Bolden v. Walsh Construction Co.
688 F.3d 893
| 7th Cir. | 2012Background
- Walsh Construction, a large national builder, uses on-site superintendents with discretion over hours and overtime for hourly workers.
- Plaintiffs allege two forms of discrimination at Walsh sites: racially biased overtime practices and hostile work environment via slurs, graffiti, and nooses.
- District court certified two classes covering Walsh's Chicago-area projects since 2001: a hostile-work-environment class and an overtime class.
- Walsh appealed under Fed. R. Civ. P. 23(f), arguing the multi-site classes were improper due to site-specific variability.
- Key issue is whether a company-wide, multi-site class can be certified when discretionary decisions vary by site and by supervisor.
- The panel reverses, concluding the proposed classes fail Rule 23(a)(2) commonality and Falcon/Wal-Mart guidance on multi-site certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly certified multi-site classes under Rule 23(a)(2). | Wal-Mart requires common questions across sites. | Walsh contends site-specific variability defeats commonality. | Class certification reversed; lacks commonality. |
| Do site-by-site discretionary decisions prevent company-wide commonality. | Discretionary decisions create common issues across sites. | Discretion at local sites prevents uniform claims across all sites. | Rejects company-wide class; cannot aggregate site-specific discretion. |
| Is the hostile-work-environment class compatible with Falcon and manageable. | Evidence of discriminatory language and conditions shows common injury. | Conditions vary by site; per-site trials would be required. | Not compatible; not manageable; not Rule 23(a)(2) compliant. |
| Is the overtime class properly defined given reliance on future merits and race-based denial of opportunities. | Class should include those denied opportunities due to race. | Definition hinges on future merits; uncertainty undermines certification. | Definition problem; future-merits basis not appropriate for class scope. |
| Could site-specific or superintendent-specific classes be certified as an alternative. | Smaller, per-site classes could meet Rule 23 requirements. | Even site-specific classes may be unmanageable or fail numerosity. | Potential path forward; district court may certify site- or superintendent-specific classes if appropriate. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (discretionary local management defeats commonality in multi-site class)
- Falcon v. General Tel. Co., 457 U.S. 147 (1982) (across-the-board classes incompatible with Rule 23 when discretion is exercised)
- McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (national policy can support a company-wide class if a single policy exists)
- Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (recognizes discretion as potential source of discrimination)
- United States v. Bestfoods, 524 U.S. 51 (1998) (corporate formalities and piercing corporate veil considerations)