Jackson v. Motel 6 Multipurpose , 130 F.3d 999 ( 1997 )


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  •                                   United States Court of Appeals,
    
                                              Eleventh Circuit.
    
                                                No. 97-2360.
    
                           Janet JACKSON, Delois Evans, Plaintiffs-Appellees,
    
                                                      v.
    
     MOTEL 6 MULTIPURPOSE, INC.; Motel 6 G.P., Inc.; Motel 6 Operating L.P.; IBL Limited,
    Inc., d.b.a. Motel 6; Accor S.A.; Defendants-Appellants.
    
     Mario PETACCIA; Brenda Hatcher; Tanya Charles; Chervon Screen; Jennifer Bethel; James
    Sterns; Pitrell Lambert-Brown; Karl Baldwin; Marcian Killsnight, for themselves and all others
    similarly situated, Plaintiffs-Appellees,
    
                                                      v.
    
           MOTEL 6 G.P., INC.; Motel 6 Operating L.P. d.b.a. Motel 6, Defendants-Appellants.
    
                                               Dec. 10, 1997.
    
    Appeal from the United States District Court for the Middle District of Florida. (Nos. 96-0072-CIV-
    FTM-17D, 96-0115-CIV-FTM-17D), Elizabeth A. Kovachevich, Judge.
    
    Before TJOFLAT and BIRCH, Circuit Judges, and MARCUS*, District Judge.
    
            TJOFLAT, Circuit Judge:
    
            Motel 6 Multipurpose, Inc. ("Motel 6") seeks a writ of mandamus1 vacating a district court
    
    order, issued on February 21, 1997, authorizing the plaintiffs in two consolidated race discrimination
    
    cases to advertise their allegations to the public at large and to communicate with current and former
    
    Motel 6 employees through mass mailings. Motel 6 also requests that the writ direct the district
    
    
    
       *
         Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida
    sitting by designation as a member of this panel when this appeal was argued and taken under
    submission. On November 24, 1997 he took the oath of office as a United States Circuit Judge
    of the Eleventh Circuit.
       1
        Writs of mandamus are issued pursuant to the All Writs Act, 28 U.S.C. § 1651(a) (1994).
    court to decertify one of the two putative classes. We conclude that the district court's February 21
    
    order constitutes an abuse of discretion, and that the challenged class was erroneously certified. We
    
    therefore grant the petition and issue the writ.
    
                                                       I.
    
           Motel 6 owns and operates over 750 motels across the United States. The instant petition
    
    for mandamus arises from two consolidated cases alleging that Motel 6 has a nationwide practice
    
    or policy of discriminating against its customers and its employees on the basis of race. In the first
    
    case, five Motel 6 patrons ("the Jackson plaintiffs") claim that Motel 6 unlawfully discriminated
    
    against them on the basis of their race. They claim that they were either denied accommodations
    
    at a Motel 6 motel or provided substandard accommodations pursuant to an alleged nationwide
    
    Motel 6 practice or policy of (1) refusing to rent otherwise vacant rooms to blacks and other
    
    non-white persons, (2) segregating black patrons and other non-white patrons from white patrons
    
    within a single facility, and (3) providing substandard housekeeping and other services to black
    
    patrons and other non-white patrons as compared to white patrons. Two of the five named plaintiffs
    
    allege that they were denied rooms at the same motel; the remaining three named plaintiffs each
    
    allege that they were subjected to discriminatory treatment at three separate other motels. The
    
    Jackson plaintiffs seek, on behalf of themselves and similarly situated patrons of Motel 6, injunctive
    
    relief and money damages under Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et
    
    seq.,2 and under 42 U.S.C. § 1981.3
    
    
       2
        Section 2000a reads, in pertinent part:
    
                   § 2000a. Prohibition against discrimination or segregation in places of public
                   accommodation
    
                   (a) Equal access
           In the second case, five former Motel 6 employees ("the Petaccia plaintiffs") claim that, as
    
    Motel 6 employees, they were required to discriminate against black and other non-white patrons,
    
    that Motel 6 retaliated against them when they refused to do so, and that Motel 6's discrimination
    
    against blacks and other non-whites created a "hostile work environment." The Petaccia plaintiffs
    
    seek, on behalf of themselves and all Motel 6 employees who have been required to work in the
    
    alleged hostile environment, injunctive relief and money damages under § 1981 and the retaliation
    
    
    
                   All persons shall be entitled to the full and equal enjoyment of the goods,
                   services, facilities, privileges, advantages, and accommodations of any place of
                   public accommodation, as defined in this section, without discrimination or
                   segregation on the ground of race, color, religion, or national origin.
    
           42 U.S.C. § 2000a (1994).
       3
        Section 1981 in its entirety reads:
    
                   § 1981. Equal rights under the law
    
                   (a) Statement of equal rights
    
                   All persons within the jurisdiction of the United States shall have the same right
                   in every State and Territory to make and enforce contracts, to sue, be parties, give
                   evidence, and to the full and equal benefit of all laws and proceedings for the
                   security of persons and property as is enjoyed by white citizens, and shall be
                   subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
                   kind, and to no other.
    
                   (b) "Make and enforce contracts" defined
    
                   For purposes of this section, the term "make and enforce contracts" includes the
                   making, performance, modification, and termination of contracts, and the
                   enjoyment of all benefits, privileges, terms, and conditions of the contractual
                   relationship.
    
                   (c) Protection against impairment
    
                   The rights protected by this section are protected against impairment by
                   nongovernmental discrimination and impairment under color of State law.
    
           42 U.S.C. § 1981 (1994).
    provision of Title II.4
    
            After the cases were consolidated, the plaintiffs moved for an order allowing them relief
    
    from the Middle District of Florida's Local Rule 4.04(e), which provides that
    
            [i]n every case sought to be maintained by any party as a class action, all parties thereto and
            their counsel are hereby forbidden, directly or indirectly, orally or in writing, to
            communicate concerning such actions with any potential or actual class member, not a
            formal party to the case, without approval by the Court.
    
    The district court granted relief from Local Rule 4.04(e) in a February 21, 1997, order that
    
    authorized the plaintiffs to:
    
            1) establish a 1-800 number to which potential class members may call;
    
            2) publish notices of the ongoing litigation in publications nationwide and solicit information
            about potential class members and their alleged experiences with discrimination at Motel 6
            motels;
    
            3) respond to requests for information from those who respond to the advertisements or call
            the 1-800 number;
    
            4) distribute mass mailings to Motel 6 employees soliciting information regarding the
            plaintiffs' allegations of discrimination at Motel 6 motels; and
    
            5) further communicate ex parte with any "persons who may have knowledge of" the alleged
            discrimination, except for current Motel 6 management or supervisory employees.
    
    The district court entered this order allowing communication with potential class members even
    
    though it had not yet ruled on either the Jackson plaintiffs' or the Petaccia plaintiffs' motions for
    
    
    
    
       4
        That provision, 42 U.S.C. § 2000a-2, provides in relevant part that
    
                    [n]o person shall ... intimidate, threaten, or coerce, or attempt to intimidate,
                    threaten, or coerce any person with the purpose of interfering with any right or
                    privilege secured by section 2000a or 2000a-1 of this title....
    
            42 U.S.C. § 2000a-2 (1994). As we discuss infra, the Petaccia plaintiffs do not have
            standing to bring a claim for injunctive relief under this section.
    class certification.5
    
            Motel 6 then moved the lower court for a stay of the communications order pending appeal;
    
    that motion was denied.        See Jackson v. Motel 6 Multipurposes, Inc., 
    172 F.R.D. 469
    
    (M.D.Fla.1997). Motel 6 then appealed the denial of the motion for a stay and filed a petition for
    
    a writ of mandamus, on the ground that the lower court had misapplied the controlling precedents
    
    of Bernard v. Gulf Oil Co., 
    619 F.2d 459
     (5th Cir.1980) (en banc)6 and Gulf Oil Co. v. Bernard, 
    452 U.S. 89
    , 
    101 S. Ct. 2193
    , 
    68 L. Ed. 2d 693
     (1981). This court declined to stay the discovery order on
    
    appeal and denied the petition for mandamus. On May 1, 1997, Motel 6 requested a stay of the
    
    order from the Supreme Court. On May 2, Circuit Justice Kennedy denied that request.
    
            On August 15, 1997, the district court certified the Jackson plaintiffs as class representatives
    
    and referred the question of certification of the Petaccia plaintiffs to a magistrate judge for further
    
    consideration.
    
            Motel 6 now petitions for mandamus again, arguing that the communications order was an
    
    abuse of discretion ab initio, and also that because the Jackson plaintiffs cannot properly be certified
    
    as class representatives, that portion of the communications order allowing the Jackson plaintiffs
    
    
    
       5
        The district court noted that the plaintiffs' assertions that they needed to communicate with
    potential class members in order to build an adequate record for class certification were "highly
    suspect[,] in light of the fact that the plaintiffs ha[d] long since filed their motions for class
    certification." The court nonetheless granted the motion allowing communication with potential
    class members, in light of, inter alia, "the potentially large size of the class ... the serious
    allegations of racial discrimination, [and] the plaintiffs' need to effectively prepare for trial." We
    agree that the allegations of discrimination are serious and that the plaintiffs need effectively to
    prepare for what will no doubt be a fairly complicated trial. Because we hold that the putative
    Jackson class cannot be certified, however, see infra part II, the Jackson plaintiffs will need to
    prepare for trial of only their own claims, serious as those claims may be.
       6
       In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir.1981) (en banc), this court
    adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
    October 1, 1981.
    to advertise their allegations nationwide and to communicate with current and former Motel 6
    
    employees is entirely unnecessary and an abuse of the district court's discretion.7 We agree that the
    
    communications order was an abuse of discretion from the beginning, and we agree that the Jackson
    
    class was erroneously certified. We therefore grant the writ and direct the district court to decertify
    
    the Jackson class and to strike that portion of its February 21 order allowing the Jackson plaintiffs
    
    to communicate with putative class members. We also conclude that the February 21 order
    
    constitutes an abuse of discretion insofar as it authorizes the Petaccia plaintiffs to advertise their
    
    claims nationwide and conduct mass mailings to Motel 6 employees. We therefore also direct the
    
    district court to vacate the communications order insofar as it applies to the Petaccia plaintiffs.8
    
                                                      II.
    
    
    
       7
         The plaintiffs argue that the law of the case doctrine prevents us from hearing this second
    petition for mandamus relief. The law of the case doctrine provides that an appellate court's
    decision of a legal issue must be followed in all subsequent trial or intermediate appellate
    proceedings in the same case, see DeLong Equip. Co. v. Washington Mills Electro Minerals
    Corp., 
    990 F.2d 1186
    , 1196 (11th Cir.1993), unless "(1) a subsequent trial produces substantially
    different evidence, (2) controlling authority has since made a contrary decision of law applicable
    to [the contested] issue, or (3) the prior decision was clearly erroneous and would work manifest
    injustice." Barber v. International Bhd. of Boilermakers, Dist. Lodge # 57, 
    841 F.2d 1067
    , 1072
    (11th Cir.1988). In order for the law of the case doctrine to apply, however, the issue contested
    on the latter appeal must be the same issue that was contested on and decided by the former
    appeal. See Lawson v. Singletary, 
    85 F.3d 502
    , 512-13 (11th Cir.1996) (concluding that law of
    the case doctrine did not preclude later appeal where, inter alia, the focus of the former appeal
    was on a different issue). In the instant case, Motel 6 first petitioned for mandamus on the
    ground that the lower court had misapplied the controlling precedents of Bernard v. Gulf Oil Co.
    and Gulf Oil Co. v. Bernard in deciding to grant relief from Local Rule 4.04(e). The instant
    petition proffers a wholly different ground for relief: that the district court's August 15 decision
    to certify the Jackson class was clearly erroneous and that the authorization of class
    communications by the Jackson plaintiffs was therefore an abuse of discretion. Because the
    petition before us now rests on a different ground than the first petition, the law of the case
    doctrine does not preclude our consideration of the instant petition.
       8
       We thus direct the district court to vacate the February 21 order in its entirety. For clarity's
    sake, however, we will proceed to discuss the two cases separately, and will refer to those
    "portions" of the communications order that are at issue in each case.
            In In re Estelle, 
    516 F.2d 480
     (5th Cir.1975), we outlined the purview of mandamus:
    
                     The Writs of Mandamus and Prohibition are granted sparingly. Such writs are
            reserved for really extraordinary cases, and should be issued only when the right to such
            relief is clear and indisputable. To some extent they are supervisory in nature and are used
            to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it
            to exercise its authority when it is its duty to do so. They are not to be used as a substitute
            for appeal, or to control the decision of the trial court in discretionary matters.
    
                   The Writ is thus a drastic remedy, that must not be used to regulate the trial court's
            judgment in matters properly left to its sound discretion, but that may be available to confine
            the lower court to the sphere of its discretionary power.
    
    Id. at 483 (internal citations and quotations omitted). We may issue the writ "only in drastic
    
    situations, when no other adequate means are available to remedy a clear usurpation of power or
    
    abuse of discretion." In re Temple, 
    851 F.2d 1269
    , 1271 (11th Cir.1988).
    
            We hold that the instant petition warrants the issuance of mandamus because the district
    
    court's order allowing the plaintiffs to communicate with potential class members was an abuse of
    
    discretion. The communications order was entered months prior to any decision regarding whether
    
    either of the two proposed classes would in fact be certified. While we cannot say that orders
    
    authorizing communication with potential class members may never precede class certification,
    
    district courts must strive to avoid authorizing injurious class communications that might later prove
    
    unnecessary. An order authorizing class communications prior to class certification is likely to be
    
    an abuse of discretion when (1) the communication authorized by the order is widespread and clearly
    
    injurious and (2) a certification decision is not imminent or it is unlikely that a class will in fact be
    
    certified. In such circumstances, the danger of abuse that always attends class communications—the
    
    possibility that plaintiffs might use widespread publication of their claims, disguised as class
    
    communications, to coerce defendants into settlement—is not outweighed by any need for
    
    immediate communications.
    
            The advertisements and mass mailings allowed by the order at issue in the instant petition
    are nationwide in scope and are surely causing serious and irreparable harm to Motel 6's reputation
    
    and to its relationship with its employees. "The only conceivable alternative [to mandamus
    
    relief]—inevitable reversal by this court after the defendants have been forced to endure full
    
    discovery, full litigation, and a full trial—is scarcely adequate" to redress this injury. In re Cooper,
    
    
    971 F.2d 640
    , 641 (11th Cir.1992) (internal quotations omitted). Moreover, the order was entered
    
    almost six months prior to the court's decision to certify the Jackson class and to refer the Petaccia
    
    plaintiffs' motion for class certification to a magistrate judge. (The Petaccia plaintiffs' motion for
    
    class certification is still pending.) Most important, the Jackson plaintiffs clearly could not properly
    
    be certified as class representatives.
    
                                                      A.
    
            The Supreme Court has noted that,
    
            [though] racial discrimination is by definition class discrimination[, ... ] the allegation that
            such discrimination has occurred neither determines whether a class action may be
            maintained in accordance with Rule 23 nor defines the class that may be certified.
            Conceptually, there is a wide gap between (a) an individual's claim that he has been
            [discriminated against on the basis of race], and his otherwise unsupported allegation that
            [the defendant] has a policy of discrimination, and (b) the existence of a class of persons who
            have suffered the same injury as that individual, such that the individual's claim and the class
            claims will share common questions of law or fact.
    
    General Tel. Co. of the Southwest v. Falcon, 
    457 U.S. 147
    , 156, 
    102 S. Ct. 2364
    , 2370, 
    72 L. Ed. 2d 740
     (1982) (footnotes omitted). The putative Jackson class is not certifiable because it fails the
    
    predominance requirement of Federal Rule of Civil Procedure 23(b)(3).
    
            A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P.
    
    23(a)9 and at least one of the alternative requirements of Rule 23(b).10 The only one of Rule 23's
    
    
       9
        Rule 23(a) in its entirety provides that
    
                   [o]ne or more members of a class may sue or be sued on behalf of all only if (1)
                   the class is so numerous that joinder of all members is impracticable, (2) there are
    alternatives that is arguably fulfilled by the Jackson plaintiffs' claims is that found in Rule 23(b)(3),
    
    
    
                      questions of law or fact common to the class, (3) the claims or defenses of the
                      representative parties are typical of the claims or defenses of the class, and (4) the
                      representative parties will fairly and adequately protect the interests of the class.
       10
            Rule 23(b) in its entirety provides:
    
                      Class Actions Maintainable. An action may be maintained as a class action if the
                      prerequisites of subdivision (a) are satisfied, and in addition:
    
                              (1) the prosecution of separate actions by or against individual members of
                              the class would create a risk of
    
                              (A) inconsistent or varying adjudications with respect to individual
                              members of the class which would establish incompatible standards of
                              conduct for the party opposing the class, or
    
                              (B) adjudications with respect to individual members of the class which
                              would as a practical matter be dispositive of the interests of the other
                              members not parties to the adjudications or substantially impair or impede
                              their ability to protect their interests; or
    
                              (2) the party opposing the class has acted or refused to act on grounds
                              generally applicable to the class, thereby making appropriate final
                              injunctive relief or corresponding declaratory relief with respect to the
                              class as a whole; or
    
                              (3) the court finds that the questions of law or fact common to the class
                              predominate over any questions affecting only individual members, and
                              that a class action is superior to other available methods for the fair and
                              efficient adjudication of the controversy. The matters pertinent to the
                              findings include: (A) the interest of members of the class in individually
                              controlling the 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) the desirability or
                              undesirability of concentrating the litigation of the claims in the particular
                              forum; (D) the difficulties likely to be encountered in the management of
                              a class action.
    
              Fed.R.Civ.P. 23(b). For the reasons recited in the text, in considering the factors listed in
              Rule 23(b)(3), we find that management of the Jackson class action would involve
              overwhelming difficulties, and that concentration of the highly case-specific claims of
              dozens or hundreds of plaintiffs from around the country in the Middle District of Florida
              would be undesirable.
    which provides that
    
            [a]n action may be maintained as a class action if the prerequisites of subdivision (a) are
            satisfied, and in addition ...
    
            (3) the court finds that the questions of law or fact common to the class predominate over
            any questions affecting only individual members, and that a class action is superior to other
            available methods for the fair and efficient adjudication of the controversy.
    
    Fed.R.Civ.P. 23(b)(3). "In other words, "the issues in the class action that are subject to generalized
    
    proof, and thus applicable to the class as a whole, must predominate over those issues that are
    
    subject only to individualized proof.' " Kerr v. City of West Palm Beach, 
    875 F.2d 1546
    , 1557-58
    
    (11th Cir.1989), quoting Nichols v. Mobile Bd. of Realtors, Inc., 
    675 F.2d 671
    , 676 (5th Cir. Unit
    
    B 1982).11 The predominance inquiry focuses on "the legal or factual questions that qualify each
    
    class member's case as a genuine controversy," and is "far more demanding" than Rule 23(a)'s
    
    commonality requirement. Amchem Prods., Inc. v. Windsor, --- U.S. ----, ----, 
    117 S. Ct. 2231
    , 2249-
    
    50, 
    138 L. Ed. 2d 689
     (1997).
    
            The Jackson plaintiffs have argued that the issue common to the claims of all the named
    
    plaintiffs and all putative class members—whether Motel 6 has a practice or policy of discriminating
    
    against patrons and employees on the basis of race—predominates over all the legal and factual
    
    issues that will attend various plaintiffs' and class members' individual claims. The district court
    
    agreed, on the ground that "forum-by-forum resolution of each and every issue in this case ... would
    
    be far less efficient, cost-effective, and uniform than class resolution." Rule 23(b)(3), however,
    
    imposes two additional requirements, and increased efficiency is only one of them. Predominance
    
    is the other, and the single common issue in the Jackson case—whether Motel 6 has a practice or
    
    
    
       11
        In Stein v. Reynolds Securities, Inc., 
    667 F.2d 33
     (11th Cir.1982), this court adopted as
    binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
    September 30, 1981.
    policy of discrimination—is not rendered predominant over all the other issues that will attend the
    
    Jackson plaintiffs' claims by the fact that class treatment of these claims may be more efficient and
    
    uniform than case-by-case adjudication.12 Instead, "as a practical matter, the resolution of this
    
    overarching common issue breaks down into an unmanageable variety of individual legal and factual
    
    issues." Andrews v. American Tel. & Tel. Co., 
    95 F.3d 1014
    , 1023 (11th Cir.1996) (citation
    
    omitted).
    
            The Jackson plaintiffs' claims will require distinctly case-specific inquiries into the facts
    
    surrounding each alleged incident of discrimination. The issues that must be addressed include not
    
    only whether a particular plaintiff was denied a room or was rented a substandard room, but also
    
    whether there were any rooms vacant when that plaintiff inquired; whether the plaintiff had
    
    reservations; whether unclean rooms were rented to the plaintiff for reasons having nothing to do
    
    with the plaintiff's race; whether the plaintiff, at the time that he requested a room, exhibited any
    
    non-racial characteristics legitimately counseling against renting him a room; and so on. Even more
    
    variegated issues would certainly be present in the claims of hundreds or even thousands of members
    
    of an improperly certified class. Furthermore, even factual issues that are common to many of the
    
    Jackson plaintiffs—such as whether any rooms were in fact available when a particular plaintiff
    
    inquired—will require highly case-specific determinations at trial. These issues are clearly
    
    
    
       12
         The predominance and efficiency criteria are of course intertwined. Where there are
    predominant issues of law or fact, resolution of those issues in one proceeding efficiently
    resolves those issues with regard to all claimants in the class. Where there are no predominant
    issues of law or fact, however—as in the instant case—class treatment would be either singularly
    inefficient, as one court attempts to resolve diverse claims from around the country in its own
    courtroom, or unjust, as the various factual and legal nuances of particular claims are lost in the
    press to clear the lone court's docket. We therefore disagree with the district court's conclusion
    that class treatment of the Jackson plaintiffs' claims would be more efficient than case-by-case
    adjudication, as well as with the court's conclusion that the issue of a discriminatory practice or
    policy is predominant.
    predominant over the only issue arguably common to the class—whether Motel 6 has a practice or
    
    policy of racial discrimination. Indeed, we expect that most, if not all, of the plaintiffs' claims will
    
    stand or fall, not on the answer to the question whether Motel 6 has a practice or policy of racial
    
    discrimination, but on the resolution of these highly case-specific factual issues.13
    
            This failure of predominance is readily apparent from a reading of the Jackson plaintiffs'
    
    complaint. We therefore hold that the district court's certification of the Jackson class was erroneous
    
    as a matter of law and was therefore an abuse of discretion. See Cooter & Gell v. Hartmarx Corp.,
    
    
    496 U.S. 384
    , 405, 
    110 S. Ct. 2447
    , 2461, 
    110 L. Ed. 2d 359
     (1990). We have in the past issued
    
    mandamus to direct a district court to decertify an improperly certified class, when the certification
    
    of that class was a clear abuse of discretion. See, e.g., In re Temple, 
    851 F.2d 1269
    . On the instant
    
    petition, we are compelled to do so again.
    
            In sum, we hold that the district court abused its discretion in entering an order allowing
    
    communication with potential class members when the authorized communications would be
    
    nationwide in scope and would cause serious and irreparable injury to the defendant, when a
    
    decision on class certification was not imminent, and when the proposed Jackson class was clearly
    
    
    
       13
         As the district court noted in its order certifying the Jackson class, each plaintiff will need to
    establish that (1) a Motel 6 employee denied him a room (or rented him a substandard room) on
    the basis of his race and either (2) that that employee had the general authority to rent motel
    rooms or (3) that that employee was acting in accordance with a Motel 6 policy or practice of
    racial discrimination. See, e.g., Woodhouse v. Motel 6 G.P., Inc., 
    67 F.3d 310
     (9th Cir.1995)
    (unpublished disposition). Every named Jackson plaintiff alleges that he or she was denied a
    room or rented a substandard room by a Motel 6 employee at the front desk of a Motel 6 motel.
    We believe it very probable that all these front-desk employees had the general authority to rent
    motel rooms. The question whether Motel 6 has a practice or policy of racial discrimination will
    therefore be irrelevant to all or nearly all of the plaintiffs' claims. Because proposition (2) will
    be satisfied—and we expect very readily satisfied—with regard to all or almost all of the
    plaintiffs' claims, the cases may be expected to focus on the highly case-specific factual inquiries
    that will establish or controvert element (1). Those factual inquiries will therefore be
    predominant.
    not certifiable. Under these circumstances, there was no need for the plaintiffs immediately to begin
    
    the highly injurious publication of their claims authorized by the order—publication that could and
    
    did continue for months, as the court contemplated the plaintiffs' motions for class certification. We
    
    therefore grant Motel 6's petition for mandamus relief and issue the writ, directing the district court
    
    to decertify the Jackson class and to vacate the portion of its February 21 order that authorizes
    
    preliminary class communications by the Jackson plaintiffs.
    
                                                      B.
    
              As noted above, the Petaccia plaintiffs allege that they were required as part of their
    
    employment by Motel 6 to participate in discrimination against non-white customers, that they were
    
    retaliated against when they refused to do so, and that Motel 6's discrimination against non-white
    
    customers, along with other instances of discriminatory treatment, created a hostile work
    
    environment at Motel 6 motels around the country.
    
               The Petaccia plaintiffs' claim for "retaliation" is brought under 42 U.S.C. §§ 198114 and
    
    2000a-2.15 As an initial matter, we note that the Petaccia plaintiffs do not have standing to maintain
    
    their claim for retaliation under section 2000a-2. Section 2000a-2 provides solely for injunctive
    
    relief. See Newman v. Piggie Park Enters., Inc., 
    390 U.S. 400
    , 401-02, 
    88 S. Ct. 964
    , 966, 
    19 L. Ed. 2d 1263
     (1968); Miller v. Amusement Enters., Inc., 
    426 F.2d 534
    , 538 (5th Cir.1970).16 The
    
    
       14
            See supra note 3.
       15
            See supra note 4.
       16
        We note also that the Petaccia plaintiffs' claim for "retaliation" could not proceed under the
    familiar Title VII retaliation statute, 42 U.S.C. § 2000e-3(a). That statute prohibits employers
    from discriminating against employees who "oppose[ ] any ... unlawful employment practice."
    The Petaccia plaintiffs do not allege that they have been discriminated against by Motel 6 for
    opposing an unlawful employment practice, but that they were discriminated against for
    opposing an unlawful practice of discrimination in the provision of public accommodations.
    While money damages are available for violations of section 2000e-3(a), see St. Mary's Honor
    Supreme Court has held that, in order to claim injunctive relief, a plaintiff must show a "real or
    
    immediate threat that the plaintiff will be wronged again—"a likelihood of substantial and
    
    immediate irreparable injury.' " City of Los Angeles v. Lyons, 
    461 U.S. 95
    , 111, 
    103 S. Ct. 1660
    ,
    
    1670, 
    75 L. Ed. 2d 675
     (1983) (quoting O'Shea v. Littleton, 
    414 U.S. 488
    , 502, 
    94 S. Ct. 669
    , 679, 
    38 L. Ed. 2d 674
     (1974)). The Petaccia plaintiffs are all former employees of Motel 6, and allege neither
    
    that they will be discriminated against by Motel 6 in the future nor any facts that would support such
    
    a conclusion. Thus, the Petaccia plaintiffs do not have standing to bring their "retaliation" claim
    
    under section 2000a-2. The Petaccia plaintiffs' claim for retaliation may, however, proceed under
    
    section 1981(b), which provides for money damages. See Pinkard v. Pullman-Standard, 
    678 F.2d 1211
    , 1229 n. 15 (5th Cir. Unit B, June 10, 1982) (Clark, J., and Kravitch, J., concurring) (stating
    
    that section 1981 prohibits retaliatory treatment, and citing cases); Mizell v. North Broward Hosp.
    
    Dist., 
    427 F.2d 468
    , 472 (5th Cir.1970) (allowing section 1981 claims for both damages and
    
    injunctive relief); see also, e.g., Caldwell v. National Brewing Co., 
    443 F.2d 1044
    , 1046 (5th
    
    Cir.1971) (allowing section 1981 retaliation claim to proceed without exhaustion of Title VII
    
    administrative remedies); Patterson v. Augat Wiring Sys., Inc., 
    944 F. Supp. 1509
    , 1518-21
    
    (M.D.Ala.1996) (allowing section 1981 retaliation claims after passage of Civil Rights Act of 1991
    
    and enactment of section 1981(b)).
    
            We assume for the sake of discussion that the Petaccia plaintiffs have sufficiently stated a
    
    cause of action for a racially hostile work environment under section 1981.17 See, e.g., Williams v.
    
    
    
    Center v. Hicks, 
    509 U.S. 502
    , 523-24, 
    113 S. Ct. 2742
    , 2756, 
    125 L. Ed. 2d 407
     (1993), violations
    of section 2000a-2 may be remedied only by injunctive relief, and not by money damages. See
    Piggie Park, 390 U.S. at 401-02, 88 S.Ct. at 966.
       17
        In order to prove a claim for a racially hostile work environment, a plaintiff must
    "demonstrate that the actions of the defendants altered the condition of the workplace, creating
    an objectively abusive and hostile atmosphere." Edwards v. Wallace Community College, 49
    Carrier Corp., 
    889 F. Supp. 1528
    , 1530 (M.D.Ga.1995) (allowing section 1981 hostile environment
    
    claim after passage of section 1981(b)). We note that the named Petaccia plaintiffs' claims, like
    
    those of the Jackson plaintiffs, are factually very diverse. One of the Petaccia plaintiffs, for
    
    instance, alleges not only that he witnessed racial discrimination, was required to participate in it,
    
    and was fired in retaliation for opposing it, but also that he repeatedly informed Motel 6's district,
    
    regional, and national offices of the ongoing discrimination, to no avail. Another Petaccia plaintiff,
    
    however, fails to allege either that she was retaliated against for opposing the alleged discrimination
    
    or any facts that would support a retaliation claim. As in the Jackson case, the only issue common
    
    to all the Petaccia plaintiffs is the question whether Motel 6 has a practice or policy of racial
    
    discrimination in providing public accommodations. For reasons explained below,18 this issue is
    
    more important to the Petaccia plaintiffs' claims than it is to the Jackson plaintiffs' claims; we
    
    doubt, however, that the issue is predominant within the meaning of Rule 23(b)(3), because the
    
    issues in the class action that are subject to generalized proof and thus applicable to the proposed
    
    class as a whole will not predominate over those issues that are subject only to individualized proof.
    
              As explained above, we find the February 21 communications order to have been an abuse
    
    of discretion, because it is clearly injurious and, with regard to the Petaccia plaintiffs, because the
    
    court's decision on certification of the Petaccia class was not and still may not be imminent.
    
    
    
    F.3d 1517, 1521 (11th Cir.1995). We read section 1981, as amended by the Civil Rights Act of
    1991, to encompass such a claim. See Vance v. Southern Bell Tel. & Tel. Co., 
    983 F.2d 1573
    ,
    1575 (11th Cir.1993) (noting that the 1991 Act enlarged the scope of section 1981 to include
    post-hiring discrimination); see also Dennis v. County of Fairfax, 
    55 F.3d 151
    , 155 (4th
    Cir.1995) (holding that section 1981, as amended, now covers "general conditions of
    employment, including incidents of racial harassment in the workplace"); Johnson v. Uncle
    Ben's, Inc., 
    965 F.2d 1363
    , 1372 (5th Cir.1992) ("Under § 1981 as amended by the [1991] Act,
    racial harassment and other discrimination in an employment relation occurring after contract
    formation is actionable.").
       18
            See infra note 19; supra note 13.
    Certification of that class is still pending before the magistrate judge, ten months after the
    
    communications order was entered. We therefore grant the petition for mandamus and direct the
    
    district court to vacate the portion of the order allowing the Petaccia plaintiffs to advertise their
    
    claims and conduct mass mailings to Motel 6 employees.19
    
                                                      III.
    
            For the foregoing reasons, we GRANT Motel 6's petition for mandamus relief. We direct
    
    the district court to decertify the Jackson class and vacate that part of the February 21 order allowing
    
    the Jackson plaintiffs to conduct preliminary class communications. We also direct the district court
    
    to vacate the portion of the February 21 order that authorizes the Petaccia plaintiffs to advertise their
    
    allegations and to communicate with Motel 6 employees.
    
            PETITION GRANTED.
    
    
    
    
       19
         We note, however, that insofar as the district court's February 21 order authorizes the
    Petaccia plaintiffs to conduct mass mailings to Motel 6 employees, it authorizes inquiries and
    communications that would be allowable as a normal discovery matter, whether the Petaccia
    class is certified or not. In Faragher v. City of Boca Raton, 
    111 F.3d 1530
     (11th Cir.1997)(en
    banc), cert. granted, --- U.S. ----, 
    118 S. Ct. 438
    , --- L.Ed.2d ----, 
    66 U.S.L.W. 3157
     (U.S. Nov.
    14, 1997) (No. 97-282), this Court held that "[a]n employer is directly liable for hostile work
    environment ... harassment if the employer knew or should have known of the harassment and
    failed to take prompt remedial action," and that "[a] plaintiff ... can prove an employer's
    knowledge by showing that the harassment was pervasive enough to charge the employer with
    constructive knowledge." Id. at 1538. To this end, the Petaccia plaintiffs could, as a normal
    discovery matter, propound interrogatories seeking the names and mailing addresses of all
    non-supervisory Motel 6 employees, and could communicate with and depose those employees,
    in order to ascertain whether the alleged hostile work environment was so pervasive that notice
    to higher management might be inferred.
    

Document Info

DocketNumber: 97-2360

Citation Numbers: 130 F.3d 999

Filed Date: 12/10/1997

Precedential Status: Precedential

Modified Date: 7/25/2017

Authorities (28)

Andrews v. AT&T , 95 F.3d 1014 ( 1996 )

Newman v. Piggie Park Enterprises, Inc. , 390 U.S. 400 ( 1968 )

O'Shea v. Littleton , 414 U.S. 488 ( 1974 )

Gulf Oil Co. v. Bernard , 452 U.S. 89 ( 1981 )

General Telephone Co. of Southwest v. Falcon , 457 U.S. 147 ( 1982 )

Los Angeles v. Lyons , 461 U.S. 95 ( 1983 )

Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384 ( 1990 )

St. Mary's Honor Center v. Hicks , 509 U.S. 502 ( 1993 )

Amchem Products, Inc. v. Windsor , 521 U.S. 591 ( 1997 )

mrs-patricia-b-miller-individually-and-on-behalf-of-her-minor-children , 426 F.2d 534 ( 1970 )

Von D. Mizell v. North Broward Hospital District , 427 F.2d 468 ( 1970 )

Robert Caldwell v. The National Brewing Company and Brewery ... , 443 F.2d 1044 ( 1971 )

In Re W. J. Estelle, Jr., Director, Texas Department of ... , 516 F.2d 480 ( 1975 )

23 Fair empl.prac.cas. 20, 23 Empl. Prac. Dec. P 31,029 ... , 619 F.2d 459 ( 1980 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

Murray Stein v. Reynolds Securities, Inc. , 667 F.2d 33 ( 1982 )

Leon G. Nichols, Rudolph J. Bystrak, Intervenors-Appellants ... , 675 F.2d 671 ( 1982 )

29-fair-emplpraccas-216-29-empl-prac-dec-p-32862-louis-pinkard , 678 F.2d 1211 ( 1982 )

46-fair-emplpraccas-1542-46-empl-prac-dec-p-37898-charles-r-barber , 841 F.2d 1067 ( 1988 )

in-re-william-temple-alfonso-crisconi-mary-emma-clark-mabel-johnson , 851 F.2d 1269 ( 1988 )

View All Authorities »

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