The opinion of the court was delivered by: Walls, Senior District Judge
Plaintiffs Nilda Gutierrez, Linda Morgan, Wayne Brown, and Krista Marshall have filed a renewed motion for class certification. This Court denied plaintiffs' first motion on December 16, 2006 because plaintiffs had failed to identify any policy or practice common to the putative class that was excessively subjective. Gutierrez v. Johnson & Johnson, 467 F. Supp. 2d 403 (D.N.J. 2006). The great diversity of the class -- reaching over 8,000 Johnson & Johnson ("J&J") employees in dozens of companies nation-wide, holding myriad job titles -- strongly weighed against plaintiffs' allegations of commonality.
It was plaintiffs' prerogative to file a renewed motion, and they did so. They reduced the size of the putative class by more than half, but the revised class definition hardly narrows the original class's excessive occupational and geographical diversity. The class would still include "employees from entry-level positions to upper management, working in different capacities for companies operating in different markets," which this Court has already found overly broad. Id. at 412. Indeed, the only types of employees excluded from the revised class are employees in non-exempt positions, technicians, sales employees, and high-level managers. (Pls.' Mem. in Supp. of Renewed Mot. for Class Certif. ("Pls.' Br.") 2.) This Court continues to find that plaintiffs have not identified any common policy that could affect a class as sweeping as this proposed one. Because plaintiffs' second motion does not cure the defects of their first motion, the renewed motion is denied.
In its 2006 opinion, this Court described the following, which remains relevant: Defendant Johnson & Johnson is a multi-national conglomerate of consumer and healthcare companies, thirty-five of which are U.S. companies. Although popularly known for its consumer products such as baby powder and band-aids, Johnson & Johnson includes medical device companies that market joint implants and surgical instruments, diagnostic companies which provide laboratory testing equipment and software, and pharmaceutical companies that develop and sell prescription drugs. Johnson & Johnson has employees in positions such as clerical staff, sales representatives, biochemists, engineers, research scientists, physicians, lawyers, and computer specialists.
Johnson & Johnson Corporate is headquartered in New Brunswick, New Jersey. The Defendant has a decentralized management framework. Corporate headquarters sets general guidelines; each of the thirty-five operating companies is responsible for running its own business operations on a day-to-day basis and for managing its personnel. At the corporate level, Johnson & Johnson has a board of directors and a ten member Executive Committee. Johnson & Johnson maintains a Corporate Credo which expresses the Company's philosophy as to how it wishes to conduct business. The Credo states that "Compensation must be fair and adequate . . . . There must be equal opportunity for employment development [a]nd advancement for the qualified." The Credo is displayed on a large stone plaque at corporate headquarters, in Johnson & Johnson's annual reports, on the corporate webpage, and in offices throughout the organization.
Corporate headquarters maintains a Compensation and Benefits Committee, a Management Compensation Committee, and Worldwide Compensation Resources. It offers the operating companies resources such as training, software, and planning tools. Corporate headquarters issues employment guidelines to the companies regarding compensation, promotion, and performance evaluation systems. However, these guidelines are implemented differently by the human resources departments of each of the operating companies, resulting in significant differences in employment practices.
At the subsidiary level, each operating company has its own headquarters and operational facilities, as well as its own senior management. The senior management is responsible for all aspects of the business entity, including compliance with laws and regulations. Each operating company has an independent human resources organization which operationalizes guidelines from Johnson & Johnson Corporate and develops employment policies and practices for the company. As example, if Johnson & Johnson Corporate sets the range of bonuses, it is up to each operating company to determine the criteria for awarding bonuses. Each operating company also has an EEOC officer and is responsible for satisfying its own affirmative action plans and goals. It is only with respect to top level positions at the operating companies that Johnson & Johnson Corporate personnel are involved in decision-making processes related to hiring, promotion, evaluation, compensation, and succession planning.
Plaintiffs . . . are former Johnson & Johnson employees of African American and Hispanic descent. Plaintiffs allege they were underpaid relative to comparable Caucasian employees and denied promotions on account of race and ethnicity. Plaintiffs' Complaint alleges that common employment policies, adopted by Johnson & Johnson senior management, permit unmonitored managerial discretion as a regular component of pay and promotion decisions. According to Plaintiffs, excessively subjective employment practices have led to gross disparities in pay and promotion. Plaintiffs allege that these violations are systemic and constitute a pattern and practice that permeates Johnson & Johnson's domestic operations.
Gutierrez, 467 F. Supp. 2d at 405--07.
Plaintiffs brought this suit against J&J on November 15, 2001, asserting that J&J exhibited a pattern of race discrimination under Title VII, 42 U.S.C. § 1981, and the New Jersey Law against Discrimination, N.J. Stat. § 10:5-1 et seq. They seek declaratory, injunctive, and other equitable relief including back pay for themselves and others similarly situated, and compensatory and punitive damages for themselves alone. (Compl. ¶ 2.) They moved on September 27, 2004 to certify a class, which would encompass "[a]ll persons of African and/or Hispanic descent employed by defendant Johnson & Johnson in any permanent salaried exempt or nonexempt position in the United States at any time from November 15, 1997, to the present." (Pls.' Br. 2.)
On December 19, 2006, this Court denied plaintiffs' motion, finding that plaintiffs failed to establish the commonality, typicality, and adequacy elements required by Federal Rule of Civil Procedure 23(a). The Court found that to establish the commonality element, plaintiffs would need to show a "companywide policy or practice of discrimination at the Johnson & Johnson companies that was common to the aggrieved class." 467 F. Supp. 2d at 408-09. Plaintiffs "failed to identify any policy that they allege is the source of discrimination," offering no "expert report[s] concluding that any of the policies, as developed and implemented by the human resources departments at the operating companies, are excessively subjective." 467 F. Supp. 2d at 411. And the Court found that the proposed class was simply too diverse, encompassing as it did thousands of employees with a wide variety of job titles within thirty-five different companies. 467 F. Supp. 2d at 412.
Plaintiffs appealed to the Third Circuit, which denied their petition on grounds of untimeliness. The Third Circuit observed: "plaintiffs who find themselves in the same position as the Petitioners in this matter are not without recourse. Those plaintiffs may request that the district court alter or amend its order on class certification; this request can be made at any time prior to the entry of final judgment." Gutierrez v. Johnson & Johnson, 523 F.3d 187, 199 n.12 (3d Cir. 2008). Plaintiffs then moved for reconsideration of this Court's denial of plaintiffs' motion for class certification or, alternatively, for certification of a narrower class definition.
The motion was denied on April 10, 2007. See Gutierrez v. Johnson & Johnson, Civ. No. 01-5302, 2007 WL 1101437 (D.N.J. Apr. 10, 2007). Plaintiffs then made new discovery requests for the purpose of determining whether they could renew their motion for class certification with a new class definition. (Pls.' Letter Br., July 7, 2008.) In its denial of that request, the Court reminded plaintiffs that:
It is conceivable that during the second phase of discovery into the merits of the individual plaintiffs' claims, plaintiffs may discover new information to support their class allegations. As Rule 23 of the Federal Rules of Civil Procedure permits, "[a]n order that grants or denies class certification may be altered or amended before final judgment.' Fed. R. Civ. P. 23(c)(1)(C). If Plaintiffs are able to renew their ...