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

                                 1
No. 01-3520              Bacon, et al. v. Honda of America   3   4        Bacon, et al. v. Honda of America                 No. 01-3520

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

                                                                     3
                                                                       Until 199 2, pro duction asso ciates in MA P Assembly could also seek
                                                                 direct promotion to production staff, who are responsible for special
   1
                                                                 projects and equipm ent-related tasks. After 1992, they had to become
       Hourly wage earners entitled to overtime                  team leaders first.
No. 01-3520          Bacon, et al. v. Honda of America        5    6     Bacon, et al. v. Honda of America             No. 01-3520

Amendment concerns made bifurcation and certification of           Numerosity
certain issues improper, or at least prevented that process
from being the most fair and efficient way to litigate the           There is no automatic cut-off point at which the number of
claims. Id. at 490.                                                plaintiffs makes joinder impractical, thereby making a class-
                                                                   action suit the only viable alternative. In re Am. Med. Sys.
   Honda moved for summary judgment on plaintiffs’                 Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). However, sheer
individual claims. The plaintiffs filed a Rule 56(f) motion in     number of potential litigants in a class, especially if it is more
response, requesting a revised discovery schedule and a new        than several hundred, can be the only factor needed to satisfy
trial date. The district court denied the motion, although it      Rule 23(a)(1). 1 Herbert B. Newberg & Alba Conte, Newberg
allowed one additional deposition. On April 30, 2001, the          on Class Actions, § 3:5, at 243-45 (4th ed. 2002). The facts
district court granted summary judgment to Honda on the            of the case guide a court’s determination that the class is
individual claims of Bacon and Harden. That order throughly        sufficiently large to make joinder impractical. Gen. Tel. Co.
addressed each of the plaintiffs’ claims under both the            v. EEOC, 446 U.S. 318, 330 (1980). In this case, Bacon
disparate impact and disparate treatment theories. This appeal     proposes a class of some 800 current and former African-
followed.                                                          American Honda employees, a number well beyond the point
                                                                   that joinder would be feasible. The requirement of Rule
                              II                                   23(a)(1) is met.
Class Action Certification                                         Commonality
  This court reviews denial of class action certification for         In order to show disparate treatment, a potential class
abuse of discretion. Alkire v. Irving, 330 F.3d 802, 810 (6th      representative must show that the employer intentionally
Cir. 2003). In order for one or more litigants to represent all    discriminated against a protected class and that there are
parties in a class, four prerequisites must be met: “(1) the       questions of law or fact common to the class. Falcon, 457
class [must be] so numerous that joinder of all members is         U.S. at 162 (Burger, C. J., concurring in part). The Supreme
impracticable, (2) there [must be] questions of law or fact        Court has noted that class certification is “appropriate . . .
common to the class, (3) the claims or defenses of the             [when] [i]t is unlikely that differences in the factual
representative parties [must be] typical of the claims or          background of each claim will affect the outcome of the legal
defenses of the class, and (4) the representative parties [must]   issue.” Califano v. Yamasaki 442 U.S. 682, 701 (1979)
fairly and adequately protect the interests of the class.” Fed.    (upholding class certification for litigation of an issue of
R. Civ. P. 23(a). In this case the district court conducted the    interest to all social security beneficiaries). Variations in the
mandatory “rigorous analysis [to confirm] that the                 circumstances of class members are acceptable, as long as
prerequisites of Rule 23(a) have been satisfied.” Gen. Tel.        they have at least one issue in common. In re Am. Med., 75
Co. v. Falcon, 457 U.S. 147, 161 (1982). We agree with its         F.3d at 1080 (citations omitted) (reversing a grant of
conclusion that the disparate treatment claim fails the second,    certification because the putative plaintiffs had used many
and the disparate impact claim the third, part of the Rule 23(a)   different models of a certain medical device, which had
test.
No. 01-3520               Bacon, et al. v. Honda of America                7    8    Bacon, et al. v. Honda of America           No. 01-3520

produced a range of side effects, so that the malfunction could                   Bacon and Harden are attempting to certify a class of all
not be attributed to a common cause).4                                          African-American workers at Honda’s four Ohio facilities
                                                                                over the past twenty years who were involved in the
  Bacon and Harden were responsible for satisfying the                          company’s promotion system. They assert that “company-
court’s concerns related to whether:                                            wide subjective practices” and “similar promotion criteria”
                                                                                across departments satisfy the requirements of Rule 23(a)(2).
  (i) the nature of the alleged unlawful employment                             Conclusory allegations and general assertions of
  practice genuinely had a class-wide impact;                                   discrimination are not sufficient to establish commonality.
  (ii) employment practices affecting the class were                            Falcon, 457 U.S. at 157. Plaintiffs failed to show how hourly
  uniform or diverse, given factors such as size of the work                    wage earners and salaried employees would have the same
  force, number of plants involved; range of employment                         interests, especially in terms of promotion procedures in
  conditions, occupations, and work activities; geographic                      which at least some of the nonexempt employees would be
  dispersion of the employees and extent of intra-company                       competing to join the ranks of exempt management. They
  employee transfers;                                                           also did not demonstrate how differing promotion criteria for
  (iii) members' treatment would be likely to involve                           jobs as diverse as welding, accounting, and engine-building
  common questions;                                                             could discriminate against each African-American employee.
  (iv) relevant employment and personnel policies and                           Nor did they elaborate on why this court should disregard the
  practices were centralized and uniform; and                                   objective criteria for promotion and find that all African-
  (v) similar conditions prevailed throughout the time                          American employees were harmed by managers “who made
  period covered by the allegations.                                            subjective decisions.”
Stastny v. S. Bell Tel. and Tel. Co., 628 F.2d 267, 277 (4th                       We hold that plaintiffs have failed to produce sufficient
Cir. 1980) (citing Harriss v. Pan Am. World Airways, Inc., 74                   evidence to convince us that the district court abused its
F.R.D. 24, 41 (N.D. Cal. 1977)); Newberg, § 24:21, at 133-34                    discretion in finding that the factors enumerated above had
(requiring a specific showing of underlying facts that might                    not been met. We view with skepticism a class that
raise an inference of a common pattern or practice through                      encompasses 1) both workers and supervisors; 2) production-
allegations of specific incidents of discrimination, supporting                 line workers and those in administrative positions; 3) workers
affidavits, or evidence at the class certification hearing).                    in four plants with different production capabilities; and
                                                                                4) workers and supervisors spread over more than 30
                                                                                departments. Because class members have such different
                                                                                jobs, we find it difficult to envisage a common policy
                                                                                regarding promotion that would affect them all in the same
    4                                                                           manner.
       The district co urt analyzed comm onality separately for the disparate
treatment and disparate impact claims. The court generously concluded
that the clear instances in which Honda’s facially neutral policies would         The only way Bacon and Harden can place such a diverse
not affect the putative class in a uniform manner could be ignored because      group under one umbrella is to demonstrate that Honda
they were “differences [that] are not critical to a finding of com mon ality    operated in a discriminatory fashion against all the workers in
on the disparate impact claim .” Bacon , 205 F.R.D . at 478. For the            the class “through an entirely subjective decision-making
purposes of clarity in this opinion, we assume, without deciding, that the
district co urt was correct.
                                                                                process.” Falcon, 457 U.S. at 159 n.15. If they can make this
No. 01-3520             Bacon, et al. v. Honda of America              9    10   Bacon, et al. v. Honda of America            No. 01-3520

showing, then they can establish commonality and typicality.                making sure that valid claims get to a jury. The constructive
However, Honda’s decision-making is not completely                          subjectivity in Watson cannot substitute for the actual and
subjective: it also uses objective criteria for promotion, such             complete subjectivity required for the exception in Falcon
as time in service, attendance records, and test scores.5 Bacon             because the cases deal with two unrelated legal issues: class
and Harden rebut this by citing another Supreme Court case                  membership and the elements of a prima facie case. We hold
that held that mixed systems for determining promotions                     that the Falcon requirement is not met because the plaintiffs
would “generally have to be subjective in nature.” Watson v.                have not shown that the wide range of class members are all
Ft. Worth Bank & Trust, 487 U.S. 977, 989-90 (1988).                        subject to the same, exclusively-subjective, decision-making
                                                                            process.
   We do not accept the argument that Honda’s decision-
making process is entirely subjective because, as a matter of                  Bacon and Harden rely on Senter v. General Motors Corp.,
fact, it is not. Plaintiffs cannot avoid the heavy lifting of               but the class in that case was more circumscribed: the class
showing eligibility for class certification by conflating two               consisted of “all black employees who, during a period
exceptions to separate rules for adjudicating discrimination                between July 2, 1965 and September 1, 1971, were denied an
cases. An entirely subjective decision-making process may,                  opportunity for promotion to [salaried] supervisory positions
theoretically, allow different kinds of employees to be in the              [from hourly positions] although possessing seniority and
same class – a question of class membership (Falcon). For                   qualifications equivalent to white employees who were so
the entirely separate purpose of establishing a prima facie                 promoted.” Senter v. Gen. Motors Corp., 532 F.2d 511, 523
case of disparate impact, mixed objective and subjective                    (6th Cir. 1976). In contrast, plaintiffs here want to certify a
standards may be considered to be purely subjective                         class of employees who worked at Honda over a period of
(Watson). See 42 U.S.C. § 2000e-2(k)(1)(B)(i).                              twenty years in both hourly and salaried positions with
                                                                            different qualifications and varying levels of seniority. Senter
  The two exceptions are not interchangeable, however.                      focused on one transitional step in the career path of the
Plaintiffs are trying to demonstrate eligibility for class                  plaintiffs over a six-year period: the jump from hourly wage
membership, which is governed by the “entirely subjective”                  earner to salaried employee. In contrast, plaintiffs are
requirement in Falcon. They must prove that the potential                   challenging Honda’s practices for all promotions, regardless
members of the class actually have something in common:                     of department or starting point in the company hierarchy, and
they are subject to random decision-making. As an entirely                  regardless of comparability in objective qualifications.
separate matter, the Court has been cognizant of the                        Therefore, Senter can be distinguished from the facts of this
difficulties inherent in proving discrimination and therefore               case and does not compel us to find that the commonality
set a relatively low bar for establishing a prima facie case.               factor has been met.
See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981) (“The burden of establishing a prima facie                  Typicality
case of disparate treatment is not onerous.”). Therefore,
counting mixed criteria as subjective furthers the goal of                    Assuming, arguendo, that Honda’s promotion procedures
                                                                            had a disparate impact on African-American employees, we
                                                                            hold that neither Bacon nor Harden is a typical member of the
    5                                                                       class. The typicality requirement is designed “to limit the
      See discussion below in Section III, p. 21, rejecting the assertion   class claims to those fairly encompassed by the named
that Honda subjectively applied these criteria.
No. 01-3520          Bacon, et al. v. Honda of America       11    12   Bacon, et al. v. Honda of America           No. 01-3520

plaintiff's claims.” Gen. Tel. Co., 446 U.S. at 330. In order      chances for advancement, we hold that they are not typical of
to meet the typicality requirement, the plaintiffs must show       African-American workers at Honda.
that their “injury arises from or is directly related to a wrong
to a class, and that wrong includes the wrong to the plaintiff.”      Bacon started working at Honda in 1988 and was first
In re Am. Med., 75 F.3d at 1082 (quoting 1 Newberg, supra,         eligible for promotion in April 1990. He was eligible for 13
at § 3-76). However, their personal choices, independent of        months until May 1991, when he transferred to a new
any practices by Honda that have a disparate impact, have          department (MAP assembly). In 1993, when there were three
rendered them ineligible for promotion for the majority of         promotions to team leader, Bacon was not eligible for
their time at the company. Therefore, Honda can assert             consideration because he did not have the 100% attendance
legitimate non-discriminatory reasons, or business reasons,        required for the position and had not completed an overtime
for not promoting them, which would not be available as an         special project (New Honda (NH) Circle) within the last 24
explanation for discrimination against other African-              months, another prerequisite. From 1994 - 96, he did not
American employees.                                                express interest in a production team leader position and so
                                                                   was not eligible for consideration, and he did not take the
   Honda’s career track on the production line starts with         required test in 1996. He transferred to a new department
production associates. The next rung up the ladder is team         (MMP Assembly) in 1997, rendering him ineligible for
leader or production staff. From July 1994 to July 1999, 92%       promotion until February 1998. In April 1998, the promotion
of promoted PAs were elevated to team leader or production         process was changed: to be considered for elevation to team
staff in their home departments. The remaining 8% were             leader, an employee had to submit a pool interest form, which
promoted to a different type of work, such as quality control      Bacon never did.
or administration. In 1992, MAP Assembly, where both
plaintiffs worked for the majority of their tenure, changed its       In order to be considered for a position in a non-production
policy to no longer allow promotion directly from production       department, an employee had to fill out a career interest
associate to production staff; a line worker would have either     application (CIA), which was valid for one year. Bacon filled
to request promotion to team leader, transfer out of the           out CIAs in 1991 (during most of which time he was not
department with the attendant one-year wait for eligibility, or    eligible for any promotion), 1994, 1996, 1997, and 2000.
seek promotion to administration or the quality department.        Selection for interviews under this program was done by
                                                                   blind assessment of the application form. Bacon was selected
  The position of team leader is not inherently desirable: it      for interviews on several occasions, including three times in
requires availability for overtime and imposes added               the purchasing department, but not selected because other
responsibility for a marginal increase in pay. Therefore,          candidates had stronger educational backgrounds and job-
advancement through transfer to a parallel track is desirable,     related experience. Four African-Americans and twelve
but, like any career shift, involves overcoming an experience      Caucasians were promoted through this process from 1993 -
deficit in comparison to other candidates. Both named              2000.
plaintiffs in this case chose to avoid seeking advancement
through becoming a team leader and concentrated on                   Harden was hired in 1988 and became eligible for
acquiring positions in the quality department or                   promotion in March 1990. He expressed interest in
administration. Because this strategy circumscribed their          promotion to team leader or production staff, which remained
                                                                   a possibility for 15 months, until May 1991, when he
No. 01-3520          Bacon, et al. v. Honda of America       13    14   Bacon, et al. v. Honda of America           No. 01-3520

requested, and was authorized, to transfer to another              cannot reasonably represent the interests of those who may
department (MAP assembly), making him ineligible for               have consistently applied for promotion and been turned
promotion for the next 12 months. In 1993, Harden indicated        down for discriminatory reasons.
a desire for promotion to production staff, which was no
longer an option due to the change in policy in MAP                  In sum, to qualify for class certification, all the parts of
Assembly, or to the quality department. He was not                 Rule 23(a) must be met. On their class certification claim
considered for promotion to team leader because he did not         based on disparate treatment, plaintiffs cannot demonstrate a
indicate interest; furthermore, he also did not meet the           common issue of fact or law applicable to every member of
qualification of 100% attendance or participation in overtime      the proposed class. On their disparate impact claim, plaintiffs
special projects required for consideration.                       cannot show that the facially neutral policies regarding
                                                                   promotion affected them in a typical way because they opted
   Harden rejected the most obvious path to advancement and        out of the most common and reliable path of advancement.
was not eligible to be considered for team leader until April      The plaintiffs cannot meet the requirements of Rule 23(a) (2)
1996, when he indicated that he wanted to take the                 and (3) and the district court correctly denied class
qualification test. He received a score of 63 on that exam,        certification.
some ten points below the cutoff, and therefore was not
eligible for a team leader position; he did not take the exam         We therefore do not consider the Rule 23(a)(4) issue of
in 1997. In April 1998, the promotion process was changed          whether the plaintiffs’ attorneys could fairly represent the
and to be considered for elevation to team leader, an              class due to their involvement in parallel litigation against
employee had to submit a pool interest form, which Harden          Honda. In light of the posture of this case, it would be
did not do. In 1999, he did not see the notification, posted on    inappropriate for us to address the split between the Second
September 21, of the October 8 deadline for submitting the         and Fifth Circuits concerning whether monetary damages can
requisite interest form to take the qualification test. He heard   be sought in a Rule 23(b)(2) class action suit, and we do not
about the possibility from his wife around October 2, but was      decide any aspect of that question in this opinion. Compare
out on bereavement leave starting October 3 and did not            Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.
return until October 21, when Honda determined that it was         1998) with Robinson v. Metro N. Commuter R.R., 267 F.3d
too late to sign up for the October 25 test. Harden joined this    147 (2d Cir. 2001). We therefore turn to the plaintiffs’
lawsuit on February 18, 2000.                                      individual claims of discrimination under theories of disparate
                                                                   treatment and disparate impact.
  Therefore, largely as a result of his personal promotion
preference, Harden was eligible for promotion to team leader                                    III
for only 15 months out of the ten years at issue in this case.
He expressed interest in, and pursued, other avenues of            Individual Claims
advancement, most notably inclusion in the pool for
employment in the quality department. Because he was                  The district court granted summary judgment to Honda on
pursuing a different career track, he was unable to compete        Bacon’s and Harden’s claims of individual disparate
with other candidates who had directly relevant experience.        treatment and disparate impact. We review a grant of
Harden was so often ineligible for promotion, particularly for     summary judgment de novo. Pinney Dock & Transp. Corp.
the position of team leader that he was most likely to get, he     v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir. 1988).
No. 01-3520          Bacon, et al. v. Honda of America       15    16    Bacon, et al. v. Honda of America            No. 01-3520

Summary judgment is appropriate where “there is no genuine         improperly analyzed their pattern-or-practice basis for class
issue as to any material fact and . . . the moving party is        certification, they have not specifically challenged the court’s
entitled to a judgment as a matter of law.” Fed. R. Civ. P.        finding that the pattern-or-practice method of proof is not
56(c).                                                             available to them on their individual claims.
Disparate Treatment                                                   We therefore hold that the pattern-or-practice method of
                                                                   proving discrimination is not available to individual plaintiffs.
  The plaintiffs’ claim of disparate treatment is analyzed         We subscribe to the rationale that a pattern-or-practice claim
under the well-known rubic established in McDonnell                is focused on establishing a policy of discrimination; because
Douglas. McDonnell Douglas v. Green, 411 U.S. 792, 802             it does not address individual hiring decisions, it is
(1973). The same basic pattern is used in a claim concerning       inappropriate as a vehicle for proving discrimination in an
racial discrimination in promotion; specifically, each plaintiff   individual case. Lowery, 158 F.3d at 761 (observing that
must show that: (1) he is a member of a protected class; (2) he    “[t]he Supreme Court has never applied the Teamsters
applied for and was qualified for a promotion, (3) he was          method of proof in a private, non-class suit charging
considered for and denied the promotion; and (4) other             employment discrimination. Rather, the Court has noted that
employees of similar qualifications who were not members of        there is a ‘manifest’ and ‘crucial’ difference between an
the protected class received promotions at the time the            individual’s claim of discrimination and a class action
plaintiff's request for promotion was denied. Nguyen v. City       alleging a general pattern or practice of discrimination.”)
of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000). The            (citing Cooper v. Fed. Reserve Bank of Richmond, 467 U.S.
district court provided a detailed analysis demonstrating how      867, 876 (1984)). This reading has also been adopted by at
failure to establish a prima facie case warrants summary           least one district court in this circuit. Herendeen v. Mich.
judgment on the individual claims and we need not belabor          State Police. 39 F. Supp. 2d 899, 905 (W.D. Mich.1999).
the issue, other than to affirm a few critical points of law.      However, pattern-or-practice evidence may be relevant to
                                                                   proving an otherwise-viable individual claim for disparate
Pattern-or-Practice Method of Proof                                treatment under the McDonnell Douglas framework.
  The district court found, based on the weight of authority       Exemption from Application Requirement
outside the Sixth Circuit, that the pattern-or-practice method
of proving discrimination, in which the plaintiff shows that          As demonstrated above, Bacon and Harden were not
the company had a policy of discriminating against a               eligible for promotion for a sizable percentage of their tenure
protected class, is not available to individual plaintiffs. See,   at Honda, and/or did not apply to be in the available
e.g., Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761       promotion pools, as required in part two of the test for a
(4th Cir. 1998), vacated on other grounds, 527 U.S. 1031           prima facie case. They now argue that they should be exempt
(1999); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d         from such a requirement because, given the discriminatory
Cir. 1998). All interpret the Supreme Court’s discussion of        nature of promotions at Honda, such an application would
the pattern-or-practice method of proof as being limited to        have been futile. Although it is true that failure to apply for
class actions or suits by the government. Int’l Bhd. of            a promotion may be excused, the circumstances must reveal
Teamsters v. United States, 431 U.S. 324, 359-60 (1977).           “overwhelming evidence of pervasive discrimination in all
Although plaintiffs argue on appeal that the district court        aspects of [the employer’s] internal employment practices,
No. 01-3520          Bacon, et al. v. Honda of America       17    18   Bacon, et al. v. Honda of America            No. 01-3520

and [that] . . . any application would have been futile and        Disparate Impact
perhaps foolhardy.” Harless v. Duck,, 619 F.2d 611, 617-18
(6th Cir. 1980) (quoted in Kreuzer v. Brown, 128 F.3d 359,           Disparate impact analysis is used when an employer’s
364 n.2 (6th Cir. 1997)). Plaintiffs cannot come close to          facially neutral policy adversely affects a protected class.
meeting this standard. Not only did other African-Americans        Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). To
receive some of the promotions for which the plaintiffs            show disparate impact, it is not necessary to show an intent to
applied, but Bacon’s supervisor expressed willingness to help      discriminate, but the plaintiff must demonstrate a connection
him in his application to the purchasing department. Nor was       between the challenged practice and the resulting disparities
the application process arduous; in most cases, all the            between protected and non-protected classes. Wards Cove
plaintiffs had to do was fill out a form expressing interest. It   Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (clarifying
is not unreasonable to expect plaintiffs to make such a            that the “plaintiff must demonstrate that it is the application
minimal effort to preserve their rights.                           of a specific or particular employment practice that has
                                                                   created the disparate impact under attack”). Generally
  Plaintiffs also rely on the holding in Mauro v. Southern         disparate impact analysis is used in a class action, but it may
New England Telecomms., Inc., 208 F.3d 384, 386-87 (2d Cir.        also form the basis of an individual claim. See Gantt v.
2000), that the application requirement did not apply when         Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir.
the plaintiff expressed interest in promotion to a class of        1998) (ADEA context). The district court determined that
positions but was unaware of specific positions because they       basic requirements of standing mean that an individual
were not posted. See also Dews v. A.B. Dick Co., 231 F.3d          plaintiff must show that the facially neutral policy resulted in
1016, 1022 (6th Cir. 2000) (recognizing exception to               discrimination that resulted in personal injury. Coe v. Yellow
application requirement when employer does not notify              Freight System, Inc., 646 F.2d 444, 451 (10th Cir. 1981). See
employees of available promotion and does not provide              also Robinson v. Polaroid Corp., 732 F.2d 1010, 1016-17 (1st
formal mechanism for expressing interest in promotion).            Cir. 1984); Carpenter v. Bd. of Regents of Univ. of Wis. Sys.,
Although each production department only posted its                728 F.2d 911, 915 (7th Cir. 1984). Plaintiffs have not
promotion opportunities internally, the requirement of one-        challenged this conclusion.
year’s tenure in the department meant that all those eligible to
respond had access to the announcement. Although it is true           In Warth v. Seldin, the Supreme Court explained the basic
that submitting an application to the quality department and       principles of standing, which mandate that a plaintiff have a
non-production pools was not tantamount to applying for a          “personal stake in the outcome of the controversy” and that
specific job, managers conducted a blind review of all eligible    the plaintiff must have suffered some real or threatened
candidates, not knowing name, background, or racial profile.       injury. Warth v. Seldin, 422 U.S. 490, 498 (1975) (quotation
Those who were deemed qualified were then put in a pool and        marks and citation omitted). From these basic principles, it
interviewed as vacancies occurred. Therefore, we see no            is natural for us to hold that an individual plaintiff arguing a
basis for waiving the general requirement that a plaintiff must    disparate impact theory must show that the challenged policy
have applied for a position in order to assert that he was         directly disadvantaged him in some fashion. See Bowdish v.
denied the position because of discrimination.                     Cont’l Accessories, Inc., No. 91-1548, 1992 WL 133022, at
                                                                   *5 (6th Cir. June 12, 1992) (noting an “individual plaintiff in
                                                                   an employment discrimination case must present some
                                                                   evidence that demonstrates that his or her individual
No. 01-3520          Bacon, et al. v. Honda of America      19    20   Bacon, et al. v. Honda of America            No. 01-3520

discharge was the result of discrimination”) (unpublished            Once the plaintiff establishes that a facially neutral policy
opinion) (citing Gilty v. Village of Oak Park, 919 F.2d 1247,     has an adverse effect on a protected class, the burden of
1253 n.8 (7th Cir.1990)).                                         production and persuasion shifts to the employer to show that
                                                                  the challenged practice is a business necessity. United States
   Bacon and Harden contend that Honda’s requirements for         v. City of Warren, 138 F.3d 1083, 1091-92 (6th Cir. 1998).
attendance, time in department, testing, and overtime             Therefore, even if we were to find a connection between the
activities in determining eligibility for promotion               attendance policy and promotion opportunities for minority
disproportionately disadvantage African-Americans.                workers, Honda certainly has a legitimate business reason for
Whatever the validity of those disparate impact claims, and       demanding near-perfect attendance from its employees.
the statistical evidence is complex and heavily disputed, we      Plaintiffs could rebut this by offering an alternative that
agree with the district court that the plaintiffs cannot show     would not have the discriminatory impact but would
that the policies injured them personally, and therefore their    nevertheless serve the employer's legitimate interests. Wards
claim must fail.                                                  Cove, 490 U.S. at 660. Bacon and Harden have not offered
                                                                  another system for making sure that the production line is
Attendance                                                        always sufficiently staffed.
  Plaintiffs’ expert found that more African-Americans than         Nor have Honda’s attendance requirements injured the
other employees were noted as being late or absent. Plaintiffs    plaintiffs; both men have generally maintained attendance
claim discrimination in “excusing” the absences, resulting in     records that would not have prevented them from being
more African-Americans being ineligible for promotion due         promoted. Bacon was counseled for not meeting the required
to Honda’s stringent attendance requirements. Plaintiffs          98% attendance level in 1997 but not at the managerial level.
overlook the fact that the basic attendance records are           An employee is ineligible for promotion for one year after a
generated by computer time clocks. Employees may expunge          managerial-level counseling, but a similar session with a
the record of tardiness or absence by applying personal or        lower-level supervisor does not preclude advancement. Even
vacation time to make up for the missing time. We have no         if Honda management abused the system by
explanation for the fact that fewer African-Americans chose       disproportionately counseling African-Americans at the
to use their vacation time to make up for being late or           managerial level, neither Bacon nor Harden was subjected to
unexpectedly absent, but see nothing in the record to indicate    this treatment and therefore cannot raise it as part of an
that disparity is the result of discrimination.                   individual disparate impact claim.
  The only possible theory would be that Honda somehow            Time in Department
induced blacks to be late more often than other employees in
order to force them to deplete their vacation time until the         Honda requires every employee to work at the company for
point that they would opt to keep the attendance deficit on       18 months before being eligible for promotion. In addition,
their records. Plaintiffs do not allege that the computers were   an employee must give up the right to promotion for 12
somehow programmed to mark African-Americans as late,             months after transferring from one department to another.
however, and we cannot think of any other way in which            Plaintiffs’ statistical expert found a disparity between
Honda even theoretically could create this difference.            African-Americans and other employees in number of
                                                                  transfers and therefore they posit that this is a discriminatory
No. 01-3520          Bacon, et al. v. Honda of America        21    22    Bacon, et al. v. Honda of America            No. 01-3520

requirement designed to keep African Americans off the              testing resulted in discrimination. However, nothing in the
promotion roster. We agree that a documented record of              record demonstrates that the tests resulted in a widely
forced transfers of African-American employees would raise          divergent pass rate for blacks and whites or that the subject
an inference of discrimination, but there is no evidence of         matter of the tests was not business-related. Without such a
that. The vast majority of transfers were requested by              showing, there is no basis for a disparate impact claim.
employees themselves, including both Bacon and Harden, in           Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975);
order to get a more desirable shift or position themselves for      United Black Firefighters Ass'n v. City of Akron, No. 94-
advancement.         Employees involved in departmental             3961, 1996 WL 125043, at *2 (6th Cir. 1996) (unpublished
reorganizations or assigned to special projects kept their          opinion). Furthermore, Bacon passed the test that he took.
departmental seniority. Dr. McClave, plaintiffs’ statistical        Harden received a score of 63 on the team leader test, at a
expert, did not distinguish between requested and other             time when the cutoff for consideration was in the mid-70s,
transfers in his analysis. The record gives no explanation for      but passed other assessments to be eligible for promotion into
why African Americans might be more likely to request               the quality department.
transfer, but that is a question for Honda management rather
than this court. In terms of percentage, the difference                The brief submitted on behalf of Bacon and Harden also
between the percentage of African Americans in Honda’s              alleges that they were “prevented from taking eligibility
workforce (7.8%) and the percentage of African Americans            tests.” Appellant Br. at 53. This is an overstatement. Harden
requesting transfer (8.69%) does not diverge markedly.              missed the October 8, 1999 deadline to express interest in the
                                                                    October 25 sitting of the test. He was on bereavement leave,
   The statement in plaintiffs’ brief that “[t]ransfers were used   starting after October 3, and returned a few days before the
to disqualify Bacon and Harden from certain promotions” is          test was administered. As a matter of business judgment, it
misleading. Appellant Br. at 17. Both men requested                 might have been better for Honda to show some flexibility
transfer, knowing the consequences in terms of promotion            given Harden’s difficult personal circumstances, but it was
eligibility. Honda has a legitimate business reason for             under no obligation to ignore the fact that Harden had not
requiring familiarity with procedures and skills of a particular    complied with the deadlines, which he knew about even
department before allowing promotion within that                    before his sister’s death. The record is vague on Bacon’s
department. Under the burden-shifting pattern cited above,          reasons for not sitting for the test; in his deposition he merely
Bacon and Harden would have to propose a different method           states that he “has not had the opportunity to do so.” If
for ensuring familiarity with department techniques and             Honda had actively prevented him from doing so, his
procedures for those eligible for promotion, which they do not      deposition testimony would have been more specific.
do. The periods of ineligibility for promotion resulting from
their requested transfers cannot be attributed to discrimination    NH Circles
on the part of Honda.
                                                                      Neither Bacon nor Harden participated actively in the
Testing                                                             overtime special projects that Honda regarded as the final
                                                                    prerequisite for consideration for promotion. The two may
   At certain periods and in certain departments, Honda             have had entirely legitimate reasons for doing so; in fact,
required testing to demonstrate sufficient knowledge to be          Bacon at one point was attending college classes at night and
eligible for promotion. Bacon and Harden allege that this           therefore was not available. Nevertheless, Honda had a
No. 01-3520          Bacon, et al. v. Honda of America        23    24    Bacon, et al. v. Honda of America            No. 01-3520

legitimate business reason for gauging commitment to the              We review a denial of discovery for abuse of discretion.
company by willingness to make an extra, compensated                Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). Given
effort. In fact, the team leader position required availability     that the record in this case exceeds 3,800 pages and that the
for overtime, so this policy was an effective way of making         elements of Bacon and Harden’s individual claims are
sure that an employee was actually willing to put in extra          directly related to their class action claims, we are hard put to
hours. An employer cannot be held liable for disparate              imagine what further discovery would have accomplished in
impact if a legitimate business policy results in workforce         this matter.
disparities. Ward’s Cove, 490 U.S. at 659. Plaintiffs fail to
suggest another equally effective system for Honda to allow                                        V
employees to signal their willingness to put in the extra effort
that makes them strong candidates for additional                       It is unfortunate when two qualified minority workers with
responsibility and compensation.                                    strong work evaluations spend a significant number of years
                                                                    at a company and do not advance. This situation may require
                              IV                                    the considered attention of Honda management as a business
                                                                    matter. However, based on the record before us, the district
Discovery                                                           court did not err in its rulings. Therefore we AFFIRM the
                                                                    district court’s denial of class certification and grant of
   In January 2001, in response to Honda’s motion for               summary judgment to Honda.
summary judgment, the plaintiffs sought further discovery on
the merits of plaintiffs’ individual claims under Federal Rule
of Civil Procedure 56(f). Plaintiffs argued, as they do on
appeal, that discovery had been focused on, and limited to,
class certification issues. The district court denied the
motion, stating that the discovery and scheduling orders
“never indicated that the parties should not be proceeding
with the merits discovery as well as the class certification
discovery, with the exception of the magistrate judge’s
discovery order of October 20, 2000, which states that the
parties should not ‘be conducting discovery that is unrelated
to the motion to certify during November and up to
December 18.’” Plaintiffs were nonetheless permitted to
depose Rick Gardner, the only individual who plaintiffs
specifically asked to depose, and to supplement their response
to the motion for summary judgment. The district court also
observed that much of the voluminous record submitted at the
class certification hearing also related to the individual claims
of the plaintiffs.
