Robinson v. Sheriff of Cook County

167 F.3d 1155, 42 Fed. R. Serv. 3d 1285, 1999 U.S. App. LEXIS 1801, 75 Empl. Prac. Dec. (CCH) 45,770, 79 Fair Empl. Prac. Cas. (BNA) 203, 1999 WL 55153
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 8, 1999
DocketNo. 98-2333
StatusPublished
Cited by57 cases

This text of 167 F.3d 1155 (Robinson v. Sheriff of Cook County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. Sheriff of Cook County, 167 F.3d 1155, 42 Fed. R. Serv. 3d 1285, 1999 U.S. App. LEXIS 1801, 75 Empl. Prac. Dec. (CCH) 45,770, 79 Fair Empl. Prac. Cas. (BNA) 203, 1999 WL 55153 (7th Cir. 1999).

Opinion

POSNER, Chief Judge.

The appeal in this Title VII case presents questions of class action procedure. 42 U.S.C. §§ 2000e et seq.; Fed.R.Civ.P. 23. The suit was filed by Charles Robinson on behalf of those blacks (387 in all) who, although certified as eligible for appointment as Cook County correctional officers between roughly 1991 and 1995, had not been appointed when this suit was filed in 1995. The basis of the suit is disparate impact: only 34 percent of black applicants were hired during the period covered by the complaint, compared to 53 percent of white applicants. If disparate impact is proved, the burden shifts to the employer to show that the hiring methods responsible for the disparity are necessary to the efficient conduct of his business. 42 U.S.C. § 2000e-2(k)(l)(A)(i).

The defendant (the Sheriff of Cook County) denied that the plaintiffs’ statistics demonstrated disparate impact and asserted that the methods used to choose among the applicants, methods that include review of the applicant’s employment history, an interview, and a drug test, are necessary to assure the hiring of competent correctional officers. Challenging Robinson’s suitability as a class representative, the Sheriff presented evidence that Robinson’s application had been turned down because of his very poor employment record, which among other things contained an unexplained 27-month gap between jobs. The judge rejected Robinson as class representative but permitted Belinda Taylor to join the suit as a plaintiff and take Robinson’s place as class representative. But when it was discovered that Taylor had never filed a charge of discrimination with the EEOC, which is a prerequisite to filing a Title VII lawsuit, the judge threw out her claim and disqualified her from serving as Robinson’s successor as class representative.

Robinson at this point was still in the case, though just with his individual claim. At his lawyer’s suggestion, the judge conducted a bench trial limited to the issue [1157]*1157whether, assuming without deciding that there was a prima facie case of disparate impact, the defendant could show that Robinson’s application had been turned down for compelling business reasons. (Conducting an evidentiary hearing limited to a discrete, potentially dispositive issue is an authorized and frequently a sensible method for expediting the decision of cases. Fed.R.Civ.P. 42(b); Thompson v. Mahre, 110 F.3d 716, 720-21 (9th Cir.1997). Separate trials on liability and relief are only the most common application of Rule 42(b). See, e.g., MCI Communications Corp. v. AT&T Co., 708 F.2d 1081, 1166-68 (7th Cir.1983); Saxion v. Titan-C-Manufacturing, Inc., 86 F.3d 553, 556 (6th Cir.1996).) The judge so found and dismissed Robinson’s case. Robinson and Taylor appeal, arguing that the class should be certified with Robinson and Taylor as the class representatives irrespective of the deficiencies in their claims, and in addition that the dismissal of Robinson’s discrimination claim should be reversed.

In effect the appeal asks us to graft Robinson’s timely filing with the EEOC onto Taylor’s untimely but not-yet-shown-to-beunmeritorious discrimination case to create a composite plaintiff to represent the class of blacks denied employment by the defendant. We cannot find any basis in law or good sense for such ghastly surgery. Neither plaintiff is a suitable class representative, and zero plus zero is zero.

In considering the issue of class certification, we set to one side the results of the bench trial. The fact that the named plaintiff in a class action turns out not to have a meritorious claim does not doom the class action. If Robinson should have been approved as class representative before his bench trial, the fact that he lost at that trial would not be fatal to the class. Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Certification would make the members of the class parties, and one of them could be selected as class representative in place of Robinson. The bench trial was limited to the question whether Robinson had been turned down for innocent reasons, and the circumstances of other class members might be different, in which event the suit could continue — though not (as we are about to see) with him as class representative.

So we must focus on the situation as it appeared when the judge ruled that Robinson was not a suitable class representative. Under Rule 23, the class representative’s claim must be typical of the claims of the class, and he must also be an adequate representative of the class. Fed.R.Civ.P. 23(a)(3), (4). The first of these requirements is really an aspect of the second; if his claim is atypical, he is not likely to be an adequate representative; his incentive to press issues important to the other members of the class will be impaired. General Telephone Co. v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); In re American Medical Systems, Inc., 75 F.3d 1069, 1082-83 (6th Cir.1996). And if when class certification is sought it is already apparent — as it was here because of Robinson’s employment history as shown on the application that he submitted to the Sheriffs office — that the class representative’s claim is extremely weak, this is an independent reason to doubt the adequacy of his representation. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Hardy v. City Optical Inc., 39 F.3d 765, 770 (7th Cir.1994); Hanon v. Dataproducts Corp., 976 F.2d 497, 508-09 (9th Cir.1992). One whose own claim is a loser from the start knows that he has nothing to gain from the victory of the class, and so he has little incentive to assist or cooperate in the litigation; the case is then a pure class action lawyer’s suit. Cf. Frahm v. Equitable Life Assurance Society, 137 F.3d 955, 957 (7th Cir.1998). Finally, if the class representative’s claim is both weak and typical — if the case as a whole is as weak as the representative’s individual claim — then the case should be dismissed, with or without class certification. E.g., Coe v. County of Cook, 162 F.3d 491 (7th Cir.1998).

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Bluebook (online)
167 F.3d 1155, 42 Fed. R. Serv. 3d 1285, 1999 U.S. App. LEXIS 1801, 75 Empl. Prac. Dec. (CCH) 45,770, 79 Fair Empl. Prac. Cas. (BNA) 203, 1999 WL 55153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-sheriff-of-cook-county-ca7-1999.