United States District Court, N.D. Illinois, Eastern Division
CHICAGO TEACHERS UNION, LOCAL 1, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, TERRI FELLS, LILLIAN EDMONDS, and JOSEPHINE HAMILTON PERRY; individually and on behalf of all similarly situated persons, Plaintiffs,
BOARD OF EDUCATION OF THE CITY OF CHICAGO, a body politic and corporate, Defendant.
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, Senior District Judge.
Chicago Teachers Union, Local 1 ("Union") and three individual teachers ("the individual plaintiffs") have filed suit against the Board of Education of the City of Chicago ("Board") claiming that Board violated Title VII of the Civil Rights Act of 1964 ("Title VII, " 42 U.S.C. §§ 2000e to 2000e-17) when it carried out a large-scale series of layoffs that resulted in the termination of employment of a great many African American teachers and paraprofessionals. Plaintiffs now move for certification of their lawsuit as a class action for injunctive relief under Fed.R.Civ.P. ("Rule") 23(b)(2) and for damages under Rule 23(b)(3), or in the alternative for certification of their designated class for resolution of the issue of liability under Rule 23(c)(4). They describe the class they seek to certify in these terms (P. Mem. 8):
All African American persons whose employment as a tenured teacher or staff member, as defined by the collective bargaining agreement between the Chicago Teachers Union and the Board of Education of the City of Chicago, was terminated by the Board of Education pursuant to its "layoff policy" in 2011.
In response Board opposes any certification. For the reasons set out in this opinion, this action is certified for class treatment under Rules 23(b)(2) and 23(b)(3), thus mooting plaintiffs' alternative Rule 23(c)(4) motion.
Board, a "body politic and corporate" organized under the Illinois School Code (105 ILCS 5/34-2), maintains the Chicago Public Schools (CPS), a free public school system within the City of Chicago (Answer ¶ 34). Union is a labor organization that represents teachers and other CPS employees, over 30, 000 in total (id. ¶ 10). At all times relevant to this action (including the present) Union and Board have been parties to a collective bargaining agreement ("CBA") (B. Resp. Mem. 6, Ex. 1). Finally, the individual plaintiffs are former CPS teachers who were laid off by Board from their positions as full-time tenured teachers in 2011 (id. ¶¶ 13, 18, 32). All three individual plaintiffs are African Americans (id. ¶¶ 11, 19, 27).
Board employs a number of teachers and other personnel in a variety of positions that are funded from different sources and assigned to schools according to different criteria. Plaintiffs and Board dispute some of the details of how those positions are categorized and assigned to schools, but they agree that in 2011 Board laid off at least 1, 080 teachers and roughly 400 educational paraprofessionals who were Union members (B. Resp. Mem. 13). Plaintiffs and Board dispute the number of teachers and paraprofessionals who ultimately suffered adverse employment action as a result of the layoffs - at least some were able to transfer to equivalent positions - but Board concedes that there were some 700 teachers and paraprofessionals in total who were unable to transfer (id.).
Board chalked up the layoffs to declining enrollment and a shrinking budget (B. Resp. Mem. 9). It conducted the layoffs according to three policies (Board Policies 504.2, 504.2A and 505.6) that authorized layoffs for precisely those kinds of economic and demographic reasons (B. Resp. Mem. 8, 12). Under those policies Board (through its CEO) can select positions for layoff according to a number of criteria. In the case of the 2011 layoffs, Board's budget office and demographic office worked together to select schools where layoffs would occur. It was then up to the principals of those schools to select positions to cut, and another central office reviewed the principals' recommendations, accepting some and rejecting others (B. Resp. Mem. 9-13).
Plaintiffs' main bone of contention is that the schools Board selected for layoffs were disproportionately located in African American neighborhoods, and thus (say plaintiffs) the layoffs had a predictably disparate impact on African American teachers and staff. That is because in those schools the employees as well as the students were disproportionately likely to be African Americans (P. Mem. 1). According to plaintiffs, 29% of all CPS tenured teachers are African Americans, but 39.6% of the tenured teachers terminated were African Americans (Am. Compl. ¶ 7; P. Mem. 7). Board does not deny that it selected which schools would have to lay off teachers (B. Resp. Mem. 9-10), but it adds that the principals at those schools had significant (albeit not final) discretion over which teachers to lay off (id. at 10-11).
And what does Board say on the critical issue of disparate impact in this critical case? Here are Amended Complaint ¶¶ 7 and 8 and Board's "responses":
7. In June, 2011, the Board terminated the employment of 931 classroom teachers through a round of layoffs. 480 of these teachers were tenured. African Americans made up 42% of the tenure teachers terminated, although constituting less than 29% of all CPS tenured teachers.
ANSWER: The Board denies the allegations of paragraph 7.
8. Defendant's pattern and practice of targeting schools with high African American teaching populations for layoffs has a disparate impact on African American tenured teachers and staff.
ANSWER: The Board denies the allegations of paragraph 8 and further states that the Board does not "target" schools, or any demographic of teachers or staff, for layoffs under any circumstance.
And that's it - the sum total of Board's purported input on the subject of disparate impact, which is of course the essential linchpin for class certification purposes. Board has said not a word, then or since then, about the claimed basis for its unsupported ipse dixit "denial."
In candor, that is totally irresponsible. This action has been pending for just short of 2-1/2 years: Plaintiffs filed their initial Complaint on December 26, 2012, and Board has known from day one about plaintiffs' disparate impact contention and about the asserted numbers upon which those contentions rely - numbers asserted by responsible plaintiffs' counsel well aware of the obligations imposed on such a pleading by Rule 11(b). Both sides have been in active litigation in the intervening period, and n.2 reflects that plaintiffs have provided a current refinement on the original pleading figure.
But from Board? As already stated, nothing - yet it is after all Board's own self-maintained and self-known statistics that have to provide grist for the mill of any good faith denial of plaintiffs' assertions. Yet the current duel about class certification has been waged without any submission whatever from Board to underpin its original unexplained denial.
It is frankly astonishing under the circumstances for Board and its counsel to challenge plaintiffs' position because of an asserted lack of support, for it is Board and its counsel who themselves have all of the numbers at their command. That flouts common sense, and this Court summarily rejects that non-defense on the disparate impact front.
Certification of a class under Rule 23(c) is appropriate only if it satisfies all four prerequisites of Rule 23(a) and at least one of the criteria of Rule 23(b). Here plaintiffs are seeking certification under both Rule 23(b)(2) (to the extent that they seek injunctive relief) and Rule 23(b)(3) (to the extent that they seek damages). They have the burden of showing by a preponderance of the evidence that they have met all the required elements of the Rule ( Messner v. Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th Cir. 2012)). This opinion will go down the line of those Rule 23 prerequisites in order, setting out specific facts and legal standards as necessary.
Rule 23(a)(1): Numerosity
Under Rule 23(a)(1) a class can be certified only if "the class is so numerous that joinder of all members is impracticable." Unsurprisingly Board does not contest plaintiffs' assertion that their proposed class would be sufficiently numerous (B. Resp. Mem. 17 n.2). Indeed, even if this Court were to credit Board's rather than plaintiffs' calculation of the class size - a determination that need not be made at this juncture - ...