In a new order issued on November 13, 2015 in Brand, et al. v. Comcast Corp., Case No. 11-CV-8471 (N.D. Ill.  Nov. 13, 2015), a matter we have previously blogged on here, Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois denied a motion brought by African-American employees of Comcast Corporation (“Comcast”) to amend the Court’s certification order of a Title VII hostile work environment class to add discipline and promotions classes based on newly discovered evidence of alleged discrimination.

This case is instructive for employers both in defeating class certification motions, as well as in designing and implementing centralized performance and promotion tools for implementation across a diverse workforce.

Case Background

On November 28, 2011, service and line technicians working at Comcast’s South 112th Street facility in Chicago, brought a class action alleging Comcast exposed Plaintiffs and their co-workers at this 90% African-American workplace to a hostile work environment defined by insect and vermin infestations and frequent racial epithets by their managers. Plaintiffs alleged that they and their co-workers were denied necessary training and systematically provided old, defective and insect-infested equipment, and often were without the tools and equipment they needed to perform their jobs. As a result, Plaintiffs allege that they and the class of co-workers they seek to represent failed to meet Comcast performance metrics, received fewer promotions and lower pay, and were disciplined more often, than co-workers at “mostly white” locations. Id. at 2.

On July 5, 2014, the Court certified Plaintiffs’ “hostile work environment” class under Title VII for all African-American employees at the South 112th Street facility from January 1, 2005 through present. Id. Finding, however, that under Wal-Mart Stores, Inc. v Dukes, 131 S. Ct. 2541 (2011), there was too wide a variation in individual employee experiences and claims to meet the commonality requirement for class certification, the Court denied Plaintiffs’ motion to certify classes of employees claiming discriminatory “terms and conditions” of employment, pay, promotions, and discipline or termination. Id. at 2-3.

After the close of discovery Plaintiffs moved the Court to amend its class certification order to certify discipline and promotions classes based on newly acquired evidence that during the class period Comcast implemented a Performance Improvement Plan (“PIP”) and Qualify to Pursue (“QTP”) promotion metrics with knowledge that a larger percentage of its South 112th Street facility workforce would fail to meet QTP metrics, and be placed on PIP’s, than at other locations. Id. at 4.

Specifically, Plaintiffs sought certification of disparate treatment classes of “all current and former African American technicians at the 112th Street facility that were subject to a Performance Improvement Plan (‘PIP’) from November of 2007 through December of 2011, as a result of failing to meet a specific performance metric” and “all current and former African American CommTech 3 employees at 112th Street that failed to Qualify to Pursue (‘QTP’) to the next technician level from January of 2009 through December of 2011, as a result of failing to meet a specific performance metric.” Id. at 4-5.

The Court’s Decision

Finding sufficient newly acquired evidence to revisit the issue of class certification, the Court nonetheless denied the motion as to the proposed discipline or “PIP class,” reasoning that under Wal-Mart commonality requires a showing that the class members all “suffered the same injury.” Id. at 8 (internal citations omitted). In this respect, the Court reasoned that mere placement on a performance plan “is not the relevant “injury” on a claim under Title VII or section 1981” brought under a theory of disparate treatment. Id. at 8-9.

The Court similarly rejected the proposed promotions or “QTP class.”  Observing that denial of promotion qualifies as an adverse employment action under Title VII and section 1981, the Court found that being placed in QTP status is not in and of itself a promotion. Id. at 11.  Moreover, the Court noted that the Record reflected that the named Plaintiffs had varying experiences – some were promoted, some promoted late and some never promoted –  such that Plaintiffs could not prove disparate treatment. Id. at 12.

Observing that Plaintiffs chose to bring their claims under a disparate treatment theory of liability under Title VII (rather than demonstrate disparate impact arising from the application of Comcast’s policies and practices), the Court observed that to prevail, “[e]ach plaintiff would need to demonstrate individually that he or she failed to meet performance objectives as a direct result of Comcast’s effort to undermine 112th Street technicians and that this resulted in an adverse employment action.” Id. at 12-13. Because Plaintiffs would have to demonstrate how each employee was undermined and the adverse action each suffered, common questions would not predominate as to warrant class treatment. Id. at 13.

Implications for Employers   

While to Comcast’s benefit the Court’s order in Brand turns largely on the decision of the Plaintiffs to bring their claims under a disparate treatment theory of discrimination under Title VII, employers designing and implementing performance improvement and career advancement tools should be mindful that development of these centralized employment performance tools exposes employers to risk of class action litigation under Title VII. Care should be taken to design facially neutral tools using best legal compliance practices for validating these tools as achieving their legitimate business purposes, without less discriminatory alternatives, in their intended environments.