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Murphy v. Professional Transportation, Inc.

United States District Court, S.D. Illinois

November 27, 2017

ROBERT MURPHY, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff,



         Plaintiff Robert Murphy[1] is the named plaintiff, individually and on behalf of all similarly situated persons, in a single count Amended Class Action Complaint against Defendant Professional Transportation, Inc. (“PTI”), alleging violations of the Illinois Prevailing Wage Act (“IPWA”), 820 ILCS 130/1, et seq. (Doc. 14). Now pending before the Court is Plaintiff's Amended Motion for Class Certification (Doc. 62). PTI filed a response in opposition (Doc. 67). During the hearing on the motion, the Court ordered additional briefing which the parties have filed (Docs. 101, 103). Plaintiff also filed an additional supplemental brief regarding Plaintiff's qualifications to serve as Class Representative, to which PTI responded (Docs. 116, 117).[2] For the following reasons, Plaintiff's Amended Motion for Class Certification is DENIED.


         PTI is a corporation that provides transportation services. (Doc. 67 at 3-4). Plaintiff Robert Murphy and the putative class members were employed by PTI as drivers assigned to provide ground transportation services to the Union Pacific Railroad, allegedly in connection with track replacement work on the Illinois High Speed Rail Project. (Doc. 14 at ¶ 11). The crux of Murphy's claim is that this work falls within the scope of the IPWA, but that he and the putative class members were paid less than the applicable prevailing wage.[3] PTI responds that the IPWA is inapplicable for a variety of reasons. For purposes of class certification, the Court will assume (without deciding) that the High Speed Rail Project in general and the work allegedly performed by the putative class members may be subject to the IPWA.

         The Job

         According to original named plaintiff John Garecht's deposition, his job with PTI involved transporting train crews to different projects in a minivan. (Deposition of John Garecht, [4] Doc. 67-1 at 16, 25-26). On days when he was assigned to the High Speed Rail Project, he would pick up a conductor, an engineer and a brakeman from their hotel, take them to their train and follow the train as it went down the track. (Id. at 36). At lunchtime, he would take one of the crew members to pick up food for the group, and would take them back to the hotel at the end of their shift. (Id.). In addition to transporting the crew, he would occasionally haul an End-of-Train (“EOT”) device and water. (Id. at 26-27). He drove through a number of different counties while transporting High Speed Rail Project crews. (Id. at 63).

         Plaintiff Murphy's deposition testimony regarding his job duties was very similar. He also testified that the job took him through different counties within a workday (Deposition of Robert Murphy, Doc. 116-1 at 57) and that he would transport things besides passengers, such as EOT devices and supplies. (Id. at 43). Additionally, he would sometimes function as a “blocker” at uncontrolled railroad crossings, placing his vehicle across the lanes and directing traffic, though he could not recall how many times he had done so in the State of Illinois. (Id. at 41, 43).

         The Illinois Prevailing Wage Act

         The IPWA requires that workers be paid no less than the “general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed[.]” 820 ILCS 130/3.[5] Under the IPWA, “locality” is defined as “the county where the physical work upon public works is performed[.]” 820 ILCS 130/2. There are two exceptions to the application of the term: (1) if there is not a sufficient number of competent skilled laborers, workers and mechanics to construct the public works efficiently and properly, “locality” can mean any other county nearest the one in which the work or construction is to be performed and from which such persons may be obtained in sufficient numbers to perform the work; and (2) certain contracts for highway work. Id.

         The Illinois Department of Labor (“IDOL”) periodically publishes listings of the prevailing wage by county and job classification.[6] The job classifications vary by county and the listings include the types of work performed by each classification. The job classifications can vary even within a county. For example, Livingston County's description of the Class 1 Truck Drivers category varies depending on whether the work is performed in the northwest or southeast portion of the county. Moreover, the classifications are often very specific as to job duties-the current southeast Livingston County Class 1 Truck Driver explanation from May 2011 reads:

Two or three Axle Trucks. A-frame Truck when used for transportation purposes; Air Compressors and Welding Machines, including those pulled by cars, pick-up trucks and tractors; Ambulances; Batch Gate Lockers; Batch Hopperman; Car and Truck Washers; Carry-alls; Fork Lifts and Hoisters; Helpers; Mechanics Helpers and Greasers; Oil Distributors 2-man operation; Pavement Breakers; Pole Trailer, up to 40 feet; Power Mower Tractors; Self-propelled Chip Spreader; Skipman; Slurry Trucks, 2-man operation; Slurry Truck Conveyor Operation, 2 or 3 man; Teamsters; Unskilled dumpman; and Truck Drivers hauling warning lights, barricades, and portable toilets on the job site. By contrast, the explanation for the northwest portion of the county specifies two axle trucks hauling less than nine tons, among other things. Id.

         These published listings are not exhaustive. The statute provides a mechanism for determining the prevailing wage for any covered job on a given project. Specifically, the public body awarding the contract is required to “ascertain the general prevailing rate of hourly wages in the locality in which the work is to be performed, for each craft or type of worker or mechanic needed to execute the contract” or it may request that the IDOL do so. 820 ILCS 130/4(a). The IDOL's published Prevailing Wage Rate documents similarly direct that for classifications not otherwise set out or for tasks not subject to one of the stated classifications, the IDOL should be contacted to make a determination. Factors to be considered in determining similarity of work include the requisite skills, training, and knowledge. Illinois Landscape Contractors Ass'n v. Dep't of Labor, 372 Ill.App.3d 912, 923, 866 N.E.2d 592, 602 (2007). The statute also provides for both administrative and judicial review of prevailing wage determinations. 820 ILCS 130/9.

         The IPWA provides a cause of action for any covered laborer, worker or mechanic “who is paid for his services in a sum less than the stipulated rates for work done under such contract” for the difference there may be between the amount paid and the stipulated rate, together with costs and attorney's fees. 820 ILCS 130/11. A violator is liable to the state for a penalty of 20 percent of such an underpayment, and a plaintiff is entitled to a punitive damage award of two percent of that penalty for each month during which such underpayments remain unpaid. Id. Implicit in the enforcement scheme is an assumption that there is a stipulated rate associated with the underlying contract-that is, that there was an advance determination regarding the applicable prevailing wage for the given task on the given project in the given locality.

         Legal Standard

         Murphy moves for class certification under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. He seeks to represent a class defined as follows:

Current and former PTI employees who are or were employed by defendant as drivers and provided ground transportation services of train crews to the Union Pacific railroad in conjunction with the construction of the Illinois High Speed Rail project and were not paid the prevailing wage in accordance with Illinois law since 2010. (Doc. 14 at ¶59).

         To be certifiable, a class must first be definable and meet the requirements of numerosity, commonality, typicality and adequacy of representation. See Fed. R. Civ. P. 23(a); Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). If the action meets those requirements, it must then fall within one of the three enumerated Rule 23(b) categories. Spano v. The Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011) (“(1) a mandatory class action (2) an action seeking final injunctive or declaratory relief, or (3) a case in which the common questions predominate and class treatment is superior.”).

         A class may be certified only if a district court is “satisfied, after a rigorous analysis, ” that compliance with Rule 23 has been shown, even if the analysis entails some overlap with the merits. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). Although a plaintiff bears the burden of showing that the proposed class satisfies the Rule 23 requirements, he “need not make that showing to a degree of absolute certainty.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)(internal citation omitted).


         While the proposed class in indisputably definable, PTI raises an objection that the proposed class constitutes a “fail-safe” class. A fail-safe class is one that, under the law of this circuit, is improperly defined based on success on the merits. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015). Fail-safe classes are improper because “a class member either wins or, by virtue of losing, is defined out of the class and is therefore not bound by the judgment.” Messner, 669 F.3d at 825.

         Here, the class definition is not fail-safe, despite incorporating a reference to statutory law. Even if a putative class member is found to have been paid the correct amount under Illinois law, either because the IPWA does not to apply or because they were paid at a rate commensurate with the prevailing wage, they would still be bound by the Court's Judgment. Therefore, PTI's objection is rejected.

         Rule ...

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