Edmondson v. Simon

86 F.R.D. 375, 24 Fair Empl. Prac. Cas. (BNA) 1035, 30 Fed. R. Serv. 2d 130, 1980 U.S. Dist. LEXIS 9336
CourtDistrict Court, N.D. Illinois
DecidedMarch 25, 1980
DocketNo. 76 C 4591
StatusPublished
Cited by50 cases

This text of 86 F.R.D. 375 (Edmondson v. Simon) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edmondson v. Simon, 86 F.R.D. 375, 24 Fair Empl. Prac. Cas. (BNA) 1035, 30 Fed. R. Serv. 2d 130, 1980 U.S. Dist. LEXIS 9336 (N.D. Ill. 1980).

Opinion

MEMORANDUM OPINION

FLAUM, District Judge:

This matter comes before the court on plaintiff’s motion to declare a class, pursuant to rule 23(b)(2), Fed.R.Civ.P. For the reasons set forth below, plaintiff’s motion is granted.

The facts of this case have been set forth in detail in the court’s Memorandum Opinion dated January 28, 1978 and therefore will not be repeated here. Plaintiff seeks only to maintain Count I of the Complaint as a class action.

Before determining whether this action may be maintained as a class action under rule 23(b)(2), the prerequisites of rule 23(a) must be met. Rule 23(a) states:

One or more members of a class may sue or be sued as representative parties on behalf of all only 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 defenses 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.

By definition, an essential prerequisite to a class action is the existence of a “class.” Furthermore, the named representative party must be a member of the class he purports to represent. 3B Moore’s Federal Practice ¶¶ 23.04[1], 23.04[2], at 23-111, 23-120 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil §§ 1760, 1761, at 579, 584 (1972). In a Memorandum Opinion dated January 27, 1978 this court redefined the class as “those black and female employees of the Chicago District Office [of the Internal Revenue Service of the United States Department of the Treasury] at any time after January 23, 1976 who were denied promotion opportunities because of their race or sex” and recognized that plaintiff is a member of the above-mentioned class.1 However, the court lacked sufficient information to determine whether the prerequisites of rule 23(a) had been met.

The first prerequisite, impracticability of joinder, is not simply a test of the number of class members. Other factors may make joinder of a small class impracticable, though joinder of a larger class might be practicable in their absence. Thus, when the class is large, numbers alone are dispositive but when the class is small, factors other than number are significant. H. Newberg, Class Actions § 1105, at 172 (1977); 3B Moore’s Federal Practice ¶ 23.-05[1], at 23-150 to 23-151 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil § 1762, at 602 (1972).

Plaintiff contends that joinder is impracticable because large numbers of persons are involved (at least 170),2 because relatively small amounts of money are involved in the claims of any one individual, and because class members who are presently employed by the Internal Revenue Service may fear reprisal and retaliation. Defendants contend that plaintiff’s statistics are irrelevant because the purported class is overbroad and that plaintiff’s statistical analysis is inadequate because many of [380]*380the statistically included candidates are outside the purported class and because employees given promotions have not been subtracted.3 Even if the class was less than half the size of that proposed by plaintiff, it is still a sufficiently large group to satisfy rule 23(a)(1) where the members of the class are unable to sue individually. See Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969). Therefore, the requirement under rule 23(a)(1) of numerosity is satisfied.

Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. There need be only a single issue common to all members of the class. Therefore, when the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected. H. Newberg, Class Actions § 1110a, at 180-81 (1977); 3B Moore’s Federal Practice ¶ 23.06-1, at 23-173 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil § 1763, at 603-04 (1972).

Plaintiff contends common questions of both fact and law are presented because the nature of a Title VII action is such that there must be common questions regarding defendants’ employment policies, practices and actions.4 The court does not agree. Otherwise, every Title VII case would be a class action. See Gresham v. Ford Motor Co., 53 F.R.D. 105, 106 (N.D.Ga. 1970). However, the Complaint does allege across-the-board racial and sexual discrimination. Where an across-the-board or permeating policy of discrimination is alleged in a class action, the requirement under rule 23(a)(2) of commonality is satisfied.5 See e. g., Rich v. Martin Marietta Corp., 522 F.2d 333, 341 (10th Cir. 1975); Barnett v. W. T. Grant Co., 518 F.2d 543, 547-48 (4th Cir. 1975); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 255 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). Therefore, the requirement under rule 23(a)(2) of commonality is satisfied.

The first two prerequisites of rule 23, numerosity and commonality, focus on characteristics of the class. The second two prerequisites, typicality and adequacy of representation, focus instead on the class representative. H. Newberg, Class Actions § 1115, at 184 (1977); 3B Moore’s Federal Practice ¶ 23.06-2, at 23-191 to 23-192 (2d ed. 1979).

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 his or her claims are based on the same legal theory. [381]*381H. Newberg, Class Actions §§ 1115b, 1115f, at 185,191 (1977); Wright & Miller, Federal Practice & Procedure: Civil § 1764, at 614 (1972). Defendants contend plaintiff’s claim is not typical because plaintiff’s legal and factual positions are markedly different from those of the purported class members. The court does not agree. See Senter v. General Motors Corp., 532 F.2d 511, 525 n.31 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976).

When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is met irrespective of varying fact patterns which underlie individual claims. Typicality refers to the nature of the claim or defense of the class representative and not to the specific facts from which it arose or to the relief sought. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members and is based on the same legal theory. H.

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86 F.R.D. 375, 24 Fair Empl. Prac. Cas. (BNA) 1035, 30 Fed. R. Serv. 2d 130, 1980 U.S. Dist. LEXIS 9336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmondson-v-simon-ilnd-1980.