Synthiа G. ROSS, James Kapsa, and Sharon Wells, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. RBS CITIZENS, N.A. d/b/a Charter One and Citizens Financial Group, Inc., Defendants-Appellants.
No. 10-3848.
United States Court of Appeals, Seventh Circuit.
January 27, 2012.
Rehearing En Banc Denied April 3, 2012.
667 F.3d 900
Before KANNE and EVANS *, Circuit Judges and CLEVERT, District Judge.**
Argued April 12, 2011.
The district court should have treated § 459 as a crime that otherwise presents a serious potential risk of injury rather than as the enumerated crime of “burglary of a dwelling” under § 4B1.2(a)(2). But since § 459 nonetheless still qualifies as a crime of violence under § 4B1.2(a)(2), Scanlan has not identified an error in the guidelines calculation and he has not established plain error. See United States v. Turner, 651 F.3d 743, 748 (7th Cir.2011).
Therefore, Scanlan‘s sentence is AFFIRMED.
Mark W. Batten (argued), Attorney, Proskauer Ross LLP, Boston, MA, for Defendants-Appellants.
KANNE, Circuit Judge.
Synthia Ross, James Kapsa, and Sharon Wells1 filed this class action against RBS Citizens, N.A. doing business as Charter One (a related entity, Citizens Financial Group, Inc. is also named but for simplicity, it need not be mentioned) for allegedly violating the Fair Labor Standards Act,
I. BACKGROUND
Charter One operates more than 100 bank branches in Illinois. Most are traditional stand-alone branches, and the rest
Synthia Ross began working as a teller at a Chicago branch in 2000 and was later promoted to teller manager before her employment terminated in 2007. James Kapsa was hired as an ABM at a branch in St. Charles, Illinois, in 2007 and became acting branch manager for a short period of time before switching roles to become a personal banker. Kapsa spent time at several other Illinois branches before his employment terminated in 2009. Ross alleges that Charter One has an unofficial policy of denying overtime pay to its non-exempt employees by: (1) instructing them not to record hours worked per week over forty; (2) erasing or modifying recorded overtime hours; (3) giving them “comp time” instead of paying overtime; and (4) requiring them to perform work during unpaid breaks. Kapsa alleges that Charter One illegally denies ABMs overtime pay by misclassifying their positions as exempt even though ABMs spend the majority of their time performing non-exempt work. Charter One denies that any such unofficial policy exists, and further contends that ABMs are correctly classified as exempt employees.
Plaintiffs sought to certify two classes for the IMWL claim—the “Hourly” class and the “ABM” class. The proposed Hourly class definition is:
All current and former non-exempt employees of [Charter One] who have worked at their Charter One retail branch locations in Illinois at any time during the last three years, who were subject to [Charter One‘s] unlawful compensation policies of failing to pay overtime compensation for all hours worked in excess of forty per work week.
The proposed ABM class definition is:
All current and former Assistant Branch Manager employees of [Charter One] who have worked at their Charter One retail branch locations in Illinois at any time during the last three years, who were subject to [Charter One‘s] unlawful compensation policies of failing to pay overtime compensation for all hours worked in excess of forty per work week.
In a carefully reasoned seventeen-page opinion and order, Judge Lefkow fоund that the plaintiffs satisfied the four class-action prerequisites of
Charter One filed this timеly interlocutory appeal pursuant to
II. ANALYSIS
Charter One appealed the district court‘s certification order, and this interlocutory appeal is now before us on (1) the very narrow issue of whether the district court judge‘s certification order complied with
A. Defining the Class and the Class Claims, Issues, or Defenses
Only the Third Circuit has fully addressed the meaning of
To “define” a thing or concept is “to state precisely or determinately [its boundaries]; to specify” or “[t]o frame or give a precise description” of a thing. Oxford English Dictionary (2d ed.1989). According to the Rule, those things to be defined in a certification order include the “class and the class claims,
issues, or defenses....” Fed.R.Civ.P. 23(c)(1)(B) (emphasis added). The above elements occur in a conjunctive, undifferentiated list, indicating that the requirement to “define” the “class claims, issues or defenses” is identical to the requirement to define the “class” itself within a given certification order. Id. Furthermore, the use of the definite article “the” before “class claims, issues, or defenses” connotes comprehensiveness and specificity, rather than illustrative or partial treatment, in defining those aspects of class action certifiсation.
We find this interpretation persuasive, especially when read in conjunction with the history and purpose of the 2003 amendments to
The Third Circuit‘s plain reading of the Rule is also supported by the Federal Rule‘s apparent move towards the creation of voluntary trial plans. In observing courts’ increased use of class-action trial plans, the Advisory Committee noted that the “сritical need is to determine how the case will be tried.”
Given the text, history, and purpose of
1. Defining the Class
Charter One first challenges whether the class was properly defined. The district court‘s certification оrder created an Hourly class and an ABM class
Although there is perhaps some minor ambiguity in the certification order, the district court‘s memorandum opinion accompanying the order eliminates any potential for confusion. In fact, Judge Lefkow concluded in her
Furthermore, the potential harms of a poorly-defined class are not implicated by the district court‘s alleged lack of precision. For еxample, our review of the certification order and memorandum opinion was in no way diluted by an imprecise class definition. As we have already made clear, we read Judge Lefkow‘s well-reasoned seventeen-page opinion and order to define both classes as consisting of all Hourly and ABM employees and former employees who have worked at Charter One during the previous three years. Similarly, the Simer justifications for a clear class definition do not come into play. Here, employees and formеr employees within the past three years are on notice of how their rights might be affected by litigating this dispute as a class because the plaintiffs’ proposed notice mirrors the district court‘s certification order.5 Ultimately, we find that the district court defined the class in a manner that is “readily discernible from the text either of the certification order itself or of an incorporated memorandum opinion.” Wachtel, 453 F.3d at 185.
2. Defining the Class Claims, Issues, or Defenses
Charter One also asserts that the district court abused its discretion by identifying only two claims for trial instead of identifying a comprehеnsive list of claims,
Like the district court‘s definition of the class, we find no abuse of discretion in how Judge Lefkow defined the class issues, claims, or defenses. To begin, Charter One‘s heavy reliance on Wachtel is misplaced. There, the Third Circuit chided the district court for using the Latin phrase inter alia (“among other things“) because the very use of that phrase suggests that the list of common issues is intentionally incomplete. 453 F.3d at 189. The district court in this case did not make the same mistake. The Wachtel court also found the district court‘s treatment of the clаims, issues, and defenses to be “unclear, intermittent, and incomplete,” with nothing in the certification order that “evidences an intent to explicitly define which claims, issues, or defenses are to be treated on a class basis.” Id.
Here, the district court‘s opinion does not suffer from the same deficiencies as the Third Circuit found in Wachtel. Rather, the plaintiffs’ claims that will be tried as a class are “readily discernible” from the district court‘s order and accompanying opinion. For example, Judge Lefkow clearly identified the Hourly class‘s claim that they were subject to a company policy that intentionally failed to pay lawfully earned overtime. Ross, 2010 WL 3980113, at *6 (“[T]he common issue of whether a company-wide policy existed to deny overtime will predominate over the variations in methods used to accomplish the alleged policy.“). The district court went so far as to identify four possible ways in which the plaintiffs claimed they had been forced to work off-the-clock, although Judge Lefkow appropriately left room for the introduction of other types of evidence illustrаting the nature of Charter One‘s unlawful policy. Id. Explicit identification of this claim and four possible types of evidence is exactly the type of clarity and completeness required by
Ultimately, the claims identified by the district court are the only claims that require resolution at trial and the district court appropriately found that these claims will be litigated as a class. The seven questions raised by Charter One are merely issues of trial strategy or proof, rather than overall claims or issues necessitating resolution. If we read
B. Commonality
Following oral argument in this case, the Supreme Court clarified the
The commonality prerequisite requires the plaintiff to show that “there are questions of law or fact common to the class.”
In Dukes, a nationwide class of 1.5 million current and former female employees from 3,400 stores sued Wal-Mart, alleging that the company engaged in a pattern or practice of gender discrimination in violation of Title VII of the Civil Rights Act of 1964. Id. at 2547. A Title VII disparate-treatment suit of course requires that plaintiffs show proof of discriminatory motive or intent. Int‘l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Dukes, 131 S.Ct. at 2552 (“[I]n resolving an individual‘s Title VII claim, the crux of the inquiry is the reason for a particular employment decision.“). In Dukes, the Court reversed the distriсt court‘s certification order on the grounds that the plaintiff could not offer “significant proof that Wal-Mart operated under a general policy of discrimination.” Dukes, 131 S.Ct. at 2553, 2556 (a policy allowing discretion “is just the opposite of a uniform employment practice that would provide the commonality needed for a class action“) (quotation marks omitted). In reversing class certification, the Court found that there was no unifying motive theory holding together “literally millions of employment decisions.” Id. at 2552.
In the present case, Charter One attempts to find significant similarities with Dukes. Charter One‘s principal contention is that both classes’ claims require the same significant and time-consuming individualized liability inquiries that the Supreme Court found problematic in Dukes. For the Hourly class, Charter One argues that there are at least four ways in which plaintiffs were denied overtime, and sifting through such individualized evidence should preclude a commonality finding. Similarly for the ABM class, Charter One contends that a factfinder would be required to individually determine whether each ABM performed non-exempt duties.7 The defendant makes one
Despite Charter One‘s best efforts to fit the present case into the Dukes mold, there are significant distinctions. Perhaps the most important distinction is the size of the class and the type of proof the Dukes plaintiffs were required to offer. See, e.g., Youngblood v. Family Dollar Stores, Inc., No. 09 Civ. 3176(RMB), 2011 WL 4597555, at *4 (S.D.N.Y. Oct. 4, 2011) (distinguishing Dukes on the ground that New York‘s version of the FLSA does not require “an examination of the subjective intent behind millions of individual employment decisions“); Bouaphakeo v. Tyson Foods, Inc., No. 5:07-cv-04009-JAJ, 2011 WL 3793962, at *2 (N.D.Iоwa Aug. 25, 2011) (reasoning that because ”Dukes was a Title VII case, the focus of the inquiry in resolving each individual‘s claim was ‘the reason for [the] particular employment decision‘“). In Dukes, 1.5 million nationwide claimants were required to prove that thousands of store managers had the same discriminatory intent in preferring men over women for promotions and pay raises. Here, there are 1,129 Hourly class members and substantially fewer ABMs, all of whom are based only in Illinois. The plaintiffs’ IMWL claim requires no proof of individual discriminatory intent. Instead, the plaintiffs’ theory, supported by ninety-six Hourly class dеclarations and twenty-four ABM class declarations, is that Charter One enforced an unofficial policy in Illinois denying certain employees overtime pay that was lawfully due. All ninety-six Hourly declarations specifically allege that the declarant had been denied lawfully due overtime compensation. Eighty-nine declarations further allege that Charter One had a policy instructing the declarant not to record earned overtime. Meanwhile, the majority of the ABM declarants assert that they primarily performed non-exempt work. Although there might be slight variations in how Charter One enforced its overtime policy, both classes maintain a common claim that Charter One broadly enforced an unlawful policy denying employees earned-overtime compensation. This unofficial policy is the common answer that potentially drives the resolution of this litigation. Dukes, 131 S.Ct. at 2551.
Appellant‘s final criticism of the ABM class equating Wal-Mart managers’ promotion discretion with the limited discretion vested in Charter One branch managers is misplaced. Specifically, the plaintiffs in Dukes alleged that the discretion given to Wal-Mart managers is what caused female employees to experience disparate treatment. Id. at 2548. The Supreme Court was clearly unable to infer a common claim from an allegation that on its face suggested store managers exercised significant discretion. Id. at 2554. Here, the ABM class contends, and is supported in part by twenty-four ABM declarations, that a company-wide policy in Illinois requires ABMs to perform non-exempt work in violation of the IMWL. Although there again might be slight variations in the exact duties that each ABM
Ultimately, the glue holding together the Hourly and ABM classes is based on the common question of whether an unlawful overtime policy prevented employees from collecting lawfully earned overtime compensation. For that reason, we find that the district court‘s certification order satisfies the commonality prerequisite and the district court properly granted class certification.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s order certifying an Hourly and ABM class for the plaintiffs’ IMWL claims.