Court Disbands Walsh Construction Class Suit

     CHICAGO (CN) – Black workers who brought racial discrimination claims against one of the nation’s largest building companies cannot proceed as a class, the 7th Circuit ruled.
     Walsh Construction Company, like most construction contractors, requires a highly flexible workforce to handle the multistage building process. The company has a small number of permanent employees who supervise projects, and superintendants make most day-to-day employment decisions. Walsh has an antidiscrimination policy and provides management training.
     In a 2006 complaint, 12 former Walsh employees claimed that a Chicago-area superintendent had practiced or tolerated racial discrimination. Citing statistical analysis, they said black employees were less likely than white or Hispanic workers to receive overtime hours or promotions.
     In addition, some superintendents and foremen allegedly used the words “nigger” and “coon” to refer to black workers or allowed other employees to do so. The complaint also alleged that derogatory graffiti and hangman’s nooses had appeared in portable toilets on some sites.
     U.S. District Judge Joan Humphrey Lefkow certified two classes covering all of Walsh’s 262 projects in the Chicago area since mid-2001. She reasoned that the proposed class differed from one that the Supreme Court disbanded in Wal-Mart v. Dukes
     But the 7th Circuit rejected this reasoning last week. Though there are two problems with the proposed class, the court found that a third issue ultimately dooms the case.
     First, none of the 12 representatives had worked for Walsh since 2002. A class cannot proceed without representative plaintiffs since the court struck down such “across-the-board classes” in General Telephone v. Falcon in 1982. But the problem could be rectified simply by naming different lead plaintiffs, the court found.
     Second, the proposed “overtime class,” which contains “all blacks employed as journeymen … who were denied opportunities to work, not afforded overtime hours or not afforded premium pay hours, because of their race,” defines the case based on a future decision on the merits – that the workers were denied benefits “because of race.”
     This definition makes it impossible to determine who is in the class until the case ends, but that meaning can be easily changed.
     The problem fatal to the complaint lies in the lack of class commonality, according to the court’s three-judge panel.
     Because superintendents and foremen change sites so often, and the discrimination alleged stemmed from the actions of a few individuals, common questions of fact probably do not exist, the panel determined.
     “To evaluate plaintiffs’ grievances about Walsh, however, a court would need site-specific, perhaps worker-specific, details, and then the individual questions would dominate the common questions (if, indeed, there turned out to be any common questions),” Chief Judge Frank Easterbrook wrote for the court.
     Even the alleged statistical analysis cannot save the proposed class because it “has the same problem as the statistical evidence in Wal-Mart: it begs the question,” the ruling states.
     The analyst never justified his assumption that Walsh’s Chicago-area sites are the appropriate unit of analysis, and he did not attempt to control for variables other than race. Other factors such as Walsh’s collective bargaining agreements, which require it to offer overtime opportunities first to union stewards, could have caused the reported trends, the court found.
     The data could also be explained by predominantly white union members.
     “Wal-Mart tells us that local discretion cannot support a company-wide class no matter how cleverly lawyers may try to repackage local variability as uniformity,” Easterbrook wrote. “The 12 plaintiffs did not experience the working conditions at all 262 sites either individually or collectively, and a given plaintiff’s bad experience with one of the five supervisors we have named does not present any question about the conduct of Walsh’s many other superintendents and foremen.”
     Claims must be brought on a site-by-site basis, the 7th Circuit determined, noting that some sites are large enough for to meet class action numerosity requirements.
     “We urge the parties and the judge to act with dispatch,” Easterbrook wrote. “It has been a decade since any of the plaintiffs worked for Walsh, and the case is six years old. It should not be allowed to gather moss.”
     Former superintendents John Taheny, Robert Kuna, Arthur Crummie, Robert DeBoer, and Jim Gumber were named in the complaint as practicing discrimination. None works for Walsh today.

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