Brand et al v. Comcast Corporation, Inc.
Filing
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MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 11/13/2015: For the reasons stated in the accompanying decision, the Court denies plaintiffs' motion to amend the Court's class certification order [dkt. no. 132]. The case is set for a status hearing on 11/30/2015 at 8:45 AM to discuss the trial, its anticipated length, and any proceedings to take place between now and the trial. Lead trial counsel are directed to appear. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES BRAND, et al.,
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Plaintiffs,
vs.
COMCAST CORPORATION, INC.,
Defendant.
Case No. 11 C 8471
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
James Brand and eleven others, on behalf of a putative class of AfricanAmerican employees employed at the South Side Chicago facility of defendant Comcast
Corporation, Inc., filed suit against Comcast, alleging discrimination under 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act of 1964. Following class discovery, plaintiffs
sought to certify various classes. In July 2014, this Court granted plaintiffs' motion for
class certification, but only in part. The parties then engaged in merits discovery.
Plaintiffs have now moved to amend the Court's class certification order to certify two
additional classes. For the reasons stated below, the Court denies plaintiffs' motion.
Background
The Court assumes familiarity with the plaintiffs' allegations in this case and will
summarize them only briefly here. A more detailed recounting of the plaintiffs'
allegations can be found in the Court's July 5, 2014 decision on plaintiffs' motion for
class certification. See Brand v. Comcast Corp., 302 F.R.D. 201 (N.D. Ill. 2014).
The twelve named plaintiffs are Comcast employees who work or worked out of
the company's facility on South 112th Street in Chicago. According to the plaintiffs, the
workforce at the 112th Street facility is ninety percent African American. In their second
amended complaint, plaintiffs alleged that beginning in 2005, Comcast exposed 112th
Street personnel to a hostile working environment defined by insect and vermin
infestations and management's frequent use of racial epithets. In addition, plaintiffs
alleged that the neighborhoods they serviced were ill equipped to accommodate quality
cable service; Comcast frequently delayed or denied necessary training for 112th Street
workers; and Comcast intentionally and systematically supplied old, defective, and
insect-infested equipment to 112th Street workers and often failed to supply them with
the tools and equipment they needed to successfully perform their jobs as service and
line technicians. As a result, plaintiffs alleged, 112th Street workers frequently failed to
meet Comcast's performance metrics, which led to lower pay, fewer promotions, and
more discipline than for the mostly-white technicians at other Comcast facilities.
In their original motion for class certification, plaintiffs sought to certify five
classes, some of which they characterized as subclasses. First, plaintiffs sought to
certify a "hostile work environment class," consisting of "[a]ll current and former African
American employees at the 112th Street facility during the period January 1, 2005 and
the present." Pls.' Class Cert. Mot. ¶ 4. Next, plaintiffs sought to certify an "overall
terms and conditions class," which they defined as"[a]ll current and former African
American employees employed between November 2007 and the present by Comcast
at the 112th Street facility." Id. ¶ 6. Plaintiffs also sought to certify a "promotions" class
("[a]ll current and former technicians at the CT2 or higher level who were denied or
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delayed promotions"); a "pay" class ("[a]ll current and former cable technicians at the
CT2 or higher level who were denied equal and appropriate pay rates"); and a
"discipline or termination" class ("[a]ll current and former cable technicians who were
subjected to discriminatory discipline or terminations"). Id. ¶ 7(a)–(c).
The Court certified plaintiffs' hostile work environment class after finding that it
met the requirements of Federal Rule of Civil Procedure 23(a) and 23(b)(3). See Brand,
302 F.R.D. at 224. The Court concluded, however, that plaintiffs' other proposed
classes lacked the commonality required by Federal Rule of Civil Procedure 23(a)(3) as
defined by the Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541
(2011). The Court observed that the wide array of experiences among the named
plaintiffs portended even more variation in the claims and experiences of unnamed
members of the terms and conditions, promotions, and pay classes. Brand, 302 F.R.D.
at 226–27, 229–30. Likewise, the Court found that "plaintiffs' discipline and termination
claims as set forth here do not possess 'a common contention' wherein 'determination of
its truth or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.'" Id. at 231 (quoting Wal-Mart, 131 S. Ct. at 2551). The Court
thus declined to certify any of the plaintiffs' four additional proposed classes.
The parties proceeded to merits discovery, during which plaintiffs took the
depositions of numerous Comcast personnel and continued to analyze the "hundreds of
thousands of pages" of data that Comcast had produced. Pls.' Reply in Support of Mot.
to Amend Class Certif. Order at 14. Fact discovery closed on June 13, 2015, and
expert discovery closed on July 13, 2015. One week later, plaintiffs filed the present
motion to amend the Court's class certification order.
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Plaintiffs contend that three crucial facts came to light during merits discovery
that warrant revisiting the matter and certifying a promotions class and a discipline
class. They say that if these facts had been revealed during class discovery, it would
have changed both their strategy and the Court's class certification ruling. First,
plaintiffs claim that although Comcast's 30(b)(6) witnesses represented that the
performance improvement plan program, or "PIP program," was designed to capture
only ten percent of employees, later depositions revealed that Comcast was well aware
when it implemented the program that a much larger percentage of 112th Street
technicians would be placed on performance improvement plans than technicians in
other areas. Second, plaintiffs argue that contrary to Comcast's representations during
class discovery that the PIP program applied to all four areas of the greater Chicago
region and was phased out in late 2009 to early 2010, evidence revealed that two of the
four areas (including the area that is home to 112th Street) did not fully discontinue the
PIP program until the end of 2011. Third, plaintiffs claim that during depositions
conducted after the Court's class certification ruling, Comcast representatives revealed
that at the time the company set its performance metrics for technicians to qualify for
advancement (known as Qualify to Pursue, or "QTP"), Comcast was aware that only
two percent of technicians in 112th Street's area would qualify.
Accordingly, plaintiffs seek to certify two additional classes: (1) "all current and
former African American technicians at the 112th Street facility that were subject to a
Performance Improvement Plan ('PIP') from November of 2007 through December of
2011, as a result of failing to meet a specific performance metric"; and (2) "all current
and former African American CommTech 3 employees at 112th Street that failed to
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Qualify to Pursue ('QTP') to the next technician level from January of 2009 through
December of 2011, as a result of failing to meet a specific performance metric." Pls.'
Mem. in Support of Mot. to Amend Class Certif. Order at 2.
Discussion
Comcast argues that plaintiffs should not be permitted to seek amendment of the
Court's class certification order because their motion is not timely. Comcast also argues
that on the merits, plaintiffs' newly proposed discipline and promotions classes do not
satisfy Rule 23. Specifically, Comcast contends that both of plaintiffs' proposed classes
lack the requisite commonality and that plaintiffs Wharton and Jordan are not adequate
representatives with claims typical of the proposed QTP class. Comcast further argues
that plaintiffs' proposed classes are inappropriate for certification under either Rule
23(b)(3) or Rule 23(c)(4).
Comcast first urges the Court to reject plaintiffs' motion out of hand because at
the time plaintiffs filed for class certification in October 2013, they either already knew or
were in the position to know the information upon which they base their current motion.
The Court declines to do so. Whether or not evidence was withheld or facts
misrepresented as plaintiffs contend, there is enough arguably new evidence to warrant
revisiting the issue of class certification. Under Federal Rule of Civil Procedure
23(c)(1), "[a]n order that grants or denies class certification may be altered or amended
before final judgment." Fed. R. Civ. P. 23(c)(1). Class certification orders are thus
"inherently tentative." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11 (1978).
After a court enters a certification order, "the judge remains free to modify it in the light
of subsequent developments in the litigation." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
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147, 160 (1982).
The Court therefore turns to the merits of plaintiffs' motion. A party seeking class
certification must "affirmatively demonstrate his compliance" with the requirements of
Federal Rule of Civil Procedure 23. Wal-Mart, 131 S. Ct. at 2551; Bell v. PNC Bank,
Nat'l Ass'n, 800 F.3d 360, 376 (7th Cir. 2015). Thus plaintiffs must show each of their
proposed classes satisfies the four requirements of Rule 23(a): the class is so
numerous that joinder of all of the class members is impracticable (numerosity); there
are questions of fact or law common to the class (commonality); the class
representatives' claims are typical of the claims of the class (typicality); and the
representatives will fairly and adequately represent the class's interests (adequacy of
representation). Fed. R. Civ. P. 23(a)(1)–(4); see Messner v. Northshore Univ. Health
Sys., 669 F.3d 802, 811 (7th Cir. 2012). Plaintiffs also must demonstrate that each
proposed class falls within one of the three categories provided under Rule 23(b).
Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chicago, 797 F.3d 426,
433 (7th Cir. 2015).
Under Title VII of the Civil Rights Act, it is unlawful for an employer "to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin."
42 U.S.C. § 2000e–2(a)(1). It is also unlawful for an employer to discriminate on the
basis of race in the creation or enforcement of contracts. See 42 U.S.C. § 1981.
Plaintiffs have chosen to proceed with the employment discrimination claims applicable
to their two newly proposed classes under a disparate treatment theory rather than a
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disparate impact theory. To prove disparate treatment, plaintiffs must do more than
simply show that their employer knew a policy would have a disparate impact; plaintiffs
must demonstrate that defendant acted with discriminatory intent. See Chaib v.
Indiana, 744 F.3d 974, 984 (7th Cir. 2014); Brown v. Advocate S. Suburban Hosp., 700
F.3d 1101, 1104 n.1 (7th Cir. 2012) ("[T]he elements and methods of proof for § 1981
claims are essentially identical to those under Title VII, . . . so we need not analyze
them separately.") (internal citations and quotation marks omitted); cf. Pers. Adm'r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979) (holding in the context of a constitutional
equal protection claim that "'discriminatory purpose' implies more than intent as volition
or intent as awareness of consequences. It implies that the decisionmaker . . . selected
or reaffirmed a particular course of action at least in part 'because of,' not merely 'in
spite of,' its adverse effects upon an identifiable group") (internal citation omitted).
A plaintiff may prove discrimination directly or indirectly. To prevail under the
direct method of proof, a "plaintiff must produce either direct or circumstantial evidence
that would permit a jury to infer that discrimination motivated an adverse employment
action." Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792, 802 (7th Cir. 2014) Under
the indirect method, a plaintiff faces an initial burden to show "(1) he is a member of a
protected class; (2) he was meeting his employer's legitimate expectations; (3) he was
subject to an adverse employment action; and (4) similarly situated employees who
were not members of the protected class were treated more favorably." Preddie v.
Bartholomew Consol. Sch. Corp., 799 F.3d 806, 815 (7th Cir. 2015). Under either
approach, a plaintiff must demonstrate that she was the victim of adverse employment
action and that the adverse action was the result of discrimination.
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1.
Proposed PIP class
The newly proposed PIP class appears narrower than its predecessor, plaintiffs'
earlier-proposed discipline class. Instead of seeking to certify a class of all AfricanAmerican technicians who were "subject to discriminatory discipline or termination,"
plaintiffs seek only to certify a class of African-American technicians who, between
November 2007 and December 2011, were placed on performance improvement plans.
Plaintiffs offer evidence that Comcast had knowledge that 112th Street technicians
would struggle to satisfy the company's performance metrics more than technicians at
other locations and thus would be placed on performance improvement plans more
frequently than their counterparts at other facilities. Plaintiffs also offer evidence that
two other areas in the greater Chicago area phased out the PIP program long before
the 112th Street facility did so.
Both the Supreme Court in Wal-Mart and the Seventh Circuit in subsequent
cases have said that to show commonality, a plaintiff must show that the class members
all "suffered the same injury." Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th
Cir. 2012) (citing Wal-Mart, 131 S. Ct. at 2551); Bolden v. Walsh Const. Co., 688 F.3d
893, 896 (7th Cir. 2012). Placement on a performance improvement plan, however, is
not the relevant "injury" on a claim under Title VII or section 1981. The Seventh Circuit
has repeatedly held that placing an employee on a performance improvement plan is
not enough, by itself, to constitute actionable adverse employment action. See Davis v.
Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 677 (7th Cir. 2011); Cole v. Illinois,
562 F.3d 812, 816-17 (7th Cir. 2009); Oest v. Ill. Dep't of Corr., 240 F.3d 605, 613 (7th
Cir. 2001).
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The fact that placement on a performance improvement plan is insufficient to
give rise to liability does not mean that Comcast's establishment and imposition of its
performance metrics cannot be a common question within the meaning of Rule 23(a)(2)
and Wal-Mart. The Seventh Circuit's decision in Chicago Teachers Union illustrates this
point. Chicago Teachers Union involved the Chicago Board of Education's process of
selecting schools for "turnaround," which resulted in (among other things) replacement
of all of a selected school's faculty. Schools that failed to meet certain objective criteria
were candidates for turnaround, but the final selection included subjective criteria and
discretion on the part of decision makers. The Seventh Circuit ruled that the use and
application of the initial, objective selection criteria qualified as a common question
under Rule 23(a)(2) and Wal-Mart. Chicago Teachers Union, 797 F.3d at 436. In short,
it is clear from Chicago Teachers Union that the common question for Rule 23 purposes
need not involve the ultimate imposition of adverse action; as the court put it, "an early
discriminatory process can taint the entire process." Id.
But even if plaintiffs' proposed common questions, which involve Comcast's
knowledge of the impact of its performance metrics on African-American workers at the
112th Street facility, might qualify under Rule 23(a)(2)—a point the Court need not
decide definitively—that would not require certification of the proposed class. Unlike the
plaintiffs in Chicago Teachers Union, who sought class certification under Rule 23(b)(2),
the plaintiffs in the present case seek certification under Rule 23(b)(3), which requires
them to show that questions common to members of the class predominate over
questions affecting only individual members. This requires the Court to look at the
entire picture, not just the particular issue or issues claimed to be common to members
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of the class.
When it comes to the big picture, this case is not like Chicago Teachers Union,
which unlike the present case proceeded on a theory of disparate impact, not disparate
treatment. Specifically, plaintiffs do not suggest that every 112th Street worker placed
on a performance improvement plan suffered the same type of injury as a result. In
fact, it was clear from plaintiffs' first motion for class certification that the opposite is
true: some class members who were put on a performance improvement plan were
disciplined, and some were not; some eventually were terminated, but others were not;
and still others were terminated but later reinstated. The Court is unpersuaded that the
common issues concerning Comcast's establishment of the performance metrics and its
awareness of the impact of that decision would predominate over the myriad individual
issues concerning how particular workers were treated because of the application of the
performance metrics.
2.
Proposed QTP class
Plaintiffs' proposed QTP class is also a revision of an earlier-proposed class. In
their initial motion for class certification, plaintiffs proposed a promotions class
consisting of all current and former technicians who reached CommTech 2 level but saw
their promotions delayed or denied. Now, plaintiffs propose a QTP class consisting of
African-American technicians at 112th Street who, between January 2009 and
December 2011, advanced to CommTech 3 level but did not achieve QTP status. By
redrawing their promotions class in this way, plaintiffs claim to have proposed a class of
technicians who were all denied advancement for the same reason: their failure to
satisfy Comcast's performance metrics, which, plaintiffs contend, Comcast designed
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and implemented even though it was fully aware that 112th Street technicians would
disproportionately fail.
Unlike placement on a performance improvement plan, denial of promotion
qualifies as adverse employment action under Title VII and section 1981. Rhodes v. Ill.
Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004). That said, attaining QTP status is
not, in itself, a promotion to a higher position. A technician who attains QTP status
remains at CommTech 3 level until he is promoted to CommTech 4, and as Comcast
points out, even the named plaintiffs claim a variety of experiences regarding promotion
to CommTech 4—some were never promoted, some were promoted late, and some did
not seek promotion in the first place. Plaintiffs, however, do not focus on whether
workers were denied advancement to CommTech 4 level. Rather, they frame attaining
QTP status as effectively a promotion in and of itself, emphasizing that a worker who
"qualifies to pursue" receives an automatic five percent raise upon doing so. In this
way, plaintiffs say, all members of the QTP class were denied a pay raise that they
otherwise would have received but for Comcast discriminating against them by setting
the QTP metrics.
But before ever failing to meet the metrics, the plaintiffs had a variety of
experiences that are far more germane to the disparate treatment at the heart of this
lawsuit. Some technicians may have come up short because Comcast deliberately
withheld training; some may have failed because Comcast intentionally provided them
with inadequate tools or defective or infested equipment. Meanwhile, some technicians
may claim that they failed to meet the performance standards because a supervisor
exercised discretion in choosing to apply the metrics to them based on their race.
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The new evidence to which plaintiffs direct the Court's attention in their motion to
amend class certification does not change the fact that plaintiffs seek to challenge
facially neutral performance standards based on the way those standards were applied
to African-American technicians at 112th Street. In the original class certification order,
the Court observed:
To begin with, the "promotions policy" as plaintiffs describe it does not in
itself contain any discriminatory elements. It simply establishes a
progression for employees to accede to higher-ranked positions within
Comcast, setting up various requirements along the way. Plaintiffs appear
instead to be arguing that the way the policy was implemented was
discriminatory—not that the policy itself was discriminatory. That does not
help them in their task to demonstrate commonality, a problem borne out
by plaintiffs' own descriptions of differences in various plaintiffs'
experiences. . . . These differences add to the impression that plaintiffs'
promotions allegations do not derive from "a common contention—for
example, the assertion of discriminatory bias on the part of the same
supervisor," as they must in order to satisfy Rule 23(a)'s commonality
requirement. Wal-Mart, 131 S. Ct. at 2551.
Brand, 302 F.R.D. at 228–29. This reasoning applies equally to plaintiffs' proposed
QTP class.
In sum, even if plaintiffs were to prove that Comcast did set its performance
metrics knowing that African-American employees at 112th Street would be
disproportionately disciplined and denied promotion, and that Comcast did not change
its metrics even after learning the metrics indeed created such disproportionate impact,
each individual plaintiff would have significant additional work to do in order to prove
that he or she was subject to adverse employment action as a result of intentional
discrimination. Each plaintiff would need to demonstrate individually that he or she
failed to meet performance objectives as a direct result of Comcast's effort to undermine
112th Street technicians and that this resulted in adverse employment action. Simply
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proving that Comcast knew 112th Street workers would struggle to meet its
performance metrics more often than others would not be enough. Instead, plaintiffs
would be left to show the myriad ways in which Comcast undermined each individual
employee, and the various forms of adverse employment action those employees
experienced after being placed on performance improvement plans. For these reasons,
plaintiffs' proposed common questions do not predominate over individual issues as
required by Rule 23(b)(3).
Conclusion
For the foregoing reasons, the Court denies plaintiffs' motion to amend the
Court's class certification order [dkt. no. 132].
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: November 13, 2015
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