                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 06a0034p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                              Plaintiffs-Appellees, -
 RACHEL REEB, et al.,
                                                      -
                                                      -
                                                      -
                                                          No. 04-3994
           v.
                                                      ,
                                                       >
 OHIO DEPARTMENT OF REHABILITATION AND                -
                                                      -
                                                      -
 CORRECTION, BELMONT CORRECTIONAL

                             Defendant-Appellant. -
 INSTITUTION,

                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                  No. 00-00774—Algenon L. Marbley, District Judge.
                                         Argued: October 26, 2005
                                  Decided and Filed: January 24, 2006
     Before: KEITH and BATCHELDER, Circuit Judges; OBERDORFER, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Stephen P. Carney, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus,
Ohio, for Appellant. Nicholas E. Kennedy, KENNEDY, REEVE & KNOLL, Columbus, Ohio, for
Appellees. ON BRIEF: Stephen P. Carney, Douglas R. Cole, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, Jack W. Decker, Columbus, Ohio, for Appellant. Nicholas
E. Kennedy, KENNEDY, REEVE & KNOLL, Columbus, Ohio, for Appellees. Ann E. Reesman,
McGUINESS, NORRIS & WILLIAMS, Washington, D.C., for Amici Curiae.
     BATCHELDER, J., delivered the opinion of the court, in which OBERDORFER, J., joined.
KEITH, J. (pp. 12-19), delivered a separate dissenting opinion.




        *
          The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.


                                                        1
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                              Page 2


                                        _________________
                                            OPINION
                                        _________________
        ALICE M. BATCHELDER, Circuit Judge. Four named female employees of the Belmont
Correctional Institution (“Belmont”), a prison operated by the State of Ohio, filed a class action
against Belmont and certain officials under Title VII of the Civil Rights Act of 1964, alleging that
female corrections officers have been treated differently from similarly situated male corrections
officers and accordingly have been denied promotions, denied leave and overtime, given undesirable
positions, and replaced by men. The plaintiffs specifically requested money damages and an
injunction, though they did not specify the conduct they sought to have enjoined. The U.S. District
Court for the Southern District of Ohio certified the plaintiff class, finding that the plaintiffs had
shown the requirements of Federal Rule of Civil Procedure 23(a) and (b)(2) had been met, and
refused to certify the class under subdivision (b)(3). Reeb v. Ohio Dep’t of Rehab. & Corr., 203
F.R.D. 315 (S.D. Ohio 2001) (hereinafter Reeb I). We granted an interlocutory appeal pursuant to
Federal Rule of Civil Procedure 23(f) and reversed the grant of certification, finding that the record
did not demonstrate that the district court had engaged in the rigorous analysis required to determine
whether the Rule 23(a) requirements had been met. Reeb v. Ohio Dep’t of Rehab. & Corr., 81 Fed.
Appx. 550 (6th Cir. 2003) (hereinafter Reeb II).
         Upon remand, the district court received no new evidence and re-certified the plaintiff class,
again finding the requirements of Rule 23(a) and (b)(2) met and declining to certify the class under
subdivision (b)(3). Reeb v. Ohio Dep’t of Rehab. & Corr., 221 F.R.D. 464, 469 (S.D. Ohio 2004)
(hereinafter Reeb III). We again permitted Belmont’s appeal. Because the district court did not
follow our instructions and conduct a “rigorous analysis” of the requirements of Rule 23(a), and
because Title VII cases in which plaintiffs seek individual compensatory damages are not
appropriately brought as class actions under Rule 23(b)(2) because such individual claims for money
damages will always predominate over requested injunctive or declaratory relief, we VACATE the
district court’s grant of class certification and REMAND the case to the district court for further
proceedings.
                             I. Factual and Procedural Background
       The facts of this case have been stated in the two prior district court opinions and the prior
decision of this court. We therefore adopt the background as set forth in the opinion of the first
panel of this court to deal with this case:
       [Belmont] is a prison operated by the Ohio Department of Rehabilitation and
       Corrections. It employs approximately 528 people, some of whose positions are
       covered by Ohio’s civil service laws while others are covered by collective
       bargaining agreements with three distinct unions, District 1199, OCSEA, and OEA.
       One Hundred Forty-One of [Belmont’s] employees are female-some unknown
       number of whom are OCSEA members. . . .
       Plaintiffs Reeb and Brown, members of OCSEA, work as female corrections officers
       at BeCI. Plaintiff Mackey, a member of OCSEA, also works as a corrections officer
       at BeCI; yet, for some period of time starting on May 18, 2000, Mackey worked as
       a secretary in a Temporary Work Level. Plaintiff Beabout, a member of OCSEA,
       began working at [Belmont] in 1995 as a corrections officer; on January 16, 2000,
       Beabout received a promotion to records officer on a permanent basis after holding
       that position on a Temporary Work Level as of December 1, 1999.
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                                    Page 3


        Plaintiffs’ complaint alleges that: 1) plaintiffs “have been treated differently, held
        to a different standard, and given different duties . . . [than] similarly situated male
        corrections officers”; 2) plaintiffs “are frequently required to perform undesirable
        positions at BeCI . . . [while] similarly situated male employees are not assigned to
        such duties”; 3) plaintiffs “are routinely pulled off of their posts and replaced with
        male [o]fficers because [p]laintiffs are not seen as able to handle difficult situations
        that may arise with inmates”; 4) plaintiffs “are routinely denied leave and/or
        overtime, despite having valid excuses or reasons, while similarly situated male
        [o]fficers are granted leave and/or overtime for much less valid excuses”; 5)
        plaintiffs are “routinely written up for alleged infractions or rule violations . . . while
        similarly situated males are not disciplined for the same or more severe infractions”;
        6) plaintiffs “have been denied training for various reasons . . . [while] similarly
        situated male employees have not been denied such training for the same or any
        reasons”; 7) those female employees who “claimed to have had [sexual] relations
        with the [w]arden . . . and other supervisors” are “treated substantially better than the
        rest of the class”; 8) plaintiffs are not promoted while less qualified male officers are
        promoted because such officers socialize with and bestow various gifts or services
        upon the warden; 9) plaintiffs have been retaliated against “in the form of increased
        scrutiny on their behavior and more disparate treatment” because they filed
        “numerous grievances and complaints regarding such discriminatory treatment” and,
        subsequently, hired legal counsel; 10) “[m]ale officers routinely allow the male
        inmates to harass, intimidate, and threaten [p]laintiffs”; 11) the warden “has
        interfered with the methods and developed processes” that are to protect employees
        such that plaintiffs have been unable to obtain relief with [Belmont]; and
        12) plaintiffs “have routinely been denied promotions . . . over less qualified,
        similarly situated male correction[s] officers” such that males hold seventeen out of
        eighteen captain and lieutenant positions. Regarding this last allegation, plaintiffs
        further allege that [Belmont] “circumvents the [usual] requirements of posting and
        interviewing for a [promotion] position” by routinely using “a ‘temporary position’
        to place hand-selected males into a promotion position over more qualified females”
        and later making such “temporary positions” permanent so as to prevent plaintiffs
        “from even applying for such positions.”
        The complaint seeks $2 million in compensatory damages, $3 million in punitive
        damages, attorneys’ fees and costs, and declaratory relief. The complaint explicitly
        seeks neither injunctive relief nor a preliminary injunction. Plaintiffs assert that their
        request “[t]hat the rights of class members to the relief sought herein be adjudicated
        and declared” is sufficient to state a claim for injunctive relief. In their motion for
        class certification, plaintiffs expressly state that, among other relief, they seek
        injunctive relief. Plaintiffs do not specify what that injunctive relief would entail.
Reeb II, 81 Fed. Appx. at 551-52.
        On October 25, 2001, the district court certified the class to include “[a]ll those female
employees of Defendant Belmont Correctional Institute [sic], past or present, who are members of
the OCSEA and who now work, or at any time during the five years preceding the commencement
of this action, worked for [Belmont].” Reeb I, 203 F.R.D. at 320. It found the commonality and
typicality requirements met because each of the individual plaintiffs claimed to have been the victim
of discrimination on the basis of sex as a result of the defendant’s general policy. Id. at 320-22. In
finding that the class should be certified under Rule 23(b)(2), the court stated that the plaintiffs “will
feel their rights have been vindicated not by an award of monetary damages alone, but by effecting
a change in the way their employer treats females.” Id. at 323-24. However, the court did not make
any findings detailing how it reached its conclusion that the requirements of the rule had been met
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 4


other than to state that it could certify a class action under Rule 23(b)(2) “as long as money damages
do not constitute the predominate [sic] type of relief requested.” Id. at 323. It did find, however,
that it could not certify the class under Rule 23(b)(3) because the individual considerations regarding
the employer’s motivation behind its actions towards each plaintiff and her entitlement to
compensatory damages would predominate over the common issues in the case, namely Belmont’s
policy of gender discrimination. Id. at 324.
         We permitted an appeal of the certification for the purpose of determining when injunctive
relief “predominates” in an action in which compensatory damages are also claimed for the purposes
of certification under Rule 23(b)(2). Reeb II, 81 Fed. Appx. at 553-54. However, we believed it
improper to rule on that basis because the record did not show that the district court had conducted
a rigorous analysis of the Rule 23(a) factors, and we therefore remanded for closer consideration of
whether the Rule 23(a) factors had been met. Id. at 554, 559. Moreover, we noted that the district
court, at the time it originally certified the class, did not have the benefit of our opinion in Coleman
v. GMAC, 296 F.3d 443 (6th Cir. 2002), in which we stated that Equal Credit Opportunity Act
(ECOA) plaintiffs seeking compensatory damages cannot seek class certification under subdivision
(b)(2) because the request for such damages necessarily predominates over any requested injunctive
or declaratory relief.
        On remand, the district court did not provide the parties the opportunity to present additional
evidence or briefs, but issued an order recertifying the class as “all those female employees of
Defendant Belmont Correctional Institute [sic], past or present, who are members of the OCSEA and
who now work, or at any time during the five years preceding the commencement of this action,
worked for the Defendant Belmont Correctional Institute [sic] as corrections officers.” Reeb III, 221
F.R.D. at 469. Addressing commonality, the court stated that it needed to find only one issue in
common among the class members and that “the issue of whether the Defendant’s alleged practices
violate federal law is a question common to the class.” Id. at 475. The district court then went on
to say that this was not a case where one person suffered a discrete act of discrimination and then
sued on behalf of a class of which he happened to be a member; rather, this is a case where the
allegation is that the plaintiffs are all members of a class that has been discriminated against based
on membership in that class. Id. at 476.
       The district court stated that the typicality requirement is met “as long as each class
member’s claim arises from the same course of events.” Id. at 478 (citing Robidoux v. Celani, 987
F.2d 931, 936 (2d Cir. 1993)). The typicality requirement was satisfied, the court said, because all
members of the class—including the named plaintiffs—allegedly suffered as a result of the broad
policy of sex discrimination. Id. at 478-79.
         Finally, with regard to certification under Rule 23(b)(2), the district court distinguished
Coleman and found that the damages sought in this case would be “relatively simple” to determine
and are more like back pay than the compensatory damages sought in Coleman. Id. at 481. It did
not discuss the other damages sought, such as the Title VII damages sounding in tort, the claims for
medical damages by the four named class members, and two instances of depression claimed by the
named members. The district court certified the class under subdivision (b)(2), noting the rationale
of the Second Circuit in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir.
2001): “(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring
the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory
relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on
the merits.” Id. at 482.
       Belmont again appeals, arguing that Rule 23(b)(2) classes cannot be certified when plaintiffs
request compensatory damages or that, at the very least, they can not be certified in Title VII cases
when the plaintiffs request compensatory damages.
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                                 Page 5


                                       II. Standard of Review
         We may permit an immediate appeal of a district court’s decision as to class certification,
FED. R. CIV. P. 23(f), and we review the order for an abuse of discretion. Alkire v. Irving, 330 F.3d
802, 810 (6th Cir. 2003); Coleman, 296 F.3d at 446; Sterling v. Velsicol Chem. Corp., 855 F.2d
1188, 1197 (6th Cir. 1988). The district court maintains substantial discretion in determining
whether to certify a class, as it possesses the inherent power to manage and control its own pending
litigation. Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th Cir. 2000). However, we will find an abuse
of discretion when the district court relies on erroneous findings of fact, applies the wrong legal
standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error
of judgment. Schachner v. Blue Cross & Blue Shield, 77 F.3d 889, 895 (6th Cir. 1996); Bowling v.
Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996); First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641,
647 (6th Cir. 1993).
                                           III. Rule 23(a)
        Federal Rule of Civil Procedure 23(a) provides the prerequisites to certifying a class under
one of the Rule 23(b) provisions, stating:
        One or more members of a class may sue or be sued as representative parties on
        behalf of all only if (1) the class is so numerous that joinder of all members is
        impracticable, (2) there are 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.
FED. R. CIV. P. 23(a).
        In Reeb II, we instructed the district court to conduct a “rigorous analysis” of the issues
necessary to show that the requirements of Rule 23(a) have been met. Reeb II, 81 Fed. Appx. at 559.
We noted that the court could not perform this function without more precise information as to the
nature of each of the named plaintiffs’ individual discrimination claims. Id. at 556, 559. Upon
remand, the district court did not conduct any more hearings and simply attempted to clarify its
earlier order by issuing a new one with a new analysis. In doing so, it failed to explicitly examine
the named plaintiffs’ claims and noted only the plaintiffs’ assertion that Belmont had a “general
policy” of discrimination. Reeb III, 221 F.R.D. at 474.
         As we noted in Reeb II, the Supreme Court’s decision in Gen. Tel. Co. of the Southwest v.
Falcon, 457 U.S. 147 (1982), requires plaintiffs requesting class certification in a case raising
generalized Title VII discrimination claims to allege “‘significant proof’ that [Belmont] operated
under a general policy of gender discrimination that resulted in gender discrimination manifesting
itself in ‘the same general fashion’ as to each of the kinds of discriminatory treatment upon which
the pattern-or-practice class action rests.” Reeb II, 81 Fed. Appx. at 559. The district court, upon
remand, noted that Falcon dealt with only one plaintiff whose case could have been significantly
different from the claims of other class members, whereas this case presents several named plaintiffs
who suffered a variety of harms. Reeb III, 221 F.R.D. at 475.
         We believe that the record in this case is not sufficient for the district court to have
conducted the analysis it needed to do in order to make sure the Falcon requirements were met. The
district court’s opinion after the first remand did not adequately examine just what the named
plaintiffs are seeking, nor did it review any evidence as to the likely claims that the rest of the class
will assert. For example, in order to find typicality and commonality, the precise nature of the
various claims must be examined.
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                                Page 6


        The district court found the commonality element of subdivision (a) met “[b]ecause the issue
of whether the Defendant violated Title VII will be common to the class . . . .” Reeb, 221 F.R.D.
at 477. If this were the test, every plaintiff seeking to certify a class in a Title VII action would be
entitled to that certification. Plaintiffs argue that the Falcon case allows for a finding of
commonality whenever a plaintiff asserts that an employer’s decision-making with regard to all
employees in the protected group manifests itself in the same general fashion. However, this
argument ignores the fact that the same general policy of discrimination can affect many different
aspects of employment, such as hiring, firing, promoting, giving benefits, providing vacation time,
or delegating work assignments.
        Moreover, the typicality requirement is not met if the named plaintiffs do not represent an
adequate cross-section of the claims asserted by the rest of the class. Employment discrimination
claims require proof that particular managers took particular employment actions and that either the
managers were motivated by a discriminatory animus or the actions resulted in a disparate impact
upon the class; the district court is therefore required to examine the incidents, people involved,
motivations, and consequences regarding each of the named plaintiffs’ claims to determine the
typicality element of Rule 23(a). See Falcon, 457 U.S. at 159 n.15 (“Title VII prohibits
discriminatory employment practices, not an abstract policy of discrimination. The mere fact that
an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or
national origin is insufficient to establish his standing to litigate on their behalf all possible claims
of discrimination against a common employer”) (emphasis in original). If there are members of the
class that will be asserting any or all of these claims, then there needs to be a class representative
who is arguing the same thing–or the plaintiffs must show how their claims are typical in the
absence of such a named plaintiff–in order for the district court to find typicality.
        Here, the district court seems to have found that the presence of a common question of law
regarding whether Belmont had a policy of discriminating against women satisfied both the
typicality and commonality elements, but a general policy of discrimination is not sufficient to allow
a court to find commonality or typicality. See Falcon, 457 U.S. at 159. Because the district court
did not examine the nature of the claims raised by the named plaintiffs and the claims likely to be
raised by other members of the class, the court did not perform the required analysis of these issues.
Indeed, it seems impossible for the court to have done so on the scant record before it at the time it
issued the certification order. Nonetheless, because we conclude below that certification of a
plaintiffs’ class under Rule 23(b)(2) is improper in a Title VII case in which the plaintiffs seek
individual compensatory damages, and because the district court has already determined that Rule
23(b)(1) and (b)(3) class certification is not appropriate in this case, we do not reach the question
of whether the plaintiffs should have the opportunity to present evidence sufficient to make the
required Rule 23(a) showing.
                                          IV. Rule 23(b)(2)
        Federal Rule of Civil Procedure 23(b) authorizes three types of class action suits. To meet
the requirements of the rule, the class representatives must show that action meets all of the
requirements of Rule 23(a) and, for subdivision (b)(2) classes, that the party opposing the class has
affected the class in a way generally applicable to the class as a whole so that final injunctive or
declaratory relief with respect to the entire class is appropriate. FED. R. CIV. P. 23(b)(2). Rule
23(b)(1) and Rule 23(b)(2) authorize “mandatory” class actions under which potential class
members do not have an automatic right to notice or a right to opt out of the class. Rule 23(b)(3),
designed to accommodate claims for money damages, requires notice to the class members,
including the member’s right to opt out of the class, see FED. R. CIV. P. 23(c)(2)(B), and specifies
the factors that a court needs to consider in determining whether common issues predominate. See
FED. R. CIV. P. 23(b)(3).
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                                Page 7


A. Text and History of Rule 23(b)(2)
        The starting point in answering the question of when, if ever, a plaintiff class that is seeking
compensatory damages may be certified under Rule 23(b)(2) is the text of the Rule: “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.” FED. R. CIV. P. 23(b)(2). One interpretation of this language is that the rule
allows class certification for classes that seek injunctive relief or declaratory relief only; the other
interpretation allows class certification wherever a class is formed in which class-wide injunctive
or declaratory relief would be one appropriate means of adjudicating the claim.
         The Advisory Committee Notes to the 1966 amendments to Rule 23 further muddy the issue,
stating that the “subdivision is intended to reach situations where a party has taken action or refused
to take action with respect to a class, and final relief of an injunctive nature or of a corresponding
declaratory nature, settling the legality of the behavior with respect to the class as a whole, is
appropriate.” FED. R. CIV. P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2).
Continuing, the Committee stated that the subdivision is not intended to “extend to cases in which
the appropriate final relief relates exclusively or predominantly to money damages.” Id. Subsequent
amendments in 1987, 1998, and 2003 have either made no substantive change or have changed other
provisions of the rule not applicable to the interpretation of subdivision (b)(2).
        The Supreme Court has never determined whether subdivision (b)(2) classes can be certified
in cases in which, in addition to an injunction, the plaintiffs seek monetary relief. In Ticor Title Ins.
Co. v. Brown, 511 U.S. 117 (1994), a (b)(2) class action, the Court granted certiorari in order to
address whether awarding money damages in a mandatory class (one which does not require notice
and opt-out procedures) violates the due process rights of the absent class members. Id. at 120-21.
The Court dismissed the case, however, because it had not yet decided whether Rule 23(b)(2) allows
a class to pursue money damages, which is a preliminary non-constitutional question. Id. at 121.
B. Other Circuits’ Treatment of the Issue
         In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), the Fifth Circuit reviewed
a district court’s decision not to certify under subdivision (b)(2) a class that involved more than 1000
potential members seeking relief under Title VII for alleged racial discrimination, requesting back
pay, front pay, pre-judgment interest, and attorney’s fees. Id. at 407. The court noted that the Civil
Rights Act of 1991changed Title VII to allow plaintiffs to recover compensatory and punitive
damages from an employer that engaged in an unlawful employment practice. Id. at 409-10 (citing
42 U.S.C. § 1981a(a)(1)). Compensatory damages may include future pecuniary losses, emotional
damages, suffering, inconvenience, mental distress, hedonic losses, and other nonpecuniary losses.
Id. at 410 (citing 42 U.S.C. § 1981a(b)(3)). The 1991 Act’s introduction of jury trials into Title VII
cases, the court explained, created manageability problems with regard to class action cases under
Title VII seeking monetary damages, because the Seventh Amendment and practical considerations
make bifurcation, the appropriate method of adjudicating these claims before the 1991 Act, difficult.
Id.
         The Allison court then noted that the language of Rule 23(b)(2) is silent as to whether
monetary relief may be sought in conjunction with the stated injunctive or declaratory relief, and that
the Advisory Committee Notes state that the rule is intended to cover situations where the requested
relief “relates exclusively or predominantly to money damages.” Id. at 411. From this, the court
opined that “at least some form or amount of monetary relief” could be allowed in (b)(2) class
actions. Id.
       The question, therefore, was what “predominant” means. To answer this question, the court
turned first to the different types of class actions provided for in Rule 23, each of which
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 8


“represent[s] a balance struck . . . between the need and efficiency of a class action and the interests
of class members to pursue their claims separately or not at all.” Id. at 412. The (b)(2) class “was
intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary” and
the (b)(3) class “was intended 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.” Id. (citing Holmes v. Cont’l Can Co., 706 F.2d 1144, 1155 n.8 (11th Cir. 1983), and
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)).
        The mandatory notice and opt-out availability for (b)(3) classes, the court said, demonstrates
the particular concerns that class members have with being members of a class when money
damages are at issue. Id. at 413 (citing FED. R. CIV. P. 23, Advisory Committee Notes, stating that,
to “the degree [that] there is cohesiveness or unity in the class and the representation is effective,
the need for notice to the class will tend toward a minimum”). The disparate intentions and
motivations of plaintiffs are most noted where monetary damages are at issue, which is why the
(b)(3) class mandates notice and the opportunity to opt out and why the (b)(2) class, in which the
form of relief sought is declaratory or injunctive in nature, does not contain such a requirement. Id.
Where claims for individual damages become the more important form of requested relief, “the
presumption of cohesiveness decreases while the need for enhanced procedural safeguards to protect
the individual rights of class members increases . . . thereby making class certification under (b)(2)
less appropriate.” Id. Therefore, the court concluded, monetary relief predominates when its
importance in the litigation suggests that the procedural safeguards found in (b)(3) are necessary.
Id. If monetary relief does predominate, then subdivision (b)(3) is the appropriate means of class
certification. Id.; see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 844-45 (1999) (stating that, in
class actions for money damages, class members are entitled to notice and an opportunity to opt out).
        The court then stated its holding, finding that “monetary relief predominates in (b)(2) class
actions unless it is incidental to requested injunctive or declaratory relief,” and interpreting
“incidental” to mean “damages that flow directly from liability to the class as a whole on the claims
forming the basis of the injunctive or declaratory relief, as the text of subdivision (b)(2) refers to
‘relief appropriate with respect to the class as a whole.’” Id. (internal quotation marks omitted)
(emphasis in original). To be more specific, the court stated that damages in these cases should be
“concomitant with, not merely consequential to, class-wide injunctive or declaratory relief” and that
the computation of such damages should not be “dependent in any significant way on the intangible,
subjective differences of each class member’s circumstances.” Id. at 415. Damages recoverable
would be those that inure to the group benefit, which the court felt was most consistent with the
purpose of the (b)(2) class to begin with. Id.
        The Fifth Circuit viewed this approach as consistent with the position it had taken in past
decisions that back pay could be awarded in Title VII cases to members of a (b)(2) class because
back pay is an equitable remedy that has always been available under Title VII, as opposed to
compensatory and punitive damages, which are legal in nature. Id. at 415-16. It then went on to
find that the plaintiffs in that case had specifically requested back pay, front pay, compensatory
damages, punitive damages, prejudgment interest, attorneys’ fees, and retroactive benefits, and
affirmed the district court’s finding that the presence of claims for individual compensatory and
punitive damages were very particularized inquiries that involve considerations of the effect of the
defendant’s broad policy to an individual’s particular circumstances, and therefore, the damages
were not “incidental” to the requested injunctive or declaratory relief. Id. at 415-17.
        The court found that, especially with regard to emotional harm and other intangible injuries,
plaintiffs must submit proof of actual injury that necessarily differs from person to person because
the nature of the injury is the effect on the person as an individual. Id. at 417. Furthermore, findings
with regard to availability and amount of punitive damages must be tied to the amount of
compensatory damages awarded, so this too turns on individual considerations and is not just a
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                                  Page 9


blanket award based on a showing that a defendant’s conduct has caused some harm. Id. at 417-18
(citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996)). It concluded that, because of the
individual attention required for determining whether non-class-wide compensatory or punitive
damages may be awarded, claims for such damages are not appropriate for a class that is seeking
certification under subdivision (b)(2). The Seventh and Eleventh Circuits have adopted Allison’s
reasoning. See Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577,
581 (7th Cir. 2000); Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894 (7th Cir. 1999); Murray v.
Auslander, 244 F.3d 807 (11th Cir. 2001).
       Not all circuits addressing the issue have agreed with this assessment. The Second Circuit
noted a textual ambiguity in Rule 23(b)(2) and adopted one of the interpretations of the Advisory
Committee Notes cited by the dissenting judge in Allison, stating that a district court may certify a
class under subdivision (b)(2) despite the presence of a request for compensatory and punitive
damages if
       it finds in its informed, sound judicial discretion that (1) the positive weight or value
       [to the plaintiffs] of the injunctive or declaratory relief sought is predominant even
       though compensatory or punitive damages are also claimed, and (2) class treatment
       would be efficient and manageable, thereby achieving an appreciable measure of
       judicial economy.
Robinson, 267 F.3d at 164 (2d Cir. 2001) (internal citation and quotation marks omitted). The court
added that a district court, in deciding whether to certify a class under subdivision (b)(2), must make
sure that plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought even in
the absence of any monetary remedies, and that the injunctive or declaratory relief requested would
be both necessary and appropriate if the plaintiffs were to succeed on the merits. Id. The Ninth
Circuit has also chosen to perform a weighing analysis when determining whether or not injunctive
or declaratory relief predominates over requested damages in an individual case. See Molski v.
Gleich, 318 F.3d 937, 950 (9th Cir. 2003) (refusing to follow Allison because it “would nullify the
discretion vested in the district courts through Rule 23” and might have “troubling implications for
the viability of future civil rights actions, particularly those under the Civil Rights Act of 1991”).
C. Coleman v. GMAC and the ECOA
        We noted in Reeb II that, upon remand, the district court should consider the effect of our
opinion in Coleman v. GMAC on the class-certification decision. Reeb II, 81 Fed. Appx. at 554.
On remand, the district court found that Coleman did not apply and expressly adopted the reasoning
articulated by the Second Circuit in Robinson in reaching its certification decision. See Reeb III,
221 F.R.D. at 480.
        In Coleman, we reviewed a district court’s decision to certify a plaintiff class in which the
plaintiffs asserted that GMAC discriminated against them on the basis of race in violation of the
ECOA. We vacated the class-certification order and remanded for further proceedings in the district
court based primarily on the reasoning in Allison. 296 F.3d at 445-50. The named plaintiff in
Coleman sought certification of a class of plaintiffs defined as “[a]ll African American consumers
who obtained financing from GMAC in Tennessee pursuant to GMAC’s ‘Retail Plan-Without
Recourse’ between May 10, 1989 and the date of judgment and who were charged a finance charge
markup greater than the average finance charge markup charged white consumers.” Id. at 445-46.
GMAC opposed the certification, arguing that “the individualized issues regarding liability and
damages render the suit inappropriate for class treatment.” Id. at 446. As did the district court in
the case before us here, the district court in Coleman found that the proposed class met the
requirements of Rule 23(b)(2), but did not meet the requirements of Rule 23(b)(3) because the
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                            Page 10


plaintiff “had failed to show that individualized factors do not play a role in the [claimed
discriminatory practice].” Id.
       We first noted that there is an “apparent consensus that money damages are recoverable to
some extent in a Rule 23(b)(2) class action,” but we noted as well that the Supreme Court has
expressed concern about the constitutionality of certifying a mandatory class where claims for
money damages were involved. Id. at 447; see also In re Telectronics Pacing Sys., Inc., 221 F.3d
870, 881 (6th Cir. 2000) (stating that “principles of sound judicial management and constitutional
considerations of due process and the right to jury trial all lead to the conclusion that in an action
for money damages class members are entitled to personal notice and an opportunity to opt out”).
We then held that compensatory damages sought under the ECOA are not recoverable by a Rule
23(b)(2) class. Id.
        In making this determination, we found that the defining characteristic of the “mandatory
classes” is the homogeneity of the interests of the members of the class; the more individualized
determinations come into play, the more divergent the interests of the members of the class become.
Id. at 447-48. The (b)(3) class, we said, was created for members with divergent interests, and
provides the protections of notice and the opportunity to opt out. Id. at 448. Further, “class
treatment of the claims for money damages implicates the Seventh Amendment and due process
rights of individual class members.” Id. at 448. Because of these concerns, “close scrutiny is
necessary if money damages are to be included in any mandatory class in order to protect the
individual interests at stake and ensure that the underlying assumption of homogeneity is not
undermined.” Id. (citing Telectronics, 221 F.3d at 881).
         In Coleman, we also examined the Advisory Committee Notes to subdivision (b)(3),
something not done by other courts facing the issue of when to certify a (b)(2) class where
compensatory damages are sought. In examining that commentary, we noted that a district court can
only certify a (b)(3) class where it finds that the common issues predominate because that is the only
situation in which the class action format can serve its function in promoting judicial economy. Id.
A similar concern arises in the (b)(2) context, and one “critical factor” must be whether
compensatory relief requested by the plaintiffs will require individualized damages calculations or
if that relief will be calculable on a class-wide basis. Id.
         Furthermore, we found that the purposes of the class action suit are judicial economy and
the opportunity to bring claims that would not be brought absent the class action forum because it
might not be economically feasible to bring them as individual claims. Id. at 448-49. These benefits
would not be realized where plaintiffs requested compensatory damages under the ECOA, we said,
for three reasons: (1) the request for compensatory damages “undermines the assumption of
homogeneity” of the class because each individual member has a stake in the outcome of the
litigation but would not have the opportunity to opt out in order to protect that interest; (2) the
efficiencies that are to come with class certification would not be realized because of the individual
determinations that would be necessary to calculate the amount of damages to which each class
member is entitled; and (3) the ECOA provision that provides for an award of attorney’s fees and
costs to successful plaintiffs reduces the likelihood that these claims would not be brought absent
class certification. Id. at 449. We found persuasive the fact that the compensatory damages
requested would have to be determined by an individualized inquiry into the amount of interest
charged to each class member, an inquiry which would predominate over the requested injunctive
or declaratory relief. Id.
       Finally, we explained that our holding is not inconsistent with our precedents allowing back
pay as a requested remedy for a certified (b)(2) class because “back pay generally involves less
complicated factual determinations and fewer individualized issues” than the computation of
compensatory damages, and back pay is an equitable remedy that does not implicate the procedural
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 11


and constitutional issues that a damage award does. Id. at 949-50. In sum, we concluded that
ECOA compensatory damages are not recoverable by a Rule 23(b)(2) class, and that the district
court had abused its discretion in certifying the class under Rule 23(b)(2). Id. at 450.
D. Title VII Cases
        Coleman’s reliance on the reasoning in Allison dictates the outcome of this case. Title VII
and the ECOA are virtually indistinguishable in the areas which we thought relevant to our analysis
in Coleman and, in most instances, the characteristics of Title VII counsel more strongly against
allowing individual compensatory damage claims in Rule 23(b)(2) certifications than do those of
the ECOA. First, the individual compensatory damages available under the ECOA involve a fairly
straightforward interest rate calculation, whereas the damages available under Title VII include
future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment
of life, and other non-pecuniary losses. Compare 15 U.S.C. § 1691e(a), with 42 U.S.C.
§ 1981a(a)(1); see also Coleman, 296 F.3d at 449.
       Furthermore, in an ECOA case, only the issue of damages would need to be determined on
an individualized basis. See Coleman, 296 F.3d at 449 (citing Buycks-Roberson v. Citibank Fed.
Savings Bank, 162 F.R.D. 322, 335 (N.D. Ill. 1995)). But in a Title VII case, whether the
discriminatory practice actually was responsible for the individual class member’s harm, the
applicability of nondiscriminatory reasons for the action, showings of pretext, and any affirmative
defense all must be analyzed on an individual basis.
        Finally, we explained in Coleman that whether plaintiffs would bring a suit in the absence
of the availability of a class action is a factor to be considered in determining whether or not to allow
class certifications. Id.; see also Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 329 (1980).
We found that such suits would be brought on an individual basis because of statutory provisions
calling for attorney’s fees and costs to be awarded to successful plaintiffs. Coleman, 296 F.3d at
449. The same can be said in Title VII cases. Title VII provides the same inducement through its
fee-shifting provision, provides an administrative scheme meant to remedy these problems without
ever resorting to lawsuits, and allows the EEOC to bring suit on the individual’s behalf. 42 U.S.C.
§ 2000e-5(a), (b) & (k). There is certainly no lack of individual plaintiffs lining up to bring Title
VII actions, as any cursory search on Lexis-Nexis or Westlaw will illustrate. Indeed, Title VII after
the 1991 amendments appears designed specifically with individual plaintiffs in mind. The district
court cited the possibility of retaliation against those who refused to opt out of the class as a possible
deterrent to bringing suit, but Title VII provides a cause of action for those retaliated against for
participating in a protected activity. See 42 U.S.C. § 2000e-3(a).
        Accordingly, we hold that, because of the individualized nature of damages calculations for
Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the claims for
individual compensatory damages of members of a Title VII class necessarily predominate over
requested declaratory or injunctive relief, and individual compensatory damages are not recoverable
by a Rule 23(b)(2) class. The district court therefore abused its discretion in certifying this class
under Federal Rule of Civil Procedure 23(b)(2). We emphasize, however, that this holding does not
foreclose all Title VII class actions. Plaintiffs now have the choice of proceeding under Rule
23(b)(3) in an action for money damages or in an action under Rule 23(b)(2) for declaratory or
injunctive relief alone or in conjunction with compensatory and punitive damages that inure to the
group benefit. And, as always, plaintiffs remain free to bring Title VII actions as individuals.
                                            V. Conclusion
    For the foregoing reasons, we VACATE the district court’s certification of the class and
REMAND the case to the district court for further proceedings consistent with this opinion.
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                              Page 12


                                        _________________
                                            DISSENT
                                        _________________
        DAMON J. KEITH, Circuit Judge, dissenting. I write separately to express my disagreement
with the majority’s holding. The majority improperly holds that the plaintiffs, female corrections
officers, who claim that their employer Belmont Correctional Institution discriminated against them
based on their sex, cannot bring a class action under Fed. R. Civ. P. 23(b)(2) to collectively enforce
the rights and remedies afforded for such violations under both the Civil Rights Act of 1991, 42
U.S.C. § 1981a, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
         Rejecting the majority’s analysis, I would affirm the district court and hold that it did not
abuse its discretion by not engaging in a Falcon “rigorous analysis” under Rule 23(a). Further, the
district court did not abuse its discretion when it applied the standard in Robinson v. Metro-North
Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) to certify Plaintiffs’ case as a Rule 23(b)(2) class.
See Reeb v. Ohio Dep’t. of Corr. and Rehab., 221 F.R.D. 464, 480 (S.D.Oh. 2004) (“Reeb III”).
I.      RIGOROUS ANALYSIS UNDER RULE 23(a)
        In Reeb II, this Court remanded with instructions for the district court to conduct a “rigorous
analysis” necessary to show that the Plaintiffs had met all of Rule 23(a)’s requirements. Reeb v.
Ohio Dep’t. of Rehab., 81 Fed.Appx. 550, 559 (6th Cir. 2004) (unpublished) (“Reeb II”). The Court
directed the district court to follow the Supreme Court’s precedent in Gen. Tel. Co. of the Southwest
v. Falcon, 457 U.S. 147 (1982).
        The district court admittedly rejected the instructions on remand and properly distinguished
Falcon. The district court distinguished this case from Falcon stating that “Falcon involved one
plaintiff who has been subjected to one form of discrimination, yet he sought to represent a class –
of which he was not a part– that had been subjected to a completely different form of
discrimination.” Reeb v. Ohio Dep’t. of Rehab., 221 F.R.D. 464, 475-76 (S.D.Oh. 2004) (“Reeb I”).
         Notably, the district court properly held the Plaintiffs were able to establish the commonality
and typicality requirements. In regards to commonality, the district court stated that the Plaintiffs
needed only to have one common question of law or fact for class certification. Reeb III at 474. The
district court reasoned that the one common issue of fact was the named Plaintiffs’ allegation that
the defendant maintained a policy of gender discrimination that manifested itself in various ways.
Id. at 474-75 (citing Rule 23(a)(2) and Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir.
1998) (stating that the requirements for Rule 23(a)(2) are low, requiring that there only be “one
common issue the resolution of which will advance the litigation.”)). Here, the Plaintiffs assert that
the discriminatory employment practices affected them as well as other members of the class. The
district court properly noted that
        many of the alleged practices– such as the general claims of different treatment and
        standards, the requirement that women more often perform the undesirable duties,
        and the inability to apply for promotions based on the use of temporary positions–
        are likely to apply to all members of the class, including the named Plaintiffs. Other
        practices– such as the denial of training opportunities and leave, the use of excessive
        discipline as compared to male employees, and the failure to promote– are more
        likely to have applied only to certain of the female corrections officers.
Id. at 475.
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 13


        Further, the district court properly held that Rule 23(a)(3)’s typicality requirement is satisfied
as long as each class member’s claim arises from the same course of events. Reeb III at 478 (citing
Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)). The district court explained that “substantial
identity between the operative facts of the named plaintiffs and the class in general is not
necessary. . . . [w]hen an overarching policy of discrimination is adequately alleged, the fact that
both the named Plaintiffs and the putative class members were equally subjected to that policy is
more important than precise identity between the facts of how the policy impacted each class
member.” Id.
         The majority rejects the district court’s attempt to distinguish Falcon and finds that the
district court did not obtain any new evidence to determine whether Plaintiffs met Rule 23(a)
requirements. Based on the district court’s analysis, I would hold that the district court engaged in
a rigorous analysis sufficient to certify the class under Rule 23(a). While Falcon requires an
individual analysis of each plaintiff, this analysis is not necessary here where the members of the
class have been subjected to a general policy or practice and the legality of that policy is the focus
of the litigation. Reeb III.
II.     CERTIFICATION UNDER RULE 23(b)(2)
        The issue before this Court is one of first impression – namely, whether Title VII plaintiffs
can bring a class action for injunctive or declaratory relief in the same action that seeks
compensatory damages under Fed. R. Civ. P. 23(b)(2). The majority holds that “Title VII cases in
which plaintiffs seek individual compensatory damages are not appropriately brought as class
actions under Rule 23(b)(2) because such claims for money damages will always predominate over
requested injunctive or declaratory relief.” Majority Op. at 2 (emphasis added).
         The majority’s holding usurps the legislative discretionary power granted to the district court
to certify class actions under Fed. R. Civ. P. 23(c) and ignores the plain language of the Rule. The
majority adopts a standard wherein class certification is automatically denied whenever plaintiffs
request individual monetary and injunctive or declaratory relief in the same action.
        A.      Class Actions as a Tool for Fighting Systemic Workplace Discrimination
         The majority’s holding disregards the widespread implications that this holding will have
on Title VII plaintiffs ability to file a class action to address and remedy systemic discrimination in
the workplace. By creating an irrebutable presumption in Rule23(b)(2) class actions that whenever
monetary and injunctive or declaratory relief is sought in the same action, monetary relief always
predominate, the majority prevents plaintiffs who have valid claims for injunctive and monetary
relief from filing a class action under 23(b)(2). This holding eliminates class actions’ power as a
tool to address systemic workplace discrimination and turns the clock back on civil rights.
        The Plaintiffs correctly argued against this approach asserting that it “places victims of
discrimination in a quandary that Congress never intended: they must either abandon the claims for
compensatory damages . . . or they must forfeit the class treatment that may be the only hope for
prevailing and for an injunction that will finally end discrimination.” (Appellee’s Br. at 20.)
        Congress passed the 1991 Civil Rights Amendments “to provide appropriate remedies for
intentional discrimination . . . and [expand] the scope of relevant civil rights statutes in order to
provide adequate protection to victims of discrimination.” Civil Rights Act of 1991, Pub. L. No.
102-166, 3, 105 Stat. 1071 (1991). “In the battle against institutional discrimination, in 1991
Congress amended the Civil Rights Act and provided for the availability of compensatory and
punitive damages for individuals claiming intentional discrimination.” Lesley Frieder Wolf,
Evading Friendly Fire: Achieving Class Certification After the Civil Rights Act of 1991, 100 Colum.
L. Rev. 1847, 1848-49 (2000). The majority’s holding adversely affects this goal and decreases the
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 14


remedies available to Title VII plaintiffs. See Allison, 151 F.3d at 432 (Dennis, J., dissenting) (citing
H.R.Rep. No. 102-40 (I), at 64-65, reprinted in 1991 U.S.C.C.A.N. 549, 602-603 (stating “After the
1991 Civil Rights Act the thrust of Title VII action continues to be society’s interest in eliminating
discrimination and the individual’s interest in being made whole.”)).
        The Advisory Committee Note to Rule 23(b)(2) specifically states that the primary cases that
fall within this Rule are “various actions in the civil-rights field where a party is charged with
discriminating unlawfully against a class, usually one whose members are incapable of specific
enumeration.” Fed. R. Civ. P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2)
(citing pre-1991 amendment civil-rights cases Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey
v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 376 U.S. 910, (1964); Brunson v. Bd. of
Trustees of Sch. Dist. No. 1, Clarendon Cty., S.C., 311 F.2d 107 (4th Cir. 1962), cert. denied, 373
U.S. 933 (1963); Green v. Sch. Bd. of Roanoke, Va., 304 F.2d 118 (4th Cir. 1962); Orleans Parish
School Bd. v. Bush, 242 F.2d 156 (5th Cir. 1957), cert. denied, 354 U.S. 921 (1957); Mannings v.
Bd. of Public Inst. of Hillsborough County, Fla., 277 F.2d 370 (5th Cir. 1960); Northcross v. Bd. of
Educ. of City of Memphis, 302 F.2d 818 (6th Cir. 1962), cert. denied, 370 U.S. 944 (1962); Frasier
v. Bd. of Trustees of Univ. of N.C., 134 F.Supp. 589 (M.D.N.C. 1955, 3 judge court), aff'd 350 U.S.
979 (1956)). These cases demonstrate that historically Rule 23(b)(2) has been used to enjoin
invidious discriminatory policies and practices.
        The majority suggests that the alternative to Title VII class actions that seek injunctive or
declaratory and monetary relief in the same action is for each individual plaintiff to file separate
claims or for the Plaintiffs to proceed under Rule 23(b)(3) for solely monetary damages or 23(b)(2)
for only injunctive or declaratory relief. Majority Op. at 11. The majority asserts that Title VII
plaintiffs will not be foreclosed from filing actions because of the fee shifting provision in 42 U.S.C.
§ 2000e-5(a),(b), and (k) and asserts that there is no lack of Title VII plaintiffs lining up to file
claims. Id.
        This analysis ignores the overall purpose of class actions and the fact that filing a class action
provides greater protections than filing an individual civil rights claim or case where both injunctive
and compensatory damages are sought. “Class action lawsuits are an important and valuable part
of the legal system [because] they permit the fair and efficient resolution of legitimate claims of
numerous parties by allowing the claims to be aggregated into a single action against a defendant
that has allegedly caused harm.” Class Action Fairness Act of 2005, 28 U.S.C. § 1711(a)(1) Note,
Pub. L. No. 109-2, 119 Stat. 4 (2005).
        The inconsistent adjudication of claims on a case by case basis will do absolutely nothing
to remedy systemic workplace discrimination. This holding eliminates the power of class actions
to address systemic discrimination on a broad scale that is unparalleled to filing individual suits.
See W. Lyle Stamps, Notes and Comments: Getting Title VII Back on Track: Leaving Allison Behind
for the Robinson Line, 17 BYU J. Pub. L. 411 (stating that under the Allison rule “potential
defendants are almost relieved from the large monetary and public relations liabilities concomitant
with class action litigation.”).
        In addition, the majority’s holding “derogate[s] from the class action goals of judicial
economy and efficiency; affording aggrieved persons a remedy not otherwise economically feasible;
enhancing access to the courts by spreading costs; and protecting defendants from inconsistent
adjudications.” Allison, 151 F.3d at 428 (Dennis, J. dissenting). Judicial economy and efficiency
are not facilitated by having each individual file separate claims. Id. Further, the adjudication of
multiple suits will only adversely affect the defendant-employer who will have to comply with
multiple inconsistent adjudications.
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 15


      Ultimately, the majority’s holding disarms legitimate classes seeking injunctive and
compensatory relief to enforce statutory rights under Title VII. Id.
        B.      Addressing Coleman and Allison
        The majority relies on the Fifth Circuit case, Allison, and this Circuit’s case, Coleman, in
support of its holding. The majority’s holding creates a rule with an irrebutable presumption where
plaintiffs seeking individual monetary and injunctive or declaratory relief in the same action will
always be denied certification under Rule 23(b)(2). Majority Op. at 2.
        In Allison, the Fifth Circuit set the standard whereby Rule 23(b)(2) certification is only
proper when injunctive relief “predominates” over monetary relief. 151 F.3d at 413. Even though
Allison adopted a rule in which it would be nearly impossible to certify Title VII class actions under
Rule 23(b)(2), it left open the possibility that in some cases where monetary and injunctive relief
are sought the class could be certified. Id. at 411. The Allison court stated “this circuit has chosen
an intermediate approach, neither allowing certification without regard to the monetary remedies
being sought, nor restricting certification to classes seeking exclusively injunctive or declaratory
relief.” Id. at 411. See Majority Op. at 7.
        The majority adopts a standard wherein Title VII plaintiffs must seek exclusively injunctive
or declaratory relief to be certified under Rule 23(b)(2). Specifically, the majority holds that “Title
VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought
as class actions under Rule 23(b)(2) because such claims for money damages will
always predominate over requested injunctive or declaratory relief.” Majority Op. at 2 (emphasis
added). See also, Majority Op. at 11 (holding that “because of the individualized nature of damage
calculations for Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the
claims for individual compensatory damages of members of a Title VII class necessarily
predominate over requested declaratory or injunctive relief, and individual compensatory damages
are not recoverable by a Rule 23(b)(2) class.”) (emphasis added).
        Other circuits that have adopted the Allison standard, including this Circuit in Coleman, have
not adopted an unduly restrictive standard like the majority does in the instant case. See Jefferson
v. Ingersoll Int’l, Inc., 195 F.3d 894 (7th Cir. 1999); see also Murray v. Auslander, 244 F.3d 807
(11th Cir. 2001); In re Monumental Life Ins. Co., 365 F.3d 408, 416-17 (5th Cir. 2004).
        This Court in Coleman, relied on Allison, but did not adopt a standard where a request for
monetary and injunctive or declaratory relief in a case would be fatal to the plaintiffs’ claim. In
Coleman, the plaintiffs alleged that the defendant credit company discriminated against them on the
basis of their race in violation of the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f
(“ECOA”). We applied Allison to assess whether the plaintiffs’ request for compensatory relief
undermined the assumption of homogeneity in a Rule 23(b)(2) action. In making this determination,
we examined (1) whether each individual had a stake in the outcome of the litigation that could be
protected by the opportunity to opt out of the class; (2) whether the individualized determinations
necessary to calculate the amount of damages to each class member would be entitled to eliminates
the efficiencies created by adjudicating these claims on a classwide basis; and (3) whether the
primary justification for class treatment of the claims is largely absent. Coleman, 295 F.3d at 449.
       In Coleman, this Court did not adopt the irrebutable presumption that the majority adopts
today. Instead, the Court stated that the district court must make a determination based on the facts
whether the injunctive relief requested predominates over monetary damages, and noted that money
damages may be recoverable under Rule 23(b)(2). Id.
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                               Page 16


        C.      Plain Language of Rule 23(b)(2)
         The majority exceeds the scope of Coleman and Allison and ignores the plain language of
Rule 23(b)(2). The plain language of Rule 23(b)(2) gives the district court the power to certify a
class when “the party opposing the class has acted or refused to act on grounds generally applicable
to the class, thereby making appropriate final injunctive relief with respect to the class as a whole.”
Fed. R. Civ. P. 23(b)(2).
        The plain language establishes only two requirements: (1) that the party opposing the class
has acted or refused to act on grounds generally applicable to the class and (2) the plaintiffs seek
injunctive relief. “When these two requirements have been met, certification should be granted
because neither the text or its plain meaning establish any further criteria.” Stamps, 17 BYU J. Pub.
L. at 426 (citing Chevron USA v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
        Further, the Advisory Committee Notes support the plain language reading. The Notes
indicate that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates
exclusively or predominately to money damages.” Fed. R. Civ. P. 23, Advisory Committee Notes
1966, Note on Subdivision (b)(2) (emphasis added). Neither the text of Rule (b)(2), nor the
Advisory Committee Note expressly prohibit district courts from certifying class actions in which
the class seeks both injunctive relief and monetary damages. Thus, the majority’s holding does not
comport with the plain language of Rule 23(b)(2) or the Advisory Note.
        D.      Majority Exceeds Judicial Power and Usurps the District Court’s Discretion
      The majority exceeds its judicial power by adopting this rule. The Supreme Court has
admonished that:
        Federal Rules take effect after an extensive deliberative process involving many
        reviewers: a Rules Advisory Committee, public commenters, the Judicial
        Conference, this Court, the Congress. See 28 U.S.C. §§ 2073, 2074. The text of a
        rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to
        amend a rule outside the process Congress ordered, a process properly tuned to the
        instruction that rules of procedure “shall not abridge . . . any substantive right.”
        § 2072(b).
Allison, 151 F.3d at 430 (Dennis, J. dissenting) (citing Amchem Prod., Inc. v. Windsor, 521 U.S. 591
(1997)).
         Specifically, the majority’s holding usurps the discretion granted to district courts in Rule
23(c)(1). Rule 23(c)(1) states “when a person sues or is sued as a representative of a class, the court
must – at an early practicable time – determine by order whether to certify the action as a class
action.” Fed. R. Civ. P. 23(c)(1). This Circuit and the majority opinion acknowledge that “the
district court has broad discretion in determining whether to certify a class, within the dictates of
Rule 23.” In re. Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996); Majority Op. at 5 (citing
Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th Cir. 2000) (stating that “[t]he district court maintains
substantial discretion in determining whether to certify a class, as it possesses the inherent power
to manage and control its own pending litigation.”)). By adopting an irrebutable presumption rule,
the majority improperly eviscerates the district court’s legislatively granted discretion to certify class
actions under Rule 23(c)(1).
        To give effect to all of the provisions of Rule 23, this Court must adopt a standard wherein
the district court is given discretion “to consider all of the evidence and arguments of counsel before
certifying a class.” Hoffman v. Honda of America Mfg., 191 F.R.D. 530, 535 (N.D. Oh. 1999). See
also, Moliski v. Gleich, 318 F.3d 937, 949-950 (9th Cir. 2002) (holding that decisions based on per
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                              Page 17


se rules are not appropriate because they nullify the discretion vested in the district court through
Rule 23). See also, Reeb I at 323 (properly noting that the court exceeds its judicial powers when
it reads the Rules of Civil Procedure as eviscerating substantive rights granted by Congress). See
also Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir. 2005) (stating that
“a statute should be construed to accord meaning and effect to each of its provisions.”); Caferelli
v. Yancy, 226 F.3d 492 (6th Cir. 2000) (same); Menuskin v. Williams, 145 F.3d 755 (6th Cir. 1998)
(same); Fed. Express Corp. v. United States Postal Serv., 151 F.3d 536, 546 (6th Cir. 1998) (same).
In adopting a narrow rule, the majority exceeds its judicial power.
       E.      Individualized Treatment of Class Plaintiffs
        The majority’s holding is based on the assertion that allowing Title VII class actions under
23(b)(2) will result in numerous individualized determinations for damages, which will undermine
the homogeneity of a class action. Majority Op. at 10-11. The majority states that the damages
available under Title VII, “includ[ing] future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses” will result
in individualized determinations. Majority Op. at 11. Further, the majority claims that this case
cannot be certified under Rule 23(b)(2) because “whether the discriminatory practice actually was
responsible for the individual class member’s harm, the applicability of nondiscriminatory reasons
for the action, showings of pretext, and any affirmative defense all must be analyzed on an
individual basis.” Majority Op. at 11.
        The majority’s rationale underlying its holding would make it impossible to certify a Title
VII class action under any of the provisions in Rule 23(b)(2). Further, other courts have already
addressed this issue by bifurcating the liability and damages phases of the trial. Allison, 151 F.3d
at 433 (Dennis, J. dissenting) (noting “Title VII class actions for disparate treatment have
traditionally been conducted in two stages.”)). The Allison dissent, cites Baxter v. Savannah Sugar
Refining Corp., 495 F.2d 437, 443-44 (5th Cir. 1974), to explain the bifurcation of Title VII class
actions. The Baxter court stated that:
       A Title VII class action presents a bifurcated burden of proof problem. Initially, it
       is incumbent on the class to establish that an employer's employment practices have
       resulted in cognizable deprivations to it as a class. At that juncture of the litigation,
       it is unnecessarily complicating and cumbersome to compel any particular
       discriminatee to prove class coverage by showing personal monetary loss. What is
       necessary to establish liability is evidence that the class of black employees has
       suffered from the policies and practices of the particular employer. Assuming that
       the class does establish invidious treatment, the court should then properly proceed
       to resolve whether a particular employee is in fact a member of the covered class, has
       suffered financial loss, and thus entitled to back pay or other appropriate relief.
Allison, 151 F.3d at 443 (emphasis in original) (citing Baxter, 495 F.2d at 443-44; Int’l Brotherhood
of Teamsters v. United States, 431 U.S. 324, 360, 97 S.Ct. 1843 (1977); Franks v. Bowman Transp.,
424 U.S. 747, 772, 96 S.Ct. 1251 (1976)).
         Bifurcated phases of Title VII class actions contemplate separate and distinct issues. Id. The
first stage focuses exclusively on class-wide claims. Id. (citing Price Waterhouse v. Hopkins, 490
U.S. 228, 245 n. 10 (1989) (stating that the focus in Stage I is not on individual hiring decision, but
on a pattern of discriminatory decisionmaking) (quotations and citations omitted). Once it has been
shown that the employer maintained a policy or practice that unlawfully discriminates in the first
stage, the second stage focuses on whether individual employment decisions were made pursuant
to any such procedure or policy. Id.
No. 04-3994           Reeb v. Ohio Dep’t of Rehab. and Correction                              Page 18


        Some courts have expressed concerns with the constitutionality of certifying a class action
for monetary relief under Rule 23(b)(2) under this procedure. The constitutional concern is that
certification under Rule 23(b)(2) is never appropriate because it binds all class members without the
safeguards of notice and opportunity to be heard. Robinson, 267 F.3d at 164. This concern arises
from the Supreme Court cases Ticor v. Brown, 511 U.S. 117, 114 S.Ct. 1359 (1994) and Ortiz v.
Fiberboard Corp., 527 U.S. 815, 119 S.Ct. 2295 (1999). In Ticor, the Supreme Court stated that
there is at least a substantial possibility that in actions seeking monetary damages, classes can be
certified only under Rule 23(b)(3), which permits opt-out. 511 U.S. at 121. In Ortiz, the Supreme
Court suggested that a mandatory class seeking monetary damages should not be certified under
Rule 23(b)(2) because such a class compromises the due process rights of absent class members.
See also, Coleman, 296 F.3d at 447.
        The solution may be to bifurcate the liability and damages portion of the trial and grant the
plaintiffs opt-out rights with regards to their claims for monetary damages. See Rule 23(c)(4)(A)
(providing that “an action may be brought or maintained as a class action with respect to particular
issues.”); Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir. 1997) (holding that the language of
Rule 23 is sufficiently flexible to afford the district court discretion to grant opt-out rights in Rule
(b)(1) and (b)(2) class actions). This would result in the certification of a hybrid class action under
Rule (b)(2) and (b)(3). This may address the constitutional concerns that could arise when certifying
a Rule 23(b)(2) class that seeks monetary damages.
       F.       The Appropriate Standard
        The district court did not abuse its discretion when it adopted the Robinson standard.
Preliminarily, the Coleman case, on which the majority relies, can be distinguished from this case
and is not applicable. Further, in Robinson, the Second Circuit adopted a standard that
appropriately gives the district court discretion and is congruent with the purpose of both the Fed.
R. Civ. P. 23(b)(2) and the amendments 1991 to Title VII, 42 U.S.C. § 1981a. This Court should
do the same.
         The majority improperly states that Coleman’s reliance on Allison dictates the outcome of
this case. Majority Op. at 11. First, this case is a Title VII case, which necessitates applying a
different standard than the ECOA claim in Coleman. In Coleman, this Court specifically stated “it
is unnecessary for us to reach the question of whether money damages are ever recoverable in a
23(b)(2) class action, however, because we hold that compensatory damages under the ECOA are
not recoverable by a 23(b)(2) class.” 296 F.3d at 447. Thus, this Court in Coleman limited its
holding to ECOA cases, and left open the possibility that monetary relief may be recoverable to
some extent in other Rule 23(b)(2) class actions. The holding of Coleman does not affect this case
since it was limited to the ECOA and did not extend to Title VII cases.
       In addition, the district court properly distinguished Coleman on the basis of the
individualized determinations required to calculate damages. Reeb III at 481. The district court
stated that “the damages sought here, however, seem more akin to back pay than to the
compensatory damages sought in Coleman. In Coleman, the court noted that ‘determining the
damages of each class member in this case would involve investigation into the practices of multiple
auto dealerships whereas a back pay claim typically involves the practices of a single employer.’”
Reeb III at 481. The district court went on to note that individual damage assessment would be
necessary, if the case proceeded to the liability phase, but stated that a damages’ determination
would involve only the practices of a single employer and would be simple in comparison to the
damage claims in Coleman. Id.
       This Court should adopt the Second Circuit’s holding in Robinson. The Robinson court
adopted an ad hoc balancing test where the “district court should at minimum, satisfy itself of the
No. 04-3994            Reeb v. Ohio Dep’t of Rehab. and Correction                                Page 19


following: (1) even in the absence of a possible monetary recovery, reasonable plaintiffs would
bring the suit to obtain injunctive or declaratory relief sought; and (2) the injunctive or declaratory
relief sought would be both reasonably necessary and appropriate were plaintiffs to succeed on the
merits.” 267 F.3d at 164. In adopting this standard, the court intended “that when presented with
a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental
monetary damages, a district court must consider the evidence presented at a class certification
hearing and the arguments of counsel, and then assess whether (b)(2) certification is appropriate in
light of the relative importance of the remedies sought, given all of the facts and circumstances of
the case.” Id. See also, Hoffman, 191 F.R.D. at 536; Eubanks, 110 F.3d at 92 (stating that Title VII
and other civil rights class actions are frequently certified pursuant to Rule 23(b)(2) noting that
“although the defining characteristic of the (b)(2) class is that it seeks declaratory or injunctive relief
application to the class as a whole, it is not uncommon in employment discrimination cases for the
class also to seek monetary relief in the form of front or back pay.” (citations omitted)).
III.    CONCLUSION
        For the foregoing reasons, I affirm the district court’s decision. The majority improperly
holds that Title VII plaintiffs will never be able to obtain certification under Fed. R. Civ. P. 23(b)(2)
to collectively enforce the rights and remedies under both the 1991 Civil Rights Act, 42 U.S.C.
§ 1981a, and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e. This holding eliminates
class actions’ power as a tool to address systemic workplace discrimination and turns the clock back
on civil rights. I cannot endorse this holding because it curtails the relief available to Title VII
plaintiffs. This holding will obstruct employees’ ability to eradicate an employer’s discriminatory
workplace policies and practices. I vigorously dissent. It is unfortunate that the majority has chosen
this case to roll back the clock on years of workplace based civil rights legislation. Until Congress
has definitively spoken on this issue, neither should we.
