Mark N. Troobnick, Esq.
Wright & Sielaty, PC
Lake Ridge, Virginia
and
Richard G. Gay, Esq.
Nathan Cochran, Esq.
Law Office of Richard G. Gay, LC
Berkeley Springs, West Virginia
and
Mark Jenkinson, Esq.
Burke, Shultz, Harman & Jenkinson
Martinsburg, West Virginia
and
Clinton R. Ritter, Esq.
Winchester, Virginia
Attorneys for Appellants
Christopher Robertson, Esq.
Jackson & Kelly
Martinsburg, West Virginia
and
Kathleen M. Mahoney, Esq.
David M. Wilk, Esq.
Larson-King, LLP
St. Paul, Minnesota
Attorneys for Imation Enterprises Corp.,
Imation Corp., 3M Company, Charles
Oesterlein, Barbara Cederberg, K. C.
Lum, Larry Doris & Dean Stickel
Harry P. Waddell, Esq.
Law Offices of Harry P. Waddell
Martinsburg, West Virginia
Attorney for Sam Adams
Charles F. Printz, Jr., Esq.
Bowles Rice McDavid Graff & Love, PLLC
Martinsburg, West Virginia
Attorney for Clarence Ruppenthal
Sara E. Hauptfuehren, Esq.
Rodney L. Bean, Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for Spectratech International, Inc.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE McGRAW dissents
and reserves the right to file a dissenting opinion.
1. “Whether the requisites for a class action exist rests within the sound
discretion of the trial court.” Syllabus Point 5, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d
895 (1981).
2. “This Court will review a circuit court's order granting or denying a
motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil
Procedure [1998] under an abuse of discretion standard.” Syllabus Point 1, In Re: West
Virginia Rezulin Litigation, ___ W.Va. ___, ___ S.E.2d ___ (Nos. 30958 and 30963, July
3, 2003).
3. “This Court will not pass on a nonjurisdictional question which has not
been decided by the trial court in the first instance.” Syllabus Point 2, Sands v. Security Trust
Company, 143 W.Va. 522, 102 S.E.2d 733 (1958).
4. “Before certifying a class under Rule 23 of the West Virginia Rules of
Civil Procedure [1998], a circuit court must determine that the party seeking class
certification has satisfied all four prerequisites contained in Rule 23(a) _ numerosity,
commonality, typicality, and adequacy of representation _ and has satisfied one of the three
subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case
should be allowed to proceed on behalf of the class proposed by the party.” Syllabus Point 8,
In Re: West Virginia Rezulin Litigation, ___ W.Va. ___, ___ S.E.2d ___ (Nos. 30958 and
30963, July 3, 2003).
5. “The party who seeks to establish the propriety of a class action has the
burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil
Procedure have been satisfied.” Syllabus Point 6, Jefferson Cty. Bd. of Educ. v. Educ. Ass'n,
183 W.Va. 15, 393 S.E.2d 653 (1990).
6. “The 'commonality' requirement of Rule 23(a)(2) of the West Virginia
Rules of Civil Procedure [1998] requires that the party seeking class certification show that
'there are questions of law or fact common to the class.' A common nucleus of operative fact
or law is usually enough to satisfy the commonality requirement. The threshold of
'commonality' is not high, and requires only that the resolution of common questions affect
all or a substantial number of the class members. Syllabus Point 11, In Re: West Virginia
Rezulin Litigation, ___ W.Va. ___, ___ S.E.2d ___ (Nos. 30958 and 30963, July 3, 2003).
7. “The 'typicality' requirement of Rule 23(a)(3) of the West Virginia Rules
of Civil Procedure [1998] requires that the 'claims or defenses of the representative parties
[be] typical of the claims or defenses of the class.' A representative party's claim or defense
is typical if it arises from the same event or practice or course of conduct that gives rise to the
claims of other class members, and if his or her claims are based on the same legal theory.
Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class
members' claims, not that the claims be identical. When the claim arises out of the same legal
or remedial theory, the presence of factual variations is normally not sufficient to preclude
class action treatment.” Syllabus Point 12, In Re: West Virginia Rezulin Litigation, ___
W.Va. ___, ___ S.E.2d ___ (Nos. 30958 and 30963, July 3, 2003).
8. “The 'adequacy of representation' requirement of Rule 23(a)(4) of the
West Virginia Rules of Civil Procedure [1998] requires that the party seeking class action
status show that the 'representative parties will fairly and adequately represent the interests of
the class.' First, the adequacy of representation inquiry tests the qualifications of the attorneys
to represent the class. Second, it serves to uncover conflicts of interest between the named
parties and the class they seek to represent.” Syllabus Point 13, In Re: West Virginia Rezulin
Litigation, ___ W.Va. ___, ___ S.E.2d ___ (Nos. 30958 and 30963, July 3, 2003).
9. “The fundamentals of a legal 'contract' are competent parties, legal subject-
matter, valuable consideration, and mutual assent. There can be no contract, if there is one of
these essential elements upon which the minds of the parties are not in agreement.” Syllabus
Point 5, Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253
(1926).
10. “An oral promise which has as its effect the alteration of an 'at will'
employment relationship must contain terms that are both ascertainable and definitive in nature
to be enforceable.” Syllabus Point 1, Sayres v. Bauman, 188 W.Va. 550, 425 S.E.2d 226
(1992).
Per Curiam:
The appellants and plaintiffs below, seven former employees of appellees and
defendants below, Imation Enterprises Corporation, Imation Corporation, and Minnesota
Mining and Manufacturing Company, appeal the June 5, 2002, order of the Circuit Court of
Jefferson County that denied the appellants' motion for class certification in their claims for
breach of contract and employment discrimination.
(See footnote 1)
After careful consideration of the issues,
we affirm the circuit court.
Effective July 1, 1996, Appellant Imation Enterprises Corporation (hereinafter
“Imation”) was formed as a result of the “spin off”
(See footnote 3)
of certain 3M businesses. Imation owned
and operated the Middleway plant from Imation's inception until December 31, 1998, when
the plant closed. Prior to the closing, Imation offered its approximately 150 employees
(See footnote 4)
two
separate severance plan options -- a “voluntary plan,” and an “income assistance pay plan.”
According to the appellees, 72 employees accepted the “voluntary plan,” and the remaining 88
employees accepted the “income assistance plan.” As a condition of participation in the plan,
the employees were required to sign a document titled “General Release Of All Claims -
Covenant Not To Sue.”
(See footnote 5)
In November 1998, Appellee Spectratech International Inc. agreed to purchase certain Middleway plant assets. Spectratech subsequently reopened the plant with a
workforce of 28 employees, all of whom were former employees of Imation.
On March 28, 2000, the appellants filed an action in the Circuit Court of
Jefferson County against Imation, 3M, Spectratech, and several former employees of 3M and
Imation. The eight appellants are:
Margaret Ways - a female over the age of 40 years
who worked at the Middleway plant for a continual
period of 24 years and 11 months;
Douglas Brill - a male over the age of 40 years
who worked at the plant for a continual period of
30 years and five months;
William E. Crum - a male over the age of 40 years
who worked at the plant for a continual period of
18 years and six months;
Dael Copeland - a male over the age of 40 years
who worked at the plant for a continual period of
30 years and one month;
Gwendolyn Shells - an African-American female
over the age of 40 years who worked for
3M/Imation for a continual period of 24 years and
9 months;
Edgar Carter - an African-American male over the
age of 40 years who worked at the plant for a
continual period of 21 years; and
Larry Linton - a male over the age of 40 years who
worked at the plant for a continual period of 32
years and two months.
In their complaint, the appellants alleged breach of express and implied oral
contracts of continued employment. Essentially, the appellants claimed that the employees
at the Middleway plant were promised in a series of meetings with Imation management that
if they perfected a new type of lithographic plate, known as a “negative no process plate,”
(See footnote 6)
their
jobs were assured and the Middleway plant would continue as an operational unit; the
employees perfected the technology; nevertheless, Imation, in collusion with Spectratech,
breached its express and implied promises of continued employment by closing the plant. The
appellants also alleged race, gender, and age discrimination in violation of the West Virginia
Human Rights Act, W.Va. Code §§ 5-11-1, et seq. According to the appellants, Imation
engaged in a conspiracy with Spectratech to deny employment offers to the appellants because
of their race, sex, and age. The appellants alleged that none of the approximately 17 African-
Americans employed by Imation were hired by Spectratech, only three of approximately 47
women were hired, and fewer older workers were hired in comparison to the younger white
males who were hired.
(See footnote 7)
By motion dated November 5, 2001, the appellants moved the circuit court to
certify their action against the appellees as a class action. According to the appellants, “[t]he
overarching class action claims that potentially involve approximately 150 people are
Plaintiffs' breach of contract claims, and retaliatory action claims. Subclasses within the
overall class are based upon Plaintiff employees' discrimination in employment practices
claims based on race, gender, and age.” The appellants excluded from the proposed class
former employees of Imation who were named as defendants in their complaint. The circuit
court denied the motion for class certification by order of June 5, 2002, after it determined
that the appellants failed to meet the requirements of Rule 23 of the West Virginia Rules of
Civil Procedure.
As a preliminary matter, we note that the appellants spend a substantial portion
of their brief challenging the legality of the releases signed by the employees of Imation
pursuant to obtaining severance benefits. The appellants argue that the releases are
unconscionable, and that the circuit court erred in ruling that the releases bar class
certification of the appellants' claims. Significantly, however, the circuit court has not yet
determined the validity of the releases. Our law is clear that “[t]his Court will not pass on a
nonjurisdictional question which has not been decided by the trial court in the first instance.”
Syllabus Point 2, Sands v. Security Trust Company, 143 W.Va. 522, 102 S.E.2d 733 (1958).
Because the circuit court has not decided the question of the validity of the releases, we
decline to consider the matter.
This leaves us with the sole issue of whether the circuit court abused its
discretion in determining that the appellants fail to meet the requirements for class
certification listed in Rule 23 of the West Virginia Rules of Civil Procedure. According to
Rule 23, in part:
(a) Prerequisites to a class action. --- One or
more members of a class may sue or be sued as
representative parties on behalf of all only if (1)
the class is so numerous that joinder of all
members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims
or defenses of the representative parties are typical
of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
(b) Class actions maintainable. --- An
action may be maintained as a class action if the
prerequisites of subdivision (a) are satisfied, and in
addition:
(1) The prosecution of separate actions by
or against individual members of the class would
create a risk of
(A) Inconsistent or varying adjudications
with respect to individual members of the class
which would establish incompatible standards of
conduct for the party opposing the class, or
(B) Adjudications with respect to individual
members of the class which would as a practical
matter be dispositive of the interests of the other
members not parties to the adjudications or
substantially impair or impede their ability to
protect their interests; or
(2) The party opposing the class has acted
or refused to act on grounds generally applicable
to the class, thereby making appropriate final
injunctive relieve [sic] or corresponding
declaratory relief with respect to the class as a
whole; or
(3) The court finds that the questions of law
or fact common to the members of the class
predominate over any questions affecting only
individual members, and that a class action is
superior to other available methods for the fair and
efficient adjudication of the controversy. The
matters pertinent to the findings include: (A) the
interest of members of the class in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
concerning the controversy already commenced by
or against members of the class; (c) the
desirability or undesirability of concentrating the
litigation of the claims in the particular forum; (D)
the difficulties likely to be encountered in the
management of a class action.
This Court has held:
Before certifying a class under Rule 23 of
the West Virginia Rules of Civil Procedure
[1998], a circuit court must determine that the
party seeking class certification has satisfied all
four prerequisites contained in Rule 23(a) _
numerosity, commonality, typicality, and adequacy
of representation _ and has satisfied one of the
three subdivisions of Rule 23(b). As long as these
prerequisites to class certification are met, a case
should be allowed to proceed on behalf of the class
proposed by the party.
Syllabus Point 8, In Re: West Virginia Rezulin Litigation, supra. “The party who seeks to
establish the propriety of a class action has the burden of proving that the prerequisites of Rule
23 of the West Virginia Rules of Civil Procedure have been satisfied.” Syllabus Point 6,
Jefferson Cty. Bd. of Educ. v. Educ. Ass'n, 183 W.Va. 15, 393 S.E.2d 653 (1990). As noted
above, the circuit court found that the appellants failed to meet any of the requirements of Rule
23.
nucleus of operative fact or law is usually enough
to satisfy the commonality requirement. The
threshold of “commonality” is not high, and
requires only that the resolution of common
questions affect all or a substantial number of the
class members.
12. The “typicality” requirement of Rule
23(a)(3) of the West Virginia Rules of Civil
Procedure [1998] requires that the “claims or
defenses of the representative parties [be] typical
of the claims or defenses of the class.” A
representative party's claim or defense is typical if
it arises from the same event or practice or course
of conduct that gives rise to the claims of other
class members, and if his or her claims are based
on the same legal theory. Rule 23(a)(3) only
requires that the class representatives' claims be
typical of the other class members' claims, not that
the claims be identical. When the claim arises out
of the same legal or remedial theory, the presence
of factual variations is normally not sufficient to
preclude class action treatment.
13. The “adequacy of representation”
requirement of Rule 23(a)(4) of the West Virginia
Rules of Civil Procedure [1998] requires that the
party seeking class action status show that the
“representative parties will fairly and adequately
represent the interests of the class.” First, the
adequacy of representation inquiry tests the
qualifications of the attorneys to represent the
class. Second, it serves to uncover conflicts of
interest between the named parties and the class
they seek to represent.
Concerning the establishment of a contract, this Court has held that “[t]he
fundamentals of a legal 'contract' are competent parties, legal subject-matter, valuable
consideration, and mutual assent. There can be no contract, if there is one of these essential
elements upon which the minds of the parties are not in agreement.” Syllabus Point 5,
Virginian Export Coal Co. v Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926).
Further,
It is elementary that mutuality of assent is
an essential element of all contracts. Wheeling
Downs Racing Ass'n v. West Virginia
Sportservice, Inc., 158 W.Va. 935, 216 S.E.2d 234
(1975). In order for this mutuality to exist, it is
necessary that there be a proposal or offer on the
part of one party and an acceptance on the part of
the other. Both the offer and acceptance may be by
word, act or conduct that evince the intention of
the parties to contract. That their minds have met
may be shown by direct evidence of an actual
agreement or by indirect evidence through facts
from which an agreement may be implied. See
Lacey v. Cardwell, 216 Va. 212, 217 S.E.2d 835
(1975); Charbonnages de France v. Smith, 597
F.2d 406, 415-416 (4th Cir. 1979).
Bailey v. Sewell Coal Co., 190 W.Va. 138, 140-41, 437 S.E.2d 448, 450-51 (1993). In
regards to employment contracts, this Court has held that “[a]n oral promise which has as its
effect the alteration of an 'at will' employment relationship must contain terms that are both
ascertainable and definitive in nature to be enforceable.” Syllabus Point 1, Sayres v. Bauman,
188 W.Va. 550, 425 S.E.2d 226 (1992).
The appellants' contract claims essentially are based on the allegation that
several members of Imation management verbally promised continued employment if the
employees perfected a negative no process plate.
(See footnote 8)
A significant problem with the appellants'
contract claims is that the alleged oral promises of continued employment apparently were
made by different members of management at different times to different employees. In
addition, the appellants' recollections of the nature of the alleged oral promises differ. As the
court opined in Broussard, 155 F.3d at 341,
The oral nature of [individualized
representations] makes them a particularly shaky
basis for a class claim. Fifth Circuit caselaw even
suggests a per se prohibition against class actions
based on oral representations. See Simon v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 482
F.2d 880, 882-83 (5th Cir. 1973). As the Seventh
Circuit has indicated, “claims based substantially
on oral rather than written communications are
inappropriate for treatment as class actions unless
the communications are shown to be standardized.”
Retired Chicago Police, 7 F.3d at 597 n. 17.
In order to prove the existence of a valid contract of continued employment, the
appellants must present evidence that the terms of the alleged contract were ascertainable and
definitive in nature. They also must show that there was mutuality of assent on these terms.
Because the bulk of the appellants' breach of contract claims rests upon alleged individual oral
representations made by various members of management, we agree with the circuit court that
individualized evidence as to the specific circumstances surrounding the alleged promises is
required. Accordingly, we conclude that the circuit court did not abuse its discretion when it
ruled that the appellants' breach of contract claims do not meet the commonality and typicality
requirements of Rule 23(a).
A case which is instructive in deciding the propriety of class certification in
discrimination claims is General Telephone Co. of Southwest v. Falcon, supra. In Falcon,
the named plaintiff was a Mexican-American whose only personal claim was for an allegedly
discriminatory denial of a promotion. On his class claims, the plaintiff sought to challenge a
wide variety of discriminatory employment practices including hiring. The Supreme Court
held that a plaintiff could not maintain a class action on behalf of both employees who were
denied promotions and applicants who were denied employment. This decision was based on
the reasoning that,
[c]onceptually, there is a wide gap between (a) an
individual's claim that he has been denied a
promotion on discriminatory grounds, and his
otherwise unsupported allegation that the company
has a policy of discrimination, and (b) the
existence of a class of persons who have suffered
the same injury as that individual, such that the
individual's claim and the class claims will share
common questions of law or fact and that the
individual's claim will be typical of the class
claims. For respondent to bridge that gap, he must
prove much more than the validity of his own
claim. Even though evidence that he was passed
over for promotion when several less deserving
whites were advanced may support the conclusion
that respondent was denied the promotion because
of his national origin, such evidence would not
necessarily justify the additional inferences (1)
that this discriminatory treatment is typical of
petitioner's promotion practices, (2) that
petitioner's promotion practices are motivated by
a policy of ethnic discrimination that pervades
petitioner's Irving division, or (3) that this policy
of ethnic discrimination is reflected in petitioner's
other employment practices, such as hiring, in the
same way it is manifested in the promotion
practices. These additional inferences
demonstrate the tenuous character of any
presumption that the class claims are “fairly
encompassed” within respondent's claim.
Id., 457 U.S. at 157-58, 102 S.Ct. at 2370-71, 72 L.Ed.2d at 750-51. The Supreme Court
reiterated that the requirements of Rule 23(a) “limit the class claims to those fairly
encompassed by the named plaintiff's claims.” Id., 457 U.S. at 156, 102 S.Ct. at 2370, 72
L.Ed.2d at 749 (quoting General Telephone Co. of Northwest v. EEOC, 446 U.S. 318, 330,
100 S.Ct. 1698, 1706, 64 L.Ed.2d 319, 330 (1980)). “The primary significance of the Falcon
holding . . . is that plaintiffs in Title VII class actions, like plaintiffs in all class actions, must
meet the requirements of Rules 23(a).” Sheehan v. Purolator, Inc., 103 F.R.D. 641, 647
(E.D.N.Y. 1984).
The court in Sheehan applied the principles of Falcon where two former
employees and one present employee brought a Title VII
(See footnote 9)
sex discrimination action against
a common employer and moved for class certification. The court noted that to bridge the
conceptual gap mentioned in Falcon, “courts in Title VII actions after Falcon have required
that the individual plaintiffs establish that there are aggrieved persons in the purported class,
primarily through affidavits from employees alleging discriminatory treatment, or other
evidence establishing the existence of an aggrieved class.” Sheehan, 103 F.R.D. at 648
(citations omitted). In Sheehan, the plaintiffs relied, in part, on statistics comparing job titles,
salaries, and fringe benefits received by male and female employees. The court, however,
rejected these statistics as establishing an aggrieved class of female employees because,
[t]he statistics do not offer the relevant
comparisons of similarly situated female and male
employees (i.e., females and males with the same
qualifications and experience), nor do the statistics
alone indicate that other female employees feel
aggrieved. Affidavits from individual employees
are needed to flesh out these statistics by
particularizing instances where females were
discriminated against in favor of similarly situated
males.
Id. at 649.
When we apply the reasoning in Falcon and Sheehan to the instant case, we note
that the appellants offer as evidence to support their discrimination claim that Spectratech
hired none of the 17 African-Americans who worked at Imation, three of the 47 women who
worked at Imation, and few older workers. As in Sheehan, these numbers do not establish that
there are aggrieved persons, other than the appellants, in the aggrieved class. Specifically, the
numbers do not indicate how many women, older persons, or African-American former
employees of Imation, other than those who are appellants herein, feel aggrieved by
Spectratech's hiring decisions. In other words, it is not indicative of how many African-
Americans, women, or older workers were qualified for the jobs at Spectratech or how many
expressed an interest in or actively pursued employment at Spectratech. Absent such evidence,
we conclude that the appellants have failed to show the existence of an aggrieved class that
meets the requirements of Rule 23(a).
In addition, in order to prove commonality, typicality, or adequate representation
in employment discrimination claims, the appellants must show not only common race, gender,
or age with members of the proposed class, but also common qualifications and work
experiences. Otherwise, it cannot be shown that the resolution of common questions affect
all or a substantial number of class members. Accordingly, we are unable to conclude that the
circuit court abused its discretion in denying the appellants' motion for class certification on
their employment discrimination claim.
(See footnote 10)
Finally, in considering the issues raised by the appellants, we are mindful that,
Despite the potential benefits of class
actions, there remains an overarching concern --
that absentees' interests are being resolved and
quite possibly bound by the operation of res
judicata even though most of the plaintiffs are not
the real parties to the suit. The protection of the
absentees' due process rights depends in part on
the extent. . . that the class representatives have
interests that are sufficiently aligned with the
absentees to assure that the monitoring serves the
interests of the class as a whole. In addition, the
court plays the important role of protector of the
absentees' interests, in a sort of fiduciary capacity,
by approving appropriate representative plaintiffs[.]
* * *
The drafters designed the procedural
requirements of Rule 23, especially the requisites
of subsection (a), so that the court can assure, to
the greatest extent possible, that the actions are
prosecuted on behalf of the actual class members
in a way that makes it fair to bind their interests.
The rule thus represents a measured response to
the issues of how the due process rights of
absentee interests can be protected and how
absentees' represented status can be reconciled
with a litigation system premised on traditional
bipolar litigation.
In re General Motors Corp. Pick-up Truck Fuel Tank, 55 F.3d 768, 784-85 (3rd Cir. 1995).
Thus, it is of the utmost importance that the requirements of Rule 23 be met in order to protect
the rights of non-appearing class members. In the instant case, the circuit court found, in its
discretion, that the appellants failed to meet the Rule 23 requirements. In other words, the
circuit court found an insufficient guarantee that the due process rights of the non-appearing
former employees of Imation would be sufficiently protected in a class action. We do not
believe that the circuit court abused its discretion.
For the reasons stated above, we affirm the July 5, 2002, order of the Circuit
Court of Jefferson County that denied the appellants' motion for class certification.
Affirmed.
I
am not releasing any claims for post- termination benefits, under the provisions
of any employee benefit plan maintained by Imation. I also am not waiving any
rights I have for events that occur after the date of this Agreement. I understand and agree that I am not being released from my obligations under
the Imation “Employee Agreement”.