Rachel REEB, et al., Plaintiffs-Appellees, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Belmont Correctional Institution, Defendant-Appellant, 435 F.3d 639

OPINION BATCHELDER, Circuit Judge. Four named female employees of the Belmont Correctional Institution (“Belmont”), a prison operated by the State of Ohio, filed a class action against Belmont and certain officials under Title VII of the Civil Rights Act of 1964, alleging that female corrections officers have been treated differently from similarly situated male corrections officers and accordingly have been denied promotions, denied leave and overtime, given undesirable positions, and replaced by men.

The plaintiffs specifically requested money damages and an injunction, though they did not specify the conduct they sought to have enjoined. The U.S. District Court for the Southern District of Ohio certified the plaintiff class, finding that the plaintiffs had shown the requirements of Federal Rule of Civil Procedure 23(

a) and (b)(2) had been met, and refused to certify the class under subdivision (b)(3). Reeb v. Ohio Dep’t of Rehab. & Corr., 203 F.R.D. 315 (S.D.Ohio 2001) (hereinafter Reeb I). We granted an interlocutory appeal pursuant to Federal Rule of Civil Procedure 23(

f) and reversed the grant of certification, finding that the record did not demonstrate that the district court had engaged in the rigorous analysis required to determine whether the Rule 23(

a) requirements had been met. Reeb v. Ohio Dep’t of Rehab. & Corr., 81 Fed.Appx. 550 (6th Cir.2003) (hereinafter Reeb II). Upon remand, the district court received no new evidence and re-certified the plaintiff class, again finding the requirements of Rule 23(

a) and (b)(2) met and declining to certify the class under subdivision (b)(3). Reeb v. Ohio Dep’t of Rehab. & Corr., 221 F.R.D. 464, 469 (S.D.Ohio 2004) (hereinafter Reeb III). We again permitted Belmont’s appeal.

Because the district court did not follow our instructions and conduct a “rigorous analysis” of the requirements of Rule 23(a), and because Title VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought as class actions under Rule 23(b)(2) because such individual claims for money damages will always predominate over requested injunctive or declaratory relief, we VACATE the district court’s grant of class certification and REMAND the case to the district court for further proceedings. I.

Factual and Procedural Background The facts of this case have been stated in the two prior district court opinions and the prior decision of this court. We therefore adopt the background as set forth in the opinion of the first panel of this court to deal with this case: [Belmont] is a prison operated by the Ohio Department of Rehabilitation, and Corrections. It employs approximately 528 people, some of whose positions are covered by Ohio’s civil service laws while others are covered by collective bargaining agreements with three distinct unions, District 1199, OCSEA, and OEA.

One Hundred Forty-One of [Belmont’s] employees are female-some unknown number of whom are OCSEA members .... Plaintiffs Reeb and Brown, members of OCSEA, work as female corrections officers at BeCI. Plaintiff Mackey, a member of OCSEA, also works as a corrections officer at BeCI; yet, for some period of time starting on May 18, 2000, Mackey worked as a secretary in a Temporary Work Level.

Plaintiff Bea-bout, a member of OCSEA, began working at [Belmont] in 1995 as a corrections officer; on January 16, 2000, Beabout received a promotion to records officer on a permanent basis after holding that position on a Temporary Work Level as of December 1, 1999.

Plaintiffs’ complaint alleges that: 1) plaintiffs “have been treated differently, held to a different standard, and given different duties ... [than] similarly situated male'corrections officers”; 2) plaintiffs “are frequently required to perform undesirable positions at BeCI ... [while] similarly situated male employees are not assigned to such duties”; 3) plaintiffs “are routinely pulled off of their posts and replaced with male [o]ffi-cers because [plaintiffs are not seen as able to handle difficult situations that may arise with inmates”;, 4) plaintiffs “áre routinely denied leave and/or overtime, despite having valid excuses or reasons, while similarly situated male [o]fficers aré granted leave and/or overtime for much less valid excuses”; 5) plaintiffs are “routinely written up for alleged infractions or rule violations ... while similarly situated males are not disciplined for the same or more severe infractions”; 6) plaintiffs “have been denied training for various reasons ... [while] similarly situated male employees have not been denied such training for the same or any reasons”; 7) those female employees who “claimed to have had [sexual] relations with the [w]arden ... and other supervisors” are “treated substantially better than the rest of the class”; 8) plaintiffs are not promoted while less qualified male officers are promoted because such officers socialize with and bestow various gifts or services upon the warden; 9) plaintiffs have been retaliated against “in the form of increased scrutiny on their behavior and more disparate treatment” because they filed “numerous grievances and complaints regarding such discriminatory treatment” and, subsequently, hired legal counsel; 10) “[m]ale officers routinely allow the male inmates to harass, intimidate, and threaten [plaintiffs”; 11) the warden “has interfered with the methods and developed processes” that are to protect employees such that plaintiffs have been unable to obtain relief with [Belmont]; and 12) plaintiffs “have routinely been denied promotions ... over less qualified, similarly situated male corrections] officers” such that males hold seventeen out of eighteen captain and lieutenant positions.

Regarding this last allegation, plaintiffs further allege that [Belmont] “circumvents the [usual] requirements of posting and interviewing for a [promotion] position” by routinely using “a ‘temporary position’ to place hand-selected males into a promotion position over more qualified females” and later making such “temporary positions” permanent so as to prevent plaintiffs “from even applying for such positions.” The complaint seeks $2 million in compensatory damages, $3 million in punitive damages, attorneys’ fees and costs, and declaratory relief.

The complaint explicitly seeks neither injunctive relief nor a preliminary injunction. Plaintiffs assert that their request “[t]hat the rights of class members to the relief sought herein be adjudicated and declared” is sufficient to state a claim for injunctive relief. In their motion for class certification, plaintiffs expressly state that, among other relief, they seek injunctive relief. Plaintiffs do not specify what that injunctive relief would entail. Reeb II, 81 Fed.Appx. at 551-52.

On October 25, 2001, the district court certified the class to include “[a]ll those female employees of Defendant Belmont Correctional Institute [sic], past or present, who are members of the OCSEA and who now work, or at any time during the five years preceding the commencement of this action, worked for [Belmont].” Reeb I, 203 F.R.D. at 320. It found the commonality and typicality requirements met because each of the individual plaintiffs claimed to have been the victim of discrimination on the basis of sex as a result of the defendant’s general policy. Id. at 320-22.

In finding that the class should be certified under Rule 23(b)(2), the court stated that the plaintiffs “will feel their rights have been vindicated not by an award of monetary damages alone, but by effecting a change in the way their employer treats females.” Id. at 323-24. However, the court did not make any findings detailing how it reached its conclusion that the requirements of the rule had been met other than to state that it could certify a class action under Rule 23(b)(2) “as long as money damages do not constitute the predominate [sic] type of relief requested.” Id. at 323.

It did find, however, that it could not certify the class under Rule 23(b)(3) because the individual considerations regarding the employer’s motivation behind its actions towards each plaintiff and her entitlement to compensatory damages would predominate over the common issues in the case, namely Belmont’s policy of gender discrimination. Id. at 324. We permitted an appeal of the certification for the purpose of determining when injunctive relief “predominates” in an action in which compensatory damages are also claimed for the purposes of certification under Rule 23(b)(2). Reeb II, 81 Fed. Appx. at 553-54.

However, we believed it improper to rule on that basis because the record did not show that the district court had conducted a rigorous analysis of the Rule 23(

a) factors, and we therefore remanded for closer consideration of whether the Rule 23(

a) factors had been met. Id. at 554, 559. Moreover, we noted that the district court, at the time it originally certified the class, did not have the benefit of our opinion in Coleman v. GMAC, 296 F.3d 443 (6th Cir.2002), in which we stated that Equal Credit Opportunity- Act (ECOA) plaintiffs seeking compensatory damages cannot seek class certification under subdivision (b)(2) because the request for such damages necessarily predominates over any requested injunctive or declaratory relief.

On remand, the district court did not provide the parties the opportunity to present additional evidence or briefs, but issued an order recertifying the class as “all those female employees of Defendant Belmont Correctional Institute [sic], past or present, who are members of the OC-SEA and who now work, or at any time during the five years preceding the commencement of this action, worked for the Defendant Belmont Correctional Institute [sic] as corrections officers.” Reeb III, 221 F.R.D. at 469.

Addressing commonality, the court stated that it needed to find only one issue in common among the class members and that “the issue of whether the Defendant’s alleged practices violate federal law is a question common to the class.” Id. at 475. The district court then went on to say that this was not a case where one person suffered a discrete act of' discrimination and then sued on behalf of a class of which he happened to be a member; rather, this is a case where the allegation is that the plaintiffs are all members of a class that has been discriminated against based on membership in that class. Id. at 476.

The district court stated that the typicality requirement is met “as long as each class member’s claim arises from the same course of events.” Id. at 478 (citing Robi-doux v. Celani, 987 F.2d 931, 936 (2d Cir.1993)). The typicality requirement was satisfied, the court said, because all members of the class — including the named plaintiffs — allegedly suffered as a result of the broad policy of sex discrimination. Id. at 478-79.

Finally, with regard to certification under Rule 23(b)(2), the district court distinguished Coleman and found that the damages sought in this case would be “relatively simple” to determine and are more like back pay than the compensatory damages sought in Coleman. Id. at 481. It did not. discuss the other damages sought, such as the Title VII damages sounding in tort, the claims for medical damages by the four named class members, and two instances of depression claimed by the named members. The district court certified the class under subdivision (b)(2), noting the rationale of the Second Circuit in Robinson v.

Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir.2001): “(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. at 482.

Belmont again appeals, arguing that Rule 23(b)(2) classes cannot be certified when plaintiffs request compensatory damages or that, at the very least, they can not be certified in Title VII cases when the plaintiffs request compensatory damages. II. Standard of Review We may permit an immediate appeal of a district court’s decision as to class certification, fed. R. Crv. P. 23(f), and we review the order for an abuse of discretion. Alkire v. Irving, 330 F.3d 802, 810 (6th Cir.2003); Coleman, 296 F.3d at 446; Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988).

The district court maintains substantial discretion in determining whether to certify a class, as it possesses the inherent power to manage and control its own pending litigation. Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th Cir.2000). However, we will find an abuse of discretion when the district court relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment. Schachner v. Blue Cross & Blue Shield, 77 F.3d 889, 895 (6th Cir.1996); Bowling v.

Pfizer, Inc., 102 F.3d 777, 780 (6th Cir.1996); First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir.1993). III. Rule 23(

a) Federal Rule of Civil Procedure 23(

a) provides the prerequisites to certifying a class under one of the Rule 23(

b) provisions, stating: 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. fed. R. Civ. P. 23(a). In Reeb II, we instructed the district court to conduct a “rigorous analysis” of the issues necessary to show that the requirements of Rule 23(

a) have been met. Reeb II, 81 Fed.Appx. at 559. We noted that the court could not perform this function without more precise information as to the nature of each of the named plaintiffs’ individual discrimination claims. Id. at 556, 559. Upon remand, the district court did not conduct any more hearings and simply attempted to clarify its earlier order by issuing a new one with a new analysis. In doing so, it failed to explicitly examine the named plaintiffs’ claims and noted only the plaintiffs’ assertion that Belmont had a “general policy” of discrimination. Reeb III, 221 F.R.D. at 474.

As we noted in Reeb II, the Supreme Court’s decision in Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), requires plaintiffs requesting class certification in a case raising generalized Title VII discrimination claims to allege “ ‘significant proof that [Belmont] operated under a general policy of gender discrimination that resulted in gender discrimination manifesting itself in ‘the same general fashion’ as to each of the kinds of discriminatory treatment upon which the pattern-or-practice class action rests.” Reeb II, 81 Fed.Appx. at 559.

The district court, upon remand, noted that Falcon dealt with only one plaintiff whose case could have been significantly different from the claims of other class members, whereas this case presents several named plaintiffs who suffered a variety of harms. Reeb III, 221 F.R.D. at 475. We believe that the record in this case is not sufficient for the district court to have conducted the analysis it needed to do in 'order to make sure the Falcon requirements were met.

The district court’s opinion after the first remand did not adequately examine just what the named plaintiffs are seeking, nor did it review any evidence as to the likely claims that the rest of the class will assert. For example, in order to find typicality and commonality, the precise nature of the various claims must be examined. The district court found the commonality element of subdivision (

a) met “[ble-cause the issue of whether the Defendant violated Title VII will be common to the class :... ” Reeb, 221 F.R.D. at 477. If this were the test, every plaintiff seeking to certify a class in a Title VII action would be entitled to that certification. Plaintiffs argue that the Falcon case allows for a finding of commonality whenever a plaintiff asserts that an employer’s decision-making with regard to all employees in the protected group manifests itself in the same general fashion.

However, this argument ignores the fact that the same general policy of discrimination can affect many different aspects of employment, such as hiring, firing, promoting, giving benefits, providing vacation time, or delegating work assignments. Moreover,' the typicality requirement is not met if the named plaintiffs do not represent an adequate cross-section of the claims asserted by the rest of the class.

Employment discrimination claims require proof that particular managers took particular employment actions and that either the managers were motivated by a discriminatory animus or the actions resulted in a disparate impact upon the class; the district court is therefore required to examine the incidents, people involved, motivations, and consequences regarding each of the named plaintiffs’ claims to determine the typicality element of Rule 23(a). See Falcon, 457 U.S. at 159 n. 15,102 S.Ct. 2364 (“Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.

The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer”) (emphasis in original). If there are members of the class that will be asserting any or all of these claims, then there needs to be a class representative who is arguing the same thing-or the plaintiffs must show how their claims are typical in the absence of such a named plaintiff-in order for the district court to find typicality.

Here, the district court seems to have found that the presence of a common question of law regarding whether Belmont had a policy of discriminating against women satisfied both the typicality and commonality elements, but a general policy of discrimination is not sufficient to allow a court to find commonality or typicality. See 'Falcon, 457 U.S. at 159, 102 S.Ct. 2364. Because the district court did not examine the nature of the claims raised by the named plaintiffs and the claims likely to be raised by other members of the class, the court did not perform the required analysis of these issues.

Indeed, it seems impossible for the court to have done so on the scant record before it at the time it. issued the certification order. Nonetheless, because we conclude below that certification of a plaintiffs’ class under Rule 23(b)(2) is improper in a Title VII case in which the plaintiffs seek individual compensatory damages, and because the district court has already determined that Rule 23(b)(1) and (b)(3) class certification is not appropriate in this case, we do not reach the question of whether the plaintiffs should have the opportunity to present evidence sufficient to make the required Rule 23(

a) showing. IV. Rule 23(b)

(2) Federal Rule of Civil Procedure 23(

b) authorizes three types of class action suits. To meet the requirements of the rule, the class representatives must show that action meets all of the requirements of Rule 23(

a) and, for subdivision (b)(2) classes, that the party opposing the class has affected the class in a way generally applicable to the class as a whole so that final injunctive or declaratory relief with respect to the entire class is appropriate. fed. R. Civ. P. 23(b)(2). Rule 23(b)(1) and Rule 23(b)(2) authorize “mandatory” class actions under which potential class members do not have an- automatic right to notice or a right to opt out of the class. Rule 23(b)(3), designed to accommodate claims for money damages, requires notice to the class members, including the member’s right to opt out of the class, see fed.

R. Crv. P. 23(c)(2)(B), and specifies the factors that a court needs to consider in determining whether common issues predominate. See fed. R. Crv. P. 23(b)(3). A. Text and History of Rule 23(b)

(2) The starting point in answering the question of when, if ever, a plaintiff class that is seeking compensatory damages may be certified under Rule 23(b)(2) is the text of the Rule: “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole.” fed. R. Crv. P. 23(b)(2). One

interpretation of this language is that the rule allows class certification for classes that seek in-junctive relief or declaratory relief only; the other

interpretation allows class certification wherever a class is formed in which class-wide injunctive or declaratory relief would be one appropriate means of adjudicating the claim. The Advisory Committee Notes to the 1966 amendments to Rule 23 further muddy the issue, stating that the “subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” fed. R. Civ.

P. 23, Advisory Committee Notes 1966, Note on Subdivision (b)(2). Continuing, the Committee stated that the subdivision is not intended to “extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Id. Subsequent amendments in 1987, 1998, and 2003 have either made no substantive change or have changed other provisions of the rule not applicable to the

interpretation of subdivision (b)(2). The Supreme Court has never determined whether subdivision (b)(2) classes can be certified in cases in which, in addition to an injunction, the plaintiffs seek monetary relief. In Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994), a(b)(2) class action, the Court granted certiorari in order to address whether awarding money damages in a mandatory class (one which does not require notice and opt-out procedures) violates the due process rights of the absent class members. Id. at 120-21, 114 S.Ct. 1359.

The Court dismissed the case, however, because it had not yet decided whether Rule 23(b)(2) allows a class to pursue money damages, which is a preliminary non-constitutional question. Id. at 121,114 S.Ct. 1359. B. Other Circuits’ Treatment of the Issue In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), the Fifth Circuit reviewed a district court’s decision not to certify under subdivision (b)(2) a class that involved more than 1000 potential members seeking relief under Title VII for alleged racial discrimination, requesting back pay, front pay, pre-judgment interest, and attorney’s fees.

Id. at 407. The court noted that the Civil Rights Act of 1991 changed Title VII to allow plaintiffs to recover compensatory and punitive damages from an employer that engaged in an unlawful employment practice. Id. at 409-10 (citing 42 U.S.C. § 1981a(a)(l)). Compensatory damages may include future pecuniary losses, emotional damages, suffering, inconvenience, mental distress, hedonic losses, and other nonpecuniary losses. Id. at 410 (citing 42 U.S.C. § 1981a(b)(3)).

The 1991 Act’s introduction of jury trials into Title VII cases, the court explained, created manageability problems with regard to class action cases under Title VII seeking monetary damages, because the Seventh Amendment and practical considerations make bifurcation, the appropriate method of adjudicating these claims before the 1991 Act, difficult.

Id. 'The Allison court then noted that the language of Rule 23(b)(2) is silent as to whether monetary relief may be sought in conjunction with the stated injunctive or declaratory relief, and that the Advisory Committee Notes state that the rule is not intended to cover situations where the requested relief “relates exclusively or predominantly to money damages.” Id. at 411. From this, the court opined that “at least some form or amount of monetary relief’ could be allowed in (b)(2) class actions. Id. The question, therefore, was what “predominant” means.

To answer this question, the court turned first to the different types of class actions provided for in Rule 23, each of which “represents a balance struck ... between the need and efficiency of a class action and the interests of class members to pursue their claims separately or not at all.” Id. at 412.

The (b)(2) class “was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary” and the (b)(3) class “was intended to dispose of all other cases in which a class action would be ‘convenient and desirable,’ including those involving large-scale, complex litigation for money damages.” Id. (citing Holmes v. Cont’l Can Co., 706 F.2d 1144, 1155 n. 8 (11th Cir.1983), and Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)).

The mandatory notice and opt-out availability for (b)(3) classes, the court said, demonstrates the particular concerns that class members have with being members of a class when money damages are at issue. Id. at 413 (citing fed. R. Crv. P. 23, Advisory Committee Notes, stating that, to “the degree [that] there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum”).

The disparate intentions and motivations of plaintiffs are most noted where monetary damages are at issue, which is why the (b)(3) class mandates notice and the opportunity to opt out and why the (b)(2) class, in which the form of relief sought is declaratory or in-junctive in nature, does not contain such a requirement. Id.

Where claims for individual damages become the more important form of requested relief, “the presumption of cohesiveness decreases while the need for enhanced procedural safeguards to protect the individual rights of class members increases ... thereby making class certification under (b)(2) less appropriate.” Id. Therefore, the court concluded, monetary relief predominates when its importance in the litigation suggests that the procedural safeguards found in (b)(3) are necessary. Id. If monetary relief does predominate,, then subdivision (b)(3) is the appropriate means of class certification.

Id.; see also Ortiz v. Fibre-board Corp., 527 U.S. 815, 844-45, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (stating that, in class actions for money damages, class members are entitled to notice and an opportunity to opt out).

The court then stated its holding, finding that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief,” and interpreting “incidental” to mean “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief, as the text of subdivision (b)(2) refers to ‘relief appropriate with respect to the class as a whole.’ ” Id. (internal quotation marks omitted) (emphasis in original).

To be more specific, the court stated that damages in these eases should be “concomitant with, not merely consequential to, class-wide injunctive or declaratory relief’ and that the computation of such damages should not be “dependent in any significant way on the intangible, subjective differences of each class member’s circumstances.” Id. at 415. Damages recoverable would be those that inure to the group benefit, which the court felt was most consistent with the purpose of the (b)(2) class to begin with. Id.

The Fifth Circuit viewed this approach as consistent with the position it had taken in past decisions that back pay could be awarded in Title VII cases to members of a(b)(2) class because back pay is an equitable remedy that has always been available under Title VII, as opposed to compensatory and punitive damages, which are legal in nature. Id. at 415-16.

It then went on to find that the plaintiffs in that case had specifically requested back pay, front pay, compensatory damages, punitive damages, prejudgment interest, attorneys’ fees, and retroactive benefits, and affirmed the district court’s finding that the presence of claims for individual compensatory and punitive damages were very particularized inquiries that involve considerations of the effect of the defendant’s broad policy to an individual’s particular circumstances, and therefore, the damages were not “incidental” to the requested injunctive or declaratory relief. Id. at 415-17.

The court found that, especially with regard to emotional harm and other intangible injuries, plaintiffs must submit proof of actual injury that necessarily differs from person to person because the nature of the injury is the effect on the person as an individual. Id. at 417. Furthermore, findings with regard to availability and amount of punitive damages must be tied to the amount of compensatory damages awarded, so this too turns on individual considerations and is not just a blanket award based on a showing that a defendant’s conduct has caused some harm. Id. at 417-18 (citing BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). It concluded that, because of the individual attention required for determining whether non-class-wide compensatory or punitive damages may be awarded, claims for such damages are not appropriate for a class that is seeking certification under subdivision (b)(2). The Seventh and Eleventh Circuits have adopted Allison’s reasoning. See Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir.2000); Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894 (7th Cir.1999); Murray v. Auslander, 244 F.3d 807 (11th Cir.2001).

Not all circuits addressing the issue have agreed with this assessment. The Second Circuit noted a textual ambiguity in Rule 23(b)(2) and adopted one of the

interpretations of the Advisory Committee Notes cited by the dissenting judge in Allison, stating that a district court may certify a class under subdivision (b)(2) despite the presence of a request for compensatory and punitive damages if it finds in its informed, sound judicial discretion that (1) the positive weight or value [to the plaintiffs] of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy.

Robinson, 267 F.3d at 164 (2d Cir.2001) (internal citation and quotation marks omitted). The court added that a district court, in deciding whether to certify a class under subdivision (b)(2), must make sure that plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought even in the absence of any monetary remedies, and that the injunctive or declaratory relief requested would be both necessary and appropriate if the plaintiffs were to succeed on the merits. Id.

The Ninth Circuit has also chosen to perform a weighing analysis when determining whether or not injunctive or declaratory relief predominates over requested damages in an individual case. See Molski v. Gleich, 318 F.3d 937, 950 (9th Cir.2003) (refusing to follow Allison because it “would nullify the discretion vested in the district courts through Rule 23” and might have “troubling implications for the viability of future civil rights actions, particularly those under the Civil Rights Act of 1991”). C. Coleman v.

GMAC and the ECOA We noted in Reeb II that, upon remand, the district court should consider the effect of our opinion in Coleman v. GMAC on the class-certification decision. Reeb II, 81 Fed.Appx. at 554. On remand, the district court found that Coleman did not apply and expressly adopted the reasoning articulated by the Second Circuit in Robinson in reaching its certification decision. See Reeb III, 221 F.R.D. at 480. In Coleman, we reviewed a district court’s decision to certify a plaintiff class in which the plaintiffs asserted that GMAC discriminated against them on the basis of race in violation of the ECOA.

We vacated the class-certification order and remanded for further proceedings in the district court based primarily on the reasoning in Allison. 296 F.3d at 445-50. The named plaintiff in Coleman sought certification of a class of plaintiffs defined as “[a]ll African American consumers who obtained financing from GMAC in Tennessee pursuant to GMAC’s ‘Retail Plan-Without Recourse’ between May 10, 1989 and the date of judgment and who were charged a finance charge markup greater than the average finance charge markup charged white consumers.” Id. at 445-46.

GMAC opposed the certification, arguing that “the individualized issues regarding liability and damages render the suit inappropriate for class treatment.” Id. at 446. As did the district court in the case before us here, the district court in Coleman found that the proposed class met the requirements of Rule 23(b)(2), but did not meet the requirements of Rule 23(b)(3) because the plaintiff “had failed to show that individualized factors do not play a role in the [claimed discriminatory practice].” Id.

We first noted that there is an “apparent consensus that money damages are recoverable to some extent in a Rule 23(b)(2) class action,” but we noted as well that the Supreme Court has expressed concern about the constitutionality of certifying a mandatory class where claims for money damages were involved.

Id. at 447; see also In re Telectronics Pacing Sys., Inc., 221 F.3d 870, 881 (6th Cir.2000) (stating that “principles of sound judicial management and constitutional considerations of due process and the right to jury trial all lead to the conclusion that in an action for money damages class members are entitled to personal notice and an opportunity to opt out”). We then held that compensatory damages sought under the ECOA are not recoverable by a Rule 23(b)(2) class. Id.

In making this determination, we found that the defining characteristic of the “mandatory classes” is the homogeneity of the interests of the members of the class; the more individualized determinations come into play, the more divergent the interests of the members of the class become. Id. at 447-48. The (b)(3) class, we said, was created for members with divergent interests, and provides the protections of notice and the opportunity to opt out. Id. at 448. Further, “class treatment of the claims for money damages implicates the Seventh Amendment and due process rights of individual class members.” Id. at 448.

Because of these concerns, “close scrutiny is necessary if money damages are to be included in any mandatory class in order to protect the individual interests at stake and ensure that the underlying assumption of homogeneity is not undermined.” Id. (citing Telectronics, 221 F.3d at 881). In Coleman, we also examined the Advisory Committee Notes 'to subdivision (b)(3), something not done by other courts facing the issue of when to certify a(b)(2) class where compensatory damages are sought.

In examining that commentary, we noted that a district court can only certify a(b)(3) class where it finds that the common issues predominate because that is the only situation in which the class action format can serve its function in promoting judicial economy. Id. A similar concern arises in the (b)(2) context, and one “critical factor” must be whether compensatory relief requested by the plaintiffs will require individualized damages calculations or if that relief will be calculable on a class-wide basis. Id.

Furthermore, we found that the purposes of the class action suit are judicial economy and the opportunity to bring claims that would not be brought absent the class action forum because it might not be economically feasible to bring them as individual claims. Id. at 448-49.

These benefits would not be realized where plaintiffs requested compensatory damages under the ECOA, we said, for three reasons: (1) the request for compensatory damages “undermines the assumption of homogeneity” of the class because each individual member has a stake in the outcome of the litigation but would not have the opportunity to opt out in order to protect that intez-est; (2) the efficiencies that are to come with class cez'tification would not be realized because of the individual determinations that would be necessary to calculate the amount of damages to which each class member is entitled; and (3) the ECOA provision that provides for an award of attorney’s fees and costs to successful plaintiffs reduces the likelihood that these claims would not be brought absent class certification.

Id. at 449. We found persuasive the fact that the compensatory damages requested would have to be determined by an individualized inquiry into the amount of interest charged to each class member, an inquiry which would predominate over the requested injunctive or declaratory relief. Id.

Finally, we explained that our holding is not inconsistent with our precedents allowing back pay as a requested remedy for a certified (b)(2) class because “back pay generally involves less complicated factual determinations and fewer individualized issues” than the computation of compensatory damages, and back pay is an equitable remedy that does not implicate the procedural and constitutional issues that a damage award does. Id. at 449-50.

In sum, we concluded that ECOA compensatory damages are not recoverable by a Rule 23(b)(2) class, and that the district court had abused its discretion in certifying the class under Rule 23(b)(2). Id. at 450. D. Title VII Cases Coleman’s reliance on the reasoning in Allison dictates the outcome of this case.

Title VII and the ECOA are virtually indistinguishable in the areas which we thought relevant to our analysis in Coleman and, in most instances, the characteristics of Title VII counsel more strongly against allowing individual compensatoz-y damage claims in Rule 23(b)(2) certifications than do those of the ECOA.

First, the individual compensatory damages available under the ECOA involve a fairly straightforward interest rate calculation, whereas the damages available under Title VII include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses. Compare 15 U.S.C. § 1691e(a), with 42 U.S.C. § 1981a(a)(l); see also Coleman, 296 F.3d at 449. Furthermore, in an ECOA case, only the issue of damages would need to be determined on an individualized basis. See Coleman, 296 F.3d at 449 (citing Buycks-Roberson v. Citibank Fed.

Savings Bank, 162 F.R.D. 322, 335 (N.D.Ill.1995)). But in a Title VII case, whether the discriminatory practice actually was responsible for the individual class member’s harm, the applicability of nondiscriminatory reasons for the action, showings of pretext, and any affirmative defense all must be analyzed on an individual basis. Finally, we explained in Coleman that whether plaintiffs would bring a suit in the absence of the availability of a class action is a factor to be considered in determining whether or not to allow class certifications. Id.; see also Deposit Guaranty Nat’l Bank v.

Roper, 445 U.S. 326, 329, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). We found that such suits would be brought on an individual basis because of statutory provisions calling for attorney’s fees and costs to be awarded to successful plaintiffs. Coleman, 296 F.3d at 449. The same can be said in Title VII cases. Title VII provides the same inducement through its fee-shifting provision, provides an administrative scheme meant to remedy these problems without ever resorting to lawsuits, and allows the EEOC to bring suit on the individual’s behalf. 42 U.S.C. § 2000e-5(a), (b) & (k).

There is certainly no lack of individual plaintiffs lining up to bring Title VII actions, as any cursory search on Lexis-Nexis or Westlaw will illustrate. Indeed, Title VII after the 1991 amendments appears designed specifically with individual plaintiffs in mind. The district court cited the possibility of retaliation against those who refused to opt out of the class as a possible deterrent to bringing suit, but Title VII provides a cause of action for those retaliated against for participating in a protected activity. See 42 U.S.C. § 2000e-3(a).

Accordingly, we hold that, because of the individualized nature of damages calculations for Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunctive relief, and individual compensatory damages are not recoverable by a Rule 23(b)(2) class. The district court therefore abused its discretion in certifying this class under Federal Rule of Civil Procedure 23(b)(2).

We emphasize, however, that this holding does not foreclose all Title VII class actions. Plaintiffs now have the choice of proceeding under Rule 23(b)(3) in an action for money damages or in an action under Rule 23(b)(2) for declaratory or injunctive relief alone or in conjunction with compensatory and punitive damages that inure to the group benefit. And, as always, plaintiffs remain free to bring Title VII actions as individuals. V.

Conclusion For the foregoing reasons, we VACATE the district court’s certification of the class and REMAND the case to the district court for further proceedings consistent with this opinion.