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Lucas v. Ferrara Candy Co.

United States District Court, N.D. Illinois, Eastern Division

July 22, 2014

BRIAN LUCAS, ARONZO DAVIS, and TORRENCE VAUGHANS, on behalf of themselves and similarly situated laborers, Plaintiffs,
v.
FERRARA CANDY COMPANY, REMEDIAL ENVIRONMENTAL MANPOWER, INC., d/b/a REM STAFFING, and LABOR POWER, INC., Defendants.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, District Judge.

Plaintiffs Brian Lucas ("Lucas"), Aronzo Davis ("Davis"), and Torrence Vaughans ("Vaughans") (collectively, "Plaintiffs"), on behalf of themselves and similarly situated laborers, bring this class action against Ferrara Candy Company ("Ferrara"), Remedial Environmental Manpower, Inc. ("REM"), and Labor Power, Inc. ("LP") (collectively, "Defendants"), alleging nine counts of racial discrimination.

Plaintiffs, who are African American, argue that Ferrara, by refusing to hire them, and REM and LP, by refusing to assign them to work at Ferrara, discriminated against them based on their race. Plaintiffs also seek to hold Ferrara vicariously liable for REM and LP's actions, either as their joint employer or the principal responsible for REM and LP's actions.[1] Counts I through III[2] raise claims under the Civil Rights Act of 1866, as amended, codified in 42 U.S.C. § 1981 ("Section 1981"). Counts IV through IX allege violations under the Civil Rights Act of 1964, as amended, codified in 42 U.S.C. § 2000e, et seq. ("Title VII"). Specifically, Counts IV through VI assert claims of disparate treatment, alleging Defendants have intentionally discriminated against Plaintiffs based on Plaintiffs' race. Conversely, Counts VII through IX allege disparate impact, i.e., that Defendants' employment policies and practices have disparately impacted Plaintiffs based on their race.

For the reasons discussed below, Defendants' motion to dismiss Plaintiffs' complaint is denied.[3] While Plaintiffs' class allegations do contain a facial defect, the Court grants Plaintiffs leave to amend this defect upon filing their motion for class certification.

FACTUAL BACKGROUND

The facts as stated are adopted from Plaintiffs' First Amended Class Action Complaint and are accepted as true in considering this motion to dismiss. See Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). The Court also considers Group Exhibits A-C of Plaintiffs' response to Defendants' motion to dismiss, which reproduce Plaintiffs' charges of discrimination filed with the Equal Employment Opportunity Commission ("EEOC"). The Court may consider these charges because they include facts consistent with the Amended Complaint. See Help at Home, Inc. v. Med. Capital, LLC, 260 F.3d 748, 752-53 (7th Cir. 2001).[4]

Plaintiffs are African American "laborers" who sought work with Ferrara, a candy factory located on Chicago's West Side, beginning in or about November 2011. Am. Compl. ¶¶ 1, 7-9. When Plaintiffs applied directly to Ferrara for work, Ferrara instructed them to instead seek employment through Defendants REM and LP, employment agencies that supply Ferrara and other companies with labor. Id. ¶¶ 13-15, 18, 52. Plaintiffs proceeded to seek work at Ferrara through REM, for which they were otherwise qualified. Id. ¶¶ 7(b), 8(b), 9(b), 32. REM, however, refused to permit Plaintiffs to attend a Ferrara orientation session that was mandatory for all Ferrara employees. Id. ¶¶ 31, 33. Lucas and Davis repeated the same process with LP and were similarly denied any opportunity to work at Ferrara. Id. ¶¶ 62, 66. Plaintiffs allege that REM and LP also routinely refuse to permit other African American laborers similarly situated to Plaintiffs to attend orientation to work at Ferrara. Id. ¶¶ 34, 59, 67.

Plaintiffs state that the "vast majority" of laborers employed at Ferrara through REM and LP are Latino employees. Id. ¶ 16. Many of these Latino employees have no special skills, training, or qualifications. Id. ¶¶ 30, 60. REM and LP assign almost no African American laborers to work at Ferrara, despite African American laborers' equal qualifications to work at Ferrara. Id. ¶¶ 44, 69. Additionally, while REM and LP do not regularly require Latino laborers to undergo pre-assignment background checks, REM and LP regularly require such checks for African American laborers. Id. ¶¶ 38-39, 63-64. Finally, REM and LP recruit laborers primarily through Spanish-language media, and REM conducts the Ferrara orientations in Spanish, using Spanish-language materials.[5] Id. ¶¶ 27, 37, 53, Ex. B, C. Exhibits B and C to the Amended Complaint provide declarations from two Latino laborers assigned by REM to work at Ferrara, which affirm many of the observations described above.[6] These laborers' declarations also observe that, while working on the first two floors of Ferrara's Forest Park facility, all employees working on the first two floors were Latino assignees from employment agencies, half or more of whom came from REM or LP. Id., Ex. B, ¶¶ 7-9, Ex. C, ¶¶ 7-10.

Plaintiffs allege Ferrara refused to hire Plaintiffs, and REM and LP refused to assign Plaintiffs and similarly situated laborers to work at Ferrara, because they were African American. See, e.g., id. ¶¶ 75-76, 84-85, 96-97. In particular, Plaintiffs assert that, "on information and belief, " Ferrara requested REM and LP not assign African American laborers to work at Ferrara, and REM and LP complied with Ferrara's request. Id. ¶¶ 48, 72. Alternatively, Plaintiffs assert that Ferrara, REM, and LP acted as joint employers "in the assignment of laborers to work at Ferrara, " id. ¶¶ 21, 51, or that REM and LP acted as Ferrara's agents in "recruiting, training, assigning, and paying laborers to work at Ferrara." Id. ¶¶ 20, 50. On these alternative bases, Plaintiffs allege Ferrara "was aware, or should have been aware, " of REM and LP's labor assignment practices and "failed to exercise reasonable care" to ensure REM and LP did not discriminate in making labor assignments. Id. ¶¶ 45-46, 70-71.

On August 14, 2012, Plaintiffs filed Charges of Discrimination with the EEOC, stating in relevant part that Ferrara, REM, and LP engaged in a "policy and practice of steering qualified African American applicants... away" that denied Plaintiffs and similarly situated African American laborers "an equal employment opportunity and resulted in systematic discrimination against African American applicants and segregation of its workforce." Pls.' Resp. Mot. Dismiss, Group Ex. A-C (EEOC Charges) ¶¶ 4, 6. The EEOC issued Notices of Right to Sue to Lucas and Davis on November 29, 2012, and Vaughans on December 7, 2012. See Am. Compl., Group Ex. A. On February 27, 2013, Plaintiffs commenced this lawsuit, and on August 29, 2013, filed the Amended Complaint. Defendants now move to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and to strike Plaintiffs' class allegations under Rule 23.

LEGAL STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). Under Rule 8(a)'s notice pleading standards, "a plaintiff's complaint need only provide a short and plain statement" of a claim entitling the pleader to relief, "sufficient to provide the defendant with fair notice of the claim and its basis." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (internal quotations omitted). The complaint must, however, allege "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility requires that a complaint include "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.

DISCUSSION

I. Title VII Disparate ...


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