The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The named Plaintiffs ("Plaintiffs") have filed a complaint on behalf of themselves and other similarly situated African-American employees (the "putative class") against defendant freight transportation companies Yellow Transportation, Inc. ("Yellow") and YRC, Inc. ("YRC"). The Plaintiffs allege that both defendants violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, by creating a racially hostile work environment for African-American employees, subjecting those employees to disparate treatment, and retaliating against the employees when they complained about the discriminatory conduct. Presently at issue is the Plaintiffs' motion for an order certifying this case as a class action. For the reasons set forth below, the court grants the Plaintiffs' motion.
Since October 15, 2004, the Plaintiffs claim that they have suffered racial discrimination at the hands of Yellow and, later, YRC. All of the Plaintiffs and putative class members initially worked for Yellow or YRC at a distribution facility in Chicago Ridge, Illinois; when this facility closed in 2009, some-but not all-of the class members were transferred to the YRC facility located in Chicago Heights, Illinois.*fn1
The Plaintiffs allege that Yellow and YRC failed to address recurring complaints regarding other employees' racially hostile behavior, including turning a blind eye to (1) nooses repeatedly being displayed at the Chicago Ridge facility, (2) racially hostile graffiti placed in the bathrooms, and (3) other employees' practices of using of racial slurs, wearing racially hostile clothing, and exposing racially hostile tattoos. In addition, the Plaintiffs allege that Yellow and YRC subjected them to disparate treatment on account of their race by, inter alia, disciplining African-Americans more stringently than similarly situated Caucasian employees, and by promoting less senior Caucasians instead of (or prior to) promoting African-Americans. Finally, the Plaintiffs allege that Yellow and YRC retaliated against them and other members of the putative class for complaining about the hostile work environment and racially disparate treatment. As a result, the Plaintiffs seek to certify a class consisting of the following individuals:
All current and former African-American employees employed between October 15, 2004, and the present by YRC, Inc. and Yellow Transportation, Inc. at their facility located at 10301 S. Harlem Ave., Chicago Ridge, Illinois ("Chicago Ridge") and those Chicago Ridge employees transferred in 2009 to work at the facility located at 2000 Lincoln Highway, Chicago Heights, Illinois ("Chicago Heights").
According to the Plaintiffs, this class would encompass approximately 354 people. The court now turns to whether this putative class is appropriate for certification under Federal Rule of Civil Procedure 23.
Pursuant to Rule 23, the Plaintiffs bear the burden of proving that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(1)--(4); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 162-63 (1974).
In addition, the putative class must also satisfy the prerequisites set forth in Rule 23(b). Eisen, 417 U.S. at 163. To satisfy Rule 23(b)(2), the Plaintiffs must establish that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Under Rule 23(b)(3), the Plaintiffs must show that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." But although the burden rests with the Plaintiffs, the court is reminded that Rule 23 ought to be liberally construed so as to favor the maintenance of class actions where appropriate. In re Evanston Nw. Healthcare Corp. Antitrust Litig., 268 F.R.D. 56, 60 (N.D. Ill. 2010); see King v. Kansas City Southern Indus., 519 F.2d 20, 26 (7th Cir. 1975). Here, the Plaintiffs argue that the class is appropriate for certification under 23(b)(2); failing that, they argue that the class could be certified under a hybrid approach, so that the class would receive equitable relief under Rule 23(b)(2) and damages under Rule 23(b)(3). Finally, the Plaintiffs claim that the class could be certified under Rule 23(b)(3) alone.
As a preliminary matter, Yellow and YRC state that what they call "the Chicago Heights subclass members" do not have standing to pursue any claim. This argument is predicated in part upon the Defendants' argument that the Plaintiffs actually seek to certify two subclasses: (1) those current and former African-American employees employed from October 15, 2004 to the present by YRC and Yellow at the Chicago Ridge location, and (2) all of the Chicago Ridge employees who were transferred to the Chicago Heights location in 2009. In other words, the Defendants would define their "Chicago Heights subclass" to include employees of any race.
As it turns out, starting in 2006 the Equal Employment Opportunity Commission and others filed three lawsuits against YRC and another of its predecessor companies, Roadway, alleging racial discrimination at the Chicago Heights location. The cases were recently resolved by a consent decree, which provides both monetary and equitable relief to certain employees. See EEOC v. Roadway Express, Inc., Nos. 06 C 4805, 08 C 5555; Bandy v. Roadway Express, Inc., No. 10 C 5304 (N.D. Ill. Jan. 12, 2011) ("Consent ...