Judge: Gender discrimination case against University of Montana not a “class action” — yet

Federal District Judge Brian Morris won’t certify a lawsuit by plaintiffs alleging gender discrimination at the University of Montana as a class-action case just yet because he said their claims are too broad, but he left the door open to the possibility in the future.

In a ruling this week, Morris said the women may petition the court again if they identify more evidence.

“The Court believes it appropriate to permit Plaintiffs’ ‘a second bite at the class certification apple,’ given the importance of the issues in this case and the previously discussed evidentiary difficulties discrimination cases present,” wrote Morris, with the U.S. District Court of Montana in Great Falls.

The judge has said, and repeated in Monday’s order, that discrimination cases rarely uncover “smoking gun evidence.” But so far, he said plaintiffs “have not provided ‘significant proof’ that Defendants acted under a general policy of discrimination,” and the women also make only an “overarching allegation of discrimination,” where the court requires common specific facts.

In August 2021, three former high-ranking UM officials and one current faculty member sued the university and Montana University System alleging discrimination based on gender — in violation of federal civil rights law.

Since the four women filed the lawsuit alleging a “good ol’ boy” mentality that hurt women at UM, 12 additional women joined the case. In court filings, the plaintiffs have said as many as 76 women in all have contacted them or their lawyers with claims of gender discrimination.

Courts generally allow similar allegations by different plaintiffs to be bundled together under specific circumstances to save time and money. According to the order Monday, bundling cases into a “class” means a judge can resolve common allegations “in one stroke” if people have suffered “the same injury.”

But the circumstances for finding allegations similar enough are specific, and the facts available in this case aren’t enough at this point, according to the order. In the order, Morris noted the U.S. Supreme Court said so it’s no longer enough for possible members of the class to have been injured under the same law: “Broad allegations of discrimination prove insufficient.”

“Plaintiffs’ claims all point to the same cultural infirmity allegedly present within UM and MUS,” the judge said. “Plaintiffs’ claims appear too disparate, however, to be resolved in one stroke. Plaintiffs have failed to identify an employment practice that ties together the putative class members to satisfy the U.S. Supreme Court’s reasoning.”

The original four plaintiffs are Mary-Ann Sontag Bowman, faculty member in social work, and former UM officials Catherine Cole, Barbara Koostra and Rhondie Voorhees. The lawsuit names as defendants UM, MUS, and John Does 1-50.

Currently, the judge said, plaintiffs allege different injuries under Title IX, which prohibits discrimination based on sex. For example, Cole, the former vice president of enrollment, alleges “disparate treatment” forced her to resign, but faculty member Sontag Bowman alleges her own advocacy against discrimination on campus has led to “retaliation.”

The order noted “retaliation” is a different theory of discrimination under Title IX than “disparate treatment.”

The judge also noted the “uniquely harsh nature of the standard” to have to provide significant proof upfront in a discrimination case because discrimination is usually “‘hidden under a veil of self-declared innocence.’” But he also wrote about ways a class might emerge going forward. 

To certify the class, the judge said the court would need additional specific information that ties the cases together, and he said subgroups of plaintiffs also are possible. But the plaintiffs haven’t provided adequate details so far.

“Plaintiffs have failed to identify specific facts the Court could use to unite either the actions of Defendants as to each class member or the injuries class members have suffered,” the judge said.