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Reap v. Continental Casualty Co.

March 21, 2001


The opinion of the court was delivered by: Cooper, District Judge



This matter comes before the Court on the motion of individual plaintiff Judith B. Reap ("Reap") for class certification of this case pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) or (b)(3). Reap argues that the policy of defendant Continental Insurance Company d/b/a CNA Insurance Companies ("CNA") of delegating discretionary authority to subordinate managers and supervisors to make employment decisions, such as hiring, assignment, promotion, transfer, performance, salary, and discipline, without sufficient oversight, gives rise to common questions of fact that warrants certification of the proposed company-wide class. Reap argues that this policy allows CNA managers and supervisors to improperly use gender and age as criteria in decisions relating to the conditions of employment of women, and particularly older women, in higher job classifications in its workforce.

CNA, on the other hand, argues that class certification is improper because: (1) Reap has presented no evidence that she or the class she seeks to represent was subjected to a common set of discriminatory employment practices or policies; (2) the claims asserted by Reap, individually and on behalf of the class, raise numerous individual questions that are not amenable to generalized proof; (3) Reap is an inadequate class representative because her claims and class definition put her in conflict with other putative class members whom she supervised, and younger women who allegedly benefitted from the age discrimination by which she claims to have been victimized; and (4) the 1991 amendment to Title VII makes class certification inappropriate because (a) the availability of attorneys fees to successful plaintiffs provides an incentive for plaintiffs to control their own litigation, and (b) the availability of damages means that the individualized nature of proof required to prove damages will predominate over any questions of law or fact common to members of the class. For the reasons expressed below, Reap's motion for class certification will be denied.


A. The Organization of CNA

CNA is one of a group of commonly-owned insurance companies that do business throughout the world using the "CNA" service mark. (Aff. of Judith Samuel filed 6-9-00 ("Samuel Aff.") ¶ 2.) CNA employs approximately 18,000 employees in over 284 separate offices throughout the United States, with an additional 43 offices located throughout the rest of the world. (Id. ¶ 4.) CNA has facilities and employees in each of the fifty states. (Id.)

CNA has adopted a structure based on eight separate Strategic Business Units ("SBUs"), which focus on the different products CNA offers. (Id. ¶ 5.) Each SBU maintains a separate reporting structure under which employees report up a chain of command to the SBU head. (Id. ¶ 7.) Most SBUs have operations at several different locations throughout the country. (Id.) Each SBU makes independent decisions regarding the structure, management, and direction of its business. (Id.)

CNA as a whole and each SBU has a variety of grade levels associated with the many and varied jobs that must be performed in its organization. (Id. ¶ 8.) Generally, jobs below grade 30 are clerical and subject to the provisions of the Fair Labor Standards Act. (Id.) Jobs above grade 30 include supervisors, managers, directors, and officers. (Id.) These management functions differ significantly from others in level and focus of responsibility. (Id.) The expectations for each position also differ depending on the SBU to which the position is assigned. (Id.) Officer level positions (grade 91 and above) are treated differently in terms of performance expectations, goals, and compensation. (Id.)

CNA's Human Resources function has adopted a uniform set of core personnel policies governing performance review, salary increases, job posting, discipline, termination, and other basic employment policies. (Id. ¶ 10 & Ex. 1: Human Resources Manual dated 7-15-95; Aff. of Mark Diana in Opp'n to Pl.'s Mot. for Class Certification ("Diana Aff.") Ex. 10: Excerpts of Dep. Tr. of Judith Samuel dated 10-25-99 ("Samuel dep.") at 17-18, Ex. 5: Exempt Performance Review dated 10-27-97.) These policies prohibit discrimination on the basis of age or gender. (Samuel Aff. ¶ 10 & Ex. 1 Procedure 1500.) Decisions affecting hiring, promotion, salary, benefits, and termination of CNA's employees are made by individual officers, directors, managers, and supervisors at the local level. (Samuel dep. at 26, 34-35, 37-38, 47-50, 71-72; Samuel Aff. ¶ 11-14.)

B. Reap's Work History

Reap, a member of the bar of the Commonwealth of Pennsylvania, was born on August 3, 1941 and is currently 59 years old. (Compl. ¶ 9.) Reap began working for CNA on June 29, 1992 as a Director of its Environmental Claims Department (the "ECD") in Cranbury, New Jersey. (Id. ¶ 18.) When CNA merged with CNA Financial Corporation in May, 1995, the Environmental Claims units of both companies were united, and Reap became Director of the Special Litigation Unit of the new ECD of the merged company. (Id. ¶ 19.)

During the entirety of her employment at CNA, Reap worked in the Cranbury office and was supervised exclusively in Cranbury. (Diana Aff. Ex. 9: Excerpts of Dep. Tr. of Judith B. Reap dated 9-8-99 & 9-11-99 ("Reap dep.") at 36-45, 342-343.) Decisions concerning Reap's employment, such as her hiring, performance ratings, and termination, were made by her immediate and/or next level supervisors in the ECD. (Id. 36-45, 117-19, 135-36.)

Reap sought promotion to the position of Assistant Vice President of the ECD. (Compl. ¶ 20.) A male employee younger than Reap obtained the Assistant Vice President position. (Id. ¶ 22.) Reap then sought promotion to the position of Vice President of the Environmental Claims Division. (Id. ¶ 23.) Although Reap alleges in the complaint that a male employee twenty years younger than Reap obtained the Vice President position, she admitted during her deposition that the person who received the job, Thomas Aries, is only four years younger than her. (Id. ¶ 24; Reap dep. at 131.)

Reap filed a charge of discrimination ("Charge 1") with the Equal Employment Opportunity Commission ("EEOC") and the New Jersey Division on Civil Rights ("NJDCR") in January 1996 in response to not receiving either of the promotions for which she had applied. (Compl. ¶ 25; Certif. of Mark Diana, Esq. in Supp. of Mot. to Dismiss filed 8-16-99 ("Diana Certif.") Ex. 2: Charge of Discrimination dated 6-26-96.) Members of CNA's management staff allegedly retaliated against Reap by inter alia criticizing her and her staff, prohibiting her participation in important seminars and educational events, finding fault with Reap's performance, evaluating Reap's work as "not meeting acceptable minimum standards," and placing Reap on probation with the express threat of termination. (Compl. ¶¶ 27, 28.)

CNA terminated Reap from her employment on May 18, 1998. (Id. ¶ 29.) Although Reap alleges in the complaint that a significantly younger male assumed Reap's position, she admitted during her deposition that she was replaced by a woman, Leticia Diaz. (Compl. ¶ 30; Reap dep. at 155.) Reap then filed a second charge of discrimination ("Charge 2") with the EEOC and NJDCR in May 1998 alleging that her termination was discriminatory and in retaliation for her filing Charge 1. (Diana Certif. Ex. 8: Charge of Discrimination dated 5-28-98.) On December 18, 1998, the EEOC dismissed Charge 1, determining that its investigation did not establish a violation of Title VII or the ADEA, and notified Reap of her right to file a lawsuit against defendant. (Diana Aff. Ex. 6: Dismissal and Notice of Rights dated 12-18-98.) On January 29, 1999, Reap requested that the EEOC issue her a right-to-sue letter on Charge 2 without making a determination of the charge on its merits. (Id. Ex. 7: Letter of Alan B. Epstein, Esq. dated 1-29-99.) On February 3, 1999, the EEOC dismissed Charge 2 as requested and issued Reap a right-to-sue letter in connection with that charge. (Id. Ex. 11.)

C. Procedural History

Reap filed the instant lawsuit on March 17, 1999. Reap seeks to represent a class "of all older female employees (over the age of 40) of the defendants [sic] who are now or have been employed by the defendant from 1992 to date. Upon information and belief, this class is comprised of approximately 5,000 persons employed at facilities throughout the United States." (Compl. ¶ 12.) Reap alleges that she, and older women as a class, have received differential treatment vis-á-vis younger male employees in connection with the following terms and conditions of employment: salaries, benefits, merit increases, work assignments, training, performance evaluations, promotions, discipline, lay-offs and/or terminations. (Compl. ¶¶ 1, 13, 35, 38, 43.) Reap further alleges that she, and older women as a class, have been retaliated against for complaining about alleged acts of discrimination. (Compl. ¶¶ 1, 13, 35, 38, 39, 41, 43, 45.)

In the Complaint, Reap seeks the following relief on behalf of herself and members of the proposed class:

(1) a declaratory judgment that defendant has violated the rights of named and class plaintiffs under federal and state law;

(2) reinstatement of plaintiffs to the positions they would have held but for defendant's unlawful acts;

(3) promotions, salary increases, and merit awards due to the named and class plaintiffs;

(4) compensatory damages, including for past and future loss of earnings and benefits, loss of professional growth opportunities, emotional distress, humiliation, loss of self-esteem, loss of life's pleasures, and loss of ability to provide for themselves and their families;

(5) punitive and exemplary damages;

(6) prejudgment interest; and

(7) costs, disbursements, and reasonable attorneys' fees. (Compl. at 13-14.)

The Complaint seeks this relief pursuant to five different theories: (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., based on sex discrimination; (2) Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; (3) Anti-Retaliation Provision of Title VII, 42 U.S.C. § 2000(e)-3(a); (4) Anti-Retaliation Provision of the ADEA, 29 U.S.C. § 623(d); and (5) ...

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