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ELLIS v. ELGIN RIVERBOAT RESORT

August 21, 2003

LISA ELLIS, ET AL., PLAINTIFFS,
v.
ELGIN RIVERBOAT RESORT, ET AL., DEFENDANTS



The opinion of the court was delivered by: Martin Ashman, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiffs, Lisa Ellis, Marcia English, Yvonne Mason and Derrick Denson (collectively referred to as "Ellis" or "Plaintiffs"), filed a putative class action suit alleging that the defendants, Elgin Riverboat Resort d/b/a Grand Victoria Riverboat, Nevada Landing Partnership, and RBG, Ltd. (collectively referred to as "Elgin") engaged in a pattern and practice of discriminatory hiring based on race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. For relief, Ellis requested both declaratory and injunctive relief, as well as back pay and benefits for the named plaintiffs. On March 27, 2000, Judge Gottschall certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2). Presently before this Court is Elgin's motion to decertify the class or to limit the scope of the class to those applicants whom Grand Victoria invited to audition for a dealer position.*fn1 [ Page 2]

II. Background

Grand Victoria is a state-licensed gambling facility located in Elgin, Illinois. It employs approximately four hundred dealers, all of whom deal at least one of the following games: craps, blackjack and roulette, as well as games such as baccarat and Caribbean stud poker. Prospective dealers may apply to the casino in a number of ways: after retrieving a written application from the Human Resources Department or from an adjacent building (until November 2002), applicants may return the application to a Human Resources clerk, drop the application in a designated drop box on the boat or in the accounting hallway, or return the application by mail. (McGill Aff. ¶ 4.) Beginning in July 2001, applicants could complete the application online.(Id.).*fn2

When a Human Resources clerk receives a written application directly from an applicant, the clerk completes a Pre-Employment Screening Tool, which asks for the applicant's name, whether the applicant has previously applied to or been employed at the Grand Victoria and if so, the date of such application or employment. The Screening Tool further requires clerks to rate, on a scale of 1-5, their impression of the applicant on whether the applicant seems friendly, helpful, courteous, eager to please, and whether the applicant presents a neat and clean appearance. [ Page 3]

Thereafter, clerks process the applications and forward them to a Human Resources manager for initial screening.*fn3 Over the course of the class period three assistant managers have been responsible for screening, each of whom determined whether the application was complete, reviewed the applicant's job history including prior employment with Grand Victoria, and looked for large unexplained gaps in the applicant's employment history. Beyond these characteristics, individual screeners focused on different aspects of the application when evaluating the applicant: Lennor Penson focused on applicants' previous employment and eligibility for rehire, while Zaara Norten focused on applicants' record of job stability. If the Human Resources manager approves the application, the department holds the application until the Casino Manager or one of his staff notifies Human Resources that the casino has openings for the dealer position. When such dealer positions become available, Casino Manager Michael Graninger further screens applications to determine which applicants he will invite to audition. Graninger, a native of Washington, D.C., reviews the second page of the application to assess the applicant's level of dealing experience and job stability. Graninger often reviewed applications with Julian Thompson, employed during the class period first as the Pit Boss and later as Shift Manager. If the applicant included on the application the name of a friend or relative who worked at Grand Victoria and referred him or her to the casino, Thompson often asked the employee whether the applicant was a skilled dealer. The referral was also important to the employee, because under the "Bring a Friend" program the referring employee received a $250 bonus for referring an applicant whom the casino hired and who remained employed for at least six months. [ Page 4]

Graninger instructed Shift Managers and, occasionally, Pit Managers to invite those applicants who survived the second level of screening to audition for a dealer position. During the class period five shift managers and at least two Pit Managers have conducted dealer auditions and independently determined which applicants pass. The decisonmakers base their decisions on the applicant's 1) knowledge of the game, procedures and payoffs; 2) neatness and accuracy in shuffling and dealing; 3) full awareness of all players at the gaming table; and 4) ability to interact well with the customers.*fn4 If the applicant passes the audition, he or she will be hired pending a drug test and a criminal background check.

On July 12, 1998, Plaintiff's Lisa Ellis and Marcia English applied in person for dealer positions at the Grand Victoria. Ellis worked for Grand Victoria twice previously, once for a period of several months in 1994 and 1995, and again for one week in December 1995. Shortly after applying, Ellis received notice that Grand Victoria rejected her application and would keep her application on file for thirty days. On August 11, 1998, Ellis spoke with Pit Boss Kevin Schmieder, who advised her that dealer positions were available and suggested that she attend the dealer auditions the following day. He instructed Ellis to inform Julian Thompson that Schmieder told her to audition despite her initial rejection.

Within a few days of applying, English received an invitation from Thompson to audition at the casino. English informed Thompson that she worked as a full-time Chicago public school [ Page 5]

teacher and therefore requested only part-time employment. Thompson told her that was okay and instructed her to audition anyway.

On August 12, 1998, Ellis and English arrived with Plaintiff Yvonne Mason to audition for dealer positions. Mason had not yet submitted a written application, but knew Thompson and hoped that he would permit her to audition that day. Mason filled out an application and Thompson informed her that, according to Grand Victoria's rules, she could not audition on the same day she applied for employment, but that she could audition the following week. Thompson also informed Ellis that because she was not invited to the audition he would audition her last. Ellis and English auditioned with a group of four Caucasian women, one Caucasian man, and one Asian woman. The first group of auditions lasted between forty-five minutes and one hour while the second group of auditions (of which English and Ellis were a part) lasted only a few minutes, ostensibly because the casino personnel needed to board the boat.*fn5 Grand Victoria did not hire Ellis, English or Mason.

On or about November 15, 1998, Derrick Denson submitted an application and resume to a clerk in Grand Victoria's Human Resources department. Grand Victoria did not invite Denson to audition for a dealer position.

On November 6, 1998, Plaintiffs filed a complaint alleging that Elgin Riverboat Resort d/b/a Grand Victoria Riverboat, Nevada Landing Partnership, and RBG, Ltd. engaged in a pattern or practice of hiring discrimination based on race, in violation of Title VII of the Civil Rights [ Page 6]

Act*fn6 The plaintiffs sought class certification under Rule 23 of the Federal Rules of Civil Procedure. Judge Gottschall certified as a class "those African-Americans who were qualified for employment as `dealers' and applied for work as `dealers' at the Grand Victoria casino, but were not hired from December 25, 1997 to the present." However, because class size is often speculative during the early stages of litigation, Judge Gottschall certified the class on the express condition that the plaintiffs be able to satisfy Rule 23(a)'s numerosity requirement. (Order granting class certification at 7.) Finding that Plaintiffs satisfied the remainder of Rule 23(a)'s requirements, Judge Gottschall certified the class under Rule 23(b)(2). (Id. at 10.)

On February 7, 2003, after nearly three years of discovery, Defendants filed a Motion to Decertify or, in the Alternative, Modify the Class.*fn7 During discovery, Plaintiffs identified sixty class members (including the named plaintiffs) and both parties took numerous depositions of class members and Elgin employees, and propounded interrogatories.

III. Discussion

A. Standard of Review

In deciding a motion to decertify a class, the court tests whether economy favors adjudicating multiple disputes in a single action, without sacrificing fairness. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, [ Page 7]

700-01 (1979)). To proceed as a class action the plaintiffs must first establish: (1) that members of the class are "so numerous that joinder of all members is impracticable;" (2) that "there are questions of law or fact common to the class;" (3) that the claims or defenses of the class representative are "typical of the claims or defenses of the class;" and (4) that the class representative "will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a).*fn8 Further, the class representative must satisfy a provision of Rule 23(b). Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992); Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D. llI. 1988).*fn9 Failure to satisfy any of these requirements precludes class certification. Harriston v. Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (quoting Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976)). The court enjoys "broad discretion" in determining whether the plaintiffs have satisfied their burden. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998) (citing Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir. 1997)).

Initially, a court determining whether to certify a class must generally accept as true the allegations in support of certification rather than examine the merits of the case. Retired Chi. Police Ass'n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) ("Retired Police Ass'n"). However, because "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action," the court must sometimes "probe behind the pleadings before coming to rest on the certification question." [ Page 8]

Falcon, 457 U.S. at 160 (quotations omitted). Because the court must decide whether to certify a class early in the proceedings*fn10, it remains under a continuing obligation to review whether proceeding as a class action is appropriate, and may modify the class or vacate class certification pursuant to evidentiary developments arising during the course of litigation. Eggleston v. Chi Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981); Binion v. Metro. Pier & Exposition Auth., 163 F.R.D. 517, 520 (N.D. Ill. 1995) (citing Falcon, 457 U.S. at 160) (explaining that the court "remains free" to modify or vacate certification if developments in class litigation so require). Thus, the court's initial certification of a class "is inherently tentative." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 11 (1978). See also Stastny v. S. Bell Tel. & Tel Co., 628 F.2d 267, 275-76 (4th Cir. 1980) (explaining that pretrial litigation may reveal that a plaintiff cannot satisfy commonality factors, requiring the court to decertify the class); In re Gen. Motors Corp., 55 F.3d 768, 792 n. 14 (3d Cir. 1995) (noting that all class actions are necessarily "conditional" because under Fed.R.Civ.P. 23(c)(1) courts may modify or decertify a class until final judgment on the merits). The party seeking class certification bears the burden of demonstrating that initial certification is appropriate, Retired Police Ass'n I, 7 F.3d at 596, and likewise on a motion to decertify the class, bears the burden of producing a record demonstrating the continued propriety of maintaining the class action, Stastny, 628 F.2d at 277.

Ellis characterizes Elgin's motion to decertify the class or to limit the class as a motion to reconsider Judge Gottschall's class certification, which Ellis argues was conditional only with respect to numerosity. Relying on Gary v. Sheahan, 188 F.3d 891 (7th Cir. 1999) and on Best v. [ Page 9]

Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), Ellis asserts that this Court is bound by the law of the case doctrine and may only decertify the class if presented with new law or clear error. However, Ellis' reliance on Gary and Best, and on the law of the case doctrine, is misplaced. First, Gary is distinguishable because the Gary court faced a completely different procedural posture: the court did not face a motion to decertify a class but a defendant's attempted interlocutory appeal of the district court's denial of its motion to decertify the class. Gary, 188 F.3d at 893. Ellis therefore takes out of context the Gary court's labeling as a motion to reconsider the defendant's motion to decertify the class. The Seventh Circuit treated the two motions as one and the same to stress that despite the label chosen by a party, Rule 23(f)'s prescribed ten-day filing limit on interlocutory appeals still applies.

Second, Elgin's motion is not a motion to reconsider requiring a heightened standard of review under the law of the case doctrine, but is instead a motion to decertify based on evidence developed and revelations produced during three years of discovery and pretrial litigation. See Williams v. Comm'r of Internal Revenue, 1 F.3d 502, 503 (7th Cir. 1993) ("[T]he second judge may alter previous rulings if new information convinces him that they are incorrect, but he is not free to do so . . . merely because he has a different view of the law or facts from the first judge.") As previously discussed, class certification, modification, and decertification are discretionary. Rule 23 clearly requires this Court to review the propriety of class certification in light of new evidence and pretrial litigation, regardless of which judge initially certified the class. See, e.g. Toney v. Rosewood Care Center, Inc., No. 98 C 693, 2001 WL 322413, at *1-3 (N.D. Ill. Mar. 13, 2001) (on a motion to decertify the class, the court analyzed the defendant's arguments and did not employ a heightened standard in reviewing the propriety of maintaining a class which [ Page 10]

had been previously certified by a different judge).

Finally, assuming the law of the case doctrine did apply, this Court's review of the defendant's motion is appropriate. The law of the case doctrine requires the court to adhere to previous rulings absent a compelling reason, "such as an intervening change of law or newly discovered evidence, to examine them." Smithkline Beecham Corp. v. Apofex Corp., 247 F. Supp.2d 1011, 1014 (N.D. Ill. 2003) (emphasis added). Given the intervening three years of discovery between Judge Gottschall's initial class certification and the instant motion, the parties present this Court with new evidence, i.e., information regarding the ...


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