Jackson v. Motel 6 Multipurpose, Inc. ( 1997 )

United States Court of Appeals,
Eleventh Circuit.
No. 97-2360.
Janet JACKSON, Delois Evans, Plaintiffs-Appellees,
v.
MOTEL 6 MULTIPURPOSE, INC.; Motel 6 G.P., Inc.; Motel 6 Operating L.P.; IBL Limited,
Inc., d.b.a. Motel 6; Accor S.A.; Defendants-Appellants.
Mario PETACCIA; Brenda Hatcher; Tanya Charles; Chervon Screen; Jennifer Bethel; James
Sterns; Pitrell Lambert-Brown; Karl Baldwin; Marcian Killsnight, for themselves and all others
similarly situated, Plaintiffs-Appellees,
v.
MOTEL 6 G.P., INC.; Motel 6 Operating L.P. d.b.a. Motel 6, Defendants-Appellants.
Dec. 10, 1997.
Appeal from the United States District Court for the Middle District of Florida. (Nos. 96-0072-CIV-
FTM-17D, 96-0115-CIV-FTM-17D), Elizabeth A. Kovachevich, Judge.
Before TJOFLAT and BIRCH, Circuit Judges, and MARCUS*, District Judge.
TJOFLAT, Circuit Judge:
Motel 6 Multipurpose, Inc. ("Motel 6") seeks a writ of mandamus1 vacating a district court
order, issued on February 21, 1997, authorizing the plaintiffs in two consolidated race discrimination
cases to advertise their allegations to the public at large and to communicate with current and former
Motel 6 employees through mass mailings. Motel 6 also requests that the writ direct the district
*
Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997 he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
1
Writs of mandamus are issued pursuant to the All Writs Act, 28 U.S.C. § 1651(a) (1994).
court to decertify one of the two putative classes. We conclude that the district court's February 21
order constitutes an abuse of discretion, and that the challenged class was erroneously certified. We
therefore grant the petition and issue the writ.
I.
Motel 6 owns and operates over 750 motels across the United States. The instant petition
for mandamus arises from two consolidated cases alleging that Motel 6 has a nationwide practice
or policy of discriminating against its customers and its employees on the basis of race. In the first
case, five Motel 6 patrons ("the Jackson plaintiffs") claim that Motel 6 unlawfully discriminated
against them on the basis of their race. They claim that they were either denied accommodations
at a Motel 6 motel or provided substandard accommodations pursuant to an alleged nationwide
Motel 6 practice or policy of (1) refusing to rent otherwise vacant rooms to blacks and other
non-white persons, (2) segregating black patrons and other non-white patrons from white patrons
within a single facility, and (3) providing substandard housekeeping and other services to black
patrons and other non-white patrons as compared to white patrons. Two of the five named plaintiffs
allege that they were denied rooms at the same motel; the remaining three named plaintiffs each
allege that they were subjected to discriminatory treatment at three separate other motels. The
Jackson plaintiffs seek, on behalf of themselves and similarly situated patrons of Motel 6, injunctive
relief and money damages under Title II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et
seq.,2 and under 42 U.S.C. § 1981.32
Section 2000a reads, in pertinent part:
§ 2000a. Prohibition against discrimination or segregation in places of public
accommodation
(a) Equal access
In the second case, five former Motel 6 employees ("the Petaccia plaintiffs") claim that, as
Motel 6 employees, they were required to discriminate against black and other non-white patrons,
that Motel 6 retaliated against them when they refused to do so, and that Motel 6's discrimination
against blacks and other non-whites created a "hostile work environment." The Petaccia plaintiffs
seek, on behalf of themselves and all Motel 6 employees who have been required to work in the
alleged hostile environment, injunctive relief and money damages under § 1981 and the retaliation
All persons shall be entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any place of
public accommodation, as defined in this section, without discrimination or
segregation on the ground of race, color, religion, or national origin.
42 U.S.C. § 2000a (1994).
3
Section 1981 in its entirety reads:
§ 1981. Equal rights under the law
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the
making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.
42 U.S.C. § 1981 (1994).
provision of Title II.4
After the cases were consolidated, the plaintiffs moved for an order allowing them relief
from the Middle District of Florida's Local Rule 4.04(e), which provides that
[i]n every case sought to be maintained by any party as a class action, all parties thereto and
their counsel are hereby forbidden, directly or indirectly, orally or in writing, to
communicate concerning such actions with any potential or actual class member, not a
formal party to the case, without approval by the Court.
The district court granted relief from Local Rule 4.04(e) in a February 21, 1997, order that
authorized the plaintiffs to:
1) establish a 1-800 number to which potential class members may call;
2) publish notices of the ongoing litigation in publications nationwide and solicit information
about potential class members and their alleged experiences with discrimination at Motel 6
motels;
3) respond to requests for information from those who respond to the advertisements or call
the 1-800 number;
4) distribute mass mailings to Motel 6 employees soliciting information regarding the
plaintiffs' allegations of discrimination at Motel 6 motels; and
5) further communicate ex parte with any "persons who may have knowledge of" the alleged
discrimination, except for current Motel 6 management or supervisory employees.
The district court entered this order allowing communication with potential class members even
though it had not yet ruled on either the Jackson plaintiffs' or the Petaccia plaintiffs' motions for
4
That provision, 42 U.S.C. § 2000a-2, provides in relevant part that
[n]o person shall ... intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce any person with the purpose of interfering with any right or
privilege secured by section 2000a or 2000a-1 of this title....
42 U.S.C. § 2000a-2 (1994). As we discuss infra, the Petaccia plaintiffs do not have
standing to bring a claim for injunctive relief under this section.
class certification.5
Motel 6 then moved the lower court for a stay of the communications order pending appeal;
that motion was denied. See Jackson v. Motel 6 Multipurposes, Inc., 172 F.R.D. 469(M.D.Fla.1997). Motel 6 then appealed the denial of the motion for a stay and filed a petition for
a writ of mandamus, on the ground that the lower court had misapplied the controlling precedents
of Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980) (en banc)6 and Gulf Oil Co. v. Bernard, 452
U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). This court declined to stay the discovery order on
appeal and denied the petition for mandamus. On May 1, 1997, Motel 6 requested a stay of the
order from the Supreme Court. On May 2, Circuit Justice Kennedy denied that request.
On August 15, 1997, the district court certified the Jackson plaintiffs as class representatives
and referred the question of certification of the Petaccia plaintiffs to a magistrate judge for further
consideration.
Motel 6 now petitions for mandamus again, arguing that the communications order was an
abuse of discretion ab initio, and also that because the Jackson plaintiffs cannot properly be certified
as class representatives, that portion of the communications order allowing the Jackson plaintiffs
5
The district court noted that the plaintiffs' assertions that they needed to communicate with
potential class members in order to build an adequate record for class certification were "highly
suspect[,] in light of the fact that the plaintiffs ha[d] long since filed their motions for class
certification." The court nonetheless granted the motion allowing communication with potential
class members, in light of, inter alia, "the potentially large size of the class ... the serious
allegations of racial discrimination, [and] the plaintiffs' need to effectively prepare for trial." We
agree that the allegations of discrimination are serious and that the plaintiffs need effectively to
prepare for what will no doubt be a fairly complicated trial. Because we hold that the putative
Jackson class cannot be certified, however, see infra part II, the Jackson plaintiffs will need to
prepare for trial of only their own claims, serious as those claims may be.
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
to advertise their allegations nationwide and to communicate with current and former Motel 6
employees is entirely unnecessary and an abuse of the district court's discretion.7 We agree that the
communications order was an abuse of discretion from the beginning, and we agree that the Jackson
class was erroneously certified. We therefore grant the writ and direct the district court to decertify
the Jackson class and to strike that portion of its February 21 order allowing the Jackson plaintiffs
to communicate with putative class members. We also conclude that the February 21 order
constitutes an abuse of discretion insofar as it authorizes the Petaccia plaintiffs to advertise their
claims nationwide and conduct mass mailings to Motel 6 employees. We therefore also direct the
district court to vacate the communications order insofar as it applies to the Petaccia plaintiffs.8
II.
7
The plaintiffs argue that the law of the case doctrine prevents us from hearing this second
petition for mandamus relief. The law of the case doctrine provides that an appellate court's
decision of a legal issue must be followed in all subsequent trial or intermediate appellate
proceedings in the same case, see DeLong Equip. Co. v. Washington Mills Electro Minerals
Corp., 990 F.2d 1186, 1196 (11th Cir.1993), unless "(1) a subsequent trial produces substantially
different evidence, (2) controlling authority has since made a contrary decision of law applicable
to [the contested] issue, or (3) the prior decision was clearly erroneous and would work manifest
injustice." Barber v. International Bhd. of Boilermakers, Dist. Lodge # 57, 841 F.2d 1067, 1072
(11th Cir.1988). In order for the law of the case doctrine to apply, however, the issue contested
on the latter appeal must be the same issue that was contested on and decided by the former
appeal. See Lawson v. Singletary, 85 F.3d 502, 512-13 (11th Cir.1996) (concluding that law of
the case doctrine did not preclude later appeal where, inter alia, the focus of the former appeal
was on a different issue). In the instant case, Motel 6 first petitioned for mandamus on the
ground that the lower court had misapplied the controlling precedents of Bernard v. Gulf Oil Co.
and Gulf Oil Co. v. Bernard in deciding to grant relief from Local Rule 4.04(e). The instant
petition proffers a wholly different ground for relief: that the district court's August 15 decision
to certify the Jackson class was clearly erroneous and that the authorization of class
communications by the Jackson plaintiffs was therefore an abuse of discretion. Because the
petition before us now rests on a different ground than the first petition, the law of the case
doctrine does not preclude our consideration of the instant petition.
8
We thus direct the district court to vacate the February 21 order in its entirety. For clarity's
sake, however, we will proceed to discuss the two cases separately, and will refer to those
"portions" of the communications order that are at issue in each case.
In In re Estelle, 516 F.2d 480 (5th Cir.1975), we outlined the purview of mandamus:
The Writs of Mandamus and Prohibition are granted sparingly. Such writs are
reserved for really extraordinary cases, and should be issued only when the right to such
relief is clear and indisputable. To some extent they are supervisory in nature and are used
to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it
to exercise its authority when it is its duty to do so. They are not to be used as a substitute
for appeal, or to control the decision of the trial court in discretionary matters.
The Writ is thus a drastic remedy, that must not be used to regulate the trial court's
judgment in matters properly left to its sound discretion, but that may be available to confine
the lower court to the sphere of its discretionary power.
Id. at 483 (internal citations and quotations omitted). We may issue the writ "only in drastic
situations, when no other adequate means are available to remedy a clear usurpation of power or
abuse of discretion." In re Temple, 851 F.2d 1269, 1271 (11th Cir.1988).
We hold that the instant petition warrants the issuance of mandamus because the district
court's order allowing the plaintiffs to communicate with potential class members was an abuse of
discretion. The communications order was entered months prior to any decision regarding whether
either of the two proposed classes would in fact be certified. While we cannot say that orders
authorizing communication with potential class members may never precede class certification,
district courts must strive to avoid authorizing injurious class communications that might later prove
unnecessary. An order authorizing class communications prior to class certification is likely to be
an abuse of discretion when (1) the communication authorized by the order is widespread and clearly
injurious and (2) a certification decision is not imminent or it is unlikely that a class will in fact be
certified. In such circumstances, the danger of abuse that always attends class communications—the
possibility that plaintiffs might use widespread publication of their claims, disguised as class
communications, to coerce defendants into settlement—is not outweighed by any need for
immediate communications.
The advertisements and mass mailings allowed by the order at issue in the instant petition
are nationwide in scope and are surely causing serious and irreparable harm to Motel 6's reputation
and to its relationship with its employees. "The only conceivable alternative [to mandamus
relief]—inevitable reversal by this court after the defendants have been forced to endure full
discovery, full litigation, and a full trial—is scarcely adequate" to redress this injury. In re Cooper,
971 F.2d 640, 641 (11th Cir.1992) (internal quotations omitted). Moreover, the order was entered
almost six months prior to the court's decision to certify the Jackson class and to refer the Petaccia
plaintiffs' motion for class certification to a magistrate judge. (The Petaccia plaintiffs' motion for
class certification is still pending.) Most important, the Jackson plaintiffs clearly could not properly
be certified as class representatives.
A.
The Supreme Court has noted that,
[though] racial discrimination is by definition class discrimination[, ... ] the allegation that
such discrimination has occurred neither determines whether a class action may be
maintained in accordance with Rule 23 nor defines the class that may be certified.
Conceptually, there is a wide gap between (a) an individual's claim that he has been
[discriminated against on the basis of race], and his otherwise unsupported allegation that
[the defendant] 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.
General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370, 72 L.Ed.2d
740 (1982) (footnotes omitted). The putative Jackson class is not certifiable because it fails the
predominance requirement of Federal Rule of Civil Procedure 23(b)(3).
A class action may be maintained only when it satisfies all the requirements of Fed.R.Civ.P.
23(a)9 and at least one of the alternative requirements of Rule 23(b).10 The only one of Rule 23's
9
Rule 23(a) in its entirety provides that
[o]ne or more members of a class may sue or be sued on behalf of all only if (1)
the class is so numerous that joinder of all members is impracticable, (2) there are
alternatives that is arguably fulfilled by the Jackson plaintiffs' claims is that found in Rule 23(b)(3),
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.
10
Rule 23(b) in its entirety provides:
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 relief 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 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.
Fed.R.Civ.P. 23(b). For the reasons recited in the text, in considering the factors listed in
Rule 23(b)(3), we find that management of the Jackson class action would involve
overwhelming difficulties, and that concentration of the highly case-specific claims of
dozens or hundreds of plaintiffs from around the country in the Middle District of Florida
would be undesirable.
which provides that
[a]n action may be maintained as a class action if the prerequisites of subdivision (a) are
satisfied, and in addition ...
(3) the court finds that the questions of law or fact common to 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.
Fed.R.Civ.P. 23(b)(3). "In other words, "the issues in the class action that are subject to generalized
proof, and thus applicable to the class as a whole, must predominate over those issues that are
subject only to individualized proof.' " Kerr v. City of West Palm Beach, 875 F.2d 1546, 1557-58
(11th Cir.1989), quoting Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th Cir. Unit
B 1982).11 The predominance inquiry focuses on "the legal or factual questions that qualify each
class member's case as a genuine controversy," and is "far more demanding" than Rule 23(a)'s
commonality requirement. Amchem Prods., Inc. v. Windsor, --- U.S. ----, ----, 117 S.Ct. 2231, 2249-
50, 138 L.Ed.2d 689 (1997).
The Jackson plaintiffs have argued that the issue common to the claims of all the named
plaintiffs and all putative class members—whether Motel 6 has a practice or policy of discriminating
against patrons and employees on the basis of race—predominates over all the legal and factual
issues that will attend various plaintiffs' and class members' individual claims. The district court
agreed, on the ground that "forum-by-forum resolution of each and every issue in this case ... would
be far less efficient, cost-effective, and uniform than class resolution." Rule 23(b)(3), however,
imposes two additional requirements, and increased efficiency is only one of them. Predominance
is the other, and the single common issue in the Jackson case—whether Motel 6 has a practice or
11
In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as
binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
September 30, 1981.
policy of discrimination—is not rendered predominant over all the other issues that will attend the
Jackson plaintiffs' claims by the fact that class treatment of these claims may be more efficient and
uniform than case-by-case adjudication.12 Instead, "as a practical matter, the resolution of this
overarching common issue breaks down into an unmanageable variety of individual legal and factual
issues." Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir.1996) (citation
omitted).
The Jackson plaintiffs' claims will require distinctly case-specific inquiries into the facts
surrounding each alleged incident of discrimination. The issues that must be addressed include not
only whether a particular plaintiff was denied a room or was rented a substandard room, but also
whether there were any rooms vacant when that plaintiff inquired; whether the plaintiff had
reservations; whether unclean rooms were rented to the plaintiff for reasons having nothing to do
with the plaintiff's race; whether the plaintiff, at the time that he requested a room, exhibited any
non-racial characteristics legitimately counseling against renting him a room; and so on. Even more
variegated issues would certainly be present in the claims of hundreds or even thousands of members
of an improperly certified class. Furthermore, even factual issues that are common to many of the
Jackson plaintiffs—such as whether any rooms were in fact available when a particular plaintiff
inquired—will require highly case-specific determinations at trial. These issues are clearly
12
The predominance and efficiency criteria are of course intertwined. Where there are
predominant issues of law or fact, resolution of those issues in one proceeding efficiently
resolves those issues with regard to all claimants in the class. Where there are no predominant
issues of law or fact, however—as in the instant case—class treatment would be either singularly
inefficient, as one court attempts to resolve diverse claims from around the country in its own
courtroom, or unjust, as the various factual and legal nuances of particular claims are lost in the
press to clear the lone court's docket. We therefore disagree with the district court's conclusion
that class treatment of the Jackson plaintiffs' claims would be more efficient than case-by-case
adjudication, as well as with the court's conclusion that the issue of a discriminatory practice or
policy is predominant.
predominant over the only issue arguably common to the class—whether Motel 6 has a practice or
policy of racial discrimination. Indeed, we expect that most, if not all, of the plaintiffs' claims will
stand or fall, not on the answer to the question whether Motel 6 has a practice or policy of racial
discrimination, but on the resolution of these highly case-specific factual issues.13
This failure of predominance is readily apparent from a reading of the Jackson plaintiffs'
complaint. We therefore hold that the district court's certification of the Jackson class was erroneous
as a matter of law and was therefore an abuse of discretion. See Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). We have in the past issued
mandamus to direct a district court to decertify an improperly certified class, when the certification
of that class was a clear abuse of discretion. See, e.g., In re Temple, 851 F.2d 1269. On the instant
petition, we are compelled to do so again.
In sum, we hold that the district court abused its discretion in entering an order allowing
communication with potential class members when the authorized communications would be
nationwide in scope and would cause serious and irreparable injury to the defendant, when a
decision on class certification was not imminent, and when the proposed Jackson class was clearly
13
As the district court noted in its order certifying the Jackson class, each plaintiff will need to
establish that (1) a Motel 6 employee denied him a room (or rented him a substandard room) on
the basis of his race and either (2) that that employee had the general authority to rent motel
rooms or (3) that that employee was acting in accordance with a Motel 6 policy or practice of
racial discrimination. See, e.g., Woodhouse v. Motel 6 G.P., Inc., 67 F.3d 310 (9th Cir.1995)
(unpublished disposition). Every named Jackson plaintiff alleges that he or she was denied a
room or rented a substandard room by a Motel 6 employee at the front desk of a Motel 6 motel.
We believe it very probable that all these front-desk employees had the general authority to rent
motel rooms. The question whether Motel 6 has a practice or policy of racial discrimination will
therefore be irrelevant to all or nearly all of the plaintiffs' claims. Because proposition (2) will
be satisfied—and we expect very readily satisfied—with regard to all or almost all of the
plaintiffs' claims, the cases may be expected to focus on the highly case-specific factual inquiries
that will establish or controvert element (1). Those factual inquiries will therefore be
predominant.
not certifiable. Under these circumstances, there was no need for the plaintiffs immediately to begin
the highly injurious publication of their claims authorized by the order—publication that could and
did continue for months, as the court contemplated the plaintiffs' motions for class certification. We
therefore grant Motel 6's petition for mandamus relief and issue the writ, directing the district court
to decertify the Jackson class and to vacate the portion of its February 21 order that authorizes
preliminary class communications by the Jackson plaintiffs.
B.
As noted above, the Petaccia plaintiffs allege that they were required as part of their
employment by Motel 6 to participate in discrimination against non-white customers, that they were
retaliated against when they refused to do so, and that Motel 6's discrimination against non-white
customers, along with other instances of discriminatory treatment, created a hostile work
environment at Motel 6 motels around the country.
The Petaccia plaintiffs' claim for "retaliation" is brought under 42 U.S.C. §§ 198114 and
2000a-2.15 As an initial matter, we note that the Petaccia plaintiffs do not have standing to maintain
their claim for retaliation under section 2000a-2. Section 2000a-2 provides solely for injunctive
relief. See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401-02, 88 S.Ct. 964, 966, 19
L.Ed.2d 1263 (1968); Miller v. Amusement Enters., Inc., 426 F.2d 534, 538 (5th Cir.1970).16 The
14
See supra note 3.
15
See supra note 4.
16
We note also that the Petaccia plaintiffs' claim for "retaliation" could not proceed under the
familiar Title VII retaliation statute, 42 U.S.C. § 2000e-3(a). That statute prohibits employers
from discriminating against employees who "oppose[ ] any ... unlawful employment practice."
The Petaccia plaintiffs do not allege that they have been discriminated against by Motel 6 for
opposing an unlawful employment practice, but that they were discriminated against for
opposing an unlawful practice of discrimination in the provision of public accommodations.
While money damages are available for violations of section 2000e-3(a), see St. Mary's Honor
Supreme Court has held that, in order to claim injunctive relief, a plaintiff must show a "real or
immediate threat that the plaintiff will be wronged again—"a likelihood of substantial and
immediate irreparable injury.' " City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660,
1670, 75 L.Ed.2d 675 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38
L.Ed.2d 674 (1974)). The Petaccia plaintiffs are all former employees of Motel 6, and allege neither
that they will be discriminated against by Motel 6 in the future nor any facts that would support such
a conclusion. Thus, the Petaccia plaintiffs do not have standing to bring their "retaliation" claim
under section 2000a-2. The Petaccia plaintiffs' claim for retaliation may, however, proceed under
section 1981(b), which provides for money damages. See Pinkard v. Pullman-Standard, 678 F.2d
1211, 1229 n. 15 (5th Cir. Unit B, June 10, 1982) (Clark, J., and Kravitch, J., concurring) (stating
that section 1981 prohibits retaliatory treatment, and citing cases); Mizell v. North Broward Hosp.
Dist., 427 F.2d 468, 472 (5th Cir.1970) (allowing section 1981 claims for both damages and
injunctive relief); see also, e.g., Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (5th
Cir.1971) (allowing section 1981 retaliation claim to proceed without exhaustion of Title VII
administrative remedies); Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509, 1518-21
(M.D.Ala.1996) (allowing section 1981 retaliation claims after passage of Civil Rights Act of 1991
and enactment of section 1981(b)).
We assume for the sake of discussion that the Petaccia plaintiffs have sufficiently stated a
cause of action for a racially hostile work environment under section 1981.17 See, e.g., Williams v.
Center v. Hicks, 509 U.S. 502, 523-24, 113 S.Ct. 2742, 2756, 125 L.Ed.2d 407 (1993), violations
of section 2000a-2 may be remedied only by injunctive relief, and not by money damages. See
Piggie Park, 390 U.S. at 401-02, 88 S.Ct. at 966.
17
In order to prove a claim for a racially hostile work environment, a plaintiff must
"demonstrate that the actions of the defendants altered the condition of the workplace, creating
an objectively abusive and hostile atmosphere." Edwards v. Wallace Community College, 49
Carrier Corp., 889 F.Supp. 1528, 1530 (M.D.Ga.1995) (allowing section 1981 hostile environment
claim after passage of section 1981(b)). We note that the named Petaccia plaintiffs' claims, like
those of the Jackson plaintiffs, are factually very diverse. One of the Petaccia plaintiffs, for
instance, alleges not only that he witnessed racial discrimination, was required to participate in it,
and was fired in retaliation for opposing it, but also that he repeatedly informed Motel 6's district,
regional, and national offices of the ongoing discrimination, to no avail. Another Petaccia plaintiff,
however, fails to allege either that she was retaliated against for opposing the alleged discrimination
or any facts that would support a retaliation claim. As in the Jackson case, the only issue common
to all the Petaccia plaintiffs is the question whether Motel 6 has a practice or policy of racial
discrimination in providing public accommodations. For reasons explained below,18 this issue is
more important to the Petaccia plaintiffs' claims than it is to the Jackson plaintiffs' claims; we
doubt, however, that the issue is predominant within the meaning of Rule 23(b)(3), because the
issues in the class action that are subject to generalized proof and thus applicable to the proposed
class as a whole will not predominate over those issues that are subject only to individualized proof.
As explained above, we find the February 21 communications order to have been an abuse
of discretion, because it is clearly injurious and, with regard to the Petaccia plaintiffs, because the
court's decision on certification of the Petaccia class was not and still may not be imminent.
F.3d 1517, 1521 (11th Cir.1995). We read section 1981, as amended by the Civil Rights Act of
1991, to encompass such a claim. See Vance v. Southern Bell Tel. & Tel. Co., 983 F.2d 1573,
1575 (11th Cir.1993) (noting that the 1991 Act enlarged the scope of section 1981 to include
post-hiring discrimination); see also Dennis v. County of Fairfax, 55 F.3d 151, 155 (4th
Cir.1995) (holding that section 1981, as amended, now covers "general conditions of
employment, including incidents of racial harassment in the workplace"); Johnson v. Uncle
Ben's, Inc., 965 F.2d 1363, 1372 (5th Cir.1992) ("Under § 1981 as amended by the [1991] Act,
racial harassment and other discrimination in an employment relation occurring after contract
formation is actionable.").
18
See infra note 19; supra note 13.
Certification of that class is still pending before the magistrate judge, ten months after the
communications order was entered. We therefore grant the petition for mandamus and direct the
district court to vacate the portion of the order allowing the Petaccia plaintiffs to advertise their
claims and conduct mass mailings to Motel 6 employees.19
III.
For the foregoing reasons, we GRANT Motel 6's petition for mandamus relief. We direct
the district court to decertify the Jackson class and vacate that part of the February 21 order allowing
the Jackson plaintiffs to conduct preliminary class communications. We also direct the district court
to vacate the portion of the February 21 order that authorizes the Petaccia plaintiffs to advertise their
allegations and to communicate with Motel 6 employees.
PETITION GRANTED.
19
We note, however, that insofar as the district court's February 21 order authorizes the
Petaccia plaintiffs to conduct mass mailings to Motel 6 employees, it authorizes inquiries and
communications that would be allowable as a normal discovery matter, whether the Petaccia
class is certified or not. In Faragher v. City of Boca Raton, 111 F.3d 1530 (11th Cir.1997)(en
banc), cert. granted, --- U.S. ----, 118 S.Ct. 438, --- L.Ed.2d ----, 66 U.S.L.W. 3157 (U.S. Nov.
14, 1997) (No. 97-282), this Court held that "[a]n employer is directly liable for hostile work
environment ... harassment if the employer knew or should have known of the harassment and
failed to take prompt remedial action," and that "[a] plaintiff ... can prove an employer's
knowledge by showing that the harassment was pervasive enough to charge the employer with
constructive knowledge." Id. at 1538. To this end, the Petaccia plaintiffs could, as a normal
discovery matter, propound interrogatories seeking the names and mailing addresses of all
non-supervisory Motel 6 employees, and could communicate with and depose those employees,
in order to ascertain whether the alleged hostile work environment was so pervasive that notice
to higher management might be inferred.