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Korey Currie v. Wisconsin Central

September 30, 2011

KOREY CURRIE,
PLAINTIFF-APPELLANT,
v.
WISCONSIN CENTRAL, LTD.,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 09 L 11505 Honorable Bill Taylor, Judge Presiding.

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justice Cahill concurred in the judgment and the opinion. Justice Garcia specially concurred, with opinion.

OPINION

¶ 1 Plaintiff, Korey Currie, is appealing the decision of the circuit court which granted defendant's motion to dismiss plaintiff's complaint based on res judicata. The trial court found that the claims were precluded by the federal class action decree in Barnes v. Canadian National Railroad, No. 04-1249, Final Approval Order (N.D. Ill. Jan. 7, 2010) (Barnes class action).

¶ 2 On appeal, plaintiff contends, first, that his claims were unique from the discrimination claims in the Barnes class action. Second, plaintiff argues that, because the evidence of discrimination in his lawsuit would not have been sufficient proof for the Barnes class action, he seeks a remedy which was not included in the class action. Third, plaintiff argues that he did not receive adequate notice of the class action; therefore, he could not have opted out of the class.

Finally, plaintiff contends that, by applying the doctrine of res judicata, the circuit court created an unjust and inequitable result. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 A. The Barnes Class Action

¶ 5 A class action was filed on February 18, 2004, against Canadian National Railway and a number of its "indirect U.S. operating subsidiaries (including Wisconsin Central, Ltd.)" (hereinafter, CN defendants) by named plaintiffs, Melvin Barnes, Tracy Steele, and Jeremy Williams. The lead plaintiff was Barnes. The plaintiffs' complaint proposed a class consisting of "current, former, and future African-American employees of CN Defendants who, from approximately February 18, 2000[,] to the present, have been subjected to one or more aspects of the racial discrimination described in [the] Complaint."

¶ 6 The complaint in the Barnes class action alleged "race discrimination with respect to a number of different employment-related practices and policies, as well as a racially hostile working environment and retaliation." The third amended complaint in the Barnes action contained three counts. The first two counts were class counts and the third count contained an individual claim by Barnes for retaliation. Barnes alleged that he had been fired in retaliation for bringing this class action. This third count stated that it was brought solely by Barnes "in his individual capacity."

¶ 7 On October 21, 2009, the class filed a motion for preliminary approval of a consent decree, which established a settlement, and advocated for approval of the class. The preliminary consent decree was approved on October 26, 2009.

¶ 8 The consent decree included a section devoted to the means of notifying the absent class members of their rights in relation to the class. Specifically, each individual who fell into the class of "[a]ll African-American employees of the Railroad from February 18, 2000[,] to the date of Preliminary Approval of the Consent Decree" were to be mailed a form which included information on how to "seek exclusion from the class" and "the binding effect of the class judgment." The proposed method of delivery for the notices was via first-class mail and was handled by the claims administrator. If a class member wished to opt out of the settlement, that intention was to be "set forth in writing, mailed via First Class Mail *** on or before December 9, 2009," and was required to "be personally signed by the class member." The date for returning the opt-out form was later extended to January 22, 2010. On January 7, 2010, the federal district court issued its "Final Approval Order" accepting the consent decree.

¶ 9 B. Plaintiff's Lawsuit

¶ 10 Plaintiff is an African-American who worked as a trackman for defendant, Wisconsin Central, for six weeks during June and July of 2008. The plaintiff's allegations of discrimination arise from his employment with the defendant.

¶ 11 1. Complaint

¶ 12 Plaintiff's complaint alleges that he worked as a trackman for defendant for six weeks during June and July of 2008. During this period, plaintiff alleges that he experienced discrimination as an African-American. Specifically he alleges that he was forced to do work that non-African-American employees were not asked to do and that the work environment was hostile. He alleges that other employees hung nooses on machinery and made inappropriate racial comments and that he reported the conduct to his superiors and nothing was done to remedy the situation. After repeatedly reporting the discriminatory conduct, plaintiff was discharged in July 2008. Plaintiff's complaint states that he was discharged in retaliation for filing complaints of discriminatory conduct with his superiors. Plaintiff's complaint states that, following his discharge, plaintiff filed a charge of discrimination with the Illinois Department of Human Rights (IDHR). His IDHR complaint was investigated for a year; and on September 10, 2009, the investigation was closed. Plaintiff alleges that IDHR determined not to file charges. Plaintiff then appealed that decision to the circuit court of Cook County in September 2009.

¶ 13 2. Motion to Dismiss

¶ 14 Defendant filed a motion to dismiss under section 2-619(a) of the Code of Civil Procedure claiming that plaintiff's claims are "barred by res judicata" and "specifically released by virtue of his failure to opt out" of Barnes v. Illinois Central Railroad, No. 04-1249, Final Approval Order (N.D. Ill. Jan. 7, 2009). See 735 ILCS 5/2-619(a) (West 2010). Barnes was a class action lawsuit filed in the federal district court for the Northern District of Illinois. Plaintiff did not opt out of the class. However, plaintiff claims he did not receive adequate notice to opt out by the indicated deadline.

¶ 15 In the case at bar, the trial court held an evidentiary hearing on September 16, 2010, to determine whether plaintiff was adequately notified of the class action. Steven Platt, a claims administrator, testified concerning the system used to notify class members, the steps taken when a notification was returned, and the entire process of notification to potential class members. Platt stated that the administrator can "track who was mailed what and when." Platt testified that the records indicated that notice was mailed to plaintiff on October 28, 2009.

¶ 16 Plaintiff testified that he "received [the notice] in December, approximately *** 3 days before Christmas," and that the notice was not received in time for him to opt out of the class. Plaintiff also testified that when he read the notice he did not believe it was relevant for him since "the common nucleus of fact in Barnes does not include those supporting [plaintiff's] claims of wrongful termination and retaliation on the basis of race" and that the relief the class was requesting was different from what he was requesting in his lawsuit.

¶ 17 In his complaint, plaintiff requested the following relief:

"damages *** including but not necessarily limited to reinstatement, back pay, front pay, wage differential, lost benefits, out of pocket pecuniary losses, reasonable attorney's fees, severe emotional distress, pain and suffering, *** compensatory damages, punitive damages, *** and such other and further relief as this court may deem appropriate."

¶ 18 The Barnes class action requested:

"(1) a declaratory judgment that s [sic] have engaged in systematic racial discrimination ***; (2) a permanent injunction against such continuing systematic discrimination; (3) a restructuring of the CN Defendants' selection and training procedures ***; (4) a restructuring of CN Defendants' workforce ***; (5) elimination of the hostile working environment; (6) the implementation of a non-discriminatory posting and bidding procedure; and (7) damages, backpay and other equitable remedies necessary to make the named Plaintiffs and putative class members whole from CN Defendants' past discrimination."

ΒΆ 19 At the end of the evidentiary hearing on September 16, 2010, the trial court found that plaintiff did have adequate notice and granted defendant's motion to ...


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