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Cleary v. Whole Foods Market Rocky Mountain/Southwest L.P.

United States District Court, D. Colorado

December 5, 2016

SEAN CLEARY, Plaintiff,


          Michael E. Hegarty, United States Magistrate Judge.

         Before the Court is Defendant's Motion to Strike Class Allegations Pursuant to Fed.R.Civ.P. 23 [filed October 18, 2016; ECF No. 30]. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion.[1] Because Defendant has not shown that it would be impossible for Plaintiff to certify a class in this case, Defendant's Motion is denied.


         Plaintiff filed his Complaint on June 12, 2015. Compl., ECF No. 1. On August 11, 2015, the Court administratively closed the case for the duration of the EEOC investigation. See ECF No. 20. On August 4, 2015, the EEOC issued its determination letter, which found that reasonable cause exists to believe Defendant discriminated against a nationwide class of individuals. See Mot. to Reopen Case 2, ECF No. 21. Because the determination letter ended the EEOC investigation, the Court reopened the case on September 27, 2016. ECF No. 25.

         On the same day that the Court reopened the case, Plaintiff filed the operative Amended Complaint, which brings claims for employment discrimination and retaliation under the Americans with Disabilities Act (“ADA”). Am. Compl. ¶¶ 54-71, ECF No. 27. Plaintiff alleges Defendant discriminated against him by failing to provide reasonable accommodation for a neck injury he suffered during an automobile accident. Id. at ¶¶ 25, 55, 62. Plaintiff's retaliation claim asserts Defendant subjected Plaintiff to retaliatory treatment and ultimately terminated his employment after he filed a charge of discrimination with the EEOC. Id. at ¶¶ 65-68.

         Additionally, the Amended Complaint seeks discovery to identify a potential class of individuals who Defendant may have discriminated against. Id. at ¶¶ 16-20, 22-24, 75-78. According to Plaintiff, “[a] currently unknown number . . . of employees may have fallen victim to [Defendant's] discriminatory policy, ” which allegedly prohibited an injured employee from returning to work until a doctor approved him to work without any physical restrictions. Id. at ¶ 22. Plaintiff requests discovery to determine the identity and other facts about these potential class members-information which the EEOC has withheld as confidential. Id. at ¶¶ 77-78.

         On October 11, 2016, Defendant filed its Answer to Plaintiff's Amended Complaint. Answer, ECF No. 29. On October 18, 2016, Defendant filed the present Motion, which seeks an order striking Plaintiff's allegations regarding a potential class action and denying Plaintiff's request to conduct discovery into class certification. Def.'s Mot to Strike, ECF No. 30.


         Although the Tenth Circuit has not articulated a specific standard for motions to strike class allegations, courts in this District and around the country have held that “‘Rule 23 does not preclude a defendant from bringing a ‘preemptive' motion to deny class certification.'” Wornicki v., Inc., No. 13-cv-03258-PAB-KMT, 2015 WL 1403814, at *4 (D. Colo. Mar. 23, 2015) (quoting Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009); Francis v. Mead Johnson & Co., No. 10-cv-00701-JLK, 2010 WL 3733023, at *1 (D. Colo. Sept. 16, 2010); Bryant v. Food Lion, Inc., 774 F.Supp. 1484, 1495 (D.S.C. 1991).

         However, motions to strike class allegations before discovery commences under Rule 23(d)(1)(D) or Rule 12(f) are generally disfavored.[2] Francis, 2010 WL 3733023, at *1; Friedman v. Dollar Thrifty Auto. Grp., Inc., No. 12-cv-02432-WYD-KMT, 2013 WL 5448078, at *2 (D. Colo. Sept. 27, 2013). “[I]n most circumstances, it is appropriate for courts to allow discovery before determining whether class certification is appropriate.” Wornicki, 2015 WL 1403814, at *4; see also Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (“To pronounce finally, prior to allowing any discovery, the non-existence of a class or set of subclasses, when their existence may depend on information wholly within defendant's ken, seems precipitate and contrary to the pragmatic spirit of Rule 23.”), overruled on other grounds by Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978). Therefore, when ruling on motions to strike class allegations, courts in this District have held that the “[d]efendant must demonstrate from the face of the plaintiffs' complaint that it will be impossible to certify the classes alleged by the plaintiffs regardless of the facts the plaintiffs may be able to prove.” Francis, 2010 WL 3733023, at *1 (internal quotation marks omitted); see also Wornicki, 2015 WL 1403814, at *4 (stating that a defendant cannot prevail on a motion to strike class allegations unless it is “able to show conclusively that [the] plaintiffs will be unable to establish facts that would make class treatment appropriate”).


         Defendant argues that this Court should strike the class allegations in Plaintiff's Amended Complaint, because it would be impossible for Plaintiff to assert an action establishing the elements of an ADA employment discrimination claim, while at the same time satisfying Rule 23's commonality requirement. Def.'s Mot. 5-6. To assert a claim for discrimination under the ADA, Plaintiff must show: “‘(1) that he is disabled within the meaning of the ADA; (2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) that he was discriminated against because of his disability.'” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (quoting McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir. 2001)). To satisfy Rule 23's commonality requirement, Plaintiff must show his and the class members' claims “depend upon a common contention” that it is “capable of classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). According to Defendant, because the elements of an ADA claim demand an individualized assessment of each class member's disability, “employment discrimination claims arising under the [ADA] like Plaintiff's are - as a matter of law - improper for class certification.” Def.'s Mot. 2. In response, Plaintiff argues the case law does not support the contention that ADA accommodation claims can never be brought as class actions, and thus, discovery may reveal a set of facts that justifies certification of a class. Pl.'s Resp. to Def.'s Mot. to Strike 4-5, ECF No. 36.

         The Court agrees with Plaintiff and holds that it would be improper to strike Plaintiff's class allegations at this time. Defendant principally relies on Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) for its assertion that class actions are improper in the ADA employment discrimination context. However, Davoll does not support the contention that class certification is never proper in ADA employment suits. In Davoll, the Tenth Circuit considered whether the district court acted within its discretion when it denied certification of the plaintiff's proposed class, which included “present and future members of the Denver Police Department who have or will have disabilities [or] who have been or will be denied reasonable accommodation of their disabilities . . . .” Id. at 1146. The court affirmed the district court's discretionary denial of the plaintiff's motion for class certification, because determining whether each individual class member was disabled in this case would have required the district court to conduct individualized inquiries into each member's ailment. Id.

         However, the Davoll court noted that class certification may be appropriate in other ADA ...

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