Simpson et al v. Cook County Sheriff's Office et al
Filing
375
MEMORANDUM Opinion and Order. Signed by the Honorable Sharon Johnson Coleman on 8/8/2022. Mailed notice. (ym, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH D.G. SIMPSON, et al.,
Plaintiffs,
v.
SHERIFF TOM DART, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 18-cv-0553
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
After the Court denied plaintiffs’ motion for class certification on September 13, 2021,
plaintiffs petitioned the Seventh Circuit for permission to appeal the class certification ruling. The
Seventh Circuit granted plaintiffs’ petition under Federal Rule of Civil Procedure 23(f) and vacated
the Court’s denial of class certification as to certain subclasses. See Simpson v. Dart, 23 F.4th 706 (7th
Cir. 2022). After the mandate issued, plaintiffs filed a third amended complaint and the parties filed
supplemental class certification briefs under Rules 23(a) and 23(b)(3). For the following reasons, the
Court, in its discretion, grants plaintiffs’ motion for class certification in accordance with this ruling.
Background
Plaintiffs, on behalf of themselves and others similarly situated, filed this putative class
action challenging the hiring practices for Correctional Officers at the Cook County Department of
Corrections as racially discriminatory against African-Americans. Plaintiffs bring this lawsuit against
Cook County Sheriff Tom Dart in his official capacity and the Cook County Sheriff’s Merit Board.
At issue in this class certification motion is plaintiffs’ Title VII disparate impact claim in relation to
certain hiring steps conducted by the Merit Board. See 42 U.S.C. § 2000e-2(k)(1)(A)(i).
The Correctional Officer hiring process consists of several steps conducted by the Merit
Board and the Sheriff’s Office. Applicants must first successfully complete the Merit Board process
and obtain certification before they are eligible to begin the Sheriff’s hiring process. The Merit
Board’s certification process has seven steps: (1) screening for minimum qualifications; (2) an initial
written examination; (3) a second written examination; (4) a physical ability test; (5) finger printing
and drug testing; (6) a personal history questionnaire and follow-up interview; and (7) final review by
the Merit Board members. Once the Merit Board certifies an applicant as eligible to be hired, the
Sheriff’s Office makes the final hiring decision.
At issue in plaintiffs’ motion for class certification are the Merit Board’s hiring examinations,
namely, the initial written examination, the second written examination, and the physical ability test.
In their third amended complaint, plaintiffs set forth four subclasses encompassing these
examinations:
•
Class 1. All Black applicants for Correctional Officer positions at the Cook County Jail who
took and did not pass the first written test during or after July 2014 and before April 2016. 1
•
Class 2. All Black applications for Correctional Officer positions at the Cook County Jail
who took and did not pass the first written test during or after April 2016.
•
Class 3. All Black applicants for Correctional Officer positions at the Cook County Jail who
took and passed the first written test during or after July 2014 and then took but did not pass
the second written test.
•
Class 4. All Black applicants for Correctional Officer positions at the Cook County Jail who
took and passed the first written test during or after July 2014, but did not pass the physical
abilities test.
Title VII Disparate Impact Claim
To give context to plaintiffs’ motion for class certification, the Court turns to the nature of
Title VII disparate impact claims. “Title VII prohibits employment practices that have a
disproportionately adverse impact on employees with protected characteristics, even if the impact is
unintended.” Ernst v. City of Chicago, 837 F.3d 788, 794 (7th Cir. 2016). “A plaintiff establishes a
The first written examination was modified in April 2016, therefore, plaintiffs divided the subclasses based
on the two different versions of the first written examination.
1
2
prima facie violation of the disparate impact statute by demonstrating that an employer uses ‘a
particular employment practice that causes a disparate impact on the basis of race, color, religion,
sex, or national origin.’” CTU v. Board of Ed., City of Chicago, 14 F.4th 650, 655 (7th Cir. 2021)
(quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)). Once a plaintiff establishes a prima facie violation,
“[e]mployers can defend against a disparate-impact claim by demonstrating that the challenged
practice is job-related for the employee’s position and consistent with business necessity.” Ernst,
837 F.3d at 794. “The burden then shifts back to the plaintiff to show that the employer refused to
use an available yet equally valid and less discriminatory practice.” CTU, 14 F.4th at 655.
Legal Standard
“To achieve certification, a proposed class under Rule 23(b) must meet the requirements
of Rule 23(a)—numerosity, typicality, commonality, and adequacy of representation—and one of the
alternatives listed in Rule 23(b).” Howard v. Cook County Sheriff’s Office, 989 F.3d 587, 597 (7th Cir.
2021); see also Simpson, 23 F.4th at 711. Once plaintiffs shows all of Rule 23(a)’s requirements, if they
seek class certification under Rule 23(b)(3), the district court must then determine whether common
questions of law or fact predominate over individual questions and if the class action is superior to
other litigation methods. See Howard, 989 F.3d at 597.
Discussion
Title VII’s 300-Day Limitations Period
Before examining the class certification requirements under Rule 23(a), the Court turns to
defendants’ argument that plaintiffs are attempting to extend their Title VII class period by defining
three of the four subclasses with a starting date of July 2014, which is well over 300 days before the
first EEOC Charge was filed on January 8, 2016. See Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236,
239 (7th Cir. 2004) (“Under Title VII, a plaintiff in Illinois must file an employment discrimination
charge with the EEOC within 300 days after the alleged unlawful employment practice occurred.”).
3
Rather than June 2014, defendants argue the starting point of the subclasses should be March 14,
2015, which is 300 days prior to the first EEOC Charge that was filed on January 8, 2016.
In determining the timeliness of the subclass claims, the Court must identify the precise
“unlawful employment practice,” as well as the occurrence that triggers the 300-day limitations
period. See Lewis v. City of Chicago, Ill., 560 U.S. 205, 210–11 (2010). In Lewis, after potential
firefighters took an examination, the City categorized the applicants and put them on lists for future
hiring. In this context, the Lewis Court held “a plaintiff who does not file a timely charge
challenging the adoption of a practice—here, an employer’s decision to exclude employment
applicants who did not achieve a certain score on an examination—may assert a disparate-impact
claim in a timely charge challenging the employer’s later application of that practice.” Id. at 208
(emphasis in original). To clarify, in Lewis, the adoption of the allegedly discriminatory practice was
the creation of the eligibility lists that reflected the examination scores, and the City’s application of
that practice was each time the City filled a new class of firefighters. Id. at 212. Thus, each round or
wave of hiring triggered the 300-day limitations period because the City’s later implementation of its
discriminatory policy qualified as a new “unlawful employment practice.” See Lewis v. City of Chicago,
Ill., 643 F.3d 201, 203 (7th Cir. 2011); Conley v. Nestle USA, Inc., No. 09-cv-5996, 2011 WL 332525, at
*4 (N.D. Ill. Jan 31, 2011) (Dow, J.).
Here, plaintiffs first contend the unlawful hiring practice involves the written and physical
examinations and that the 300-day period was triggered when class members were excluded from
each round of hiring. Plaintiffs’ first assertion squares with the Lewis Court’s holding. Yet, to reach
back to July 2014, plaintiffs also argue that the occurrence triggering the 300-day limitations period
was when certain class members failed an examination. Plaintiffs explain that the written testing
date of July 2014 should be included in the class definition because it corresponds to hiring rounds
that took place after March 14, 2015, which was 300 days before the first EEOC charge was filed.
4
The Supreme Court’s decision in Lewis does not support plaintiffs’ argument because “Lewis stands
for the proposition that later implementation of a policy that causes as disparate impact can qualify
as a new, actionable ‘employment practice.’” Conley, 2011 WL 332525, at *4. The Lewis Court did
not hold that a plaintiff can reach back to the testing date even it if it outside of the 300-day period.
Accordingly, to reach back to June 2014, plaintiffs must have filed an EEOC Charge sometime in
March 2015, which they failed to do.
The Court, however, will not deny plaintiffs’ motion for class certification based on these
class definitions as defendants argue. Instead, plaintiffs’ subclasses 1, 3, and 4 must include the time
period starting on March 14, 2015, which is 300 days prior to the first EEOC Charge, rather than
July 2014.
Commonality
Turning to the four factors set out in Rule 23(a), defendants do not challenge the numerosity
requirement under Rule 23(a)(1). Defendants, however, argue that plaintiffs’ subclasses fail Rule
23(a)(2)’s commonality factor, which requires questions of law or fact common to the class. “Where
the same conduct or practice by the same defendant gives rise to the same kind of claims from all
class members, there is a common question.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th
Cir. 2014). The Simpson panel provided the Court with significant guidance on making this
determination, including that a “Title VII plaintiff can establish liability on a disparate impact theory
by pointing to an employment policy that ‘causes racial discrimination’ and ‘is not justified by
business necessity.’” Simpson, 23 F.4th at 711 (citation omitted).
In their briefs on remand, plaintiffs have pointed to discrete employment actions, namely,
the administration of the three standardized tests, which do not involve the exercise of discretion.
Id. at 712. Plaintiffs also fulfilled the requirement outlined by Simpson that the administration of
these standardized tests allegedly caused racial discrimination. Id. at 711-12. Moreover, whether the
5
examinations actually caused disparate impact and whether the use of the examinations was justified
as a business necessity are questions common to the class. See id. at 712. Accordingly, plaintiffs’
disparate impact claims are well-suited for class adjudication. Plaintiffs have thus fulfilled the
commonality requirement under Rule 23(a)(2).
In response, defendants argue plaintiffs cannot establish commonality because they did not
challenge the validity of the standardized tests. Defendants’ argument contradicts the Simpson
decision where the Seventh Circuit specifically stated:
To assess whether Simpson’s claims presented common questions, the district court
did not need to consider whether Simpson’s statistical experts controlled for racially
neutral factors or whether the tests had been validated for use at other departments.
These considerations go not to commonality but instead to whether the exam
subclasses can ultimately succeed on the merits. We cannot know at this stage. But
what we can say is that, as to each subclass, the answer seems likely to be the same
for each class member. That is all that Rule 23(a)(2) requires.
Id. at 712. By making this argument, defendants ask the Court to ignore the Seventh Circuit’s
guidance, which this Court will not do.
Typicality
Defendants also challenge plaintiffs’ subclasses under Rule 23(a)(3)’s typicality factor, which
requires “the claims or defenses of the representative parties are typical of the claims or defenses of
the class.” The typicality and commonality elements have considerable overlap, “so they often rise
or fall together.” Howard, 989 F.3d at 598. A 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 her
claims are based on the same legal theory.” McFields v. Dart, 982 F.3d 511, 517 (7th Cir. 2020)
(citation omitted). There is no question the named plaintiffs’ claims arise from the standardized
tests and are based on the same legal theory, disparate impact. As such, the representative plaintiffs’
claims have the same essential characteristics as the class claims.
Defendants nonetheless argue the representative plaintiffs cannot satisfy the typicality
6
requirement because they prepared for the standardized tests in different ways and attempted to pass
the examinations at different times. These minor variances make no difference to the Court’s class
certification analysis, especially because defendants have not identified any legal authority suggesting
these differences defeat the typicality requirement. See Reed v. Brex, Inc., 8 F.4th 569, 581 (7th Cir.
2021) (“arguments unsupported by pertinent authority are waived.”).
Adequacy
Next, defendants contend there are adequacy issues under Rule 23(a)(4) as to the named
plaintiffs based on the scope of their EEOC charges. Defendants assert the “scope of the charge
issues will be addressed at the summary judgment stage, but those issues have clear implications for
class certification as well.” Because defendants tacitly admit this issue is best left for summary
judgment, the Court will not address the scope of the EEOC charges at this juncture. See, e.g., Vasich
v. City of Chicago, No. 11 C 4843, 2013 WL 80372, at *4 (N.D. Ill. Jan. 7, 2013) (Tharp, J.). Indeed,
this issue, along with defendants’ arguments about the physical abilities test, goes to the merits, not
class certification. See Simpson, 23 F.4th at 711-12.
Otherwise, to be an adequate representative, the named plaintiffs “must be a member of the
putative class and have the same interest and injury as other members.” Santiago v. City of Chicago, 19
F.4th 1010, 1018 (7th Cir. 2021) (citation omitted). A class representative may be inadequate if she
is subject to a defense unique to her, if she has a conflict of interest, or if she has credibility issues.
See id.; Stampley v. Altom Transport, Inc., 958 F.3d 580, 585 (7th Cir. 2020). Because there is no
indication from the parties’ arguments that the class representatives will not fairly and adequately
protect the interest of the class, the Court concludes plaintiffs have fulfilled Rule 23(a)(4).
Predominance and Superiority
Turning to Rule 23(b)(3), the Court must ask whether there are common questions of law or
fact that predominate over individual questions and determine if a class action is superior to other
7
available methods of resolving the lawsuit. See Howard, 989 F.3d at 597. It is well-settled that the
questions of commonality and predominance overlap, see CTU v. Board of Educ. of City of Chicago, 797
F.3d 426, 443 (7th Cir. 2015), and in this lawsuit, the predominate common questions of law and
fact weigh heavily in favor of class-wide treatment due to the uniform hiring practice involving
standardized testing. Answering the question of whether the alleged disparate impact of these
standardized tests in the context of a class action, rather than piecemeal litigation, is efficient and fair
under the circumstances. See id. at 444-45. Plaintiffs have fulfilled Rule 23(b)(3)’s requirements.
Defendants, however, argue that an individualized analysis of each applicant would be
required under the circumstances because there are more steps involved in the hiring process than
just the standardized tests. More specifically, defendants assert that proof of who would have been
hired under the multiple-step hiring process would complicate this class action lawsuit, especially in
relation to damages. As the Court explained in an earlier ruling in this lawsuit, in the context of
disparate impact cases, Title VII guarantees minorities and women the opportunity to compete
equally with white workers based on job-related criteria. Connecticut v. Teal, 457 U.S. 440, 451 (1982).
Therefore, losing the opportunity to compete equally or being excluded from jobs due to race or
gender are actionable injuries. See id.; Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988).
As such, plaintiffs need not prove that defendants would have hired them as defendants suggest.
Conclusion
Based on the foregoing, the Court, in its discretion, grants plaintiffs’ motion for class
certification in accordance with this ruling.
Date: 8/8/2022
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?