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Supreme Court begins new term with arguments on the exclusivity of the ADEA for state and local government employees

October 4th, 2013  |  Deborah Hammonds  |  Add a Comment

Despite the government shutdown, the Supreme Court is expected to officially start its new term on Monday, October 7.  There are several provocative employment law issues awaiting the High Court during the 2013-2014 term, including the first case scheduled for oral arguments, Madigan v Levin (Dkt No 12-872), in which the Court will determine whether state and local government employees may avoid the ADEA and bring age discrimination claims directly under the Equal Protection Clause and Section 1983.

Background. After he was terminated, an Assistant Attorney General filed a lawsuit alleging, among other claims, a Section 1983 equal protection claim against the Illinois Attorney General and several of her staff individually, asserting that he had been fired due to age discrimination. One judge concluded, on a motion to dismiss, that the employee’s Section 1983 claim was precluded because the ADEA is the exclusive remedy for age discrimination in employment. A subsequent judge reached the opposite conclusion while ruling on a motion to dismiss. The individual defendants appealed.

The Seventh Circuit, resolving a question of first impression, held that the ADEA is not the exclusive remedy for age discrimination in employment claims, and affirmed a district court’s conclusion that a discharged assistant attorney general could proceed with his Sec. 1983 equal protection claims against individual defendants. Further, because it was clearly established at the time of his discharge that age discrimination in employment violates the Equal Protection Clause, the Illinois Attorney General and other individual defendants were not entitled to qualified immunity.

Split among the circuits. Other circuits faced with the question of whether the ADEA precludes a Section 1983 equal protection claim have relied on the Fourth Circuit’s reasoning in Zombro v Baltimore City Police Dept and some have concluded that the ADEA precludes a Sec. 1983 equal protection claim. District courts are split on the issue, and two Northern District of Illinois judges have held the ADEA does not preclude a Sec. 1983 equal protection claim.

In reaching its determination, the Seventh Circuit reviewed existing Supreme Court and other precedent, the statutory language and legislative history of the ADEA, and conducted a comparison of the rights and protections afforded by the ADEA and a Sec. 1983 claim. Although the ADEA enacts a comprehensive statutory scheme for enforcement of its own statutory rights, the Seventh Circuit found that it does not preclude a Sec. 1983 claim for constitutional rights. Calling it “admittedly a close call, especially in light of the conflicting decisions from our sister circuits,” the Seventh Circuit based its holding on “the ADEA’s lack of legislative history or statutory language precluding constitutional claims, and the divergent rights and protections afforded by the ADEA as compared to a [Sec.] 1983 equal protection claim.”

The petition for certiorari was filed on January 14 and the High Court granted cert on March 18. The question the Court agreed to address is: Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

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New disability self-ID form among paperwork requirements of revised OFCCP veterans and disability regulations submitted for OMB approval

October 1st, 2013  |  Cynthia L. Hackerott  |  2 Comments

On September 24, 2013, the OFCCP submitted for Office of Management and Budget (OMB) approval the paperwork requirements for two final rules published in the Federal Register that same day: one rule revises the agency’s regulations at 41 CFR Part 60-300 that implement the provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) (and rescind the outdated regulations at 41 CFR Part 60-250); the other rule revises the regulations in 41 CFR Part 60-741 that implement the provisions of Section 503 of the Rehabilitation Act of 1973, as amended (Section 503). The documentation submitted in support of the request for OMB approval includes a new standard form, entitled “Voluntary Self-Identification of Disability”, that contractors will be required to use under the Section 503 regulations.

The rules are scheduled to take effect on March 24, 2014. Although federal contractors and subcontractors will be required to comply with most of the requirements of the new rules by this date, contractors with existing affirmative action programs (AAPs) on the effective date may wait to come into compliance with Subpart C of both rules as part of their standard AAP review and updating cycle. In other words, contractors that have an AAP in operation (mid-cycle) on March 24, 2014 may wait to comply with Subpart C of both rules until their new annual AAP cycle begins.

The supporting statements for both the VEVRAA and Section 503 approval requests detail the paperwork burdens the OFCCP estimates will be imposed on contractors by the upcoming regulations. The following is a brief overview of major new paperwork requirements.

New metric requirements. The VEVRAA rule (78 FR 58614–58679) will require contractors to establish an annual hiring benchmark, either based on the national percentage of veterans in the workforce (currently 8 percent), or based on the best available data and factors (specified in the regulations) unique to their establishments. Records related to the criteria and conclusions regarding contractor established hiring benchmarks must be kept for three years.

The Section 503 rule (78 FR 58682-58752) will require contractors to establish a 7 percent utilization goal for the employment of individuals with disabilities (IWDs). Contractors must apply the goal to each of their job groups, with the exception of contractors with 100 or fewer employees, who may apply the go to their entire workforce. In addition, contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.

Invitations to self-identify. The final Section 503 rule requires contractors to invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process. The final rule also requires that contractors invite their incumbent employees to self-identify as IWDs every five years. All invitations must use the standardized form prescribed by the OFCCP. As stated previously, that form was included in the supporting documentation filed with the OMB.

The final VEVRAA rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. At the pre-offer stage, contractors must extend an invitation to self-identify generally as a “protected veteran.”  At the post-offer stage, contractors must extend an invitation to self-identify as to the specific veteran category(ies) that contractors are required to report on in the VETS-100A form.

Appendix B of the VEVRAA final rule includes sample invitations to self-identify (for both the pre-offer and post-offer stages) that contractors may use. Unlike the requirements of the Section 503 final rule, contractors are not required to use any specific form for the VEVRAA invitations. Nevertheless, contractors that do not use the sample forms provided in Appendix B must still ensure that the format they use meets the criteria provided in the VEVRAA rule.

Data collection analysis. The final rules will require contractors to document and update annually the following data:

•           number of IWD and protected veteran applicants;

•           total number of applicants for all jobs;

•           total number of job openings and jobs filled;

•           number of IWDs and protected veterans hired; and

•           total number of applicants hired.

Outreach and recruitment records. Both rules will require contractors not only to engage in outreach and recruitment activities for IWDs and protected veterans, but will also require documentation of each of these efforts and an annual written assessment of the effectiveness of each of activities. If the totality of the contractor’s efforts is not effective, the contractor must identify and implement alternative efforts. Further, contractors must retain records relating to these efforts for three years.

Comparison charts. On a related note, the OFCCP has also posted on its website side by side comparison charts to highlight the changes between the agency’s current regulations and the upcoming revisions. The VEVRAA chart is available at http://www.dol.gov/ofccp/regs/compliance/factsheets/VEVRAA_Crosswalk_QA_508c.pdf and the Section 503 chart is available at http://www.dol.gov/ofccp/regs/compliance/factsheets/Section503_Crosswalk_QA_508c.pdf.

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Sharply divided Fifth Circuit finds sexual epithets, mock humping show same-sex harassment in gender stereotype case

October 1st, 2013  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Reviewing en banc the appeal of a jury award in favor of a male ironworker who was allegedly sexually harassed by a superintendent because he wasn’t manly enough, the Fifth Circuit, in a 10-6 decision, found sufficient evidence that the harassment was because of the employee’s sex and was sufficiently severe and pervasive to alter his work environment (EEOC v Boh Brothers Construction Co, LLC, September 27, 2013). Three separate dissenting opinions suggested there was insufficient evidence to support the “because of” sex finding and expressed concern that the majority opinion portends a government-imposed workplace speech code. Included below are comments from Employment Law Daily Advisory Board Member David Wachtel on the cases’ impact.

“Manly” men. The ironworker was assigned to a maintenance crew for a bridge in Louisiana. Soon after he started, the crew superintendent began to subject him to almost-daily verbal and physical harassment because he did not conform to the superintendent’s view of how a man should act. The superintendent called the employee names such as “faggot” and “princess,” which the superintendent claimed were prompted in part by the employee’s use of Wet Ones instead of toilet paper, which was viewed as “kind of gay” and “feminine.” In addition to the comments, the superintendent mimicked sexual acts, coming up behind the employee when he was bent over and pretending to “hump” him. He also exposed his genitals. The employee complained to the crew foreman several times and complained to the superintendent’s supervisor. Afterward, he was sent home for three days without pay. Although that supervisor did a limited investigation, he concluded there was no sexual harassment. The employee was not returned to his worksite.

Prior litigation. The EEOC brought an enforcement action on his behalf, claiming sexual harassment based on a gender stereotype and retaliation. The jury returned a verdict for the employee on the sexual harassment claim, awarding him $201,000 in compensatory damages and $250,000 in punitive damages, which were reduced to the statutory cap. The employer filed a motion for judgment as a matter of law, arguing that gender stereotyping is not a basis for a same-sex harassment claim under the Supreme Court’s decision in Oncale v Sundowner Offshore Services, Inc. The employer’s motion was denied. On appeal, a Fifth Circuit panel then ruled that the superintendent’s abuse did not constitute same-sex discrimination under Title VII and vacated the district court’s judgment.

“Because of . . . sex.” Reviewing the issue en banc, the Fifth Circuit has now upheld the jury verdict. The court noted that the most critical issues were whether the superintendent harassed the employee “because of” sex and whether the harassment was severe or pervasive. As to the first issue, the appeals court pointed to the Supreme Court’s decision in Price Waterhouse v Hopkins, noting that a plaintiff may rely on gender-stereotyping evidence to show that discrimination occurred “because of . . . sex” under Title VII. It then pointed out that in Oncale the High Court held that nothing in Title VII bars a gender bias claim just because the alleged wrongdoer is the same gender as the plaintiff, though the plaintiff must prove that the discrimination occurred because of sex.

The Oncale decision set forth three evidentiary paths for proving harassment was because of sex, including: (1) that the harasser was homosexual and motivated by sexual desire; (2) that the harassment was framed in such sex-specific and derogatory terms that it was clear the harasser was motivated by general hostility to the presence of a particular gender in the workplace; and (3) direct comparative evidence of how the harasser treated members of both sexes in a mixed-sex workplace. Although the situation here did not fit within those scenarios, the Fifth Circuit found the Oncale categories to be illustrative, not exhaustive, in nature. Thus, the EEOC could rely on evidence that the superintendent viewed the employee as “insufficiently masculine” to prove its claim.

In determining whether there was sufficient evidence to support the jury’s finding that the harassment was because of sex, the focus was on the harasser’s subjective perception of the employee, explained the court. Here, there was evidence the superintendent thought the employee was not a “manly-enough man and taunted him tirelessly” with sex-based epithets. Indeed, he admitted the comments were directed at the employee’s masculinity. For example, he believed the employee’s use of Wet Ones instead of toilet paper was something girls do but men should not. He also mimicked sexual acts, approaching the employee from behind to “hump” him two to three times a week, and exposed his genitals, suggesting he would put his penis in the employee’s mouth. Viewing the record as a whole, the appeals court could not say that no reasonable juror would have found that the employee suffered harassment because of his sex.

Severity. Likewise, the court found sufficient evidence to support the jury’s finding that the harassment was sufficiently severe or pervasive to alter the terms and conditions of the employment. The employee testified that he was the unique and constant target of the superintendent’s abuse, and the superintendent conceded that called only the employee “queer.” Together with evidence of the repeated humping, reference to oral sex, and other alleged harassment, this was enough to uphold the jury’s conclusion.

Ellerth/Faragher. The jury rejected the employer’s Ellerth/Faragher defense, finding it satisfied neither element. Affirming, the court noted that, while the employer had a broad nondiscrimination policy, it offered no specific guidance on sexual harassment. Indeed, its workers were not even aware of the policy. The court also noted that the policy offered no instructions on how to assert or investigate harassment complaints and the company failed to provide supervisors with any guidance on the issue. Beyond the policy failures, in response to the employee’s complaint in this case, the supervisor engaged in what could reasonably be viewed as a “belated and cursory twenty-minute investigation, along with arguably poor treatment of the alleged victim.” The court contrasted this to the investigation of the employee’s other allegation — that the superintendent misused funds — which resulted in hiring a private detective who spent 84.75 hours investigating and produced two reports. Moreover, the employer arguably failed to punish the harasser, who testified that he never received any “write-up” for his treatment of the employee. For these reasons, the Ellerth/Faragher defense was not available.

Remedies, damages. Although affirming the jury’s conclusion that the employer engaged in intentional discrimination, the court reversed on the award of punitive damages because the EEOC could not meet the higher burden of showing that the employer discriminated “in the face of a perceived risk” that its actions would “violate federal law.” The investigating supervisor’s understanding was that sexual harassment was illegal only if it involved “unwanted advances” or “sexual desire.” Furthermore, the superintendent testified that he thought same-sex harassment only happens where a male supervisor abuses a homosexual employee, and the EEOC offered nothing to rebut that testimony. For these reasons, the appeals court overturned the punitive damages award.

Because it was unclear whether the district court would have awarded the entire $201,000 in compensatory damages absent the statutory damages cap (which it applied in view of the punitive damages), the case was remanded to determine compensatory damages. As to injunctive relief, the district court had found that the employer failed to show, by clear and convincing evidence, that no future violations of Title VII were reasonably likely to occur. Considering the evidence, the appeals court agreed and affirmed the issuance and content of the injunction.

Judge Jolly dissenting. Judge Jolly wrote one dissent, joined by Judges Jones, Smith, DeMoss, Clement, and Owen, asserting that the EEOC failed to proffer a basis for inferring discriminatory intent based on the employee’s gender. Judge Jolly noted that the standard for proving harassment in same-sex suits is more demanding than with opposite sex claims and that, while the EEOC premised its suit on the claim that the harasser subjectively believed the employee was not “manly,” the only evidence was his use of Wet Ones. There was no evidence that the employee in anyway failed objectively to conform to “male gender norms.” Because the harasser did not consider the victim unmanly and treated the other workers with similar disrespect, and this was an all-male workplace where rowdy language was commonplace, the dissent would find the case outside the purview of Title VII.

Judge Jones dissenting. In a second dissenting opinion, Judge Jones reasoned that “sex talk doesn’t always mean that sex is involved” and that the conduct here was boorish and juvenile but not “because of” sex. She suggested the majority had adopted a “disturbing proposition” that to avoid Title VII liability, employers must purge the workplace of all speech and gestures that might in any way be viewed as tokens of sex discrimination (she included an “Etiquette for Ironworkers” as an illustration). Her dissent also asserted that “in a same-sex case like this one, it makes no sense at all to affirm a verdict that a heterosexual male ‘discriminated against’ another heterosexual male by calling him names, which both know not to be true by conduct or appearance. Name-calling may be bullying, but it isn’t discrimination because the victim is a male.” As to the Ellerth/Faragher defense, Judge Jones would have found that the employer satisfied both prongs.

Judge Smith dissenting. The third dissenting opinion, penned by Judge Smith, stated the belief that the majority had, with the best of intentions, taken “a deep bow at the altar of the twin idols of political correctness and social engineering.” Judge Smith also expressed concern that the EEOC’s position, and in large part the majority’s opinion, would “emasculate the employment-at-will doctrine,” enlarge the kinds of supervisor statements that employees can use to claim damages, and lead to additional grounds for suit. Judge Smith agreed with Judge Jones’ that the majority opinion “portends a government-compelled workplace speech code.”

Majority responds. In a footnote, the majority opinion addressed the dissent, stating that this case was not — as Judge Jones’s dissent suggested — about vulgar speech in the workplace, nor did the majority impose a government-compelled workplace speech code. Indeed, it appeared to the majority that both Judge Jolly’s dissent and Judge Jones’s dissent either ignored the evidence or construed it against the jury verdict. In the majority’s view, the evidence here “extends far beyond isolated insults and occasional horseplay,” and the court must thus defer to the jury’s finding that it rose to the level of sexual harassment.

Plaintiffs’ counsel reacts. David Wachtel, of the Washington, D.C., plaintiffs’ firm Bernabei & Wachtel, was not surprised by the decision. When asked if the majority had expanded the view of what would be considered “because of” sex in same-sex cases beyond what the Oncale Court envisioned, he noted that the court here was not the first to find the Oncale categories non-exclusive and that gender stereotyping could be a fourth category. In his view, “Boh Brothers is an expansion of Oncale, but not unprecedented or unexpected.”

Asked about the potential impact of Boh Brothers, Wachtel stated: “The case points to a more realistic analysis of what it means to apply gender stereotypes. There are a lot of different characteristics that different people think are stereotypically male or stereotypically female. Earlier, successful cases were brought in situations where the plaintiff seemed to fall far outside very conventional stereotypes in many ways: the way the plaintiff walked, talked, dressed or carried trays. Boh Brothers is different and better reflects this complexity — what people really think about when they think about gender.”

Responding to the dissenting opinions, Wachtel noted that this case went beyond mere foul language and included repeated simulated sexual intercourse and the harasser repeatedly exposing his own genitals. “The majority holding comes from very basic principles: First, words used and deeds done are evidence of intent.  The fact that the employee was branded with terms that can mean ‘feminine’ was significant evidence that the harasser was acting because of sex stereotyping.  The dissenters missed this. 

“Second, whether harassment is because of sex depends on the mind of the harasser.  Because different people have different views of masculinity, the results in cases will vary, and employees should not be required to produce evidence that they are not manly or womanly in some objective sense.”

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Recent case hints at real-world consequences of NLRB’s stance on confidentiality rules

September 25th, 2013  |  Lisa Milam-Perez  |  Add a Comment

By Lisa Milam-Perez, J.D.

The NLRB’s position that employers may not attach blanket confidentiality policies to internal investigations poses a variety of challenges for employers. Chief among them: employers have a conflicting legal obligation to protect the confidentiality of employees who make complaints, according to an EEOC Enforcement Guidance. Talk about a rock and a hard place.

On the other hand, the NLRB rightly is concerned about a blanket gag order. Employees may need to converse with coworkers about their harassing boss or other issues of mutual concern without fear of reprisal. Indeed, this notion is at the very heart of the NLRA.

Yet confidentiality serves employees’ interests, too—as we are reminded by the allegations in a recent Fifth Circuit case. Granted, the plaintiff wasn’t the ideal poster child for the cause. And she had little evidentiary ground to stand on. But had her story rung true—and it well could have—it stood to offer an important glimpse at the real-life consequences of a breach of confidentiality.

Complaints, and more complaints. The employee was interviewed by an HR official in the course of an investigation into complaints against three supervisors at her work site. She was not the source of the initial complaint that prompted the investigation; however, she was one of several individuals who attested to the supervisors’ inappropriate conduct. After completing the investigation, the HR official recommended that the supervisors be discharged, and they were.

Two months later, the employee came to the HR official to complain about her coworkers, who apparently were miffed about her “whistleblowing,” she said, and acting inappropriately toward her. The HR official interviewed several of the employee’s coworkers about her complaints, but these interviews cast doubt on her accusations. They also elicited a good deal of negative feedback about the employee’s own behavior. Ultimately, the HR official concluded that she had made false accusations about a coworker because she believed he had interfered with her getting overtime hours. The official also determined that the employee was a divisive force, who had told some coworkers not to associate with certain other employees. Accordingly, the HR official recommended that she be fired.

Contending that she was terminated in retaliation for her complaints about her coworkers, the employee filed a retaliation suit under Title VII. The district court assumed, without deciding, that the complaints constituted protected activity, but it granted summary judgment to the employer nonetheless. With nothing more than temporal proximity to offer by way of causation, the employee failed to rebut the employer’s legitimate, nondiscriminatory reason for her discharge, the lower court held. Finding no error, the Fifth Circuit affirmed.

No cat’s paw here. Nor could the employee establish a retaliatory motive underlying the decision to terminate her. Although she conceded there was no evidence that the HR official who carried out her discharge harbored retaliatory animus, she asserted that the HR official was swayed by her coworkers’ retaliatory machinations. Specifically, she contended that the second HR investigation (launched in response to the employee’s complaints) had been unduly influenced by her coworkers. But she based this assertion entirely on the fact that the HR official had relied on her coworkers’ “negative feedback” in deciding to discharge her.

While the plaintiff urged that her fellow employees saw her as a “whistleblower” for her participation in HR’s investigation of the supervisors’ misconduct, there was no evidence they perceived her as such, especially given that she was not the individual who triggered that investigation, and she was only one of several employees to speak with HR during the course of the deliberations. Also lacking was evidence suggesting any animus on her coworkers’ part based on the earlier investigation, or proof that any of her coworkers actually recommended that she be fired. And while the employee contended that the HR official was mistaken in believing the negative feedback about her, the official’s belief was, by all accounts, a sincere one. Thus, the employee could not show that retaliatory animus was the “but-for” cause of her discharge.

Worth pondering. The employee offered no theory as to how her detractors came to know the contents of her discussion with the HR official. If her story were to be believed, might she have been saved of her fate if she and the other witnesses had been sworn to silence?

In order to enforce a confidentiality provision in the context of an investigation, the NLRB requires that an employer first determine that a witness was in need of protection; evidence was in danger of being destroyed; testimony was at risk of being fabricated; or there was a need to prevent a cover-up. Would the employer have had any reason to think those scenarios might have applied here?

With the Board having left the witness unshielded, what recourse would she have in this case under the NLRA—where the alleged retaliation was not at the hands of a statutory supervisor?

The underlying investigation in this case centered on complaints of discrimination against the supervisors. Theoretically, then, the employee had a Title VII cause of action. But what if HR was investigating suspicions of theft against a beloved supervisor? Would your average public policy wrongful discharge claim be expansive enough to protect an employee from the wrath of a firing instigated by disgruntled coworkers?

Interesting questions to ponder. And a useful glimpse at the potential real-world implications for employees of an unpopular NLRB directive.

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RNs granted class certification in antitrust wage-fixing litigation against Detroit-area hospitals

September 19th, 2013  |  Joy Waltemath  |  Add a Comment

By Susan L. Smith, J.D., MA

Two RNs successfully obtained certification of a class of RNs who provided direct patient care in short term acute care facilities while employed by eight Detroit area hospitals from December 12, 2002, through the present by demonstrating predominance and superiority (Cason-Merenda v. VHS of Michigan, Inc., September 13, 2013, Rosen, G). The RNs alleged that the hospitals violated Sec. 1 of the Sherman Act by agreeing to regularly exchanging compensation-related information among themselves in a manner that reduced competition among Detroit-area hospitals in the wages paid to RNs (rule of reason claim). The RNs met the Rule 23(a) numerosity, commonality, typicality, and adequacy of representation, and the action was maintainable under Rule 23(b)(3). The court concluded that all three elements of the RNs’ rule of reason claim – a violation of antitrust law, antitrust impact, and damages – may be established through predominantly common evidence and individualized inquiries will not play a significant role as to these three elements of the RNs’ claim.

Procedural background. The RNs sought to recover on behalf of themselves and a class of RNs against eight Detroit area hospitals alleging that the health care providers had conspired among themselves and with other local hospitals to hold down the wages of the RNs employed by the hospitals (per se claim) and had exchanged compensation-related information to reduce wage competition (the rule of reason claim). In a prior ruling, the court granted summary judgment to the hospitals on the per se claim. The court also granted final approval to settlements reached between the RNs and three of the hospitals and preliminarily approved settlements with four additional hospitals, leaving VHS as the sole hospital against which the RNs are litigating their antitrust claims.

Rule 23(a) prerequisites. To obtain class certification, the RNs first had to establish that (1) the class was so numerous that joinder of all members was impractical; (2) there were questions of law or fact common to the class; (3) the claims or defenses of the parties were typical of the claims or defenses of the class; and (4) the representative parties would fairly and adequately protect the interests of the class. The RNs and their expert estimated that the proposed class had over 20,000 members, thus satisfying the numerosity requirement. In addition, the RNs’ rule of reason claim raised a number of common issues, including: a common course of action, namely, the hospitals agreed to exchange wage information to use in the RN wage determinations; an antitrust injury, a depression in RN wages flowing from an anticompetitive aspect of the hospitals exchange of wage data; and a common question, whether the claim of each class member depended upon whether the benchmark analysis of the RNs’ expert offered a viable and permissible measure of the wage loss suffered by this particular member of the RN class.

Because the claims of the named RNs and the remaining members of the proposed class all arose from the same conspiracy and were based on the same theory of liability under the Sherman Act, the typicality standard was met. The court found that the named RNs met the adequacy of representation standard in that the RNs had interests in common with the unnamed class members as hospital nurses, in seeking to recover damages related to depressed wages, and in demonstrating their willingness to pursue the interests of the RN class.

Rule 23(b)(3). To satisfy Rule 23(b)(3), “a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole predominate over those issues that are subject only to individualized proof.” Although VHS identified other court cases where the court declined to certify classes in antitrust suits featuring wage suppression, the court found here that each of the cases was distinguishable from the RNs’ claim. VHA’s challenges did not lead to the conclusion that the RNs’ showing of antitrust impact, causation, or the damage elements of their antitrust claim would entail predominantly individualized inquiries directed at the characteristics of each member of the proposed class. Therefore, the court concluded that the RNs satisfied both the predominance and superiority prongs of Rule 23(b)(3).

The RNs’ expert described a broad outline of a benchmark methodology through which harm to the proposed class could (theoretically) be examined and measured, and produced a report in which he applied his benchmark approach to the record. Rather than relying on averages to demonstrate antitrust impact or measure harm allegedly suffered by the proposed RN class, he had derived what he characterized as a “conservative estimate” of the “but-for” hourly pay rate that each member of the proposed RN class would have received in a competitive market, at a minimum, in the absence of the hospitals’ alleged agreement to regularly share RN compensation data.

Quoting its earlier opinion the court stated “so long as [the expert] is able to persuade the trier of fact that his benchmark provides a truly conservative estimate of “but-for” wages . . . this will suffice to establish that the Defendants’ alleged antitrust violations had a common impact on the members of the plaintiff class, even if this benchmark might not accurately measure the precise harm suffered by each individual class member.” In addition, the court agreed with the RNs that the variations in certain components of the hospitals’ pay structures and the disparities in the amounts of compensation received by the members of the proposed class did not defeat the RNs alternative effort to establish indirectly the antitrust impact through common proof of shared or similar features among the wage structures implement by the hospitals.

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