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Murdock-Alexander v. TempsNow Employment and Placement Services, LLC

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

November 21, 2016

PLAZ HALL MURDOCK-ALEXANDER, JR., on behalf of himself and other similarly situated laborers, Plaintiff,
v.
TEMPSNOW EMPLOYMENT AND PLACEMENT SERVICES, LLC and EMCO CHEMICAL DISTRIBUTORS, INC. Defendants.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge

         Plaintiff Plaz Hall Murdock-Alexander, Jr. (“Plaintiff”) filed this putative class action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, against Defendants TempsNow Employment and Placement Services, LLC (“TempsNow”) and EMCO Chemical Distributors, Inc. (“EMCO”) (collectively, “Defendants”), for alleged discriminatory hiring practices. Plaintiff, who is African American, claims that from May 2012 through the present, TempsNow refused to assign him and other African American laborers to its client companies, including EMCO, on the basis of race. On September 6, 2016, Defendants moved to: (1) strike Plaintiff's class allegations pursuant to Federal Rules of Criminal Procedure 23 and 12(f); and (2) dismiss Plaintiff's First Amended Complaint pursuant to Rule 12(b)(6). TempsNow Mot. Dismiss [21]; TempsNow Mot. Strike [24]; EMCO Mot.

         Dismiss [27]; EMCO Mot. Strike [28]. For the reasons explained below, Defendants' motions are granted in part and denied in part.

         I. Background

         A. Factual Allegations

         Plaintiff's complaint sets forth the following relevant facts, which the Court accepts as true for the purposes of Defendants' motions to dismiss. TempsNow operates a temporary employment agency with a branch office located in Waukegan, Illinois. First Am. Compl. [36] ¶¶ 8, 10. TempsNow provides third-party client companies, including EMCO, with low- and moderately-skilled laborers on a daily basis. Id. ¶ 11. The jobs for which TempsNow refers candidates, including those at EMCO, do not require special skills, training, or qualifications. Id. ¶ 18.

         Day laborers obtain work assignments from TempsNow by two methods. First, laborers physically visit the Waukegan branch office, place their name on a sign-in sheet, and wait while daily work assignments are distributed in the order in which laborers arrive. Id. ¶¶ 15, 20-23, 25-29. Second, laborers provide their contact information to TempsNow and are contacted remotely-again in numerical order-when a job referral becomes available. Id. ¶¶ 17, 30-35.

         Plaintiff is African American. Id. ¶ 7. On multiple occasions from May 2012 through the present, Plaintiff and other African American laborers sought work assignments from TempsNow via both hiring methods (in-person and remote contact). Id. ¶¶ 20-22, 31. On days where Plaintiff and other African American laborers visited the Waukegan branch office, non-African American laborers (specifically Hispanics) received work assignments before African American laborers, even though African American laborers were equally qualified and arrived at the Waukegan branch office earlier. Id. ¶¶ 25-29, 41. Furthermore, on the days Plaintiff and other African American laborers were not present at the Waukegan branch office, they were not contacted for work assignments. Id. ¶¶ 31-32. On these occasions, non-African American laborers were contacted before equally qualified African American laborers even though they had been seeking work for less time. Id. ¶¶ 33-35, 41.

         B. Plaintiff's EEOC Charges

         On March 31, 2015, Plaintiff filed Charges of Discrimination against Defendants with the Illinois Department of Human Rights and the federal Equal Employment Opportunity Commission (“EEOC”). First Am. Compl. [36] Ex. A. Plaintiff alleged that TempsNow and EMCO each possessed “a policy and/or practice of preferring non-African American laborers over other, qualified African American laborers[.]” Id. Plaintiff further claimed that such policies and practices “had the effect of denying [Plaintiff] and a class of other, qualified African-American laborers an equal employment opportunity and resulted in systematic discrimination against African-American applicants and segregation of [Defendants'] workforce[s].” Id. On February 12, 2016, the EEOC issued Plaintiff Notices of Right to Sue. Id.

         C. The Present Case

         Plaintiff filed suit in this Court on May 12, 2016. Plaintiff asserts that TempsNow intentionally refused to assign him and other African American laborers to its client companies, including EMCO, on the basis of race. First Am. Compl. [36] ¶¶ 38-39. Plaintiff further claims that EMCO advised TempsNow of its preference against African American laborers and directed TempsNow not to assign African American laborers to its work site.[1] Id. ¶¶ 45-47. In his First Amended Complaint, Plaintiff raises six class action causes of action that, for the purposes of the present motions, can be subdivided into two categories: (1) disparate treatment claims under 42 U.S.C. § 1981 and Title VII against TempsNow (Counts I and III, respectively) and EMCO (Counts II and V, respectively); and (2) disparate impact claims under Title VII against TempsNow and EMCO (Counts IV and VI, respectively). Id. ¶¶ 54-92. Plaintiff seeks to certify a class that includes:

All African-Americans who sought work assignments through the [TempsNow] Waukegan Branch Office and were eligible to work at one or more of [TempsNow's] client companies at any time between May 12, 2012 and the date of judgment and who, on one or more occasion, were not assigned to work at one of [TempsNow's] client companies.

Id. ¶ 51. Plaintiff also seeks to certify a separate subclass that includes:

All African-Americans who sought work assignments through the [TempsNow] Waukegan Branch Office and were eligible to work at EMCO Chemical Distributors, Inc. at any time between May 12, 2012 and the date of judgment and who, on one or more occasion, were not assigned to work at EMCO Chemical Distributors, Inc. by [TempsNow].

Id.

         II. Legal Standard

         A motion to dismiss under Rule 12(b)(6) “challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). To survive a motion to dismiss, the claim must first comply with Rule 8 of the Federal Rules of Civil Procedure by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice” of what the claim is “and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the complaint must contain “sufficient factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). That is, the allegations must raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). A claim has facial plausibility “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The plausibility standard “is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The “amount of factual allegations required to state a plausible claim for relief depends on the complexity of the legal theory alleged, ” but “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008). In evaluating the complaint, the Court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of Plaintiff. Iqbal, 556 U.S. at 678.

         Regarding Defendants' motions to strike, “if the defendant moves to dismiss the class allegations before discovery, the court must evaluate the motion using a standard similar to that of Fed.R.Civ.P. 12(b)(6).” Ladik v. Wal-Mart Stores, Inc., 291 F.R.D. 263, 269 (W.D. Wis. 2013). In the context of a determination under Rule 23, the question is whether Plaintiff's allegations are sufficient to show that it is plausible that he will be able to satisfy the Rule 23 requirements after conducting discovery. Id.

         III. Analysis

         A. Defendants' Motions to Strike

         Although class certification typically occurs “at a later stage in the proceedings, ” Guzman v. N. Illinois Gas Co., No. 09-cv-1358, 2009 WL 3762202, at *2 (N.D. Ill. Nov. 6, 2009), a defendant is not precluded from filing a preemptive motion to strike or deny class allegations. Pursuant to Rule 23(c)(1)(A), at “an early practicable time” after a person sues as a class representative, “the court must determine by order whether to certify the action as a class action.” In addition, under Rule 23(d)(1)(D), a court conducting a class action may issue orders that “require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” More ...


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