., Richardson v. Byrd, 709 F.2d 1016
(5th Cir. 1983); Robinson v. Union Carbide
Corp., 538 F.2d 652 (5th Cir. 1976); Pettway v.
Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.
1974).

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5
C.
Under FED. R. CIV. P. 23, the various cate-
gories of class actions, with their divers
requirements, represent a balance struck in
each case between the need and efficiency of a
class action and the interests of class members
to pursue their claims separately or not at all.7
Class actions are categorized according to the
nature or effect of the relief sought.
Relevant to this case are the rules
governing rule 23(b)(2) and (b)(3) classes.
The rule 23(b)(2) class action was intended for
cases in which broad, class-wide injunctive or
declaratory relief is necessary. See Holmes v.
Cont’l Can Co., 706 F.2d 1144, 1155 n.8
(11th Cir. 1983). The rule 23(b)(3) class
action exists to dispose of all other cases in
which a class action would be “convenient and
desirable,” including those involving large-
scale, complex litigation for money damages.
Amchem, 521 U.S. at 516.8 Pairing the
respective rule 23 categories with specific
kinds of relief reflects a concerted effort to
respect the variety among class-member
interests, which often depends on the natures
of the injuries alleged and relief sought.
D.
The four prerequisites of Rule 23(a) are
that
(1) the class be so numerous that joinder
of all members is impracticable;
(2) there be questions of law or fact
common to the class;
(3) the claims or defenses of the
representative parties be typical of the
claims or defenses of the class; and
(4) the representative parties will fairly
and adequately protect the interests of
the class.
Rule 23(a); accord Amchem, 521 U.S. at 613.
1.
A class must be so numerous that “joinder
of all members is impracticable.” Rule 23-
(a)(1). To meet this requirement, the class
representatives need show only that it is
difficult or inconvenient to join all members of
the class. See Phillips v. Joint Legislative
Comm., 637 F.2d 1014, 1022 (5th Cir. Unit A
Feb. 1981). Defendants do not challenge the
numerosity of the class.
2.
The test for commonality is met “where
there is at least one issue, the resolution of
which will affect all or a significant number of
the putative class members. Lightbourn v.
County of El Paso, 118 F.3d 421, 426 (5th
Cir. 1997). While the commonality hurdle is
not particularly high, a plaintiff must go be-
yond merely describing issues at the highest
level of generality.9 In Mullen v. Treasure
7 See Amchem Prods., Inc. v. Windsor, 521
U.S. 591 (1997); United States Parole Comm’n v.
Geraghty, 445 U.S. 388 (1980).
8 See also Penson v. Terminal Transp. Co., 634
F.2d 989, 993 (5th Cir. Unit B Jan. 1981) (citing
rule 23 (advisory committee notes)).
9 See, e.g., Gen. Tel. Co. v. Falcon, 457 U.S.
147 (1982) (“We cannot disagree with the
proposition underlying the across-the-board
ruleSSthat racial discrimination is by definition
class discrimination. But the allegation that such
discrimination has occurred neither determines
whether a class action may be maintained in
(continued...)

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6
Chest Casino, 186 F.3d 620 (5th Cir. 1999),
commonality was present, because the putative
class members would assert claims for
negligence under the Jones Act and for
operating an unseaworthy vessel. The court
found that the common issues pertaining to the
theories of liabilitySSi.e., the class members’
status as Jones Act seamen, the negligence of
Treasure Chest, and the unseaworthiness of
the CasinoSSwere independently sufficient to
establish commonality.10
In Allison v. Citgo Petroleum Corp., 151
F.3d 402, 408 (5th Cir. 1998), the court, con-
fronting a class of roughly one thousand per-
sons, who alleged similar causes of action as
these plaintiffs (disparate treatment and
impact) and sought similar remedies
(injunction compensatory and punitive
damages) noted, without challenge, that the
class met the rule 23 requirements. The
similarities between the Allison plaintiffs and
the current plaintiffs strongly suggest that the
district court did not abuse its discretion.
Plaintiffs allege that Star used a defective
evaluation policy: the defect being both that it
had a disparat e impact and that it was
employed with discriminatory intent.11
Although these are broad claims, they surpass
the low threshold of commonality. Because
there is at least one issue the resolution of
which will affect all or a significant number of
class membersSSwhether the policy has a
disparate impact on black employeesSSthe
commonality test is met.12
3.
Like the test for commonality, the test for
typicality is not demanding. It “focuses on the
9(...continued)
accordance with Rule 23 nor defines the class that
may be certified.”).
10 The dissent charges that “[t]oday’s decision
and Allison cannot be reconciled with Mullen.”
Mullen was decided after Allison. Under our rule
of orderliness, the earlier decision controls in the
event of inconsistency. Teague v. City of Flower
Mound, Tex., 179 F.3d 377, 383 (5th Cir. 1999).
Both we and the Mullen panel are and were bound
by the holdings in Allison, which, in any event, are
sound. It is apparent that the dissent’s real com-
plaint is with Allison, which is now well es-
tablished law in this circuit after we declined to
reconsider it en banc. See Allison, 151 F.3d at 434
(denying rehearing en banc).
11 The plaintiffs do not argue that the policy
was adopted with overall discriminatory intent.
Had they done so, their disparate treatment claim
would have been significantly less complex. We
note, without adopting, that at least one court had
held that class certification under a disparate
treatment theory requires an allegation that the
granting of discretion was motivated by
discriminatory intent. See Reap v. Cont’l Cas.
Co., 199 F.R.D. 536 (D.N.J. 2001) (disallowing
certification under a disparate treatment theory in
the absence of a specific allegation that the
company intended to use the policy to
discriminate).
Plaintiffs argue that the policy was employed in
certain individual cases to discriminate.
Additionally, at least three of the named plaintiffs
have testified that the PMP was fair and not
discriminatory toward them. Although some might
see this as a minor challenge to the “adequacy” of
these named plaintiffs, such testimony undermines
a claim that the policy was adopted with
discriminatory intent. Of course, Star still could
have adopted the policy with such an intent, but
certain supervisors opted not to discriminate.
Plaintiffs have not made this claim, however.
12 The test does not appear to require
predomination, just commonality.

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7
similarity between the named plaintiffs’ legal
and remedial theories and the theories of those
whom they purport to represent,” Lightbourn,
118 F.3d at 426, and is satisfied when the res-
olution of common questions affects all or a
substantial number of class members, Shipes,
987 F.2d at 315. It is not necessary that each
class member suffer the same degree of harm.
Here, plaintiffs assert similar claims: They do
not argue that one was trespassed against
while another was the object of discrimination.
The class purports to consist of similarly-
situated black employees who were exposed to
the same policies. That the time period of
exposure may differ, or that some were less
affected by the policy, would not necessarily
prevent a finding of typicality. It might,
however, affect other considerations, such as
damage levels or predominance.
4.
Differences between named plaintiffs and
class members render the named plaintiffs in-
adequate representatives only where those dif-
ferences create conflicts between the named
plaintiffs’ and the class members’ interests.13
Star challenges the district court’s adequacy
determination on the basis that some of the
class members have supervised other class
members,14 and several of the named plaintiffs
have claimed that the PMP was applied fairly
to them.
Star points to Gen. Tel. Co. v. Falcon, 457
U.S. 147 (1982), in which the Court
decertified a class after deciding that the
named plaintiff, who claimed to suffer from an
intentional act of discrimination, sought to
represent a class that proceeded on a disparate
impact theory.15 The Court held that the
individual and class claims should have been
tried separately, because the “evidentiary ap-
proaches to the individual and class claims
were entirely different.” Id. at 159. Com-
bining the two claims would not advance “the
efficiency and economy of litigation which is a
principal purpose of the [class action] pro-
cedure.” Id. (quoting Am. Pipe & Constr. Co.
v. Utah, 414 U.S. 538, 553 (1974)).
Because several of the named plaintiffs
13 See Jenkins, 782 F.2d at 472 (considering, in
evaluating adequate representation requirement,
whether named plaintiffs have “an insufficient
stake in the outcome or interests antagonistic to the
unnamed members”); see also Mullen, 186 F.3d at
626 (noting that while the differences described by
defendant might create variances in the ways that
the named plaintiffs and class members prove
causation and damagesSSa lifelong non-smoker
may have less difficulty in proving that the casino’s
conditions caused her asthma than will a smoker,
whose claim is thus subject to a defense of
contributory negligenceSSthey did not affect the
alignment of their interests).
14 This type of challenge seems to fail where
both promotional and hiring discrimination is
alleged. In those cases, the interests of the
supervisors are co-extensive with those of the other
employees. See Rossini v. Ogilvy & Mater, Inc.,
798 F.2d 590 (2d Cir. 1986). Even so, we assume
the supervisors will argue that they did not act with
discriminatory intent toward others when applying
the PMP. Again, this difference means that unless
plaintiffs prove that Star adopted the program with
specific-discriminatory intent, any disparate
treatment claims will depend on proving specific
acts by specific supervisors.
15 The district court found that the named
plaintiff had been discriminated against in
promotion, but not hiring, while the class had been
discriminated against in hiring, but not promotion.
This converse relationship was the source of the
Court’s disagreement with the certification
decision. Gen. Tel., 457 U.S. at 152-59.

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8
assert that they always have received good
marks on their PMP’s, it seems at first glance
that General Telephone should apply. Chief
Justice Burger’s separate opinion tempers such
application, however: He notes that in
General Telephone there was no allegation
that those who made the hiring decisions were
the same persons who made the promotion
decisions. Id. at 162 n.* Our case differs; the
named plaintiffs’ claim that Star, at the
organizational level, engaged in discriminatory
practices is equivalent to the allegation
described by Chief Justice Burger. Up to this
point, we find no abuse of discretion.
E.
Certification under rule 23(b)(2) requires
plaintiffs to show that “the party opposing the
class has acted or refused to act on grounds
generally applicable to the class, thereby mak-
ing appropriate final injunctive relief or
corresponding declaratory relief with respect
to the class as a whole.” Rule 23(b)(2). This
includes a requirement that claims for
injunctive relief predominate over claims for
monetary relief. Id. (advisory committee
notes). Injunctive relief predominates where
the monetary relief is “incidental”16 to the
injunctive relief, but does not predominate
where the monetary relief depends on the
varying circumstances and merits of each
individual’s case, making it less of a group
remedy. Allison, 151 F.3d at 410-13.
The comparative nature of the
predomination inquiry means that seemingly
minor differences between or among causes of
action or damages sought can produce
dramatically different results. For instance, if
the plaintiffs had sought only injunctive and
declaratory relief, this case could have been
certified under rule 23(b)(2); there would have
been no money damages to predominate. It is
also plain that the presence of any amount of
money damages does not result in a per se
finding of predomination. Finally, considering
Allison and rule 23(b)(2)’s formulation, the in-
stant claims could not have been certified un-
der that paragraph, because compensatory and
punitive damages predominate over injunc-
tive/declaratory relief.
Before addressing the issues relevant to the
rule 23(b)(3) certification, two points deserve
attention. First, we address Star’s protestation
that injunctive relief is not available because
Star is no longer a going concern. Even
though Star has been reorganized and
reconstituted among new partners under a new
name (“Motiva”), this fact alone does not
block an injunction against practices that have
a disparate impact on black employees in the
current organization. To see the corporate
change as a bar to enjoining a discriminatory
practice would create an end-run around the
statute.17
Second, contrary to the defendants’
protestations, we have allowed and even have
required notice in rule 23 (b)(2) class actions
in which equitable monetary claims were at
stake. See Johnson v. Gen. Motors Corp., 598
16 By “incidental,” we mean that “damages that
flow directly from liability to the class as a whole
on the claims forming the basis of the injunctive or
declaratory relief. . . . Ideally, incidental damages
should be only those to which the class members
automatically would be entitled once liability to the
class (or subclass) as a whole is established.”
Allison, 151 F.3d at 415 (citations omitted).
17 See NLRB v. Fabsteel Co., 587 F.2d 689 (5th
Cir. 1978) (requiring a successor to reinstate a
group of twenty-two strikers whom its predecessor
had fired illegally.).

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9
F.2d 432, 438 (5th Cir. 1979). Additionally,
Allison recognized that providing rule 23(b)(2)
class members with the procedural safeguards
of notice and opt-out can permit civil rights
class actions to proceed under that rule. Id. at
418. Therefore, the district court did not
abuse its discretion when it granted the
plaintiffs an opt-out procedure under rule
23(b).
F.
Rule 23(b)(3) permits certification of a
class action otherwise meeting the
requirements of rule 23(a) where
the court finds that the questions of law
or fact common to the members of the
class predominate over any questions
affecting only individual members, and
that the class action is superior to other
methods for a fair and efficient
adjudication of the controversy. The
matters pertinent to the findings include:
(A) the interests of the members of the
class in individually controlling
prosecution or defense of separate
actions; (B) the extent and nature of any
litigation concerning the controversy
already commenced by or against
members of the class; (C) concentrating
the litigation of the claims in a particular
forum; (D) the difficulties likely to be
encountered in management of a class
action.
Rule 23(b)(3). The two main inquiries are
whether common issues predominate over in-
dividual issues and whether the class action is
a superior adjudicatory scheme.
1.
The predominance inquiry involves a com-
parison of the issues common among the class
members and the issues individual to them.
This analysis remains unchanged whether a
class is certified under one or more sections of
rule 23(b). The inquiry’s constancy serves as
an important limitation on the use of
bifurcation by preventing a district court from
manufacturing predominance through the
“nimble use” of rule 23(c)(4). Castano v. Am.
Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir.
1996).
Therefore, the cause of action, as a whole,
must satisfy rule 23(b)(3)’s predominance re-
quirement. Id. Once that requirement is met,
rule 23(c)(4) is available to sever the common
issues for a class trial.18 To read the rule not
18 This “as a whole” requirement suggests some
interesting permutations. Any change in the
composition of liability issues or damages sought
would require a new accounting to determine
whether common or individual issues predominate.
For example, a disparate impact claimSSa non-
individualized claimSSwould serve as
counterweight to the individual inquiries necessary
to determine compensatory or punitive damages.
Another outcome would result if the plaintiffs had
not requested punitive damages.
Because the predominance test is sensitive to
each variance in legal theories or remedies sought,
it prevents the establishment of a per se rule that
would prohibit title VII claims’ being tried as class
actions. We reject defendants’ characterization of
Allison as establishing such a per se rule. See id.
(citing In re N. Dist. of Cal. Dalkon Shield IUD
Prods. Liability Litig., 693 F.2d 847, 856 (9th Cir.
1982) (balancing severed issues against the
remaining individual issues); Jenkins v. Raymark
Indus., Inc., 109 F.R.D 269, 278 (E.D. Tex. 1985)
(comparing state-of-the-art defense to individual
issues of exposure and degree of injury in a class
action certified only on the common issue of state-
of-the-art defense), aff’d, 782 F.2d 468 (5th Cir.
(continued...)

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10
as a housekeeping rule, but instead as allowing
a court to pare issues repeatedly until pre-
domination is achieved, would obliterate rule
23(b)(3)’s predominance requirement,
resulting in automatic certification in every
case in which any common issue exists, a
result the drafters of the rule could not have
intended.
With this limitation in mind, we apply the
predominance test to the instant facts. We
first consider the nature of compensatory dam-
ages, borrowing from Allison:
The very nature of these damages,
compensating plaintiffs for emotional
and other intangible injuries, necessarily
implicates the subjective differences of
each plaintiff’s circumstances; they are
an individual, not class-wide, remedy.
The amount of compensatory damages
to which any individual class member
might be entitled cannot be calculated by
objective standards. Furthermore, by
requiring individualized proof of
discrimination and actual injury to each
class member, compensatory damages
introduce new and substantial legal and
factual issues.
Allison, 151 F.3d at 417. Compensatory dam-
ages, then, must be placed on the “individual”
side of the equation, counseling against a find-
ing of predominance. To do otherwise would
allow a class action to “degenerate in practice
into multiple lawsuits separately tried. Casta-
no, 84 F.3d at 745 n.19 (citing rule 23
(advisory committee notes)).
Plaintiffs, however, point to Warnell v.
Ford Motor Co., 189 F.R.D. 383 (N.D. Ill.
1999), in which the court, after acknowledging
that a sexual harassment claim, by nature, is
highly individualized, certified the class under
rule 23(b)(2) and (3). Warnell is inapposite on
the issue of compensatory damages, for that
court focused on the legal standards that
govern sexual harassment liability. Reference
to Warnell does help, however, to demonstrate
the necessity of considering liability and dam-
ages issues separately during the predominance
inquiry.
Plaintiffs’ reliance on Warnell as a means of
avoiding Allison is misplaced. Warnell does
not engage Allison until it discusses cer-
tification under rule 23(b)(2), and then only to
pronounce that the holding regarding whether
compensatory damages are incidental to in-
junctive relief is dictum. See Warnell, 189
F.R.D. at 389. Moreover, Warnell’s
characterization of Allison’s language has been
superseded in its own circuit. In Lemon v.
Int’l Union of Operating Eng’rs, 216 F.3d
577 (7th Cir. 2000), the court, relying on
Allison, vacated a rule 23(b)(2) class
certification where the class had requested
compensatory damages, reasoning that the
damages were not incidental to the injunctive
relief requested. Lemon, 216 F.3d at 577. By
doing so, the Lemon court overruled Warnell.
We next consider whether punitive
damages require an individual inquiry. First,
punitive damages are not available for
disparate impact claims. In Kolstad v. Am.
Dental Ass’n, 527 U.S. 526, 534 (1999), the
Court emphasized that there must be malice or
reckless indifference that is directed at the fed-
erally-protected rights of an aggrieved
individual. Id. Specifically, the Court, id. at
534-35, considered whether, for punitive
damages, there must be egregious misconduct 18(...continued)
1986).

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11
(in addition to the mere existence of
discriminatory intent). In deciding that “intent
determines whether remedies are open,” the
Court highlighted the subjectivity necessary for
liability. Id. at 535-36.
Punitive damages have not been assessed
merely on a finding that the defendant engaged
in a pattern or practice of discrimination. Such
a finding establishes only that there has been
general harm to the group and that injunctive
relief is appropriate. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 266, (1989)
(O’Connor, J., concurring in the judgment).
The Court’s precedent supports the view that
an individualized inquiry is necessary to
determine liability for punitive damages in the
title VII context, at least where, as here, there
are a series of decisions made by various
personnel.
Further support comes from this circuit’s
caselaw. In Patterson v. P.H.P. Healthcare
Corp., 90 F.3d 938, 940 (5th Cir. 1996), a title
VII case, we held that compensatory and
punitive damages no longer could be presumed
from a mere violation of a plaintiff’s rights; a
degree of specificity is required to support a
damage award. Our subsequent jurisprudence
is worth review.
In Deffenbaugh-Williams v. Wal-Mart
Stores, Inc., 156 F.3d 581 (5th Cir. 1998), we
initially receded from that part of Patterson
that had discussed vicarious liability. Defen-
baugh-Williams, however, was vacated for re-
hearing en banc and was reinstated in part by
the en banc court, which, notably, did not
reinstate the discussion of punitive damages.
See Deffenbaugh-Williams v. Wal-Mart
Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en
banc). Before this court decided Defenbaugh-
Williams en banc, we decided Allison, which
cited Patterson for the proposition that
“recovery of compensatory and punitive
damages in title VII cases requires
individualized and independent proof of injury
to, and the means by which discrimination was
inflicted upon, each class member.” Allison,
151 F.3d. at 419. Next in line was Kolstad,
discussed supra.
Finally, it is helpful to consider Hardin v.
Caterpillar, Inc., 227 F.3d 268 (5th Cir.
2000), in which this court faced the question
whether a district court had erred in refusing
to submit an issue of punitive damages to the
jury. The court granted a new trial after
determining that the punitive damages issue
could not be tried alone, because the difficulty
of doing so inhered in the very nature of the
jury’s decisionmaking:
A jury deciding whether to award
punitive damages and their amount
responds to the evidence of intentional
acts essential here to the underlying
finding of liability. But intentional acts
span a range of intensity, purpose, and
foreseeability, a range that oscillates
with the perceived level of emotional
injury and its appropriate compensation.
Many legal systems reflect this linkage
of actual and punitive damages in
locating caps for punitive awards. It is
no answer that liability and damages
here come in distinct legal capsules,
because it is equally true that their
expression in a verdict is a meld, a
phenomenon providing essential anchors
and focus to the open-ended character
of punitive damages.
Id. at 272. The court remarked that it was not
deciding that issues of intent, of compensatory
damages, and of punitive damages are
inseparable as a matter of law in all cases. See

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12
id.
The gravamen of Hardin seems to be that
although there is no bright line, it is only in
unlikely situations that compensatory and pun-
itive damages will not be intertwined. The
court’s description of the various factors sug-
gests that an individual inquiry is necessary to
resolve punitive damages in cases involving
discrimination; Hardin offers hearty language
supporting Patterson’s principles.
Additionally, language in Allison suggests
that if punitive damages ever are available in a
discrimination suit on a class-wide basis,
without individualized proof, the instant alle-
gations do not meet the requirements:
Plaintiffs do not allege that the entire class is
subjected to the same discriminatory act or
same series of acts that would justify punitive
damages. Rather, here as in Allison, the
plaintiffs challenge broad policies and practices
that were applied in a non-standard way. The
named plaintiffs cannot hope to show, except
by individual proof, that the policies as applied
in each instance occurred with the required
level of “malice or reckless indifference to the
federally-protected rights of the aggrieved
individual.”19
The difference can be appreciated by
considering the following: A supervisor
announces to the workforce that at 5:00 that
evening, each white employee will be laid off.
This act is singular, and it can be assumed that
the defendant acted with the same level of in-
tent as to each white employee.20 In contrast,
the requisite intent can be gleaned only from
the actions of individual supervisors applying
the policy. Thus, the punitive damage inquiry
is placed on the “individual issue” side of the
predominance equation, keeping in mind that
punitive damages are available only for the
disparate treatment claim.21
Plaintiffs point to two asbestos cases22 to
support their claim that punitive damages can
be determined on a class-wide basis. In those
mass-tort cases, this circuit approved the use
19 To the extent that the district court contended
that the common issue was the existence of
discriminatory practices, such a contention does
not demand the conclusion that every act was com-
mitted with the requisite intent to award punitive
damages. In fact, in light of testimony by some of
the named plaintiffsSSwho said they received good
PMP marksSSthe claim cannot be that the PMP
was, in each case, applied with the necessary
intent. Add to this the complication that multiple
policies are condemned.
There also can be little doubt that not all
(continued...)
19(...continued)
plaintiffs will have suffered damage from each of
the alleged policies in the same manner, or perhaps
even suffered damage from the same number of
policies. These factors place the award of punitive
damages outside the realm in which multipliers
might be appropriate.
20 Naturally, compensatory damages still would
require proof on an individual basis.
21 In his well-written dissent, Judge Reavley
charges that in the wake of this opinion, “there can
be no class action where the class members seek
individual personal damages beyond those
incidental to a claim for equitable relief.” The
above hypothetical shows the flaw in that criticism;
the dissent does not address it. Nor does it address
the basic framework of our analysis, which is that
the predominance inquiry must consider the
variations in theories of liability and the variations
in proof of damages for each plaintiff.
22 Jenkins and In re Fibreboard, 893 F.3d 706
(5th Cir. 1990).

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13
of a multiplier to determine the punitive
damages amount. We do not revisit those
holdings, which are binding circuit precedent;
instead, we rely on Kolstad’s language and the
statutory requirement that the defendants’ in-
tent be directed against an aggrieved
individual.23
The district court also attempted to
distinguish the instant plaintiffs from the
Allison plaintiffs by claiming that the former
group is more homogeneous than the latter.
The obstacle to this approach is that it fails to
recognize that the relevant homogeneity
regards the damages sought.
In Allison, the individual nature of the dam-
age proof overwhelmed the common issues.
The district court’s observation spoke to
whether the grounds for liability were similar,
but that the plaintiffs’ liability cases are similar
does not alter the nature of the damage in-
quiry, save the example provided above. Were
these plaintiffs identicallySSas opposed to
similarlySSsituated, a court might be able to
forego individual damage inquiries; but that is
not the case.24
Another concern with the district court’s
approach to distinguishing the plaintiff sets is
that the Allison court specifically rejected the
existence of a plant-wide discriminatory prac-
tice as an “overarching issue” that would
counterbalance the individual inquiry necessary
to determine compensatory and punitive
damages. Allison, 151 F.3d at 420. The dis-
trict court departs directly from Allison on this
point. Just as in Allison, the plaintiffs’ claims
for compensatory and punitive damages will
focus almost entirely on facts and issues spe-
cific to individuals rather than to the class as a
whole.
2.
The superiority inquiry looks to see wheth-
er the class action is truly a more efficient
means of resolving the legal issues. The class
action suit was designed to improve judicial
economy. See id. at 410. Based on the cause
of action involved here, our inquiry is
23 The dissent argues that in adhering to Allison,
we “fail to follow” controlling circuit precedent,”
i.e., Jenkins. In fact, we are bound to apply both
Jenkins and Allison. The Allison court took full
account of Jenkins, citing it several times, so we
are informed not only by Jenkins but by Allison’s
reading of Jenkins.
We also are at a loss to understand why we
should ignore “language” in the intervening Su-
preme Court decision in Kolstad, which, as we
have said, emphasized the statutory language in the
1991 amendment to the effect that punitive dam-
ages depend on “malice or . . . reckless
indifference to the . . . rights of an aggrieved
individual.” Kolstad, 527 U.S. at 534 (quoting 42
U.S.C. § 1981a(b)(1)) (Supreme Court’s
emphasis). Judge Reavley’s insistence that we
should adopt, as binding, his broad reading of
Jenkins, even in the wake of Kolstad, runs afoul of
the maxim that “the rule of orderliness has little
persuasive force when the prior panel decision at
issue conflicts with a Supreme Court case to which
the subsequent panel decision is faithful.”
Kennedy v. Tangipahoa Parish Library, 224 F.3d
359, 370 n.13 (5th Cir. 2000).
24 Even when considering damages, we must
keep in mind that the instant liability issues are not
ones as to which the proof involves the “same
event”; instead, they are cases involving the actions
of different actors. If Star had adopted the PMP
with the specific intent to discriminate, the
necessary proof would be potentially much more
common to each plaintiff. This would provide
support for a rule 23(b)(3) certification and
perhaps could be another example of a
counterweight to the individual-damage inquiry.

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14
constrained by the Seventh Amendment.25
Title VII forbids compensatory and punitive
damages for disparate impact claims, see §
1981a(a)(1), limiting to the pattern or practice
claim the Seventh Amendment right to a jury
trial, see § 1981a(c).26 Once the right to a jury
attaches to a claim, however, it extends to all
factual issues necessary to resolve that claim.
See Beacon Theatres, Inc. v. Westover, 359
U.S. 500, 510-11 (1959). The Seventh
Amendment also requires submission to a jury
of all factual issues common to legal and
equitable claims, for decision on the legal
claims before a final court determination of the
equitable claims.27 Thus, under § 1981a, the
right to a jury extends to all factual issues
necessary to determine liability on the pattern
or practice claim and the quantum of
compensatory and punitive damages. The
inseparability of the plaintiffs’ disparate treat-
ment and disparate impact claims, on the one
hand, from their specific remedy requests, on
the other, thus presents a difficult hurdle for
class certification.28
Because the same employment policies and
practices are challenged under both claims,
there are overlapping issues. First, an essential
factual element of both claims is a finding that
the challenged employment practice caused
each class member to suffer an adverse
employment action. To resolve either claim,
the trier of fact must determine whether each
25 This analysis closely tracks our opinion in
Allison.
26 In a supplemental letter filed pursuant to
FED. R. APP. P. 28(j), plaintiffs call our attention to
Cooper Indus., Inc., v. Leatherman Tool Group,
Inc.,121 S. Ct. 1678 (2001), which was issued
after oral argument in this case. In Cooper, which
is not a titleVII case, the Court held that appellate
courts should apply a de novo standard when re-
viewing district court’s determinations of the con-
stitutionality of a punitive damage award.
The Court contrasted the nature of actual and
punitive damages, stating that the former presents
questions of historical predictive fact, while the
latter is “not really a ‘fact’ ‘tried’ by the jury.” Id.
at 1686. (citation omitted). This distinction led the
Court to determine that appellate review of whether
a punitive damage award is consistent with due
process does not implicate Seventh Amendment
concerns. Id. at 1686-87.
Absent Congress’s 1991 grant of a right to jury
trial for punitive damages under title VII, Cooper
might support the placement of punitive damages
on the common-issue side of the equation. Nothing
in Cooper suggests, however, that the Court was
invalidating the Civil Rights Act of 1991.
Accordingly, Cooper does not limit the ability of
Congress to provide, by statute, the right to a jury
in cases in which the Seventh Amendment does not
otherwise require it. Additionally, Hardin, 227
F.3d at 272, explains that it is the interrelatedness
of compensatory and punitive damages that
requires that they be determined together.
27 See Roscello v. Southwest Airlines Co., 726
F.2d 217, 221 (5th Cir. 1984) (citing Dairy Queen,
Inc. v. Wood, 369 U.S. 469, 479 (1962)).
28 The dissent relies on excerpts from the leg-
islative history of the 1991 amendments to suggest
that they were “enacted to provide additional
remedies for victims of discrimination by larger
employers.” We avoid normative comments on the
purpose of the amendments and focus, instead, on
the text of the statute and the caselaw interpreting
it, avoiding speculation on whether Congress had
in mind any restrictive effect on the availability of
class actions. Instead, we abide by Allison, which
states that “[i]n the class action context, the
changes to Title VII are not inconsequential.”
Allison, 151 F.3d at 410 (footnote omitted).

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15
class member was even in a position to be
affected by the challenged employment
practice (e.g., whether each member applied
for an open job). Furthermore, as explained in
Segar v. Smith, 738 F.2d 1249, 1268-70 (D.C.
Cir. 1984), significant overlap of factual issues
is almost inevitable whenever disparate impact
and pattern or practice claims are joined in the
same action:
[T]he employer’s effort to rebut the pat-
tern or practice claim by articulating a
legitimate nondiscriminatory explanation
may have the effect of putting before the
court all of the elements of a traditional
disparat e impact case. By its
explanation of an observed disparity the
employer will typically pinpoint an em-
ployment practice (or practices) having
a disparate impact on a protected class.
And to rebut plaintiffs’ case the
employer will typically be required to in-
troduce evidence showing that the
employment pract ice in fact caused the
observed disparity. In this situation,
between the plaintiffs’ prima facie show-
ing of disparity and the defendant’s re-
buttal explanation of the disparity, the
essential elements of a disparate impact
case will have been placed before the
trier of fact.
Similarly, the business necessity defense to
disparate impact claims and the legitimate
nondiscriminatory reason defense to disparate
treatment claims are not “so distinct and sep-
arable” from one another that they may be
considered separately by multiple factfinders
without violating the Seventh Amendment.
Gasoline Prods. Co. v. Champlin Refining
Co., 283 U.S. 494 (1931). To rebut the plain-
tiffs’ claim that any one of the challenged em-
ployment practices resulted in a disparate im-
pact, the defendants must establish that the
“challenged practice is job-related for the posi-
tion in question and consistent with business
necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(I).
A tight weave exists between these theories,
making it difficult to conceive of a challenged
practice that is job-related and a business ne-
cessity, and yet not a l egitimate
nondiscriminatory reason for an adverse
employment action taken pursuant to that
practice.29
In Allison, we upheld the decision not to
certify a bifurcated class where the district
court would have to decide the disparate im-
pact claim before the disparate treatment
claims. The district court aptly noted that to
reach any equitable or incidental monetary re-
lief, it would have to hold a class action bench
trial before trying any aspects of the pattern or
practice claim to the jury, necessarily running
afoul of the Seventh Amendment. Allison,
151 F.3d at 425 (citing Roscello, 726 F.2d at
221). “Nor could [the equitable issues] be ad-
vanced in a subsequent class action without
being barred by res judicata and collateral
estoppel.” Id. (citations omitted).30
29 Both of these issues are questions of fact, see,
e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 524 (1993); Wards Cove Packing Co. v.
Atonio, 490 U.S. 642, 660 (1989), common to both
claims, see Allison, 151 F.3d at 424.
30 See also Lemon, 216 F.3d at 582 (noting, in
a case of divided certification, that the Seventh
Amendment requires a court to adjudicate the
damages claims first, “even if adjudication of these
claims decides the equitable claims as well”).
Plaintiffs make much of language in Lemon and
Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894 (7th
Cir. 1999), regarding the possibility of bifurcating
claims under rule 23(b)(2) and (3). They fail to
(continued...)

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16
Here, the district court attempted to avoid
this problem by determining that “[t]he
Seventh Amendment will not be violated in
this case because all claims will be tried to a
jury before any final court determination of the
equitable claims is made.” While possibly
avoiding the Seventh Amendment issue, this
course of action creates an insurmountable
superiority obstacle.
To meet the requirements of the Seventh
Amendment, one jury may have to hear all the
issues regarding the pattern and practice claim.
This same jury would have to determine the
quantum of compensatory and punitive
damages. See Hardin, 227 F.3d at 272. This
would require an enormous amount of time,
potentially empaneling a single jury for a one-
year period. This situation is not one in which
the bifurcation plan certified “discrete liability”
issues. To the contrary, it is a fact-intensive
inquiry of a medium-sized class.
The district court offered several
countervailing considerations when it stated
that, in addition to there being the benefit of
judicial economy, the plaintiffs would benefit
from a Teamsters approach, rather than being
forced to prove intentional discrimination via
McDonnell Douglas.31 The court was
convinced that, without certification, there
would be unnecessary duplication of effort,
increased litigation costs, and consumption of
judicial resources.32 The court also felt that
30(...continued)
take note of three obstacles to those cases’
application here.
First, in Jefferson the court assumed that the
requirements of rule 23 were otherwise met. Sec-
ond, Jefferson was only a pattern and practice suit,
with no disparate impact claims. The suit also was
concerned with whether a claim could be tried
under rule 23(b)(2) where compensatory and
punitive damages were available. The court agreed
(but perhaps with less intensity) with the Allison
court that the 1991 changes to the statute tilted the
balance away from rule 23(b)(2), because to be
certified under that provision, monetary damages
would have to be incidental. Jefferson, 195 F.3d at
898-99. Third, after acknowledging that the
Seventh Circuit had adopted Allison’s reasoning
regarding whether the requested monetary damages
(compensatory and punitive) were incidental to the
requested injunctive relief, the Lemon court
remanded for the district court to consider whether
the class could be certified under rule 23(b)(3).
31 Plaintiffs argue that in their individual cases,
they would not be allowed to use proof of a
“pattern and practice” of discrimination. They cite
authority from other circuits.
The issue, however, appears to be open in this
circuit. We do not resolve it but note that the
Supreme Court has recognized the critical
distinction between pattern or practice claims and
individual discrimination claims as well, albeit in a
different context:
The crucial difference between an
individual’s claim of discrimination and a
class action alleging a general pattern or
practice of discrimination is manifest. The
inquiry regarding an individual’s claim is
the reason for a particular employment
decision, while at the liability stage of a pat-
tern-or-practice trial the focus often will not
be on individual hiring decisions, but on a
pattern of discriminatory decision-making.
Cooper, 467 U.S. at 876 (quotation marks omitted)
(holding that a successful individual claim cannot,
on its own, support a pattern or practice claim).
32 Although the court did not use the precise
phrase “judicial cr isis,” even if it were worried
(continued...)

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17
timid, though wronged, plaintiffs who might
not sue alone would have their claims brought
should their be a class option. The court twice
remarks that subclasses may be employed to
resolve manageability problems. Such a re-
mark seems to underestimate the logistical de-
mands created by the right to jury trial coupled
with the individual inquiries. To repair the
Seventh Amendment problem, the court
created a superiority problem.33
A second superiority obstacle flows from
our predominance inquiry. The predominance
of individual-specific issues relating to the
plaintiffs’ claims for compensatory and
punitive damages in turn detracts from the
superiority of the class action device in
resolving these claims.34 These manageability
problems are exacerbated by the facts of this
case.35
Finally, the “most compelling rationale for
finding superiority in a class actionSSthe
existence of a negative value suitSSis missing
in this case. See Castano, 84 F.3d at 748.
The relatively substantial value of these claims
and the availability of attorneys’ fees eliminate
financial barriers that might deter individuals
from pursuing claims. See id. Although a
negative value suit is not a prerequisite to class
certification, its absence is a significant
detraction from the superiority of the class
action device. Based on these several
limitations, the district court abused its
discretion when it found the class action
format to be superior.
En toto, the plaintiffs attempt to avoid
decertification by arguing that the common,
umbrella issue regarding the existence of plant-
wide, racially-discriminatory practices or
policies at the Star locations justifies rule
23(b)(3) class certification. This argument,
however, fails to appreciate the overwhelming
number of individual-specific issues, as to both
the theories of recovery and the damages
sought. Moreover, it fails to provide a basis
from which to distinguish Allison. The district
court applied an incorrect legal standard in
granting rule 23(b)(3) certification.
G.
Defendants claim that Castano requires that
the district court detail a litigation plan. This
is an overstatement. In Castano, we criticized
the district court for certifying a class in the
absence of any knowledge of how an addic-
tion-as-injury case actually would be tried.
Castano, 84 F.3d at 745. Castano did not
establish a general rule; rather, it disallowed
certification where the district court had
confronted a claim involving an enormously
complicated (and immature) mass tort with no
track record of trials from which the district
32(...continued)
about a crisis the court may not make a superiority
determination based on the speculation that 200
independent cases will be pursued. Castano, 84
F.3d 734 (5th Cir. 1996).
33 This issue may not necessarily arise in all title
VII cases, but it will likely occur where, as here,
plaintiffs allege multiple theories, either party
demands a jury trial, and plaintiffs seek both
compensatory and punitive damages.
34 See Allison, 151 F.3d at 420 (explaining that
the greater the number of individual issues there
are, the less likely superiority can be established).
35 For instance, Texaco claims that the job-
posting policy actually changed during the class
period. This means that groups of plaintiffs po-
tentially will have suffered harm from different
policies, reducing the commonality element for the
liability issues related to the job-posting policy
claim.

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18
court could draw the information necessary to
make the predominance and superiority
analysis required by rule 23. See id. at 747.
Castano merely requires district courts to ap-
preciate the legal theories applicable in a par-
ticular case, not to recite standard
management strategies for common suits.
This case is both different from and similar
to Castano. Its difference lies in the fact that
employment discrimination cases are not new-
fangled. Its similarity lies in the fact that the
district court might have been able to describe
a management plan that would resolve the su-
periority challenges presented in this case. It
did not do so, however. This omission is a
lost opportunity, not a defect.
H.
Rule 23(f) states:
A court of appeals may in its discretion
permit an appeal from an order of a dis-
trict court granting or denying class ac-
tion certification under this rule if
application is made to it within ten days
after entry of the order. An appeal does
not stay proceedings in the district court
unless the district judge or the court of
appeals so orders.
The plaintiffs argue that Texaco’s challenge to
the district court’s equitable tolling of the
statute of limitations is an impermissible in-
terlocutory appeal.
Rule 23(f) is narrowly drafted and is not
intended to serve as an end-run around the
final judgment rule. “[U]nder Rule 23(f), a
party may appeal only the issue of class
certification; no other issues may be raised.”
Bertulli v. Indep. Ass’n of Cont’l Pilots, 242
F.3d 290 (5th Cir. 2001). “[A]n order is final
only when it ‘ends the litigation on the merits
and leaves nothing for the court to do but
execute the judgment.’” United States v.
Garner, 749 F.2d 281, 285 (5th Cir. 1985)
(quoting Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 373 (1981)). “The
purpose behind [the final judgment rule] is to
avoid piecemeal appeals, which in turn
conserves ‘judicial energy’ and may help
eliminate delay.” Sherri A.D. v. Kirby, 975
F.2d 193, 201 (5th Cir. 1992) (citation
omitted).
One of the exceptions to the final judgment
rule is the collateral order doctrine, announced
in Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949). “The collateral order
doctrine establishes that certain decisions of
the district court are final in effect although
they do not dispose of the litigation.” Davis v.
E. Baton Rouge Parish Sch. Bd., 78 F.3d 920,
925 (5th Cir. 1996). Under this doctrine,
some orders may be appealed despite the ab-
sence of final judgment if they (1) are
conclusive, (2) resolve important questions
that are separate from the merits, and (3) are
effectively unreviewable on appeal from the
final judgment in the underlying action.36 This
rule does not properly apply to the
circumstances of this case.
Without turning to the merits of the court’s
equitable tolling decision, we note that if this
issue comes up for review in a subsequent ap-
peal, it is the plaintiffs’ burden to demonstrate
36 See In re Grand Jury Subpoena, 190 F.3d
375, 381 (5th Cir. 1999) (quoting Cunningham v.
Hamilton County, 527 U.S. 198 (1999)), cert.
denied, 529 U.S. 1062 (2000).

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19
that equitable tolling was appropriate.37
Additionally, equitable tolling applies only in
“rare and exceptional circumstances.” Davis
v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
Neither a plaintiff’s unfamiliarity with the legal
process nor his lack of representation during
the applicable filing period merits equitable
tolling. Barrow v. New Orleans S.S. Ass’n,
932 F.2d 473, 478 (5th Cir. 1991).
The district court’s reference to FED. R.
CIV. P. 15(c)(3) is somewhat perplexing.38
Star employees were told by counsel in the
Roberts action that they were included; at least
one brief in the Roberts case contended that
Star employees were part of the Roberts class.
Star, however, never was made a defendant.
Nevertheless, the district court determined
that the current action against Star can be
treated, for limitations purposes, as if it is
“adding” a previously-notified defendant to the
“original pleading” in Roberts. Otherwise, the
pleading in this case serves as the “original
pleading” and cannot relate back to anything
that is time-barred. It appears, then, that the
district court allowed misled non-plaintiffs to
file and relate back a new cause of action to a
non-defendant of a previous (and at some
level, separate) action.
I.
Several of the defendants claim that the
class should not have been certified as to them
because they had neither an “employment re-
lationship” nor an employment contract with
the plaintiffs. In light of our decision that the
class is to be decertified, it is sufficient for this
appeal that at least one appellant was properly
before this court.
REVERSED and REMANDED.
ENDRECORD
37 See Hood v. Sears, Roebuck & Co., 168 F.3d
231, 232 (5th Cir. 1999) (stating that claimant
bears the burden in title VII cases).
38 Rule 15(c) states:
(c) Relation Back of Amendments. An
amendment of a pleading relates back to the
date of the original pleading when
. . .
(2) the claim or defense asserted in the
amended pleading arose out of the conduct,
transaction, or occurrence set forth or at-
tempted to be set forth in the original plead-
ing, or
(3) the amendment changes the party or the
naming of the party against whom a claim is
asserted if the foregoing provision (2) is
satisfied and, within the period provided by
Rule 4(m) for service of the summons and
complaint, the party to be brought in by
amendment (A) has received such notice of
the institution of the action that the party
will not be prejudiced in maintaining a de-
fense on the merits, and (B) knew or should
have known that, but for a mistake
concerning the identity of the proper party,
the action would have been brought against
(continued...)
38(...continued)
the party.

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REAVLEY, Circuit Judge, dissenting:
My esteemed colleagues reverse the class action certification because, they say, the district
court applied an incorrect legal standard in granting the Rule 23(b)(3) certification. I can find
no legal error in that court’s excellent memorandum opinion published at 88 F. Supp.2d 663,
and produced after full briefing and a three-day hearing, and following more than three years
of pretrial activity. I would affirm.
The fault is said to be the lack of predominance of the class-wide discriminatory pattern
claim over individual damage claims and the lack of superiority or efficiency of a class action
proceeding over individual trials. The district court explained, at pages 680-83, why the claim
of the 200 salaried black employees, a homogenous group who suffered similar damages from
an employer’s alleged policy of intentional discrimination, predominated. And the court then
explained why the class action would be far superior to individual trials in fair and efficient
adjudication, the latter path tying up the court for at least 200 weeks. One wonders where
these two circuit judges have acquired the expertise to fault this experienced trial judge on the
management of his trials. They concede that this decision is one for his discretion.
Actually, though purporting to recognize “the essentially factual basis of the certification
inquiry,” the majority pays little attention to the factual particulars of the case and does not
address any erroneous finding in concluding that an abuse of discretion has been committed.
This opinion does much more than override a district court’s judgment in a specific case. It
does indeed address an error of law, and that error is seen as the granting of certification of

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39 FED. R. CIV. P. 23 advisory committee’s note (1966 Amendment).
40 431 U.S. 324 (1977).
41 Id. at 360.
21
a class where its members seek individual damages. The Fifth Circuit rule of law, if this
opinion stands, is that there can be no class action where the class members seek individual
personal damages beyond those incidental to a claim for equitable relief. The very same
considerations and rule would apply whatever the nature of the common claim. In this
respect, Rule 23 applies to Title VII as amended in 1991 as it does to any other claim. That
changes Rule 23(b)(3) and departs from precedent as well as the advisory committee’s note
which states that “(b)(3) encompasses those cases in which a class action would achieve
economies of time, effort, and expense, and promote uniformity of decision as to persons
similarly situated, without sacrificing procedural fairness or bringing about other undesirable
results.”39
Twenty-four years ago the Supreme Court prescribed a different rule and model for the
class action where the class claims a pattern or practice of discrimination. International
Brotherhood of Teamsters v. United States.40 The trial proceeds in two or more stages. At
the first stage, the plaintiffs’ “burden is to demonstrate that unlawful discrimination has been
a regular procedure or policy followed by an employer or group of employers.”41 If the
plaintiffs seek individual relief as victims of that practice, the case moves to the next stage to
determine the consequences to the individual, where the class members are entitled to a

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42 See id. at 362; see also Lee v. Washington County Bd. of Educ., 625 F.2d 1235, 1239 (5th Cir. 1980)
(“Once purposeful discrimination against a class is proved, a presumption of an entitlement to back pay and
individual injunctive relief arises with respect to members of that class.”); Davis v. Board of Sch. Comm’rs,
600 F.2d 470, 474 (5th Cir. 1979) on rehearing, 616 F.2d 893 (1980); Turner v. Texas Instruments, Inc., 555
F.2d 1251, 1255 n.1 (5th Cir. 1977).
43 151 F.3d 402 (5th Cir. 1998).
44 As a general proposition, of course, if the elements of res judicata are met, the doctrine bars all claims
that were or could have been brought in an earlier action. See United States v. Shanbaum, 10 F.3d 305, 310
(5th Cir. 1994) (recognizing that “claim preclusion prohibits either party from raising any claim or defense in
the later action that was or could have been raised in support of or opposition to the cause of action asserted
in the prior action”). This general principle extends to class actions. See Penson v. Terminal Transport Co.,
634 F.2d 989, 994, 996 (5th Cir. 1981) (noting “the advent of the ‘hybrid’ Rule 23(b)(2) class action in which
individual monetary relief for class members, typically back pay, is sought in addition to classwide injunctive
or declaratory relief,” and recognizing that “[a] judgment or consent decree entered in a class action can bind
the absent class member even though the member had filed a claim or instituted a personal suit before the
decision in the class action”). However, Rule 23(c)(4) provides that class actions may be limited to particular
(continued...)
22
presumption that the employer had discriminated against them.42
I.
It may be that this decision, along with Allison v. Citgo Petroleum Corp.,43 will, at this
time, be treated only as a Title VII exception to Rule 23. These opinions point to the 1991
amendment as radically changing, or forbidding, class actions in Title VII cases. That is an
inexplicable position, because the amendment did nothing more than allow legal damages for
claimants; and that factor had been no bar to class actions in employment cases brought under
42 U.S.C. § 1981. But if this is Fifth Circuit law, only Title VII class actions for equitable
relief (including back pay) remain. However, if employees are barred from a Rule 23(b)(3)
class action to obtain legal damages, what is the consequence of and to a class action under
Rule 23(b)(2)? Would members of the class encounter an objection of splitting their damages
(between back pay and consequential damages) in their individual actions?44 If so, they may

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44(...continued)
issues, and courts might recognize that individual suits for compensatory damages should not be barred by a
judgment in a related class action, if the court hearing the class action concluded that compensatory damages
were not amenable to resolution in a class action, and chose to hear only claims for equitable relief. Cf. D-1
Enters., Inc. v. Commercial State Bank, 864 F.2d 36, 38 (5th Cir. 1989) (“Essential to the application of the
doctrine of res judicata is the principle that the previously unlitigated claims to be precluded could and should
have been brought in the earlier litigation.”); Bogard v. Cook, 586 F.2d 399, 408-09 (5th Cir. 1978) (holding
that class action seeking equitable relief did not bar subsequent individual suit for damages where class action
notice did not alert class members to possibility that they could seek individual damages and inclusion of
individual damage claims would have made class action unmanageable).
23
or may not choose to remain in the (b)(2) class. The notice provision of Rule 23(c)(2) does
not apply to a (b)(2) action, but surely these employees need to be informed of the problem.
Even if there is no problem for the member of a (b)(2) class obtaining equitable relief and
then pursuing legal damages in an individual action, should the employees not be informed
of the fact and limits of relief in the class action? This situation raises questions of
numerousness and commonality under Rule 23(a). If, after notice to the class members,
simultaneous individual suits for legal damages were allowed, perhaps the class action could
proceed. That legal rigmarole might please my colleagues but certainly not the trial court and
those plaintiffs forced to endure the expense and delay of individual trials.
Moreover, Congress did not intend to foreclose the benefits of class action treatment to
injured parties by the Civil Rights Act of 1991. The purposes of the Act were “first, to
provide monetary remedies for victims of intentional employment discrimination to
compensate them for resulting injuries and to provide more effective deterrence; and second,
to respond to the Supreme Court’s recent decisions by restoring federal civil rights protections

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45 H.R. Rep. No. 102-40(I), at 14 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 552.
46 42 U.S.C. § 1981a(b)(3).
47 See Betsy McKay, Coca-Cola Agrees to Settle Bias Suit for $192.5 Million, WALL ST. J., November
17, 2000, at A3.
48 See Darryl Van Duch, Following Trend, Coke Brings in Bias Monitors, NEW YORK L. J., June 14, 2001,
at 5 (discussing $176.1 million Texaco settlement, $34 million Mitsubishi settlement, and $192.5 million Coca-
Cola settlement).
24
against employment discrimination.”45
Note that the expansion of remedies in the Civil Rights Act of 1991 to include
compensatory and punitive damages only applies to employers with more than fourteen
employees.46 The Act targets larger employers, yet our court interprets it to protect large
employers from the formidable plaintiffs’ tool of Rule 23. If one doubts that the class action
is an important tool to plaintiffs seeking redress for employment discrimination, witness the
recent Coca-Cola settlement of an employee class action alleging race discrimination.47
Earlier settlements of an employee class action suit against Texaco, which the present suit
followed, and one against Mitsubishi, further attest to the value of the class action to plaintiffs
in employment discrimination suits.48 Because Congress chose to increase the remedies
available to Title VII plaintiffs, our court would put an end to the substantial settlements
available to Title VII plaintiffs though the class action device.
The result the majority reaches is all the more anomalous given the origins of the current
Rule 23. The rule was rewritten in 1966, and subpart (b)(2) “was added . . . primarily to

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49 7A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1775 (2d ed. 1986).
50 186 F.3d 620 (5th Cir. 1999), cert. denied, 528 U.S. 1159 (2000)
51 Id. at 626-27.
52 Id. at 623.
25
facilitate the bringing of class actions in the civil rights area.”49 Again, if Rule 23 in its
current form was written to accommodate civil rights suits, and if the Civil Rights Act of 1991
was enacted to provide additional remedies for victims of discrimination by larger employers,
the very employers that a class action would target, I find it strange indeed that our court
would interpret the Act to divest such victims of the class action remedy.
Today’s decision and Allison cannot be reconciled with Mullen v. Treasure Chest Casino,
LLC.50 In Mullen, we affirmed a district court order certifying, under Rule 23(b)(3), a class
consisting of 100 to 150 crew members aboard a casino ship who allegedly suffered
respiratory illnesses caused by a defective ventilation system aboard the ship. Even though
we recognized that individualized proof of causation, damages, and contributory negligence
would be necessary for each class member, we held that the predominance requirement of
23(b)(3) was met, since the common issues of seaman status, vessel status, negligence, and
seaworthiness met the predominance requirement of Rule 23(b)(3).51 We approved a class
certification order where the district court planned to try common issues in a class trial, and
individual issues of causation, damages and comparative negligence in a second phase of
trials.52
Other circuits have agreed with the district court in the pending case that equitable claims

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53 See Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 898 (7th Cir. 1999); Eubanks v. Billington, 110 F.3d
87, 96 (D.C. Cir. 1997).
54 782 F.2d 468 (5th Cir. 1986).
55 Id. at 471.
56 Cooper Indus. v. Leatherman Tool Group, Inc., 121 S. Ct. 1678, 1683 (2001).
26
can be certified under Rule 23(b)(2) and legal claims for compensatory and punitive damages
can be certified under Rule 23(b)(3).53 In my view, the district court committed no legal
errors in reaching its decision.
II.
The matter of punitive damages presents a particular respect in which the majority here,
as well as the majority in Allison, fail to follow controlling circuit precedent. In Jenkins v.
Raymark Industries., Inc.,54 this court held that punitive damages is a common question for
class action resolution. Under the Jenkins bifurcated trial plan, common issues were to be
tried by a class jury, and individual issues of causation, actual damages, and comparative fault
were to be in later trials.55 Jenkins has not been overruled by any en banc decision of this
court or any subsequent Supreme Court decision. The Supreme Court has explained that the
“imposition of punitive damages is an expression of . . . moral condemnation.”56 That
decision is better made by addressing the harm, not necessarily the precise dollar count, done
to the class.
The majority describes Jenkins as “binding circuit precedent,” but regards it as not

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57 527 U.S. 526 (1999).
58 Kolstad, 527 U.S. at 545 (internal quotation marks omitted).
27
controlling because of “language” in Kolstad v. American Dental Ass’n,57 and “the statutory
requirement that the defendants’ intent be directed against an aggrieved individual.” Again,
I am at a loss to find anything about Title VII and the amendments of 1991 that make Title
VII particularly ill-suited to class action treatment. The “statutory requirement” on which the
majority relies appears to be 42 U.S.C. § 1981a(b)(1), which provides that punitive damages
may be recovered if the defendant engaged in discriminatory conduct “with malice or with
reckless indifference to the federally protected rights of an aggrieved individual.” This
provision simply sets out the mens rea requirement for the recovery of punitive damages. To
read this language to prohibit a single, class-wide award of punitive damages is wholly
unwarranted under the wording of the statute itself and, as discussed above, a bizarre
consequence for a statute intended to expand the remedies and protections available to
employees under the civil rights laws.
As for Kolstad, the Supreme Court did not there say anything to reject the notion that a
single punitive damage award can, in appropriate cases, be made by a jury sitting in a class
action dispute. Kolstad did not address this question. Kolstad holds that an employer can be
assessed punitive damages for the acts of a managerial agent acting in the scope of his
employment, but not where the discriminatory employment decisions of managerial agents
“are contrary to the employer’s good-faith efforts to comply with Title VII.”58 When faced
with evidence of discriminatory acts of its managerial agents, an employer’s defense that it

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59 Id. at 546.
28
engaged in a good-faith effort to comply with Title VII is particularly well-suited to class or
subclass determination. The Court describes this defense as “whether the [defendant] had
been making good faith efforts to enforce an antidiscrimination policy.”59 Whether an
employer has made a good faith effort to enforce an antidiscrimination “policy,” almost by
definition, is a question common to all class members’ cases where class action requirements
are otherwise present, and only heightens the commonality of the claims of class members.
As discussed above, this court has recognized that personal injury cases are sometimes
suitable for class action treatment. The availability of compensatory and punitive damages
to Title VII plaintiffs, by virtue of the Civil Rights Act of 1991, make Title VII cases all the
more similar to personal injury cases, and I fail to see any meaningful basis for the court to
create a “Title VII exception” to Rule 23. If anything, the congressional purpose of
expanding the protections and remedies available to Title VII plaintiffs which motivated the
passage of the Civil Rights Act of 1991 weighs against the recognition of such an exception.
And the common issues of federal law presented in Title VII cases make Title VII a strange
body of law to exempt from the class action device. Unlike mass tort cases whose class
members may come from different states, Title VII cases are not plagued by the complexities
of applying the laws of different states to different class members, a central failing of the class

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60 Castano v. American Tobacco Co., 84 F.3d 734, 741-44, 747 (5th Cir. 1996).
29
certification in the tobacco class action we decertified.60
I would follow precedent, adhere to the abuse of discretion standard, and affirm.

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