Reinforcing the burden on any putative class to satisfy all of the requirements of Federal Rule of Civil Procedure 23, the U.S. Court of Appeals for the Ninth Circuit has affirmed the district court’s order denying the plaintiffs’ motion for class certification in an employment discrimination action. Moussouris v. Microsoft Corp., No. 18-35791 (9th Cir. Dec. 24, 2019).

The three-judge panel, consisting of Circuit Judges Richard Paez and Johnnie Rawlinson and District Judge Leslie Kobayashi (sitting by designation) separately affirmed the district court’s denial of class certification of the plaintiffs’ disparate impact and disparate treatment claims.

First, on the disparate impact claims, the panel held the district court did not abuse its discretion when it found that the proposed class did not satisfy the “commonality” requirement of Rule 23. To satisfy this requirement, the proposed class must pose “a common question that will connect many individual promotional decisions to their claim for class relief” and “produce a common answer to the crucial question why was I disfavored?” The panel found that in this case, there were no common questions because the proposed class consisted of more than 8,600 women holding more than 8,000 different positions in various facilities throughout the country. Moreover, the panel held that the plaintiffs failed to identify any “common mode” of discretion throughout the company because individual managers exercised broad discretion in assessing employees.

Next, as to the disparate treatment claims, the panel held the district court similarly did not abuse its discretion when it found the plaintiffs’ proposed class did not satisfy the “adequacy or representation” requirement of Rule 23. This requirement addresses whether the named plaintiffs and their counsel have any conflicts of interest with other proposed class members. The panel noted the putative class included thousands of members who acted as a manager once, were a lead or a manager, or were “managers of managers.” Even Katherine Moussouris, a named plaintiff of the proposed class, was a manager who had three of the putative class members report to her. Accordingly, the panel held that Moussouris has a conflict of interest with other putative class members. Additionally, the panel held that the plaintiffs’ proposal that the district court certify subclasses to address this conflict was not an issue that was properly preserved for appeal.

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