Following the U.S. Supreme Court’s landmark decision in Wal-Mart Stores v. Dukes, —U.S. —, 131 S. Ct. 2541 (2011), courts and commentators have widely acknowledged that Dukes established a higher threshold for satisfying the commonality standard for class certification under Rule 23 of the Federal Rules of Civil Procedure. However, relatively few courts have examined the way in which Dukes requires courts to analyze commonality in an employment discrimination class action pertaining to a single facility where the employer delegates broad discretion to multiple managers to make the decisions that plaintiff challenges.
In this month’s column, we discuss Dukes’ recent application in Brown v. Nucor Corp., 785 F.3d 895 (4th Cir. 2015), a case involving a single facility and dozens of managers, in contrast to the nationwide claims and thousands of managers at issue in Dukes. In Brown, a divided panel of the U.S. Court of Appeals for the Fourth Circuit claimed to apply the standards enunciated in Dukes, but nevertheless certified a multi-decision-maker class action based not on a finding that all managers applied a common method of decision-making, but largely based on its view of plaintiffs’ proffered statistics and anecdotal evidence.
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