United States District Court, N.D. Illinois
January 3, 2005.
BELL, et al.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
(Reserved for use by the Court)
MEMORANDUM OPINION AND ORDER
Plaintiffs, Demetric Bell, Marilyn Berry, Catherine Brown, Kimberly
Buchanan, Gilberto Gonzalez, Della Jarrett, Timmy Link, Eddie Manning,
Jr., Kim Nachampassack, Duane Parks, Brenda Riley, Darnel Royal, Robin
Sallis, Velma Sanders, Barbara Smith, Tony Triplett, and Janet
Wilkins,*fn1 individually and as purported class representatives,
brought this action under the court's federal question jurisdiction
against defendant, Woodward Governor Co., alleging a pattern or practice
of racial discrimination and disparate impact in compensation and terms
and conditions of employment in violation of 42 U.S.C. § 1981 ("Section
1981") (Counts I & III) and 42 U.S.C. § 2000e-5 ("Title VII") (Counts II
& IV). Buchanan also has a separate claim for unlawful termination and
retaliation under Section 1981 (Count V) and Sallis and Wilkins have
individual claims for gender based compensation discrimination under
Title VII and the Equal Pay Act, 29 U.S.C. § 206 (d), (Count VI). Nine of
the named plaintiffs (Bell, Berry, Brown, Buchanan, Gonzalez, Link,
Manning, Nachampassack and Triplett), as purported class
representatives, move to certify two plaintiff classes pursuant to
Fed.R.Civ.P. 23: one a compensation class consisting of all
African-American, Hispanic and Asian employees employed by defendant
during the applicable limitations period and the other an advancement
class of all African-American, Hispanic, and Asian employees passed over
by defendant for unposted promotions to higher level positions during the
applicable limitations period. The class certification involves Counts I
to IV. Defendant opposes certification of these classes.
A litigant seeking to maintain a class action must meet the Rule 23(a)
prerequisites of numerosity, commonality, typicality and adequacy of
representation. See General Tel. Co. v. Falcon, 457 U.S. 147, 156
(1982). If these prerequisites are met, the potential class must also
satisfy at least one provision of Rule 23 (b). See Rosario v. Livaditis,
963 F.2d 1013, 1017 (7th Cir. 1992), cert. denied 506 U.S. 1051
(1993). "Before deciding whether to allow a case to proceed as a class
action, therefore, a judge should make whatever factual and legal
inquiries are necessary under Rule 23." Szabo v. Bridgeport Machines,
Inc., 249 F.3d 672, 676 (7th Cir.), cert. denied, 534 U.S. 951 (2001).
The court cannot simply accept the allegations of plaintiffs' complaint
as true and must make a preliminary inquiry into the merits where
necessary to determine whether the requirements of Rule 23 are met. See
id. at 676-77.
Plaintiffs evidence is that there are at least 117 members in each
prospective class. This number is the total number of minorities working
for defendant during the 4 years preceding the filing of the case.
Defendant argues numerosity is lacking. It contends that half the
minority employees are Asian or Hispanic and that the compensation data
do not support a statistically significant compensation difference from
whites for these two groups. However, the evidence, particularly Dr.
DiPrete's declaration, which purports to show a statistically significant
difference between whites and non-whites, supports a class of
African-Americans, Asians and Hispanics. The purported class will not be
disaggregated into separate racial groups for purposes of considering
numerosity. The fact that there is evidence that one potential class
member does not want to participate or that most potential class members
live within the same geographic area (arguments also raised by
defendant), does not defeat numerosity. There are well over 100 potential
class members, which is enough to satisfy numerosity.
The commonality requirement is met where there is a common nucleus of
fact such as engaging in standardized conduct towards members of the
proposed class. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
Plaintiff asserts the common nucleus of operative fact is that all class
members were subject to the same compensation and promotion policies and
practices under centralized control. Defendants argue the system was
decentralized with decisions on compensation and promotion being made by
different decision makers so that the facts related to the compensation
and promotion of each class member are not common to one another. This is
a "pattern or practice" action. Plaintiffs have alleged facts that, if
believed, show at least some centralized control by defendant's human
resources department purportedly to ensure no discrimination. Plaintiffs
have presented evidence sufficient for class certification purposes to
support these allegations. Defendant's own documents submitted to the
OFCCP indicate the human resources department carefully monitors all job
actions to assure they are non-discriminatory. The evidence of
standardized conduct toward members of the purported class is sufficient
to find commonality. See Palmer v. Combined Ins. Co. of America,
217 F.R.D. 430, 437 (N.D. Ill. 2003) (Zagel, J.).
Typicality is closely related to commonality, Keele, 149 F.3d at 595,
and is satisfied when the plaintiffs' claim arises from the same practice
or course of conduct that gives rise to the claims of other class members
and the plaintiffs' claim is based on the same legal theory. Palmer,
217 F.R.D. at 437 (internal citation and quotation marks omitted). The
presence of factual differences between claims of class members is not
fatal and the similarity of legal theory is more important. Id.
Typicality is met here. Plaintiffs' claims arise from the same legal
theory and same alleged practice as the class members. While factual
variations may exist between each class member to a certain extent, the
overriding theory is the same, that defendant's compensation and
promotion practices work to keep non-whites lower paid and out of higher
Defendant concedes, based on prior decisions by the court in other
cases, that plaintiffs' counsel is adequate to represent the class.
Defendant challenges the adequacy of four of the named plaintiffs to
serve as class representatives citing the fact Gonzalez and Nachampassack
have hourly compensation above the average for white employees, that
Manning is a leader who will now be making compensation decisions under
the defendant's system, and that Brown cannot represent members of the
promotion class because she is in a job code with only one job level and
has never posted for nor sought another job. Plaintiffs do not
specifically dispute defendant's position except as to Gonzalez. There is
evidence Gonzalez is paid less than white employees in the same job
classification and level with significantly less seniority and that he
has not been allowed to advance to a higher level. Gonzalez is an
adequate class representative. Plaintiffs have failed to meet their
burden as to Nachampassack. Manning and Brown, who are therefore, not
certified as class representatives. The remaining movants have not been
challenged by defendant and are found to be adequate class representatives.
Having found that the Rule 23 (a) requirements have been met as to some
of the movants, the court moves to the Rule 23 (b) analysis. Plaintiffs
argue the class qualifies for certification as to equitable relief under
Rule 23 (b) (2), which provides certification is proper where "the party
opposing the class 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). This requirement has been met.
Plaintiffs*fn2 pattern or practice allegations and evidence support
certification based on the assertion, supported by statistical evidence,
that non-white employees were discriminated against in compensation and
promotion opportunities. This alleged action on the part of defendant is
generally applicable to the class and any injunctive relief entered would
almost necessarily apply to the whole class. See Allen v. Int'l Truck and
Engine Corp., 358 F.3d 469, 471 (7th Cir. 2004) (noting the
infeasibility of drafting and enforcing an injunction that would apply to
some but not all black employees).
Having found certification appropriate for injunctive relief purposes,
the court, mindful of the decision in Allen, looks to the question of
damage claims. In actions for money damages, if a class is certified,
class members are entitled to personal notice and an opportunity to opt
out. Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894, 897 (7th Cir.
1999). To certify a damages class under Rule 23 (b) (3) the court must
find that questions of law or fact common to members of the class
predominate over any questions affecting only individual members and that
the class action is superior to other available methods for fair and
efficient adjudication. It is evident that each class member's damages
will be different, assuming liability is proved, based on factors such as
job classification, level, seniority, etc. However, issues related to
liability based on the plaintiffs' pattern or practice claims will have
common questions of law and fact. These common questions will predominate
over the individual damage determinations of each class member. The
factors listed in Rule 23 (b) (3) (A)-(D) as pertinent to finding common
question predominating weigh in favor of predominance. The interest of
individual class members in individually controlling the liability phase
of the pattern or practice and disparate impact actions is not great.
Each class member can individually control the damages phase of his claim
if liability is found. Concentrating the litigation in this forum is
sensible because the bulk of the plaintiff's reside in this district and
division, the plants where the alleged discriminatory actions occurred
are located here, and the issues concerning the pattern or practice are
common to all plaintiffs. Management of the class action will be no more
difficult than managing innumerable individual actions. See Allen,
358 F.3d at 472.
For the foregoing reasons, movants motion for class certification is
granted in part. Bell, Berry, Buchanan, Gonzalez, Link, and Triplett are
certified as class representatives. Plaintiff's counsel are appointed
class counsel. Two classes are certified under Rule 23 (b) (2) for
injunctive and declaratory relief purposes and Rule 23 (b) (3) for
purposes of determining liability for discrimination injuries, but not
individual damages: A compensation class consisting of all
African-American, Hispanic, and Asian employees employed by defendant
during the applicable limitations period and an advancement class
consisting of all African-American, Hispanic and Asian employees passed
over for unposted promotions during the applicable limitations period.
This matter is referred to the magistrate judge for purposes of
administering notice to the class members and opt-out rights.