Dayton v. Oakton Community College et al
Filing
54
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 5/17/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants Dayton's motion for collective and class certification [dkt no. 35] . The Court certifies a class consisting of "all part-time and adjunct faculty who were denied employment at Oakton Community College as the result of its policy not to employ or re-employ State Universities Retirement System annuitants and who are not 'affected annuitants' pursuant to 40 ILCS 5/15-139.5(b)(2)" and appoints Nathan D. Eisenberg, Sara J. Geenen, and Erin F. Medeiros, and Stephen Yokich to represent the class. Dayton has also moved for approval of his proposed notice to class members. Defendants have not objected to the proposed notice, and the Court approves the notice Dayton has proposed, except that the word "promulgated," where used, should be changed to "established" to make it m ore readily understandable. Class counsel are directed to immediately communicate the Court's decision to counsel for the plaintiffs in the two consolidated individual suits. The case remains set for a status hearing on Monday, May 22, 2017 at 9:30 a.m. to set a schedule for further proceedings. (mk)
Case: 1:16-cv-06812 Document #: 54 Filed: 05/17/17 Page 1 of 15 PageID #:996
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARRY H. DAYTON, individually and
on behalf of others similarly situated,
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Plaintiff,
v.
OAKTON COMMUNITY COLLEGE,
MARGARET LEE, JOIANNE SMITH,
MICHAEL ANTHONY, KARL BROOKS,
MAYA EVANS, TOM HAMEL,
COLETTE HANDS, BONNIE LUCAS, and
MUM MARTENS,
Defendants.
Case No. 16 C 6812
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In November 2014, Defendant Oakton Community College announced that, as of
July 1, 2015, it would no longer employ annuitants of a pension plan referred to as the
State Universities Retirement System (SURS). Plaintiff Barry Dayton, a former parttime faculty member at Oakton, was one of the employees affected by the announced
policy. He has sued Oakton, on behalf of himself and a proposed class of similarly
situated part-time and adjunct faculty of the college, alleging that the implementation of
the policy violates the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
§ 623, as well as 42 U.S.C. § 1983 and section 5 of Article XII of the Illinois Constitution.
Dayton has named the following individuals as defendants, in addition to Oakton:
Margaret Lee, Oakton's president at the time the policy was enacted; Joianne Smith,
Oakton's current president and member of the president's advisory council at the time
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the policy was enacted; and Michael Anthony, Karl Brooks, Maya Evans, Tom Hamel,
Collette Hand, Bonnie Lucas, and Mum Martens, the other members of Lee's advisory
council at the time the policy was enacted. Two other employees affected by the policy
have filed individual suits against Oakland, and their cases have been consolidated with
this one.
Dayton has moved for collective certification of his ADEA claims under 29 U.S.C.
§ 626(b) and for class certification of his other claims under Federal Rule of Civil
Procedure 23. Defendants contend that Dayton cannot meet the certification standards
under either the ADEA or Rule 23. For the reasons stated below, the Court grants
Dayton's motion.
Background
Oakton is a two-year community college that employs full-time, part-time, and
adjunct faculty to teach the courses it offers. Adjunct faculty are those faculty who
teach twenty-seven or fewer "lecture hour equivalents" (LHEs) per academic year.
They are covered by a collective bargaining agreement (CBA) between the college and
the Oakton Community College Adjunct Faculty Association. Faculty who do not work
full time and are not covered by the CBA (because, for example, they teach six or fewer
LHEs per academic year) are considered "part-time," rather than adjunct, faculty.
Neither part-time nor adjunct faculty members are eligible for tenure, and the college
retains sole discretion in offering them course assignments on a term-by-term basis. In
practice, the deans of individual college divisions, with the assistance of department
chairs and coordinators, assign courses to adjunct and part-time faculty after the faculty
members submit course request forms. A number of factors determine how courses are
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assigned, including the courses offered in a given academic term, the qualifications of
the faculty requesting courses, priority assignment rights, and department needs. Once
adjunct and part-time faculty members receive course assignments, they can earn
additional compensation by engaging in other activities at the college, such as tutoring
or attending meetings.
SURS is a pension plan that provides retirement benefits to eligible individuals
who are or were employed by covered public Illinois state universities or community
colleges. Oakton is one of the public community colleges covered by SURS. A number
of Oakton's part-time and adjunct faculty members are retirees who previously were
employed by Oakton or other covered state universities and began drawing an annuity
from SURS upon their retirement.
Illinois law places earnings limitations on SURS annuitants who return to work for
a covered college or university after retirement. Illinois' so-called "Return to Work" law
prohibits SURS annuitants who retire prior to age 60 from receiving monthly
compensation in an amount greater than their monthly base SURS annuity. If the
employee does receive compensation greater than the amount of the monthly annuity,
the employee is not entitled to the portion of the annuity provided by employer
contributions for that month. See 40 Ill. Comp. Stat. 5/15-139(b). An annuitant who
retires at age 60 or over is limited to earning compensation that, when combined with
his or her annual retirement annuity, does not exceed his or her highest annual earnings
prior to retirement. Id. If an annuitant's compensation is greater than the difference
between his or her highest annual earnings prior to retirement and his or her annual
retirement annuity, the portion of the monthly retirement annuity provided by employer
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contributions is reduced by the amount that the compensation exceeds that difference.
Id. In 2012, Illinois amended the Return to Work law to place additional earnings
limitations on SURS annuitants who return to work for covered colleges and
universities. Under the amended law, an employer must pay a financial penalty to
SURS if the employer employs an "affected annuitant" after August 1, 2013. See id. §
15-139.5. An affected annuitant is any SURS annuitant who (1) returns to work for a
covered college or university and earns compensation in excess of 40% of his or her
highest annual earnings prior to retirement and (2) receives an annualized SURS
annuity of at least $10,000. 1 Id. § 15-139.5(b). The law obligates employers to
determine whether its employees are affected annuitants.
Following passage of the amended Return to Work law, Oakton decided that it
would not re-employ any SURS annuitants who became affected annuitants under the
law so that it could avoid paying the penalty for employing affected annuitants.
Oakton's human resources department monitored the employment and earnings of the
SURS-annuitant employees to ensure that none of the annuitants it employed had
exceeded the 40% earnings limitation. According to Oakton, the monitoring process
was burdensome, and despite the efforts of the human resources department, the
college inadvertently employed three affected annuitants after September 1, 2014. As a
result of employing the affected annuitants, Oakton was assessed a penalty of
approximately $75,000. After Lee, who was Oakton's president at the time, learned that
the college would be assessed the penalty, she met with her advisory council. Lee and
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A person becomes an affected annuitant on the first day of the academic
year following the academic year in which he or she meets affected-annuitant
conditions. Any person who becomes an affected annuitant remains an affected
annuitant unless he or she returns to active service and ceases receiving a SURS
annuity. See 40 Ill. Comp. Stat. 5/15-139.5(b).
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the council members determined that, effective July 1, 2015, the college would no
longer employ SURS annuitants, whether they were "affected" or not. Martens, the
college's executive director of human resources, announced the college's decision on
November 13, 2014 in an e-mail to all SURS annuitants who worked for the college.
According to Oakton, the new policy would not only prevent the assessment of penalties
for employing affected annuitants but would also eliminate the burden of monitoring all
annuitants to determine which ones were "affected." Approximately 79 faculty and staff
members became ineligible for employment at Oakton as a result of the college's
decision.
It is undisputed that Oakton's decision not to employ SURS annuitants after July
1, 2015 was not based on any annuitant's job performance, class schedule, or
availability to teach classes. Rather, the decision not to re-employ SURS annuitants
was based on their status as SURS annuitants. According to Dayton, Lee and the
advisory council members knew that numerous adjunct and part-time faculty members
who were SURS annuitants could never become "affected" annuitants due to caps on
adjunct compensation and on the number of LHEs adjunct faculty members could teach
but nonetheless determined not to re-employ any SURS annuitants at all.
Dayton asserts that defendants' decision to terminate the annuitants'
employment because of their status as annuitants violated the ADEA and the Illinois
Constitution. He has moved to certify the following group as an ADEA collective class
and Rule 23 class: "All part time and adjunct faculty who were denied employment at
Oakton Community College as the result of its policy to not employ or re-employ State
Universities Retirement System annuitants and who are not 'affected annuitants'
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pursuant to 40 ILCS 5/15-139.5(b)(2)." Pl.'s Br. in Supp. of Class Certif. at 1.
Defendants maintain that class certification would be inappropriate because each
purported class member's claim is different from the claims of other class members and
requires individualized assessment.
Discussion
A.
Legal standards
The ADEA authorizes plaintiffs to bring enforcement actions using the
procedures provided in the Fair Labor Standards Act, 29 U.S.C. § 216. See 29 U.S.C. §
626(b). Under the FLSA, an employee may bring a so-called "collective action" against
any employer on behalf of himself "and other employees similarly situated." Id. §
216(b). As the Seventh Circuit has explained, the only significant difference between a
collective action and a Rule 23 class action "is that in a collective action the members of
the class (of the 'collective') must opt into the suit to be bound by the judgment or
settlement in it, while in a class action governed by Rule 23(b)(3) (a class action
seeking damages) they must opt out not to be bound." Espenscheid v. DirectSat USA,
LLC, 705 F.3d 770, 771 (7th Cir. 2013). Although the Seventh Circuit has not specified
the standard that governs certification of a collective action under the FLSA or ADEA,
the court has noted that there is no "good reason to have different standards for the
certification of the two different types of action" and that "the case law has largely
merged the standards, though with some terminological differences." Id. at 772.
Class certification under Rule 23 is appropriate if the plaintiff seeking certification
meets all the requirements of Rule 23(a) and his case falls within at least one of the
categories identified in Rule 23(b). Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir.
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2008). A purported class satisfies the requirements of Rule 23(a) if: "(1) the class is so
numerous that joinder of all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defense of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). In this case,
Dayton maintains that the purported class meets the requirements of Rule 23(b)(3),
which requires questions of law or fact common among class members to predominate
over questions affecting only individual members. See Fed. R. Civ. P. 23(b)(3). An
additional requirement for class certification is that the proposed class be defined clearly
and by objective criteria. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir.
2015).
Though the Seventh Circuit has indicated that the standards for certification of a
collective action and a class action are similar, the FLSA, unlike Rule 23, does not
specify requirements that must be met for certification. The parties in this case,
however, appear to agree that a court should consider the following factors when
deciding whether to certify a collective action: "(1) whether the plaintiffs share similar or
disparate factual and employment settings; (2) whether the various affirmative defenses
available to the defendant would have to be individually applied to each plaintiff; and (3)
fairness and procedural concerns." Strait v. Belcan Eng'g Grp., Inc., 911 F. Supp. 2d
709, 718 (N.D. Ill. 2012) (St. Eve, J.) (also noting that "majority of courts" have adopted
this analysis when considering certification of collective actions).
B.
Certification of collective action for ADEA claims
Dayton asserts that Oakton's decision not to employ SURS annuitants violated
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the ADEA because the decision had a disparate impact on older faculty. "A disparate
impact claim exists when an employer has adopted a particular employment practice
that, although neutral on its face, disproportionally and negatively impacts" members of
a protected class. Cerutti v. BASF Corp., 349 F.3d 1055, 1067 (7th Cir. 2003). Dayton
seeks to certify a collective action for plaintiffs' disparate-impact claims.
Defendants argue that certification is inappropriate because the putative class
members are not similarly situated. Specifically, defendants emphasize that part-time
and adjunct faculty members do not have rights to continued employment with the
college and that the college offers assignments to faculty members on the basis of
individualized factors such as the courses they have taught in the past, the current
course offerings at the time of assignment, faculty priority rights, and a particular faculty
member's annuity size. Defendants argue that members of the putative class can only
sustain a claim under the ADEA if they can show that they would have been employed
at the college but for the college's decision not to employ SURS annuitants. But,
according to defendants, that showing would have to be made on a case-by-case basis
because of the college's individualized basis for assigning courses. Similarly,
defendants argue that because the putative class members had different levels of
earnings and annuity payments, their risk of becoming "affected" annuitants differed.
As a result, according to defendants, individualized inquiries will be necessary to
determine whether each plaintiff is appropriately considered a member of the putative
class, the definition of which excludes affected annuitants.
Despite defendants' arguments to the contrary, the Court concludes that the
putative class members share sufficiently similar factual and employment settings to
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justify a collective action. Though their likelihood of being assigned courses, and the
number of courses they might be assigned, might differ, it is undisputed that Oakton's
decision not to employ SURS annuitants was made on a college-wide basis and was
not based on any particular annuitant's individual circumstances such as his or her job
performance, class schedule, or availability to teach classes. Thus the questions of
whether the college's decision had a disparate impact on older faculty and whether this
violated the ADEA are questions common to each class member's claims. In addition to
being subject to the same college-wide employment action, each member of the
proposed class shares a similar employment setting, as each is a non-affected SURS
annuitant whose wages, hours, and employment conditions were set forth in the same
collective bargaining agreement.
The fact that the proposed class members' individual circumstances made them
more or less likely to become "affected" or to be assigned courses is irrelevant on the
question of class certification, because it is undisputed that the decision not to employ
SURS annuitants was not based on any particular annuitant's likelihood to become
affected or to be assigned courses. An employee who suffers discrimination when he or
she is denied the renewal of an employment contract can assert a claim under the
ADEA, even if that employee is untenured and lacks any prior contractual right to
continued employment. See Leibowitz v. Cornell Univ., 584 F.3d 487, 501 (2d Cir.
2009). "The mere fact that the employer's decision not to renew is completely
discretionary does not mean that it is not an 'adverse' employment decision." Id. The
proposed class members may be entitled to different amounts of damages based on
their individual circumstances, an issue the Court addresses below. But because the
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alleged decision not to employ SURS annuitants constitutes an adverse employment
action in itself, each proposed class member is similarly situated with respect to
defendants' liability, regardless of differences in the damages to which each plaintiff
may be entitled. Cf. Arreola, 546 F.3d at 801 (need for individual damages
determinations does not, in and of itself, require denial of motion for class certification).
C.
Certification of Rule 23 class action for claims under Illinois Constitution
and section 1983
Dayton also asserts a claim under 42 U.S.C. § 1983, contending that Oakton's
decision not to employ any SURS annuitants deprived him and the purported class
members of rights, privileges, or immunities secured by the ADEA and that to the extent
Oakton's decision is authorized by 40 Ill. Comp. Stat. 5/15-139.5(b)(2), the state statute
is preempted by the ADEA's prohibition against discrimination. In addition, Dayton
alleges that Oakton's decision violates the Illinois Constitution, which provides that
"[m]embership in any pension or retirement system of the State, any unit of local
government or school district, or any agency or instrumentality thereof, shall be an
enforceable contractual relationship, the benefits of which shall not be diminished or
impaired." Ill. Const. art. XIII, § 5. For these claims, Dayton seeks certification of a
class under Rule 23. In response, defendants argue that the proposed class is
insufficiently definite, the putative class members' claims lack commonality, Dayton's
claims are not typical of those that are common to the class, and Dayton cannot fairly
and adequately protect the interests of the other class members. Defendants also
contend that Dayton is unable to satisfy Rule 23(b)(3)'s predominance requirement
because "questions of individual damage calculations will inevitably overwhelm
questions common to the class." Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433,
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185 L. Ed. 2d 515 (2013).
1.
Definiteness of class
Defendants argue that the proposed class of faculty members who were denied
"as the result of [Oakton's] policy" is insufficiently definite because adjunct and part-time
faculty had no guaranteed right to employment with the college, making it impossible to
determine, without an individualized inquiry, which individuals would have been
employed by the college but for Oakton's decision not to employ SURS annuitants. See
Jamie S, 668 F.3d at 496–97 (proposed class of unidentified disabled students
"potentially eligible" for special-education services "inherently too indefinite to be
certified"). The Court disagrees with defendants that the proposed class is "fatally
indefinite." On the contrary, plaintiffs have identified a list of college employees affected
by the college's decision not to employ SURS annuitants, and Martens agreed during
her deposition that the "decision not to employee the individuals that we see on [that list]
was solely based on the fact that they were receiving an annuity from SURS." Martens
Dep., dkt. no. 37-7, 90: 7–14. Thus it is not, as defendants argue, impossible to identify
which faculty members are eligible; Dayton has already identified them. In addition to
those non-affected annuitants on the list, the class is also open to those SURS
annuitants who applied for adjunct or part-time faculty positions after July 1, 2015 and
were rejected for positions because of their annuitant status. That group, too, is
sufficiently definite, as the college's allegedly discriminatory policy would bar their
employment whether or not the college would have other reasons to deny them
employment, and their status as denied applicants makes them easily identifiable.
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2.
Commonality
Defendants also argue that Rule 23(a)'s commonality requirement is not satisfied
because the issue of whether each proposed class member would continue to receive
course assignments, and can thus assert a claim for damages, depends upon
individualized circumstances. But as discussed above, each proposed class member
can assert a claim on the basis of the college's allegedly discriminatory employment
action. Plaintiffs do not "wish to sue about literally millions of employment decisions at
once." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 352 (2011). Rather, their claims
concern a single decision applied college-wide. Thus each of the proposed class
members "suffered the same injury," irrespective of the damages to which each
member might be entitled, and the determination of whether the college's decision that
resulted in their injury violated the ADEA or the Illinois Constitution may be determined
"in one stroke." Id. at 350. Each plaintiff alleges the same injury based on the same
alleged violation of the law, and their claims are thus clearly capable of class-wide
resolution.
3.
Typicality
Defendants contend that Dayton's claims are not typical of those of proposed
class members because each putative class member's entitlement to damages will
depend upon his or her individual circumstances. As the Court discussed above,
however, though the putative class members' damages might be different, the
defendants' liability to each of them is based on the same alleged employment practice.
A named plaintiff's claim is typical "if it arises from the same event or practice or course
of conduct that gives rise to the claims of other class members and [his] claims are
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based on the same legal theory." Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th
Cir. 2006). The Court is satisfied that Dayton's claims have the same "essential
characteristics as the claims of the class at large," id., even if the putative class
members suffered varying degrees of harm.
4.
Fair and adequate representation
According to defendants, Dayton cannot fairly and adequately represent the
class members because the class members are likely to have competing interests.
Specifically, defendants contend that each class member is likely to argue that his or
her particular circumstances would warrant greater course assignments (and thus
greater damages resulting from the alleged discrimination) than the circumstances of
other class members. Defendants have not suggested, however, that Dayton's claims
are "idiosyncratic or possibly unique." Suchanek v. Sturm Foods, Inc., 764 F.3d 750,
758 (7th Cir. 2014). This is not a case, for example, where some putative class
members hold decision-making authority over others, cf. Randall v. Rolls-Royce Corp.,
637 F.3d 818, 824 (7th Cir. 2011), or where the viability of each plaintiff's claims
depends upon his or her subjective experience, Suchanek, 764 F.3d at 758. Rather,
each putative class member occupied the same tier of employment, and the injury
Dayton has alleged is "the same injury [suffered by] members of the proposed class."
Id. Dayton is thus capable of providing fair and adequate representation. The Court
addresses below the possibility that the class members have diverging interests on the
issue of damages.
5.
Predominance of common questions of law and fact
Defendants argue that Dayton cannot satisfy Rule 23(b)(3)'s predominance
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requirement because "questions of individual damage calculations will inevitably
overwhelm questions common to the class." Comcast, 133 S. Ct. at 1433. "This case[,
however,] presents a vastly different situation from Comcast, where the proposed class
had two million people and a far more complex allegation of harm." Fox v. Riverview
Realty Partners, No. 12 C 9350, 2014 WL 1613022, at *6 (N.D. Ill. Apr. 22, 2014)
(Kennelly, J.). Unlike the complex inquiry into the antitrust impact felt by various
plaintiffs in Comcast, the calculation of damages in this case appears unlikely to be
overly complicated. As Dayton points out, each putative class member's prior course
load and wage rate can be easily identified, and the collective bargaining agreement
determines the applicable wage rate for each LHE a class member would teach. Thus,
unless defendants present evidence to the contrary, class members' prior course loads
should provide a reasonably accurate guide to the damages plaintiffs suffered when
they were denied future employment. The damages calculation certainly does not
appear so complex that the cost of determining damages on a class-wide basis
outweighs the benefits of class litigation on the issue of Oakton's liability for its single,
discrete employment policy. Should it appear, at a later stage, that damages
determinations will require more complicated, individualized treatment, the Court is
confident that there will be adequate means to address that issue within the larger class
action. See Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013) ("If the
issues of liability are genuinely common issues, and the damages of individual class
members can be readily determined in individual hearings, in settlement negotiations, or
by creation of subclasses, the fact that damages are not identical across all class
members should not preclude class certification."); see also Fed. R. Civ. P. 23(c)(1)(C)
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(order certifying class may be amended before final judgment); id. 23(c)(4) (authorizing
certification of a class "with respect to particular issues," e.g. liability only).
Conclusion
For the reasons stated above, the Court grants Dayton's motion for collective and
class certification [dkt no. 35]. The Court certifies a class consisting of "all part-time and
adjunct faculty who were denied employment at Oakton Community College as the
result of its policy not to employ or re-employ State Universities Retirement System
annuitants and who are not 'affected annuitants' pursuant to 40 ILCS 5/15-139.5(b)(2)"
and appoints Nathan D. Eisenberg, Sara J. Geenen, and Erin F. Medeiros, and Stephen
Yokich to represent the class. Dayton has also moved for approval of his proposed
notice to class members. Defendants have not objected to the proposed notice, and the
Court approves the notice Dayton has proposed, except that the word "promulgated,"
where used, should be changed to "established" to make it more readily
understandable. Class counsel are directed to immediately communicate the Court's
decision to counsel for the plaintiffs in the two consolidated individual suits. The case
remains set for a status hearing on Monday, May 22, 2017 at 9:30 a.m. to set a
schedule for further proceedings.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: May 17, 2017
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