sealBy Gerald L. Maatman Jr. and Christina M. Janice

In a new order issued on November 13, 2015 in Brand, et al. v. Comcast Corp., Case No. 11-CV-8471 (N.D. Ill.  Nov. 13, 2015), a matter we have previously blogged on here, Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois denied a motion brought by African-American employees of Comcast Corporation (“Comcast”) to amend the Court’s certification order of a Title VII hostile work environment class to add discipline and promotions classes based on newly discovered evidence of alleged discrimination.

This case is instructive for employers both in defeating class certification motions, as well as in designing and implementing centralized performance and promotion tools for implementation across a diverse workforce.

Case Background

On November 28, 2011, service and line technicians working at Comcast’s South 112th Street facility in Chicago, brought a class action alleging Comcast exposed Plaintiffs and their co-workers at this 90% African-American workplace to a hostile work environment defined by insect and vermin infestations and frequent racial epithets by their managers. Plaintiffs alleged that they and their co-workers were denied necessary training and systematically provided old, defective and insect-infested equipment, and often were without the tools and equipment they needed to perform their jobs. As a result, Plaintiffs allege that they and the class of co-workers they seek to represent failed to meet Comcast performance metrics, received fewer promotions and lower pay, and were disciplined more often, than co-workers at “mostly white” locations. Id. at 2.

On July 5, 2014, the Court certified Plaintiffs’ “hostile work environment” class under Title VII for all African-American employees at the South 112th Street facility from January 1, 2005 through present. Id. Finding, however, that under Wal-Mart Stores, Inc. v Dukes, 131 S. Ct. 2541 (2011), there was too wide a variation in individual employee experiences and claims to meet the commonality requirement for class certification, the Court denied Plaintiffs’ motion to certify classes of employees claiming discriminatory “terms and conditions” of employment, pay, promotions, and discipline or termination. Id. at 2-3.

After the close of discovery Plaintiffs moved the Court to amend its class certification order to certify discipline and promotions classes based on newly acquired evidence that during the class period Comcast implemented a Performance Improvement Plan (“PIP”) and Qualify to Pursue (“QTP”) promotion metrics with knowledge that a larger percentage of its South 112th Street facility workforce would fail to meet QTP metrics, and be placed on PIP’s, than at other locations. Id. at 4.

Specifically, Plaintiffs sought certification of disparate treatment classes of “all current and former African American technicians at the 112th Street facility that were subject to a Performance Improvement Plan (‘PIP’) from November of 2007 through December of 2011, as a result of failing to meet a specific performance metric” and “all current and former African American CommTech 3 employees at 112th Street that failed to Qualify to Pursue (‘QTP’) to the next technician level from January of 2009 through December of 2011, as a result of failing to meet a specific performance metric.” Id. at 4-5.

The Court’s Decision

Finding sufficient newly acquired evidence to revisit the issue of class certification, the Court nonetheless denied the motion as to the proposed discipline or “PIP class,” reasoning that under Wal-Mart commonality requires a showing that the class members all “suffered the same injury.” Id. at 8 (internal citations omitted). In this respect, the Court reasoned that mere placement on a performance plan “is not the relevant “injury” on a claim under Title VII or section 1981” brought under a theory of disparate treatment. Id. at 8-9.

The Court similarly rejected the proposed promotions or “QTP class.”  Observing that denial of promotion qualifies as an adverse employment action under Title VII and section 1981, the Court found that being placed in QTP status is not in and of itself a promotion. Id. at 11.  Moreover, the Court noted that the Record reflected that the named Plaintiffs had varying experiences – some were promoted, some promoted late and some never promoted –  such that Plaintiffs could not prove disparate treatment. Id. at 12.

Observing that Plaintiffs chose to bring their claims under a disparate treatment theory of liability under Title VII (rather than demonstrate disparate impact arising from the application of Comcast’s policies and practices), the Court observed that to prevail, “[e]ach plaintiff would need to demonstrate individually that he or she failed to meet performance objectives as a direct result of Comcast’s effort to undermine 112th Street technicians and that this resulted in an adverse employment action.” Id. at 12-13. Because Plaintiffs would have to demonstrate how each employee was undermined and the adverse action each suffered, common questions would not predominate as to warrant class treatment. Id. at 13.

Implications for Employers   

While to Comcast’s benefit the Court’s order in Brand turns largely on the decision of the Plaintiffs to bring their claims under a disparate treatment theory of discrimination under Title VII, employers designing and implementing performance improvement and career advancement tools should be mindful that development of these centralized employment performance tools exposes employers to risk of class action litigation under Title VII. Care should be taken to design facially neutral tools using best legal compliance practices for validating these tools as achieving their legitimate business purposes, without less discriminatory alternatives, in their intended environments.


By Gerald L. Maatman, Jr., and Alexis P. Robertson

On July 5, 2014, Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois certified a class of current and former African-American employees alleging claims of racial discrimination against Comcast, Inc.  In Brand v. Comcast, Case No. 11 C 8471 (N.D. Ill. July 5, 2014), Judge Kennelly found that plaintiffs’ proposed class of employees who work or worked at a single Comcast facility located on the South Side of Chicago satisfied the requirements of Rule 23(b)(3).

The ruling is significant for employers, as most judges cast a doubting eye at efforts to certify hostile environment claims after Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).

Background To The Case

Twelve named plaintiffs, comprised of current and former employees of a Comcast facility located on South 112th Street in Chicago, sued Comcast alleging that it discriminated against the employees of that facility due to the race of the employees and the customers. Plaintiffs alleged that the facility was infested with cockroaches, dilapidated, and dangerous. Plaintiffs asserted that their repeat requests for new equipment were ignored and that they were forced to use outdated a defective equipment. Additionally, Plaintiffs alleged that they were denied adequate training, were the subject of racial epithets, paid less than similarly-situated white Comcast employees, and were more likely to be placed on disciplinary performance improvement plans.

Plaintiff’s filed suit alleging discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Plaintiffs moved to certify a hostile work environment class. In addition, Plaintiffs moved to certify an additional “terms and conditions class” as well as a handful of sub-classes.

The Court’s Decision

The Court primarily focused on Plaintiffs’ request for certification of a hostile work environment class “consisting of all African-American employees who work or worked at Comcast’s 112th Street facility between January 2005 and the present.” Id. at 3. Plaintiffs alleged that the class consisted of at least 350 members.

The Court concluded that Plaintiffs had provided sufficient evidence of commonality per Wal-Mart Stores, Inc. v. Dukes when the majority, 11 out of 12 of the representative Plaintiffs and 80 percent of the declarant plaintiffs, testified that they had heard or been subject to racial epithets. The Court found that the high percentage of Plaintiffs and putative class member who had heard epithets constituted a common injury that was sufficiently “severe and pervasive” for class certification purposes. Id. at 30. Therefore, Plaintiffs had sufficiently alleged a common question among the workers about “whether they [had] heard racially offensive terms during the course of their employment to the extent that they constituted hostile work environment.” Id at 31.

Further, the Court found that the inclusion of allegations related to the infested and dilapidated condition of the office, as well as the used and defective equipment, further contributed to the “common question of whether  there was a hostile work environment. . . .” Id. at 32. The Court reasoned that “by its nature, the issue of the condition of the 112th Street facility presents a concern common to any employee working there.” Id. Additionally, the manner in which Comcast handled complaints about the facility was also a part of the common question of whether the “facility constitutes a hostile work environment.” Id. at 33. Ultimately, the Court found that the Plaintiffs had shown “significant proof of a common question among members of the class regarding whether there was a hostile work environment at the 112th street facility.” Id. at 34.

After concluding that the Plaintiffs had satisfied the commonality requirement, the Court was easily able to find that typicality had been satisfied. The Court determined that its analysis of commonality “also explains why the named plaintiffs’ claims are typical of those with the class: not only did the vast majority of the named plaintiffs encounter racially offensive language and work with problematic equipment, but all of them worked in the same facility.” Based on this, the Court concluded that “the claims of the named plaintiffs are typical of those of the class for purposes of Rule 23(a)(3).” Id. at 36.

Further, the Court determined that certification under Rule 23(b)(3) was appropriate because the Plaintiffs were seeking money damages. The Court rejected Comcast’s argument that individual damages calculations would overwhelm the common questions to the class, because “common proof of damages for class members is not required.” Id. at 41 (internal citations and quotations omitted). Reiterating that the “common question is whether conditions at the 112th Street presented a hostile work environment for the African-American employees there,” the Court held that the Plaintiffs proposed class satisfied the predominance requirement of Rule 23(b)(3) and that certification was, therefore, proper. Id. at 40.

The Court went on to deny Plaintiffs’ request for certification of a number of ancillary classes, finding that the proposed pay, promotion, and termination classes did not meet the commonality requirement.

Implications For Employers

Brand v. Comcast is a significant decision for employers. This case illustrates that the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), did not ring the death knell for hostile work environment class actions, at least according to Judge Kennelly. According to Brand v. Comcast, a class based on the environment at a single facility may surmount the commonality barrier created by Wal-Mart Stores and gain certification. It remains to be seen whether the Seventh Circuit will agree with this interpretation, as the ruling represents a distinct minority view of Wal-Mart Stores in the federal courts.