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Remien v. EMC Corp.

August 28, 2008


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


This matter comes before the court on the motion of Plaintiffs Tami Remien and Debra Fletcher for class certification pursuant to Fed. R. Civ. P. 23. For the reasons set forth below, the motion is denied.


Remien and Fletcher are former employees in EMC's Chicago office. Remien's tenure spanned from February 2001 to December 2003; during that time, she worked as a sales representative. Fletcher worked for EMC from October 1999 to July 2003; she was an account representative, a district manager, and a global account manager in the sales department.

Remien and Fletcher each allege that they were subjected to individualized mistreatment in connection with their jobs. In addition, they contend that EMC condoned and ignored sexual discrimination and harassment and retaliation for efforts to combat the same to such a degree that it became de facto company policy and standard operating procedure.

Each plaintiff filed a charge with the EEOC on August 13, 2003, alleging discrimination on the basis of her sex as well as retaliation. Remien's charge contended that EMC had discriminated against her in a variety of ways, including preventing her from working on any sales accounts and failing to provide the same support to her career development that it provided to male employees within the Chicago office. In addition, she alleged that EMC engaged in discriminatory behavior toward women throughout its nationwide sales business with practices, which included failure to promote women and taking sex, pregnancy, or marital and parental status into consideration when making employment decisions. Fletcher's charge included the same allegations of systemic discrimination as well as assertions that Fletcher individually experienced denials of compensation, demotion, and constructive discharge.

After receiving their right-to-sue letters from the EEOC, Remien and Fletcher filed the instant case. According to the current complaint,*fn1 EMC engages in systemic discrimination against women in its sales force. Plaintiffs contend that this took the form of less favorable treatment in compensation, promotion, attrition, and quota assignment. Plaintiffs' theory of liability rests on anecdotal and statistical evidence of EMC's company-wide policies and practices with regard to these aspects of employment in the sales force.

The parties engaged in extensive discovery proceedings with regard to the issue of class certification. When that process was completed, Plaintiffs moved to certify "a class of current and former female EMC sales employees subjected to EMC's discriminatory pay and management selection policies and practices." Pls.' Mem. in Supp. of Mtn. for Class Certification, at 1 [Doc. 174]. Plaintiffs supported their call for class treatment of compensation claims with the opinions of Dr. Jerry Goldman. EMC challenged the admissibility of Goldman's opinions and testimony, in part through the criticisms of Dr. Joan Haworth, whose testimony and opinions Plaintiffs in turn moved to strike. To resolve those issues, the matter of the admissibility of the respective experts was considered during four days of hearings in September 2007. As a result of the hearings, we ultimately concluded that Goldman's opinions were not admissible. Because of the impact of this ruling on the viability of the claims based upon discrimination in compensation, we permitted Plaintiffs an opportunity to submit the instant amended motion for class certification, which they did on June 11, 2008.


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 be so large that joinder would be impracticable, and legal or factual questions presented in the putative class action must be 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)(2) allows certification when "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." 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 seeks class certification bears the burden of showing that the Rule 23 requirements are satisfied. Amchem, 521 U.S. at 614, 117 S.Ct. at 2245. Moreover, the class must be identifiable as a class. Oshana v. Coca-Cola, Inc., 472 F.3d 506, 513 (7th Cir. 2006).


The class that Plaintiffs' motion asks us to certify consists of "female sales representatives and managers employed in the U.S. sales force of EMC Corporation...from January 1, 2001 through the present."*fn ...

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