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Marcatante v. City of Chicago

December 21, 2007


The opinion of the court was delivered by: Charles P. Kocoras, District Judge


This matter comes before the court on the motion of Plaintiffs John Marcatante, John Klaes, Jerry Whitley, and Thomas Sadowski (collectively referred to as "Plaintiffs") for certification of a class and subclass pursuant to Fed. R. Civ. P. 23(b)(3). For the reasons set forth below, the motion is denied in part and granted in part.


Plaintiffs are former employees of Defendant City of Chicago. Marcatante, Klaes, and Whitley each worked in the Department of Aviation; Sadowski, the Department of Fleet Management. Each was a member of a trade union, and their terms of employment were set forth in collective bargaining agreements ("CBAs") between the City and their respective unions.

The CBAs that were in effect for July 1999-June 2003 by their terms were to expire on June 30, 2003. The unions to which Plaintiffs belonged had joined in a coalition of 35 building trade unions to negotiate the terms of the new CBAs. However, as June 30 approached, the City and the coalition were unable to craft an agreement that would take its place for the subsequent four years. In late June, the attorneys for the City and for the coalition agreed to extend the terms of the 1999-2003 agreements through midnight, July 30. The arrangement was memorialized in a letter dated June 26, 2003 ("the June 26 letter"); it specified that, after July 30, the agreements would continue day-to-day, with no change in their terms, unless one of the parties terminated in writing. The letter further stated that if the parties later agreed to wage increases for the time period following July 1, 2003, those wage increases would be retroactive to that date if the parties did not mutually agree to a different one.

In late 2003 or early 2004, the City offered an early retirement incentive program ("ERIP") to eligible employees. Each of the Plaintiffs took advantage of this program and retired in February or March 2004. Though participation was voluntary, according to Plaintiffs, the City offered this program with the intention of depriving participants of benefits they would have eventually received if they had continued working for the City until the new CBAs were hammered out over a year later.

Meanwhile, the City and the unions continued their negotiations. On July 18, 2005, they reached a tentative agreement. In part, it provided for retroactive wage increases for work performed between July 1, 2003 and July 18, 2005, but only for two identified groups of employees. The first consisted of employees who were on the City payroll as of July 18, 2005. The second was comprised of employees who had been laid off with recall rights. On October 6, 2005, the City Council ratified the new CBAs.

Because Plaintiffs did not fall within the two groups identified in the agreement, they did not receive retroactive wage increases. In January 2006, Plaintiffs filed a five-count complaint against the City. Counts I and V sound in procedural due process; Count II is an equal protection claim. Counts III and IV are state-law causes of action, for breach of contract and quantum meruit, respectively.

In addition to advancing these claims on their own behalf, Plaintiffs seek to represent two classes of City employees. For Counts I-IV, the putative class would be comprised of all employees who, between June 30, 2003, and July 18, 2005, stopped working for the City for any reason and who belonged to the bargaining units of the unions within the coalition when their employment ceased. For Count V, the proposed class would be made up of the subset of that class who left their employment via the ERIP.

The complaint has since been amended and has withstood a motion to dismiss. The parties also engaged in a court-mediated settlement conference. When an agreement could not be reached, they proceeded to discovery. The discovery process was completed after seven months, and each side expressed a desire to move for summary judgment. During the briefing of those motions, Plaintiffs filed the instant motion to certify the two classes described above. The motions for summary judgment have been stayed pending the instant decision.


To be certified as a class action, a claim must first satisfy four criteria: numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). The first two focus on the characteristics of the class as a whole: the number of potential class members must so large that joinder would be impracticable, and legal or factual questions presented in the putative class action must common to all class members. Fed. R. Civ. P. 23(a)(1), (a)(2). The third and fourth concentrate on the attributes of the parties seeking to represent the class: the claims or defenses of those representatives must be of the same type as those of the class they seek to represent, and the representatives must be able to protect the interests of the class fairly and adequately. Fed. R. Civ. P. 23(a)(3), (a)(4).

If an action shows each of these four attributes, the inquiry shifts to examine whether "the action is maintainable under Rule 23(b)(1), (2), or (3)." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 2245 (1997). Rule 23(b)(3) specifies that a class can be certified if the common factual or legal questions identified for purposes of Rule 23(a)(2) predominate over issues that pertain only to individual class members and if adjudicating the controversy as a class action would be superior to other possible methods. The party who ...

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