United States District Court, N.D. Illinois
May 19, 2004.
BERNARD PRUITT, LEEANNETTA BAGGETT, BILLY BORUM, DAVID DAVENPORT, EVERETT FISHER, LEANDER GIBBS, WILLIAM OLASCOAGA, ELAINE PRESTON, LAMAR RODEZ, and WILLIE ROLLING, on behalf of themselves and all others similarly situated, Plaintiffs,
CITY OF CHICAGO, DEPARTMENT OF AVIATION, Defendant
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Bernard Pruitt's, Leeannetta
Baggett's, Billy Borum's, David Davenport's, Everett Fisher's, Leander
Gibbs', William Olascoaga's, Elaine Preston's, Lamar Rodez's, and Willie
Rolling's ("Plaintiffs") motion for class certification as to Count I of
their Class Action Complaint filed against Defendant City of Chicago,
Department of Aviation ("Defendant"). Plaintiff has also filed a motion
to strike and/or exclude statements procured by Defendant from putative class members. In addition, Defendant has
filed a motion to strike certain portions of Plaintiffs' reply to their
amended motion for class certification.
For the reasons stated below, we deny Plaintiffs' amended motion for
class certification, as well as Plaintiffs' motion to strike and/or
exclude statements procured by Defendant from putative class members.
Additionally, Defendant's motion to strike is denied as moot.
Plaintiffs are African-American and Hispanic laborers who are employed
by the City of Chicago, Department of Aviation. Plaintiffs allege that
from 1992 to 2002, they were subjected to racial and national origin
discrimination and harassment. Generally, Plaintiffs allege that
harassing statements were made to them by their supervisors and that they
were subjected to unfair working conditions because of their race and
national origin. Plaintiffs have mainly accused a former foreman of
Defendant named Anthony Jason ("Jason") for allegedly making harassing
Plaintiffs allege a pattern and practice of racial and national origin
harassment against African-American and Hispanic laborers prohibited by
Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e
et seq., and 42 U.S.C. § 1981 ("Section 1981"). Plaintiffs seek class
certification as to Count I of their class action complaint for a class of "all African-American and Hispanic employees,
classified as laborers, for the City of Chicago, Department of Aviation
at the O'Hare International Airport Facility ("O'Hare") from 1992 to 2002
who have been subjected to various forms of racial harassment because of
Defendant's ineffective anti-harassment policy."
A plaintiff must first satisfy the requirements of Rule 23(a) of the
Federal Rules of Civil Procedure in order to be granted a class
certification. Rule 23(a) provides as follows:
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.
Fed.R.Civ.P. 23(a). Failure by a plaintiff to satisfy any one of
the above requirements precludes certification as a class. Retired
Chicago Police Ass'n v. City of Chicago, 7 F.3d 584
, 596 (7th Cir.
1993). If a plaintiff is able to satisfy all of the requirements of
Rule 23(a), the district court must then determine whether a plaintiff's action can be maintained as a class action by meeting one of
the requirements of Rule 23(b) of the Federal Rules of Civil Procedure.
See Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748
, 760 (7th Cir.
2001) (explaining Fed.R.Civ.P. 23(b)(1)(2)(3)).
In order to determine whether a class should be certified, a court may
make factual and legal inquires necessary under Rule 23. Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). A court
need not accept a plaintiff's assertions as conclusive, but may receive
any evidence necessary to make a decision on class certification. See
id. (explaining why the court accepts a complaint's factual allegations
when ruling on motions to dismiss under Rule 12(b)(6) but does not when
ruling on class certification motions under Rule 23).
I. Plaintiffs' Motion to Strike
Plaintiffs filed a motion to strike and/or exclude statements procured
by Defendant from putative class members. Plaintiffs allege that
Defendant's attorneys (1) participated in ex parte communications with
putative class members; (2) have been undermining the express purpose of
Rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to
determining whether a class should be certified; and that as such (3)
have committed violations of the ethical rules of professional conduct.
The court finds that these allegations are without merit. In this case, Plaintiffs have not supported their contention that any
abuse took place as a result of Defendant's communications with the
alleged putative class members. Plaintiffs claim that Defendant
improperly contacted putative class members. This raises issues
concerning whether or not the court needs to issue a protective order
prohibiting communications between the parties and putative class
members. The purpose of a protective order is to ensure that the putative
class members' rights are protected and that the intent of Rule 23 is not
undermined. The Seventh Circuit has stated that each side of an action
generally has a "right" to send a communication to class members.
E.E.O.C. v. Mitsubishi Motor Mfg. of America, Inc., 102 F.3d 869, 870
(7th Cir. 1996). While a court has limited "power to restrict
communications between defendants and putative class members before the
class is even certified . . . such control is designed to prevent abuse
of the class action process" such as "[c]ommunications that undermine the
purposes of Rule 23 includ[ing] misleading communications and
communications which affect a putative class members' decision to
participate in the class action." Wiginton v. Ellis, 2003 WL 22232907, at
*2 (N.D. Ill. 2003)(citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 99-100
n. 12 (1981)). Generally, a Court issues "an order limiting discovery
communications between parties and potential class members" only if such
an order is warranted "based on a clear record and specific findings that
reflect a weighing of the need for a limitation and the potential
interference with the rights of the parties." Williams, 204 F.3d at 759.
There is no evidence that Defendant abused the class action process or was involved in misleading communications. In
addition, Plaintiffs have failed to supply this court with any evidence
except for three paragraphs of speculation that any of the putative
class members' rights were in any way threatened by such communication.
Pl.'s Mot. To Strike pages 4-5. Plaintiffs also claim that Defendant's
attorneys have committed violations of the ethical rules of professional
conduct. Such an allegation is a serious allegation and needs to be
supported with sufficient evidence. Plaintiffs have failed to provide
sufficient evidence to support their claims.
It appears that Plaintiffs' counsel's real motive in moving to strike
the statements is to exclude evidence which might eventually be
prejudicial to Plaintiffs' case. For instance, one of the documents that
Plaintiffs are attempting to exclude is an affidavit from a Hispanic
laborer at the Department of Aviation who not only states: "I have not
been subject to, or seen anyone else subjected to any race
discrimination, racial harassment, national origin discrimination or
harassment, retaliation or any other improper treatment during my
employment with the City," but also states: "I know the 10 people who
filed this lawsuit and had heard that a discrimination suit had been
filed against the City. I believe that they are all in the suit `for the
ride.' They're getting on the train and hoping to get money for it."
(Def.'s App. Vol. III: Marquez). Another affidavit that Plaintiffs seek
to strike is from an African-American minister who is a laborer at the
Department of Aviation. The affiant states that he had not been subjected
to race discrimination or harassment and further states: "I have not seen or heard of any African-American or
Hispanic employees including any of the people who filed this lawsuit
being treated unfairly by anyone at the City related to working
assignments, or other terms and conditions of employment." The affiant
also states: "Jason was a good guy to work for and we respected each
other. Jason treated all employees equally and I did not observe him
single out or treat unfairly any African-American, Hispanic, or any other
employee." (Def.'s App. Vol. III: Fluker). Another example is an
affidavit by an African-American laborer who stated that he was asked by
Plaintiff Pruitt to join this lawsuit but that he told Pruitt that he
would not get involved because he has not been discriminated against. The
affiant further states: "I could not take part in this lawsuit because
that would make me a liar." (Def.'s App. Vol. III: Lacy).
There are numerous other affidavits by African-American and Hispanic
laborers at the Department of Aviation indicating that they were not the
subject of race discrimination or racial harassment and that they did not
see Jason or other supervisors harassing other employees nor have they
heard about such harassment. We emphasize in commenting on Plaintiffs'
motives for seeking to exclude the affidavits and other materials that we
are not ruling upon the merits of Plaintiffs' claims. Based upon the
foregoing, we deny Plaintiffs' motion to strike and/or exclude statements
procured by the Defendant from any putative class members. II. Class Definition
In their amended motion for class certification, Plaintiffs have
defined their proposed class as consisting of: "all African-American and
Hispanic employees, classified as laborers, for the City of Chicago,
Department of Aviation at the O'Hare International Airport Facility
("O'Hare") from 1992 to 2002 who have been subjected to various forms of
racial harassment because of Defendant's ineffective anti-harassment
policy." Pl.'s Amend. Mem. pages 1-3; See also Alliance to End Repression
v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977) (explaining that: "whether
the description of a class is sufficiently definite to permit
ascertainment of the class members must, of necessity, be determined on a
In their complaint, Plaintiffs almost exclusively allege harassing
conduct by Jason, who is no longer employed by the Defendant, and only in
passing make references to a few other supervisors or foremen relating to
isolated statements by such supervisors or foremen. For example,
Plaintiffs have mentioned the names of five foremen, but Plaintiffs have
made no allegations against them. Plaintiffs have mentioned the names of
two foremen, one of whom is no longer employed by Defendant, and one
supervisor and have attributed only one isolated alleged derogatory
statement to each. After discovery, Plaintiffs have not introduced or
revealed any new names of supervisors or new allegations against any
supervisors that were involved in any harassing conduct. Plaintiffs also
have failed to offer evidence or even make allegations regarding the
conduct of any supervisors other than Jason, who no longer is employed by Defendant. Other than alleging
one isolated derogatory statement made by a foreman and a supervisor,
Plaintiffs have offered no additional evidence of supervisory
harassment. Since the allegations are against a former foreman and
Plaintiffs have made only allegations of one or two isolated statements
attributed to two current foremen/supervisors, the class definition
appears to be inappropriate for purposes of class certification. In
addition, the proposed class definition includes employees that never
worked for Jason or the few other supervisors mentioned and there is no
reason why the proposed class should consist of employees of supervisors
other than the ones named by Plaintiffs. Therefore, a class action is not
In an attempt to justify their claim against Defendant and to seek
class certification, Plaintiffs have merely made allegations against one
former foreman and have attempted to impute his alleged behavior on the
rest of the supervisors by making isolated references to two foremen who
may have been present when certain alleged derogatory statements were
made. It appears that Plaintiffs have attempted to artificially justify
their proposed class. There is a dispute whether certain derogatory
statements were made in the first instance, and if they were made,
whether such statements or conduct constitutes unlawful racial
discrimination or harassment. This in no way should be construed to mean
that derogatory statements are acceptable behavior. To the contrary, even
one derogatory statement or comment aimed at a racial or ethnic group is
one too many. However, whether or not the allegations and evidence in this case support class certification
is an entirely different question and is examined under the appropriate
The bulk of Plaintiffs' class allegations are based upon unsupported
and vague contentions that the City's management engaged in racial
discrimination and harassment. To allow Plaintiffs to certify a class to
include employees who work for other supervisors against whom there is no
evidence or even allegations of harassment and to allow discovery
pertaining to those supervisors would be to condone the ultimate fishing
III. Rule 23(a) Prerequisites to a Class Action
In order to obtain class certification a plaintiff must first satisfy
all of the requirements of Rule 23(a) as articulated earlier in this
opinion. Fed.R.Civ.P. 23(a); Retired Chicago Police Ass'n, 7 F.3d at 596.
In Plaintiffs' amended memorandum in support of their motion for class
certification, Plaintiffs state that it is virtually impossible to
provide the court with an exact number of potential members of the class
at this time, but maintain that a good faith estimate of ninety-nine
persons is sufficient. P.'s Amend. Mem. p. 5. Plaintiffs contend that
"Defendant's murky production of employee records has made it nearly
impossible to provide the Court with an accurate number." PL's Reply p.
3. Plaintiffs' contention is completely disingenuous. Even though Defendant has tendered to Plaintiffs voluminous lists of all laborers
employed by Defendant at O'Hare from 1992 until the present, Def. Resp.
to Pl.'s Amend. Mem. p. 4., Plaintiffs have been demanding lists of
employees who hold other positions at O'Hare totally unrelated to the
proposed class. PL's Reply pages 3-4.
Plaintiffs also contend that Defendant has not produced a report
indicating the percentage of "all" African-American and Hispanic
employees at O'Hare. PL's Reply at fn. 4. However, the proposed class
definition Plaintiff wishes this court to certify does not include "all"
African-American and Hispanic employees at O'Hare, but instead, includes
a class of "all African-American and Hispanic employees, classified as
laborers, for the City of Chicago, Department of Aviation at the O'Hare
International Airport Facility ("O'Hare") from 1992 to 2002 who have been
subjected to various forms of racial harassment because of Defendant's
ineffective anti-harassment policy." P.'s Amend. Mem. pages 1-3.
1. Proposed Class Members
Plaintiffs have provided this court with two separate lists that
collectively identify ninety-nine proposed class members. PL's Ex. 4:
African-American Employee #'s 1-75; Hispanic Employee #'s 1-24. One list
identifies potential African-American class members and the other list
identifies potential Hispanic class members. Plaintiffs maintain that
these two lists reflect the proposed class because they encompass "all
African-American and Hispanic employees, classified as laborers, for the City of Chicago, Department of Aviation at the
O'Hare International Airport Facility ("O'Hare") from 1992 to 2002 who
have been subjected to various forms of racial harassment because of
Defendant's ineffective anti-harassment policy." Pl.'s Amend. Mot. pages
1-3. Plaintiffs seek to certify this class under Count I of the complaint
which alleges violation under both Title VII and Section 1981. Pl.'s
Amend. Mem. p. 1.
2. Title VII
Title VII requires that a charge of discrimination be filed with the
Equal Employment Opportunity Commission ("EEOC") within 180 days "after
the alleged unlawful employment practices occurred." Tinner v. United
Ins. Co. of America, 308 F.3d 697, 707 (7th Cir 2002)(citing
42 U.S.C. § 2000e-5(e)(1)). The statute provides that the time period for
the filing of the charge may be extended if the aggrieved person
initially institutes proceedings with a state or local agency. Id. In the
state of Illinois, the time period for filing of the charge of
discrimination is 300 days. Bilow v. Much Shelist Freed Denenberg Ament
& Rubenstein, P.C., 277 F.3d 882, 893 (7th Cir. 2001).
Plaintiffs have included in their proposed class the names of employees
who no longer are employed as laborers for Defendant and who never filed
an EEOC charge in the first place. The Supreme Court of the United States
recently held that "[i]n the context of a request to alter the timely
filing requirements of Title VII, this Court has stated that `strict
adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the
law.'" See National Railroad Passenger Corp. v. Morgan 536 U.S. 101, 108
(2002)(quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
Notwithstanding this holding, Plaintiffs contend that these former
laborers should be included in this proposed class under the continuing
violation theory. In addressing class claims, the Seventh Circuit has
stated "[i]t is not necessary that each class member have filed a charge
with the EEOC; however, only those who could have filed a charge at or
after the time a charge was filed by the class representative can be
included in the class." Movement for Opportunity and Equality v. General
Motors Corp., 622 F.2d 1235, 1248 (7th Cir. 1980)(citations omitted).
Plaintiffs, acting as class representatives, filed their earliest
charge of discrimination with the EEOC on July 1, 2002. Accordingly, the
filing period for a Title VII claim by the named Plaintiffs in this
action is within 180 days prior to July 1, 2002 (i.e. between January 2,
2002 and July 1, 2002). Therefore, any individual who was not employed as
a laborer by Defendant between January 2, 2002 and July 1, 2002 (the
"Title VII filing period") could not have filed a charge in the first
instance. As such, forty-eight of the ninety-nine individuals listed in
the proposed class that were not employed as laborers by Defendant during
the Title VII filing period may not be considered part of the proposed
class for Title VII relief. PL's Ex. 4. The court notes that of the remaining fifty-one proposed class members
under Title VII, twelve have signed statements in which each laborer has
individually declared that he or she has not been subjected to, or seen
anyone else subjected to, any race discrimination, racial harassment,
national origin discrimination or harassment, retaliation or any other
improper treatment during his or her employment with the City. Also, each
laborer has provided in the statement details about his or her individual
experiences indicating the absence of any discrimination or harassment.
PL's Ex. 4; Def.'s App. Vol. I R.26; Vol. III. In addition, eight other
individuals have declared or testified that they would not want to become
members of the lawsuit brought by Plaintiffs in this case. PL's Ex. 4;
Def.'s App. Vol. R.26, 27; Vol. II(A)(B); Vol. III. As such, these twenty
individuals may not be considered part of the proposed class for Title
The court also notes that of the remaining thirty-one proposed class
members under Title VII, four were not employed as laborers by Defendant
at O'Hare between 1992 to 2002. Pl.'s Ex. 4; Def.'s App. Vol I, R. 13. In
addition, one individual identified as a proposed class member in this
motion is barred from this case because he previously filed and settled a
lawsuit against the same Defendant asserting the same allegations as the
named Plaintiffs in this action. PL's Ex. 4; Def.'s App. Vol. I, Ex. 18.
Thus, for purposes of numerosity under Title VII, the proposed class
contains only twenty-six members as opposed to the original ninety-nine
set forth in the motion.
3. Section 1981
For Section 1981 claims Congress has enacted a statute of limitations
which provides: "a civil action arising under an Act of Congress enacted
after the date of enactment of this section may not be commenced later
than 4 years after the cause of action accrues." 28 U.S.C. § 1658(a). In
Jones v. R.R. Donnelley & Sons Co., 124 S.Ct. 1836 (2004) the United
States Supreme Court stated: "We conclude that a cause of action
`aris[es] under an Act of Congress enacted' after December 1, 1990 and
therefore is governed by § 1658's 4-year statue of limitations if the
plaintiff's claim against the defendant was made possible by a post-1990
enactment." Jones, 124 S.Ct. at 1845. In this case, as in Jones,
Plaintiffs' Section 1981 claim arises under the 1991 Act and therefore
was made possible by a post-1990 enactment. Id. Therefore, the 4-year
statute of limitations applies in this case.
Plaintiffs, acting as class representatives, filed this case with this
court on April 29, 2003. Accordingly, any cause of action that could have
been filed by Plaintiffs in this case would have had to occurred within
the four years preceding April 29, 2003 (i.e. between April 29, 1999 and
April 29, 2003). Therefore, any individual who was not employed as a
laborer by Defendant between April 29, 1999 and April 29, 2003 (the
"Section 1981 filing period") could not have filed a case in the first
instance. As such, twenty-seven of the ninety-nine individuals listed in
the proposed class that were not employed as laborers by Defendant during
the Section 1981 filing period may not be considered part of the proposed class
for Section 1981 relief. Pl.'s Ex. 4.
The court notes that of the remaining seventy-two proposed class
members under Section 1981, thirteen have signed statements in which each
individually declared: "I have not been subjected to, or seen anyone else
subjected to, any race discrimination, racial harassment, national origin
discrimination or harassment, retaliation or any other improper treatment
during my employment with the City." PL's Ex. 4; Def.'s App. Vol. I R.26;
Vol. III. In addition, eight other individuals have declared or testified
that they would not want to become members of the lawsuit brought by
Plaintiffs in this case. PL's Ex. 4; Def.'s App. Vol. R.26, 27; Vol.
II(A)(B); Vol. III. As such, these twenty-one individuals may not be
considered part of the proposed class for Section 1981 relief.
The court also notes that of the remaining fifty-one proposed class
members under Section 1981, eleven were never employed as laborers by
Defendant at O'Hare between 1992 and 2002. Pl.'s Ex. 4; Def.'s App. Vol.
I, R. 13. In addition, one individual identified as a proposed class
member in this motion is barred from this case because he previously
filed and settled a lawsuit against the same Defendant asserting the same
allegations as the named Plaintiffs in this action. PL's Ex. 4; Def.'s
App. Vol. I, Ex. 18.
Thus, for purposes of numerosity under Section 1981, the proposed class
contains only thirty-nine members as opposed to the original ninety-nine
set forth in the motion.
Plaintiffs have failed to establish that this proposed class, under
both Title VII and Section 1981, is so numerous that joinder is
impracticable in this matter. Plaintiffs have identified thirty-nine
proposed class members, thirteen of which cannot proceed under Title VII.
Therefore, at best, the proposed class only consists of twenty-six
members who might be able to proceed under both Title VII and Section
1981. In addition, the court notes that joinder in these circumstances is
not impracticable inasmuch as Plaintiffs have failed to establish that
certification of such a small class would be warranted due to the lack of
resources of the proposed class, fear of retaliation, or in the interest
of judicial economy. Instead, Plaintiffs have filed their motion with
speculation and conflicting testimony from proposed class members. Def.'s
App. Ex. R. 20.
A plaintiff seeking class certification has a "burden of demonstrating
the numerosity requirement of a class action, and `mere speculation as to
the number of parties involved is not sufficient to satisfy Rule
23(a)(1).'" Roe v. Town of Highland, 909 F.2d 1097, 1100 (7th Cir.
1990)(quoting 7A C. Wright, A. Miller & M. Kane, Federal Practice and
Procedure § 1762 at 164 (2d ed. 1986)). A plaintiff seeking class
certification "cannot rely on `conclusory allegations that joinder is
impractical or on speculation as to the size of the class in order to
prove numerosity.'" Id. (quoting Martial v. Coronet Ins. Co., 880 F.2d 954,
957 (7th Cir. 1989). In this case, Plaintiffs have attempted to give the
false impression that the proposed class consists of 99 individuals. However, Plaintiffs have failed miserably in
their attempt in view of the fact that the vast majority of Plaintiffs'
proposed class of 99 members, as discussed above, are not eligible or
willing to participate in a class action. At best, Plaintiffs have
identified 16 individuals, in addition to the named Plaintiffs, that may
join their action, and it is not clear whether those 16 additional
individuals were harassed. This court also notes that Plaintiffs' class
definition is also too broad.
Plaintiffs have failed to establish that the proposed class in this
case is so numerous and that joinder of all of the potential members
would be impracticable.
B. Commonality and Typicality
Even if Plaintiffs were able to meet the numerosity requirement of Rule
23(a) which they have not met they have failed to meet the
commonality and typicality requirements as discussed below.
The commonality and typicality requirements of the Federal Rules
"ensure that only those plaintiffs or defendants who can advance the same
factual and legal arguments may be grouped together as a class." Mace v.
Van Ru Credit Corp., 109 F.3d 338, 341 (7th Cir. 1997). For effective
representation of a class, the named representatives' claims must "have
the same essential characteristics as the claims of the class at large."
Retired Chicago Police Ass'n, 7 F.3d at 596 (quoting De La Fuente v.
Stokley-an Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). As demonstrated in the numerosity analysis above, if a class was
certified consisting of thirty-nine class members, only twenty-six would
be able to seek relief under both Title VII and Section 1981 in
accordance with the class definition. The remaining thirteen would only
be able to advance under Title VII. Consequently, the legal and factual
arguments would vary with respect to the different legal standards and
necessary facts to be proved should the individuals be grouped as a
Moreover, even if this court were to certify all thirty-nine
individuals as a class, the claims of the individuals are not common or
typical of the claims of the class as a whole. For instance, in their
amended motion for class certification, Plaintiffs do not allege that
they were subject to a common form of racial harassment while they were
employed as O'Hare laborers from 1992 until 2002. Instead, Plaintiffs
admit that the O'Hare laborers endured "various forms of racial
harassment" while they were employed from 1992 until 2002. PL's Amend.
Mem. pages 1-3. Plaintiffs also admit that different types of alleged
harassing statements were made to them. Therefore, each alleged harassing
statement would need to be individually examined by the trier of fact. In
addition, Plaintiffs have alleged different forms of harassment such as
being worked too hard by Jason and being made to stay outside when it was
extremely cold or hot. Also, Plaintiffs have made virtually all of their
allegations of harassment against Jason and not against other
supervisors. Plaintiffs make it clear that Jason's shift was particularly
difficult and thus there will be differences in each class member's claim depending on
which shifts the class member worked on and which supervisor covered the
shift. The differences in the treatment of each employee is well
illustrated by the many affidavits of employees introduced by Defendant
that specifically state that they were not the subject of racial
discrimination or harassment by Jason or any other supervisor.
In addition, Plaintiffs have alleged dozens of separate claims by the
proposed class members against the Defendant. Pl.'s Amend. Mem. pages
6-11. Although these claims are carefully clumped together in the motion
so as to appear that they were constant and occurred simultaneously, a
closer review of the depositions suggests that each of the charges are
distinct in content and vary with respect to the time and setting in
which they allegedly occurred. Pl.'s Ex.'s 17-39. Furthermore, the facts
asserted by the class representatives carry with them a myriad of
allegations and possible defenses which this court would have to
individually construe and ultimately apply for or against the proposed
class as a whole. Id. Hence, Plaintiffs have failed to establish
that there are questions of law or fact common to the proposed class or
that the claims and defenses of the representative parties are typical of
the claims or defenses of the proposed class.
C. Adequacy of Representation
Even if Plaintiffs were able to establish all of the other requirements
of Rule 23(a) which they have not their attempt to certify this class would
still fail under the adequacy requirement discussed below.
Plaintiffs in this matter believe they can fairly and adequately
protect the interests of their proposed class. Yet, the level of
inadequacy the Plaintiffs have demonstrated in the filing of this motion
for class certification casts serious doubt on their ability to represent
an entire class of individuals. Plaintiffs have done a poor job in
preparing their motion for class certification and supporting documents.
For instance, the ten named Plaintiffs, in their amended motion for class
certification, claimed that they were African-American or Hispanic
laborers for the City at O'Hare who have been employed "from at least
1992 to 2002." However, Plaintiffs' own exhibits in support of their
motion reveal that four of the ten named Plaintiffs were not employed by
the City "from at least 1992 to 2002." PL's Ex. 4. In addition,
Plaintiffs in their Reply have attempted to buttress their argument for
class certification by asking the court to consider a completely
irrelevant article. Pl.'s Reply p. 1; PL's Reply Ex. 2. Furthermore,
Plaintiffs' attempt to include in their class an individual who had
already filed and settled an action against Defendant alleging the same
facts and allegations does not demonstrate good faith. The Court also
notes that Defendant has correctly pointed to numerous discrepancies of
facts that Plaintiffs have alleged and maintained throughout their
briefs. Def.'s App. Ex. R.20. One example why Plaintiffs would not be
able to adequately represent a class is the method in which the
Plaintiffs have tried to meet the numerosity requirement by poorly identifying a proposed class of ninety-nine individuals
in the hope that some of the names might survive. However, as noted
above, the vast majority of the proposed class identified by the
Plaintiffs cannot survive.
In addition, Plaintiffs' counsel's attempt to portray themselves as
experienced litigators of class actions is unconvincing. A closer look at
the facts based upon Plaintiffs' representations relating to class
litigation experience and Defendant's briefs reveals that Plaintiffs'
counsel previously were involved in two cases touching on class
certification. In one case the class was not certified and in the other
case the case was settled before trial. Therefore, Plaintiffs' counsel
have not met their burden of showing to the court that they are
experienced with class action matters. Plaintiffs have failed to meet the
adequacy of representation requirements.
Based upon the foregoing, we conclude that Plaintiffs have failed to
satisfy all of the requirements of Rule 23(a) and therefore, a class
action is not appropriate.
II. Rule 23(b) Class Actions Maintainability
A plaintiff who meets Rule 23(a) requirements would still have to
establish that the action is maintainable under Rule 23(b). See
Williams, 204 F.3d at 760(discussing Fed.R.Civ.P. 23(a)). In view of the
fact that Plaintiffs have failed to meet the rule 23(a) requirements and
this court has determined that a class action is not appropriate, we need
not address whether the class action is maintainable under Rule 23(b). CONCLUSION
Based upon the foregoing, we deny Plaintiffs' motion for class
certification. In addition, we deny Plaintiffs' motion to strike and/or
exclude statements procured by the Defendant from putative class members.
Defendant's motion to strike is also denied as moot.
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