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United States District Court, N.D. Illinois

March 23, 2004.

OLIVER DEAN, on behalf of himself and all African-American persons similarly situated, Plaintiff

The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge


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. ยง 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. Page 2


  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.

  A. Numerosity

  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 Page 3 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.

  B. Commonality

  The commonality requirement is generally satisfied by "a common nucleus of operative fact." Keele v. Wexler, 149 F.3d 589, Page 4 594 (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 Page 5 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 even apply.

  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 Page 6 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 Page 7 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 Page 8 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).


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