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Reading the Tea Leaves for Michigan Class Actions |
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A recent order from the Michigan Supreme Court may, or may not, signal that the new majority of that Court will, if given the chance, show greater receptivity to employment class actions than Michigan courts have shown in the past. The Court’s January 29, 2010 order vacated a published Court of Appeals decision, Duskin v. Department of Human Services, that had reversed certification of a class asserting that the DHS discriminated against male members of racial and ethnic minorities — but not female members of those same minorities — in awarding promotions to supervisory and managerial positions. The Court of Appeals’ opinion had explained in detail why this particular case was singularly unsuited to class treatment, given (1) the absence of evidence of a standardized policy or practice of discrimination, (2) the baffling number of possible permutations in the racial, gender, and ethnic characteristics of the alleged victims and beneficiaries of the alleged “culture” of discrimination, and (3) the multiplicity of factors that bear on any individual promotion decision. Although the reasoning of the Duskin panel (which included two judges not usually thought of as “conservative”) seemed beyond reproach, the High Court sent the case back to the trial court (now a different judge) for reconsideration in light of Henry v. Dow Chemical Co., a Michigan Supreme Court case decided after Duskin. Justice Corrigan, joined by Justice Young, dissented from the remand order as unnecessary, because they viewed the Court of Appeals’ panel’s reasoning as fully consistent with Henry. Henry v. Dow Chemical Co. was an environmental contamination case, decided in late July 2009 by a familiar 4 to 3 division of the Supreme Court, with Justice Weaver joining the three Democrats and authoring the opinion. In the months since then, no developments have offered a basis for interpreting Henry — a distinctly middle-of-the-road opinion — as a new or more “liberal” approach to class actions. The majority opinion spoke largely in generalities, agreeing that trial judges should not simply “rubber stamp” plaintiffs’ allegations that their lawsuit meets the class certification prerequisites, and held that courts must look to additional information beyond the pleadings if (as will usually be true in employment cases) the pleadings do not contain sufficient information to satisfy each prerequisite for class treatment. The Court in Henry neither endorsed nor disapproved federal phraseology describing this exercise as a “rigorous analysis,” and repeated the principle that the merits of the underlying claims are not to be assessed at the class certification stage. It is difficult to see what jurisprudential benefit will be gained by having the trial court reappraise the Duskin case in light of Henry. One might speculate that the current majority simply wanted to erase Duskin, a comprehensive opinion that emphasizes the difficulty of certifying a class in an employment discrimination case — something that has been well-recognized in Michigan litigation practice for many years. The Supreme Court majority certainly accomplished that result by vacating the Duskin opinion. Thomas G. Kienbaum Mr. Kienbaum and KOHP have represented employers in a number of key class certification cases decided by the Michigan courts in recent years. |
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