Harris v. General Development Corp.

127 F.R.D. 655, 1989 U.S. Dist. LEXIS 12789, 51 Fair Empl. Prac. Cas. (BNA) 209, 1989 WL 127453
District Court, N.D. Illinois·Decided October 25, 1989·No. No. 88 C 9736·Published·Cited by 29 cases

Opinion

MEMORANDUM ORDER

BUA, District Judge.

This civil rights action arises from the alleged discriminatory hiring policy implemented by defendants. Plaintiffs desire to bring this lawsuit as a class action, and have moved to certify a class of persons denied employment on account of race. Plaintiffs also have moved to strike an interrogatory answer amended by defendants, characterizing it as nothing more than an “eleventh hour” change of legal strategy to defeat certification. For the reasons stated herein, plaintiffs’ motion for class certification is granted in part and denied in part. In addition, this court denies plaintiffs’ motion to strike.

FACTS

With offices located throughout the United States, defendant General Development Corporation (“GDC”) employs a large number of sales personnel to sell undeveloped, vacant land in pre-planned Florida communities. The sales personnel are employed almost exclusively on a commission basis. Although GDC has enjoyed nationwide success, it has not been totally satisfied with the performance of its Chicago area operations. Consequently, GDC sent its vice president, Vince Rúbeo, to the Chicago office to redirect its marketing strategy. Rúbeo had previously been a Branch and Regional Manager, responsible for rebuilding GDC’s lagging operations in Ohio.

After Rúbeo arrived in Chicago, he implemented the so-called “sphere of influence marketing strategy. The first step in carrying out this plan is to define the various markets that exist within the locale. The markets typically are defined along ethnic lines. Next, advertisements are placed in local newspapers to recruit sales personnel from those markets— GDC’s ads often stated that no experience or real estate license was needed, and that the sales position did not require any particular level of education. The hirees are then trained to sell in the marketplace from which they were recruited. Thus, the sphere of influence technique works on the assumption that sales personnel are most successful when selling to people from within their own community.

Plaintiffs claim that when Rúbeo took over at the beginning of 1987, he focused on several markets within Chicago—namely, the Black, Chinese, Indian, Korean, Philippine, Polish, Ukranian, and Vietnamese communities. Because GDC was not satisfied with its sales efforts in the black community, Rúbeo allegedly directed his managers and sales employees not to recruit or hire any more blacks. According to plaintiffs, two of Rubeo’s senior marketing managers, defendants Gina Battaglia and Irv Herschman, were especially instrumental in carrying out Rubeo’s directive.

Plaintiffs contend that defendants’ sphere of influence strategy conditioned employment solely on the basis of race or national origin, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Complaining of the numerous black applicants and potential applicants allegedly denied employment on account of race, plaintiffs seek to certify the following class:

All black persons who applied for full time or part-time sales jobs with GENERAL DEVELOPMENT CORPORATION at its Chicago offices between January 1; 1987 and the present and all black persons who were discouraged or excluded from applying for full time or part-time sales jobs at GENERAL DEVELOPMENT CORPORATION during that period as a result of defendants’ job [658] recruiting, marketing or advertising policies.

Plaintiffs demand declaratory and injunctive relief to eliminate the alleged discriminatory employment practices, compensation for lost commissions and wages, and punitive damages.

The representative parties of the proposed class, Rhonda Green and Pamela Harris, were both denied employment by GDC. Green apparently worked for GDC for approximately two weeks, however, before she was told by her supervisor that she had never been hired. Subsequently, Green filed a charge of discrimination with the Equal Employment Opportunity Commission. Nonetheless, in an interrogatory propounded by plaintiffs, defendants stated that Green had never worked for GDC. As discovery proceeded and several depositions were taken, defendants realized that she had been working for two weeks, and they amended the interrogatory answer accordingly. Plaintiffs claim that because they relied on defendants’ initial statement that Green was never hired, that they would be prejudiced by the amendment. Attributing great significance to this issue, plaintiffs have moved to strike the amended answer. Consequently, before proceeding to plaintiffs’ motion for class certification, the court must consider plaintiffs’ motion to strike.

DISCUSSION

I. Motion to Strike

Defendants contend that they did not know that Green had done any work for them until they took the depositions of Green and several other employees. There were no records at GDC’s corporate headquarters indicating that Green had ever been hired or employed by GDC. Once defendants realized that they had responded incorrectly to plaintiffs’ interrogatory, they amended their answer to indicate that Green had been hired by GDC. Rule 26(e) of the Federal Rules of Civil Procedure provides that a party is under a duty to amend an interrogatory answer “if he obtains information upon the basis of which ... he knows that the response was incorrect when made.” Fed.R.Civ.P. 26(e)(2)(A). Despite defendants’ duty to amend, plaintiffs claim that they relied on defendants' position that Green was never hired, and that they would be prejudiced if defendants were now allowed to amend. But plaintiffs had access to the facts regarding Green’s employment situation at all times. Thus, defendants’ amendment did not serve to unduly prejudice or surprise its adversary. In light of the fact that discovery is not yet completed in this case, this court sees no reason to deny defendants’ amendment.

II. Motion for Class Certification

For the purpose of ruling on plaintiffs’ motion for class certification, plaintiffs’ allegations are taken as true and the court may not make an inquiry into the merits of the lawsuit. Allen v. Isaac, 99 F.R.D. 45, 49 (N.D.Ill.1983) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). The burden is on plaintiffs, however, to establish their entitlement to a class under federal rule 23. Long v. Thornton Township High School Disk 205, 82 F.R.D. 186, 189 (N.D.Ill.1979). Nevertheless, this court is vested with wide discretion in deciding whether to certify the class. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981).

A. Class Definition

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Harris v. General Development Corp., 127 F.R.D. 655, 1989 U.S. Dist. LEXIS 12789, 51 Fair Empl. Prac. Cas. (BNA) 209, 1989 WL 127453 (N.D. Ill. 1989).

127 F.R.D. 655 (Harris v. General Development Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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