Seyfarth Synopsis: The U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), still lords over employment discrimination class actions nearly a decade later. Indeed, Nelson, et al. v. Pace Suburban Bus, et al., No. 17 C 7697, 2020 WL 6565241, at *1 (N.D. Ill. Nov. 9, 2020), is a reminder that plaintiffs attempting to certify class discrimination claims face significant commonality hurdles when the alleged discriminatory policy is discretionary. In Nelson, the U.S. District Court for the Northern District of Illinois denied class certification solely on commonality grounds because the Plaintiffs failed to demonstrate that their purported common question – whether the company’s disciplinary actions were discriminatory – can be answered on a classwide basis.
This case is an important read for employers, particularly companies that vest their supervisors with discretionary disciplinary authority, because it demonstrates the advantages that such a policy may play in defeating class certification.
In Nelson, Plaintiffs were former school bus drivers for Defendant Pace Suburban Bus (“Pace”). Plaintiffs alleged that Pace’s disciplinary practices were racially discriminatory because Black drivers generally were disciplined at higher rates than White drivers in violation of Title VII of the Civil Rights Act of 1964 and Illinois law.
After discovery, Plaintiffs moved to certify a Rule 23 class consisting of current and former Black employees who drove school buses for Pace. Pace opposed class certification on the basis that Plaintiffs failed to meet the commonality requirement under Rule 23(a). Pace argued that the putative class members were disciplined for violating different employment policies in different ways. The Court agreed and denied class certification. Id.
In response to Pace’s opposition, Plaintiffs pointed to one supervisor as the common denominator who participated in disciplining all putative class members and who they alleged discriminated, intentionally or unintentionally, against all putative class members. Id. Plaintiffs also relied on discipline statistics, which showed that White drivers were suspended .75 times per driver; whereas, Black drivers were suspended 1.15 times per driver. Id. at *3.
The Court underscored its analysis by likening the case to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). “Like Dukes,” the Court explained, “this is an employment case, and as in Dukes, ‘[t]he crux of this case is commonality — the rule requiring a plaintiff to show that there are questions of law or fact common to the class.’” Id. (citing Wal-Mart, 564 U.S. at 349.).
Although the Court agreed that a discriminatory bias on the part of the same supervisor may be sufficient to establish commonality, the Court explained that under Wal-Mart, 564 U.S. at 350, such an assertion must still be capable of class-wide resolution. Id. at *5. Because the supervisor’s level of involvement and discretion in making disciplinary decisions — and the level of involvement and input of other supervisors — varied substantially based on the particular Pace policy at issue, the Court concluded that plaintiff could not establish the supervisor’s discriminatory bias on a class-wide basis. Id. at *6. Instead, the Court found that a trier of fact would have to consider different sets of facts to determine whether the supervisor discriminated against a particular driver in a particular context. Id.
The Court also rejected Plaintiffs’ attempt to rely on allegations of a “pattern or practice” of discrimination to justify class certification. Id. at 7. Because Plaintiffs only presented statistics showing disparities in overall numbers of suspensions, and not testimony capturing specific instances of intentional discrimination, the Court reasoned that Plaintiffs could not rely on their pattern-or-practice allegations to support Rule 23 commonality. Id.
Implications For Employers
The ruling in Nelson is a reminder for employers that vesting multiple supervisors with discretionary disciplinary authority may go a long way in defeating class certification. Nevertheless, employers should be careful to evaluate their disciplinary statistics because, as this case is clear, had Plaintiffs offered testimony of specific instances of discrimination, they may have satisfied the commonality requirement of Rule 23.