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Moussouris v. Microsoft Corp.

United States Court of Appeals for the Ninth Circuit

November 4, 2019, Argued and Submitted, Portland, Oregon; December 24, 2019, Filed

No. 18-35791



Appellants Katherine Moussouris, Holly Muenchow, and Dana Piermarini ("Appellants") appeal the district court's order denying the motion for class certification in their employment discrimination action. The action asserts disparate impact and disparate treatment claims, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, as amended, and Wash. Rev. Code §§ 49.60.010-49.60.515 against Appellee Microsoft Corp. [*3]  ("Microsoft"). We granted Appellants' petition for permission to appeal, and we now affirm the district court's order.

] A plaintiff moving to certify a class must show that the proposed class satisfies the requirements of Federal Rule of Civil Procedure 23. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). Rule 23(a)'s requirements "are commonly known as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation." B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 966 (9th Cir. 2019) (citing Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980)). A district court's ruling on a motion for class certification is reviewed for abuse of discretion. Parra v. Bashas', Inc., 536 F.3d 975, 977 (9th Cir. 2008). The district court's ruling as to each of the Rule 23(a) requirements is also reviewed for abuse of discretion. See, e.g., Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1464 (9th Cir. 1995) (regarding adequacy). Because Appellants' proposed class must satisfy all of the Rule 23(a) requirements, we must affirm the district court's denial of class certification as to a claim if the district court acted within its discretion in determining that Appellants failed to establish any of the requirements as to that claim.

] As to the disparate impact claims, the district court correctly recognized that, to satisfy the commonality requirement, the proposed class must pose "a common question that will connect many individual promotional decisions to their claim for class relief" and "'produce a common answer to the crucial [*4]  question why was I disfavored?'" See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (emphasis in original) (quoting Wal-Mart, 564 U.S. at 352). The district court also correctly recognized that, where the plaintiffs and the proposed class challenge a discretionary system for pay raises and promotions, they must "identif[y] a common mode of exercising discretion that pervades the entire company." See Wal-Mart, 564 U.S. at 356. The allegedly discriminatory pay and promotion decisions in the instant case do not present common questions because the proposed class consists of more than 8,600 women, who held more than 8,000 different positions in facilities throughout the United States. Further, Appellants failed to identify a common mode of discretion throughout Microsoft because the individual managers had broad discretion over how to conduct the Calibration Meetings/People Discussions, as well as over the decisions that they made at those meetings. The district court did not abuse its discretion when it ruled that Appellants' proposed class did not meet the commonality requirement as to the disparate impact claims. The denial of class certification is therefore AFFIRMED as to the disparate impact claims.

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2019 U.S. App. LEXIS 38320 *; __ Fed. Appx. __; 2019 WL 7176331

KATHERINE MOUSSOURIS; et al., Plaintiffs-Appellants, v. MICROSOFT CORPORATION, Defendant-Appellee.


Prior History:  [*1] Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:15-cv-01483-JLR. James L. Robart, District Judge, Presiding.

Moussouris v. Microsoft Corp., 2018 U.S. Dist. LEXIS 112792 (W.D. Wash., June 25, 2018)

Disposition: AFFIRMED.


proposed class, district court, putative class member, abuse of discretion, disparate treatment, disparate impact, adequacy, denial of class certification, named plaintiff, commonality, correctly, decisions, conflicting interest, class certification, common question, evaluated, promotion, Meetings

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Evidence, Burdens of Proof, Allocation, Special Proceedings, Class Actions, Certification of Classes, Prerequisites for Class Action, Prerequisites for Class Action, Commonality, Class Members, Named Members