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PRUITT v. CITY OF CHICAGO

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,
v.
CITY OF CHICAGO, DEPARTMENT OF AVIATION, Defendant



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

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.

  BACKGROUND

  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 statements.

  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."

  LEGAL STANDARD

  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).

  DISCUSSION

 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 case-by-case basis.")

  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 ...


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