United States District Court, N.D. Illinois
March 23, 2004.
OLIVER DEAN, on behalf of himself and all African-American persons similarly situated, Plaintiff
INTERNATIONAL TRUCK AND ENGINE CORPORATION, f/k/a NAVISTAR INTERNATIONAL CORPORATION, Defendant
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Oliver Dean sued defendant International Truck and Engine
Corp. ("International"), alleging that the use of a lottery system to
distribute employment applications had a disparate impact on
African-American would-be applicants in violation of Title VII,
42 U.S.C. § 2000e et seq. The lottery system was in use from September
1997 until July 2001.*fn1 Mr. Dean now moves to certify a class
encompassing all African-Americans who have or will seek employment with
International but are denied the opportunity so by the lottery system. I
GRANT the motion.
In order to certify a class, I must determine that the four
prerequisites of Fed.R.Civ.P. 23(a) are met, and that the action is
maintainable under Fed.R.Civ.P. 23(b)(1), (2), or (3). The four
prerequisites of Rule 23(a) are that (1) the proposed 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 of the representative
parties are typical of the claims of the class, and (4) the representative
parties will fairly and adequately protect the interests of the class.
With respect to Rule 23(b), Mr. Dean here proceeds under 23(b)(2), which
requires that the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate
injunctive or declaratory relief with respect to the class as a whole.
Mr. Dean bears the burden of proving that the proposed class meets all
the requirements of Rule 23.
International argues that Mr. Dean cannot meet the numerosity
requirement. This requirement is met when the number of potential
plaintiff class members is so great as to make joinder of all plaintiffs
impracticable. See, e.g., In re: Bank One Sec. Litig./First Chicago
S'holder Claims, No. 00-C0767, 2002 WL 989454, at *3 (N.D. Ill. May 14,
2002). International kept no records of its applicants or would-be
applicants. Mr. Dean therefore
estimates the number of potential class members, basing his estimate on
numbers provided by Karl Knecht, a senior human resource manager for
International. Mr. Knecht stated that during the lottery period, 167
positions subject to the lottery were filled. Mr. Knecht also estimated
that prior to the lottery period, International received approximately 10
applications for each open position. Taking those two numbers, Mr. Dean
estimates a total potential applicant pool of 1,670 for the lottery
period. International and Mr. Dean disagree on what percentage of that
pool would have been African-American, but even using International's much
lower estimate, 11 percent or 183 of the potential applicants are
estimated to have been African-American.*fn2
This estimate consists of a sufficient number of potential class
members to satisfy the numerosity requirement. The need to estimate those
class members also points out the impracticability of joinder in this
case. International kept no records of its applicant pool. It is
unreasonable to expect that Mr. Dean would now be able to individually
identify each potential class member for purposes of joinder. The
numerosity requirement is met.
The commonality requirement is generally satisfied by "a common nucleus
of operative fact." Keele v. Wexler, 149 F.3d 589,
594 (7th Cir. 1998). Here, common questions of law and fact revolve
around International's use of the lottery application system, namely
whether that system had a disparate impact on African-Americans who
attempted to or wished to apply for employment. This is sufficient to
satisfy the commonality requirement. See Swanson v. Wabash, Inc.,
577 F. Supp. 1308, 1323 (N.D. 111. 1983).
International argues that Mr. Dean's deposition testimony establishes
that he is really pursuing a disparate treatment claim and cannot
therefore establish common questions of law and fact with the disparate
impact claim put forth by the class. However, Mr. Dean's claim was and is
that the lottery system used by International had a disparate impact on
African-American would-be applicants. Even if his testimony somehow
established a disparate treatment claim, his disparate impact claim is
not undermined. The commonality requirement is met.
C. Typicality and Adequacy
International makes a number of arguments that Mr. Dean cannot meet the
typicality or adequacy of representation requirements of Rule 23(a).*fn3
As these arguments address both the typicality and
adequacy requirements, I will consider these prongs together. See
Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999).
To meet the typicality requirement, Mr. Dean must be a member of the
class and "possess the same interest and suffer the same injury" as the
class. Gen. Telephone Co. v. Falcon, 457 U.S. 147, 156 (1982). Mr. Dean
is a member of his proposed class, an African-American who wished to seek
employment with International but who could not obtain an application
because of the lottery system. His interests and injury are the same as
the rest of the class; he wanted to work for International but could not
International makes three arguments that Mr. Dean is not a typical and
adequate representative of the proposed class. First, it argues that Mr.
Dean's claims are time-barred. Second, it argues that Mr. Dean's alleged
injuries are not of the same type as allegedly suffered by the proposed
class members. Third, it argues that Mr. Dean's interests conflict with
those of the proposed class members. International first argues that Mr.
Dean's claim is time-barred, making him an inadequate representative for
the class. However, this issue has already been addressed by this court.
In my Minute Order of May 21, 2002, I found that Mr. Dean's claim was
not time-barred, as he was able to "piggyback" onto another plaintiff's
timely filed EEOC charge for purposes of his own claim.*fn4" I will not
revisit this argument.
International also argues that Mr. Dean's alleged injury is not the
same as the alleged injuries of the class members. As Mr. Dean has a
relative working for International, he has the potential to receive an
application through the lottery system. The putative class members likely
do not have any friends or relatives working for International, and so
would have no chance at all to receive an application for employment.
Mr. Dean's claim is that he and other class members were denied an
opportunity to apply for employment with International. The fact that some
class members, Mr. Dean among them, may have had a better chance of
getting an application than other class members because they knew someone
at International, does not change the alleged disparate impact the
lottery system had on African-Americans.
International finally argues that Mr. Dean's interests conflict with
those of the putative class members. Mr. Dean seeks prospective
injunctive relief, back pay, and other equitable relief on behalf of the
class, while allegedly pursuing damages claims on his own behalf. This,
however, is not Mr. Dean's choice. The Civil Rights Act of 1991 limits
compensatory and punitive damages
to cases where intentional discrimination is alleged. Kolstad v. American
Dental Ass'n, 527 U.S. 526, 531 (1999). In a disparate impact case, no
such damages are available either to Mr. Dean as an individual or to the
class as a whole.
Further, if the class is successful, only a small number of jobs will
be available as part of the remedy. As Mr. Dean seeks to be hired for one
of those jobs, International argues that he cannot adequately represent
the class as his interests are in conflict with theirs. In any Title VII
class action where jobs are sought as a remedy, the number of jobs
available is likely to be smaller than the number of class members. Mr.
Dean is an adequate class representative unless a conflict exists that
"goes to the very subject matter of the litigation." Wilfong v.
Rent-A-Center, Inc., No. 00-C0680, 2001 WL 1795093, at *25 (S.D. Ill.
Dec. 27, 2001). The inevitable conflict that arises when there are more
class members than potential jobs is not such a conflict. Mr. Dean is a
typical and adequate class representative.
Mr. Dean argues that International 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." FED. R. CIV. P. 23(b)(2). In addition to
injunctive or declaratory relief, Mr. Dean also seeks remedies such as
front pay, back pay, and jobs for
the class. Such forms of relief are equitable and do not remove this
action from the bounds of Rule 23(b)(2). Jefferson v. Ingersoll Int'l
Inc., 195 F.3d 894, 896 (7th Cir. 1999). Actions such as this one,
challenging the discriminatory practices of employers, remain classic
examples of Rule 23(b)(2) cases. Id. Mr. Dean meets the requirements for
certification of a class under Rule 23(b)(2).