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

March 26, 2012


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


Before the Court are Defendant's motion for summary judgment [78], Plaintiffs' cross-motion for partial summary judgment [see 98-1], and Plaintiffs' motion to file a reply brief instanter [105]. For the reasons set forth below, the Court grants Defendant's motion [78] and Plaintiffs' motion for leave to file their reply brief instanter [105], but denies Plaintiffs' cross-motion for partial summary judgment [see 98-1].*fn1

I. Background*fn2

Defendant Nestle USA, Inc. is a food manufacturing company with a plant in Franklin Park, Illinois. Plaintiffs Patricia Brown Conley, Terry Gordon, Mary Redmond, and Sabrina Pipkins are all employees of Nestle at the Franklin Park plant. Plaintiffs are all African American and members of Local 1, Bakery, Confectionary, Tobacco Workers & Grain Millers International Union ("the Union"). Plaintiffs were former "machine operators," whose duties included operating and cleaning the machines. Plaintiff Sabrina Pipkins is now a Lead Mechanic Operator. Mary Redmond holds a general labor position, and Conley and Gordon are now on "voluntary layoff" and no longer work regular hours at Nestle.

In 2004, Defendant announced to Plaintiffs that their positions would soon be replaced by newly created and more highly paid technical positions called "mechanic operators" ("MO"). Because Nestle anticipated the MO to be a technical job, it would be one of the highest paid positions according the Union agreement. Defendant announced that employees who wished to apply for the new MO job but did not have any previous mechanical ability would be required to take a mechanical aptitude test administered by the National Occupational Competency Testing Institute ("NOCTI").*fn3 To be eligible for the new position, employees would have to achieve a score of at least 60. To give current line employees the opportunity to learn the skills required for the new job, Nestle created an apprentice program for all those who scored below 60 but above 45 on the NOCTI test, to educate and train them for the new MO positions.

The apprentice program required candidates to complete classroom training through Triton College and on the job training during which apprentices would work with MOs for approximately two years. As part of the program, Nestle agreed to pay the tuition for every apprentice provided that he or she passed all courses with at least a C. Failure to pass any class with a C would disqualify the employee from the apprentice program Pursuant to the terms of the Union Collective Bargaining Agreement, which prohibit any employee from bidding on a job for which he or she was disqualified for a period of two years. In the event of disqualification, the employee could utilize his or her seniority to bid on any other available position,

In November 2005, Nestle distributed a memorandum outlining the details of the MO apprentice program. Following the announcement, 44 employees took the NOCTI test and scored higher than 45 but less than 60, qualifying for the apprentice program. All 44 of those employees were minorities and 35 were African-Americans. Ultimately, excluding individuals who voluntarily withdrew from the apprentice program, approximately 67% of all apprentices successfully completed the program, 74% of whom were African-American.

Plaintiffs all enrolled in the MO apprentice program after receiving more than 45 but less than 60 on the NOCTI test.*fn4 The classroom aspect of the program began in January 2006 and was taught by a Triton College instructor. "Math for Mechanics" was the first class and was a prerequisite for later courses. Conley, Redmond, and Gordon all failed to achieve a grad of C in the Math for Mechanics class. Conley and Gordon also failed to achieve Cs in the Machinery Components I class. Accordingly, in June 2006, all three were disqualified from the apprentice program.

Pipkins passed several classes in the curriculum before failing to earn a C in Hydraulics, disqualifying her from the program in September 2007. But Pipkins decided to continue classes on her own time and expense, and eventually completed the program. After completing the program and allowing the two-year waiting period in the labor contract to expire, Pipkins re-took the NOCTI test and qualified to move directly into an MO position in January 2010. She later was promoted to Lead MO.

Plaintiffs Conley, Gordon, and Redmond filed a grievance through the Union alleging that Nestle unjustly disqualified them from the apprentice program in violation of the labor contract. Nestle denied the grievance; the Union did not pursue arbitration. Conley, Gordon, and Redmond also never bid on any MO or apprentice position after the two year period required by the labor contract had expired, nor did they retake the NOCTI exam.

Plaintiffs filed this suit on September 25, 2009 alleging that Defendant 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 previously were 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, asserting a single Title VII claim which was nearly identical to the disparate impact claim that 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 are 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 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 targeting 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. On January 31, 2011, the Court denied Defendant's motion to dismiss ...

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