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Patricia Brown Conley, Terry Gordon, Mary Redmond, and Sabrina v. Nestle Usa

January 31, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


On September 25, 2009, Patricia Brown Conley, Mary Redmond, Terry Gordon, and Sabrina Pipkins (collectively "Plaintiffs") filed a one-count complaint alleging that Defendant Nestle USA, Inc. ("Nestle" or "Defendant") had discriminated against them on the basis of race in violation of 42 U.S.C. § 1981 [1]. On May 24, 2010, the Supreme Court decided Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), which held that plaintiffs could bring claims premised on the later implementation of formerly-adopted policies under the "disparate impact" provision of Title VII, 42 U.S.C. § 2000e-2; such claims were previously barred in this circuit. On June 4, 2010, plaintiffs Conley, Redmond, and Gordon filed charges with the Equal Employment Opportunity Commission ("EEOC"), a statutory prerequisite to a disparate impact claim, and filed a motion in this Court to amend their complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) to add such a claim [20].

After the motion to amend was fully briefed but before the Court had ruled, plaintiffs Conley, Redmond and Gordon filed a second lawsuit (1:10-cv-05731) against Nestle, which asserted a single Title VII claim which was nearly identical to the disparate impact claim they proposed to add in this case. On October 4, 2010 the second case was reassigned to this Court pursuant to Local Rule 40.4, because the facts underlying both cases were identical. (See doc. no. 7 in 10-cv-05731). On October 13, 2010, the Court struck the motion to amend the complaint in this case without prejudice; the parties and the Court having agreed that the two cases would be consolidated and the briefing on Plaintiffs' motion to amend would be treated as the briefing on the motion to dismiss that Defendant would file targeted at the complaint in the 10-cv-05731 case. (See [51]).

On October 27, Defendant filed its motion to dismiss in the 10-cv-05731 case (see doc. no. 9 in 10-cv-05731), which contained an extensive discussion of new authority. Accordingly, the Court allowed Plaintiffs an additional response [see 57]. On November 1, the Court consolidated the cases for all purposes. On December 1, after reviewing Plaintiff's additional response, Defendant filed what it styled a "Motion for Leave Either to File a Short Reply Brief in Support of its Motion to Dismiss Or Present Oral Argument to Correct Misstatements of Fact Contained in Plaintiffs' Opposition" [59]. On December 7, the parties appeared before this Court on Defendant's motion, and the Court heard argument pertaining to the pending motions.

With that background out of the way, before the Court is Defendant's motion to dismiss Plaintiff's Title VII claim, which is found in the complaint filed in the 10-cv-05731 case. Defendant essentially argues that Plaintiffs' disparate impact claim is time barred because each plaintiff has admitted in depositions conducted in this case that Defendant's allegedly discriminatory policy did not affect them within the 300-day charging period. In the alternative, Defendant argues that Plaintiff's complaint is deficient for failure to allege sufficient facts to demonstrate that the limitations period applicable to their claim has not expired. For the reasons stated below, Defendant's motion is denied.


Plaintiffs are former African-American "machine operators" at Nestle's Franklin Park, Illinois plant. As machine operators, Plaintiffs' duties included operating and cleaning the machines at the plant and performing adjustments and certain maintenance. As a group, the machine operators were predominantly African-American.

In early 2005, Defendant told Plaintiffs that their positions would soon be replaced by the newly created (and more highly paid) position of "mechanic operators." Plaintiffs were told that they must take a test called the "NOCTI test" to be eligible for the new positions. If a machine operator received a certain score, he or she would qualify to participate in a newly created apprenticeship program which would lead to a mechanic operator position. Plaintiffs presumably did not receive qualifying scores. Instead, Plaintiffs allege that as a result of the testing, Plaintiffs and other incumbents were replaced by individuals who had not previously worked at the plant and who were not African-American. Plaintiffs allege that there was little difference between the duties of a "machine operator" and a "mechanic operator" (in fact, the only difference was that "mechanic operators" had fewer duties) and that the testing had no relationship to the job requirements of either position.

Incumbent machine operators were then told that they could continue to perform their current jobs for the time being, but that they were required to attend and pass certain weekend apprentice classes in order to continue in their positions or be promoted. Plaintiffs allege that Defendant created the classes as a "barrier on a racially disparate basis to their entry into the position of mechanic operators for which they were highly qualified." ¶ 30. The course work, which included work from a college-level mathematics textbook, was "not related in any way to the job that incumbent plaintiff machine operators were performing." ¶ 31.

While Plaintiffs continued in the weekend classes, they were asked to train the new mechanic operators and they were also asked to return to the line to operate the machinery during "production squeezes" on at least two occasions. Plaintiffs allege that they received only $19 per hour throughout this period, while the new mechanic operators with whom Plaintiffs trained and occasionally worked received $26 per hour.

After Plaintiffs failed the classes, Plaintiffs were removed from the line and have struggled to receive regular hours since.

Plaintiffs' Title VII claim alleges that requiring Plaintiffs and the other machine operators to take exams and coursework unrelated to the position of mechanic operators had and continue to have "a disparate impact upon African American candidates." ¶ 54.

II. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 912 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," (Fed R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concertra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S. Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent ...

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