Patricia MARQUIS, Annette Richmond, Erika Swain, Lisa Davis, Rhonda MacDonald, and Karin Conrad, Plaintiffs, v. TECUMSEH PRODUCTS COMPANY, Defendant, 206 F.R.D. 132

OPINION AND ORDER REGARDING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANT’S MOTIONS FOR

SUMMARY JUDGMENT ROSEN, District Judge. I. INTRODUCTION Plaintiff Patricia Marquis, Annette Richmond, Erika Swain, Lisa Davis, Rhonda MacDonald, and Karin Conrad commenced this putative class action on December 13, 1999, asserting claims of hostile work environment sex discrimination and retaliation under Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan’s Elliott-Larsen Civil Rights Act (the “Elliott — Larsen Act”), Mich. Comp. Laws § 37.2101 et seq., as well as state-law claims of intentional infliction of emotional distress.

Specifically, Plaintiffs, on behalf of themselves and their female co-workers at the Tecumseh Division plant of Defendant Tecumseh Products Company, allege that acts of sexual harassment are widespread, severe, and ongoing at Defendant’s plant, and that Defendant has adopted a common, plant-wide policy of refusing to take action against the discriminatory conduct of its employees, several of whom occupy management positions. This Court’s subject matter jurisdiction is founded upon Plaintiffs’ assertion of federal Title VII claims. See 28 U.S.C. §§ 1331,1367(a).

By motion filed on December 1, 2000, Plaintiffs now request that the Court grant a hybrid class certification under Fed.R.Civ.P. 23(b)(2) and (b)(3), with common issues of liability and injunctive relief addressed under the former provision and claims for damages addressed under the latter. Defendant filed a brief in opposition to this motion on January 22, 2001, and Plaintiffs submitted a reply in further support of their motion on February 21, 2001. For its part, Defendant filed six (6) separate (and lengthy) motions on November 30, 2000, seeking

summary judgment in its favor on all of the discrimination and retaliation claims asserted by each of the six named Plaintiffs. Plaintiffs filed a consolidated response in opposition to these motions on January 23, 2001, and Defendant submitted a consolidated reply in support of its motions on February 14, 2001. Finally, on December 26, 2000, Plaintiffs filed a motion requesting that the Court bifurcate any eventual trial into separate phases addressing liability and damages. The Court conducted an extensive hearing on all of these pending motions on July 26, 2001.

Remarkably, notwithstanding their prodigious submissions to date, counsel for the parties sought leave to file supplemental briefs addressing certain points raised at the July 26 hearing. Perhaps more remarkably, the Court granted this request, albeit sharply limiting the scope of these supplemental briefs to a “fallback” class certification proposal advanced by Plaintiffs at the hearing. Having considered the arguments of counsel at the July 26 hearing, and having reviewed the parties’ voluminous briefs and exhibits and the record as a whole, the Court now is prepared to rule on the parties’ motions.

This Opinion and Order sets forth the Court’s rulings. II. FACTUAL BACKGROUND A. The Parties Defendant Tecumseh Products Company is a multinational corporation that manufactures parts for refrigeration units, and employs approximately 8,500 workers at 18 different locations across the country. Defendant’s Tecumseh Division is located in and around Tecumseh, Michigan, and this division’s employees are spread over four different facilities in this area. One of these is the Compressor Facility, where Defendant’s compressors are made.

This facility, in turn, is divided into five areas: Materials (Purchasing), Maintenance and Engineering, Controllers Area, Quality Assurance, and Production. Plaintiffs Patricia Marquis, Annette Richmond, Erika Swain, Lisa Davis, Rhonda MacDonald and Karin Conrad all are current or former employees of Defendant’s Tecumseh Division who, at one time or another, worked at the Compressor Facility. The claims asserted by the named Plaintiffs arose in the Production area, which is spread over 13 departments and rooms at the Compressor Facility.

More specifically, the named Plaintiffs have complained of harassment in the white room, the high side, the oil line, the paper recycling crew, and the machine shop. B. The Claims Asserted by the Named Plaintiffs As should be evident from the above recitation of the parties’ many and lengthy submissions, the record before this Court is immense, and is replete with allegations and evidence of sexual harassment at Defendant’s Tecumseh Division plant.

The Court summarizes the principal claims and allegations of the named Plaintiffs here, with further details to follow below as necessary to the Court’s analysis of the issues before it. 1. Plaintiff Patricia Marquis Patricia Marquis has been employed by Defendant since 1988. In March of 1993, following back surgery, she began working light duty jobs, reporting to Keith Keller. The first of these assignments was to clean the bathrooms, which she did until September of 1996.

Marquis’s first complaint of sexual harassment arose in the summer of 1996, when she and Plaintiff Lisa Davis discovered a photograph of a naked man on their cleaning cart, along with a note stating, “If you like what you see leave an answer in an empty locker.” The two women reported this incident to their union. They also went to Human Resources, and Marquis waited outside while Davis complained to John Dewey, the Director of Human Resources for the Tecumseh Division. Davis reported to Marquis that Dewey crumpled up the note and picture, stating that there was nothing he could do about it.

The following morning, the women found another note and a letter, and then the activity ceased. Soon thereafter, in September of 1996, Marquis was given the option of moving to second shift or being laid off, and she elected the layoff. Marquis alleges that this layoff was in retaliation for her report of sexual harassment in the summer of 1996. She returned to work in March of 1997, and was assigned to the paper recycling area. In this position, Marquis reported primarily to Keith Keller, although Kay Cagle also had managerial responsibilities over this area.

In paper recycling, Marquis generally worked with Bob Soto and two other employees. Soto also owned a limousine service and, according to Marquis, would occasionally ask Marquis to go for rides in the limo with him, and would also try to hug or kiss her. Although this conduct began before Marquis’s layoff, she testified that it got worse after she broke up with her boyfriend in May of 1997.

From that point forward, according to Marquis, Soto would put his arm around her several times a week, at one point touching her breast, and he invited her, on four or five occasions in the summer of 1997, to ride to Windsor, Ontario with him in his limousine. Marquis testified that Soto’s conduct went from joking to more severe in the 1997-98 time frame. For example, in the summer of 1998, Soto allegedly told Marquis that he wanted to take her to Windsor in his limo, put a red light on the vehicle, and make some money.

Soto also asked Marquis when she was going to “give it up,” and, in the fall of 1998, he bit her neck. Marquis did not report the biting, touching, or kissing incidents to management. In 1997 or 1998, however, she complained to her supervisor, Keith Keller, that she was “sick and tired of [Soto’s] mouth,” and she demanded that Keller “do something with Bob or I[am] just going to have to kill him.” (Marquis Dep. at 67-68.) In response, Keller reportedly asked “what did he do now,” (id. at 68), and otherwise failed to take any action.

Marquis further testified that Keller surely was aware of Soto’s conduct, as he was present on a few occasions when Soto put his arm around her, and was only a few feet away on one occasion when Soto reportedly said to Keller, “[L]ook at the jugs on her,” or words to that effect. (Id. at 286-87.) Keller allegedly said and did nothing upon witnessing these incidents.

To the contrary, Marquis testified that, on one occasion, Keller appeared to be “still intoxicated from the night before,” and told Marquis that she could “get a T-shirt that says, I work for head.” (Id. at 304.) In the fall of 1998, Defendant hired an undercover private investigator to look into allegations of gambling in its Tecumseh plant. In one of his reports, the investigator advised Ike Growe, the Division Director of Human Resources, that he had witnessed Soto engaging in sexual conduct toward Marquis, including making overt sexual remarks, rubbing his groin against her leg, and stroking her breast.

The investigator purportedly offered to be a witness if Marquis wished to file a complaint of harassment, but Marquis reportedly responded that it “wouldn’t do any good,” and that “[y]ou don’t bite the hand that feeds you,” which the investigator apparently took as a reference to Soto providing food to Keller and Keller failing to act on Marquis’s earlier complaint. (See Defendant’s Motion for

Summary Judgment, Ex. 8.) Upon reading the investigator’s report, Growe began to look into the matter. On November 23, 1998, Growe called Marquis into his office, and she told him that Soto was “sometimes a pain,” but that she could “handle things myself.” (Marquis Dep. at 239.) Marquis has testified that she did not wish to pursue a formal complaint and did not want to see Soto lose his job, and that “I didn’t want this to turn into a big mess,” but that she simply wanted Soto to cease his conduct toward her. (Id. at 170-71, 239-40.) Growe purportedly told Marquis that he would speak to Soto and warn him.

That same day, Growe called Soto into his office. Soto reportedly refused to cooperate, and Growe responded by suspending him pending further investigation. Although Growe assured Marquis that the matter would remain confidential, Soto was permitted to return to the plant to collect his belongings and advise his wife that he was leaving with their car. While in the plant, Soto apparently went to the break room and told Marquis that he had been suspended, and generally went through the plant “shooting his mouth off’ about what had happened.

On November 30, 1998, Defendant and the union held a hearing on the charges against Soto. Soto purportedly admitted to several instances of sexual harassment toward Marquis, and was discharged as a result, effective November 23,1998. Marquis alleges that she was subjected to the silent treatment and stares from coworkers, who were upset at her role in Soto’s termination. She further alleges that, as a result of her complaint of sexual harassment, she was reassigned in January of 1999 to a computer input position in the Quality Control laboratory, suffering a pay decrease of 30 cents per hour.

As other instances of alleged retaliation, Marquis asserts: (

i) that, upon obtaining reassignment to a bathroom cleaning position in March of 2000 and discovering that the work aggravated her medical condition, she was denied a transfer to which she was entitled under the union contract; and (ii) that, following the commencement of this action, she overheard and was approached by co-workers regarding her role in bringing this suit. Finally, Marquis testified at her deposition regarding a few other instances of sexual harassment or inappropriate conduct.

First, she testified about a “nasty picture” that was passed around her area in 1994, and was shown to her by a female co-worker. Next, she stated that a “nasty joke” had been left on the break room table in 1997. She further testified that, a “couple years ago,” a coworker nicknamed “Pork Chop” would “talk filthy” in the break room. Finally, she recounted an incident in early 2000, when a female co-worker showed her a copy of a sexually explicit cartoon involving the “Taco Bell” dog that reportedly had been posted on the window of the white room. Marquis did not report any of these incidents to management. 2.

Plaintiff Annette Richmond Annette Richmond began working for Defendant in 1993, and primarily was employed in the “high side” area. She alleges that her supervisor, Dave Soto, made inappropriate comments and engaged in improper conduct between 1993 and 1999. For example, Soto allegedly stated that he was in love with Richmond, and that he wanted to move in with her. Richmond testified at her deposition that she complained to other supervisors, Dave Johnson and Trina Higgins, regarding these comments, and that Higgins witnessed Soto making these comments.

Richmond further testified that, over the last couple of years before she resigned in September of 1999, Soto occasionally would “come up behind me and feel my back or rub my back,” and “would say I’m just seeing if you had a bra on.” (Richmond Dep. at 109.) She asked Soto to cease this conduct, but did not report it to management because “it wouldn’t have done any good.” (Id.) Richmond next contends that she was repeatedly sexually harassed by a supervisor in the welding department, Larry Carson.

From 1993 until approximately 1997, Carson reportedly put his arms around Richmond on several occasions and made suggestive remarks. „ Richmond told him “[njumerous times” to cease this behavior, but did not report these incidents to management. (Id. at 169,172.) Richmond also testified that she was sexually harassed by co-workers in 1996 and 1997. In 1996, co-worker Mike Whaley allegedly invited her to his house, and drew pictures of flowers and left them at her work station.

Richmond complained to supervisor Dave Johnson, who allegedly “slap[ped] him on the hand and t[old] him to s[t]ay at his job and stay away from me,” but Whaley continued to visit Richmond’s work area. (Id. at 58-59.) Richmond also complained to John Dewey and Trina Higgins, and the conduct eventually ceased, perhaps in 1996 or 1997. Another co-worker, Larry Spiegel, posted sexually explicit pictures on his tool box from approximately 1997 until 1999. Richmond and a co-worker complained to a supervisor, but the pictures were not taken down.

A third co-worker, Bob Soto, allegedly stated on several occasions in 1997 that “I’ll take you out in my limo, but you[’ve] got to put out.” (Id. at 180.) Richmond did not report this to her supervisors, but warned Soto to desist or she would tell his wife, who worked at the plant. Next, Richmond testified that she was sexually harassed by Sam Faz in 1998 and 1999. Initially, when Faz was a co-worker, he purportedly posted a sexually explicit picture on the door of a cabinet where it was visible to other employees, and he made two sexual comments to Richmond.

Subsequently, upon his promotion to supervisor, Faz allegedly would walk past Richmond and call her a “fucking bitch” or “white bitch” under his breath. (Id. at 114.) Richmond did not complain about this because Faz “was [a] supervisor.” (Id.) At around the same time, in the summer of 1999, Richmond’s supervisor, Ray Martinez, approached Richmond from behind on a couple of occasions and pinched her inner thigh. Richmond asked Martinez to stop, but did not complain to management, although she recalled that someone else reported Martinez for this same behavior directed at another woman.

Finally, Richmond testified that she began to experience sexual harassment from three co-workers in June of 1999. Following an incident in which Larry Spiegel and two of his friends stopped by Richmond’s house uninvited and Richmond refused to let them in, Spiegel and two other co-workers, Tom Griffin and Richard Burciaga, began directing a series of inappropriate sexual remarks toward Richmond. Richmond first complained to Dave Soto, who reportedly “laughed it off.” (Id. at 131.) Richmond then went to Trina Higgins, who referred her complaints to Ike Growe in Human Resources.

At a subsequent meeting with Growe and Higgins in July of 1999, Richmond stated that her co-workers had yelled obscenities and thrown things at her.

According to Richmond, Growe first responded by inquiring about a co-worker that Richmond was dating, commenting on their difference in age and asking “does he give you money, is that why you go out with him?” (Id. at 139.) Later that day, when her co-workers learned that Richmond had complained about their conduct, they responded by stating that “somebody is going to get a vacation” and “there’s going to be a bitch hanging ... this afternoon.” (Id. at 146.) That same day, Richmond was given a five-day suspension; Defendant claims this was pre-determined discipline for excessive absenteeism, while Richmond charges that it was in retaliation for her complaint.

Soon thereafter, Richmond’s three coworkers, Spiegel, Griffin, and Burciaga, were interviewed by Human Resources, and purportedly stated that Richmond had instigated the run-ins by making derogatory remarks about them and their families. Richmond then met with Growe, Higgins, and three union representatives, and was told that it was her word against that of her three coworkers. Thus, on August 25, 1999, all four employees were warned that they should cease their inappropriate conduct, and that any further violations would lead to discipline or discharge.

Richmond testified that, upon returning to her work station, her co-workers continued “running their mouths,” and called her a “crybaby.” (Id. at 156.) Then, within a few days, one of Richmond’s co-workers threw a bolt at her and hit her in the side of the face, cutting and bruising her. She reported this incident to her supervisor, Ray Martinez, who allegedly “just kind of sh[ook] his head a little bit, like no big deal.” (Id. at 157.) Richmond took some of her accrued vacation time, and then resigned from her position with Defendant on September 22, 1999.

Richmond alleges that she was constructively discharged; for its part, Defendant claims that Richmond applied for her subsequent, higher paying job in mid-June of 1999, before lodging her complaint about her co-workers, and that she accepted this position in early August of 1999, before Defendant’s management had determined its response to Richmond’s complaint. 3. Plaintiff Erika Swain Erika Swain began working for Defendant in February of 1994.

She alleges that her supervisor between 1994 and 1996, Larry Carson, made inappropriate comments to her on several occasions, such as “oh baby, what I could do to you.” Even after Swain no longer worked for him, Carson allegedly would make such remarks to Swain when he saw her in the plant in 1998 and early 1999.

Swain testified that she never asked Carson to stop making such comments and never filed a grievance against him, stating that “I was afraid to.” (Swain Dep. at 221.) In a subsequent affidavit, however, Swain claimed that she finally confronted Carson in 1997, and that he then began to retaliate against her, finding problems with her performance for the first time. Swain further testified that Carson’s supervisor, superintendent Jesse Higgins, made crude and offensive remarks to male employees in 1995 and 1997, and showed an offensive cartoon to a male employee in 1995.

Swain also has raised allegations of coworker harassment. During the a period when she worked for Larry Carson, she testified that her co-workers made various offensive and inappropriate comments. In addition, when she worked in a receptionist/switchboard position in 1997-98, she alleges that she was the target of two inappropriate comments by co-worker Bob Soto.

She further testified that co-worker Sam Faz made offensive remarks to her in 1994-95 and in 1996-97, and that, when she worked on the high-side line in 1998, she was subjected to mistreatment by a coworker, Danny Alcorta, and to various offensive statements by co-workers, while supervisor Dave Soto stood by and took no action. Next, Swain cites a variety of incidents arising from a 1997 videotape of her and coworker Chris Stoddard having sex. She allegedly first learned of the possible existence of this tape in the spring of 1997, when another co-worker asked her about it.

Then, in late 1998 or early 1999, someone wrote the word “slut” on her work station, and Swain testified that she now believes this was related to the videotape. Swain next heard about the tape in January of 1999, when coworker Javier Faz mentioned it, and when an argument broke out between co-workers Juan Alcorta and Brian Swain (Erika’s fiancé at the time, and now her husband) regarding this issue.

Foreman Dave Soto investigated this incident, and then referred the matter to his supervisor, Trina Higgins, who advised Erika and Brian Swain that she had learned from another employee about the existence of the videotape. Higgins then asked the Swains if they wished to take the matter to Ike Growe in personnel, and they agreed to do so.

Upon learning of the incident, Growe promised to “get to the bottom of this,” and he proceeded to interview several workers on the high-side line, cautioning them that they were not to talk about the matter and that “it was not to be an issue any longer after that day.” (Id. at 154-57.) Growe’s investigation revealed that, in the summer of 1998, Stoddard had brought the videotape to the plant and given it to superintendent Jesse Higgins, who took it home and viewed it. Higgins then gave the videotape to Larry Carson, who also took the tape home and watched it.

Growe purportedly advised these supervisors that they could be discharged for this conduct, and both apparently elected to resign before any official action could be taken. Stoddard also was terminated, but this was changed to a resignation in a subsequent grievance proceeding. In the days immediately following these incidents in January of 1999, Swain testified that a number of co-workers approached her to learn what had happened. In order to escape this environment, Swain asked Ike Growe if she could use some of her vacation time.

Growe proposed, instead, that Swain be transferred to Defendant’s Clinton facility, and Swain testified that she accepted this offer. Nevertheless, Swain now contends that she was forced out of the Tecumseh plant and into a lower paying job, as a result of Defendant’s allegedly inadequate response to the videotape incident and its refusal to address the allegedly hostile work environment arising from this incident. Further, Swain’s complaints in this posfrJanuary-1999 time frame include: (

i) that Chris Stoddard was permitted to return to the Tecumseh plant as a painting contractor, where Swain saw him on a number of occasions when she would pick up her husband Brian from the plant after work; (ii) that, in follow-up meetings in Ike Growe’s office, Growe hugged her on a few occasions and made inappropriate personal remarks; (iii) that, during Growe’s visit to the Clinton facility in March or April of 1999, Growe grabbed her chin and told her she was “so sexy”; and (iv) that, more recently, after this lawsuit was filed, the company denied her the opportunity to work overtime, and imposed unjustified disciplinary layoffs and suspensions for alleged absenteeism and allegedly failing to work mandatory overtime hours.

Finally, Swain contends that she was constructively discharged in the spring of 2000, based on the emotional distress she suffered as a result of Defendant’s retaliation against her for bringing this suit, and based on Growe’s incorrect advice that the only avenue for taking time off to recover from this emotional distress was through the Family and Medical Leave Act (“FMLA”). 4. Plaintiff Lisa Davis Lisa Davis began working for Defendant in February of 1994.

She worked in the white room until December of 1994, and alleges that she was harassed during this time by an unnamed co-worker, who whistled and hollered at her and asked her to go out with him. She brought this conduct to the attention of her supervisor, Mark Brooks, and she testified that it was “taken care of’ to her satisfaction. (Davis Dep. at 99-100.) In 1995 and the first half of 1996, Davis held a job cleaning bathrooms.

She testified that, at some point during this time frame, co-worker Terry Blevins attempted to rape her, but that she “used my feet to get that fat sucker off me” and escape the situation. {Id. at 105-06.) Davis testified that she told John Dewey of Human Resources about this assault, and that he later advised her that Blevins had admitted to the incident and been warned to stay away from Davis.

Also during this time, Davis testified that coworker Bob Soto made inappropriate comments to her, and that she reported these comments to Keith Keller at one point, stating that “he needed to tell Bob to knock it off because one of these days he was going to be fired for sexual harassment.” (Id. at 145.) Finally, and as noted earlier, Davis and co-Plaintiff Patricia Marquis claim that they were sexually harassed during this same time frame, in the spring of 1996, by an anonymous co-worker who left sexually explicit photos and notes on their cleaning-cart.

Davis testified that she and Marquis complained to the union about this matter and that the conduct ceased, although Davis is unaware whether the union took any action. The next incident involving Davis arose in late 1998, when she allegedly was attacked by co-worker Jerry Burke. Davis testified that Burke asked to have sex with her, tried to grab her, and attempted to kiss her. Davis further stated that, for the next couple of days, Burke again would approach her and ask to have sex with her.

Davis went to Bob Soto, and asked him to “tell your friend Jerry Burke to leave me alone; if he was going to bother me one more time, I was going to take him to the office for sexual harassment.” {Id. at 167.) Davis testified that Burke “never bothered me after that.” {Id.) Davis told a few co-workers about this incident, but did not report it to Human Resources, the union, or her supervisor, Bob Robinson. Davis further alleges that, at some point in 1998 or 1999, an unidentified co-worker placed a sexually suggestive note on her hi-lo.

She asked her supervisor, Dick Handley, to investigate the matter, but he apparently was unable to determine who had written the note. During this same time frame, and then again shortly after this suit was brought, a co-worker named Indio made a few inappropriate comments to Davis. She testified that she reported one of these remarks to Keith Keller, and another to Ike Growe, but that she does not know what action, if any, was taken.

In addition, Davis, like Patricia Marquis, testified that an offensive cartoon featuring the Taco Bell dog was passed around the white room at some point, although Davis is not sure whether this occurred in 1997, 1998, or 1999. Finally, Davis has raised two allegations of retaliation.

First, she alleges that, in the fall of 2000, the company improperly denied her request for FMLA leave to breastfeed her baby in retaliation against her participation in this suit, although Defendant quickly corrected this acknowledged error and granted the requested leave, apparently even before Davis had returned to work at the end of her 12-week maternity leave.

Next, she claims that supervisor Ben Spence retaliated against her in early 2000 by sending her home early on one occasion when her half of the line was shut down, rather than allowing her to remain and work the other half of the line as allegedly had been done in the past. 5. Plaintiff Rhonda MacDonald Rhonda MacDonald began working for Defendant in February of 1994, and initially was assigned to work in the white room under foreman Jesse Higgins. MacDonald testified that, during the few months that she worked in this position, Higgins would yell and curse at her and criticize her job performance.

MacDonald complained about this conduct to John Dewey in Human Resources, and Higgins was reprimanded and instructed to apologize to MacDonald in front of her co-workers. In addition, MacDonald was allowed to move to another position in the machine shop,'supervised by Denny Richmond. MacDonald has no complaints during the period that she worked in the machine shop. In late 1994 and 1995, MacDonald worked in the welding department.

She alleges that supervisor Larry Carson sexually harassed her in this position, making sexual comments on a daily basis, putting his arm around her, and at one point offering MacDonald his paycheck if she would sleep with him. She further testified that two co-workers, Sam Faz and Dave Keith, also made sexual comments to her, and that Faz would grab himself in front of her and had pictures of nude women posted at his work station. MacDonald did not, however, report any of this conduct to management, although she believes she might have said something to Carson at one point about Faz’s conduct.

From fall of 1995 until early 1997, MacDonald returned to the machine shop, this time supervised by Sam Davis. She had no complaints during this time period. She then worked in the white room through the spring of 1997, reporting to Dick Handley. MacDonald testified that, during this time, she was subjected to sexual jokes, crude remarks, and teasing by co-workers on a regular basis, and that her co-workers stuck notes on her back with sexual comments. MacDonald complained to Handley a couple of times, but she was not aware of any action taken on these complaints.

She did not pursue these matters with the union or Human Resources, however. In May of 1997, MacDonald took a pregnancy-related leave of absence, and then resigned to stay home with her child. In January of 1998, however, she reapplied for employment with Defendant, and was assigned back to the white room working for Dick Handley. She then bid into a job in the machine shop in August of 1998, where she was supervised by Ray Pizana. Over the next several months, MacDonald’s then-husband, Daryl MacDonald, bid into various jobs in the machine shop.

MacDonald testified that she asked supervisor Ray Pizana and the union not to permit this, because the couple had separated, and she had obtained a protective order against her husband based on threats and violence toward her. Nevertheless, Daryl MacDonald was permitted to bid into these jobs, and he then, on a daily basis, called his estranged wife such names as “whore” and “slut,” occasionally accompanied by obscene gestures.

When MacDonald complained about this conduct to Pizana, he reportedly said, “I don’t want to hear your personal problems,” told her he didn’t care what Daryl was doing or saying, and instructed her to do her job. (MacDonald Dep. at 97.) In addition, Pizana apparently reported the couple’s arguing to Keith Keller, who met individually with Rhonda and Daryl and stated that one of them would be removed from the department if the arguments continued. (Id. at 94-95.) MacDonald testified that she was “astounded” by this, and told Keller that Daryl was “the one doing all this to me.” (Id. at 103-04.) Some time later, in the summer or fall of 1999, Keller received another report of arguing between Rhonda and Daryl MacDonald and again called Rhonda MacDonald into his office, reportedly stating that “he has got a situation here that is totally out of control and that he didn’t know what to do about it,” and that he would get together with Ike Growe to determine whether Rhonda or Daryl would be removed from the department. (Id. at 111.) MacDonald testified that she responded: Well, I’ll tell you what, Keith.

If you guys hadn’t t[a]ken it into your own hands to go ahead and violate my protection order in the very beginning back when you did by allowing this psycho to bid on a job next to me, knowing full well he missed work because he was in jail for beating me up, if you hadn’t let that happen in the very beginning, I said, I guess we wouldn’t be sitting here right now, would we. (Id.) According to MacDonald, she was summoned to a meeting with Pizana and Keller a few days later, and asked whether she would agree to voluntarily leave the department.

Pizana reportedly stated that, if Rhonda insisted on having Daryl removed from the department, the line would be “dead in the water,” because “I don’t have anybody else to run those grinders.” (Id. at 114.) MacDonald refused to voluntarily leave her position, and was told that the determination would be made on the basis of seniority. MacDonald testified that, a day or two later, she was told that she would be removed from the department because Daryl had more seniority. Sometime in the fall of 1999, MacDonald was removed from the machine shop and placed in the white room.

She filed a grievance, and was reinstated to the machine shop in December of 1999, with the company advising her that she was not to engage in any further threatening behavior. After returning to the machine shop, MacDonald registered no further complaints about Daryl MacDonald’s improper conduct, although she testified that it continued. She remained in this position until the line she was working on shut down in February of 2000, and then she moved to Defendant’s Orbitec facility.

MacDonald testified that, while she worked at the Orbitec facility, she saw Daryl standing by the time clock at that facility on two occasions, and saw him numerous times sitting in the parking lot watching her leave work. She further stated that, on one occasion, Daryl drove past her slowly while giving her “the finger.” She reported these incidents to Keith Keller, who then talked to Daryl and advised Rhonda that Daryl claimed to have innocent explanations for being at the Orbitec facility. While at the Orbitec facility, MacDonald reported to supervisor Mark Jenkins.

She testified that Jenkins made several inappropriate remarks to her in March of 2000.

First, Jenkins reportedly told MacDonald “how easy it would be to get rid of people who are causing you problems,” and “how easily you can poison a person.” (Id. at 142.) He then said that MacDonald “would be really easy” to poison, because she ate “way too much food during the day and ... dr[a]nk too much bottled water.” (Id. at 143-44.) MacDonald is unsure what Jenkins meant by these remarks, but speculates that “he was fully aware of this lawsuit,” and was perhaps “trying to tell me that somebody [might] consider doing that to me.” (Id. at 144.) In any event, these comments made MacDonald fearful.

A few days later, MacDonald reportedly had the following conversation with Jenkins: ... Mark c[a]me up to me and said, how are you doing today. I said I’m hanging in there. And he said, you look a little stressed. And I said, yeah. I said what’s new. He says, well, Rhonda, I tell you what. This is what I’m going to recommend to you[,] what I recommend to anybody that is in your situation. He says you are under a lot of stress. It is not just you but everybody around you. I’m going to give you a great stress reliever. And he said — I’m thinking serious, that he is serious.

Now he’s going to tell me how to get rid of the stress. He says, tonight what I want you to do when you go home, kick back in your La-Z-Boy, put your feet up, get yourself all nice and comfortable, cozy. I want you to reach over to that stand next to you, pick up that gun, put it to your side of your head and pull the trigger. (Id. at 150.) MacDonald believes that Jenkins was trying to scare her, and she links this remark to Jenkins’ knowledge. that she was participating in this lawsuit.

MacDonald did not report to work the next day, a Friday, and the following Monday she resigned, telling company officials it was for “personal reasons.” (Id. at 155.) She now claims that she was constructively discharged following retaliatory threats against her life by her supervisor. 6. Plaintiff Karin Conrad Karin Conrad has been employed by Defendant in an on-and-off basis since 1973. Her first report of sexual harassment dates back to January of 1997, when one of her co-workers imitated her by pretending to walk up a ramp in high heels while wiggling his buttocks.

She reported this conduct to a union steward, who allegedly told her that her co-workers were “just having fun.” (Conrad Dep. at 254.) Conrad also testified that, around this time, co-worker Sam Faz left her an orange with a sexually explicit note on it. After Conrad “told him off,” Faz left her alone and eventually apologized. (Id. at 101.) In February of 1997, Conrad began working for Trina Higgins on the high-side. She testified that Faz posted a picture of a naked woman on the inside of a cupboard near his work station, and left the doors open so that the picture was visible to her.

Conrad also testified that she received a sexually explicit note from an unknown co-worker at around this time, but that she threw it away after reading the first line. In early 1999, Conrad was bumped from her high-side job by an employee with more seniority, and assigned to paper recycling.

She alleges that in February of 1999, supervisor Dave Soto made an inappropriate remark in the break room, where there was a strong fish smell coming from the microwave oven, stating that “it smells like you should go home and wash.” (Id. at 92.) Conrad further testified that, while in recycling, coworker Earl Pate frequently used the “f-word.” At the urging of another co-worker, Conrad told Pate to “clean his mouth up,” and Pate “tried” to do so afterward. (Id. at 35.) Conrad’s principal complaints in this case are directed at Ike Growe in Human Resources.

First, she was told by a co-worker that Growe looked her “up and down” and “watch[ed] my butt” when she walked by. (Id. at 60-61.) Next, she testified that, in June of 1999, Growe commented several times about the color of her hair. According to a co-worker who was present at the time, Sylvia Butler, Growe also touched Conrad’s chin, but Conrad does not remember this. Conrad further testified that, on perhaps five occasions in the summer of 1999, Growe touched or squeezed her shoulder, and would leave his hand on her shoulder for several seconds while making small talk about her hair or other subjects.

Finally, in October 1999, when Conrad was bent over a box, Growe allegedly put his hands on her shoulders and said “I’m going to throw you into the box,” while pretending to do so. (Id. at 81-82.) Conrad further testified that Growe teased her about the incident the next day, stating “I hear somebody tried to throw you ... into a box yesterday.” (Id. at 82.) Conrad did not report any of these incidents to management or file a grievance. In early 2000, Conrad complained to Keith Keller that recycling work hurt her shoulder, and she asked to be reassigned.

Conrad was assigned to the Orbitec facility in January of 2000, initially reporting to supervisor Gene Clark. Conrad testified that, during the first couple of days in this department, Clark would suck his thumb in front of her, and Conrad took this as suggesting that she was a baby for participating in this lawsuit. Conrad also charges that Clark inappropriately disciplined her on one occasion, ordering her to return to her area and not to speak with other workers in the department. In February of 2000, Conrad was reassigned to report to Mark Jenkins rather than Gene Clark.

Conrad testified that she continued to experience retaliation and sexual harassment, however. First, she complains that she was not given a permanent pass key to the Orbitec facility, but instead had to renew a temporary pass each day. Next, she alleges that supervisors have threatened to write her up for talking to co-workers. Finally, she testified about an incident in the spring of 2000 when a co-worker acted inappropriately by approaching her from behind as she bent over, and she stated that another co-worker, Gerald Jackson, yelled and swore a lot, although this conduct was not directed at her. III.

ANALYSIS A. Plaintiffs’ Motion for Class Certification 1.

The Standards Governing Plaintiffs’ Motion By motion filed on December 1, 2000, the six named Plaintiffs in this action request that the Court certify a class of current and former employees of Defendant “who have been the subject of harassment, discrimination!,] retaliation and a retaliatory hostile environment by Defendant Tecumseh’s common discriminatory policies.” (Plaintiffs’ Second Supplemental and Amended Class Action Complaint at 1197.) Plaintiffs seek to pursue both their state and federal discrimination and retaliation claims in this proposed class action.

Plaintiffs’ motion is governed by Federal Rule of Civil Procedure 23, which provides in relevant part: (

a) Prerequisites to a Class Action. 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. (

b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (

a) are satisfied, and in addition: ****** (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 courts finds that the questions of law or fact common to the members of 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 interests 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. As is clear from the text and structure of Rule 23 itself, a proposed class action must satisfy each of the four prerequisites of subsection (a), and must then qualify under at least one of the three categories set forth in subsection (b). See In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir.1996); Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588, 594 (E.D.Mich.1996).

Plaintiffs, as the parties seeking class certification, bear the burden of establishing that these requirements are satisfied; “[a] class is not maintainable as a class action by virtue of its designation as such in the pleadings.” In re American Medical Systems, 75 F.3d at 1079. Further, the Supreme Court has cautioned that “a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(

a) have been satisfied.” General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). 2. The Named Plaintiffs Failed to Fully and Properly Avail Themselves of Their Administrative Remedies, as Necessary to Sustain a Class Action under Title VII. Before assessing Plaintiffs’ request for class certification under the standards of Rule 23, the Court first must address a threshold procedural prerequisite to the commencement of a Title VII action, whether by an individual or on behalf of a class of aggrieved employees.

Specifically, “[a] person who claims to have been discriminated against in violation of Title VII may not seek relief in federal court unless administrative remedies have first been exhausted.” Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992). This entails (1) filing a timely charge of employment discrimination with the Equal Employment Opportunity Commission (“EEOC”), and (2) receiving and acting upon the EEOC’s statutory notice of the right to sue. See 42 U.S.C. §§ 2000e-5(e), (f); Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1486 (6th Cir.1989).

These two requirements, while not jurisdictional, are conditions precedent to bringing a Title VII action in federal court. See Rivers v. Barberton Bd. of Education, 143 F.3d 1029, 1031-32 (6th Cir. 1998). Exhaustion of administrative remedies is “intended to ensure that the [EEOC] will have been afforded an opportunity to attempt conciliation and voluntary settlement, the preferred means for resolving employment discrimination suits.” Parsons v. Yellow Freight Systems, Inc., 741 F.2d 871, 873 (6th Cir.1984) (internal quotations and citation omitted).

These same prerequisites apply to class actions brought under Title ATI, albeit in a slightly relaxed form. In particular, while such devices as “piggybacking” and the “single-filing rule” might relieve individual class members of their obligation to file separate charges with the EEOC, a class action nevertheless must be supported by at least one representative charge, timely brought by one of the named plaintiffs, which adequately identifies the collective, class-wide nature of the claimed discrimination. See, e.g., Grayson v. K Mart Corp., 79 F.3d 1086, 1102-05 (11th Cir.1996); Schnellbaecher v.

Baskin Clothing Co., 887 F.2d 124, 127-28 (7th Cir. 1989); Lusardi v. Lechner, 855 F.2d 1062, 1077-78 (3d Cir.1988); Hoffman v. R.I. Enterprises, Inc., 50 F.Supp.2d 393, 395-401 (M.D.Pa.1999). To qualify as representative, thereby satisfying the exhaustion of remedies precondition to the commencement of a Title VII class action, an EEOC charge must alert the employer and the EEOC of alleged class-wide discrimination, and must provide adequate notice of the scope of the proposed class, so that the parties may engage in meaningful conciliation efforts in advance of suit. See Grayson, 79 F.3d at 1104-05; Tolliver v.

Xerox Corp., 918 F.2d 1052, 1058-59 (2d Cir.1990); Schnellbaecher, 887 F.2d at 127-28; Lusardi, 855 F.2d at 1077-78. Returning to the present case, the Court finds that Plaintiffs quickly confront a substantial hurdle in their effort to satisfy the exhaustion of remedies requirement. Only two of the named Plaintiffs, Patricia Marquis and Erika Swain, filed EEOC charges prior to the commencement of this action on December 13,1999, and only one of these two, Marquis, had received notice of a right to sue as of this date.

Moreover, neither of these pre-litigation charges can possibly be construed as asserting class-based claims. Marquis’s charge states, in its entirety: I began employment with [Defendant] in December, 1989 as a Plant Worker. In October 1996, I complained to the Human Resources Director about a picture of a naked man and sexually explicit letters. The H.R. Director laughed, threw away the picture and said nothing could be done. I was then unexpectedly laid off for six months because I opposed this sexual harassment. I returned to work in March 1997.

From that time un[ti]l November 1998, I was subjected to repeated, egregious, offensive and unwelcomed sexual advanced by my Group Leader, a male. He propositioned me for sex, grabbed my buttocks, rubbed his groin on me, tried to kiss me and attempted to sexually attack me. As a result of this harassment, the H.R. Director investigated the Group Leader and told him to stop. The Group Leader got belligerent with the H.R. Director and he was discharged. Since December 1998, I have been ridiculed by fellow employees for causing his discharge. Also, I have been transferred to a more difficult job at less pay.

I believe that I was subjected to sexual harassment. Furthermore, I believe that I was retaliated against for opposing unlawful employment practices. This is in violation of Title VII of the Civil Rights Act of 1964. (Defendant’s Response, Ex. 108.) Swain’s charge states, in its entirety: I began employment with [Defendant] on February 7, 1994, and am currently employed as a Dock-Checker. During January 1999, I was subjected to sexual remarks, jokes, and touching by supervisors and fellow employees. I complained to Human Resources and was subsequently moved to a different division with a decrease in pay.

I believe I was subjected to sexual harassment because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended. (Defendant’s Response, Ex. 110). Plainly, neither of these charges provides any notice of alleged class-wide violations of Title VII, nor any suggestion of the scope of any proposed class of Title VII complainants. Thus, at the time Plaintiffs brought this suit, neither Defendant nor the EEOC could have found in the existing EEOC charges any indication of an alleged class-wide policy or practice of discrimination or retaliation.

Plaintiffs propose two ways around this dilemma. As noted earlier, the exhaustion of administrative remedies, including the receipt of a right-to-sue letter, is not a jurisdictional requirement, but only a condition precedent to bringing a Title VII action. See Rivers, 143 F.3d at 1032. As a corollary to this principle, the courts have found that a failure to obtain a right-to-sue letter before bringing suit may be cured through the doctrine of “equitable modification,” particularly where, as here, the plaintiff receives a right-to-sue letter within a short time after the Title VII action is brought.

See, e.g., Forehand v. Florida State Hosp., 89 F.3d 1562, 1567-70 (11th Cir.1996); cf. Puckett, 889 F.2d at 1486-88 (assuming, without deciding, that the doctrine of equitable modification is available, but declining to apply it in that case). Thus, Plaintiffs suggest that one or more of the four EEOC charges filed by the named Plaintiffs after the commencement of this suit can serve as the “representative charge” in support of a Title VII class action, where the EEOC apparently provided right-to-sue letters in response to these four charges soon after Plaintiffs filed their initial complaint.

Next, Plaintiffs invite the Court to overlook the “technicalities” of filing an EEOC charge and obtaining a right-to-sue letter before bringing suit, where the larger purposes behind the exhaustion of remedies requirement purportedly have been served here. Neither of Plaintiffs’ proposals suffices under the circumstances of this case.

As an initial matter, the Court observes that Plaintiffs’ appeal to their post-litigation EEOC filings would have far greater force if these charges — which, apparently, were prepared in consultation with Plaintiffs’ counsel — expressly and unmistakably included class-wide allegations of discrimination or retaliation. In fact, the charges are somewhat lacking in this regard. One of them, filed by Plaintiff Rhonda MacDonald, asserts wholly individual claims, and includes absolutely no allegations that any co-workers have been subjected to any form of discrimination or retaliation.

The remaining charges fail to identify any common or widespread corporate policy or practice under which employees have suffered class-based discrimination or retaliation. Rather, they simply allege that other co-workers, in addition to the complainant, have experienced instances of sexual harassment.

Some courts have questioned whether the mere mention of other employees who also have allegedly been victims of discrimination is sufficient to provide notice of class-based claims, where the relevant EEOC charges fail to identify any policies or practices applicable to a class of employees, or any issues in common across a class of potential complainants. See Hoffman, 50 F.Supp.2d at 400-01; Kresefky v. Panasonic Communications & Systems Co., 169 F.R.D. 54, 59-60 (D.N.J.1996).

In any event, even assuming that the post-litigation EEOC charges in this case could be read as identifying, or at least suggesting, some form of class-wide discrimination, Plaintiffs still must provide some basis for relieving them of the obligation to bring such class-wide allegations to the attention of the EEOC and Defendant before filing this suit. Stated differently, it is Plaintiffs’ burden to show why the Court should invoke the doctrine of equitable modification to cure their premature commencement of a Title VII class action. See Forehand, 89 F.3d at 1571.

The outcome of this inquiry depends upon the extent to which Plaintiffs have frustrated the purposes behind the statutory precondition of exhaustion of administrative remedies. It appears, on the face of it, that Plaintiffs’ premature filing of this purported class action has wholly frustrated the principal purpose behind the exhaustion requirement— namely, “to ensure that the [EEOC] will have been afforded an opportunity to attempt conciliation and voluntary settlement, the preferred means for resolving employment discrimination suits.” Parsons, 741 F.2d at 873.

As of the date this suit was brought, only two charges had been filed with the EEOC, and neither of them provided even a suggestion of the need for class-wide investigation or conciliation. Moreover, Plaintiffs have failed to point to any evidence that the EEOC actually conducted any such class-wide investigation. In fact, the record suggests just the opposite, where (

i) it appears that only the first of the six charges brought by the named Plaintiffs resulted in any sort of EEOC investigation; (ii) the second was promptly dismissed as untimely; (iii) the remaining four charges were filed only after this suit was brought; and (iv) right-to-sue letters evidently were issued within less than a month after these last four charges were filed.

Although Plaintiffs should not be held accountable for any failure by the EEOC to properly investigate their claims, see Forehand, 89 F.3d at 1570-71, it nevertheless is their burden to show that they sought and cooperated in such an investigation, and that it was the EEOC which declined to pursue the matter. Plaintiffs have not provided any evidence that might support such a finding. Instead, Plaintiffs offer two reasons why, in their view, they fulfilled the goals behind exhaustion of remedies.

First, they argue that Defendant and the EEOC were provided with adequate and reasonably timely notice of class-based claims, thereby affording them a sufficient opportunity to investigate and seek a voluntary resolution of these claims on a class-wide basis. In support of this proposition, Plaintiffs point to the facts that (

i) five of the six EEOC charges were filed at around the same time, and all six were filed within a few months; (ii) this case was filed as a putative class action while the last four of these charges still were pending before the EEOC; (iii) all six Plaintiffs had received right-to-sue letters by the time they filed their amended complaint on January 12, 2000; and (iv) after this suit was brought, some of the named Plaintiffs filed supplemental EEOC charges that specifically referenced this pending class action.

The common thread underlying all of this, however, is that Defendant was given notice of class-based claims only after this suit was brought. To be sure, any post-litigation EEOC filings potentially provide an opportunity for expanded administrative investigation and renewed attempts at conciliation and voluntary settlement.

Yet, to hold that this opportunity, standing alone, is enough to satisfy the exhaustion requirement would be to utterly vitiate this requirement, because it always would be possible, in any case, to file some sort of post-litigation EEOC charge that, in theory, could provide another opportunity for administrative conciliation and settlement, notwithstanding the pending lawsuit. By requiring that this process generally must be exhausted prior to suit, Congress presumably recognized that the dynamics of conciliation and voluntary settlement are likely to change upon the commencement of litigation. Cf. Kloos v.

Carter-Day Co., 799 F.2d 397, 400-01 (8th Cir.1986) (reasoning that “employers might be expected to be more willing to participate in the conciliation process if they are aware of a potential class action”). In any event, regardless of what Congress might have anticipated, statutory requirements should not be so readily discarded, based solely upon a suggestion that the purposes behind them might be achieved through a different route. Next, Plaintiffs endeavor to show that the EEOC had actual notice of class-based claims before this suit was brought.

Specifically, they offer the affidavit of their counsel, Richard Mack, stating (

i) that, in connection with Plaintiff Marquis’s EEOC charge, he informed the EEOC investigator in approximately July of 1999 “about two other women who have been subjected to sexual harassment and a hostile environment” at Defendant’s plant; and (ii) that, in connection with Plaintiff Swain’s EEOC charge, he informed the EEOC investigator in late October or early November of 1999 that “several other women wished to pursue claims of sexual harassment through the EEOC, and that if a right to sue letter was issued by the EEOC, we would be filing a lawsuit as a class action on behalf of all female employees at the plant.” (Plaintiffs’ Reply Br., Ex. 2, Mack Aff. at ¶¶ 2-3.) However, the first of these two statements is simply too vague to substitute for concrete allegations of class-wide discrimination, and the second can just as readily be construed as inviting the EEOC to promptly issue a right-to-sue letter as seeking a full-scale EEOC investigation of class-wide discrimination at Defendant’s plant.

In any event, the Court declines to use the exhaustion requirement as a springboard to extensive litigation of what the EEOC knew and when it knew it. Rather, as the Seventh Circuit has stated, “it is not the scope of the actual investigation pursued that determines what complaint may be filed, but what EEOC investigation could reasonably be expected to grow from the original [charge].” Schnellbaecher, 887 F.2d at 128.

Thus, “although the investigation may help define the scope of the charge, it is primarily the charge to which [the courts] look in determining whether the scope requirement is satisfied.” 887 F.2d at 127; see also Kloos, 799 F.2d at 400 (“Allowing class actions without administrative charges that fairly anticipate class claims would undermine the notice and conciliation purposes of the filing requirement.”). As noted, the two pre-litigation charges in this case could not reasonably be expected to have led to an investigation of class-wide discrimination.

Nor do the “hints” of Plaintiffs’ counsel as to “more to come” suffice to convey to the EEOC the need to conduct such a wide-ranging investigation. Finally, nothing in the record suggests that the EEOC picked up this hint and actually conducted such an investigation.

Consequently, in the absence of any evidence that Plaintiffs satisfied the statutory requirement of exhaustion of administrative remedies, or that the purposes behind this requirement otherwise were achieved in this case, the Court finds that Plaintiffs’ failure to exhaust their administrative remedies before bringing suit, with respect to their class-based allegations of discrimination and retaliation, precludes them from proceeding with a Title VII class action. 3.

Plaintiffs Have Failed to Satisfy the Standards of Rule 23 Alternatively, even if Plaintiffs had exhausted their administrative remedies before commencing this putative class action, Defendant asserts that Plaintiffs have failed to meet their burden of establishing that class certification is warranted under Rule 23. The Court agrees. As noted earlier, in order to satisfy the dictates of Rule 23, Plaintiffs must first establish the four prerequisites of subsection (

a) of that Rule, and then must show that their proposed action qualifies under at least one of the three subdivisions of subsection (b) . Beginning with the first of these inquiries, the four elements of Rule 23(a) “have been given the shorthand designations of ‘numerosity, commonality, typicality, and adequacy of representation.’ ” Fuller, supra, 168 F.R.D. at 595 (citation omitted). As will soon become clear, Plaintiffs’ showing as to at least three of these four elements is woefully inadequate. (

a) Numerosity Turning first to numerosity, Rule 23(

a) requires that the proposed class be “so numerous that joinder of all members is impracticable.” There is “no strict numerical test for determining impracticability of joinder,” In re American Medical Systems, su pra, 75 F.3d at 1079, and, as Plaintiffs point out, “classes with as few as twenty-five or thirty members have been certified by some courts,” Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). However, “[t]he mere allegation that the class is too numerous to make joinder practicable, by itself, is not sufficient to meet this prerequisite.” Fleming v.

Travenol Laboratories, Inc., 707 F.2d 829, 833 (5th Cir.1983). Instead, “a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Zeidman, 651 F.2d at 1038. In general, the numerosity inquiry “requires examination of the specific facts of each case,” In re American Medical Systems, supra, 75 F.3d at 1079 (internal quotations and citations omitted), and turns upon such factors as the dispersion of class members across a wide geographic area and the ease of identifying class members, see Andrews v.

Bechtel Power Corp., 780 F.2d 124, 131-32 (1st Cir.1985). Initially, the Court observes that its task has been made considerably more difficult by Plaintiffs’ utter failure to offer even an approximate definition or scope of the putative class they seek to represent.

Their complaint suggests broadly, and rather unhelpfully, that they have brought this suit “on behalf of all other persons who have been the subject of harassment, discrimination[,] retaliation and a retaliatory hostile environment by Defendant Tecumseh’s common discriminatory policies.” (Second Suppl. and Amended Class Action Complaint at 1197.) This statement, by its plain terms, is not limited to particular forms of harassment, discrimination, or retaliation, nor does it identify the “common discriminatory policies” that might unite the claims of the putative class.

Moreover, Plaintiffs’ present motion fails to supply many of the missing particulars; while it can safely be said that the putative class is made up primarily of alleged victims of the hostile work environment form of sexual harassment, there is no indication, for example, of any temporal limit to the class claims, nor whether the putative class members were employed at a particular facility, within one or more particular departments, in particular job classifications, or the like.

Thus, the Court is not without sympathy for Defendant’s complaint that it has been placed “in the untenable position of guessing how Plaintiffs will define their class and then attacking the definition that it has guessed might be used.” (Defendant’s Response Br. at 3 n. 7.) More specifically, turning to the issue of numerosity, Plaintiffs’ entire analysis of this issue is as follows: Here, without question, the numerosity requirement is easily met. The class is sufficiently numerous to make joinder impracticable, if not impossible.

Thus, the numerosity requirement is clearly satisfied. (Plaintiffs’ Motion, Br. in Support at 28.) Elsewhere, at the outset of their motion, Plaintiffs suggests that the putative class numbers in the “hundreds,” (id. at 1), without in any way indicating how this estimate was derived. In short, the Court begs to differ with Plaintiffs’ bald assertion that they have “clearly satisfied” the prerequisite of numerosity; it is equally clear to the Court that they have not met their burden on this element.

Nevertheless, in an effort to evaluate an argument that Plaintiffs have not made, the Court offers some tentative guesses as to the nature and scope of Plaintiffs’ putative class. The Court assumes, for present purposes, that the “common policy” referenced in Plaintiffs’ complaint derives from Defendant’s allegedly systematic failure to properly address and take action on charges of sexual harassment.

In this view, the putative class might consist of all female employees — perhaps employed in Defendant’s Tecumseh Division, or in its Compressor Facility, or in some more limited area or department — whose complaints of sexual harassment were ignored or inadequately addressed by management, as well as, perhaps, those female employees who were sexually harassed, but who determined, in light of Defendant’s alleged policy of neglect, that complaints would be futile.

Even under these assumptions, the Court is no closer to resolving the numerosity inquiry, where Plaintiffs have not identified how long Defendant’s purported policy has been in place, how many complaints have been lodged during this time frame, or many other relevant figures — all of which seemingly are known, discoverable, or fairly readily estimable.

Indeed, Plaintiffs have failed to supply even such basic information as the number of female employees in the Tecumseh Division and its various departments and subdivisions, much less offered any estimate as to how many of these employees might have been the target of hostile work environment sexual harassment. The most directly relevant materials provided by Plaintiffs are a series of affidavits from some of Defendant’s current and former employees, outlining incidents of sexual harassment they have experienced.

By the Court’s count, these affidavits identify 27 additional alleged victims of sexual harassment, in addition to the 6 named Plaintiffs. Assuming, then, that each of these affiants is a member of the putative class, the class could be viewed as having at least 33 members. Yet, there is no way of knowing, and Plaintiffs fail to suggest a means for determining, whether this is only the “tip of the iceberg,” or whether Plaintiffs’ affidavits identify most or all of the members of the putative class.

If the latter, a group of roughly 30 known individuals, all of whom are or were employed at a single facility, seemingly does not present insurmountable, or even “impracticable,” issues of joinder. See Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980) (finding that the requirement of numerosity was not satisfied, where the putative class consisted of 31 individuals whose “identity and addresses were readily ascertainable,” and who “lived in a compact geographical area”). Accordingly, the Court holds that Plaintiffs have failed to meet then-burden of establishing numerosity under Rule 23(a). (

b) Commonality Next, the “commonality” element of Rule 23(

a) requires that there be “questions of law or fact common to the class.” Complete identity of issues is not required; rather, it is enough if the resolution of one particular issue will affect all or a significant number of the members of the putative class. Fuller, 168 F.R.D. at 595-96. For example, “[w]here the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.” 168 F.R.D. at 595 (internal quotations and citation omitted).

Yet, “not every common question ... will suffice,” because “at a sufficiently abstract level of generality, almost any set of claims can be said to display commonality.” Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998). “What we are looking for is a common issue the resolution of which will advance the litigation.” 133 F.3d at 397. Once again, Plaintiffs’ “showing” on this prerequisite is vague and highly conclusory: Here, there are several common issues of law and fact.

The most overriding common issues are the pattern or practice of unwelcome pervasive sexual harassment, Tecumseh’s policy of tolerating sexual harassment, and whether Tecumseh’s purported policy on anti-harassment was “both reasonably designed and reasonably effectual.” The central inquiry for this claim focuses on “the landscape of the total work environment rather than the subjective experience of each individual claimant.” (Plaintiffs’ Motion, Br. in Support at 29-30 (citations omitted).) This argument is noteworthy not just for its brevity, but for its mischaracterization of the governing law.

Regarding the first “common issue” identified by Plaintiffs, and as discussed in greater detail below, it is not required that a plaintiff in a sexual harassment suit show that such harassment is “pervasive” throughout the workplace or part of a “pattern” of discrimination; rather, she need only establish that the conduct in question created a hostile work environment for her. See Williams v. General Motors Corp., 187 F.3d 553, 560-61 (6th Cir.1999).

To be sure, if Plaintiffs can demonstrate that Defendant’s corporate policies led to a plant-wide hostile work environment for all female employees, then this showing will sustain most or all of their claims of sexual harassment. Yet, none of the named Plaintiffs need go so far to prevail on her own claims of unlawful discrimination. Similarly, Defendant’s purported tolerance of sexual harassment in the work place and the alleged ineffectiveness of its antidiscrimination policies are not necessarily common elements of all of the claims advanced by the named Plaintiffs.

In particular, to the extent that Plaintiffs’ claims rest upon the actions of supervisors, they need no longer show, under the most recent Supreme Court precedents, that the supervisor’s harassing conduct was foreseeable, or that the employer failed to take corrective action; rather, it is the employer who must show, as an affirmative defense, that it took reasonable steps to prevent and correct any harassment by its supervisory employees. See Williams, 187 F.3d at 560-61. Once again, then, Plaintiffs have identified “common issues” that are not essential to at least some of their claims.

Nevertheless, the Court recognizes that common issues need not pervade the litigation, and that the commonality test “is qualitative rather than quantitative.” In re American Medical Systems, 75 F.3d at 1080 (internal quotations and citation omitted).

Thus, if the Court were to certify a putative class consisting of all female employees at Defendant’s Compressor Facility who were subjected to co-worker sexual harassment within a given time period, there potentially would be a common issue as to whether Defendant “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.” Williams, 187 F.3d at 561 (internal quotations and citations omitted).

Even here, the outcome of this inquiry would not necessarily be the. same as to all putative class members and their claims — after all, Defendant could be charged with knowledge of some incidents of harassment and not others, or could have adopted appropriate corrective measures in some cases and not others.

Yet, if Plaintiffs’ allegations prove true, Defendant’s anti-harassment policies could be deemed so inadequate (or even nonexistent), and its implementation of these policies so ineffectual, that one Plaintiffs showing on this issue would establish this necessary element of the claims of every class member, as least with regard to complaints of co-worker harassment. Plaintiffs’ allegations and preliminary showing on this point persuade the Court that the requirement of commonality is present in this case. (

c) Typicality To satisfy the “typicality” prong of Rule 23(a), Plaintiffs must show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” “The premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class.” Sprague, 133 F.3d at 399.

While the “commonality” and “typicality” inquiries overlap to a degree, this Court previously has explained that these prerequisites “focus[ ] on two distinct questions”: Under the commonality prong, a court must ask whether there are sufficient factual or legal questions in common among the class members’ claims to make class certification economical and otherwise appropriate. In contrast, under the typicality prong,-a court must ask whether, despite the presence of common questions, each class member’s claim involves so many distinct factual or legal questions as to make class certification inappropriate ....

In short, commonality focuses on similarities, while typicality focuses on differences. Fuller, 168 F.R.D. at 597-98. Plaintiffs’ argument on this point has a familiar ring to it: Here, the claims of the individual Plaintiffs are clearly typical of those of the class. The class representatives are victims of sexual harassment and a hostile work environment at Tecumseh’s plant. Their claims of a pervasive hostile work environment at Tecumseh’s plant and Tecumseh’s failure to take measures to prevent sexual harassment are typical of those of the class.

As such, Plaintiffs’ theories of liability and theories of relief are identical to [those of] other class members. The proposed class representative[s] meet[ ] the Typicality requirement of Fed.R.Civ.P. 23. (Plaintiffs’ Motion, Br. in Support at 31.) Apparently, then, under Plaintiffs’ analysis, the very same issues are both common to and typical of the claims of the putative class members. Not content to identify merely a single or a few issues in common across all claims, Plaintiffs seemingly assert that all or nearly all of the same issues pervade the claims of the putative class members.

Alternatively, Plaintiffs could be viewed as arguing, much more modestly, that the claims of the class representatives are typical only in their legal theories. Under this analysis, of course, any claim of sexual harassment asserted by any one of Defendant’s employees would be “typical” of the sexual harassment claims advanced by any of her co-workers. Regardless of what Plaintiffs might be arguing, the Court readily concludes that they have failed to meet their burden of establishing the typicality of their claims. Indeed, there are substantial differences even among the claims asserted by the named Plaintiffs.

Although there is a degree of overlap in these claims — for example, Marquis, Richmond and Swain all have complained about the conduct of co-worker Bob Soto; Richmond, Swain and MacDonald all claim that they were sexually harassed by supervisor Larry Carson; and Marquis, Richmond, Swain and Conrad all have made allegations of inappropriate statements or conduct by Human Resources Director Ike Growe — even these overlapping allegations often differ in their particulars, such as time frames, severity or pervasiveness of the conduct in question, and the employment relationship between the perpetrator and the victim.

To cite one example, Marquis and Richmond mention only a single inappropriate remark by Growe, while Conrad alleges that Growe inappropriately touched her on several occasions over a period of months. Upon reviewing Plaintiffs’ affidavits of other putative class members, the Court discovers that their allegations share these same features with those of the named Plaintiffs— some “repeat players” (e.g., Bob Soto, Sam Faz, Larry Carson, Jesse Higgins), but also some allegations that appear to be unique to that individual.

For example, the affidavit of Sharon DeGroot makes allegations of sexual harassment by a co-worker identified only as “Tony” over portions of 1998, and more generally cites offensive statements and sexual signs placed on the backs of female employees over an unspecified period of time and in unidentified portions of the plant.

As another example, the affidavit of Sally Hahn includes allegations of sexual harassment in the Housing Department by co-worker Claudio Sanchez in the 1994-98 time frame, but neither Sanchez nor, so far as the Court can tell, the Housing Department appears in the allegations of any other putative class member. Moreover, turning to the alleged incidents of harassment that are the principal focus of the named Plaintiffs’ claims, the Court is struck by the idiosyncracies and crucial questions of fact presented in each case.

Patricia Marquis, for example, has acknowledged that much of co-worker Bob Soto’s misconduct toward her went unreported to management, and that, when Ike Growe looked into the matter, she advised him that she could “handle things myself,” and that she did not wish to pursue a formal complaint. Regarding Annette Richmond’s allegations of co-worker harassment in the summer of 1999, these coworkers claim that Richmond instigated the altercations by making disparaging remarks about them and their families.

Similarly, Erika Swain’s claim arising from the sexually explicit tape of her and co-worker Chris Stoddard will turn in part on whether she or someone else informed other employees of the existence of this tape, and the trier of fact also will be presented with evidence that senior management took prompt action upon learning that two supervisors had viewed the videotape. As discussed in detail below, there are questions of fact as to whether the harassment of Rhonda MacDonald by her estranged husband was attributable to considerations of sex or to personal animosity.

In short, it appears from the record that each of the named Plaintiffs faces one or more significant obstacles in establishing her principal claim of sexual harassment, and that these claims, even among just the six named Plaintiffs, feature a wide variety of distinguishing circumstances. By citing these differences, the Court does not mean to suggest that widespread and pervasive sexual harassment may evade the reach of a class action by virtue of the inevitable distinctions between one employee’s experiences and another’s.

Rather, the point is that the claims and allegations of the named Plaintiffs here, by and large, rest upon discrete misconduct by identifiable bad actors, and not upon a general, pervasive atmosphere of offensive remarks or objectionable materials within a particular area or department.

Thus, for example, Plaintiff Richmond might successfully show that she was sexually harassed by supervisor Larry Carson or Sam Faz, without in any way advancing the claims of those putative class members who allegedly were subjected to a more generalized hostile work environment by unnamed and unknown co-workers in an altogether different area of the plant.

Alternatively, as another example, Plaintiff Conrad’s claims involving Ike Growe might fail because she did not report these incidents to management or the union, or because Growe’s conduct is found by the trier of fact to be insufficiently severe or pervasive to create a hostile work environment, yet this would in no way bear upon the determination whether other workers were subjected to a hostile work environment.

At a minimum, it would be necessary to group the putative class members into several subclasses, taking into account such considerations as work area, job classification, and time frame, yet Plaintiffs have failed to propose any groupings that might satisfy the prerequisite of typicality. In arguing that the claims of the named Plaintiffs are, in fact, typical of the class claims, Plaintiffs rely principally on the decision in BreMiller v. Cleveland Psychiatric Institute, 195 F.R.D. 1 (N.D.Ohio 2000).

In that case, the named plaintiff, Susan BreMiller, cited a variety of alleged instances of sexual harassment by co-workers and supervisory personnel, culminating in an incident where a co-worker cornered her in a room, threatened to rape her, and pulled a gun on her. In rejecting the defendant’s argument that BreMiller’s claims were not typical of the class, both because her alleged injuries were “more severe than those of the o

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