Bolden v. Walsh Group
282 F.R.D. 169
N.D. Ill.2012Background
- Twelve black Walsh employees sues for Title VII and 1981 discrimination, alleging company-wide discriminatory practices across Chicago-area sites.
- Walsh delegated hiring, layoffs, overtime, and promotions to on-site superintendents/foremen with no uniform policy.
- Overtime under Walsh’s union contract is voluntary and stewards have first-refusal rights; no formal job criteria for hours or promotions.
- EEOC determinations found reasonable cause of discrimination in hiring/layoffs/harassment but not in wages/overtime; plaintiffs rely on time-card data and affidavits.
- Plaintiffs seek certification of four classes: hostile work environment; hire/re-hire/promotion; work hours and compensation; layoff/termination; with limited geographic/job scope to Chicago area journeymen and black employees.
- The court grants in part and denies in part the class-certification motion, with hostile environment and certain disparate-impact (hours/overtime and promotions) classes certified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether class claims satisfy Rule 23(a)(2) commonality. | Chism and others seek common questions from a company-wide policy. | Walsh argues individual-site decisions disrupt commonality under Wal-Mart. | Common questions may exist but not for all claims; overall disparate-treatment class not certified. |
| Whether class claims meet Rule 23(a)(3) typicality. | Representatives share core practices with class. | Differences in injuries/timing may impair typicality. | Work-hours/compensation and hostile environment typical; promotion class not typical due to standing issues. |
| Whether named representatives satisfy Rule 23(a)(4) adequacy. | Representatives adequately protect class interests. | Some named plaintiffs lack journeyman status for hours class; none alleged denied promotions. | Jackie White and Bolden not adequate for hours class; promotion-class standing lacking. |
| Whether Rule 23(b)(2) or (b)(3) certification is appropriate. | Hybrid or bifurcated certification may be warranted. | Wal-Mart limits (b)(2) where injunctive relief benefits the whole class. | Rule 23(b)(3) certification appropriate; (b)(2) not certified for this case. |
| Whether predominance/superiority support certification of disparate-impact and hostile-environment classes. | Common proof (policy of discretion) governs hours/overtime and promotions; harassment shows pattern. | Individualized proofs could overwhelm common issues; limited anecdotes insufficient for some classes. | Disparate-impact (hours/overtime and promotion) class satisfies predominance; hostile-environment class satisfies predominance and superiority. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (admonishes manageability; single common question may suffice for Rule 23(a)(2) under Wal-Mart)
- Falcon, General Tel. Co. of the S.W. v. Falcon, 457 U.S. 147 (U.S. 1982) (requires precise pleadings to define class and adequacy of representation)
- McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (common policy can drive class-wide liability when discretion is set at top)
- Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012) (common questions and statistical proof can support class actions in wage cases)
- Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (U.S. 1977) (disparate treatment framework and burden-shifting principles)
- Griggs v. Duke Power Co., 401 U.S. 424 (U.S. 1971) (disparate impact standard and business-necessity justification)
- Watson v. Ft. Worth Bank & Trust, 487 U.S. 977 (U.S. 1988) (subjective decisionmaking can create disparate impact liability)
- Ellerth v. Burlington Industries, Inc., 524 U.S. 742 (U.S. 1998) (employer liability defenses for hostile environment claims)
- Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (employer liability defenses for hostile environment claims)