Edmond et al v. City of Chicago, The et al

Filing 266

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 6/6/2023: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies the plaintiffs' motion for class certification [dkt. no. 226]. The parties are directed to confer regarding a schedule for further proceedings and are to file a joint status report in this regard on June 13, 2023. The case is set for a telephonic status hearing on June 15, 2023 at 9:30 a.m., using call-in number 888-684-8852, access code 746-1053. (mk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DERRICK EDMOND, KATHERINE EALY,
VICKI HILL, ROBERT T. LAWS, JR.,
EDDIE COOPER, JR., ANTON GLENN,
DAVID HENRY, VERONICA SMITH, and
DONALD ANDERSON, on behalf of
themselves and all others similarly
situated,
Plaintiffs,
vs.
THE CITY OF CHICAGO,
Defendant.

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Case No. 17 C 4858

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Derrick Edmond, Katherine Ealy, Vicki Hill, Robert T. Laws, Jr., Eddie Cooper,
Jr., Anton Glenn, David Henry, Veronica Smith, and Donald Anderson have sued the
City of Chicago and several individual defendants on behalf of a putative class under 42
U.S.C. §§ 1981 and 1983 and the Illinois Civil Rights Act of 2003 for discrimination and
creating a hostile work environment. On November 15, 2018, Judge Joan Gottschall
granted the defendants' motion to dismiss in part. See Edmond v. City of Chicago, No.
17 C 4858, 2018 WL 5994929 (N.D. Ill. Nov. 15, 2018). The case was then reassigned
to Judge Mary Rowland on August 22, 2019. Judge Rowland granted the plaintiffs'
motion for leave to amend their complaint, through which the plaintiffs voluntarily
dismissed without prejudice their claims against the individual defendants. On May 25,

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2022, the case was reassigned to the undersigned Judge. The plaintiffs have now
moved to certify various classes under Federal Rules of Civil Procedure 23(b)(2) and
23(b)(3). For the reasons stated below, the Court denies the motion.
Background
The party seeking class certification has the burden of establishing by a
preponderance of the evidence that certification is proper. Priddy v. Health Care Serv.
Corp., 870 F.3d 657, 660 (7th Cir. 2017). In assessing whether the movant has met this
burden, the district court need not accept the allegations in the complaint as true.
Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). The court should
instead "make whatever factual and legal inquiries [that] are necessary under Rule 23."
Id. at 676; Beaton v. SpeedyPC Software, 907 F.3d 1018, 1025 (7th Cir. 2018) ("[T]he
court must go beyond the pleadings and, to the extent necessary, take evidence on
disputed issues that are material to certification.").
The Court takes the following facts from the prior order on the defendants' motion
to dismiss, the third amended complaint, and the parties' class certification briefing. A
more detailed recounting of the plaintiffs' allegations can be found in Judge Gottschall's
November 15, 2018 decision on the defendants' motion to dismiss. See Edmond, 2018
WL 5994929, at *2–5.
A.

Organization of the Department of Water Management
The named plaintiffs are current and former African American employees of the

City of Chicago's Department of Water Management. The Department treats and
delivers drinking water to Chicago and 126 surrounding communities. It employs
approximately 2,000 people spanning 150 different job titles, such as engineers,

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chemists, plumbers, truck drivers, etc. Many employees in the Department are
represented by various labor unions that each operate pursuant to a collective
bargaining agreement. The Department is led by the Commissioner and First Deputy.
Until 2016, Tom Powers was the Commissioner and Barrett Murphy was the First
Deputy. In 2016, Murphy became the Commissioner. Murphy then resigned in 2017,
and Randy Conner was selected to replace him.
There are five bureaus within the Department: (1) the Bureau of Operations and
Distribution (BOD), (2) the Bureau of Water Supply (BWS), (3) the Bureau of
Engineering (BOE), (4) the Bureau of Administrative Support (BAS), and (5) the Bureau
of Meter Services (BMS). Each bureau is led by a Deputy Commissioner who reports
directly or indirectly to the Commissioner and First Deputy.
BWS is the second largest bureau, operating two water treatment plants and
twelve pumping stations. Alan Stark led BWS as Deputy Commissioner from 2011 until
2017 and then as Managing Deputy Commissioner until 2018. BWS has four sections:
Water Treatment, Water Quality, Water Pumping, and Administrative. Plaintiff Hill
worked in Water Pumping as a staff assistant until 2015. Plaintiffs Edmond, Glenn,
Cooper, and Ealy worked in Water Treatment. Edmond was an operating engineer at
one of the water treatment plants, the Sawyer Water Purification Plant, until 2017.
Glenn was a foreman at the same plant until 2019. Cooper is currently employed as a
water chemist at the Sawyer plant. Ealy was an Assistant Chief Engineer at the other
treatment plant, the Jardine Water Purification Plant, until 2017. She was then
promoted to Chief Operating Engineer at the Sawyer plant, where she remained until
resigning in 2019.

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BOD is the largest bureau and is divided into North, Central, and South Districts.
Each district operates at a separate location. The districts also assign crews to make
repairs and investigate leaks at various job sites along BOD's 4,400 miles of water
mains and sewer lines. In addition to the districts, BOD operates a New Construction
section. This section handles crews that work on longer-term projects, such as
replacing water mains and sewer lines. Since 2011, William Bresnahan has led BOD as
the Managing Deputy. Luci Pope-Anderson served as an Assistant Commissioner until
2016, when she was promoted to Deputy Commissioner. Several superintendents and
foremen report to the commissioners. Most relevant to the plaintiffs' allegations are
Paul Hansen, who worked as Superintendent in the North District from 2015 to 2017,
and John Lee, who worked as Superintendent in the South District from 2010 to 2017.
Plaintiffs Henry, Laws, and Anderson worked in BDO. Henry and Laws both
worked in the South District as a plumber and construction laborer, respectively.
Anderson works in the Central District. He started as a foreman and then became an
Assistant District Superintendent in 2018.
No named plaintiffs worked in BOE or BAS. Plaintiff Smith worked in BMS as a
construction laborer.
B.

The plaintiffs' allegations
The plaintiffs allege that the Department's leaders fostered a culture of racism.

An investigation by the Chicago Office of Inspector General (OIG) found "egregious,
offensive racist and sexist emails distributed by and among" various leaders at the
Department, including Murphy, Powers, Bresnahan, Pope-Anderson, Hansen, and Lee.
Pls.' Opening Mem., Ex. 55 at 2. The OIG concluded that the emails "suggested the

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existence of an unrestricted culture of overtly racist and sexist behavior and attitudes
within the department." Id.
As a result of the OIG investigation, Murphy and Bresnahan resigned in 2017,
and then-Mayor Emanuel appointed Conner as Commissioner. Mayor Rahm Emanuel
stated that "Barrett [Murphy] agreed that there should be a re-set button hit as it related
to the culture." Pls.' Opening Mem., Ex. 45-12 at 3. In 2018, in response to media
inquiries regarding the Department, Mayor Emanuel stated that "the culture of that
department has been around for decades." Id. at 4. The plaintiffs also point to
Conner's deposition testimony that changing the culture was "challenging" because
"trying to get people who think a certain way or try to change their thinking is a daunting
task if that's how they think." Pls.' Opening Mem., Ex. 3 at 196:3–8.
The plaintiffs also allege that "there were physical representations of racism in
the workplace," including at least three instances of nooses present in Department
trucks and uses of the n-word in workplace conversations. Pls.' Opening Mem. at 13.
The plaintiffs and putative class members allege that they were subject to racial
epithets, heard "race-based terrorizing comments" in the workplace, and were given
worse equipment and more dangerous assignments. Id. at 18. The plaintiffs contend
that their allegations "confirm[] a racially hostile work environment existed at the
Department." Id. They also allege that there are racial disparities in overtime,
discipline, and promotions at the Department demonstrated by anecdotal and statistical
evidence.
The plaintiffs move to certify four classes. The first proposed class, the hostile
work environment class, includes "[a]ll Black employees who worked in the Department

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between January 1, 2011 and the date of judgment." Pls.' Opening Mem. at 43. The
plaintiffs also propose three subclasses within this class: (1) hostile work environment
class members who worked in a position eligible for overtime between June 29, 2015
and July 1, 2017 for all bureaus except BWS (the overtime subclass); (2) hostile work
environment class members who were formally accused of a disciplinary infraction
between June 29, 2015 and July 1, 2017 (the discipline subclass); and (3) hostile work
environment class members who made an unsuccessful application for a position within
the Department that was pending or determined between June 29, 2015 and July 1,
2017 (the promotion subclass).
Discussion
In order for the case to proceed as a class action, the plaintiffs must show that
their proposed classes satisfy all the requirements of Rule 23, which sets out the criteria
for class certification. Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 859 (7th
Cir. 2017). "In conducting this analysis, the court should not turn the class certification
proceedings into a dress rehearsal for the trial on the merits." Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
First, under Rule 23(a), a putative class must satisfy four requirements:
numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ.
P. 23(a)(1)–(4). Rule 23(a) requires the class to be so numerous that joinder of all
members is impracticable; there are common questions of law or fact; the
representatives' claims are typical of those of the class; and the representatives fairly
and adequately protect the interests of the class.
Second, the proposed class must fall within one of the three categories in Rule

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23(b). Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011). The plaintiffs argue for
certification under Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) applies when "the
party opposing the class has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) requires
finding "that the questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy." Fed. R.
Civ. P. 23(b)(3).
A.

Hostile work environment class
The City primarily contends that the hostile work environment class cannot be

certified because it fails the commonality requirement under Rule 23(a)(2). To satisfy
commonality, the plaintiffs must identify at least one question common to all the class
members whose answer is "apt to drive the resolution of the litigation." Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotation marks omitted).
"One common question is enough, but not just any question will do." Howard v. Cook
Cnty. Sheriff's Off., 989 F.3d 587, 598 (7th Cir. 2021). "[T]he class claims 'must depend
on a common contention' that is 'capable of classwide resolution—which means that
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. (quoting Wal-Mart, 564 U.S. at 350).
"Dissimilarities within the proposed class . . . have the potential to impede the
generation of common answers." Wal-Mart, 564 U.S. at 350.
The Court begins its analysis "by identifying the elements" of the plaintiffs' hostile

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work environment claim. Simpson v. Dart, 23 F.4th 706, 713 (7th Cir. 2022); see also
Santiago v. City of Chicago, 19 F.4th 1010, 1018 (7th Cir. 2021) ("Only by properly
circumscribing the claims and breaking them down into their constituent elements can a
district court decide which issues are common, individual, and predominant."). "To
establish a hostile work environment claim, a plaintiff must show: (1) the work
environment was both subjectively and objectively offensive; (2) the harassment was
based on membership in a protected class; (3) the conduct was severe or pervasive;
and (4) there is a basis for employer liability." Trahanas v. Nw. Univ., 64 F.4th 842, 853
(7th Cir. 2023). 1 "Hostile work environment claims are fact intensive" and "turn on the
frequency, severity, character, and effect of the harassment." Howard, 989 F.3d at 604
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
The City contends that the plaintiffs cannot satisfy commonality because they
have not established a common work environment, relying primarily on the Seventh
Circuit's decision in Howard. The Court agrees that Howard forecloses certification of
the plaintiffs' proposed hostile work environment class.
In Howard, the Seventh Circuit reversed this Court's certification of a hostile work
environment class, noting that such claims "are 'worker-specific' inquiries because they

As in Howard, both parties cite the elements of a Title VII hostile work environment
claim for the plaintiffs' hostile work environment claims brought under sections 1981 and
1983 and the Illinois Civil Rights Act. This poses no issue for the section 1981 and
Illinois Civil Rights Act claims because the same legal standard applies for both claims.
See Howard, 989 F.3d at 609; Mahran v. Advoc. Christ Med. Ctr., 12 F.4th 708, 714 &
n.5 (7th Cir. 2021). The plaintiffs' equal protection claim, however, "requires proof that
the defendants were motivated by a discriminatory purpose.” Howard, 989 F.3d at 609
(internal quotation marks omitted). But although "the claims’ legal elements do not
perfectly overlap," id., neither party has suggested that the commonality analysis differs
for the section 1983 claim.

1

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depend on a class member's unique experience—which correlates to where she works."
Id. at 604 (quoting Bolden v. Walsh Const. Co., 688 F.3d 893, 896 (7th Cir. 2012)). The
alleged work environment in Howard was the Cook County jail, which "fill[ed] dozens of
buildings that sprawl[ed] across eight city blocks." Id. at 604. The plaintiffs provided
evidence that "employees often change jobs" and that "both employees and inmates,"
the alleged harassers, "traverse the jail." Id. at 605. The Seventh Circuit nevertheless
held that it was "a leap too far to conclude from this evidence that all class members
share essentially the same work environment." Id. "Without a stronger evidentiary
showing, the plaintiffs c[ould] not demonstrate that class members working in disparate
parts of the massive jail complex have experienced the same work environment." Id.
As in Howard, the plaintiffs in this case have not demonstrated that all class
members working in the Department shared the same work environment. The
Department is even larger than the jail complex at issue in Howard. It encompasses
five separate bureaus and operates from numerous locations spread throughout
Chicago, including two large multi-level treatment plants and hundreds of construction
sites. Moreover, unlike in Howard, the plaintiffs have not provided any evidence that
class members working in different bureaus occupied or experienced the same work
environment. Instead, the evidence suggests the contrary. Several plaintiffs employed
in BWS testified that they did not know the alleged harassers working in BOD and vice
versa.
The plaintiffs' reliance on Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009), as
amended (Oct. 8, 2009), is unavailing. The alleged hostile work environment in that
case involved a single manufacturing plant that was organized into six production

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departments. See id. at 151. The Fourth Circuit held that the production departments
were not separate environments because the evidence showed that the employees
shared common areas, the departments were physically connected, and some of the
alleged harassment was broadcast over a plant-wide radio. See id. at 158. In this
case, by contrast, the bureaus operate at separate locations, and there is no similar
evidence of common areas shared by all Department employees or instances of
harassment broadcast across the entire Department.
The plaintiffs argue that the City has not shown that any part of the Department
was discrimination-free. But the same was true in Howard. Although the Seventh
Circuit observed in that case that sexual harassment was more prevalent in certain
divisions of the jail than others, it also noted that "sexual harassment occurs throughout
the jail." Howard, 989 F.3d at 604–05. As the Seventh Circuit explained, its holding
"d[id] not mean that one class member (e.g., a Division 10 employee) ha[d] experienced
a hostile work environment while another (e.g., a law librarian) ha[d] not." Id. at 604–05.
This, however, did not carry the day on the question of commonality. The court stated
that "the questions of whether these two employees have endured objectively severe or
pervasive harassment must be answered separately because they depend on
individualized questions of fact and law, whose answers are unique to each class
member's particular situation." Id. at 605 (alterations accepted) (internal quotation
marks omitted).
Similarly, in this case, the plaintiffs have provided evidence that racial
discrimination occurred throughout the Department. The evidence shows, however,
that the discrimination took different forms based on each class member's situation.

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Some plaintiffs and putative class members described hearing racial epithets, others
reported seeing racially offensive imagery in certain workspaces, and still others
testified that they received harder or more dangerous work assignments. In other
words, the allegations of harassment are specific and vary from plaintiff to plaintiff. To
evaluate these allegations, "a court would need site-specific, perhaps worker-specific,
details, and then the individual questions would dominate the common questions (if,
indeed, there turned out to be any common questions)." Bolden, 688 F.3d at 896.
The plaintiffs attempt to distinguish Howard by contending that they have
provided "evidence of a wide-spread de facto policy of racism that emanated from the
top leaders of the Department." Pls.' Reply Br. at 7. The plaintiffs point to the
statements by the Mayor, the Commissioner, and OIG report that the Department had a
long-standing culture of racism. But these general statements do not show that this
culture "manifests in the same way across all parts of the [Department], such that it
could be a common question for the class." Howard, 989 F.3d at 604. Similar to the socalled "ambient" harassment theory at issue in Howard, such contentions "overlook[]
meaningful distinctions among the class members' individual experiences." Id. at 603.
The plaintiffs also cite their sociological expert Dr. Charles Gallagher's conclusion that
the Department had a hostile work environment stemming from a racist culture. 2 But

The City contends that Dr. Gallagher's testimony should be excluded under Federal
Rule of Evidence 702. "[W]hen an expert's report or testimony is critical to class
certification, the district court must make a conclusive ruling on any challenge to that
expert's qualifications or submissions before it may rule on a motion for class
certification." Howard, 989 F.3d at 601 (internal quotation marks omitted). However,
because the Court does not rely on Dr. Gallagher's testimony, it need not rule on the
City's motion. See Bolden, 688 F.3d at 897 ("We need not determine whether Smith's
study should have been excluded under Fed. R. Evid. 702. It is enough to say that it
does not show any common issue that would allow a multi-site class.").

2

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this still does not demonstrate commonality, for the same reason. Cf. Wal-Mart, 564
U.S. at 345, 353–55 (holding that the plaintiffs' contention that the defendant had "a
strong and uniform 'corporate culture'" that "permit[ted] bias against women" could not
satisfy commonality where the plaintiffs' sociological expert could not calculate what
percentage of employment decisions were determined by this culture).
Lastly, the plaintiffs contend that "whether there was a widespread practice or
custom of race discrimination" under Monell is a common question. Pls.' Opening Mem.
at 59. As explained above, to satisfy the commonality requirement, the plaintiffs' class
claims must "depend upon a common contention" that "will resolve an issue that is
central to the validity of each one of the claims in one stroke." Wal-Mart, 564 U.S. at
350; see also Howard, 989 F.3d at 598 ("[T]he common question must 'not be
peripheral but important to most of the individual class member's claims[.]'" (quoting 1
William B. Rubenstein, Newberg on Class Actions § 3:18 (5th ed. 2012))). Even if the
existence of a policy under Monell is a common question for the class, it cannot satisfy
the commonality requirement because it is a relatively subsidiary point on the class
members' hostile work environment claims. The individualized issues related to proving
liability described above would remain. 3 See McFields v. Dart, 982 F.3d 511, 517 (7th
Cir. 2020) ("[T]he answer to that question—the mere existence of a policy—is relevant

The plaintiffs also contend that under Teamsters v. United States, 431 U.S. 324
(1977), whether the City "engaged in a pattern-or-practice of hostility and discrimination
presents a common issue" for the class. Pls.' Reply Br. at 9–10. This is not a common
question for the same reason as discussed in connection with the plaintiffs' claim under
Monell. Furthermore, "[t]he pattern and practice analysis is only relevant to statutory
schemes which utilize the McDonnell–Douglas burden shifting framework, like Title VII,
and thus it can not [sic] be used" for section 1983 equal protection claims. Chavez v. Ill.
State Police, 251 F.3d 612, 638 n.8 (7th Cir. 2001).
3

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to just one small part of the analysis required under Monell and Miranda, and it leaves
us far from resolving the litigation on a classwide basis.").
The plaintiffs also briefly assert that common evidence could show that the City
had a policy of tolerating racism at the Department and "failed to take adequate
remedial measures" to address the harassment. Pls.' Opening Mem. at 58. But
Howard also rejected employer liability as a common question. 4 "The reasonableness
of an employer's response to harassment is a fact-bound inquiry." Howard, 989 F.3d at
608. Even if the City's policies were "uniform throughout" the Department, "the
reasonableness of those policies (and any other preventative measures) still depends
on the specific circumstances of the plaintiff(s) or class member(s) challenging the
policies." Id. Thus, the City's liability is not a common question for the class.
In sum, the plaintiffs have failed to establish commonality for the hostile work
environment class. The Court denies the plaintiffs' motion for class certification on this
basis and thus need not address whether the hostile work environment class satisfies
the other requirements of Rule 23(a) or Rule 23(b).
B.

Subclasses
The plaintiffs also seek certification of three subclasses relating to discipline,

promotion, and overtime. As the plaintiffs recognize, each subclass must independently

The plaintiffs do not clarify whether they are pursuing a strict liability or negligence
theory of employer liability. See Howard, 989 F.3d at 607 ("An employer is liable in a
hostile work environment case if (1) a supervisor participated in the harassment (giving
rise to strict liability) or (2) the employer was negligent in discovering or remedying the
harassment by a coworker or a third party."). The City contends in its response brief
that the plaintiffs' employer liability argument is foreclosed by Howard, which addressed
a negligence theory. The plaintiffs do not address this contention in their reply brief.
See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to
an argument . . . results in waiver.").
4

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satisfy Rule 23. See Fed. R. Civ. P. 23(c)(5). In addition to claims of intentional
discrimination, the putative discipline, promotion, and overtime class members bring
claims for unintentional discrimination under the Illinois Civil Rights Act. For each
subclass, the plaintiffs rely on statistical and anecdotal evidence to allege a general
policy of discrimination; they do not contend that a common policy produced disparate
outcomes. The City contends that each subclass fails Rule 23(a)'s commonality
requirement.
As a preliminary matter, the plaintiffs contend that under the Illinois Civil Rights
Act, the plaintiffs need only identify the "criteria or methods of administrati[ng]"
discipline, promotion, or overtime that had a discriminatory effect, 740 ILCS 23/5(a)(2),
rather than a "specific employment practice as required by Title VII." Pls.' Opening
Mem. at 62. 5 But the plaintiffs do not explain the difference between these standards,
other than to assert that Title VII's requirement is "more specific and demanding." Pls.'
Reply Br. at 17. They also do not cite any caselaw drawing a distinction between
"criteria or methods of administration" and a "specific employment practice."

The plaintiffs contend that "[w]hether Plaintiffs must identify a 'specific employment
practice' to pursue a claim for overtime, promotion or discipline discrimination under the
Illinois Civil Rights Act" is a question common to the subclasses. Pls.' Opening Mem. at
62. But the answer to this question will not "resolve an issue that is central to the
validity of each one of the claims in one stroke," which, as explained above, is required
to satisfy commonality. Wal-Mart, 564 U.S. at 350. Rather, the plaintiffs' proposed
question is whether they are required to identify a common practice to prove their Illinois
Civil Rights Act disparate impact claim. Put another way, their proposed common
question is whether the claim "is a common or an individualized question in the first
place." Dancel v. Groupon, Inc., 949 F.3d 999, 1007 (7th Cir. 2019). Whether this
claim must be proven through individualized evidence or whether it can be proven with
the plaintiffs' common statistical evidence of discrimination "is precisely the question the
court must answer at certification." Id.
5

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Courts have consistently held that the Illinois Civil Rights Act "merely created a
new venue in which plaintiffs could pursue in the State courts discrimination actions that
had been available to them in the federal courts." Ill. Native Am. Bar Ass'n v. Univ. of
Ill., 368 Ill. App. 3d 321, 327, 856 N.E.2d 460, 467 (2006); see also Williams v. Dart,
967 F.3d 625, 638 n.1 (7th Cir. 2020) ("The Illinois Civil Rights Act of 2003 creates two
separate causes of action which have been held only to provide a state forum for
federal rights under Title VI and Title VII, respectively, of the Civil Rights Act of 1964.")
(citations omitted); Dunnet Bay Const. Co. v. Borggren, 799 F.3d 676, 697 (7th Cir.
2015) ("Section 5 of the Illinois Civil Rights Act of 2003 was not intended to create new
rights but merely created a new venue—state court—for discrimination claims under
federal law."). In any event, the plaintiffs have not identified any common criteria,
methods, or practices that caused the alleged discrimination in discipline, promotions,
and overtime decisions.
1.

Discipline class

The plaintiffs first seek certification of a discipline subclass, encompassing hostile
work environment class members "who were formally accused of a disciplinary
infraction between June 29, 2015 and July 1, 2017." Pls.' Opening Mem. at 43. At the
Department, a formal accusation of a disciplinary infraction is called a Notice of PreDisciplinary Hearing (NPDH). Under the City's personnel rules and collective bargaining
agreements, the disciplinary process begins when a NPDH is issued by the employee's
supervisor.
The City contends that this class cannot satisfy the commonality requirement
because NPDHs involve "the discretionary decisions of more than one hundred

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supervisors." Def.'s Resp. Br. at 44. The plaintiffs do not dispute that NPDH decisions
are made by "individual decision-makers." Pls.' Reply Br. at 11. 6 Instead, the plaintiffs
contend that "discretion was exercised in a common way" by the supervisors,
"consistent with Plaintiffs' common contention for the Sub-Class that the racist culture
affected how the Department's supervisors applied department-wide Personnel Rules."
Pls.' Reply Br. at 11–12.
"Cases in which low-level managers use their given discretion to make individual
decisions without guidance from an overarching company policy do not satisfy
commonality because the evidence varies from plaintiff to plaintiff." Bell v. PNC Bank,
Nat. Ass'n, 800 F.3d 360, 375 (7th Cir. 2015); see also Bolden, 688 F.3d at 898 ("[T]he
policy of on-site operational discretion [] is the precise policy that Wal–Mart says cannot
be addressed in a company-wide class action."). As in Bolden and Wal-Mart, the only
policy the plaintiffs have identified is a policy of "allowing discretion by local
supervisors." Bolden, 688 F.3d at 897 (quoting Wal-Mart, 564 U.S. at 355). Although
the plaintiffs point to the personnel rules as a department-wide policy, the personnel
rules reiterate that supervisors have discretion over discipline. The plaintiffs do not
identify any practice contained within the personnel rules that they contend is
discriminatory. See Brand v. Comcast Corp., Inc., 302 F.R.D. 201, 231 (N.D. Ill. 2014)

The plaintiffs note that Jennifer Izban "coordinated disciplinary hearings for the
Department." Pls.' Opening Mem. at 28. But they do not contend that Izban's
coordination caused the disparate disciplinary outcomes. Rather, the plaintiffs' expert
found statistically significant disparities at the NPDHs stage, which occurred before the
disciplinary hearings. In their reply brief, the plaintiffs do not dispute the City's
contention that Izban is not involved in the issuances of NPDHs. Moreover, the
plaintiffs' allegations involve false accusations of disciplinary infractions, not
discrimination at the hearings stage.
6

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("Plaintiffs do not, for example, point to a single entity intervening in the disciplinary
decisions of individual managers or an overall policy pursuant to which 112th Street
managers tended to discipline or terminate their employees more than those at other
facilities.").
The plaintiffs instead point to statistical evidence of racial disparities in discipline
compiled by their expert, Dr. Bernard Siskin, to show that the Department's "racist
culture affected how the Department's supervisors applied department-wide Personnel
Rules." Pls.' Reply Br. at 12. But showing that "local discretion had a disparate impact"
is insufficient to "justif[y] class treatment." Bolden, 688 F.3d at 897. The plaintiffs'
statistical evidence is akin to the evidence rejected in Bolden and Wal-Mart as a basis
for class certification. As in those cases, Dr. Siskin's "aggregate data would show that
black workers did worse than white workers—but that result would not imply that all" the
supervisors "behaved similarly, so it would not demonstrate commonality." Id. at 896;
Wal-Mart, 564 U.S. at 357 ("Even if it established . . . a pay or promotion pattern that
differs from the nationwide figures or the regional figures in all of Wal–Mart's 3,400
stores, that would still not demonstrate that commonality of issue exists.").
The plaintiffs contend that Bolden is inapplicable because the plaintiffs' statistical
evidence in that case "did not control for factors other than race that would help show
individual supervisors exercised discretion in a common way." Pls.' Reply Br. at 8. But
although the Seventh Circuit in Bolden noted that the expert "did not attempt to control
for variables other than race," that was merely one of several problems with the expert's
analysis that the court found significant. Bolden, 688 F.3d at 896. The central problem
with the statistical evidence in Bolden and Wal-Mart, which applies equally to the

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statistical evidence in this case, is that "[m]erely showing that [the Department]'s policy
of discretion has produced an overall . . . disparity does not suffice" to show
commonality. Wal-Mart, 564 U.S. at 357. Such evidence "falls well short" of showing "a
common mode of exercising discretion." Id. at 356.
The Court therefore declines to certify the plaintiffs' proposed discipline subclass
for failure to meet the commonality requirement of Rule 23(a)(2).
2.

Overtime class

The overtime subclass has the same problems as the discipline subclass. The
plaintiffs' proposed overtime class encompasses the hostile work environment class
members "who worked in the Department in a position eligible for Overtime between
June 29, 2015 and July 1, 2017, for the Bureaus of Operations and Distribution,
Engineering Services, Administrative Support, and Meter Services." Pls.' Opening
Mem. at 43. In addressing commonality, the plaintiffs again rely on Dr. Siskin's
statistical evidence of disparate outcomes. For the same reasons explained for the
plaintiffs' discipline class, Dr. Siskin's statistical analysis is unavailing to show
commonality.
In their reply brief, the plaintiffs shift focus, contending that "[o]vertime approval
decisions are made at the Deputy Commissioner and District Superintendent level."
Pls.' Reply Br. at 22 (citing Ex. 89). Per the City's organizational charts, each bureau is
headed by a Deputy Commissioner to which District Superintendents report.
As a preliminary matter, the plaintiffs' assertion is only thinly supported by the
record. The exhibit the plaintiffs cite is ostensibly the Department's "Overtime Policy"
effective in 2017. Pls.' Reply Br., Ex. 89 at 1. According to the policy, for BOD, BOE,

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BWS, and BMS, overtime must be approved by the Deputy Commissioner or Managing
Deputy of the bureau. See, e.g., id. at 3 ("The Superintendent or his designee (ADS) to
[sic] contact the Managing Deputy/Deputy for notification and approval of overtime each
weekday afternoon."), id. at 5 ("Time sheets and an explanation of the reason for the
overtime will be submitted to the deputy commissioner for approval."). The policy does
not address overtime for BAS, so at least for that bureau, the plaintiffs have not
provided any evidence that the Deputy Commissioner had final approval of overtime.
The policy also does not suggest that District Superintendents make approval decisions.
The plaintiffs also cite the OIG Overtime Audit report from 2020. That report
stated, however, that although the Department had developed an overtime policy, it had
not distributed the policy as of April 2018 because the Department "was unaware it had
been approved" by the Office of Budget and Management. Pls.' Opening Mem., Ex. 58
at 12. This casts doubt on whether the Department's overtime policy had been put into
practice during the class period. The OIG report also recommended that the
Department "update its policy" to identify "which supervisory positions are responsible
for approving and reviewing overtime"; management response was that the
Department's "Division Heads are responsible for reviewing and approving overtime.
This change was implemented last year and will be addressed in the policy." Id. at 12–
13 (emphasis added). This suggests that it was not until 2019—two years after the end
of the class period—when the plaintiffs' identified practice was implemented.
Even assuming the plaintiffs had made a sufficient showing that overtime was
approved by the Deputy Commissioners, they still would not satisfy the commonality
requirement. "[S]ubjective, discretionary decisions can be the source of a common

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claim if they are, for example, the outcome of employment practices or policies
controlled by higher-level directors, if all decision-makers exercise discretion in a
common way because of a company policy or practice, or if all decision-makers act
together as one unit." Chi. Tchrs. Union, Loc. No. 1 v. Bd. of Educ. of City of Chi., 797
F.3d 426, 438 (7th Cir. 2015); see also Bolden, 688 F.3d at 899 ("Wal–Mart observes
that it may be possible to contest, in a class action, the effect a single supervisor's
conduct has on many employees."). In Chicago Teachers Union, the plaintiffs alleged
that the City of Chicago's Board of Education's selection of ten schools for reconstitution
was racially discriminatory. See Chi. Tchrs. Union, 797 F.3d at 432. The Seventh
Circuit held that the plaintiffs "demonstrated commonality by asserting that a uniform
employment practice (the set of criteria used to evaluate the school) used by the same
decision-making body to evaluate schools was discriminatory." Id. at 440.
This case is distinguishable from Chicago Teachers Union in two ways. First, the
plaintiffs here contend that certain District Superintendents intentionally denied
overtime. They do not identify a uniform policy or set of criteria applied by the Deputy
Commissioners in deciding whether to approve overtime. The evidence shows that
overtime processes were inconsistent and, according to the OIG report, "varie[d] widely
depending on the supervisor, trade, and work location." Pls.' Opening Mem., Ex. 58 at
18.
Second, there is no evidence that the Deputy Commissioners made approval
decisions together, such that "the same decision-making body" was making all the
overtime decisions for the class. Chi. Tchrs. Union, 797 F.3d at 440. Thus, even if
Bresnahan, the Managing Deputy of BOD, approved overtime in a discriminatory

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manner as the plaintiffs allege, that does not indicate that the Deputy Commissioner of
BOE or BAS made discriminatory overtime decisions. See Wal-Mart, 564 U.S. at 355–
56 ("[D]emonstrating the invalidity of one manager's use of discretion will do nothing to
demonstrate the invalidity of another's."); Bolden, 688 F.3d at 897 ("Although the Court
recognized that discretion might facilitate discrimination, it also observed that some
managers will take advantage of the opportunity to discriminate while others won't.")
(citation omitted). Indeed, the plaintiffs do not make any allegations specific to Julie
Hernandez-Tomlin, Michael Sturtevant, or Burt Rezko, the Managing Deputy and
Deputy Commissioners of those bureaus during the class period.
In sum, none of the conditions that the Seventh Circuit outlined as allowing
"discretionary decisions [to] be the source of a common claim" are met in this case.
Chi. Tchrs. Union, 797 F.3d at 438. The plaintiffs have therefore not satisfied the
commonality requirement for this subclass. The Court declines to certify the overtime
subclass on this basis.
3.

Promotion class

Lastly, the plaintiffs seek certification of a promotion subclass, encompassing all
members of the hostile work environment class "who made an unsuccessful application
for a position within the Department which was pending or determined between June
29, 2015 and July 1, 2017." Pls.' Opening Mem. at 43. Under the City's personnel rules
and Hiring Plan, the Department's hiring process proceeds in steps. In the first two
steps, screening and scoring, Human Resources screens out unqualified applicants.
Qualified applicants proceed to the third step, which is called referral. Depending on the
position, the referral step may constitute a lottery, written tests, interviews, or some

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combination of tests and interviews. As with the discipline class, the plaintiffs contend
that "a policy of racism . . . influenced and governed decisions as part of the pattern of
racially discriminatory conduct." Pls.' Reply Br. at 15. The City contends that the
promotion class fails the commonality requirement because it includes too many
different jobs, evaluators, and selection procedures.
There are two problems with the promotion subclass that prevent a finding of
commonality. First, the subclass includes all class members who unsuccessfully
applied for a position, regardless of which step they reached in the process. The
reasons an applicant may falter at each step vary significantly. Unlike the plaintiffs in
Chicago Teachers Union, the plaintiffs here do not contend "that the objective criteria in
the first two steps narrowed the pool in such a way as to have a disparate impact . . .
without regard to the later, subjective step." Chi. Tchrs. Union, 797 F.3d at 436.
Indeed, the plaintiffs' expert specifically found that "the problem occurs at the referral
stage," which is the subjective step. Pls.' Opening Mem., Ex. 42-1 at 47. And,
"[w]ithout conceding Defendant's arguments," the plaintiffs withdrew the representatives
whose applications did not pass the scoring stage, Henry and Smith. Pls.' Reply Br. at
21 n.10.
Second, even if the promotion subclass were focused on the referral step, the
plaintiffs still have not satisfied the commonality requirement. The referral step takes
various forms depending on the job position. The plaintiffs contend that the promotion
process "often involved the same top management personnel (like Deputy
Commissioner William Bresnahan)." Pls.' Reply Br. at 14. As support, the plaintiffs cite
Bresnahan's deposition testimony to the effect that he sometimes participated in

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interview panels typically composed of three people chosen by Luci Pope-Anderson.
This falls short of showing that Bresnahan was involved in all promotion decisions for
the class. Indeed, Edmond alleges that Stark, not Bresnahan, "impeded his ability to
receive any" promotions. Pls.' Opening Mem. at 33. The plaintiffs also cite Murphy's
deposition testimony that in BWM, Marissa Keating, John Pope, and Keith Holmes
assisted with reassignments within departments, akin to how Pope Anderson handled
this process for BOD. Thus, as with the overtime class, the plaintiffs have not shown
that the same group of decision-makers made all the hiring decisions for the class.
Moreover, the plaintiffs have not identified a uniform set of criteria used by
evaluators in the referral step. Not all candidates are even interviewed. For some
positions included in the class, applicants are chosen based on a lottery system. See
Def.'s Resp. Br., Ex. 31-1 at 65–66 ("[A] general laborer for streets and sanitation, they
don't have a test. They don't have an interview. They essentially apply for the position,
and the list gets what's called lotterized.").
In sum, the plaintiffs have not shown that hiring decisions were "the outcome of
employment practices or policies controlled by higher-level directors" or made by
"decision-makers act[ing] together as one unit." Chi. Tchrs. Union, 797 F.3d at 438.
The only proposed common evidence that remains is Dr. Siskin's statistical evidence of
disparities in hiring, which is insufficient for the reasons explained above. The plaintiffs
therefore have not provided any common contention that ties the various hiring
decisions together. As with the proposed discipline and overtime subclasses, the Court
declines to certify the plaintiffs' proposed promotion class because it does not satisfy the
commonality requirement of Rule 23(a)(2).

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C.

Issue classes
In the alternative, the plaintiffs seek certification under Rule 23(c)(4) for several

liability issues. 7 Rule 23(c)(4) provides that "[w]hen appropriate, an action may be
brought or maintained as a class action with respect to particular issues." Fed. R. Civ.
P. 23(c)(4). However, the issues the plaintiffs identify overlap with the questions the
Court concluded were not common for the plaintiffs' proposed classes. An issue class,
like any class action, "must satisfy Rule 23 and all its requirements." Russell v. Educ.
Comm'n for Foreign Med. Graduates, 15 F.4th 259, 266 (3d Cir. 2021), cert. denied,
142 S. Ct. 2706 (2022); see also Van v. Ford Motor Co., 332 F.R.D. 249, 293 (N.D. Ill.
2019) ("Rule 23(c)(4) does not exempt class representatives from the threshold
requirements of Rule 23(a).") (internal quotation marks omitted). The plaintiffs do not
explain how any of the issues they identify are common to the class, instead relying on
their same commonality arguments for the other classes that the Court has already
rejected. Thus, the Court declines to certify any Rule 23(c)(4) classes.
Conclusion
For the reasons stated above, the Court denies the plaintiffs' motion for class
certification [dkt. no. 226]. The parties are directed to confer regarding a schedule for
further proceedings and are to file a joint status report in this regard on June 13, 2023.

"Plaintiffs seek certification pursuant to Fed. R. Civ. P. 23(c)(4) for the issues of: (a)
whether Defendant maintained a hostile work environment for Blacks; (b) whether
Defendant's methods or criteria for administering discipline, assigning overtime and/or
selecting internal applicants for positions discriminated against Blacks or had the effect
of discriminating against them; (c) whether discrimination was so widespread and wellestablished that it constituted a de facto policy of the Department for purposes of liability
under Section 1983 (e.g., Monell); and (d) whether Defendant engaged in a pattern-orpractice of discrimination against Blacks." Pls.' Opening Mem. at 3.

7

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The case is set for a telephonic status hearing on June 15, 2023 at 9:30 a.m., using
call-in number 888-684-8852, access code 746-1053.

________________________________
MATTHEW F. KENNELLY
United States District Judge

Date: June 6, 2023

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