United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
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. Because Defendant has not shown
that it would be impossible for Plaintiff to certify a class
in this case, Defendant's Motion is denied.
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.
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.
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.
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.
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.
Brokerpriceopinion.com, 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).
motions to strike class allegations before discovery
commences under Rule 23(d)(1)(D) or Rule 12(f) are generally
disfavored. 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
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.
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
the Davoll court noted that class certification may
be appropriate in other ADA ...