Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 6

Obtaining and Challenging Class Certification (continued)

Page 6

Over the last several years, defendants have begun raising the argument that such bifurcated liability and damages proceedings would violate the Seventh Amendment right to a fair trial because different juries will be deciding essentially the same issues. The genesis of the Seventh Amendment argument lies in the Supreme Court's decision in Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494 (1931), in which the Supreme Court held that it is consistent with the Seventh Amendment to allow separate juries to hear different issues, so long as the issues tried to the separate juries are "distinct and separable," such that the second jury will not revisit issues determined by the first jury. Id. at 499. Citing Gasoline Products and such recent court of appeals product liability cases as Castano v. American Tobacco Co., 84 F.3d 734, 750-51 (5th Cir. 1996), and In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir.), cert. denied, 116 U.S. 184 (1995), defendants argue that true bifurcation of liability and damages issues is impossible, and that as a result more than one jury inevitably ends up reviewing the same facts, thus depriving the defendant of its Seventh Amendment rights. In addition to pointing out that neither Castano nor Rhone-Poulenc involved Title VII class actions, but rather were product liability actions, plaintiffs can point to other decisions by court of appeals that reject such Seventh Amendment arguments. See Hilao v. Estate of Marcos, 103 F.3d 767, 783-787 (9th Cir. 1996); Valentino v. Carter-Wallace, 97 F.3d 1227 (9th Cir. 1996); Central Wesleyen College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir. 1993); In re School Asbestos Litigation, 789 F.2d 996 (3rd Cir.), cert. denied, 479 U.S. 852 (1986); Arthur Young & Co. v. United States District Court, 549 F.2d 686 (9th Cir.), cert. denied, 434 U.S. 829 (1977); In re Copley Pharmaceutical, Inc. Albuterol Product Liability Litigation, 161 F.R.D. 456 (D. Wyo. 1995). In the Home Depot case, the district court rejected Home Depot's Seventh Amendment argument in the employment discrimination context, holding:

Courts have routinely adopted the approach advocated by plaintiffs in which the first phase of the proceedings focuses exclusively on class-wide claims, e.g., whether a defendant has in fact engaged in discriminatory employment practices. The jury verdict in favor of plaintiffs at this phase would result in injunctive and declaratory relief, and possibly, punitive damages. Individual compensatory damages would be resolved in the second phase of the proceedings which, since they would adjudicate individual claims, would not involve the "same issues" as did the first phase. As evidenced by the numerous cases across the country that have addressed this issue, the Seventh Amendment does not mandate that all phases of the litigation be heard by the same jury.

Home Depot, 1996 U.S. Dist. LEXIS at *18.⁴ Further, in Teamsters, the Supreme Court clarified that the facts determined at the first stage of a bifurcated class action discrimination trial may not be and are not reconsidered during the second stage, holding that,

the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial.

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Notes

⁴ The Fifth Circuit is currently considering the Seventh Amendment and bifurcation issues in an appeal of Celestine v. CITGO Petroleum Corp., et al., 165 F.R.D. 463 (W.D. La. 1995)