Robinson v. Sheriff of Cook County
| Decision Date | 08 February 1999 |
| Docket Number | No. 98-2333,98-2333 |
| Citation | 167 F.3d 1155 |
| Parties | 79 Fair Empl.Prac.Cas. (BNA) 203, 75 Empl. Prac. Dec. P 45,770 Charles O. ROBINSON and Belinda Taylor, individually and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. SHERIFF OF COOK COUNTY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kenneth N. Flaxman (argued), Chicago, IL, for Plaintiffs-Appellants.
Gina E. Brock (argued), Jack Murphy, Office of the State's Attorney of Cook County, Chicago, IL, for Defendant-Appellee.
Before POSNER, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
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)(1)(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 whether, 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. 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-be-unmeritorious 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 Sheriff's 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. ...
To continue reading
Request your trial
-
In Re Community Bank Of Northern Virginia
...incentive to assist or cooperate in the litigation; the case is then a pure class action lawyer's suit. Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir.1999) (internal citations omitted). Thus, to the extent the claims of the named plaintiffs-as compared with the rest of th......
-
Parra v. Bashas', Inc.
...Mr. Estrada cannot. Plaintiffs have the sounder argument. In the first place, Bashas' primary authority, Robinson v. Sheriff of Cook County, 167 F.3d 1155 (7th Cir. 1999), as well as the twocases to which it cites,26 are out of Circuit non-binding precedent. Second, all three cases are fact......
-
Ellis v. Edward D, Jones & Co., L.P.
...employee expressly consents to any collective adjudication of his or her rights under the FLSA." Id. (quoting Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir.1999)). The Rules Enabling Act (hereinafter REA) gives the Supreme Court the power to promulgate rules of practice a......
-
Little v. Wash. Metro. Area Transit Auth.
...to prove his case or [because] the defendant may have good defenses.’ " Houser, 28 F.Supp.3d at 248(quoting Robinson v. Sheriff of Cook Cnty., 167 F.3d 1155, 1158 (7th Cir. 1999) ). The ultimate inability to maintain an individual claim for damages due to a legitimate defense to that named ......