Marc E. Bacon v. Honda of America Manufacturing, Inc.

*The Honorable Nancy G. Edmunds, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0155P (6th Cir.)
File Name: 04a0155p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARC E. BACON, et al.,
Plaintiffs-Appellants,
v.
HONDA OF AMERICA
MANUFACTURING, INC.,
Defendant-Appellee.
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No. 01-3520
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 99-00803—James L. Graham, Chief District Judge.
Argued: December 4, 2002
Decided and Filed: May 27, 2004
Before: BOGGS, Chief Judge; GUY, Circuit Judge; and
EDMUNDS, District Judge.*
2 Bacon, et al. v. Honda of America No. 01-3520
_________________
COUNSEL
ARGUED: Robert A. Steinberg, WAITE, SCHNEIDER,
BAYLESS & CHESLEY, Cincinnati, Ohio, for Appellants.
Mary Ellen Fairfield, VORYS, SATER, SEYMOUR &
PEASE, Columbus, Ohio, for Appellee. ON BRIEF: Robert
A. Steinberg, WAITE, SCHNEIDER, BAYLESS &
CHESLEY, Cincinnati, Ohio, Robert F. Laufman,
LAUFMAN & GERHARDSTEIN, Cincinnati, Ohio, John S.
Marshall, LAW OFFICES OF JOHN S. MARSHALL,
Columbus, Ohio, Michael J. O’Hara, O’HARA, RUBERG,
TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for
Appellants. Mary Ellen Fairfield, James A. Wilson, VORYS,
SATER, SEYMOUR & PEASE, Columbus, Ohio, for
Appellee. Richard T. Seymour, LIEFF, CABRASER,
HEIMANN & BERNSTEIN, Washington, D.C., for Amici
Curiae.
_________________
OPINION
_________________
BOGGS, Chief Judge. Plaintiffs, Marc Bacon and Terry
Harden, brought this employment discrimination action
against defendant Honda of America Manufacturing, Inc.,
seeking to represent a class of all current and former African-
American employees at Honda’s four manufacturing plants
located in central Ohio. Plaintiffs appeal, asking for review
of both the denial of class certification and the subsequent
grant of summary judgment to Honda on all of plaintiffs’
individual claims. Bacon and Harden allege that the company
uses discriminatory procedures for promoting employees in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., 42 U.S.C. § 1981, Ohio Revised Code
§ 4112.99, and Ohio common law. The district court
correctly determined that Bacon and Harden failed to meet the

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No. 01-3520 Bacon, et al. v. Honda of America 3
1Hourly wage earners entitled to overtime
prerequisites for class certification and that they could not
show that they were denied promotions for which they were
eligible. For the reasons elaborated upon below, we affirm
the decision of the district court in its entirety.
I
On August 19, 1999, Bacon and Harden (plaintiffs), who
were employed as “nonexempt” production associates (PAs)
for Honda, filed a class action complaint, alleging that Honda
engaged in a pattern or practice of discrimination against
African-American employees by denying them promotions.
Relying on both disparate impact and disparate treatment
theories to prove liability, plaintiffs sought declaratory and
injunctive relief, promotion to desired positions, back pay,
and compensatory and punitive damages.
Honda has four manufacturing plants in central Ohio:
Marysville Auto Plant (MAP); Marysville Motorcycle Plant
(MMP); Anna Engine Plant (AEP); and East Liberty Plant
(ELP). These four facilities have various purposes that range
from manufacture of Accord and Acura automobiles, to
production of Honda motorcycles, to building of engines and
other components. In addition, Honda plants have quality
departments, which are responsible for inspecting products
coming off the line; purchasing departments; and various
administrative offices, such as Human Resources. In all,
there are thirty-nine departments at Honda.
Sixty percent of Honda's 12,700 employees are production
associates, who are nonexempt1employees supervised by
team leaders, the first supervisory level. Production staff
share this secondary level of authority with team leaders. The
next level of management is production coordinator, an
4 Bacon, et al. v. Honda of America No. 01-3520
2Salaried position with no o vertime rights
3Until 199 2, pro duction asso ciates in MA P Assembly could also seek
direct promotion to production staff, who are responsible for special
projects and equipm ent-related tasks. After 1992, they had to become
team leaders first.
exempt2 position, who reports to an assistant manager or
department manager, who in turn reports to a senior manager
or plant manager.
In general, production associates may seek promotion to
team leader,3 but only in the department in which they are
currently working. Furthermore, an employee becomes
eligible for promotion only after meeting minimum
requirements for time working both in the department and for
Honda in general. In addition, he or she must have a strong
attendance record, typically ninety-eight percent or above,
and a disciplinary record that shows no counseling by a
manager within the past twelve months. Past performance
evaluations are also taken into account and some departments
require the production associate to pass a trade test and/or to
have completed a certain number of special projects. A team
leader must be willing to work any shift or to travel. See
Bacon v. Honda of Am. Mfg., 205 F.R.D. 466, 471-72 (S.D.
Ohio 2001) (giving detailed description of Honda’s
production facilities and corporate structure).
The motion for class certification was filed in September
2000, and an evidentiary hearing was held in December 2000.
On March 7, 2001, the district court denied the motion for
class certification, finding that: (1) plaintiffs did not satisfy
the requirements of commonality, typicality, and adequacy of
representation with respect to the disparate treatment claims
under Fed. R. Civ. P. 23(a); (2) the predominance of
monetary relief precluded certification of injunctive class
under Rule 23(b)(2); (3) requirements for class certification
under Rule 23(b)(3) were not met; and (4) Seventh

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No. 01-3520 Bacon, et al. v. Honda of America 5
Amendment concerns made bifurcation and certification of
certain issues improper, or at least prevented that process
from being the most fair and efficient way to litigate the
claims. Id. at 490.
Honda moved for summary judgment on plaintiffs’
individual claims. The plaintiffs filed a Rule 56(f) motion in
response, requesting a revised discovery schedule and a new
trial date. The district court denied the motion, although it
allowed one additional deposition. On April 30, 2001, the
district court granted summary judgment to Honda on the
individual claims of Bacon and Harden. That order throughly
addressed each of the plaintiffs’ claims under both the
disparate impact and disparate treatment theories. This appeal
followed.
II
Class Action Certification
This court reviews denial of class action certification for
abuse of discretion. Alkire v. Irving, 330 F.3d 802, 810 (6th
Cir. 2003). In order for one or more litigants to represent all
parties in a class, four prerequisites must be met: “(1) the
class [must be] so numerous that joinder of all members is
impracticable, (2) there [must be] questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties [must be] typical of the claims or
defenses of the class, and (4) the representative parties [must]
fairly and adequately protect the interests of the class.” Fed.
R. Civ. P. 23(a). In this case the district court conducted the
mandatory “rigorous analysis [to confirm] that the
prerequisites of Rule 23(a) have been satisfied.” Gen. Tel.
Co. v. Falcon, 457 U.S. 147, 161 (1982). We agree with its
conclusion that the disparate treatment claim fails the second,
and the disparate impact claim the third, part of the Rule 23(a)
test.
6 Bacon, et al. v. Honda of America No. 01-3520
Numerosity
There is no automatic cut-off point at which the number of
plaintiffs makes joinder impractical, thereby making a class-
action suit the only viable alternative. In re Am. Med. Sys.
Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). However, sheer
number of potential litigants in a class, especially if it is more
than several hundred, can be the only factor needed to satisfy
Rule 23(a)(1). 1 Herbert B. Newberg & Alba Conte, Newberg
on Class Actions, § 3:5, at 243-45 (4th ed. 2002). The facts
of the case guide a court’s determination that the class is
sufficiently large to make joinder impractical. Gen. Tel. Co.
v. EEOC, 446 U.S. 318, 330 (1980). In this case, Bacon
proposes a class of some 800 current and former African-
American Honda employees, a number well beyond the point
that joinder would be feasible. The requirement of Rule
23(a)(1) is met.
Commonality
In order to show disparate treatment, a potential class
representative must show that the employer intentionally
discriminated against a protected class and that there are
questions of law or fact common to the class. Falcon, 457
U.S. at 162 (Burger, C. J., concurring in part). The Supreme
Court has noted that class certification is “appropriate . . .
[when] [i]t is unlikely that differences in the factual
background of each claim will affect the outcome of the legal
issue.” Califano v. Yamasaki 442 U.S. 682, 701 (1979)
(upholding class certification for litigation of an issue of
interest to all social security beneficiaries). Variations in the
circumstances of class members are acceptable, as long as
they have at least one issue in common. In re Am. Med., 75
F.3d at 1080 (citations omitted) (reversing a grant of
certification because the putative plaintiffs had used many
different models of a certain medical device, which had

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No. 01-3520 Bacon, et al. v. Honda of America 7
4The district co urt analyzed comm onality separately for the disparate
treatment and disparate impact claims. The court generously concluded
that the clear instances in which Honda’s facially neutral policies would
not affect the putative class in a uniform manner could be ignored because
they were “differences [that] are not critical to a finding of commonality
on the disparate impact claim .” Bacon , 205 F.R.D . at 478. For the
purposes of clarity in this opinion, we assume, without deciding, that the
district co urt was correct.
produced a range of side effects, so that the malfunction could
not be attributed to a common cause).4
Bacon and Harden were responsible for satisfying the
court’s concerns related to whether:
(i) the nature of the alleged unlawful employment
practice genuinely had a class-wide impact;
(ii) employment practices affecting the class were
uniform or diverse, given factors such as size of the work
force, number of plants involved; range of employment
conditions, occupations, and work activities; geographic
dispersion of the employees and extent of intra-company
employee transfers;
(iii) members' treatment would be likely to involve
common questions;
(iv) relevant employment and personnel policies and
practices were centralized and uniform; and
(v) similar conditions prevailed throughout the time
period covered by the allegations.
Stastny v. S. Bell Tel. and Tel. Co., 628 F.2d 267, 277 (4th
Cir. 1980) (citing Harriss v. Pan Am. World Airways, Inc., 74
F.R.D. 24, 41 (N.D. Cal. 1977)); Newberg, § 24:21, at 133-34
(requiring a specific showing of underlying facts that might
raise an inference of a common pattern or practice through
allegations of specific incidents of discrimination, supporting
affidavits, or evidence at the class certification hearing).
8 Bacon, et al. v. Honda of America No. 01-3520
Bacon and Harden are attempting to certify a class of all
African-American workers at Honda’s four Ohio facilities
over the past twenty years who were involved in the
company’s promotion system. They assert that “company-
wide subjective practices” and “similar promotion criteria”
across departments satisfy the requirements of Rule 23(a)(2).
Conclusory allegations and general assertions of
discrimination are not sufficient to establish commonality.
Falcon, 457 U.S. at 157. Plaintiffs failed to show how hourly
wage earners and salaried employees would have the same
interests, especially in terms of promotion procedures in
which at least some of the nonexempt employees would be
competing to join the ranks of exempt management. They
also did not demonstrate how differing promotion criteria for
jobs as diverse as welding, accounting, and engine-building
could discriminate against each African-American employee.
Nor did they elaborate on why this court should disregard the
objective criteria for promotion and find that all African-
American employees were harmed by managers “who made
subjective decisions.”
We hold that plaintiffs have failed to produce sufficient
evidence to convince us that the district court abused its
discretion in finding that the factors enumerated above had
not been met. We view with skepticism a class that
encompasses 1) both workers and supervisors; 2) production-
line workers and those in administrative positions; 3) workers
in four plants with different production capabilities; and
4) workers and supervisors spread over more than 30
departments. Because class members have such different
jobs, we find it difficult to envisage a common policy
regarding promotion that would affect them all in the same
manner.
The only way Bacon and Harden can place such a diverse
group under one umbrella is to demonstrate that Honda
operated in a discriminatory fashion against all the workers in
the class “through an entirely subjective decision-making
process.” Falcon, 457 U.S. at 159 n.15. If they can make this

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No. 01-3520 Bacon, et al. v. Honda of America 9
5See discussion below in Section III, p. 21, rejecting the assertion
that Honda subjectively applied these criteria.
showing, then they can establish commonality and typicality.
However, Honda’s decision-making is not completely
subjective: it also uses objective criteria for promotion, such
as time in service, attendance records, and test scores.5 Bacon
and Harden rebut this by citing another Supreme Court case
that held that mixed systems for determining promotions
would “generally have to be subjective in nature.” Watson v.
Ft. Worth Bank & Trust, 487 U.S. 977, 989-90 (1988).
We do not accept the argument that Honda’s decision-
making process is entirely subjective because, as a matter of
fact, it is not. Plaintiffs cannot avoid the heavy lifting of
showing eligibility for class certification by conflating two
exceptions to separate rules for adjudicating discrimination
cases. An entirely subjective decision-making process may,
theoretically, allow different kinds of employees to be in the
same class – a question of class membership (Falcon). For
the entirely separate purpose of establishing a prima facie
case of disparate impact, mixed objective and subjective
standards may be considered to be purely subjective
(Watson). See 42 U.S.C. § 2000e-2(k)(1)(B)(i).
The two exceptions are not interchangeable, however.
Plaintiffs are trying to demonstrate eligibility for class
membership, which is governed by the “entirely subjective”
requirement in Falcon. They must prove that the potential
members of the class actually have something in common:
they are subject to random decision-making. As an entirely
separate matter, the Court has been cognizant of the
difficulties inherent in proving discrimination and therefore
set a relatively low bar for establishing a prima facie case.
See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981) (“The burden of establishing a prima facie
case of disparate treatment is not onerous.”). Therefore,
counting mixed criteria as subjective furthers the goal of
10 Bacon, et al. v. Honda of America No. 01-3520
making sure that valid claims get to a jury. The constructive
subjectivity in Watson cannot substitute for the actual and
complete subjectivity required for the exception in Falcon
because the cases deal with two unrelated legal issues: class
membership and the elements of a prima facie case. We hold
that the Falcon requirement is not met because the plaintiffs
have not shown that the wide range of class members are all
subject to the same, exclusively-subjective, decision-making
process.
Bacon and Harden rely on Senter v. General Motors Corp.,
but the class in that case was more circumscribed: the class
consisted of “all black employees who, during a period
between July 2, 1965 and September 1, 1971, were denied an
opportunity for promotion to [salaried] supervisory positions
[from hourly positions] although possessing seniority and
qualifications equivalent to white employees who were so
promoted.” Senter v. Gen. Motors Corp., 532 F.2d 511, 523
(6th Cir. 1976). In contrast, plaintiffs here want to certify a
class of employees who worked at Honda over a period of
twenty years in both hourly and salaried positions with
different qualifications and varying levels of seniority. Senter
focused on one transitional step in the career path of the
plaintiffs over a six-year period: the jump from hourly wage
earner to salaried employee. In contrast, plaintiffs are
challenging Honda’s practices for all promotions, regardless
of department or starting point in the company hierarchy, and
regardless of comparability in objective qualifications.
Therefore, Senter can be distinguished from the facts of this
case and does not compel us to find that the commonality
factor has been met.
Typicality
Assuming, arguendo, that Honda’s promotion procedures
had a disparate impact on African-American employees, we
hold that neither Bacon nor Harden is a typical member of the
class. The typicality requirement is designed “to limit the
class claims to those fairly encompassed by the named

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No. 01-3520 Bacon, et al. v. Honda of America 11
plaintiff's claims.” Gen. Tel. Co., 446 U.S. at 330. In order
to meet the typicality requirement, the plaintiffs must show
that their “injury arises from or is directly related to a wrong
to a class, and that wrong includes the wrong to the plaintiff.”
In re Am. Med., 75 F.3d at 1082 (quoting 1 Newberg, supra,
at § 3-76). However, their personal choices, independent of
any practices by Honda that have a disparate impact, have
rendered them ineligible for promotion for the majority of
their time at the company. Therefore, Honda can assert
legitimate non-discriminatory reasons, or business reasons,
for not promoting them, which would not be available as an
explanation for discrimination against other African-
American employees.
Honda’s career track on the production line starts with
production associates. The next rung up the ladder is team
leader or production staff. From July 1994 to July 1999, 92%
of promoted PAs were elevated to team leader or production
staff in their home departments. The remaining 8% were
promoted to a different type of work, such as quality control
or administration. In 1992, MAP Assembly, where both
plaintiffs worked for the majority of their tenure, changed its
policy to no longer allow promotion directly from production
associate to production staff; a line worker would have either
to request promotion to team leader, transfer out of the
department with the attendant one-year wait for eligibility, or
seek promotion to administration or the quality department.
The position of team leader is not inherently desirable: it
requires availability for overtime and imposes added
responsibility for a marginal increase in pay. Therefore,
advancement through transfer to a parallel track is desirable,
but, like any career shift, involves overcoming an experience
deficit in comparison to other candidates. Both named
plaintiffs in this case chose to avoid seeking advancement
through becoming a team leader and concentrated on
acquiring positions in the quality department or
administration. Because this strategy circumscribed their
12 Bacon, et al. v. Honda of America No. 01-3520
chances for advancement, we hold that they are not typical of
African-American workers at Honda.
Bacon started working at Honda in 1988 and was first
eligible for promotion in April 1990. He was eligible for 13
months until May 1991, when he transferred to a new
department (MAP assembly). In 1993, when there were three
promotions to team leader, Bacon was not eligible for
consideration because he did not have the 100% attendance
required for the position and had not completed an overtime
special project (New Honda (NH) Circle) within the last 24
months, another prerequisite. From 1994 - 96, he did not
express interest in a production team leader position and so
was not eligible for consideration, and he did not take the
required test in 1996. He transferred to a new department
(MMP Assembly) in 1997, rendering him ineligible for
promotion until February 1998. In April 1998, the promotion
process was changed: to be considered for elevation to team
leader, an employee had to submit a pool interest form, which
Bacon never did.
In order to be considered for a position in a non-production
department, an employee had to fill out a career interest
application (CIA), which was valid for one year. Bacon filled
out CIAs in 1991 (during most of which time he was not
eligible for any promotion), 1994, 1996, 1997, and 2000.
Selection for interviews under this program was done by
blind assessment of the application form. Bacon was selected
for interviews on several occasions, including three times in
the purchasing department, but not selected because other
candidates had stronger educational backgrounds and job-
related experience. Four African-Americans and twelve
Caucasians were promoted through this process from 1993 -
2000.
Harden was hired in 1988 and became eligible for
promotion in March 1990. He expressed interest in
promotion to team leader or production staff, which remained
a possibility for 15 months, until May 1991, when he

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No. 01-3520 Bacon, et al. v. Honda of America 13
requested, and was authorized, to transfer to another
department (MAP assembly), making him ineligible for
promotion for the next 12 months. In 1993, Harden indicated
a desire for promotion to production staff, which was no
longer an option due to the change in policy in MAP
Assembly, or to the quality department. He was not
considered for promotion to team leader because he did not
indicate interest; furthermore, he also did not meet the
qualification of 100% attendance or participation in overtime
special projects required for consideration.
Harden rejected the most obvious path to advancement and
was not eligible to be considered for team leader until April
1996, when he indicated that he wanted to take the
qualification test. He received a score of 63 on that exam,
some ten points below the cutoff, and therefore was not
eligible for a team leader position; he did not take the exam
in 1997. In April 1998, the promotion process was changed
and to be considered for elevation to team leader, an
employee had to submit a pool interest form, which Harden
did not do. In 1999, he did not see the notification, posted on
September 21, of the October 8 deadline for submitting the
requisite interest form to take the qualification test. He heard
about the possibility from his wife around October 2, but was
out on bereavement leave starting October 3 and did not
return until October 21, when Honda determined that it was
too late to sign up for the October 25 test. Harden joined this
lawsuit on February 18, 2000.
Therefore, largely as a result of his personal promotion
preference, Harden was eligible for promotion to team leader
for only 15 months out of the ten years at issue in this case.
He expressed interest in, and pursued, other avenues of
advancement, most notably inclusion in the pool for
employment in the quality department. Because he was
pursuing a different career track, he was unable to compete
with other candidates who had directly relevant experience.
Harden was so often ineligible for promotion, particularly for
the position of team leader that he was most likely to get, he
14 Bacon, et al. v. Honda of America No. 01-3520
cannot reasonably represent the interests of those who may
have consistently applied for promotion and been turned
down for discriminatory reasons.
In sum, to qualify for class certification, all the parts of
Rule 23(a) must be met. On their class certification claim
based on disparate treatment, plaintiffs cannot demonstrate a
common issue of fact or law applicable to every member of
the proposed class. On their disparate impact claim, plaintiffs
cannot show that the facially neutral policies regarding
promotion affected them in a typical way because they opted
out of the most common and reliable path of advancement.
The plaintiffs cannot meet the requirements of Rule 23(a) (2)
and (3) and the district court correctly denied class
certification.
We therefore do not consider the Rule 23(a)(4) issue of
whether the plaintiffs’ attorneys could fairly represent the
class due to their involvement in parallel litigation against
Honda. In light of the posture of this case, it would be
inappropriate for us to address the split between the Second
and Fifth Circuits concerning whether monetary damages can
be sought in a Rule 23(b)(2) class action suit, and we do not
decide any aspect of that question in this opinion. Compare
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.
1998) with Robinson v. Metro N. Commuter R.R., 267 F.3d
147 (2d Cir. 2001). We therefore turn to the plaintiffs’
individual claims of discrimination under theories of disparate
treatment and disparate impact.
III
Individual Claims
The district court granted summary judgment to Honda on
Bacon’s and Harden’s claims of individual disparate
treatment and disparate impact. We review a grant of
summary judgment de novo. Pinney Dock & Transp. Corp.
v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir. 1988).

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No. 01-3520 Bacon, et al. v. Honda of America 15
Summary judgment is appropriate where “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
Disparate Treatment
The plaintiffs’ claim of disparate treatment is analyzed
under the well-known rubic established in McDonnell
Douglas. McDonnell Douglas v. Green, 411 U.S. 792, 802
(1973). The same basic pattern is used in a claim concerning
racial discrimination in promotion; specifically, each plaintiff
must show that: (1) he is a member of a protected class; (2) he
applied for and was qualified for a promotion, (3) he was
considered for and denied the promotion; and (4) other
employees of similar qualifications who were not members of
the protected class received promotions at the time the
plaintiff's request for promotion was denied. Nguyen v. City
of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000). The
district court provided a detailed analysis demonstrating how
failure to establish a prima facie case warrants summary
judgment on the individual claims and we need not belabor
the issue, other than to affirm a few critical points of law.
Pattern-or-Practice Method of Proof
The district court found, based on the weight of authority
outside the Sixth Circuit, that the pattern-or-practice method
of proving discrimination, in which the plaintiff shows that
the company had a policy of discriminating against a
protected class, is not available to individual plaintiffs. See,
e.g., Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761
(4th Cir. 1998), vacated on other grounds, 527 U.S. 1031
(1999); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d
Cir. 1998). All interpret the Supreme Court’s discussion of
the pattern-or-practice method of proof as being limited to
class actions or suits by the government. Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 359-60 (1977).
Although plaintiffs argue on appeal that the district court
16 Bacon, et al. v. Honda of America No. 01-3520
improperly analyzed their pattern-or-practice basis for class
certification, they have not specifically challenged the court’s
finding that the pattern-or-practice method of proof is not
available to them on their individual claims.
We therefore hold that the pattern-or-practice method of
proving discrimination is not available to individual plaintiffs.
We subscribe to the rationale that a pattern-or-practice claim
is focused on establishing a policy of discrimination; because
it does not address individual hiring decisions, it is
inappropriate as a vehicle for proving discrimination in an
individual case. Lowery, 158 F.3d at 761 (observing that
“[t]he Supreme Court has never applied the Teamsters
method of proof in a private, non-class suit charging
employment discrimination. Rather, the Court has noted that
there is a ‘manifest’ and ‘crucial’ difference between an
individual’s claim of discrimination and a class action
alleging a general pattern or practice of discrimination.”)
(citing Cooper v. Fed. Reserve Bank of Richmond, 467 U.S.
867, 876 (1984)). This reading has also been adopted by at
least one district court in this circuit. Herendeen v. Mich.
State Police. 39 F. Supp. 2d 899, 905 (W.D. Mich.1999).
However, pattern-or-practice evidence may be relevant to
proving an otherwise-viable individual claim for disparate
treatment under the McDonnell Douglas framework.
Exemption from Application Requirement
As demonstrated above, Bacon and Harden were not
eligible for promotion for a sizable percentage of their tenure
at Honda, and/or did not apply to be in the available
promotion pools, as required in part two of the test for a
prima facie case. They now argue that they should be exempt
from such a requirement because, given the discriminatory
nature of promotions at Honda, such an application would
have been futile. Although it is true that failure to apply for
a promotion may be excused, the circumstances must reveal
“overwhelming evidence of pervasive discrimination in all
aspects of [the employer’s] internal employment practices,

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No. 01-3520 Bacon, et al. v. Honda of America 17
and [that] . . . any application would have been futile and
perhaps foolhardy.” Harless v. Duck,, 619 F.2d 611, 617-18
(6th Cir. 1980) (quoted in Kreuzer v. Brown, 128 F.3d 359,
364 n.2 (6th Cir. 1997)). Plaintiffs cannot come close to
meeting this standard. Not only did other African-Americans
receive some of the promotions for which the plaintiffs
applied, but Bacon’s supervisor expressed willingness to help
him in his application to the purchasing department. Nor was
the application process arduous; in most cases, all the
plaintiffs had to do was fill out a form expressing interest. It
is not unreasonable to expect plaintiffs to make such a
minimal effort to preserve their rights.
Plaintiffs also rely on the holding in Mauro v. Southern
New England Telecomms., Inc., 208 F.3d 384, 386-87 (2d Cir.
2000), that the application requirement did not apply when
the plaintiff expressed interest in promotion to a class of
positions but was unaware of specific positions because they
were not posted. See also Dews v. A.B. Dick Co., 231 F.3d
1016, 1022 (6th Cir. 2000) (recognizing exception to
application requirement when employer does not notify
employees of available promotion and does not provide
formal mechanism for expressing interest in promotion).
Although each production department only posted its
promotion opportunities internally, the requirement of one-
year’s tenure in the department meant that all those eligible to
respond had access to the announcement. Although it is true
that submitting an application to the quality department and
non-production pools was not tantamount to applying for a
specific job, managers conducted a blind review of all eligible
candidates, not knowing name, background, or racial profile.
Those who were deemed qualified were then put in a pool and
interviewed as vacancies occurred. Therefore, we see no
basis for waiving the general requirement that a plaintiff must
have applied for a position in order to assert that he was
denied the position because of discrimination.
18 Bacon, et al. v. Honda of America No. 01-3520
Disparate Impact
Disparate impact analysis is used when an employer’s
facially neutral policy adversely affects a protected class.
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). To
show disparate impact, it is not necessary to show an intent to
discriminate, but the plaintiff must demonstrate a connection
between the challenged practice and the resulting disparities
between protected and non-protected classes. Wards Cove
Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (clarifying
that the “plaintiff must demonstrate that it is the application
of a specific or particular employment practice that has
created the disparate impact under attack”). Generally
disparate impact analysis is used in a class action, but it may
also form the basis of an individual claim. See Gantt v.
Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir.
1998) (ADEA context). The district court determined that
basic requirements of standing mean that an individual
plaintiff must show that the facially neutral policy resulted in
discrimination that resulted in personal injury. Coe v. Yellow
Freight System, Inc., 646 F.2d 444, 451 (10th Cir. 1981). See
also Robinson v. Polaroid Corp., 732 F.2d 1010, 1016-17 (1st
Cir. 1984); Carpenter v. Bd. of Regents of Univ. of Wis. Sys.,
728 F.2d 911, 915 (7th Cir. 1984). Plaintiffs have not
challenged this conclusion.
In Warth v. Seldin, the Supreme Court explained the basic
principles of standing, which mandate that a plaintiff have a
“personal stake in the outcome of the controversy” and that
the plaintiff must have suffered some real or threatened
injury. Warth v. Seldin, 422 U.S. 490, 498 (1975) (quotation
marks and citation omitted). From these basic principles, it
is natural for us to hold that an individual plaintiff arguing a
disparate impact theory must show that the challenged policy
directly disadvantaged him in some fashion. See Bowdish v.
Cont’l Accessories, Inc., No. 91-1548, 1992 WL 133022, at
*5 (6th Cir. June 12, 1992) (noting an “individual plaintiff in
an employment discrimination case must present some
evidence that demonstrates that his or her individual

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No. 01-3520 Bacon, et al. v. Honda of America 19
discharge was the result of discrimination”) (unpublished
opinion) (citing Gilty v. Village of Oak Park, 919 F.2d 1247,
1253 n.8 (7th Cir.1990)).
Bacon and Harden contend that Honda’s requirements for
attendance, time in department, testing, and overtime
activities in determining eligibility for promotion
disproportionately disadvantage African-Americans.
Whatever the validity of those disparate impact claims, and
the statistical evidence is complex and heavily disputed, we
agree with the district court that the plaintiffs cannot show
that the policies injured them personally, and therefore their
claim must fail.
Attendance
Plaintiffs’ expert found that more African-Americans than
other employees were noted as being late or absent. Plaintiffs
claim discrimination in “excusing” the absences, resulting in
more African-Americans being ineligible for promotion due
to Honda’s stringent attendance requirements. Plaintiffs
overlook the fact that the basic attendance records are
generated by computer time clocks. Employees may expunge
the record of tardiness or absence by applying personal or
vacation time to make up for the missing time. We have no
explanation for the fact that fewer African-Americans chose
to use their vacation time to make up for being late or
unexpectedly absent, but see nothing in the record to indicate
that disparity is the result of discrimination.
The only possible theory would be that Honda somehow
induced blacks to be late more often than other employees in
order to force them to deplete their vacation time until the
point that they would opt to keep the attendance deficit on
their records. Plaintiffs do not allege that the computers were
somehow programmed to mark African-Americans as late,
however, and we cannot think of any other way in which
Honda even theoretically could create this difference.
20 Bacon, et al. v. Honda of America No. 01-3520
Once the plaintiff establishes that a facially neutral policy
has an adverse effect on a protected class, the burden of
production and persuasion shifts to the employer to show that
the challenged practice is a business necessity. United States
v. City of Warren, 138 F.3d 1083, 1091-92 (6th Cir. 1998).
Therefore, even if we were to find a connection between the
attendance policy and promotion opportunities for minority
workers, Honda certainly has a legitimate business reason for
demanding near-perfect attendance from its employees.
Plaintiffs could rebut this by offering an alternative that
would not have the discriminatory impact but would
nevertheless serve the employer's legitimate interests. Wards
Cove, 490 U.S. at 660. Bacon and Harden have not offered
another system for making sure that the production line is
always sufficiently staffed.
Nor have Honda’s attendance requirements injured the
plaintiffs; both men have generally maintained attendance
records that would not have prevented them from being
promoted. Bacon was counseled for not meeting the required
98% attendance level in 1997 but not at the managerial level.
An employee is ineligible for promotion for one year after a
managerial-level counseling, but a similar session with a
lower-level supervisor does not preclude advancement. Even
if Honda management abused the system by
disproportionately counseling African-Americans at the
managerial level, neither Bacon nor Harden was subjected to
this treatment and therefore cannot raise it as part of an
individual disparate impact claim.
Time in Department
Honda requires every employee to work at the company for
18 months before being eligible for promotion. In addition,
an employee must give up the right to promotion for 12
months after transferring from one department to another.
Plaintiffs’ statistical expert found a disparity between
African-Americans and other employees in number of
transfers and therefore they posit that this is a discriminatory

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No. 01-3520 Bacon, et al. v. Honda of America 21
requirement designed to keep African Americans off the
promotion roster. We agree that a documented record of
forced transfers of African-American employees would raise
an inference of discrimination, but there is no evidence of
that. The vast majority of transfers were requested by
employees themselves, including both Bacon and Harden, in
order to get a more desirable shift or position themselves for
advancement. Employees involved in departmental
reorganizations or assigned to special projects kept their
departmental seniority. Dr. McClave, plaintiffs’ statistical
expert, did not distinguish between requested and other
transfers in his analysis. The record gives no explanation for
why African Americans might be more likely to request
transfer, but that is a question for Honda management rather
than this court. In terms of percentage, the difference
between the percentage of African Americans in Honda’s
workforce (7.8%) and the percentage of African Americans
requesting transfer (8.69%) does not diverge markedly.
The statement in plaintiffs’ brief that “[t]ransfers were used
to disqualify Bacon and Harden from certain promotions” is
misleading. Appellant Br. at 17. Both men requested
transfer, knowing the consequences in terms of promotion
eligibility. Honda has a legitimate business reason for
requiring familiarity with procedures and skills of a particular
department before allowing promotion within that
department. Under the burden-shifting pattern cited above,
Bacon and Harden would have to propose a different method
for ensuring familiarity with department techniques and
procedures for those eligible for promotion, which they do not
do. The periods of ineligibility for promotion resulting from
their requested transfers cannot be attributed to discrimination
on the part of Honda.
Testing
At certain periods and in certain departments, Honda
required testing to demonstrate sufficient knowledge to be
eligible for promotion. Bacon and Harden allege that this
22 Bacon, et al. v. Honda of America No. 01-3520
testing resulted in discrimination. However, nothing in the
record demonstrates that the tests resulted in a widely
divergent pass rate for blacks and whites or that the subject
matter of the tests was not business-related. Without such a
showing, there is no basis for a disparate impact claim.
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);
United Black Firefighters Ass'n v. City of Akron, No. 94-
3961, 1996 WL 125043, at *2 (6th Cir. 1996) (unpublished
opinion). Furthermore, Bacon passed the test that he took.
Harden received a score of 63 on the team leader test, at a
time when the cutoff for consideration was in the mid-70s,
but passed other assessments to be eligible for promotion into
the quality department.
The brief submitted on behalf of Bacon and Harden also
alleges that they were “prevented from taking eligibility
tests.” Appellant Br. at 53. This is an overstatement. Harden
missed the October 8, 1999 deadline to express interest in the
October 25 sitting of the test. He was on bereavement leave,
starting after October 3, and returned a few days before the
test was administered. As a matter of business judgment, it
might have been better for Honda to show some flexibility
given Harden’s difficult personal circumstances, but it was
under no obligation to ignore the fact that Harden had not
complied with the deadlines, which he knew about even
before his sister’s death. The record is vague on Bacon’s
reasons for not sitting for the test; in his deposition he merely
states that he “has not had the opportunity to do so.” If
Honda had actively prevented him from doing so, his
deposition testimony would have been more specific.
NH Circles
Neither Bacon nor Harden participated actively in the
overtime special projects that Honda regarded as the final
prerequisite for consideration for promotion. The two may
have had entirely legitimate reasons for doing so; in fact,
Bacon at one point was attending college classes at night and
therefore was not available. Nevertheless, Honda had a

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No. 01-3520 Bacon, et al. v. Honda of America 23
legitimate business reason for gauging commitment to the
company by willingness to make an extra, compensated
effort. In fact, the team leader position required availability
for overtime, so this policy was an effective way of making
sure that an employee was actually willing to put in extra
hours. An employer cannot be held liable for disparate
impact if a legitimate business policy results in workforce
disparities. Ward’s Cove, 490 U.S. at 659. Plaintiffs fail to
suggest another equally effective system for Honda to allow
employees to signal their willingness to put in the extra effort
that makes them strong candidates for additional
responsibility and compensation.
IV
Discovery
In January 2001, in response to Honda’s motion for
summary judgment, the plaintiffs sought further discovery on
the merits of plaintiffs’ individual claims under Federal Rule
of Civil Procedure 56(f). Plaintiffs argued, as they do on
appeal, that discovery had been focused on, and limited to,
class certification issues. The district court denied the
motion, stating that the discovery and scheduling orders
“never indicated that the parties should not be proceeding
with the merits discovery as well as the class certification
discovery, with the exception of the magistrate judge’s
discovery order of October 20, 2000, which states that the
parties should not ‘be conducting discovery that is unrelated
to the motion to certify during November and up to
December 18.’” Plaintiffs were nonetheless permitted to
depose Rick Gardner, the only individual who plaintiffs
specifically asked to depose, and to supplement their response
to the motion for summary judgment. The district court also
observed that much of the voluminous record submitted at the
class certification hearing also related to the individual claims
of the plaintiffs.
24 Bacon, et al. v. Honda of America No. 01-3520
We review a denial of discovery for abuse of discretion.
Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). Given
that the record in this case exceeds 3,800 pages and that the
elements of Bacon and Harden’s individual claims are
directly related to their class action claims, we are hard put to
imagine what further discovery would have accomplished in
this matter.
V
It is unfortunate when two qualified minority workers with
strong work evaluations spend a significant number of years
at a company and do not advance. This situation may require
the considered attention of Honda management as a business
matter. However, based on the record before us, the district
court did not err in its rulings. Therefore we AFFIRM the
district court’s denial of class certification and grant of
summary judgment to Honda.

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