The opinion of the court was delivered by: Proud, Magistrate Judge
The above-captioned proposed class action (Doc. 11) alleges defendant Walgreen Company ("Walgreens") has a pattern and practice of race discrimination. Plaintiffs propose that the class include all former, current, and future black*fn1 management employees and applicants for management nationwide, as well as current and former black pharmacists. This case is still in the pre-certification discovery phase. Before the Court is "Plaintiffs' Motion to Compel Responses to Plaintiffs' First Request for Production of Documents" (Doc. 37), as well as defendant Walgreen Company's response (Doc. 38). The motion and response make clear that certain broad issues are in dispute which go to the appropriate scope of discovery: (1) geographic and/or corporate parameters; (2) relevant time period; and (3) type of job applicants. In addition, issues of privilege and the appropriateness of a protective order are raised. Rather than address each request for production, the Court will follow the parties' lead and address the broader issues.
In accordance with Federal Rule of Civil Procedure 23, the scheduling and discovery order dictates:
During the initial pre-certification discovery phase, the parties should be guided by the threshold requirements for class certification-- numerosity, commonality, typicality, and adequacy of representation. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (citing Amchem Products, Inc. v. Windsor, 117 S.Ct. 2231, 2245 (1997). The Court recognizes that there will be some overlap between issues relevant to the issue of class and the specific claims asserted in the complaint. (Doc. 33-1, p. 2). Of course, the scope of discovery is generally limited to any matter relevant to the subject matter of the pending action, so long as the sought after information is not privileged, even if inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1); see alsoOppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). At the heart of the parties' dispute is the fact that they construe the First Amended Complaint (Doc. 11) differently.
The First Amended Complaint
The First Amended Complaint describes a "a continuing violation of federal law on behalf of all former, current, and future black management employees and applicants for management nationwide, as well as current and former black pharmacists." (Doc. 11, p. 1). A "pattern and practice of race discrimination in hiring, promotion and store assignment of black employees" is alleged. (Doc. 11, p. 2). All of the named plaintiffs are or were employed by Walgreens. (Doc. 11, pp. 3-5 and 12). However, plaintiffs elaborate that "applicants" is intended to include both incumbent employees and potential new-hires. (Doc. 11, p. 11). Plaintiffs contend there is discrimination at the very first step in the "Retail Career Path," the selection of assistant store managers and management trainee positions. (Doc. 11, pp. 6-7). Plaintiffs also contend there is discrimination in the promotion process within the "Retail Career Path," "Pharmacy Career Path" and non-retail management. (Doc. 11, pp. 6-7). Plaintiffs assert that discrimination is evinced by statistics, and is the result of "steering" blacks in the retail path into "black/low income" stores*fn2, and "steering black pharmacists into "black/low income" stores and "low volume" stores, which has a detrimental effect on these employees' career paths, bonuses and working conditions. (Doc. 11, pp. 7-11). Plaintiffs make much of Walgreens' "peer groups"-- stores grouped by racial/ethnic and income demographics.
The Incumbent Applicant Pool v. The Outside Applicant Pool
One of the prerequisites for class certification is that the representative parties-- the named plaintiffs-- will fairly and adequately protect the interest of the class. Fed.R.Civ.P. 23(a)(4).
A class may not satisfy the requirements of Rule 23(a)(4) if the class representative does not "possess the same interest and suffer the same injury as the class members." East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (citing Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)).
Uhl v. Thoroughbred Technology and Telecommunications, Inc., 309 F.3d 978, 985 (7th Cir. 2002). This issue must be decided by Chief U.S. District Judge G. Patrick Murphy. However, determining the proper scope of discovery is this Court's prerogative. Therefore, this Court's ruling is not dispositive of the issue for purpose of class certification.
The First Amended Complaint alleges discrimination affecting two stages of the employment process, hiring and promoting. (Doc. 11, pp. 1-2 (reference is made to future employees and hiring). There is great elaboration regarding factors relevant to promotion, but no explanation of the hiring process and how the defendant allegedly discriminated in hiring from outside the company. Plaintiffs no doubt view not being hired for a new job and not being promoted into a new position as the same harm and injury-- not getting a particular job. However, the named plaintiffs were all hired by Walgreens, making them members of the incumbent applicant pool for the various management paths, and making them antithetical to those who were not hired. In General Telephone Co. v. Falcon, 457 U.S. 147, 156-159 (1982), the United States Supreme Court recognized the obvious dichotomy between those who were hired and those who were not promoted-- they suffered different injuries. Therefore, the scope of discovery will be limited to incumbent employees.
The First Amended Complaint refers to a "nationwide" pattern and practice, meaning the 44 states in which Walgreens has stores. Noting that the named plaintiffs work in only eight of Walgreens' over 200 districts, defendant would limit the geographic scope of discovery to all districts, nationwide, where there is one or more "black/low income" store.*fn3 Walgreens also argues that plaintiffs' "segregation"/"steering" theory limits discovery to the stores within the black/low income peer group.
The First Amended Complaint offers five general examples of how the defendant allegedly discriminates against black employees in management, staff pharmacists and blacks seeking entry into the retail career path. (Doc. 11, p. 6). "Steering and segregation" is one of the five. Plaintiffs contend the defendant steers them into black/low income stores and then perpetuates their segregation there. (Doc. 11, pp. 6 and 10). It is alleged that pharmacists are steered into low volume stores, in addition to black/low income stores. (Doc. 11, pp. 6, 8 and 11). Two more of the five examples of how defendant allegedly discriminates are purportedly illustrated by the disproportionate number of whites who are selected for district manager, and who are selected for pharmacy manager and pharmacy supervisor. (Doc. 11, p. 7). Therefore, more than just black/low income stores or districts with at least one black/low income store are relevant. Defendant has ignored the low volume stores relevant to the pharmacists, and plaintiffs' broader allegations that encompass all stores and districts. Nationwide discovery is necessary. The parties will surely have competing statistics and will continue to differ over what the applicable feeder pools are, but it is precisely these issues that are ...