United States District Court, E.D. Kentucky, Northern Division
BRANDON FREEMAN ET AL. PLAINTIFFS
DELTA AIRLINES, INC ET AL. DEFENDANTS
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE
proposed class action was brought by six plaintiffs, all of
whom are African-American and are or at one time were
part-time employees of Delta Airlines in the
“underwing” baggage handling department at the
Cincinnati-Northern Kentucky International Airport
(“CVG”). They allege that the manager and several
supervisors over this particular department engaged in
systemic racial discrimination in (a) disciplinary matters
and (b) work assignments, resulting in a disproportionately
lower number of African-Americans occupying higher paying
positions. Plaintiffs seek to vindicate the rights of roughly
thirty-six (36) part-time African-American baggage handlers
42 U.S.C. § 1981, Title VII, 42 U.S.C. § 2000e
et seq., and KRS § 344.010 et seq.,
Plaintiffs assert the following five counts:
Count I: Hostile work environment and racial
Count II: Discrimination based on disparate
impact and disparate treatment;
Count III: Retaliation;
Count IV: Race discrimination; and
Count V: Punitive damages.
demand front and back pay in connection with punitive
damages, a declaratory judgment, and a permanent injunction
against Defendants' alleged practices. (Doc. 5, ¶
matter is before the Court on Plaintiffs' motion to
certify the case as a class action (Doc. 52). The Court
previously heard oral argument on the parties' motions
and took the matter under submission. (Doc. 92). For the
reasons that follow, Plaintiffs' motion for class
certification is DENIED.
AND PROCEDURAL BACKGROUND
case, the Court is presented with an expansive record that
encompasses thousands of pages of deposition testimony and
exhibits. Unlike a 12(b)(6) motion, when deciding a motion
for class certification a “district court should not
merely presume that the plaintiffs' allegations in the
complaint are true.” Young v. Nationwide Mut. Ins.
Co., 693 F.3d 532, 537 (6th Cir. 2012).
“[S]ometimes it may be necessary for the court to probe
behind the pleadings before coming to rest on the
certification question.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350 (2011) (citation
omitted). Here, the specifics of the named
Plaintiffs' various anecdotal accounts of discrimination
are largely irrelevant to the issue of certification now
before the Court.
in order to focus on those facts that are critical to the
requirements for certification without sacrificing the
context and underlying basis for Plaintiffs' lawsuit, the
factual background below is primarily drawn from the Amended
Overview of Ready-Reserve Employees
class action lawsuit involves Delta Airlines, Inc.'s
(“Delta”) “Ready-Reserve” employees
located at CVG in Hebron, Kentucky. (Doc. 52 at 1; Doc. 5,
¶¶ 16-21, 26). At CVG, Ready-Reserve employees are
part-time members of Delta's Department 120, the
“underwing” operations, which includes baggage
handlers, ground equipment maintenance workers, and ramp
employees. (Doc. 60 at 2; Doc. 63, Perdue Dep. at 49).
Ready-Reserve employees primarily assist during peak flight
schedules. (Doc. 73-1, Jones Dep. at 63-64).
the named Plaintiffs were hired and worked in Department 120
on a part-time basis. (Doc. 5, ¶¶ 16-21). Due to
the limited hours afforded Ready-Reserve employees and the
attendant benefits,  Plaintiffs' employment with Delta
served as a second part-time job. (Doc. 69, Freeman Dep. at
44; Doc. 66, Vincent Dep. at 42, 44; Doc. 74, Lackey Dep. at
Department 120 Management & Reporting Structure
single Department Manager oversees Department 120. (Doc. 69,
Freeman Dep. at 88-89); (Doc. 5, ¶ 7). Subordinate to
the Department Manager are the Performance Leaders
(Defendants Dale Unkraut, Marvin “Doug” Howe,
David Gosney, Jimmy Davis, and others not named in this
lawsuit) that directly supervise line employees and comprise
the first line of recognizing and addressing disciplinary and
work assignment issues. (Doc. 73, Jones Dep. at 67-68); (Doc.
5, ¶ 8).
the time-period in quesiton, the Department Manager position
was filled by at least two individuals. An individual
identified as “Denny” acted as the Department
Manager for part of the time, (Doc. 69, Freeman Dep. at
88-89), until Defendant Charles Jones took over in 2013 or
2014. Id.; (Doc. 73, Jones Dep. at 27- 28).
Likewise, the number of performance leaders has fluctuated
over time. Beginning in 2013, approximately fourteen (14) or
fifteen (15) Performance Leaders were employed in Department
120. Id. at 68. Over time, the number of Performance
Leaders dwindled to six (6) or seven (7). Id. at 84.
Alleged Racial Discrimination Across the Class
are six named African-American plaintiffs in this action,
each of whom has raised allegations of systemic racial bias
within Department 120. Plaintiffs allege they were
discriminated against in at least four discrete ways: (1)
disparate disciplinary measures, (2) less favorable work
assignments, (3) a hostile work environment, and (4)
retaliation for complaining of discrimination and filing EEOC
charges. E.g., (Doc. 5, ¶¶ 1-2, 24, 36,
48, 124); (Doc. 52-1 at 1).
allegations related to two of these categories are
particularly relevant for purposes of Plaintiffs' motion
to certify two subclasses, one covering disciplinary matters
and the other covering disparity in work assignments. (Doc.
52-1 at 1).
allege in broad terms that management personnel
“disproportionately disciplined” African-American
Ready-Reserve employees-that is “more frequently and
more severely”-as compared to Caucasian employees.
See, e.g., (Doc. 5, ¶¶ 34, 48, 56).
Plaintiffs also state that they were “written up on
several occasions for alleged minor offenses, while [they]
observed white employees committing the same alleged offenses
go free . . . or be punished less severely.” (Doc. 5,
¶¶ 56, 102, 114, 116, 140, 152). Plaintiffs make
clear that this “is not to say that white employees
were not also disciplined”; but rather “black
employees, would be disciplined for more minor transgressions
(or sometimes without any support), and with more frequency .
. . than their white counterparts.” Id.
an employee that is subject to discipline may be disqualified
from advancing or being promoted to a vacancy at Delta,
see Id. at ¶¶ 46, 48, Plaintiffs allege
that “[t]he white managers and supervisors manipulate
the [disciplinary] system . . . so that white employees
receive better job assignments and better opportunities for
advancement and compensation increases.” Id.
at ¶ 30. Plaintiffs further assert that “white
employees have advanced and continue to advance or transfer
more rapidly to better and/or higher paying non-exempt jobs
than do African-American employees.” Id. at
¶¶ 30-31. As a result, Plaintiffs claim they were
denied the opportunity for a promotion or transfer because
they were ineligible by virtue of being under some form of
discipline, id. at ¶¶ 107, 109, 143, 158,
160, or were otherwise “denied several raises given to
other employees not on discipline.” Id. at
¶¶ 57, 103, 118, 141, 153.
also allege that job tasks were assigned with racial animus
toward African-American employees. (Doc. 5, ¶ 48). In
general terms, Plaintiffs allege that African-Americans
employed on a part-time basis in Department 120 are routinely
“assigned disproportionately to service larger jets,
” which is a “more difficult” task because
these flights involve a greater number of bags, each of which
is larger and heavier. Id. at ¶ 55. As further
examples, Plaintiffs allege they were “assigned with
other minority employees to work the ramp in inclement
weather, while white employees [were] permitted to remain in
the break room” and “black and minority
employees” were required to “work an entire
shift, while white employees [were] permitted to leave
early.” Id. at ¶¶ 55, 101, 113, 130,
Specific Allegations by the Individual Class
support of their own claims and class certification, each of
the named Plaintiffs describes instances of alleged
Plaintiff Brandon Freeman
allegations are by far the most detailed and unique. Freeman
began working in Delta's ground operations at CVG on
April 26, 2010. (Doc. 5, ¶¶ 16, 54). In 2012,
Freeman began a romantic relationship with a Caucasian
employee at Delta, Michelle Race. Id. at 58. Freeman
alleges that disapproval of interracial relationships was
expressed by Manager Jones, Greg Kuhn (a member of
Delta's corporate security), and supervisors Howe,
Gosney, Unkraut, Lavalie,  and Martinez. This included probing
questions as to whether Race's relationship with Freeman
was sexual in nature, racist remarks about African-American
men, and threats of termination toward Race in order to
obtain her cooperation in falsifying: (i) employment
disciplinary charges and (ii) a police report against
Freeman. Id. at ¶¶ 9, 59-75,
October 2013 after Freeman had changed shifts with Race, he
was placed on suspension, without pay, for “improper
computer usage in relation to the shift swaps.”
Id. at ¶¶ 71-71, 78. Freeman appealed the
disciplinary action through Delta. Id. at ¶ 80.
Jones and Unkraut allegedly coerced a statement from Race
implicating Freeman in the misconduct by threatening Race
with the ultimatum of loss of her job. Id. at ¶
82. When Race divulged that she had been coerced, Delta
reinstated Freeman, but without back pay. Id. at
on about April 23, 2014, Freeman placed a bag on a flight to
Atlanta for a co-worker at that location, but Freeman did not
make the flight because he was unable to get his shift
covered. Id. at ¶¶ 87-90. Supervisor Howe
believed Freeman had shipped drugs on the flight.
Id. at ¶ 91. Jones recommended in a letter that
Freeman be terminated. (Doc. 73-1 at 144). An HR manager
reviewed the recommendation and concurred, making a
recommendation to the Sr. HR Manager, id. at 97,
after which the Director of Delta's HR decided to
terminate Freeman's employment. Id. at 96. On
May 14, 2014, Freeman's employment was terminated for
“pass abuse.” (Doc. 5, ¶ 92).
however, claims the reason for his termination was pretextual
because flight pass offenses “almost never result in
termination at Delta.” Id. As a result, in
July 2014, Freeman filed charges with the Equal Opportunity
Employment Commission (“EEOC”). Id. at
¶ 94; (Doc. 69-1 at 39). Race also later filed a
separate EEOC charge alleging retaliation and intimidation.
(Doc. 5, ¶ 97).
Plaintiff Fred Vincent
11, 2010, Vincent began work with Delta in its ground
operations at CVG. (Doc. 5, ¶ 17). In addition to having
been called racial epithets, id. at ¶¶
108- 09, Vincent recounts being written up for a so-called
“sick call” violation, whereas Caucasian
employees “were not written up for missing more time
off of work.” Id. at ¶ 106. Vincent was
placed on probation and was thus ineligible for a promotion
or a raise. Id. at ¶ 107.
later spoke with Paul Baird, Delta's Regional Director at
CVG, and Baird ultimately decided to give Vincent a clean
slate by removing Vincent's probationary letter from his
file. (Doc. 66, Vincent. Dep. at 110); (Doc. 5, ¶ 109).
Nevertheless, Vincent filed discrimination charges with the
EEOC in July 2014. (Doc. 66-1 at 18).
Plaintiff Nicole Lackey
employment with Delta in its ground operations at CVG began
on November 15, 2010. (Doc. 5, ¶¶ 18, 112). She
allegedly was directly discriminated against by Defendants
Howe, Unkraut, Gosney, and Davis under the direction of
Defendant Jones. Id. at ¶ 120. Specifically,
starting in May 2011, Lackey alleges she was the subject of a
series of disciplinary actions, in which she was
“written up for one tardy and six sick call-offs”
by supervisor Howe. Id. at ¶ 115. Lackey takes
issue with the discipline she received because she allegedly
produced a doctor's note in each instance and the same
conduct by Caucasian employees “did not result in the
same (or any) discipline.” Id.
Lackey was written up by a different supervisor, Defendant
Gosney, for being late in June 2011 and again on September 3,
2011, the latter of which resulted in Lackey being placed on
probation. Id. at ¶ 116. Lackey does not
contend that she was not late on these occasions. Instead,
she avers that two Caucasian employees repeatedly failed to
report to work without calling, and yet there was no
consequence. Id. at ¶ 117.
also asserts that she witnessed racially discriminatory
statements being made to others. For example, two lower-level
supervisors (neither of whom are Defendants in this matter),
allegedly stated to Plaintiff Tall “can't you black
women do anything about your odor” and “all
blacks have trouble with the law.” (Doc. 5, ¶
121). Lackey also avers that African-Americans are
“routinely screamed at and verbally harassed on a
weekly basis by co-workers or supervisors, ” and the
same is not true for Caucasian employees. Id. at
filed EEOC charges on July 9, 2014, after which she claims
Defendants Jones, Howe, Unkraut, Gosney, Davis, and other
Caucasian employees who were encouraged and emboldened by
management increased their verbal harassment in retaliation.
Id. at ¶¶ 122, 124. Lackey also maintains
that another co-worker, who is not a party to this case,
retaliated against her by turning up the rate of speed on the
bag loader while Lackey was working on the ramp, causing her
to injure her shoulder and undergo surgery. Id. at
¶ 125. Defendant Gosney, Lackey alleges, misreported the
incident to cover up the retaliatory conduct. Id. at
Plaintiff Aminata Tall
November 13, 2012, Tall was hired by Delta to work in ground
operations at CVG. (Doc. 5, ¶ 19). Beginning in November
2013 through January 2014, Tall alleges she was questioned
about her “smell” by supervisor Davis. Tall
complained to Davis that the comments were racially
motivated, but Davis allegedly brushed off the accusations
and boasted about his comments to other co-workers.
Id. at ¶ 131. This was purportedly the impetus
that caused a co-worker by the name of Eric to later state to
Tall, “Girl, your black ass always stinks.”
filed EEOC charges on July 9, 2014. Id. at ¶
132; (Doc. 64-1 at 13). Tall subsequently suffered a
work-related injury. As retaliation for filing the EEOC
charges, Tall claims Delta denied her reasonable
accommodations and discontinued her workers' compensation
benefits in February 2015. Id. at ¶¶ 133,
Plaintiff Kenny Gaines
was hired by Delta on October 11, 2010, to work in ground
operations at CVG. (Doc. 5, ¶ 21). Gaines recounts being
(a) placed on six months' probation for taking off his
safety boot to remove a piece of metal, (b) written up and
placed on two years' probation for having a cellular
phone on the ramp, and (c) written up for being a few minutes
late, whereas Caucasian employees with “similar
issues” were not disciplined. Id. at
further alleges that in 2013, Howe and Unkraut
“attempted to blame him” for improperly lowering
a belt loader and damaging an aircraft because these
particular supervisors had “learned that a white female
employee had actually been responsible.” Id.
at ¶ 145. Gaines also claims that Howe and Unkraut, have
commented that “all you guys look alike, ”
referring to African-American employees. Id. at
also filed his EEOC charges on July 9, 2014. (Doc. 62-1 at
20). Gaines then applied for and was granted a location
transfer and now works in Atlanta. (Doc. 5, ¶ 147-48).
Plaintiff David Perdue, Jr.
employment with Delta in ground operations at CVG began on
February 20, 2012. (Doc. 5, ¶ 20). Purdue asserts that
on one occasion he had accidentally double-booked himself for
two shifts and attempted to remedy the situation, as
permitted by Delta, by trading shifts with another employee.
When the employee arrived for Purdue's shift, supervisor
Unkraut allegedly sent him home and issued Perdue a write up
for “reliability” because the shift was not
covered. Id. at ¶ 154. Purdue asserts that this
was done because of his race, as he claims Unkraut later
permitted Perdue to trade shifts with a Caucasian employee so
that the individual could avoid discipline. Id.
another example, Purdue recalls an instance where supervisor
Ukraut posted the late schedule, which indicated that Perdue
could take Paid Time Off (“PTO”). Believing that
Unkraut might discriminate against him because it was
allegedly “Unkraut's regular practice to let white
employees, but not black employees leave early, ”
Perdue took a picture of the schedule and then ended his
shift early and took the PTO. Id. at ¶ 155. The
next morning, Perdue learned that Unkraut had submitted a
disciplinary action against him for leaving without
permission. The morning supervisor showed Perdue the
schedule, which read, “NO PTO.” Perdue presented
the supervisor with the photograph he had taken of the
schedule, but he was nevertheless disciplined. Id.
also avers that he was written up by supervisor Howe
“on one or two occasions for being late.”
Id. at ¶ 156. Purdue allegedly told Howe that
he believed “he was being written up because he was
black, ” to which Howe responded, “that he would
also be writing up a white employee that same day, for being
late by approximately 15 minutes.” Purdue, however,
claims that the particular employee had previously been late
approximately twenty times without repercussion. Id.
Purdue alleges he was written up for taking sick leave four
times during one year, but “white employees with twelve
or more sick time absences were not disciplined.”
Id. at ¶ 157. Moreover, Purdue claims
supervisors Howe and Unkraut have made comments that
“all you guys look alike, ” again referring to
African-Americans. Id. at ¶ 159.
also filed EEOC charges in July 2014. (Doc. 63-1 at 28). Each
of the named Plaintiffs candidly admits that “[a]fter
the EEOC charges” were filed “in the summer of
2014, Delta did take certain remedial measures, ”
allegedly known as the “Brandon Freeman” rules
within Delta, “which partially alleviated certain
[aspects] of the systemic discrimination.”
E.g., (Doc. 5 at 29 n.5, 31 n.6, 32 n.7, 35 n.8, 41
2014, Purdue applied for and was ultimately awarded a
transfer to Delta's location in Atlanta. Id. at
noted, each of the named Plaintiffs filed EEOC charges in
July 2014. On approximately June 22, 2015, Plaintiffs
received Right to Sue letters from the EEOC. (Doc. 5, ¶
4). Plaintiffs filed this action on September 3, 2015, (Doc.
1), and then filed an Amended Complaint on September 10,
2015. (Doc. 5).
over a year and five months of discovery, which included
requests to extend the initial one-year period of discovery,
(e.g., Docs. 23, 46, 59), on January 2, 2018,
Plaintiffs moved for class certification. (Doc. 52).
district court has broad discretion to decide whether to
certify a class.” Glazer v. Whirlpool Corp.
(In re Whirlpool Corp. Front-Loading Washer Prods. Liab.
Litig.), 722 F.3d 838, 850 (6th Cir. 2013). To obtain
certification, the class must satisfy all four prerequisites
under Federal Rule of Civil Procedure 23(a)-numerosity,
commonality, typicality, and adequate representation-and fit
within one of the three types of class actions listed in Rule
23(b). Young v. Nationwide Mut. Ins. Co., 693 F.3d
532, 537 (6th Cir. 2012). As the “party seeking class
certification, ” Plaintiffs have “the burden to
prove the Rule 23 certification requirements.”
23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
[their] compliance with the Rule-that is, [they] must be
prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact,
etc.” Dukes, 564 U.S. at 350. As such, a
formulaic recitation of the rule's language will not
suffice; there “must be an adequate statement of the
basic facts to indicate that each requirement of the rule is
fulfilled.” Young, 693 F.3d at 597 (citation
and internal quotation marks omitted).
ensure each requirement is satisfied, the Supreme Court and
the Sixth Circuit have repeatedly instructed trial courts to
engage in a “rigorous analysis.” Glazer,
722 F.3d at 851-52 (citing Dukes, 564 U.S. at
350-51)); Clemons v. Norton Healthcare Inc., 890
F.3d 254, 280 (6th Cir. 2018); Gooch v. Life Investors
Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012).
determining whether certification is appropriate, “it
may be necessary for the court to probe behind the pleadings,
” and the analysis may “entail some overlap with
the merits of the plaintiff's underlying claim” or
involve “considerations that are enmeshed in the
factual and legal issues comprising the plaintiff's cause
of action.” Dukes, 564 U.S. at 350-51.
“Merits questions may be considered to the extent-but
only to the extent-that they are relevant to determining
whether the Rule 23 prerequisites for class certification are
satisfied.” Amgen Inc. v. Conn. Ret. Plans &
Trust Funds, 568 U.S. 455, 466 (2013). The question is
not “who will prevail on the merits, but rather whether
the proposed class and class representative[s] meet the
requirements for certification under Rule 23(a) and
(b).” 5 Moore's § 23.84(1).
in this case have failed to establish several of the
requirements for class certification, including class
representative standing; commonality; typicality; and
adequacy-of-representation, and the Court is not convinced
that certification would be appropriate under either Rule
23(b)(2) or (b)(3) .
Implicit Rule 23 Requirements
Rule 23 is silent on the issue, before a class may be
certified it is axiomatic that (1) “the class must be
susceptible of precise definition” and (2) the class
representative(s) must be “member[s] of that
class.” 5 Moore's § 23.21(1). Plaintiffs
satisfy only first requirement here.