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Lucas v. Vee Pak, Inc.

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

September 17, 2014

BRIAN LUCAS, et al., on behalf of themselves and others similarly situated, Plaintiffs,
v.
VEE PAK, INC., et al., Defendants

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For Brian Lucas, Aronzo Davis, Torrence Vaughns, Joe Eagle, Michael Keys, on behalf of themselves and similarly situated job applicants, Plaintiffs: Jenee Gaskin, LEAD ATTORNEY, Alvar Ayala, Christopher J Williams, Workers' Law Office, P.C., Chicago, IL; Joseph M Sellers, Cohen, Milstein, Sellers & Toll, Washington, DC; Peter Romer-Friedman, Cohen Milstein Sellers & Toll PLLC, Washington, DC.

For Vee-Pak, Inc., Defendant: Donald S. Rothschild, LEAD ATTORNEY, Goldstine, Skrodzki, Russian, Nemec & Hoff, Ltd., Burr Ridge, IL; Brian Michael Dougherty, Golstine, Skrodzki, Russian, Nemec and Hoff, Burr Ridge, IL.

For Personnel Staffing Group, LLC, doing business as Most Valuable Personnel, doing business as MVP, Defendant: Carter A. Korey, Elliot S. Richardson, LEAD ATTORNEYS, Britney Zilz, Ryan D Gibson, Korey Cotter Heather & Richardson, LLC, Chicago, IL; Nicholas Joseph Tatro, Korey Law, LLC, Chicago, IL.

For Staffing Network Holdings, L.L.C., Defendant: Gerald L. Maatman, Jr., LEAD ATTORNEY, Jennifer Ann Riley, Matthew James Gagnon, Rebecca Pratt Bromet, Seyfarth Shaw LLP, Chicago, IL; Laura A. Balson, LEAD ATTORNEY, Golan & Christie, LLP, Chicago, IL.

For Alternative Staffing, Inc., doing business as ASI, Defendant: Kerryann Marie Haase, LEAD ATTORNEY, Katherine Lee Goyert, Michael Best & Friedrich LLP, Chicago, IL; Brian P Paul, Michael Best & Friedrich, Chicago, IL.

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MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge.

In this proposed class action, five African American laborers allege that defendant Vee Pak, Inc., a manufacturing and packaging business, directly and through its relationships with the three defendant temporary employment agencies, discriminates against African American temporary workers, largely in favor of Latino workers. The four defendants each move to strike and dismiss the class allegations and to deny class certification, and defendant Vee Pak further moves to dismiss all claims against it. For the reasons that follow, Vee Pak's motion to dismiss is denied, and the motions to strike are granted in part and denied in part.

FACTS[1]

In the Third Amended Class Action Complaint (" TAC," Dkt. # 45), the five plaintiffs allege that they each applied for jobs at Vee Pak, directly with the company or through the three defendant agencies, Staffing Network, MVP, and ASI (collectively, " the agencies" ). Despite their qualifications, none was hired. Most Vee Pak workers are hired through temporary employment

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agencies. Of the workers placed at Vee Pak by the agencies, the " overwhelming majority" are Latino. Almost no African American laborers are assigned to work at Vee Pak's facilities.

When plaintiffs Brian Lucas, Aronzo Davis, and Torrence Vaughans attempted to apply for work directly at Vee Pak, they were initially given no information but were eventually told that they had to apply through an employment agency. Vee Pak representatives, however, refused to tell the plaintiffs which employment agencies placed laborers at Vee Pak. When they finally learned, in November 2011, which agencies worked with Vee Pak, Lucas, Davis, and Vaughans sought work assignments through defendant Staffing Network. Work assignments for African Americans through Staffing Network are rare, and Staffing Network " almost never" assigns African American workers to Vee Pak jobs. Furthermore, Staffing Network requires African American laborers seeking work assignments to complete a pre-application that is not required of applicants who are not African American. All five plaintiffs were required to complete a pre-application and were told that they had to return at a later time to complete an application, a delay that is not imposed on non-African American workers. All five plaintiffs specifically requested assignments at Vee Pak, but Staffing Network " failed or refused to assign" them to work there. In the meantime, the plaintiffs observed that Staffing Network allowed Latino workers to immediately complete applications and assigned them to work at Vee Pak. The plaintiffs were equally qualified for the work, which required no special skills. Staffing Network was complying with Vee Pak's request " to steer African American applicants away from work at Vee Pak." [2]

Defendant ASI, another employment agency, also places workers at Vee Pak facilities. ASI sometimes assigns African American laborers to work at third-party companies, but work assignments for African American laborers are sporadic. In November 2011, plaintiff Lucas asked an ASI dispatcher to send him to work at Vee Pak; ASI " failed and refused" to do so. Latino workers who were no more qualified than Lucas and who had sought employment after him were placed in Vee Pak jobs. ASI was complying with Vee Pak's request to steer African American laborers away from Vee Pak jobs.

MVP, another employment agency, refused to assign plaintiffs Vaughans and Lucas to work at Vee Pak despite their specific requests, even though MVP assigned Latino laborers who were no more qualified. MVP was complying with Vee Pak's request to steer African American laborers away from Vee Pak-jobs.

The plaintiffs filed charges with the EEOC, each alleging discrimination based on race. Each plaintiff attached a materially identical rider to the charge, stating, in relevant part, that he had applied for work at Vee Pak through the defendant

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employment agencies, was qualified to perform the work, and was not hired. Further, " [o]n information and belief, Vee Pak, Inc. had a policy and practice of steering qualified African American applicants and employees of its contracted staffing agencies, including me, away from work at Vee Pak, Inc., while other, less-qualified non-African-American employees were hired." The plaintiffs also charged that the Vee Pak's policies and practices " had the effect of denying me and a class of other African-American applicants an equal employment opportunity and resulted in systematic discrimination against African-American applicants and segregation of its workforce."

The plaintiffs timely filed this lawsuit upon receiving their right-to-sue notices from the EEOC. They brought a class action complaint alleging that Vee Pak and the agencies violated Title VII of the Civil Rights Act and 42 U.S.C. ยง 1981 by discriminating against African American laborers with respect to placements at Vee Pak. The plaintiffs allege that the defendants' discriminatory polices give rise to liability as to a class of African Americans who sought work assignments with Vee Pak, either directly or through a defendant agency, but were not assigned to work at Vee Pak because of their race. The complaint asserts both ...


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