JACKSON v. MOTEL 6 MULTIPURPOSE, INC.

TJOFLAT, Circuit Judge:

Motel 6 Multipurpose, Inc. ("Motel 6") seeks a writ of mandamus1 vacating a district court order, issued on February 21, 1997, authorizing the plaintiffs in two consolidated race discrimination cases to advertise their allegations to the public at large and to communicate with current and former Motel 6 employees through mass mailings. Motel 6 also requests that the writ direct the district court to decertify one of the two putative classes. We conclude that the district court's February 21 order constitutes an abuse of discretion, and that the challenged class was erroneously certified. We therefore grant the petition and issue the writ.

I.

Motel 6 owns and operates over 750 motels across the United States. The instant petition for mandamus arises from two consolidated cases alleging that Motel 6 has a nationwide practice or policy of discriminating against its customers and its employees on the basis of race. In the first case, five Motel 6 patrons ("the Jackson plaintiffs") claim that Motel 6 unlawfully discriminated against them on the basis of their race. They claim that they were either denied accommodations at a Motel 6 motel or provided substandard accommodations pursuant to an alleged nationwide Motel 6 practice or policy of (1) refusing to rent otherwise vacant rooms to blacks and other non-white persons, (2) segregating black patrons and other non-white patrons from white patrons within a single facility, and (3) providing substandard housekeeping and other services to black patrons and other non-white patrons as compared to white patrons. Two of the five named plaintiffs allege that they were denied rooms at the same motel; the remaining three named plaintiffs each allege that they were subjected to discriminatory treatment at three separate other motels. The Jackson plaintiffs seek, on behalf of themselves and similarly situated patrons of Motel 6, injunctive relief and money damages under Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq.,2 and under 42 U.S.C. § 1981.3

In the second case, five former Motel 6 employees ("the Petaccia plaintiffs") claim that, as Motel 6 employees, they were required to discriminate against black and other non-white patrons, that Motel 6 retaliated against them when they refused to do so, and that Motel 6's discrimination against blacks and other non-whites created a "hostile work environment." The Petaccia plaintiffs seek, on behalf of themselves and all Motel 6 employees who have been required to work in the alleged hostile environment, injunctive relief and money damages under § 1981 and the retaliation provision of Title II.4

After the cases were consolidated, the plaintiffs moved for an order allowing them relief from the Middle District of Florida's Local Rule 4.04(e), which provides that

The district court granted relief from Local Rule 4.04(e) in a February 21, 1997, order that authorized the plaintiffs to:

The district court entered this order allowing communication with potential class members even though it had not yet ruled on either the Jackson plaintiffs' or the Petaccia plaintiffs' motions for class certification.5

Motel 6 then moved the lower court for a stay of the communications order pending appeal; that motion was denied. See Jackson v. Motel 6 Multipurposes, Inc., 172 F.R.D. 469 (M.D.Fla.1997). Motel 6 then appealed the denial of the motion for a stay and filed a petition for a writ of mandamus, on the ground that the lower court had misapplied the controlling precedents of Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980) (en banc)6 and Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). This court declined to stay the discovery order on appeal and denied the petition for mandamus. On May 1, 1997, Motel 6 requested a stay of the order from the Supreme Court. On May 2, Circuit Justice Kennedy denied that request.

On August 15, 1997, the district court certified the Jackson plaintiffs as class representatives and referred the question of certification of the Petaccia plaintiffs to a magistrate judge for further consideration.

Motel 6 now petitions for mandamus again, arguing that the communications order was an abuse of discretion ab initio, and also that because the Jackson plaintiffs cannot properly be certified as class representatives, that portion of the communications order allowing the Jackson plaintiffs to advertise their allegations nationwide and to communicate with current and former Motel 6 employees is entirely unnecessary and an abuse of the district court's discretion.7 We agree that the communications order was an abuse of discretion from the beginning, and we agree that the Jackson class was erroneously certified. We therefore grant the writ and direct the district court to decertify the Jackson class and to vacate that portion of its February 21 order allowing the Jackson plaintiffs to communicate with putative class members. We also conclude that the February 21 order constitutes an abuse of discretion insofar as it authorizes the Petaccia plaintiffs to advertise their claims nationwide and conduct mass mailings to Motel 6 employees. We therefore also direct the district court to vacate the communications order insofar as it applies to the Petaccia plaintiffs.8

II.

In In re Estelle, 516 F.2d 480 (5th Cir.1975), we outlined the purview of mandamus:

Id. at 483 (internal citations and quotations omitted). We may issue the writ "only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion." In re Temple, 851 F.2d 1269, 1271 (11th Cir. 1988).

We hold that the instant petition warrants the issuance of mandamus because the district court's order allowing the plaintiffs to communicate with potential class members was an abuse of discretion. The communications order was entered months prior to any decision regarding whether either of the two proposed classes would in fact be certified. While we cannot say that orders authorizing communication with potential class members may never precede class certification, district courts must strive to avoid authorizing injurious class communications that might later prove unnecessary. An order authorizing class communications prior to class certification is likely to be an abuse of discretion when (1) the communication authorized by the order is widespread and clearly injurious and (2) a certification decision is not imminent or it is unlikely that a class will in fact be certified. In such circumstances, the danger of abuse that always attends class communications — the possibility that plaintiffs might use widespread publication of their claims, disguised as class communications, to coerce defendants into settlement — is not outweighed by any need for immediate communications.

The advertisements and mass mailings allowed by the order at issue in the instant petition are nationwide in scope and are surely causing serious and irreparable harm to Motel 6's reputation and to its relationship with its employees. "The only conceivable alternative [to mandamus relief] — inevitable reversal by this court after the defendants have been forced to endure full discovery, full litigation, and a full trial—is scarcely adequate" to redress this injury. In re Cooper, 971 F.2d 640, 641 (11th Cir.1992) (internal quotations omitted). Moreover, the order was entered almost six months prior to the court's decision to certify the Jackson class and to refer the Petaccia plaintiffs' motion for class certification to a magistrate judge. (The Petaccia plaintiffs' motion for class certification is still pending.) Most important, the Jackson plaintiffs clearly could not properly be certified as class representatives.

A.

The Supreme Court has noted that,

General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982) (footnotes omitted). The putative Jackson class is not certifiable because it fails the predominance requirement of Federal Rule of Civil Procedure 23(b)(3).

A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P. 23(a)9 and at least one of the alternative requirements of Rule 23(b).10 The only one of Rule 23's alternatives that is arguably fulfilled by the Jackson plaintiffs' claims is that found in Rule 23(b)(3), which provides that

Fed.R.Civ.P. 23(b)(3). "In other words, `the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.'" Kerr v. City of West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir. 1989) (quoting Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th Cir. Unit B 1982)).11 The predominance inquiry focuses on "the legal or factual questions that qualify each class member's case as a genuine controversy," and is "far more demanding" than Rule 23(a)'s commonality requirement. Amchem Prods., Inc. v. Windsor, ___ U.S. ___, ___, 117 S.Ct. 2231, 2249-50, 138 L.Ed.2d 689 (1997).

The Jackson plaintiffs have argued that the issue common to the claims of all the named plaintiffs and all putative class members—whether Motel 6 has a practice or policy of discriminating against patrons and employees on the basis of race—predominates over all the legal and factual issues that will attend various plaintiffs' and class members' individual claims. The district court agreed, on the ground that "forum-by-forum resolution of each and every issue in this case ... would be far less efficient, cost-effective, and uniform than class resolution." Rule 23(b)(3), however, imposes two additional requirements, and increased efficiency is only one of them. Predominance is the other, and the single common issue in the Jackson case — whether Motel 6 has a practice or policy of discrimination — is not rendered predominant over all the other issues that will attend the Jackson plaintiffs' claims by the fact that class treatment of these claims may be more efficient and uniform than case-by-case adjudication.12 Instead, "as a practical matter, the resolution of this overarching common issue breaks down into an unmanageable variety of individual legal and factual issues." Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir.1996) (citation omitted).

The Jackson plaintiffs' claims will require distinctly case-specific inquiries into the facts surrounding each alleged incident of discrimination. The issues that must be addressed include not only whether a particular plaintiff was denied a room or was rented a substandard room, but also whether there were any rooms vacant when that plaintiff inquired; whether the plaintiff had reservations; whether unclean rooms were rented to the plaintiff for reasons having nothing to do with the plaintiff's race; whether the plaintiff, at the time that he requested a room, exhibited any non-racial characteristics legitimately counseling against renting him a room; and so on. Even more variegated issues would certainly be present in the claims of hundreds or even thousands of members of an improperly certified class. Furthermore, even factual issues that are common to many of the Jackson plaintiffs — such as whether any rooms were in fact available when a particular plaintiff inquired—will require highly case-specific determinations at trial. These issues are clearly predominant over the only issue arguably common to the class — whether Motel 6 has a practice or policy of racial discrimination. Indeed, we expect that most, if not all, of the plaintiffs' claims will stand or fall, not on the answer to the question whether Motel 6 has a practice or policy of racial discrimination, but on the resolution of these highly case-specific factual issues.13

This failure of predominance is readily apparent from a reading of the Jackson plaintiffs' complaint. We therefore hold that the district court's certification of the Jackson class was erroneous as a matter of law and was therefore an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). We have in the past issued mandamus to direct a district court to decertify an improperly certified class, when the certification of that class was a clear abuse of discretion. See, e.g., In re Temple, 851 F.2d 1269. On the instant petition, we are compelled to do so again.

In sum, we hold that the district court abused its discretion in entering an order allowing communication with potential class members when the authorized communications would be nationwide in scope and would cause serious and irreparable injury to the defendant, when a decision on class certification was not imminent, and when the proposed Jackson class was clearly not certifiable. Under these circumstances, there was no need for the plaintiffs immediately to begin the highly injurious publication of their claims authorized by the order — publication that could and did continue for months, as the court contemplated the plaintiffs' motions for class certification. We therefore grant Motel 6's petition for mandamus relief and issue the writ, directing the district court to decertify the Jackson class and to vacate the portion of its February 21 order that authorizes preliminary class communications by the Jackson plaintiffs.

B.

As noted above, the Petaccia plaintiffs allege that they were required as part of their employment by Motel 6 to participate in discrimination against non-white customers, that they were retaliated against when they refused to do so, and that Motel 6's discrimination against non-white customers, along with other instances of discriminatory treatment, created a hostile work environment at Motel 6 motels around the country.

The Petaccia plaintiffs' claim for "retaliation" is brought under 42 U.S.C. §§ 198114 and 2000a-2.15 As an initial matter, we note that the Petaccia plaintiffs do not have standing to maintain their claim for retaliation under section 2000a-2. Section 2000a-2 provides solely for injunctive relief. See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401-02, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enters., Inc., 426 F.2d 534, 538 (5th Cir. 1970).16 The Supreme Court has held that, in order to claim injunctive relief, a plaintiff must show a "real or immediate threat that the plaintiff will be wronged again — `a likelihood of substantial and immediate irreparable injury.'" City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974)). The Petaccia plaintiffs are all former employees of Motel 6, and allege neither that they will be discriminated against by Motel 6 in the future nor any facts that would support such a conclusion. Thus, the Petaccia plaintiffs do not have standing to bring their "retaliation" claim under section 2000a-2. The Petaccia plaintiffs' claim for retaliation may, however, proceed under section 1981(b), which provides for money damages. See Pinkard v. Pullman-Standard, 678 F.2d 1211, 1229 n. 15 (5th Cir. Unit B, June 10, 1982) (Clark, J., and Kravitch, J., concurring) (stating that section 1981 prohibits retaliatory treatment, and citing cases); Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 472 (5th Cir.1970) (allowing section 1981 claims for both damages and injunctive relief); see also, e.g., Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971) (allowing section 1981 retaliation claim to proceed without exhaustion of Title VII administrative remedies); Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509, 1518-21 (M.D.Ala.1996) (allowing section 1981 retaliation claims after passage of Civil Rights Act of 1991 and enactment of section 1981(b)).

We assume for the sake of discussion that the Petaccia plaintiffs have sufficiently stated a cause of action for a racially hostile work environment under section 1981.17 See, e.g., Williams v. Carrier Corp., 889 F.Supp. 1528, 1530 (M.D.Ga.1995) (allowing section 1981 hostile environment claim after passage of section 1981(b)). We note that the named Petaccia plaintiffs' claims, like those of the Jackson plaintiffs, are factually very diverse. One of the Petaccia plaintiffs, for instance, alleges not only that he witnessed racial discrimination, was required to participate in it, and was fired in retaliation for opposing it, but also that he repeatedly informed Motel 6's district, regional, and national offices of the ongoing discrimination, to no avail. Another Petaccia plaintiff, however, fails to allege either that she was retaliated against for opposing the alleged discrimination or any facts that would support a retaliation claim. As in the Jackson case, the only issue common to all the Petaccia plaintiffs is the question whether Motel 6 has a practice or policy of racial discrimination in providing public accommodations. For reasons explained below,18 this issue is more important to the Petaccia plaintiffs' claims than it is to the Jackson plaintiffs' claims; we doubt, however, that the issue is predominant within the meaning of Rule 23(b)(3), because the issues in the class action that are subject to generalized proof and thus applicable to the proposed class as a whole will not predominate over those issues that are subject only to individualized proof.

As explained above, we find the February 21 communications order to have been an abuse of discretion, because it is clearly injurious and, with regard to the Petaccia plaintiffs, because the court's decision on certification of the Petaccia class was not and still may not be imminent. Certification of that class is still pending before the magistrate judge, ten months after the communications order was entered. We therefore grant the petition for mandamus and direct the district court to vacate the portion of the order allowing the Petaccia plaintiffs to advertise their claims and conduct mass mailings to Motel 6 employees.19

III.

For the foregoing reasons, we GRANT Motel 6's petition for mandamus relief. We direct the district court to decertify the Jackson class and vacate that part of the February 21 order allowing the Jackson plaintiffs to conduct preliminary class communications. We also direct the district court to vacate the portion of the February 21 order that authorizes the Petaccia plaintiffs to advertise their allegations and to communicate with Motel 6 employees.

PETITION GRANTED.