Find Result - 1999 WL 34002340

4/8/08 12:02 PM

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1999 WL 34002340 (N.D.Ill.) For opinion see 2004 WL 434203, 217 F.R.D. 415
Motions, Pleadings and Filings
United States District Court, N.D. Illinois. Eastern Division
Lisa ELLIS, Marcia English, Derrick Denson and Yvonne Mason, individually and for a class, Plaintiffs, v.
Elgin Riverboat RESORT d/b/a Grand Victoria Riverboat; Nevada Landing Partnership and RBG Ltd., Defendants.
No. 98 CV 7093. Docketed July 8, 1998.
July 7, 1999.
Amended Complaint
Cecile Singer, Kenneth N. Flaxman, 122 South Michigan Avenue, Suite 1850, Chicago, Illinois 60603, (312) 427-3200, attorneys for plaintiffs. Judge Marovich.
Pursuant to leave of Court, plaintiffs, by counsel, file this amended complaint and allege as follows:
1. This is a civil action arising under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e.
2. Plaintiffs Lisa Ellis, Marcia English, Derrick Denson and Yvonne Mason were, at all times relevant, African-American residents of the Northern District of Illinois. Each plaintiff was, at all times relevant, well-trained, competent, and experienced in a variety of customer-service positions (e.g., dealer) at a riverboat casino.
3. Plaintiff Yvonne Mason died subsequent to the filing of this lawsuit and will be replaced by a personal representative within the time period of Federal Rule of Civil Procedure 25.
4. Defendant Elgin Riverboat Resort d/b/a Grand Victoria Riverboat; Nevada Landing Partnership and RBG Ltd. (previously referred to as “Grand Victoria Casino”) is an employer of more than 15 persons within the Northern District of Illinos.
5. In August of 1998, plaintiffs Ellis, English, and Mason applied for vacant dealer positions with defendant.
6. On or about August 12, 1998, plaintiffs were Ellis and English were scheduled to be

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“auditioned” for vacant dealer positions. Plaintiffs Ellis and English were interviewed with a group of eight potential employees. This group consisted of plaintiffs Ellis and English, two African-American woman, three Caucasian women, one Caucasian man, and one Asian woman.

7. The Caucasian applicants were auditioned first and each received an extensive tryout. Thereafter, plaintiffs and the Asian woman were auditioned; each received a brief and superficial audition.

8. Following the auditions, defendant hired all of the Caucasian applicants and failed to hire plaintiffs and the other non-Caucasian applicant.

9. Plaintiff Yvonne Mason applied for employment with defendant on August 5, 1998. On September 9, 1998, she was one of two applicants who auditioned for a job as a dealer. The other applicant was a white male. The white male was hired, Mason was not.

10. Plaintiff Derrick Denson applied for a dealer position with defendant on or about November 15, 1998. At that time, Denson had seven years experience as a dealer and two years experience as a supervisor in the gaming industry. In applying for a dealer position, Denson received a written application and, along with 15 to 20 other applicants, completed the application. Denson was the only African-American among this group of applicants. Defendant did not hire Denson; Denson is informed and believes that defendant hired a significant number of the non-African-American applicants who had applied for vacant dealer positions at the same time as Denson applied.

11. Plaintiffs filed timely charges of employment discrimination with the EEOC and initiated this lawsuit within 90 days of receipt of a notice of right to sue.

12. Plaintiffs bring this case under Rule 23 of the Federal Rules of Civil Procedure for all African-American persons who have been denied equal employment opportunities because of defendant's refusal to hire African-American dealers. The proposed class consists of all African-Americans who applied and were rejected for employment or who were deterred from applying for employment from December 25, 1997 (300 days before the filing of the first EEOC charge) to present. The proposed class satisfies each of the requirements of Rule 23(a) and certification is appropriate under Rule 23(b)(2).

Wherefore plaintiffs request that the Court order that this case may be maintained as a class action and that the Court:

• Enter a declaratory judgment finding that defendant discriminated against plaintiffs and other similarly situated class members,

• Enjoin the defendant from continuing its policy and practice of discriminating against

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plaintiffs and other similarly situated class members,

• Mandate the employment with full back pay and benefits of the named plaintiffs, and

• That the Court fashion such additional appropriate relief as may be appropriate to make whole the plaintiff class.

Motions, Pleadings and Filings (Back to top)
• 2003 WL 24309321 (Trial Motion, Memorandum and Affidavit) Defendants' Motion for Summary Judgment (Dec. 19, 2003) Original Image of this Document (PDF) • 1:98CV07093 (Docket) (Nov. 5, 1998) • 1998 WL 34375913 (Expert Report and Affidavit) (Report or Affidavit) (1998) END OF DOCUMENT

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Case 1:98-cv-07093 Document 81 Filed 02/06/2003 Page 1 of 5

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FILED
FEB 0 G 2003

LISA ELLIS, et. aI.,

)

)

Plaintiffs,

)

)

v.

)

)

ELGIN RIVERBOAT RESORT, et. aI., )

)

Defendants.

)

No. 98 CV 7093

MARTIN C. ASHMAN.
lJ'NITED STATES MAGISTRATE JUJ)GJ3 UNITED STATESQISIIlICl C_QURlJ

Magistrate Judge Ashman

DEFENDANTS' MOTION TO DECERTIFY THE CLASS

Defendants Elgin Riverboat Resort d/b/a Grand Victoria Casino, et. al. (collectively "Grand

Victoria"), by and through their attorneys, and pursuant to Rule 23(c) of the Federal Rules of Civil

Procedure, hereby move for entry of an order decertifYing the class conditionally certified by this

Court on March 27,2000. Decertification is warranted because recent discovery has confirmed that

this lawsuit does not satisfY any of the preconditions for maintenance as a class action as set forth

in Rule 23(a) and (b), Fed. R. Civ. P. In support of this Motion, Grand Victoria submits its

Memorandum of Law together with an evidentiary Appendix.

As further support for this Motion, Grand Victo.ria states as follows:

1. This Title VII lawsuit is brought by the extant named Plaintiffs Lisa Ellis, Derrick

Denson and Marcia English, who contend thatthey applied for a dealer position with Grand Victoria,
but were rejected due to their race, African-American. Amended Complaint ("Am. Complt."), 'iI'iI

5-10. 1 The named Plaintiffs also purport to bring this action in a representative capacity on behalf

I Another original named Plaintiff, Yvonne Mason, brought similar claims, but has since died. Ms. Mason's daughter, Shemina Lewis, has been substituted for her in this action as a special representative of her estate.
1

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Case 1:98-cv-07093 Document 81 Filed 02/06/2003 Page 2 of 5

of all qualified African-American applicants for the dealer position who were not hired by Grand Victoria, Am, Compl!., ~ 12,
2, On March 27, 2000, after a limited initial discovery period, Judge Gottschall conditionally certified a class defined as follows: "All African-Americans who were qualified for employment as 'dealers,' who applied for positions as 'dealers' at the Grand Victoria Casino, but who were not hired from December 25, 1997 to the present." Order at 10, Judge Gottschall acknowledged that Plaintiffs' assertions as to numerosity were wholly conclusory and speculative. The Court stressed, however, that it retained the option of later decertifying the class should subsequent factual development warrant such a determination. Id. at 7.
3. After the entry of Judge Gottshall's conditional certification order, the parties conducted written discovery and engaged in motion practice with respect to various discovery disputes. Then, on November 5, 2001, the parties arrived at a tentative settlement of the case. The parties appeared before this Court again on May 29, 2002, after months of negotiations over the terms ofa proposed settlement, on which date the tentative settlement foundered. Shortly thereafter, on June 14, 2002, this Court set a pre-trial schedule and the parties resumed discovery. In the ensuing months, the parties have conducted extensive discovery, including over a dozen depositions.
4. Recent discovery confirms that the class should be decertified because Plaintiffs cannot satisfy any ofthe requirements for certification set forth in Rule 23(a), Fed. R. Civ. P. - i.e., numerosity, commonality, typicality and adequacy of representation. Each is addressed briefly below:
First, it is apparent that Plaintiffs cannot establish the requisite numerosity. If the term "applied" in the class definition is properly and sensibly interpreted to encompass only those persons
2

Case 1:98-cv-07093 Document 81 Filed 02/06/2003 Page 3 of 5
who auditioned for a dealer position, then there are only eight (8) class members (including two of the three extant named Plaintiffs). The remaining putative class members submitted written applications only that provided no indication of their race. Although Grand Victoria submits that the existing class definition will bear the more restrictive interpretation urged in this Motion, it is nevertheless filing a motion to formally modify the express language of the class definition to eliminate any possible ambiguity on this point. Furthermore, even ifthe class is not limited to those who auditioned for a dealer position, Plaintiffs still fail to satisfy the numerosity requirement. Contrary to Plaintiffs' initial, unfounded assertions, the class encompasses nowhere near "a hundred or more persons." Rather, it consists of slightly more than 50 individuals, nearly all of whom live in the Chicago metropolitan area. Joinder of such persons is not impracticable.
Second, Plaintiffs cannot satisfy the requirement that there be common issues of fact. Plaintiffs have failed to identify any employment practice or policy uniting the various class members' claims. At bottom, this lawsuit consists ofa collection of unrelated anecdotes involving hiring decisions made by numerous different decisionmakers as part ofa highly decentralized hiring process, at different times, and under different competitive conditions. Put differently, if this case is allowed to proceed as a class action, it will devolve into a series of more than 50 mini-trials. Each such mini-trial will require an individualized inquiry into the class member's qualifications, Grand Victoria's hiring needs at the time ofthe application, the qualifications ofthose persons, if any, who were hired at the time, as well as an examination of the individual factors bearing upon each class member's claim for back pay damages. In sum, the only fact common to these claims is the class members' shared race, African-American. That is not enough to justify class treatment.
3

Case 1:98-cv-07093 Document 81 Filed 02/06/2003 Page 4 of 5
Third, the named Plaintiffs' claims are not typical of the class as a whole. There is no "common core" ofallegations linking Plaintiffs' claims to those ofthe class. For example, Plaintiffs Ellis and English claim to have auditioned, whereas most of the class members submitted written applications only. Furthermore, given the lack of an identifiable discriminatory policy or practice, the decentralized nature ofGrand Victoria's hiring process, and the individualized inquiry that will be required as to each claim, the entire notion of "typicality" is simply nonsensical. Moreover, the named Plaintiffs will be subject to unique defenses that render their claims atypical. These defenses include Ellis' status as a two-time former Grand Victoria employee, and the fact that English is a full-time teacher who expressed a preference for a part-time position.
Fourth, Plaintiffs are not adequate class representatives because their interests conflict with those of the class as a whole in several respects. For example, the interests of those class representatives who claim to have auditioned - i.e., Ellis and English - conflict with other class members who applied but were not given the opportunity to audition. Similarly, PlaintiffEnglish's asserted preference for part-time employment is in conflict with the interests of nearly all the other class members who desired full-time employment as dealers. Finally, the fact that, as noted above, Ellis and English are subject to unique defenses detracts not only from the typicality oftheir claims, but also from their adequacy as class representatives.
5. Plaintiffs also fail to satisfy the additional requirements for class certification set forth in Rule 23(b), Fed. R. Civ. P. This lawsuit should not have been conditionally certified under Rule 23(b)(2) where, far from being merely "incidental" to Plaintiffs' case, monetary reliefpredominates over the declaratory or injunctive relief, if any, that Plaintiffs may seek. Nor is Rule 23(b)(3) certification warranted where Paintiffs cannot show that common issues, if any, predominate over
4

Case 1:98-cv-07093 Document 81 Filed 02/06/2003 Page 5 of 5

the morass of individual issues presented by this case.

WHEREFORE, for all of the foregoing reasons, as well as those more fully set forth in its

accompanying Memorandum ofLaw, Grand Victoria respectfully requests that this Court enter an

order decertifying the class.

-kz-, Dated: February

2003

Respectfully submitted,

By: e of Defendants' Attorn

Jane M. McFetridge Attorney No. 06201580 Joel W. Rice Attorney No. 06186471 Matt D. Strubbe Attorney No. 6216918 FISHER & PHILLIPS LLP 420 Marquette Building 140 South Dearborn Street Chicago, Illinois 60603 (312) 346-8061
Attorneys for Defendants

5

 
 oI!.

--..

Minuto Ord« Fonn (06197)

UCnaisteed1:9S8ta-ctve-s0D70i9s3trictDCoocuumrte,nNt 9o8rtherFnileDdi0s8tr/2ic1t/2o0f0I3lIinoPiasge 1 of 35

Name of Assigned Judge or Magilitrate Judge

Martin C. Ashman

Sitting Judge If Other than Assigned Judge

CASE NUMBER

98 C 7093

DATE

8121/2003

CASE TITLE
MOTION:

Lisa Ellis, et al. vs. Elgin Riverboat Resort, et al.
. . . (In the followmg box (a) md,.ate the party filIng the motion, e.g.• piamtif!; defendan~ 3ed party piaml.jft; and (b) slate bneOy the n......
ofthe motion being presented.]

1

_

DOCKET ENTRY:

(I) 0

(2) 0

(3)

0

(4) 0

(5) 0

(6) 0

(7) 0

Filed motion of [ lISe listing in "Motion" box above.] Brief in support ofmotion due _ _. Answer briefto motion due_ _. Reply to answer brief due_ _. RulinglHearing on _ _ set for _ _ at _ _. Status hearing[heldlcontinued to] [set for/re-set for] on _ _ set for _ _ at _ _. Pretrial conference[heldlcontinued to] [set for/re-set for] on _ _ set for _ _ at_---' Trial[set for/re-set for] on _ _ at _ _

(8) 0
(9) 0

[Bench/Jury trial] [Hearing] heldlcontinued to _ _ at _ _. This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP4I(a)(1) 0 FRCP4I(a)(2).

(10) •

[Other docket entty] Enter memorandum opinion and order. Defendants' motion to decertify the

class [81-1] is granted. Defendants' motion to amend the class definition [80-1] to include only those

applicants who auditioned is denied as moot.

(11) •

[For further detail see order attached to the original minute order.]

No notices required. advised in open court.

No notices required.

,f Notices mailed by judge's staIf. Notified counsel by telephone.

Docketing to mail notices. Mail AO 450 fonn. Copy to judge/magistrate judge.

courtroom

IS

deputy's

initials .

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2 IIlImber ofnoticeI
IS

••

Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 2 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LISA ELLIS, et aI.,
Plaintiffs,
v. ELGIN RIVERBOAT RESORT, et aI.,
Defendants.

)

)

)

Case No. 98 C 7093

)

)

Magistrate Judge

)

Martin C. Ashman

)

)

)

MEMORANDUM OPINION AND ORDER

DOCKETED
AUG 2 I:: 2003

I. Introduction

Plaintiffs, Lisa Ellis, Marcia English, Yvonne Mason and Derrick Denson (collectively

referred to as "Ellis" or "Plaintiffs"), filed a putative class action suit alleging that the defendants,

Elgin Riverboat Resort d/b/a Grand Victoria Riverboat, Nevada Landing Partnership, and RBG,

Ltd. (collectively referred to as "Elgin") engaged in a pattern and practice of discriminatory

hiring based on race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §2000e. For relief, Ellis requested both declaratory and injunctive relief, as well as back

pay and benefits for the named plaintiffs. On March 27, 2000, Judge Gottschall certified the

class pursuant to Federal Rule of Civil Procedure 23(b)(2). Presently before this Court is Elgin's

motion to decertify the class or to limit the scope of the class to those applicants whom Grand Victoria invited to audition for a dealer position. l

I The parties have consented to have this Court conduct any and all proceedings in this case, including the entry of fmal judgment. See 28 U.S.C. §636(c); Local R. 73.l(b).

,
Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 3 of 35 II. Background
Grand Victoria is a state-licensed gambling facility located in Elgin, Illinois. It employs approximately four hundred dealers, all of whom deal at least one of the following games: craps,
blacIgack and roulette, as well as games such as baccarat and Caribbean stud poker. Prospective
dealers may apply to the casino in a number of ways: after retrieving a written application from the Human Resources Department or from an adjacent building (until November 2002), applicants may return the application to a Human Resources clerk, drop the application in a designated drop box on the boat or in the accounting hallway, or return the application by mail. (McGill Aff. ~ 4.) Beginning in July 2001, applicants could complete the application online. (ldV
When a Human Resources clerk receives a written application directly from an applicant, the clerk completes a Pre-Employment Screening Tool, which asks for the applicant's name, whether the applicant has previously applied to or been employed at the Grand Victoria and if so, the date of such application or employment. The Screening Tool further requires clerks to rate, on a scale of 1-5, their impression of the applicant on whether the applicant seems friendly, helpful, courteous, eager to please, and whether the applicant presents a neat and clean appearance.
2 The plaintiffs contend that Elgin requires all applicants to apply in person. (PIs.' Opp'n Mem. at II.) However, the deposition pages the plaintiffs reference do not specifically support the assertion. Both Penson's and McGill's deposition excerpts explain what the Human Resources clerks do when an individual applies in person, but are silent about whether an applicant may only apply in person.
- 2-

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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 4 of 35
Thereafter, clerks process the applications and forward them to a Human Resources manager for initial screening.3 Over the course of the class period three assistant managers have been responsible for screening, each of whom determined whether the application was complete, reviewed the applicant's job history including prior employment with Grand Victoria, and looked for large unexplained gaps in the applicant's employment history. Beyond these characteristics, individual screeners focused on different aspects of the application when evaluating the applicant: Lennor Penson focused on applicants' previous employment and eligibility for rehire, while Zaara Norten focused on applicants' record ofjob stability. If the Human Resources manager approves the application, the department holds the application until the Casino Manager or one ofhis staff notifies Human Resources that the casino has openings for the dealer position. When such dealer positions become available, Casino Manager Michael Graninger further screens applications to determine which applicants he will invite to audition. Graninger, a native of Washington, D.C., reviews the second page of the application to assess the applicant's level of dealing experience and job stability. Graninger often reviewed applications with Julian Thompson, employed during the class period first as the Pit Boss and later as Shift Manager. If the applicant included on the application the name of a friend or relative who worked at Grand Victoria and referred him or her to the casino, Thompson often asked the employee whether the applicant was a skilled dealer. The referral was also important to the employee, because under the "Bring a Friend" program the referring employee received a $250 bonus for referring an applicant whom the casino hired and who remained employed for at least six months.
3 Human Resources Manager Sharon McGill has almost always delegated screening to an assistant manager.
-3-

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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 5 of 35
Graninger instructed Shift Managers and, occasionally, Pit Managers to invite those applicants who survived the second level of screening to audition for a dealer position. During the class period five shift managers and at least two Pit Managers have conducted dealer auditions and independently determined which applicants pass. The decisonmakers base their decisions on the applicant's I) knowledge of the game, procedures and payoffs; 2) neatness and accuracy in shuffling and dealing; 3) full awareness of all players at the gaming table; and 4) ability to interact well with the customers.4 Ifthe applicant passes the audition, he or she will be hired pending a drug test and a criminal background check.
On July 12, 1998, Plaintiffs Lisa Ellis and Marcia English applied in person for dealer positions at the Grand Victoria. Ellis worked for Grand Victoria twice previously, once for a period of several months in 1994 and 1995, and again for one week in December 1995. Shortly after applying, Ellis received notice that Grand Victoria rejected her application and would keep her application on file for thirty days. On August II, 1998, Ellis spoke with Pit Boss Kevin Schmieder, who advised her that dealer positions were available and suggested that she attend the dealer auditions the following day. He instructed Ellis to inform Julian Thompson that Schmieder told her to audition despite her initial rejection.
Within a few days of applying, English received an invitation from Thompson to audition at the casino. English informed Thompson that she worked as a full-time Chicago public school
4 Plaintiffs claim that Defendants did not have standards for dealers, and that dealers were required only to "know the layout and smile." (pIs.' Opp'n Mem. at 9.) However, Ms. Ellis' deposition confirms that dealers were required to know the game and interact well with customers. (Ellis Dep. at 46.)
- 4-

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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 6 of 35

teacher and therefore requested only part-time employment. Thompson told her that was okay and instructed her to audition anyway.
On August 12, 1998, Ellis and English arrived with Plaintiff Yvonne Mason to audition for dealer positions. Mason had not yet submitted a written application, but knew Thompson and hoped that he would permit her to audition that day. Mason filled out an application and Thompson informed her that, according to Grand Victoria's rules, she could not audition on the same day she applied for employment, but that she could audition the following week. Thompson also informed Ellis that because she was not invited to the audition he would audition her last. Ellis and English auditioned with a group offour Caucasian women, one Caucasian man, and one Asian woman. The first group of auditions lasted between forty-five minutes and one hour while the second group of auditions (of which English and Ellis were a part) lasted only a few minutes, ostensibly because the casino personnel needed to board the boat.' Grand Victoria did not hire Ellis, English or Mason.
On or about November IS, 1998, Derrick Denson submitted an application and resume to a clerk in Grand Victoria's Human Resources department. Grand Victoria did not invite Denson to audition for a dealer position.
On November 6, 1998, Plaintiffs filed a complaint alleging that Elgin Riverboat Resort d/b/a Grand Victoria Riverboat, Nevada Landing Partnership, and RHO, Ltd. engaged in a pattern or practice of hiring discrimination based on race, in violation of Title VII of the Civil Rights

, One additional applicant, an Asian woman, auditioned with the second group. ·5-

Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 7 of 35 Act.6 The plaintiffs sought class certification under Rule 23 of the Federal Rules of Civil Procedure. Judge Gottschall certified as a class "those African-Americans who were qualified for employment as 'dealers' and applied for work as 'dealers' at the Grand Victoria casino, but were not hired from December 25, 1997 to the present." However, because class size is often speculative during the early stages oflitigation, Judge Gottschall certified the class on the express condition that the plaintiffs be able to satisfy Rule 23(a)'s numerosity requirement. (Order granting class certification at 7.) Finding that Plaintiffs satisfied the remainder of Rule 23(a)'s requirements, Judge Gottschall certified the class under Rule 23(b)(2). (ld. at 10.)
On February 7, 2003, after nearly three years of discovery, Defendants filed a Motion to Decertify or, in the Alternative, Modify the Class.' During discovery, Plaintiffs identified sixty class members (including the named plaintiffs) and both parties took numerous depositions of class members and Elgin employees, and propounded interrogatories.
III. Discussion A. Standard of Review In deciding a motion to decertify a class, the court tests whether economy favors adjudicating multiple disputes in a single action, without sacrificing fairness. Gen Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano \/. Yamasaki, 442 U.S. 682,
6 Plaintiffs filed an Amended Complaint on July 7, 1999, following Yvonne Mason's death. The Amended Complaint added Denson as a named plaintiff.
7 On February 18, 2003, Elgin filed a Revised Memorandum of Law in Support of Motion to Decertify the Class.
-6-

Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 8 of 35
700-01 (1979». To proceed as a class action the plaintiffs must first establish: (1) that members of the class are "so numerous that joinder of all members is impracticable;" (2) that "there are questions oflaw or fact common to the class;" (3) that the claims or defenses of the class representative are "typical of the claims or defenses of the class;" and (4) that the class representative "will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a).8 Further, the class representative must satisfy a provision of Rule 23(b). Rosario v. Lilladitis, 963 F.2d 1013, 1017 (7th Cir. 1992); Patrykus 11. Gomilla, 121 F.R.D. 357, 360 (N.D. Ill. 1988).9 Failure to satisfy any of these requirements precludes class certification. Harriston 11. Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (quoting Valentino 11. Howlett, 528 F.2d 975, 978 (7th Cir. 1976». The court enjoys "broad discretion" in determining whether the plaintiffs have satisfied their burden. Keele 11. Wexler, 149 F.3d 589, 592 (7th Cir. 1998) (citing Mira 11. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir. 1997».
Initially, a court determining whether to certify a class must generally accept as true the allegations in support of certification rather than examine the merits of the case. Retired Chi. Police Ass'n v. City ofChicago, 7 F.3d 584, 598 (7th Cir. 1993) ("Retired Police Ass'n f'). However, because "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action," the court must sometimes "probe behind the pleadings before coming to rest on the certification question."
• These elements are otherwise referred to as numerosity, commonality, typicality, and adequacy of representation.
9 Judge Gottschall certified the class under 23(b)(2), which requires that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole ...." Fed. R. Civ. P. 23(b)(2).
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, Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 9 of 35
Falcon, 457 U.S. at 160 (quotations omitted). Because the court must decide whether to certify a class early in the proceedings10, it remains under a continuing obligation to review whether proceeding as a class action is appropriate, and may modify the class or vacate class certification pursuant to evidentiary developments arising during the course oflitigation. Eggleston v. Chi. Journeymen Plumbers' Local Union No. 130,657 F.2d 890, 896 (7th Cir. 1981); Binion v. Metro. Pier & Exposition Auth., 163 F.R.D. 517, 520 (N.D. Ill. 1995) (citing Falcon, 457 U.S. at 160) (explaining that the court "remains free" to modify or vacate certification if developments in class litigation so require). Thus, the court's initial certification of a class "is inherently tentative." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.ll (1978). See also Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 275-76 (4th Cir. 1980) (explaining that pretrial litigation may reveal that a plaintiff cannot satisfy commonality factors, requiring the court to decertify the class); In re Gen. Motors Corp., 55 F3d 768, 792 n.14 (3d Cir. 1995) (noting that all class actions are necessarily "conditional" because under Fed. R. Civ. P. 23(c)(1) courts may modify or decertify a class until final judgment on the merits). The party seeking class certification bears the burden of demonstrating that initial certification is appropriate, Retired Police Ass'n 1, 7 F3d at 596, and likewise on a motion to decertify the class, bears the burden of producing a record demonstrating the continued propriety of maintaining the class action, Stastny, 628 F.2d at 277.
Ellis characterizes Elgin's motion to decertify the class or to limit the class as a motion to reconsider Judge Gottschall's class certification, which Ellis argues was conditional only with respect to numerosity. Relying on Gary v. Sheahan, 188 F3d 891 (7th Cir. 1999) and on Best v.
10 Fed. R. Civ. P. 23(c)(1) requires the court to rule on class certification as soon as practicable after the complaint is filed.
- 8-

Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 10 of 35
Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), Ellis asserts that this Court is bound by the law of the case doctrine and may only decertify the class if presented with new law or clear error. However, Ellis' reliance on Gary and Best, and on the law of the case doctrine, is misplaced. First, Gary is distinguishable because the Gary court faced a completely different procedural posture: the court did not face a motion to decertify a class but a defendant's attempted interlocutory appeal of the district court's denial of its motion to decertify the class. Gary, 188 F.3d at 893. Ellis therefore takes out of context the Gary court's labeling as a motion to reconsider the defendant's motion to decertify the class. The Seventh Circuit treated the two motions as one and the same to stress that despite the label chosen by a party, Rille 23(t)'s prescribed ten-day filing limit on interlocutory appeals still applies.
Second, Elgin's motion is not a motion to reconsider requiring a heightened standard of review under the law of the case doctrine, but is instead a motion to decertify based on evidence developed and revelations produced during three years of discovery and pretrial litigation. See Williams v. Comm'r ofInternal Revenue, 1 F.3d 502, 503 (7th Cir. 1993) ("[T]he second judge may alter previous ru1ings if new information convinces him that they are incorrect, but he is not free to do so ... merely because he has a different view of the law or facts from the first judge.") As previously discussed, class certification, modification, and decertification are discretionary. Rille 23 clearly requires this Court to review the propriety of class certification in light of new evidence and pretrial litigation, regardless of which judge initially certified the class. See, e.g. Toney v. Rosewood Care Center, Inc., No. 98 C 693, 2001 WL 322413, at ·1-3 (N.D. Ill. Mar. 13,2001) (on a motion to decertify the class, the court analyzed the defendant's arguments and did not employ a heightened standard in reviewing the propriety of maintaining a class which
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had been previously certified by a different judge). Finally, assuming the law of the case doctrine did apply, this Court's review of the
defendant's motion is appropriate. The law of the case doctrine requires the court to adhere to previous rulings absent a compelling reason, "such as an intervening change oflaw or newly discovered evidence, to examine them." Smithkline Beecham Corp. v. Apotex Corp., 247 F. Supp.2d lOll, 1014 (N.D. Ill. 2003) (emphasis added). Given the intervening three years of discovery between Judge Gottschall's initial class certification and the instant motion, the parties present this Court with new evidence, Le., information regarding the proposed class members, and information gleaned from depositions and affidavits, requiring review to determine if the class certification remains appropriate.
B. Title VII Just as Ellis bears the burden of satisfying the requirements of Rule 23(a), Ellis also bears the initial burden to establish a violation of Title VII. See Int'l Bhd. o/Teamsters v. United States, 431 U.S. 324, 336 (1977). The plaintiffs allege that Grand Victoria engaged in a pattern or practice of discriminatory hiring. To establish their Title VII claim, Plaintiffs may proceed under either a disparate treatment or a disparate impact theory. Id. at 335 n.l5. 11 "To establish a pattern or practice claim [under a disparate treatment theory], the plaintiffs must prove that intentionally discriminatory practices were the defendant's 'standard operating procedure,' not
11 Individual plaintiffs alleging a Title VII violation and proceeding under a disparate treatment theory may offer either direct evidence of intentional discrimination or may proceed under the burden-shifting analysis established by the Supreme Court in McDonnell-Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Randle v. LaSalle Telecomms., Inc., 876 F.2d 563,
569 (7th Cir. 1989). - 10-

Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 12 of 35
merely sporadic or isolated occurrences." Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43, 46 (D.D.C. 2002) (quoting Int'l Bhd ofTeamsters, 431 U.S. at 336). To do so, Plaintiffs may either offer direct evidence of intentional discrimination, or may offer evidence of a combination of circumstances from which a court or jury may infer discriminatory intent. See Randle v. LaSalle Telecomms., Inc., 876 F.2d 563,569 (7th Cir. 1989). On the other hand, under a disparate impact theory ofliability Plaintiffs need not prove that Defendant intentionally discriminated; rather, Plaintiffs need only show that Defendant's facially neutral actions adversely affected a group protected by Title VII. See Int'l Bhd ofTeamsters, 431 U.S. at 335 n.15. Because racial discrimination in violation of Title VII is by its nature class discrimination, Title VII claims are particularly suited to proceed as a class action. Falcon, 457 U.S. at 157. Nevertheless, the Supreme Court has repeatedly insisted that despite this obvious affinity, courts must rigorously enforce the prerequisites of Rule 23(a) before allowing a plaintiffs claim to proceed as a class action. Id. Thus, the determination of whether the action should proceed as a class requires this Court to answer "the substantive question whether, under either of the available theories, there exists the requisite 'pattern or practice' sufficiently and comparably affecting an identifiable class of protected employees." See Stastny, 628 F.2d at 274.
The representative plaintiffs allege that Elgin engaged in a pattern or practice of intentional discrimination against African American applicants, and therefore claim that Elgin violated Title VII under a disparate treatment theory ofliability. Elgin urges this Court to decertify the class because the plaintiffs do not satisfy Rule 23(a)'s numerosity requirement for the class as a whole, and fail to establish a pattern or practice of discrimination and therefore cannot satisfy Rule 23(a)'s commonality, typicality, or adequacy of representation requirements.
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Alternatively, Elgin argues that this Court should limit the class to those applicants who auditioned, in which case the modified class cannot satisfy the numerosity requirement.
C. Prerequisites to Class Certification Under Rule 23(a) Because Plaintiffs, in "seeking to maintain a class action under Title VII must meet 'the prerequisites of numerosity, commonality, typicality, and adequacy of representation' specified in Rule 23(a)," this Court will discuss each element in tum. See Falcon, 457 U.S. at 156 (quoting
Gen. Tel. Co. ofthe Northwestv. E.E. 0. c., 446 U.S. 318, 330 (1980».
1. Numerosity Rule 23(a)(1) requires that the class be so numerous to render joinder of all class members impracticable. "Impracticability does not mean impossibility, but instead requires plaintiffs to prove that it would be inconvenient and difficult to join all proposed members of the class." Bethards v. Bard Access Sys., Inc., No. 94 C 1522, 1995 WL 75356, at *3 (N.D. Ill. Feb. 22, 1995). Although plaintiffs may not rely on conclusory allegations or on speculation regarding class size, they need not reach a threshold number of claims. Allen v. City ofChicago, 828 F. Supp. 543, 550 (N.D. Ill. 1993) (citations omitted). See also, e.g. Gaspar v. Livantec Corp., 167 F.R.D. 51, 56 (N.D. Ill. 1996) (noting that a small class does not preclude certification because offailure to satisfy numerosity, and citing cases with similarly small classes). Indeed, courts need not consider solely the number of potential class members when evaluating whether a plaintiff satisfies the numerosity requirement. Gaspar, 167 F.RD. at 56. To determine whether joinder is impracticable courts must consider the circumstances
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 14 of 35
unique to each case. Patrykus, 121 F.R.D. at 361 (citing Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969». Such circumstances include whether class members are able to bring individual suits; whether it is judicially efficient for the court to try such individual suits; and the geographical dispersion of class members. Gaspar, 167 F.R.D. at 56. For example, if class members are dispersed across a vast geographic area, joinder is less practicable. See e.g. Betts v. Sundstrand Corp., No. 97 C 50188, 1999 WL 436579, at·5 (N.D. Ill. June 21,1999) (explaining that the "lack of geographic dispersion" of class members "weighs against" class certification because joinder impracticability decreases where all class members can be found within the same judicial district). Additionally, while injunctive and declaratory relief contribute to satisfying numerosity, requests for monetary relief detract from a fmding that plaintiffs satisfy numerosity. Id. See also Stambaugh v. Kan. Dep't oICorr., 151 F.R.D. 664, 673 (D. Kan. 1993) (noting that courts consider "the inconvenience or inefficiency in trying individual suits, the ability of class members to bring their own suits, the size ofthe individual claims, a request for injunctive or declaratory relief, the nature of the relief sought, and the location and distribution of class members" in evaluating numerosity).
Ellis contends that the plaintiffs satisfy the numerosity requirement because the class presently contains sixty members and will increase while the class period remains open. However, Elgin claims that seven putative class members must be excluded from the class because they do not meet the class definition's requirements. Six members had no prior dealing experience, and one of those six does not appear to be African American. A seventh putative class member failed the casino's and the 1GB's mandatory drug screening. Additionally, Ellis claims that joinder is impracticable because twenty-three class members live outside Illinois,
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while Elgin counters that joinder is in fact practicable because with few exceptions, the class

members reside in the Chicago metropolitan area.

This Court fmds that joinder is impracticable. The plaintiffs seek injunctive and

declaratory relief, as well as back pay and therefore the relief sought neither favors nor disfavors

a finding that the plaintiffs satisfy numerosity. However, even assuming that seven class

members should be excluded for failure to meet the class requirements, thereby limiting the class

to

fifty-three

members

who

are

not

geographically

dispersed

l2 ,

joining

such

a

large

number

of

cases would unduly burden the court and defeat Rule 23's underlying purpose of promoting

judicial efficiency and economy. Moreover, courts have held that smaller classes satisfy Rule

23(a)'s numerosity requirement. See e.g. Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill.

1986) (compiling cases noting that classes of 10-40 members satisfy numerosity); In re Bank One

Sec. Litig., No. 00 CV 0767, 2002 WL 989454, at· 3 (N.D. Ill. May 14,2002) (noting that

"[c]ourts in this district have granted class certification to groups smaller than 30"). Therefore,

because joinder is impracticable, the Court finds that the plaintiffs satisfy Rule 23(a)'s

numerosity requirement. 13

12 Three of the sixty identified class members live a great distance from the Chicago metropolitan area (Shreveport, Louisiana; New Albany, Indiana; and Las Vegas, Nevada) and only two class members live more than one hundred miles from Chicago (Rock Island, Illinois and Saukville, Wisconsin). The remaining class members reside less than forty-five miles from Chicago. According to Elgin's list of class members, one class member's address is unidentified. (App. ofExs. in Supp. ofDefs.' Mot. to Decertify the Class, Ex. N.)
13 Elgin's alternative argument, that changing the class definition would defeat numerosity, does not need to be addressed, because as discussed below, Ellis fails to meet the other requirements ofRule 23(a).
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2. Commonality Turning to the next prerequisite for maintaining the class certification, Rule 23(a)(2) requires questions oflaw or fact common to the class. Factual variations among class members' grievances will not defeat commonality. Keele, 149 F.3d at 594. Therefore, the parties need not share a complete identity offactual or legal issues. Riordan, 113 F.R.D. at 63. Generally, "[a] common nucleus of operative fact is ... enough to satisfY the commonality requirement of Rule 23(a)(2)." Keele, 149 F.3d at 594 (quoting Rosario, 963 F.2d at 1018). A common nucleus of operative fact is usually found where "the defendants have engaged in standardized conduct towards members of the proposed class ...." ld Thus, racial discrimination in an employment context, arising out of the employer's standard operating procedure, is well-suited to class adjudication. Falcon, 457 U.S. at 157. However, the Supreme Court in Falcon explained that a party attempting to maintain a pattern or practice discrimination class action must demonstrate more than shared membership in a protected class, but must offer sufficient evidence to bridge the gap between his or her own individual claim and those ofthe class members who suffered the same injury. ld. Elgin urges this Court to decertifY the class because the plaintiffs have not established that Grand Victoria engaged in a pattern or practice of discriminatory hiring sufficient to satisfY Rule 23(a)'s commonality requirement. Elgin raises a two-pronged argument. First, it argues that Grand Victoria's decentralized hiring procedure necessitates an individualized inquiry into each decisionmaker's role in the decision not to hire each class member, thereby preventing the existence of an issue of fact common to each class member. Second, Elgin argues that each class
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member possessed different qualifications (or a lack thereof), requiring a similar individualized inquiry for each class member and similarly precluding a common issue of fact for the class.
In response, Plaintiffs assert that the issue oflaw common to the class is the alleged pattern or practice of discrimination. Plaintiffs further assert that because this is a motion to decertify the class rather than a trial on the merits, they need not detail all of their evidence supporting their allegation that Elgin engaged in a pattern or practice of discriminatory hiring. Finally, Plaintiffs rely on Judge Gottschall's order certifying the class, which held that Plaintiffs' allegation that Elgin engaged in a pattern or practice of discrimination, if proven, satisfies the commonality requirement as a question oflaw or fact common to the entire class. However, because the parties must strictly adhere to Rule 23's requirements at all times, Plaintiffs bear the continued burden of producing a record to answer questions about whether the evidence justifies maintaining the class action. See Stastny, 628 F.2d at 277.
In a Title VII action, the commonality element is the "most critical" and one in which "the class action and merit inquiries essentially coincide." Stastny, 628 F.2d at 274. As the Supreme Court explained:
Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a [position] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims. For [plaintiffs] to bridge that gap, [they] must prove much more than the validity of [their] own claim[s].
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Falcon, 457 U.S. at 157-58. To bridge the gap between Plaintiffs' individual claims and the claim that Elgin engaged in a pattern or practice of discrimination adversely affecting all class members, Plaintiffs must provide sufficient proof to "justif[y] a rebuttable inference" that Elgin's "'standard operating procedure'" proceeded from an intention to discriminate against the plaintiffs and class members based on their race. See Stastny, 628 F.2d at 273 (quoting Int'l Bhd. of Teamsters, 431 U.S. at 336).
Thus, the inquiry into whether the plaintiffs meet the commonality requirement (and to some extent the typicality and adequacy of representation requirements)14 necessarily overlaps with the merits of the plaintiffs' claim that Elgin engaged in a pattern or practice of discrimination. The Seventh Circuit endorses such a limited inquiry into the merits and has explained that in determining whether a to certify a class, a court must "receive evidence" and resolve factual and legal disputes relative to whether the plaintiff meets Rule 23's requirements. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). After Falcon, a plaintiff must make "a specific showing of underlying facts which might raise an inference of a common question of pattern and practice through allegations of specific incidents of discrimination, supporting affidavits," or statistical evidence. Alba Conte & Herbert B. Newberg, Newberg on Class Actions §24:2l (4th Ed. 2002). Therefore, Plaintiffs must support their allegations ofa pattern or practice of discrimination "with affidavits or other evidence, particularly statistics, [to]
14 The Falcon court explained that the commonality and typicality elements tend to merge because both guide the court's determination of whether it is economical to maintain the class action and whether there exists a sufficient nexus between the plaintiff's claim and those ofthe class members such that the plaintiff will protect the class members' interests. The Court further explained that the requirements similarly merge with the adequacy ofrepresentation requirement. Falcon, 457 U.S. at 158 n.l3.
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 19 of 35
raise an inference of across-the-board discrimination." See Ploog v. Homeside Lending, Im:.,
2001 WL 987889, at *7 (N.D. Ill. 2001)(citing Falcon, 457 U.S. at 159 n.15). See also Abram v.
United Parcel Servo ofAm., Inc., 200 F.R.D. 424,428-33 (B.D. Wis. 2001); Zapata v. IBP, Inc.,
167 F.R.D. 147, 158-59 (D. Kan. 1996); De La Fuente v. Chi. Tribune Co., No. 84 C 4596,1985
WL 2103, at *2-8 (N.D. Ill. July 24, 1985).
a. Decentralized Hiring Thus it is appropriate for this Court to analyze the evidence the parties provide with respect to the alleged discriminatory hiring pattern or practice. Commonality is relatively easily satisfied when a single individual or a small, centralized group makes decisions. Abram, 200 F.R.D. at 432 (citing Rossini V. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986)). For example, the Second Circuit in Rossini explained that plaintiffs in a sex discrimination class action sufficiently alleged that the defendant discriminated against them when a small, central group of decisionmakers assigned the plaintiffs "to departments or tasks within departments dealing with what was viewed by the assigning officials as 'women's work.'" 798 F.2d at 599. The court held that the plaintiffs satisfied Rule 23(a)'s commonality requirement because "[c]ommon issues oflaw and fact would necessarily be involved in proving the existence and functioning of that system." Id. On the other hand, a decentralized hiring procedure, which allows decisionmakers to
consider subjective factors, supports individual claims of discrimination but cuts against the
assertion that an employer engages in a pattern or practice of discriminatory hiring as a standard operating procedure. Stastny, 628 F.2d at 279. Therefore, "the question is whether the decision
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 20 of 35
making processes within [Grand Victoria] permit a common pattern or practice of discrimination to occur therein." See Rosenberg v. Univ. o/Cincinnati, 654 F. Supp. 774, 778 (S.D. Ohio 1986). In order to permit such a pattern or practice, the decisionrnaking must be sufficiently centralized and the decisions themselves must be sufficiently objective to form part of the company's
standard operating procedure. For example, in Rosenberg the court held that a university's
decisionrnaking process was too decentralized for discriminatory decisions to be part of a pattern or practice of discrimination because each department established its own policies, and thus the plaintiffs alleging that the university engaged in discriminatory employment practices could not establish commonality and maintain their class action. ld at 780. In Rosenberg, the plaintiffs presented affidavits detailing their individual experiences and allegations of discrimination, along with a statistical analysis, university regulations, affirmative action policy statements, and letters and memos relevant to one plaintiff's claim. ld at 779-80. The court held that, even accepting all of the plaintiffs' allegations as true, "nothing in [the] evidence tend[ed] to show that [the] violations [arose] out ofa common pattern or practice based upon centralized decision-making ...." ld. at 780.
Similarly, in Stastny, the court held that the plaintiffs offered insufficient evidence to justify an inference that the employer engaged in a pattern or practice of decisionrnaking sufficient to establish the existence of a common question of law or fact. Stastny, 628 F.2d at 280. The plaintiffs alleged that the defendant employer discriminated on the basis of sex. ld. at 270. The case proceeded to trial, during which the named plaintiffs offered their own testimony as well as testimony by a former general manager from the defendant's North Carolina facility, regarding the company's employment practices. ld. In addition, the plaintiff offered statistical
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 21 of 35
evidence and the opinion of a statistical expert, suggesting that a disproportionately low number of female employees occupied management positions. Id. The defendant appealed the district court's finding that the defendant engaged in a pattern or practice of discrimination, arguing that the plaintiffs failed to satisfy the requirements of Rule 23(a) and (b). Id. at 272. The Fourth Circuit reversed, holding that the plaintiffs failed to meet those requirements. Id. at 272-73. The court explained that the plaintiffs could have offered sufficient evidence of a pattern or practice of discrimination common to a multi-facility employer in one of three ways: first, they could have offered "evidence of a sufficient number of instances of similar discriminatory treatment experienced by individuals throughout a multi-facility enterprise." Id. at 278. Second, the plaintiffs could have offered statistical data to justify the inference. Id. Third, the plaintiffs could have offered direct evidence or an admission by the defendant that it intentionally engaged in a system-wide practice of discrimination. Id. The court held that the plaintiffs' evidence, which indicated "almost complete local autonomy in the local facilities," failed to overcome the presumption against commonality by any of these methods. Id
Ellis similarly fails to establish commonality. Before turning to the plaintiffs' evidence, however, it is helpful to outline the evidence Elgin provides in support of its motion to decertify the class. Elgin submitted numerous affidavits and excerpts from depositions, including the affidavits of Human Resources Manager Sharon McGill, Casino Manager Michael Graninger, and Shift Manager Julian Thompson. These affidavits support Elgin's assertions that hiring decisions are made through three levels and by various individuals at each level: first, Human Resources, then Graninger, then Thompson or another shift manager responsible for auditioning applicants.At the Human Resources level, three managers have been responsible for initial
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 22 of 35
applicant screening during the class period. Human Resources uses some standardized procedures, such as reviewing each application for overall completeness and job history, including previous employment with Grand Victoria. In addition, each Human Resources manager focused on particular factors which she deemed important: Lennor Penson focused on verifying prior employment and eligibility for rehire, while Zaara Norten focuses onjob stability. Although McGill oversees the hiring of all new employees, she gives assistant managers full authority to make screening decisions.
Following initial screening, Casino Manager Michael Graninger and Pit Manager Julian Thompson similarly consider both objective and subjective factors while screening applications. Graninger's affidavit explains that he generally reviews applications for such objective considerations as which applicants have two to three years of experience, which applicants have a stable job history, and which applicants have previously worked for Grand Victoria and the reasons they left. the casino's employ. According to Thompson, he and Graninger frequently reviewed the applications together, and if the applicant noted that a friend or relative worked at the casino, they oft.en spoke with the friend or relative to verify subjective considerations including the applicant's skill, work ethic and trustworthiness.
Following this second level of screening, Graninger instructed shift. managers or pit managers to invite a group of applicants to audition. At least seven individuals conducted auditions over the course of the class period, objectively testing the applicants' knowledge of the game, procedures, and payoffs for which they auditioned, as well as the applicant's neatness and accuracy in shuftling. However, auditioners also considered inherently subjective factors: the applicant's awareness of all players and occurrences at the gaming table and, particularly, the
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 23 of 35
applicant's ability to interact well with others. Each auditioner's assessment of an applicant necessarily varied with these subjective considerations.
Ellis does not contradict Elgin's assertion that it uses decentralized hiring procedures, and considers objective and subjective factors. Instead, the named plaintiffs assert that their allegation that Elgin engaged in a pattern or practice of discrimination is sufficient to establish commonality. Ellis' main argument is that Elgin knew applicants' race and that many of its hiring procedures constituted a standardized policy of discrimination: I) Human Resources used a Pre-Employment Screening Tool for those applicants who chose to apply in person; 2) Graninger and other decisionmakers inquired about applicants' skill; 3) Elgin provided an incentive program for employees to refer friends and relatives for dealer positions and offered a training program for current employees; 4) Elgin hired dealers from Hollywood Casino; and 5) Graninger restricts the applicant pool by changing the advertised hiring criteria based on his needs. However. these procedures are facially neutral and Ellis provides no anecdotal evidence to support an inference that the practices are part of a standardized pattern or practice of discriminatory hiring. Ellis also alleges that Elgin prefers Asian dealers because, after Mr. Thompson auditioned two Vietnamese women in Davenport, Iowa, Elgin advertised for dealers in the Iowa newspapers. Consequently, Elgin hired many Asians. However, the alleged "Asian preference" does not, standing alone or in cOlUlection with the aforementioned procedures, form the basis of a pattern or practice of discrimination.
Similarly, Ellis provides no significant statistical evidence that would justify an inference that a pattern or practice exists to unite plaintiffs' claims with those of the class. See Stastny, 628 F.2d at 278 (noting that where putative class members were widely dispersed and worked in
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 24 of 35
different facilities, statistical evidence of "comparable disparities in treatment" by the different facilities would have helped to justify an inference that it reflected a system-wide policy or practice, thereby establishing commonality); Bishop v. N. Y. City Dept. ofHous. Pres. & Dev., 141 F.R.D. 229, 237 (S.D.N.Y. 1992) (finding that plaintiffs statistics supported their commonality claim). First, Ellis offers no statistical evidence to justify an inference that Elgin's advertisement in Davenport, Iowa newspapers was part of a pattern or practice of discriminatory hiring. For example, among other statistically important information, Ellis fails to mention the racial composition of Davenport, fails to mention whether any African American dealers from Davenport applied and were granted or denied an audition or a dealer position, and fails to mention how many Asians from Davenport (or Chicago) applied and were granted or denied an audition or dealer position.
Second, Ellis offers a portion of McGill's deposition to establish that between 2000 and 2002, forty-five individuals where hired through the Bring-a-Friend program, and that a number of the referrals and hires were of the same race (e.g. Asian-Asian, Caucasian-Caucasian). However, while this might establish that persons of one race tended to refer individuals of the same race (a doubtful conclusion at best), it fails to establish that the mere existence of a referral program is part of a pattern or practice of discrimination. The Bring-A-Friend program was open to all Grand Victoria employees, and the fact that employees of one race took advantage of the program, and perhaps tended to refer persons of the same race more than others, cannot be attributed to any intent to discriminate on the part of Elgin.
Third, Ellis' reliance on statistics to establish that the In-House Dealer Training Program is a part of the pattern or practice of discrimination is similarly flawed. Ellis argues, without
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 25 of 35
citing any portion ofthe record, that employees can only gain admission to the program upon referral by their managers. IS Accepting Ellis' allegation as true, a requirement that individual managers refer employees is evidence of decentralized decisionmaking within Grand Victoria rather than of a pattern or practice of discrimination. Ellis further argues that between 1998 and 2002, of eighty-four employees transferred to dealer positions, only four were African American. However, Ellis fails to provide any information defining how many African American employees sought admission but were refused a referral, or how many successful African American candidates completed the program but were not hired as dealers. Standing alone, those numbers are not statistically useful and do not justify an inference that the training program constitutes part of a pattern or practice of discrimination.
Finally, Ellis offered no direct evidence or admission by Elgin that it engaged in a pattern or practice of discriminatory decisionmaking. Thus, the evidence that Ellis provided neither contradicts the strong suggestion that Elgin's decisionmaking methods are highly decentralized and subjective, nor justifies an inference that Elgin engaged in a pattern or practice of discriminatory hiring despite its lack of a centralized hiring system. Decisions on each applicant were therefore made as a result of a decentralized decision making procedure considering both objective and subjective factors, and while each Plaintiff might have an individual claim of discrimination, the plaintiffs have not established a pattern or practice of discrimination common to the class sufficient to satisfy Rule 23(a)'s commonality requirement.
" Elgin disputes this allegation, claiming that employees can sign up for the training program as long as a) the employee has been employed at Grand Victoria for three months and b) does not have too many disciplinary infractions. (Gilmore Dep. at 18,23-25.) Employees admitted to the program learn "21," and if hired for "21," may train on all other games. (Gilmore Dep. at 24.)
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b. Individualized Proof Another factor this Court considers in determining whether Plaintiffs satisfy commonality is the diversity or uniformity of the class. Abram, 200 FRO. at 432. Discrimination based solely on membership in a protected class, "which manifests itself in a different set of facts for each employee is not enough to satisfy the commonality requirement." ld. (quoting Harris v. City ofChicago, No. 96 CV 3406,1998 WL 59873, at *5 (N.D. Ill. Feb. 9,1998». Similarly, a lack of uniformity in conditions throughout the class period detracts from finding that the plaintiffs satisfy the commonality requirement. ld. at 430-32. Judge Gottschall rejected Elgin's reliance on Patterson v. General Motors Corp., 631 F.2d 476 (7th Cir. 1980), for the proposition that the individualized nature of the proof of each class member's claim defeated commonality, holding instead that the alleged pattern or practice united the named plaintiffs' claims with those of the class members. However, as explained above, the evidence reveals a decentralized and subjective hiring practice, which precludes a finding that Elgin engaged in a pattern or practice of discrimination. Although the fact that Elgin used a decentralized hiring system is not new to this litigation, Plaintiffs bear the burden of establishing that, despite the decentralized hiring system, Elgin engaged in a pattern or practice of discrimination. Plaintiffs fail to do so, and absent such a showing, the evidence does not yield any additional uniting question oflaw or fact to satisfy the commonality requirement. Plaintiffs offer no alternative common question, nor do the affidavits or depositions yield an alternative. To the contrary, the evidence establishes that the applicants had varying levels ofexperience with various games, and that the applicants applied at different times over the course of the class period, during which the casino's hiring needs fluctuated greatly. For example, the casino needed
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 27 of 35
many more dealers in June and August 1999 when it instituted dockside gambling and changed its shift schedules, while in January 2001 and in August 2002 the casino laid off a number of dealers.
Elgin also contends that because the plaintiffs seek back pay damages, requiring the court to inquire into each "person's employment history, subsequent earnings and efforts to mitigate" precludes a fmding of commonality. (Defs.' Mem. at 17.) However, despite the individualized nature of such an inquiry, damage awards commonly vary among class members. See, e.g. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 233 (7th Cir. 1983). Courts commonly bifurcate "employment discrimination trials into liability and damages proceedings." Newberg, supra at §24:24.
The plaintiffs rely on Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003), to argue that an individualized inquiry into the applicants' qualifications and the different conditions throughout the class period will not defeat commonality in a pattern or practice discrimination case. However, in Mejdrech the court addressed a mass tort case rather than a Title VIl case, and held that the common questions of whether the defendant leaked TCE, and if so, whether that TCE had reached the soil and ground water under the class members' homes united the claims of the named plaintiffs and class members. Id at 911. The individual inquiries required to resolve the defendant's liability to each class member were minor, with the only variables being the location of each plaintiffs home and water source. Id. at 911-12. Conversely, in the case at bar the court must consider numerous variables to resolve each class member's claim thus defeating the essential purpose and benefits of proceeding as a class.
Moreover, although Plaintiffs correctly state that a pattern or practice discrimination case
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inherently involves class discrimination, their argument fails to acknowledge the Supreme Court's admonishment that even Title VII claimants must satisfy each element ofRule 23(a) before proceeding or continuing as a class action. See Falcon, 457 U.S. at 156-57. Therefore, because Elgin's hiring procedures are decentralized and allow decisionmakers to proceed autonomously, and to consider both objective and subjective factors in screening and auditioning applicants, the plaintiffs have not established that Elgin engaged in a pattern or practice of discrimination sufficient to bridge the gap between their claims and those of the class. Further, the plaintiffs fail to offer any additional evidence to suggest an alternative common question of law or fact and therefore cannot satisfy the commonality requirement ofRule 23(a). Absent any central, objective decisionmaking, and absent any anecdotal or statistical evidence to justify an inference that despite facially neutral procedures Elgin engaged in a standardized, discriminatory course of conduct, the plaintiffs have not demonstrated that a common question of law or fact exists to unite their claims with those of the entire class.
3. Typicality Likewise, Plaintiffs have failed to establish that the claims of the class representatives are
typical of the claims or defenses of the class. See Fed. R. Civ. P. 23(a)(3). The inquiry into
whether Ellis' "claims are typical of those of the class members [they represent] is closely related to the commonality inquiry." See Keele, 149 F.3d at 595 (citing Rosario, 963 F.2d at 1018). As the Stambaugh court explained:
For their claims to be typical, the plaintiffs [in a pattern and practice discrimination class action] must show an aggrieved class to exist. For their claims to be typical, the plaintiffs must show the
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 29 of 35
same unlawful conduct was directed at or affected the class. For their claims to be typical, the plaintiffs must present some evidence from which to infer that the selection process ... is uniformly administered . . . . Stambaugh, lSI F.R.D. at 677. Thus, "[a] 'plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.'" Keele, 149 F.3d at 595 (quoting De La Fuente v. Stokely-Van Camp, 713 F.2d at 232). Although factual variations in claims will not destroy typicality, even those claims "based on the same legal theory. must all contain a common 'core of allegation.'" Allen, 828 F. Supp. at 553 (quoting Riordan, 113 F.R.D. at 63). In other words, the named representatives' claims must "have the same essential characteristics as the claims of the class at large." Retired Chi. Police Ass'n 1,7 F.3d at 597. This Court determines whether typicality is satisfied "with reference to [Elgin]'s actions, not with respect to particularized defenses it might have against certain class members." See Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996) (citing Rosario, 963 F.2d at 1018). However, a unique defense will destroy typicality if it will "consume the merits of the case." Gaspar, 167 F.R.D. at 57 (citing Riordan, 113 F.R.D. at 62). Those unique defenses consuming the merits destroy typicality because they eliminate a primary purpose of a class action: to allow the named plaintiffs to "establish the bulk of the elements of each class member's claims when they prove their own." Retired Police Ass'n v. City ofChicago, 141 F.R.D. 477, 485 (N.D. Ill. 1992) (citing Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla. 1990», affd in pertinent part, rev'd in part, Retired Police Ass'n 1,7 F.3d at 597-98. Ellis contends that Judge Gottschall "unconditionally and unequivocally concluded" that
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 30 of 35
the named plaintiffs satisfied Rule 23(a)'s typicality requirement. However, as explained previously, every aspect of a court's certification order is necessarily conditional because of the court's obligation to modify or decertify the class if the course of litigation reveals that certification is no longer proper. Falcon, 457 U.S. at 160; Binion, 163 F.R.D. at 520.
Elgin argues plaintiffs' claims are atypical of the class members' claims, because 1) two
named plaintiffs were auditioned and two were not; 2) each applicant had unique qualifications;
and 3) two named plaintiffs are subject to unique defenses not applicable to other class members. Elgin also argues that when class representatives Ellis and Denson filed an additional lawsuit against Elginl6, alleging that Elgin retaliated against them for the instant action by prohibiting their entry to the Grand Victoria Casino during the pendency of this litigation and for 120 days following its conclusion, they further eroded typicality between their claims and those ofthe class members. (Defs.' Supp'l Submission in Support of Mot. to Decertify.)
Although Ellis relies on a single legal theory (the alleged pattern and practice of discriminatory hiring), as explained above in the discussion of Rule 23's commonality requirement, Ellis has failed to establish a standard operating procedure rising to the level of a pattern or practice of discriminatory hiring, and likewise fails to establish a common core of allegation to satisfy the typicality requirement. Plaintiffs offer no additional evidence, either anecdotal or statistical, to establish that their claims are typical of those of the class. Nor do Plaintiffs dispute that, beyond the alleged pattern and practice of discrimination, the circumstances of each applicant are unique and require consideration ofnumerous individualized
16 Denson & Ellis v. Elgin Riverboat Resort, Nevada Landing Partnership & REG. L.P., Case No. 03 C 3402, filed on May 21,2003, in the Northern District of Illinois.
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 31 of 35
factors. For example, individual class members would have to establish their qualifications for a dealer position, the circumstances of their application and, where appropriate, their audition. Such proof would require an inquiry into how far the class member's application proceeded, as well as which employees reviewed the application. For those applicants who auditioned, a further individualized inquiry would entail consideration of which shift manager or pit manager conducted the audition. Finally, proof of auditioning class members' claims would require consideration ofthe manager's objective assessment ofthe applicant's neatness and accuracy, and knowledge of the game, procedures and payoffs, as well as his or her subjective assessment of the applicant's awareness of players at the gaming table and ability to interact with customers. Absent a common core of allegation, such individualized inquiries defeat the purpose of a class action.
Finally, Ellis does not dispute the defenses unique to Ellis and English: Ellis was previously employed by the casino and did not receive an invitation to audition, while English sought part-time employment and was a frequent customer at Grand Victoria. Such unique defenses render their claims atypical of those of the rest of the class. Cf J.H Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d 994, 998-99 (7th Cir. 1980) (noting that an "arguable defense peculiar to the named plaintiff ... may destroy the required typicality of the class"); Bishop, 141 F.R.D. at 239 (fmding a named plaintiff atypical where the defendants would likely raise a defense unique to that plaintiff). Therefore, because proof of each class members' claim would require a fact-intensive, individualized inquiry into the circumstances surrounding the decision not to audition or to hire that applicant, and because Defendants will raise defenses unique to two named plaintiffs, this Court finds that the named Plaintiffs' claims are not typical of those of the
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 32 of 35
class. The Court agrees with Defendants that the named plaintiffs and class members have instead only identified "idiosyncratic circumstances of his or her own application and its rejection by Grand Victoria." (Defs.' Mem. at 12.)
4. Adequacy Q,fRepresentation Finally, Rule 23(a) requires Plaintiffs to demonstrate that they adequately represent the interests of the class as a whole. Fed. R. Civ. P. 23(a)(4). In order to satisfy this requirement, Ellis must establish both 1) the adequacy of named plaintiffs' counsel, and 2) the adequacy of the named plaintiffs' representation in '''protecting the different, separate, and distinct interest' of the class members." Retired Police Ass'n 1,7 F.3d at 598 (quoting Secoy ofLabor v. Fitzsimmons, 805F.2d 682, 697 (7th Cir. 1986». Thus, just as the inquiry into commonality and typicality are linked, so too are the inquiries into typicality and adequacy of representation, because "[t]ypicality insures the class representative's claims resemble the class's claims to an extent that an adequate representation can be expected." Stambaugh, 151 F.R.D. at 676 (citing 7A Charles A. Wright, Federal Practice & Procedure §1764 at 232-33 (2d ed. 1986». If the representative and the class members have "antagonistic or conflicting claims," the "class is not fairly and adequately represented." Id. (quoting Rosario, 963 F.2d at 1018); but see Orlowski v. Dominick's Finer Foods, Inc., 172 F.R.D. 370, 374 (N.D. Ill. 1997) (holding that, despite the defendant's argument that class members competed for a limited number of promotion opportunities, the named plaintiffs would adequately represent the class). Further, just as the presence of an arguably unique defense may destroy typicality, so too can "the presence of even an arguable defense against the named plaintiff that is not applicable to the proposed class ...
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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 33 of 35
can vitiate the adequacy of named plaintiff's representation." Hardin v. Harshbarger, 814 F. Supp. 703, 708 (N.D. Ill. 1993).
Plaintiffs again rely on the unconditional nature of Judge Gottschall's certification with respect to their adequacy ofrepresentation. However, as explained previously, every aspect ofa court's certification order is necessarily conditional because of the court's obligation to modifY or decertifY the class if the course oflitigation reveals that certification is no longer proper. Binion, 163 F.3d at 520. Given the five-year class period, class members very likely competed against each other for dealer positions at the casino, presenting antagonistic and conflicting claims within the class. Additionally, as previously explained, Elgin offers defenses unique to Ellis and English. These unique defenses will distract Ellis and English from adequately representing the interests of the class. lbis distraction, combined with Plaintiffs' and class members' unique qualifications and the casino's varied hiring needs at the time ofeach class member applied, make it unlikely that Plaintiffs will be able to adequately represent the class as a whole. Therefore this Court finds that Plaintiffs also fail to satisfY Rule 23(a)(4)'s requirement that Plaintiffs will adequately represent the class.
D. Certification Under Rule 23(b)(2) Elgin also contends that Judge Gottschall improperly certified the class under Rule 23(b)(2) because Plaintiffs and class members seek monetary damages, relying on the Seventh Circuit's holding that, where money damages are incidental, certification under Rule 23(b)(2) is improper. Lemon v. Int? Union o/Operating Eng'rs, Local No. 139,216 F.3d 577, 579 (7th Cir. 2000). However, in Lemon the court discussed the certification options presented when plaintiffs
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seek declaratory and injunctive relief as well as monetary damages, relying on its recent decision in Jefferson v. Ingersoll Int'l. Inc., 195 F.3d 894 (7th Cir. 1999). The Seventh Circuit held that a court may certifY such a case in one of three ways, including certifYing the class under Rule 23(b)(2) while "exercis[ing] its plenary authority under Rules 23(d)(2) and 23(d)(5) to provide all class members with personal notice and opportunity to opt out, as though the class was certified under Rule 23(b)(3)." Lemon, 216 F.3d at 582 (citing Jefferson, 195 F.3d at 898). However, because this Court finds that Plaintiffs fail to establish Rule 23(a)'s requirements to maintain a class action, we do not need to reach the issue of whether the requirements of Rule 23(b)(2) are met.
IV. Conclusion For the foregoing reasons, and because Plaintiffs have not demonstrated that a common question oflaw or fact exists, that their claims are typical of those of the class, or that they can adequately represent the class, this Court grants Defendants' motion to decertifY the class. Defendants' motion to amend the class definition to include only those applicants who auditioned is denied as moot.
ENTER ORDER:

Dated: August 21, 2003.

MARTIN C. ASHMAN United States Magistrate Judge

...............

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Case 1:98-cv-07093 Document 98 Filed 08/21/2003 Page 35 of 35

Copies have been mailed to:
CECILE SINGER, Esq. KENNETH N. FLAXMAN, Esq. 200 South Michigan Avenue Suite 1240 Chicago, IL 60604

JANE M. McFETRIDGE, Esq. JOEL W. RICE, Esq. Fisher & Phillips, L.L.P. 140 South Dearborn Street Suite 420 Chicago, IL 60603

Attorneys for Plaintiffs

Attorneys fur DefundanG

 
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Case 1:98-cv-07093

Minute O;rder Foarm (06/97)

Document 26

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Filed 03/27/2000 Page 1 of 11

United States District Court, Northern District of Illinois

Name of Assiggned Judge orr Magiissttrrate Judge

Joan B. Gottschall

Sitting Judge if Other than Assigned JJuuddgge

CASE NUMBER

98 C 7093

DATE

March 27,2000

CASE TITLE

LISA ELLIS, et aIl v. ELGIN RIVERBOAT RESORT, et al.

MOTION:
II~

[In the followimng box (a) imndilcate the party filimng t]hle motliOon, e.g., plaintiff, defendant, 3rd party plaintiftlf;, and (b) state briefly the nature of the motionbbeeiinng presented.}
~-~---J

DOCKET ENTRY:

(1I) 0o

Filed motion of [uusse listing in "Motion" box above.]

(2) 0o

Brief in support of motion due ~~_..

(3) 0o

Answer brief to motion due

. Reply to answer brief due

(4) o0

Ruling/Hearing on

set for

at

.

(5)

•

Status hearing set for April 18,,2000 at 9:30 a.m.

(6) D0

Pretrial conference[held/lcontinued to] [set for/re-·set for] on

(7) 0o

Trial[set for/re-set for] on

at _~_..

. set for

at

_.

(8) 0D

[Bench/Jury trial] [Hearing] held/lcontinued to _ _ at

.

(9)

0D

This case is dismissed [wilth/without] prejudice and without costs[by/agreement/pursuant toJ]
o FRCP4(m) 0D General Rule 21 D0 FRCP41(a)(It) 0 FRCPP441I (a)(2).

(10) •

[Other docket entry] Enter Order. The plaintiffs' motion for class certification [8-·1] is granted \wvith

modification for reasons stated in the attached order, and the court certifies the following class: All

African-Americans who were qualified for employment as "dealers" who applied for positions as

"dealers" at the Grand Victoria casino, but who were not hired from December 25, 1997 to the present.

Status is set for April 18, 2000, at 9:30 a.m..

• (1II1) •

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff. Notitied counsel by telephone.

Docketing to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.

courtroom deputy's initials

Date/time received in central Clerk's Office

date mmaaiilleed nnoollicic-ee maiilliinngg: deputy lifn1iittials

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Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 2 of 11

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LISA ELLIS, et al.

)

)

Plaintiffs, )

v.

)

)

ELGIN RIVERBOAT RESORT, et al.

)

)

Defendants. )

Case No. 98 C 7093

DOCKETED

Judge Joan B. Gottschall
MAR 29 zZOoOnOa

1I. Introduction

ORDER

Plaintiffs Lisa Ellis, Marcia English, Derrick Denson and Yvonne Mason ("plaintiffs")

have brought suit against Elgin Riverboat Resort d/b/a Grand Victoria Riverboat, Nevada

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Landing Partnership and RBG Ltd., ("defendants"), alleging violation of Title VII of the Civil

Rights Act. The plaintiffs are African-Americans who applied for positions as dealers at the

Grand Victoria Casino but were not offered positions. In the present motion the plaintiffs seek to

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have a class of individuals certified pursuant to Rule 23 of the Federal Rules of Civil Procedure.

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They seek to have certified the following proposed class:

All African-Americans who were qualified for employment as "dealers" at the Grand Victoria casino, but who were not hired from December 25, 1997 to the present.!

The defendants oppose cerltiification of the class, arguing that the plaintiffs have failed to

meet any of the requirements of Rule 23(a).

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II,

!lThe plaintiffs initially proposed a class consisting of "all Black African-Americans who applied and were rejected for employment as dealers by Grand Victoria Casino, or were deterred from applying for employment from December 25, 1997 to the present." The plaintiffs proposed

the narnr'ower class definition in their Reply Brief.

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Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 3 of 11

II. Discussion

Rule 23 of the Federal Rules of Civil Procedure provides a two-step analysis to determine

whether class certification is appropriate. First, the plaintiffs must meet the four requirements of

Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there

are questions ofllaaw or fact common to the class; (3) the claims or defenses or the representative

parties are typical of the claims or defenses ofthe class; and (4) the representative parties will

fairly and adequately protect the interests of the class. Failure to meet anyone of these elements

precludes certification of a class. Retired Chicago Police Ass 'n v. City oa/fCChhiiccago, 7 F.3d 584,

596 (7th Cir. 1993).

Second, the action must satisfY one of the conditions of Rule 23(b). The plaintiffs

contend that they have satisfied Rule 23(b)(2), which states that "the party opposing the class has

acted or refused to act on grounds generally applicable to the class, thereby making appropriate
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final injunctive relief or corresponding declaratory relief with respect to the class as a whole."

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The plaintiffs bear the burden of showing that class certification is proper. Trotter v.

Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984). If the party class certification meets each of the
I
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certification requirements, the court must certtiiffYy the proposed class. Jefferson v. Windy City

Maintenance, Inc., 1998 WL 474115, at *2 (N.D.IlIl. Aug. 4,11999988). The court has broad

discretion concerning whether a proposed class satisfies certification requirements, but should err

in favor of maintaining class actions. Id

In this case, plaintiffs' proposed class covers "[a]ll African-Americans who were

qualified for employment as 'dealers' at the Grand Victoria casino, but who were not hired from

December 25, 1199997 to the present." The proposed class includes both those who applied for

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Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 4 of 11
employment and were not hired, and those who were discouraged from applying. A. Numerosity
1. Scope of the Class Before reviewing the requirements of Rule 23, the court must as an initial matter review the scope of the proposed class. The plaintiffs contend that those qualified applicants who were deterred from applying for work with Grand Victoria should be included. The defendants argue that this proposed class is overbroad because it will be impossible to prove whether or not someone was deterred from applying at Grand Victoria due to an allegedly discriminatory hiring practice. An identifiable class exists if its members can be ascertained by reference to objective criteria, but not if membership is contingent on the prospective member's state of mind. Elliot v. ITT Corp., 150 F.R.D. 569, 574 (N.D.Ill. 1992). When class membership depends upon an individual's state of mind, courts have typically found the class to be too indefinite. Harris v. General Dev. Corp., 127 F.R.D. 655, 659 (N.D.Ill. 1989). "In attempting to cull the truly deterred applicants from such an expansive universe, a tremendous amount of valuable court time and resources would be consumed, placing a severe burden on the court and litigants." Id. The proposed class is too indefinite because class membership depends upon an individual's state of mind. See Harris, 127 F.R.D. at 659 ("The proposed class of persons who allegedly were discouraged from applying at GDC is too imprecise and speculative to be certified."). However, it is within the court's discretion to limit or redefine the scope of the class. Id. Because of the speculative nature of the proposed class, the court will exercise its discretion and limit the class to those African-Americans who were qualified for employment as 'dealers'
3

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Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 5 of 11

and applied for work as 'dealers' at the Grand Victoria casino, but were not hired from

December 25, 1997 to the present.

The plaintiffs argue that the theory that the class should be limited to minority dealers

who actually applied and were not hired has been "repeatedly rejected." In support of this

contention they cite Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (5th Cir. 1986), and

Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527 (1lI1tth Cir. 1992). However, neither

of these decisions addressed the issue of persons who were discouraged from applying for

positions in the context of class certification under Rule 23, and the plaintiffs cite no cases that

support their contention that those who were discouraged from applying for work at Grand

Victoria may be included to sattiissffYy numerosity requirements. Such a contention is inconsistent

with the law in this district. See, e.g., Elliot, 150 F.R.D. at 574; Harris, 127 F.R.D. at 659. See

also Rosario v. Cook County, 101 F.R.D. 659, 663 (N.D.IlI. 1983)(claims of representative

parties who applied for promotion and were denied not typical of claims of parties who were

discouraged from applying for promotion under Riulle 23(a)(3)).

2. Speculation

.

The defendants argue that the plaintiffs' proposed class size is merely speculative. In

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H

their motion, the plaintiffs argue that the defendants employed 409 dealers, 24 of whom were

L

.

African-American (5.87%). The plaintiffs contend that this percentage is far lower than at other

casinos in the Chicagoland area, where African-Americans comprise 40% of the dealer

workforce. Plaintiffs claim that but for the alleged discriminatory policy, it is likely that more

than one hundred African-American dealers would be presently employed by Grand Victoria.

The defendants counter that the plaintiffs offer no evidence supporting their numerosity

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Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 6 of 11

argruumnent, only the opinion of plaintiff Ellis.

"To satisfy this nurumnerosity requirement, it is not necessary to determine the precise

number of members in a proposed class; a reasonable estimate will suffice." Dhamer v. Bristol-

Myers Squibb Co., 183 F.RR.DD. 520,525 (N.DD..IIllIl. 1998) A putative class representative must

provide some evidence as to the size of the class. Narwickvv. Wf;Veexxlleer, 901 F.Supp. 1275, 1278

(N.D.IlIl. 1995) The plaintiffs cannot rely on conclusory allegations or speculation as to the size

of the class in order to prove numerosity. Id. A finding of sufficient numerosity can be based on
I'
ii;'
common sense assumptions or reasonable inferences. ~MMarrder v. Bank One Milwaukee, 1995 WL

758413 (N.D.Ill. Dec. 15,1995). The issue of whether the numerosity requirement is satisfied is

extremely fact-specific. Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D.Ill.

1995). In making this determination, the court is entitled to make common-sense assumptions.

Buycks-Roberson v. Citibank Federal Savings Bank, 162 F.R.D. 322,329 (N.D.Ill. 1995).

The numerosity requirement should not be mechanically employed to defeat class

h
I'

certification in employment discrimination cases, because this type of suit "is necessarily a class

action as the evil sought to be ended is discrimination on the basis of a class characteristic."

Bowe vv. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969). See HHaarris, 127 F.R.D. at

660. "We recognize that 'suits alleging racial or ethnic discrimination are often by their very

nature class suits, involving class-wide wrongs.'"'' Rosario, 101 F.R.D. at 660-61 (quoting East

Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395,405 (197777)»).

The plaintiffs' estimate of class size of one hltImDddrred does not satisfy the requirements of

Rule 23(aa))((1l). The plaintiffs base their estimate of class size on statements by plaintiff Ellis.

She stated in her deposition that she based this number on hearsay, and that she did nothing to

5

Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 7 of 11

determmline whether her estimate was accurate. This is insufficient for establishing numerosity. A

plaintiff need not plead an exact number of persons included in the proposed class, but

conclusory allegations that joinder is impracticable and speculation as to class size are not

sufficient. Shields v. Local 705, Int'!l Bhd. ofTeamsters, 1996 WL 616548 (N.D.IlLl. Oct. 23,

1996).

The plaintiffs do not dispute the lack of basis for Ellis' estimate. Instead, they counter in

their Reply Brief with EEO reports from four of the seven casinos in the local area that show that

303 African-Americans work at these casinos. They argue that all of them would be interested in

working at Grand Victoria because it pays a substantially higher wage. The defendants counter
jJ
that this new estimate is unreasonable because it malk,es no effort to allege how many applied, or

even considered applying, for employment with Grand Victoria. They further argue that the

proposed class fails to consider whether any of the 303 are qualified to work at Grand Victoria.

The plaintiffs' estimate based on the total number of dealers at other casinos also does

i:

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not satissffYy the numerosity requirement. The plaintiffs merely rely on a conclusory allegation that

because Grand Victoria pays dealers substantially more than other casinos, every African-

II·;

American dealer at the other casinos in the area would want to work there. The plaintiffs have

made no attempt to malkce a reasonable estimate as to how many, if any, of these dealers actually

applied for work at Grand Victoria. The plaintiffs' conclusory allegation here is wholly

t,

inadequate for establishing numerosity.

"When in doubt about numerosity, courts often certiiffYy the class, with the option under

Fed.R.Civ.P. Rule 23(c)(l) of decertifYing ifiit later appears that joinder was practicable."

I

Pennington v. Ward, 1986 WL 8038, at **11 (N.D.Ill. July 14,,11998866). In the present case, the

6

Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 8 of 11

plaintiffs may be able to demonstrate numerosity. According the McGill affidavit, approximately

25% of its employees are dealers (409 of a workforce of over 1600). See McGill Aff. at ~ 4.

Grand Victoria received in excess of2,100 applications for employment in 1998. Grand Victoria

had exceeded that number of applications during the first eight months of 1999. McGill Aff. at ~

5. It is therefore reasonable to assume that 25% of these 4,200+ applications, or at least 1,050,

were for dealer positions. Presumably a number of these were from African-Americans qualified

as dealers who were not offered employment. Although it is unclear whether the number is great

enough to make joinder impracticable, the court finds that the plaintiffs have conditionally

established numerosity. The court has the option under Fed.R.Civ.P. Rule 23(c))((1l) of

decertifying the class later, if a review of Grand Victoria's computer employment records

I!

demonstrates that joinder is practicabbllee..2'

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B. Commonality

The plaintiffs next claim that the proposed class meets the commonality requirement of

Rule 23(a)(2). The defendants argue that the plaintiffs have failed to allege a question oflaw or
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fact that is common to the claims of the named class members and the members of the putative
i!
class.

"Where a question oflaw refers to a standardized conduct of the defendants toward

members of the proposed class, a common nucleus of operative facts is typically presented, and

the commonality requirement of Rule 23(a)(2) is usually met." Franklin v. City ofChicago, 102

2'GGrraand Victoria has computer records of all people who applied for work at Grand

,.

Victoria. Although the records do not include the races of the applicants, they include addresses,

I

phone numbers, positions applied for, and whether the applicants were ultimately hired. The

number of African-American applicants qualified as dealers who applied for work as dealers and

j

were not offered positions is thus ascertainable. See McGill Aff., ~~ 7.

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Case 1:98-cv-07093 Document 26

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Filed 03/27/2000 Page 9 of 11

F.R.D. 944,949 (N..DD.JIlIl. 1984). All questions ofIlaw or fact need not be common among the class members; a single issue common to all class members will suffice for the commonality requirement. Harris, 127 F.RR.D. at 661.
Here, the plaintiffs have met the commonality requirement. The plaintiffs allege racial discrimination in hiring, and "[dJ]efendants' allegedly discriminatory conduct affected all members of the class in a similar fashion. As a consequence, most if not all of the elements of the resulting cause of action will be common to the class." Harris, 127 F.R.D. at 661. The plaintiffs' allegations satisfy the requirements of Rule 23(a)(2).
The defendants cite Patterson v. General MJvloottoors Corp., 631 F.2d 476 (7th Cir. 1980), for the proposition that a class action is not appropriate in all instances in which discrimination in employment was racial, and that the claims of the individual members of the class are fact specific and require adjudication of individual facts. However, Patterson can be distinguished from the present case. The court in Patterson found that it was not a typical Title VII case, and that the facts alleged related solely to plaintiffs personal grievances. Ifdd. at 480. In contrast, the plaintiffs here allege a policy of discriminatory hiring policies, a fact which if proven is common to all claims. This is sufficient to meet the commonality requirement. C. Typicality
The plaintiffs next argue that they have satisfied the typicality requirement of Rule 23(a)(3). The defendants claim that the claims are not typical because Grand Victoria's hiring decisions are made on a highly individualized basis, and that the major focus of the litigation will be on defenses unique to the named plaintiffs.
The typicality requirement is satisfied if the claims of the representative parties arise from
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Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 10 of 11
the same event or practice or course of conduct that gives rise to the claims of the other class members, and if the claims are based on the same legal theory. Harris, 127 F.R.D. at 661. Typicality is not defeated by factual distinctions between the named plaintiffs and those of other class members. Orlowski v. Dominick's Finer Foods, Inc., 172 F.R.D. 370,,3374 (N.D.IlIl. 1997). Also, typicality is determined with reference to the defendant's actions towards the plaintiff class, not particularized defenses against individual class members. Wagner v., Nutrasweet Co., 95 FJd 527,,55334 (7th Cir. 1996).
The plaintiffs have satisfied the typicality requirement. All claims of the named plaintiffs arise from the same course of conduct that gives rise to the claims of the other class members, namely, Grand Victoria's discriminatory hiring practices. Fumrithermore, the claims are based upon the same legal theory ulmnder Title VII. All four named plaintiffs are African-Americans who allege that they applied for positions at Grand Victoria as dealers but were not hired. This is sufficient to establish typicality. D. Adequate representation
The plaintiffs next claim that they have satisfied the requirements of Rule 23(a)(4). They argue that the named plaintiffs do not have interests that are antagonistic to those of the class. The defendants counter that the claims of the named plaintiffs are potentially antagonistic, and as a result tlhle requirement for adequate representation is not met.
A class is not fairly and adequately represented if the class members have antagonistic or conflicting claims. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). The defendants claim that the plaintiffs' claims are potentially antagonistic. However, the court finds this contention to be without merit. The defendants offer mere speculation that the claims are
9

Case 1:98-cv-07093 Document 26 Filed 03/27/2000 Page 11 of 11
-j•
"potentially" antagonistic, and they "cannot destroy the certification of the class if the basis of their conflict with the class' claims is speculative." Id at 1019.
The court finds that the plaintiffs have satisfied the requirements of Rule 23(a). E. Rule 23(b)
In addition to satisfying the requirements of Rule 23(a), the plaintiffs also must satisfy one of the requirements of Rule 23(b). The plaintiffs contend in their motion that they have satisfied the requirements of Rule 23(b)(2). The defendants do not dispute this contention, so the class will be certified under Rule 23(b)(2)..3J IV. Conclusion
The plaintiffs' motion for class certification [8-1] is granted with modification, and the court cerlitifies the following class:
All African-Americans who were qualified for employment as "dealers" who applied for positions as "dealers" at the Grand Victoria casino, but who were not hired from December 25, 1997 to the present.
ENTER:
DATED: March 27, 2000
J3The plaintiffs also make reference to Rule 23(b)(3) in their reply brief. However, at no point do they argue that they have satisfied the requirements of this rule, so the court will not address the issue of class certification under Rule 23(b)(3).
10

 
 Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)
2004 WL 434203 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
Lisa ELLIS, et al., Plaintiffs, v.
ELGIN RIVERBOAT RESORT, et al., Defendants.
No. 98 C 7093. | Feb. 19, 2004.
Attorneys and Law Firms
Cecile Singer, Kenneth N. Flaxman, Chicago, IL, for Plaintiffs.
Jane M. McFetridge, Joel W. Rice, Fisher & Phillips, L.L.P., Chicago, IL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
ASHMAN, Magistrate J.
*1 Defendants Elgin Riverboat Resort d/b/a Grand Victoria Riverboat, Nevada Landing Partnership, and RBG, Ltd. have filed a motion for summary judgment against Plaintiffs Lisa Ellis and Marcia English who are presently proceeding pro se. Because Plaintiffs were still represented by counsel when the motion for summary judgment was filed, Defendants did not comply with Local Rule 56.2, which provides that a form notice must be given to pro se litigants opposing a motion for summary judgment. We find that notice must be given to Plaintiffs who are now proceeding pro se. See Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992) (holding that pro se litigants are entitled to notice of the consequences of failing to respond to a summary judgment motion and the court must provide such notice if the moving party does not). Accordingly, we will give notice to Plaintiffs in accordance with the requirements of Timms.
Plaintiffs are hereby notified that under the Federal Rules of Civil Procedure and the Local Rules of this district, the Court will take as true any of Defendants’ factual allegations which are supported by admissible evidence, unless Plaintiffs contradict those factual allegations. In responding to the motion for summary judgment, Plaintiffs cannot rely on the allegations in the complaint or their briefs, but must produce evidence such as counter-affidavits or other documentary evidence to contradict the facts asserted by Defendants. Affidavits submitted by Plaintiffs must contain sworn statements based on personal knowledge of the affiant (the person making the affidavit) and must show that the affiant is competent to testify about the statements.
Plaintiffs are directed to Federal Rule of Civil Procedure 56(e) which explains these requirements as follows: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, but set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
1

Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004) Plaintiffs must comply with the remaining sections of Rule 56, as well as with the Local Rules, including Local Rule 56.1, in responding to Defendants’ motion for summary judgment. Local Rule 56.1 sets forth the requirements that both Defendants and Plaintiffs must follow. Rule 56.1(b)(3)(a) requires that Plaintiffs respond to each numbered paragraph in Defendants’ statement of facts, including in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon. Any factual statement contained in Defendants’ statements of facts which is not disputed by Plaintiffs will be deemed admitted. See Local R. 56.1(b)(3)(B). Enclosed with this order are copies of Federal Rule of Civil Procedure 56 and Local Rules 56.1 and 56.2. *2 Plaintiffs are reminded that on February 13, 2004, this Court set the following briefing schedule for Defendants’ motion for summary judgment: Plaintiffs’ responses to Defendants’ motion for summary judgment to be filed on or before April 4, 2004; Defendants’ reply due May 11, 2004; and oral argument to be held on May 20, 2004.
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 Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)
2004 WL 2125122 United States District Court, N.D. Illinois, Eastern Division.
Lisa ELLIS, et al., Plaintiffs, v.
ELGIN RIVERBOAT RESORT, et al., Defendants.
No. 98 C 7093. | Sept. 22, 2004.
Attorneys and Law Firms
Cecile Singer, Kenneth N. Flaxman, Chicago, IL, for Plaintiffs.
Jane M. McFetridge, Joel W. Rice, Fisher & Phillips, L.L.P., Chicago, IL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
ASHMAN, Magistrate J.
*1 Plaintiffs Lisa Ellis and Marcia English filed a one-count employment discrimination complaint against Defendant, Elgin Riverboat Resort d/b/a Grand Victoria Riverboat; Nevada Landing Partnership and RBG, Ltd. (collectively, “Elgin”), alleging unlawful failure-to-hire under the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (Title VII).1 Elgin moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.2 Plaintiffs did not respond to Elgin’s motion nor did they controvert Elgin’s Local Rule 56.1 Statement of Undisputed Material Facts. In accordance with Local Rule 56.1(b)(3)(B), this Court deems all material facts set forth in Elgin’s Statement of Undisputed Material Facts admitted by Ellis and English. For the following reasons, Elgin’s motion is granted.
I. Background
Elgin is a state-licensed gambling facility located in Elgin, Illinois. Elgin has approximately 1600 employees, of whom slightly under 400 are dealers. Elgin utilizes a standard employment application form for the dealer position. The application includes questions about the positions sought, shift preferred, educational background, prior employment, and questions bearing upon licensing criteria established by the Illinois Gaming Board. Nowhere on the application is there any reference to the race of the applicant. Completed applications are initially received and processed by one of Elgin’s human resources clerks. After processing the application, the clerk forwards it to an assistant human resources manager, who performs the initial screening function.
During the period relevant to Plaintiffs’ claims, Lennor Penson, an African-American, was the assistant human resources manager and conducted the initial screen. In conducting the initial screen, Penson would: determine if the application was complete; verify whether the applicant had any gaming experience; verify whether the applicant had worked for Elgin before (and, if so, why he left); and review the applicant’s work history. Penson had full and final authority to reject an applicant based upon the results of her initial screen. During the period relevant to this lawsuit, Elgin threw out rejected applications after thirty days.
Applications that survive the initial screen are held until the casino manager, or someone from his staff, indicates that there are openings for dealers, at which point the applications are sent to the casino manager for further screening. Further screening generally consists of a very brief review of each candidate’s casino experience and job stability. Candidates whose applications survive the casino manager’s screen are scheduled for an audition with Elgin’s Pit Department. The auditions are
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Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)
held in Elgin’s pavilion, a land-based structure through which patrons reach the riverboat casino when it is docked. The auditioning applicants are evaluated on: (1) knowledge of the game procedures and bet pay-offs; (2) proficiency and dexterity in dealing; (3) awareness of the game environment, including possible gaming irregularities; and (4) ability to relate to the customer and maintain a friendly and personable demeanor. The person conducting the audition determines who has passed and, at the time period relevant to the Plaintiffs’ claims, had the final say on who would be given an offer of employment as a dealer. Applicants who pass the audition are offered employment contingent upon passing a drug test and criminal background check.
*2 In August 1998, Lisa Ellis was seeking employment as a dealer with Elgin. Ellis had experience as a dealer but a turbulent work history. Ellis worked as a dealer for Elgin from October 1994 until March 1995. Before quitting that job for health reasons, Ellis received several weeks of dealer training. Ellis was rehired by Elgin on December 5, 1995, but she terminated her employment about a week later due to scheduling issues. From May 29, 1996, until September 3, 1996, Ellis worked for Majestic Star Casino in Gary, Indiana. While the events leading up to her departure are in doubt, as of September 3, 1996, Ellis was not eligible for rehire with Majestic Star. After Majestic Star, Ellis worked at Empress Casino in Hammond, Indiana from December 12, 1996, until June 14, 1997. Empress Casino’s records suggest Ellis had attendance problems when she worked there. Ellis was hired by Hollywood Casino on September 8, 1997, but she terminated her employment on September 10, 1997, because of scheduling issues. After September 10, 1997, Ellis was not eligible for rehire with Hollywood Casino. Finally, in June 1998, Ellis was employed by Trump Casino in Gary, Indiana, where she worked for approximately one month before resigning.
In August 1998, Marcia English was also seeking work as a dealer for Elgin. English worked as a full-time school teacher since September 1972 but had experience as a casino dealer as well. From May 1996 until November 1998, English worked as a dealer for Majestic Star Casino in Gary, Indiana.
While both Ellis and English submitted applications to Elgin, only English was invited to audition on August 12, 1998. In fact, on August 10, 1998, Ellis learned that her application had been rejected. Ellis claims that, despite the formal rejection, Elgin Pit Boss Kevin Schmieder encouraged her to attend the August 12 audition because the casino needed dealers. (Ellis Dep., 10/4/02, at 326-28.) So, on August 12, 1998, Ellis, English and English’s friend, Yvonne Mason, went to Elgin to audition for jobs as dealers. Elgin permitted all three women to audition but told Ellis and Mason that they would audition last because they were the only candidates not on the schedule and that they would need to submit new application forms before Elgin would consider them for employment.
Ellis and English state that there were six other candidates auditioning for dealer positions on August 12, 1998. There are no records of who auditioned that day and the identities of the other candidates remain unknown. According to Ellis and English, the other candidates included one Asian woman, four Caucasian women and one Caucasian man. (Id. at 338-39.) Ellis and English claim that all of the Caucasian candidates auditioned together for about forty-five minutes while the rest waited in a separate room. (Id. at 343-44.) Ellis and English do not know what transpired during the auditions. (Id. at 342-44.) After the first group was finished, Ellis, English, Mason and the Asian woman began their audition. Ellis and English claim that their audition was cut short when the persons conducting the audition indicated that they needed to leave early in order to be on the casino boat before it left the dock. (Id. at 350-53.) The Plaintiffs do not recall if the boat actually left the dock following their auditions. Elgin acknowledges that the Plaintiffs’ audition may have been rushed because in 1998 dockside gambling was not permitted so the casino was required to leave the dock before gambling could begin. (Grainger Aff. ¶ 8.)
*3 After the auditions, Ellis, English and Mason went to the Human Resources Department so that Ellis and Mason could submit dealer application forms. Ellis and English claim that they encountered the Caucasian candidates in the Human Resources Department and that the Caucasians were holding drug test forms. (Ellis Dep., 10/4/02, at 357-58, 376-77.) The fact that all of the Caucasians were in possession of these forms indicated to the Plaintiffs that the Caucasians had all been offered jobs after their audition. (Id. at 358.) A few days later, Ellis and English were informed by mail that their applications had been rejected.
Plaintiffs filed suit against Elgin for employment discrimination in November 1998 and amended that complaint in July 1999. Plaintiffs originally brought this suit as a class action. After receiving class certification, however, Plaintiffs’ investigation and discovery efforts failed to produce sufficient evidence of a pattern or practice of racially discriminatory hiring as a standard operating procedure at Elgin and on August 22, 2003, this Court decertified Plaintiffs’ class action.3 Now before the Court is Elgin’s motion for summary judgment. Plaintiffs have not responded to Elgin’s motion nor have they controverted Elgin’s Local Rule 56.1 Statement of Undisputed Material Facts. In accordance with Local Rule 56.1(b)(3)(B), “[a]ll material facts set forth in the statement required of the moving party [Elgin] will be deemed to be admitted unless controverted by the
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Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)
statement of the opposing party.”
Summary judgment is appropriate when the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Sinkler v. Midwest Prop. Mgmt., Ltd., 209 F.3d 678, 683 (7th Cir.2000). In determining whether summary judgment is appropriate, the Court must view the evidence, and draw all reasonable inferences therefrom, in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir.1992). However, if the nonmovant bears the burden of proof on an issue he or she may not simply rest on the pleadings, but rather must affirmatively set forth specific facts establishing the existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322-26.
Summary judgment is appropriate when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. If taking the record in its entirety cannot lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
*4 Ellis and English allege in their complaint that, in violation of Title VII, Elgin refused to hire them because they are African-Americans. Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin....” 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging employment discrimination under Title VII may either present direct evidence of discrimination or proceed under McDonnell Douglas’s burden-shifting formula. Under the direct method, Ellis and England must present enough direct or circumstantial evidence of discriminatory motivation to create a genuine issue for trial. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th 2000). “Direct evidence essentially requires an admission by the decision-maker that his actions were based on the prohibited animus.” Id. Where there is no direct evidence of discrimination, the plaintiff may proceed under the indirect burden-shifting formula established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The burden-shifting formula allows Ellis and English to establish a prima facie case of race discrimination when they show: (1) that they belong to a racial minority; (2) that they applied and were qualified for a job for which Elgin was seeking applicants; (3) that, despite their qualifications they were rejected; and (4) the position was given to someone of a different race who had similar or lesser qualifications. Malacara v. City of Madison, 224 F.3d 727, 729 (7th Cir.2000). If Ellis and English succeed in establishing a prima facie case, the burden of production shifts to Elgin to articulate a legitimate, nondiscriminatory reason for its action. Id. If Elgin satisfies its burden of production, Ellis and English must then establish that Elgin’s nondiscriminatory explanations are mere pretext for discrimination. To do this, Ellis and English must show that either (1) it is more likely that a discriminatory reason motivated Elgin than the proffered nondiscriminatory reason or (2) that Elgin’s explanation is not credible. Hudson v. Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir.2004). “Pretext is more than a mistake on the part of the employer; it is a phony excuse.” Id. Courts look to whether the employer gave an honest explanation for its behavior and are not “super-personnel departments” that reexamine an entity’s business decisions. Id. Finally, though the burden of production shifts, the burden of persuasion remains on Plaintiffs Ellis and English at all times. Reeves v. Sanderson Plumbing Prods ., Inc., 530 U.S. 133, 143 (2000).
II. Discussion
Neither Ellis nor English produce any direct evidence of discrimination against either of them so there can be no prima facie case of employment discrimination under the direct method. Radue, 219 F.3d at 616. Because they have no direct evidence, the Plaintiffs must show the four elements of McDonnell Douglas’s indirect, burden-shifting method to establish their prima facie case of employment discrimination. Elements (1) and (3) of the burden-shifting formula are not in dispute as all parties agree that both Plaintiffs belong to a racial minority and that neither was hired for the dealer job. Elgin argues that neither Ellis nor English can establish element (2), that they were qualified for a job Elgin was seeking to fill, nor element (4), that the position was given to someone of a different race who had similar or lesser qualifications.
A. Element (2) *5 In their complaint, Ellis and English claim that they were qualified for the jobs for which they applied and that at all times relevant each was well-trained, competent and experienced as a riverboat casino dealer. Elgin does not deny that Ellis and
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Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)
English both had relevant training and work experience.
1. Ellis Elgin argues that Ellis was not qualified to work as a dealer in August 1998 because she was a former employee of the casino and because she had a poor work history. Ellis worked as a dealer for Elgin from October 1994 to March 1995. Elgin rehired Ellis in December 1995 but she left the job a few days later without giving proper notice. After leaving Elgin in 1995, Ellis worked for four different casinos in the next three years. Ellis did not hold any of the four casino jobs for more than six months and in August 1998 she was not eligible to be rehired at two of them.
A plaintiff’s work history is relevant to her employment discrimination claim. In Lee v. Nat’l Can Corp., the Seventh Circuit chastised a district court for glossing over a plaintiff’s extended periods of unemployment, short-term jobs, and numerous firings, and suggested that a poor work history alone could be grounds for finding a plaintiff unqualified for a job. 699 F.2d 932, 936-37 (7th Cir.1983). The Seventh Circuit explained that:
“Title VII does not compel employers to hire unqualified applicants with questionable employment histories. The Supreme Court described the policy underpinnings of Title VII in McDonnell Douglas Corp. v. Green, noting that ‘[t]he broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions.” ’
Id. at 937. Furthermore, in the refusal to rehire context, the Seventh Circuit recognizes that businesses must adjust to changes in the marketplace and “[t]he fact that an individual may have been qualified in the past does not mean that he is qualified at a later time.” Grohs v. Gold Bond Bldg. Prods., 859 F.2d 1283, 1287 (7th Cir.1988).
As a general rule Elgin does not rehire dealers except where the dealer had a good excuse for leaving or when Elgin is desperate for dealers. (Grainger Dep. at 84-85.) Elgin also gives full weight to an applicant’s work history and rejects applicants who cannot show a history of steady and satisfactory work, although exceptions are made when Elgin is desperate for dealers. (Id. at 91-92; Penson Dep. at 14.) Because of her poor work history in general and with Elgin in particular, Elgin claims that it would not rehire Ellis.
As noted, a poor work history does not always mean an applicant is unqualified to be an Elgin dealer. Unlike some of its hiring criteria (e.g., a successful audition), Elgin applies its no rehire rule and its job history rule less stringently when there is an extreme need for dealers. (Grainger Dep. at 84-85, 91-92.) In August 1998, Elgin may have had an extreme need for dealers. Ellis contends that on August 11, 1998, Pit Boss Kevin Schmieder encouraged her to attended the August 12, 1998, audition precisely because Elgin needed dealers. (Ellis Dep., 10/4/02, at 326-28.) Furthermore, despite her unscheduled arrival, Elgin auditioned Ellis on August 12, 1998. (Id. at 332.) The conversation with Pit Boss Schmieder and the audition are significant because normally it is Elgin’s Pit Department that conducts the auditions and makes the final hiring decisions. (Grainger Aff. ¶ 6.) In Ellis’s case, however, it appears that the August 12, 1998, audition was the first step in applying for a job, not the usual last step. Ellis admits that Schmieder may not have seen her application or known anything about her work history when he encouraged her to audition. (Ellis Dep., 10/4/02, at 328.) Ellis admits that after her audition she and Yvonne Mason (who had not yet applied to work for Elgin) were required to submit new application forms to Elgin’s Human Resources Department. (Id. at 332.) Ellis does not deny that her new application would be reviewed by Elgin’s Human Resources Department and by Elgin’s casino manager, According to the hiring criteria described by Elgin’s Human Resources Department and casino manager, Ellis was not eligible for rehire. (Grainger Dep. at 48, 84-85; Penson Dep. at 29.) Finally, even if its hiring standards were more flexible in August 1998, Elgin had rejected Ellis as recently as August 10, 1998, just two days before her audition. (Ellis Dep., 10/4/02, at 316-17.) When viewed in a light most favorable to the nonmovant, it is not reasonable to infer that Elgin’s flexibility with regard to work histories applied to Ellis’s application in August 1998. Accordingly, Ellis cannot show that she was qualified for Elgin’s dealer position and cannot establish the second element of her prima facie case.
2. English *6 Elgin argues that English was not qualified to work as a dealer in August 1998 because she was a frequent player at the casino and because she was seeking part-time work. As a general rule, Elgin does not hire its frequent players as dealers because they may have relationships with other patrons that will create conflicts of interest. And in August 1998 Elgin was
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Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)
not looking to hire any part-time employees so the job English sought did not exist. English admits that she gambled at Elgin’s casino on as many as thirty occasions and had an Elgin card which could be used toward “comps” on other items. (English Dep., 8/18/99, at 77-78, 81-82.) English is also a full-time school teacher and cannot work any shift at a casino between the hours of 8:30 a.m. to 2:30 p.m. during the school year. (Id. at 19-20, 25.)
While English’s status as a frequent player and full-time teacher undermines her employment discrimination claim, English’s prima facie case simply vanishes as she admits that she is unaware of Elgin’s hiring criteria in August 1998. (English Dep., 10/15/02, at 246-47.) In Bennett v. Roberts, an African-American teacher claiming race discrimination in a failure-to-hire case could not establish a prima facie case of employment discrimination because she could not establish that she was qualified for the positions she sought. 295 F.3d 687, 696 (7th Cir.2002). Though the African-American plaintiff had very strong teaching credentials, the Seventh Circuit found that “comparisons [to the white teachers who were hired] are meaningless absent some information concerning the hiring criteria for these positions.” Id. As in Bennett, English simply has no basis for arguing that she was qualified to be a dealer for Elgin in August 1998 and she cannot establish the second prong of the McDonnell Douglas burden-shifting formula.
B. Element (4) Neither Plaintiff can establish the fourth prong of the burden-shifting formula because the identities of the Caucasian applicants are unknown. Element (4) of the burden-shifting formula requires that the position sought by the plaintiff was given to someone of a different race who had similar or lesser qualifications. Plaintiffs cannot show that the Caucasian applicants actually received jobs nor that the Caucasian applicants had similar or lesser qualifications.
Although neither the Plaintiffs nor the Defendant have any information about the Caucasian candidates, the Plaintiffs claim that the Caucasians were offered jobs on August 12, 1998. Ellis and English stated that, following the August 12 auditions, the Caucasian applicants in the Human Resources Department were holding drug test forms. (Ellis Dep., 10/4/02, at 357-58.) Because neither Plaintiff produces any evidence of the drug test forms nor any other evidence supporting their claim that the Caucasians actually received jobs, they fail to present a genuine issue of material fact.
The Plaintiffs have no information on the qualifications of the Caucasian applicants. (Id. at 311, 376-77.) The Plaintiffs do not know the identities of the Caucasian applicants. (Id. at 376-77.) The Plaintiffs were not in the room when the Caucasians auditioned and have no basis for commenting on the Caucasians’ performances. (Id.342-44.) Unable to compare themselves to the Caucasian candidates, Ellis and English can only rely on speculation and assume that they were as qualified as anyone for the dealer jobs. This kind of speculation cannot create an issue of material fact. Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir.2002) (holding that, “plaintiff’s contention that he is the better candidate for a vacancy constitutes nothing but the employee’s own opinion....”). The plaintiff alleging employment discrimination must have at least a logical reason to believe the employer would not have taken the same action if the employee was not a member of a protected minority group and everything else remained the same. See Kelley v. Apollo Travel Servs. P’ship, 2000 WL 1170074, at *9 (N.D.Ill. Aug. 16, 2000). Ellis and English simply do not have any evidence as to any wrongdoing. Where there is no evidence that the best candidate did not receive the job, a court will not assume wrongful conduct by the employer. Accordingly, Ellis and English fail to establish the fourth element of their prima facie claim of employment discrimination.
*7 In the Seventh Circuit, “the prima facie case under McDonnell Douglas must be established and not merely incanted.” Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir.1997). The Court finds that, after drawing all reasonable inferences in their favor, neither Ellis nor English presents sufficient evidence to create a genuine issue of material fact with regard to their prima facie case of employment discrimination. Because the plaintiffs cannot establish a prima facie case summary judgment in favor of Elgin is appropriate.
III. Conclusion
For the foregoing reasons, Elgin’s motion for summary judgment is granted and this case is dismissed.
Parallel Citations
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Ellis v. Elgin Riverboat Resort, Not Reported in F.Supp.2d (2004)

94 Fair Empl.Prac.Cas. (BNA) 1126

Footnotes

1

Plaintiffs’ amended complaint originally included Yvonne Mason and Derrick Denson as plaintiffs. Mason and Denson have since

resolved their disputes with Elgin and they are no longer parties to this suit.

2

The parties have consented to have this Court conduct any and all proceedings in this case, including the entry of final judgment.

See 28 U.S.C. § 636(c); Local R. 73.1(a).

3

Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415 (N.D.Ill.2003).

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 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

MASON, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:98-cv-07093

Ellis, et al v. Grand Victoria, et al Assigned to: Hon. Martin C. Ashman Demand: $0 Case in other court: 04-03780 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 11/05/1998 Date Terminated: 09/21/2004 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Lisa Ellis

represented by Lisa Ellis Lisa Ellis 6556 S. Wolcott Chicago, IL 60636 PRO SE

Anderson J. Ward 8519 West 191 Street Suite 29 Mokena, IL 60448-8443 (815) 806-1119 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth N Flaxman Kenneth N. Flaxman, P.C. 200 South Michigan Avenue Suite 1240 Chicago, IL 60604-6107 (312) 427-3200 Email: knf@kenlaw.com TERMINATED: 01/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecile L. Singer Law Office of Cecile L. Singer 200 South Michigan Avenue Suite 1240 Chicago, IL 60604 (312)427-3200

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?999349971057199-L_353_0-1

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3/13/08 4:09 PM

Plaintiff Yvonne Mason

TERMINATED: 01/13/2004
represented by Kenneth N Flaxman (See above for address) TERMINATED: 01/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Marcia English individually and for a class

Cecile L. Singer (See above for address) TERMINATED: 01/13/2004
represented by Marcia English Marcia G. English 5218 W. Washington Chicago, IL 60644 PRO SE

Anderson J. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth N Flaxman (See above for address) TERMINATED: 01/13/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Derrick Denson

Cecile L. Singer (See above for address) TERMINATED: 01/13/2004

V.
Defendant
Grand Victoria Casino, Elgin TERMINATED: 07/07/1999

represented by David C. Gustman Freeborn & Peters 311 South Wacker Drive Suite 3000 Chicago, IL 60606

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?999349971057199-L_353_0-1

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?999349971057199-L_353_0-1

3/13/08 4:09 PM
(312)360-6000 Email: dgustman@freebornpeters.com TERMINATED: 07/07/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane M. McFetridge Jackson Lewis LLP 320 West Ohio Street Suite 500 Chicago, IL 60610 (312) 787-4949 Fax: (312) 787-4995 Email: mcfetrij@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna B More More Law Group 180 North LaSalle Street Suite 1415 Chicago, IL 60601 (312) 629-9100 TERMINATED: 07/07/1999
Kevin Vincent Dunphy Connelly, Sheehan & Moran 150 South Wacker Drive Suite 1600 Chicago, IL 60606 (312) 372-1969 Email: kdunphy@csh-law.com ATTORNEY TO BE NOTICED
Mairen C. Kelly Fisher & Phillips 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, GA 30326 (404) 231-1400
Mark W. Schroeder More Law Group 180 North LaSalle Street Suite 1415 Chicago, IL 60601 (312) 629-9100
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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

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Defendant Nevada Landing Partnership

TERMINATED: 07/07/1999
represented by David C. Gustman (See above for address) TERMINATED: 07/12/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane M. McFetridge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donna B More (See above for address) TERMINATED: 07/12/2000

Joel W. Rice Fisher and Phillips LLP 140 South Dearborn Street Suite 1000 Chicago, IL 60603 (312) 346-8061 Fax: (312) 346-3179 Email: jrice@laborlawyers.com ATTORNEY TO BE NOTICED

Kevin Vincent Dunphy (See above for address) ATTORNEY TO BE NOTICED

Mairen C. Kelly (See above for address)

Mark W. Schroeder (See above for address) TERMINATED: 07/12/2000

Matt David Strubbe Fisher and Phillips LLP 140 South Dearborn Suite 1000 Chicago, IL 60603 (312) 346-8061 Fax: (312) 346-3179 Email: mstrubbe@laborlawyers.com

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

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Defendant
PG Investors TERMINATED: 07/07/1999

ATTORNEY TO BE NOTICED
represented by David C. Gustman (See above for address) TERMINATED: 07/07/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane M. McFetridge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donna B More (See above for address) TERMINATED: 07/07/1999

Joel W. Rice (See above for address) ATTORNEY TO BE NOTICED

Kevin Vincent Dunphy (See above for address) ATTORNEY TO BE NOTICED

Mairen C. Kelly (See above for address)

Mark W. Schroeder (See above for address) TERMINATED: 07/07/1999

Defendant Elgin Riverboat Resort

Matt David Strubbe (See above for address) ATTORNEY TO BE NOTICED
represented by Joel W. Rice (See above for address) ATTORNEY TO BE NOTICED

Defendant

Matt David Strubbe (See above for address) ATTORNEY TO BE NOTICED

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report
RBG Ltd Petitioner Tamela Q Simmons Petitioner Dorothy N Burks Petitioner Katrina Dismuke Cureton Petitioner Ramona Camprindo Petitioner Robert Curtington Petitioner Darryl W Donahue Petitioner Donna D Jackson Petitioner Delores Miller Petitioner Keith Moody Petitioner Evelyn D Norris Petitioner Wellington Okoh Petitioner Noelle Olivier Petitioner James Reaves Petitioner Jennifer Thomas Petitioner
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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report
Tamara R Turner Petitioner Lawrence D Williams

3/13/08 4:09 PM

Date Filed 11/05/1998
11/05/1998 11/20/1998 12/07/1998 12/07/1998 12/15/1998
01/06/1999 01/07/1999 01/08/1999 01/12/1999 05/05/1999

#

Docket Text

1 COMPLAINT - Civil cover sheet - Appearance(s) of Cecile L. Singer, Kenneth N. Flaxman as attorney(s) for plaintiff original and 1 copy summons(es) issued.) ( Documents: 1-1 through 1-3) (rmm) (Entered: 11/06/1998)
RECEIPT regarding payment of filing fee paid; on 11/5/98 in the amount of $ 150.00, receipt # 523189. (rmm) (Entered: 11/06/1998)
2 RETURN OF SERVICE of summons executed upon defendant Grand Victoria on 11/13/98 (eav) (Entered: 11/23/1998)
3 ATTORNEY APPEARANCE for defendants by David C. Gustman, Donna B More, Mark W. Schroeder (eav) (Entered: 12/08/1998)
4 MOTION by defendants for extension of time to answer or otherwise plead to complaint ; Notice of motion (eav) (Entered: 12/16/1998)
5 MINUTE ORDER of 12/15/98 by Hon. George M. Marovich : Defendants' motion for an extension of time to 1/6/99 to answer or otherwise plead is granted. [4-1] No further extensions will be allowed. Status hearing is set for 1/12/99 at 9:30 a.m. The parties are to file a joint status report by 1/8/99. Mailed notice (eav) (Entered: 12/16/1998)
6 ANSWER by defendants to complaint and affirmative defenses (eav) (Entered: 01/07/1999)
SCHEDULE set on 1/7/99 by Hon. George M. Marovich : Status hearing set to 9:30 am on 1/27/99. The parties are to file a joint written status report by 1/25/99. . Mailed notice (jms) (Entered: 01/07/1999)
7 JOINT STATUS REPORT; Notice of filing (eav) (Entered: 01/11/1999)
SCHEDULE set on 1/12/99 by Hon. George M. Marovich : Status hearing held and continued to 9:30 am on 5/5/99 . No notice, advised in open court (jms) (Entered: 01/12/1999)
SCHEDULE set on 5/5/99 by Hon. George M. Marovich : Status hearing held and continued to 9:30 am on 7/7/99. Plaintiff's oral motion for leave to file an amended complaint instanter is granted. Plaintiff is directed to file their motion for class certification and supporting memoranda by 7/7/99 . No notice, advised in open court (jms) (Entered: 05/05/1999)

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

07/07/1999 07/07/1999 07/07/1999 07/07/1999
07/30/1999 08/05/1999 08/06/1999 09/02/1999 09/09/1999
09/28/1999 10/05/1999 10/25/1999 11/04/1999

8 MOTION by plaintiffs for class certification (Attachments); (rmm) (Entered: 07/08/1999)
9 MEMORANDUM by plaintiffs in support motion for class certification [8-1] (rmm) (Entered: 07/08/1999)
10 AMENDED COMPLAINT [1-1] by plaintiff terminating defendant PG Inv, defendant Grand Victoria; adding Derrick Denson, Elgin Riverboat, RBG Ltd (rmm) (Entered: 07/08/1999)
11 MINUTE ORDER of 7/7/99 by Hon. George M. Marovich : Status hearing held. Plaintiff's oral motion for leave to file an amended complaint instanter is granted. Plaintiff's motion for class certification [8-1] is taken under advisement. Response to motion for class certification [8-1] to be filed by 9/7/99. Reply is due 9/28/99. Court will rule by mail. Mailed notice (rmm) (Entered: 07/08/1999)
12 MOTION by defendants NV Landing Prt, Elgin Riverboat for extension of time to answer or otherwise plead to amended complaint (Attachment); Notice of motion (eav) (Entered: 08/06/1999)
13 MINUTE ORDER of 8/5/99 by Hon. George M. Marovich : Defendants' motion for an extension of time to 8/6/99 to answer or otherwise plead is granted. [12-1] Telephoned notice (eav) (Entered: 08/06/1999)
14 ANSWER and affirmative defenses to amended complaint by defendant complaint [10-1] (lal) (Entered: 08/09/1999)
15 AGREED MOTION by defendants NV Landing Prt, Elgin Riverboat, RBG Ltd for extension of time to file a brief in opposition to plaintiffs' motion for class certification ; Notice of motion (eav) (Entered: 09/13/1999)
16 MINUTE ORDER of 9/9/99 by Hon. George M. Marovich : Defendants' agreed motion for extension of time to file a brief in opposition to plaintiffs' motion for class certification is granted. [15-1] Response to motion for class certification due by 9/28/99 [8-1]; reply due by 10/26/99. Mailed notice (eav) (Entered: 09/13/1999)
17 MOTION by defendant Elgin Riverboat for leave to file, instanter, a brief in excess of 15 pages ; Notice of motion; Memorandum in opposition with Affidavit of Sharon McGill (Attachments) (eav) (Entered: 10/06/1999)
18 MINUTE ORDER of 10/5/99 by Hon. George M. Marovich : Defendants motion for leave to file, instanter, a brief in excess of 15 pages in opposition to plaintiffs' motion for class certification is granted. [17-1] Telephoned notice (eav) (Entered: 10/06/1999)
19 AGREED MOTION by plaintiffs for extension of time to file a reply memorandum to defendants' brief in opposition to plaintiffs' motion for class certification ; Notice of motion (eav) (Entered: 11/08/1999)
20 MINUTE ORDER of 11/4/99 by Hon. George M. Marovich : Plaintiff's

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

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11/12/1999 11/22/1999 12/01/1999
12/01/1999 12/08/1999 02/01/2000 03/11/2000 03/27/2000
04/18/2000 04/27/2000 04/27/2000 05/05/2000

agreed motion for extension of time is granted. [19-1] Reply to defendant's brief in opposition to plaintiff's motion for class certification due by 11/11/99. [8-1] No notice (eav) (Entered: 11/08/1999)
21 REPLY MEMORANDUM by plaintiff in support of motion for class certification [8-1] (Attachments) (eav) (Entered: 11/16/1999)
22 MOTION by defendant Elgin Riverboat for leave to file, instanter, surresponse in opposition to motion for class certification ; Notice of motion (eav) (Entered: 12/03/1999)
23 MINUTE ORDER of 12/1/99 by Hon. George M. Marovich : Grand Victoria's motion for leave to file instanter, sur-response in opposition to motion for class certification is granted. [22-1] Sur-reply to be filed by 12/8/99. No notice (eav) (Entered: 12/03/1999)
24 SUR-RESPONSE by defendant Elgin Riverboat in opposition to plaintiffs' motion for class certification [8-1] (eav) (Entered: 12/03/1999)
25 SURREPLY memorandum by plaintiffs in support of their motion for class certification [8-1] (las) (Entered: 12/10/1999)
EXECUTIVE COMMITTEE ORDER of 02/01/00: Case reassigned to Hon. Joan B. Gottschall. (nlf) (Entered: 02/04/2000)
SCHEDULE set on 3/11/00 by Hon. Joan B. Gottschall : Status hearing set to 9:30 4/25/00 . Mailed notice (rj) (Entered: 03/11/2000)
26 MINUTE ORDER of 3/27/00 by Hon. Joan B. Gottschall : Status hearing set for 04/18/00 at 9:30 a.m. The plaintiffs' motion for class certification is granted [8-1] with modification for reasons stated in the attached order, and the court certifies the following class: All African-Americans who were qualified for employment as "dealers" who applied for positions as "dealers" at the Grand Victoria casino, but who were no hired from 12/25/97 to the present. Status is set for 04/18/00, at 9:30 a.m. (Entered Order) Mailed notice (hp) (Entered: 03/29/2000)
SCHEDULE set on 4/18/00 by Hon. Joan B. Gottschall : Status hearing held and continued to 9:30 5/25/00 . In court notice (rj) (Entered: 04/24/2000)
27 MOTION by defendants for leave to file appearance of Jane M. McFetridge, Mairen C. Kelly, Kevin V. Dunphy as counsel ; Notice of filing (fce) (Entered: 05/01/2000)
28 ATTORNEY APPEARANCE for defendants Grand Victoria, NV Landing Prt, PG Inv by Jane M. McFetridge, Mairen C. Kelly, Kevin Vincent Dunphy (fce) (Entered: 05/01/2000)
29 MINUTE ORDER of 5/5/00 by Hon. Joan B. Gottschall : Motion by Jane M. McFetridge, Mairen C. Kelly, Kevin V. Dunphy for leave to appear appearance as counsel for Defendants Elgin Riverboard Resort d/b/a Grand Victoria Casino, Nevada Landing Partnership and PG Investors is granted.

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

05/25/2000 07/07/2000 07/12/2000
07/19/2000 07/29/2000 09/28/2000 10/19/2000 10/27/2000 01/18/2001 04/16/2001 04/19/2001 04/24/2001 04/30/2001 05/01/2001

[27-1] No notice (tlm) (Entered: 05/08/2000)
SCHEDULE set on 5/25/00 by Hon. Joan B. Gottschall : Status hearing held and continued to 9:30 7/27/00 . Mailed notice (rj) (Entered: 05/26/2000)
30 MOTION by defendants to withdraw Freeborn & Peters as counsel for defendants ; Notice (hp) (Entered: 07/13/2000)
31 MINUTE ORDER of 7/12/00 by Hon. Joan B. Gottschall : Motion by David C. Gustman and Mark W. Schroeder of Freeborn & Peters and Donna B. More of the More Law Group to withdraw their appearances as attorneys on behalf of defendants Elgin Riverboat Resort, d/b/a Grand Victoria Casino, Nevada Landing Partnership and RBG, L.P. is granted. [30-1] Mailed notice (hp) (Entered: 07/13/2000)
32 ATTORNEY APPEARANCE for defendants Elgin Riverboat Resort d/b/a Grand victoria Casino, Nevada Landing Partnership and PG Investors by Matt David Strubbe (hp) (Entered: 07/24/2000)
SCHEDULE set on 7/29/00 by Hon. Joan B. Gottschall : Status hearing held and continued to 9:30 9/28/00 . No notice (ac) (Entered: 07/29/2000)
SCHEDULE set on 9/28/00 by Hon. Joan B. Gottschall : Status hearing held and continued to 9:30 10/26/00 . In court notice (rj) (Entered: 09/28/2000)
33 AGREED MOTION by plaintiffs to approve form of class notice (Attachment); Notice (hp) (Entered: 10/31/2000)
34 MINUTE ORDER of 10/27/00 by Hon. Joan B. Gottschall : Status hearing set for 01/18/01 at 9:30 a.m. Plaintiff's agreed motion to approve form of class notice is granted. [33-1] No notice (hp) (Entered: 10/31/2000)
SCHEDULE set on 1/18/01 by Hon. Joan B. Gottschall : Status hearing held and continued to 9:30 4/19/01 . Mailed notice (rj) (Entered: 01/18/2001)
36 MEMORANDUM by plaintiffs in opposition to defendant's motion to dismiss claims of deceased class member Yvonne Mason. (fce) (Entered: 05/17/2001)
SCHEDULE set on 4/19/01 by Hon. Joan B. Gottschall : Status hearing held and continued to 9:30 9/20/01. Discovery (non-expert) ordered closed on 9/17/01 . In court notice (rj) (Entered: 04/19/2001)
38 MOTION by plaintiffs' to authorize class notice to class members who applied on and after 6/20/00 ; Notice. (vmj) (Entered: 05/22/2001)
39 MOTION by defendants' to compel answers to defendants' first set of interrogatories and first request for production of documents to plaintiff class members (Attachments); Notice. (vmj) (Entered: 05/22/2001)
40 MOTION by defendants' to dismiss Plaintiff, Yvonne Mason pursuant to Rule 25(a)(1) FRCP (death of a party) and memorandum of law ; Notice. (vmj) (Entered: 05/22/2001)

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

05/14/2001 05/16/2001 05/18/2001
05/29/2001 06/01/2001 06/04/2001 06/04/2001 06/04/2001 06/15/2001 06/28/2001

35 MEMORANDUM by plaintiffs in opposition to motion to compel unnamed class members to answer interrogatories and to produce documents (Attachments). (fce) (Entered: 05/15/2001)
37 RESPONSE and opposition by defendants to plaintiff's motion to authorize class notice to class members who applied on or after 6/20/00 (Attachments); Notice. (fce) (Entered: 05/18/2001)
41 MINUTE ORDER of 5/18/01 by Hon. Joan B. Gottschall: Answer brief to plaintiffs' motion to authorize class notice to class members who applied on and after 6/20/00 [38-1] due 6/4/01. Reply to answer brief due 6/18/01. Defendants' motion to compel answers to defendants' first set of interrogatories and first request for production of documents to plaintiff class members is denied [39-1] without prejudice. Defendants' to file reply to its motion to dismiss Plaintiff, Yvonne Mason pursuant to Rule 25(a)(1) FRCP (death of a party) and memorandum of law [40-1] by 6/4/01. Parties are required to meet and confer as suggested in open court. Hearing is set for 6/1/01 at 10:00 a.m. Mailed notice (vmj) (Entered: 05/22/2001)
45 ATTORNEY APPEARANCE for defendants by Joel W. Rice (jmp) (Entered: 06/07/2001)
SCHEDULE set on 6/1/01 by Hon. Joan B. Gottschall : Status hearing reset to 9:30 7/26/01. Hearing held. Pending close date of discovery is lifted. Discovery cut-off will be set at scheduled status hearing. In court notice (rj) (Entered: 06/05/2001)
42 REPLY MEMORANDUM by plaintiffs in support of motion to authorize class notice to class members who applied on and after 6/20/00 [38-1] (eav) (Entered: 06/05/2001)
43 REPLY by defendants in support of its motion to dismiss plaintiff Yvonne Mason [40-1]. (maf) (Entered: 06/06/2001)
44 MEMORANDUM by defendants in support of theor response and opposition to plaintiffs' motion to authorize class notice to class members who applied on and after 6/20/00 [38-1]. (maf) (Entered: 06/06/2001)
48 MOTION by defendants NV Landing Prt, Elgin Riverboat, RBG Ltd for leave to file, instanter, sur-reply memorandum in opposition to plaintiffs' motion to authorize class notice to class members who applied on or after 06/20/00 ; Notice. (mw) (Entered: 07/17/2001)
46 MINUTE ORDER of 6/28/01 by Hon. Joan B. Gottschall : Enter order on reverse side. The definition of the certified class is hereby amended to include: "All African-Americans who were qualified for employment as 'dealers' who applied for positions as 'dealers' at the Grand Victoria casino, but who were not hired from 12/25/1997 to a date two weeks prior to the scheduled pretrial conference in this action." Plaintiffs' motion to authorize class notice to class members who applied on or after 6/20/2000 [38-1] is granted for the reasons given on the reverse side of this minute order. Mailed

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

07/03/2001 07/09/2001 07/10/2001 07/11/2001
07/13/2001
07/13/2001 07/16/2001 07/20/2001 08/01/2001
08/03/2001

notice (eav) (Entered: 06/29/2001)
49 MOTION by plaintiffs to compel defendant to respond to request to admit (Attachments); Notice. (mw) (Entered: 07/17/2001)
47 RESPONSE by defendants to plaintiff's motion to compel . [39-1] (tlm) (Entered: 07/11/2001)
50 MOTION by defendants NV Landing Prt, Elgin Riverboat, RBG Ltd to compel plaintiffs' responses to long outstanding class-related discovery request (Attachments); Notice. (mw) (Entered: 07/17/2001)
SCHEDULE set on 7/11/01 by Hon. Joan B. Gottschall : Motion by Defendant for leave to file surreply memorandum in opposition and motion by Plaintiff to compel Defendant to respond to request to admit are continued to 9:30 7/13/01. Defendant's counsel was not available at the time the case was called. In court notice (rj) (Entered: 07/11/2001)
51 MINUTE ORDER of 7/13/01 by Hon. Joan B. Gottschall : Motion by defendants' for leave to file instanter, sur-reply memorandum in opposition to plaintiffs' motion to authorize class notice to class members who applied on or after 06/20/00 is granted [48-1]. Motion by defendants' to compel plaintiffs' responses to long outstanding class-related discovery request [50-1] is granted to the extent that if it can't be produced plaintiff must come in on a motion as soon as possible. Plaintiff to respond to long outstanding classrelated discovery request by 07/18/01. Plaintiff's motion to compel defendant to respond to request to admit [49-1] is denied without prejudice. Discovery supervision is referred to Magistrate Judge. Status hearing set for 07/26/01 at 9:30 a.m. is stricken. Mailed notice (mw) (Entered: 07/17/2001)
52 SUR-REPLY by defendants NV Landing Prt, Elgin Riverboat, RBG Ltd in opposition to plaintiffs' motion to authorize class notice to class members who applied on or after 06/20/01. (mw) (Entered: 07/17/2001)
53 REFERRAL ORDER of 7/16/01 The case is referred to the Hon. Martin C. Ashman from the Hon. Joan B. Gottschall for discovery supervision. (For further detail see order.) Mailed notice (mw) (Entered: 07/17/2001)
SCHEDULE set on 7/20/01 by Hon. Martin C. Ashman : Status hearing set to 10:00 8/3/01 in courtroom 1386. Mailed notice (is) (Entered: 07/20/2001)
54 MINUTE ORDER of 8/1/01 by Hon. Joan B. Gottschall: After reconsidering the order entered on 6/28/01 in light of the defendants' recently filed surreply, the court concludes that the order should stand for the reason set forth on the reverse side of this minute order. Mailed notice. (fce) (Entered: 08/02/2001)
SCHEDULE set on 8/3/01 by Hon. Martin C. Ashman : Status hearing held. Settlement conference set for 2:00 9/12/01 in chambers 1366. All clients and parties with full authority to settle are to be physically present. Failure to have parties with full authority to settle present may result in the imposition of

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

09/18/2001 09/27/2001 11/05/2001 11/05/2001 11/05/2001 11/06/2001
11/08/2001 11/20/2001 11/27/2001 12/05/2001 12/06/2001 12/07/2001 01/25/2002 02/20/2002

severe sanctions. (For further details see standing order distributed in open court). Mailed notice (is) (Entered: 08/03/2001)
SCHEDULE set on 9/18/01 by Hon. Martin C. Ashman : Settlement conference reset to 2:00 11/6/01 . Mailed notice (is) (Entered: 09/18/2001)
SCHEDULE set on 9/27/01 by Hon. Martin C. Ashman : Settlement conference of 11/6/01 is reset to 2:00 11/5/01. Mailed notice (is) (Entered: 09/27/2001)
SCHEDULE set on 11/5/01 by Hon. Martin C. Ashman : Settlement conference held. Case settled. Status hearing set to 10:00 11/20/01. Mailed notice (is) (Entered: 11/06/2001)
56 CONSENT by plaintiffs to exercise of jurisdiction by a United States Magistrate Judge. (lc) (Entered: 11/13/2001)
57 CONSENT by defendants to exercise of jurisdiction by a United States Magistrate Judge. (lc) (Entered: 11/13/2001)
55 MINUTE ORDER of 11/6/01 by Hon. Martin C. Ashman : All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Terminating the case referral to Hon. Martin C. Ashman regarding [40-1]. No notice (lc) (Entered: 11/07/2001)
58 REASSIGNMENT ORDER of 11/8/01: This case is reassigned to the Honorable Martin C. Ashman from the Honorable Joan B. Gottschall pursuant to Local Rule 73.1(b). Mailed notice (lc) (Entered: 11/13/2001)
SCHEDULE set on 11/20/01 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 12/7/01 . Mailed notice (is) (Entered: 11/20/2001)
59 MINUTE ORDER of 11/27/01 by Hon. Martin C. Ashman : Defendants' motion to dismiss party [40-1] is terminated as moot. No notice (lc) (Entered: 11/28/2001)
60 AGREED MOTION by plaintiffs to approve form of class notice to class members who applied on and after 06/20/00 (Attachment); Notice. (lc) Modified on 12/07/2001 (Entered: 12/07/2001)
61 MINUTE ORDER of 12/6/01 by Hon. Martin C. Ashman : Plaintiffs' agreed motion to approve form of class notice to class members who applied on and after 06/20/00 is granted [60-1]. Mailed notice (lc) (Entered: 12/07/2001)
SCHEDULE set on 12/7/01 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 1/25/02 . Mailed notice (is) (Entered: 12/07/2001)
SCHEDULE set on 1/25/02 by Hon. Martin C. Ashman : Status hearing held and continued to 10:15 2/20/02 . Mailed notice (is) (Entered: 01/25/2002)
SCHEDULE set on 2/20/02 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 3/12/02 . Mailed notice (is) (Entered: 02/20/2002)

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

03/12/2002 03/15/2002 03/15/2002 03/15/2002
03/25/2002 03/28/2002 03/29/2002
04/10/2002 04/22/2002
04/30/2002 05/01/2002
05/29/2002 05/29/2002

SCHEDULE set on 3/12/02 by Hon. Martin C. Ashman : Status hearing held and continued to 2:00 3/15/02 . No notice (is) (Entered: 03/12/2002)
62 MOTION by defendants concerning class action settlement agreement (Attachments). (lc) Modified on 03/18/2002 (Entered: 03/18/2002)
63 MOTION by plaintiffs to enforce settlement agreement . (lc) (Entered: 03/18/2002)
64 MINUTE ORDER of 3/15/02 by Hon. Martin C. Ashman : Plaintiff's motion to enforce settlement agreement is denied [63-1] for the reasons stated in open court. Defendants' motion concerning class action settlement agreement is denied [62-1]. Status hearing held. No notice (lc) (Entered: 03/18/2002)
65 MOTION by plaintiffs to appoint special representative for named plaintiff Yvonne Mason ; Notice. (lc) (Entered: 04/01/2002)
66 MEMORANDUM by defendants in opposition to plaintiffs' motion to appoint special representative for named plaintiff Yvonne Mason [65-1] (Attachment). (lc) (Entered: 04/01/2002)
67 MINUTE ORDER of 3/29/02 by Hon. Martin C. Ashman : Plaintiffs' motion to appoint special representative for named plaintiff Yvonne Mason [65-1] is continued to 4/22/02 at 10:00a.m. Status hearing set for 4/22/02 at 10:00a.m. Mailed notice (lc) (Entered: 04/01/2002)
SCHEDULE set on 4/10/02 by Hon. Martin C. Ashman : Settlement conference reset to 3:30 5/15/02. Mailed notice (is) (Entered: 04/10/2002)
68 MINUTE ORDER of 4/22/02 by Hon. Martin C. Ashman : Plaintiff's motion to appoint special representative for named plaintiff Yvonne Mason [65-1] is continued to 5/15/02 at 3:30p.m. Status hearing held. Mailed notice (lc) (Entered: 04/23/2002)
SCHEDULE set on 4/30/02 by Hon. Martin C. Ashman : Settlement conference of 5/15/02 is reset to 11:00 5/29/02. Mailed notice (is) (Entered: 04/30/2002)
69 MINUTE ORDER of 5/1/02 by Hon. Martin C. Ashman : Plaintiffs' motion to appoint special representative for named plaintiff Yvonne Mason [65-1] set reset and continued to 5/29/02 at 11:00a.m. Mailed notice (lc) (Entered: 05/02/2002)
70 ADDENDUM by plaintiffs to motion to appoint special representative for named plaintiff Yvonne Mason. (lc) (Entered: 05/30/2002)
71 MINUTE ORDER of 5/29/02 by Hon. Martin C. Ashman : Settlement conference held. Case not settled. Plaintiffs' motion to appoint special representative for named plaintiff Yvonne Mason is granted [65-1] for the reasons stated in open court. Status hearing set for 6/14/02 at 10:00a.m. Mailed notice (lc) (Entered: 05/30/2002)

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

06/14/2002
07/26/2002 07/29/2002 09/13/2002 11/27/2002 12/02/2002 12/04/2002
01/31/2003 02/03/2003 02/06/2003 02/06/2003 02/06/2003 02/06/2003 02/06/2003 02/10/2003

SCHEDULE set on 6/14/02 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 9/13/02. Fact discovery ordered closed on 11/29/02. Plaintiff's expert disclosures by 12/16/02. Defendant's expert disclosures by 12/30/02. Expert depositions by 1/31/03. Dispositive motions are due 2/28/03. Mailed notice (is) (Entered: 06/17/2002)
72 AGREED MOTION by plaintiff to approve form of class notice to class members who applied on and after 6/20/00 (Attachments) ; Notice of agreed motion (eav) (Entered: 07/30/2002)
73 MINUTE ORDER of 7/29/02 by Hon. Martin C. Ashman : Plaintiff's agreed motion to approve form of class notice to class members who applied on and after 6/20/00 is granted. [72-1] Mailed notice (eav) (Entered: 07/30/2002)
SCHEDULE set on 9/13/02 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 12/4/02 . Mailed notice (is) (Entered: 09/13/2002)
75 MOTION by plaintiffs to extend discovery cutoff dates ; Notice. (lc) (Entered: 12/05/2002)
74 RESPONSE by defendant Elgin Riverboat to plaintiffs' motion to extend discovery cutoff dates. (lc) (Entered: 12/04/2002)
76 MINUTE ORDER of 12/4/02 by Hon. Martin C. Ashman : Plaintiffs' motion to extend discovery cutoff dates is granted [75-1]. Defendants' oral motion to stay the class is denied. Fact discovery closure is extended to 01/31/03. All dates are extended by forty-five days. Status hearing held and continued to 2/10/03 at 10:00a.m. Mailed notice (lc) (Entered: 12/05/2002)
83 MOTION by plaintiff to strike answer to complaint (Attachments); Notice. (lc) (Entered: 02/11/2003)
77 TRANSCRIPT of proceedings for the following date(s): 12/4/02 Before Honorable Martin C. Ashman. (fce) (Entered: 02/04/2003)
78 RESPONSE by defendant Elgin Riverboat to plaintiffs' motion to strike answer to complaint and request for sanctions (Attachments); Notice. (lc) (Entered: 02/10/2003)
79 MOTION by defendant Elgin Riverboat for leave to file, instanter, memorandum of law in excess of fifteen page limit ; Notice. (lc) (Entered: 02/11/2003)
80 MOTION by defendant Elgin Riverboat to modify the class definition . (lc) (Entered: 02/11/2003)
81 MOTION by defendant Elgin Riverboat to decertify the class . (lc) (Entered: 02/11/2003)
82 APPENDIX filed by defendant Elgin Riverboat in support of motion to decertify the class [81-1] (lc) (Entered: 02/11/2003)
84 MINUTE ORDER of 2/10/03 by Hon. Martin C. Ashman : Brief in support of

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

02/18/2003 02/20/2003
02/20/2003 02/28/2003 03/04/2003
03/25/2003 03/25/2003 04/15/2003 04/15/2003 04/17/2003 05/14/2003
06/10/2003

defendants' motion to decertify the class [81-1] and to modify the class definition [80-1] due 02/18/03. Answer brief to motion due 03/25/03. Reply to answer brief due 4/15/03. Status hearing held. Oral argument on defendants' motion to deceritfy the class set for 4/30/03 at 10:30a.m. Defendants' motion for leave to file, instanter, memorandum of law in excess of fifteen page is granted up to twenty pages [79-1]. Plaintiffs' motion to strike answer to complaint is denied as stated in open court [83-1]. Briefing schedule on motion for summary judgment is vacated. Dates on disclosure of experts is vacated. Mailed notice (lc) (Entered: 02/11/2003)
85 REVISED MEMORANDUM of Law by defendants in support of motion to decertify the class (Attachments); Notice. (lc) (Entered: 02/20/2003)
86 MINUTE ORDER of 2/20/03 by Hon. Martin C. Ashman : Oral argument on defendants' motion to decertify the class [81-1] and to modify the class definition [80-1] of 04/30/03 is reset to 05/14/03 at 10:30a.m. Mailed notice (lc) (Entered: 02/21/2003)
87 MOTION by plaintiff to strike defendant's revised memorandum in support of motion to decertify class (Attachments); Notice. (lc) (Entered: 03/06/2003)
88 RESPONSE by defendant Elgin Riverboat to plaintiffs' motion to strike defendant's revised memorandum in support of motion to decertify class [871]; Notice. (lc) (Entered: 03/06/2003)
89 MINUTE ORDER of 3/4/03 by Hon. Martin C. Ashman : Oral argument held. Plaintiffs' motion to strike defendant's revised memorandum in support of motion to decertify class is denied [87-1]. Mailed notice (lc) (Entered: 03/06/2003)
90 NOTICE by plaintiffs' counsel of change of address (lc) (Entered: 03/26/2003)
91 MEMORANDUM by plaintiffs in opposition to motion to decertify the class [81-1] (Attachments). (lc) (Entered: 03/26/2003)
92 REPLY brief by defendants in support of motion to modify the class definition [80-1]; Notice. (lc) (Entered: 04/16/2003)
93 REPLY Memorandum of Law by defendants to motion to decertify the class [81-1] (Attachments). (lc) (Entered: 04/16/2003)
94 NOTICE by plaintiffs Lisa Ellis, Yvonne Mason, Marcia English counsel of change of address (lc) (Entered: 04/21/2003)
95 MINUTE ORDER of 5/14/03 by Hon. Martin C. Ashman : Oral argument held. Defendants' motion to modify the class definition [80-1] and motion to decertify the class [81-1] are taken under advisement. Ruling to be made by mail. No notice (lc) (Entered: 05/15/2003)
96 SUPPLEMENTAL SUBMISSION by defendants to motion to decertify the class [81-1] (Attachment); Notice. (lc) (Entered: 06/11/2003)

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

07/17/2003 08/21/2003
09/25/2003 09/30/2003 10/08/2003
11/21/2003 11/24/2003
11/24/2003 12/19/2003 12/19/2003 12/19/2003 01/12/2004 01/13/2004

97 TRANSCRIPT of proceedings for the following date(s): 05/14/03 before The Honorable Martin C. Ashman. (lc) (Entered: 07/18/2003)
98 MINUTE ORDER of 8/21/03 by Hon. Martin C. Ashman : Defendants' motion to decertify the class is granted [81-1]. Defendants' motion to amende the class definition is denied [80-1] to include only those applicants who auditioned is denied as moot. Entered Memorandum Opinion and Order. Mailed notice by judge's staff (lc) (Entered: 08/22/2003)
99 CERTIFIED copy of Order dated 09/22/03 from the 7th Circuit: It is ordered that #1 is denied. ( 03-8013) (lc) (Entered: 09/26/2003)
SCHEDULE set on 9/30/03 by Hon. Martin C. Ashman : Status hearing set to 10:00 10/8/03 . Mailed notice (is) (Entered: 09/30/2003)
SCHEDULE set on 10/8/03 by Hon. Martin C. Ashman : Status hearing held. Dispositive motion is due 12/10/03. Response is due 1/7/04. Reply is due 1/21/04. Oral argument on dispositive motion set for 10:30 2/5/04. Plaintiff is to send notice of uncertified class to all members. Mailed notice (is) (Entered: 10/08/2003)
100 AGREED MOTION by defendant Elgin Riverboat for extension of time to file dispositive motion ; Notice. (lc) (Entered: 11/25/2003)
101 MINUTE ORDER of 11/24/03 by Hon. Martin C. Ashman : Defendnat's agreed motion for extension of time to file dispositive motion is granted [1001]. Plaintiffs' response to be filed by 01/26/04. Reply due 02/09/04. Oral argument on dispositive motion is reset to 02/19/04 at 10:30a.m. Oral argument of 02/05/04 is stricken. Mailed notice (lc) (Entered: 11/25/2003)
102 TRANSCRIPT of proceedings for the following date(s): 03/15/02 before The Honorable Martin C. Ashman. (lc) (Entered: 11/25/2003)
103 MOTION by defendant for summary judgment ; Memorandum of Law in support; Statment; Notice. (lc) (Entered: 12/22/2003)
104 DOCUMENTS by defendants attached in support of defendants' statement of undisputed material facts pursuant to Local Rule 56.1. (lc) (Entered: 12/22/2003)
106 MOTION by plaintiffs Lisa Ellis, Marcia English to withdraw attorneys Singer and Flaxman ; Notice. (lc) (Entered: 01/14/2004)
105 STIPULATION by parties to dismiss as to claims of Derrick Denson and representative claims of Shemina Lewis; Notice. (lc) (Entered: 01/14/2004)
107 MINUTE ORDER of 1/13/04 by Hon. Martin C. Ashman : Motion of attorneys Singer and Flaxman to withdraw as counsel for plaintiffs Ellis and English is granted [106-1]. Pursuant to the stipulation to dismiss as to claims of Derrick Denson and representative claims of Shemina Lewis, the claims of Derrick Denson and Shemina Lewis, as representative of the estate of Yvonne

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

02/12/2004 02/13/2004
02/18/2004 03/25/2004 04/06/2004 04/14/2004
05/12/2004
06/29/2004 06/29/2004 07/01/2004 07/06/2004

Mason, are dismissed with prejudice and without costs, each party to bear its own costs and fees. Briefing schedule on defendant's motion for summary judgment is stayed. Oral argument of 02/19/04 is stricken. Plaintiffs Lisa Ellis and Marcia English are given twenty days up to and including 02/03/04 to obtain counsel. Status hearing set for 2/13/04 at 10:00a.m. Mailed notice (lc) (Entered: 01/14/2004)
SCHEDULE set on 2/12/04 by Hon. Martin C. Ashman : Oral argument stricken. No notice (is) (Entered: 02/12/2004)
108 MINUTE ORDER of 2/13/04 by Hon. Martin C. Ashman: Plaintiff's response to defendant's motion for summary judgment [103-1] to be filed on or before 04/13/04. Reply due 5/11/04. Oral argument on defendant's motion for summary judgment [103-1] set for 5/20/04 at 11:00a.m. Mailed notice (lc) (Entered: 02/17/2004)
109 MINUTE ORDER of 2/18/04 by Hon. Martin C. Ashman : Entered Memorandum Opinion and Order. Mailed notice by judge's staff (lc) (Entered: 02/19/2004)
110 MOTION by defendant for reassignment of related cases (Attachments); Notice. (lc) (Entered: 04/07/2004)
111 MINUTE ORDER of 4/6/04 by Hon. Martin C. Ashman : Defendants' motion for reassignment of related cases is denied without prejudice for the reasons stated in open court [110-1]. Mailed notice (lc) (Entered: 04/07/2004)
112 MINUTE ORDER of 4/14/04 by Hon. Martin C. Ashman: Oral argument on defendant's motion for summary judgment [103-1] is reset to 5/21/04 at 11:00 a.m. Oral argument of 5/20/04 is stricken. Mailed notice (vmj) (Entered: 04/15/2004)
113 MINUTE ORDER of 5/12/04 by Hon. Martin C. Ashman : Oral argument of 05/21/04 on defendant's motion for summary judgment [103-1] is stricken. Defendant's motion for summary judgment [103-1] is taken under advisement. Ruling to be made by mail. Mailed notice by judge's staff (lc) (Entered: 05/13/2004)
115 MOTION by plaintiffs to allow late response to motion for summary judgment . (lc) (Entered: 07/07/2004)
116 MOTION by plaintiff to file appearance instanter ; Notice. (lc) (Entered: 07/07/2004)
114 RESPONSE by defendants in opposition to plaintiff's motion to allow late response to motion for summary judgment; Notice. (lc) (Entered: 07/02/2004)
117 MINUTE ORDER of 7/6/04 by Hon. Martin C. Ashman : Plaintiff's motion to file appearance instanter [116-1] and plaintiff's motion to allow late response to motion for summary judgment [115-1] are entered and continued to 7/9/04 at 10:00a.m. Mailed notice (lc) (Entered: 07/07/2004)

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

07/09/2004
07/09/2004 07/20/2004 08/02/2004 08/05/2004 08/09/2004
09/21/2004
09/21/2004 10/20/2004 10/25/2004 10/26/2004
10/26/2004

118 MINUTE ORDER of 7/9/04 by Hon. Martin C. Ashman : Plaintiffs' motion to file appearance instanter is granted [116-1]. Plaintiffs' motion to allow late response to motion for summary judgment is granted [115-1]. Plaintiffs' response to defendant's motion for summary judgment [103-1] to be filed by 07/30/04. Reply due 08/13/04 [103-1]. Oral argument on defendant's motion for summary judgment set for 09/01/04 at 10:30a.m. Mailed notice (lc) (Entered: 07/12/2004)
119 ATTORNEY APPEARANCE for plaintiffs Lisa Ellis, Marcia English by Anderson J. Ward (lc) (Entered: 07/12/2004)
120 TRANSCRIPT of proceedings for the following date(s): 02/13/04 before The Honorable Martin C. Ashman. (lc) (Entered: 07/21/2004)
122 MOTION by plaintiffs for leave to voluntarily dismiss without prejudice ; Notice. (lc) (Entered: 08/10/2004)
121 RESPONSE by defendant Elgin Riverboat to plaintiffs' motion for leave to voluntarily dismiss without prejudice; Notice. (lc) (Entered: 08/09/2004)
123 MINUTE ORDER of 8/9/04 by Hon. Martin C. Ashman : Plaintiffs' motion for leave to voluntarily dismiss without prejudice is denied for the reasons stated in open court [122-1]. Defendants' motion for summary judgment [1031] is taken under advisement. Ruling to be made by mail. Oral argument of 09/01/04 is vacated. Mailed notice (lc) (Entered: 08/10/2004)
124 MINUTE ORDER of 9/21/04 by Hon. Martin C. Ashman : Defendant Elgin Riverboat Resort's motion for summary judgment is granted [103-1] and this case is dismissed terminating case. Entered Memorandum Opinion and Order. Mailed notice by judge's staff (lc) (Entered: 09/22/2004)
125 ENTERED JUDGMENT (lc) (Entered: 09/22/2004)
127 PETITION to intervene ; Notice of motion (eav) (Entered: 10/27/2004)
126 MEMORANDUM by defendant Elgin Riverboat Resort in opposition to petition to intervene; Notice (cdy) (Entered: 10/26/2004)
128 MINUTE ORDER of 10/26/04 by Hon. Martin C. Ashman : Oral argument held on petitioners' petition to intervene. Said motion is granted for the reasons stated in open court. [127-1] Mailed notice (eav) (Entered: 10/27/2004)
129 NOTICE OF APPEAL by petitioner Tamela Q Simmons, petitioner Dorothy N Burks, petitioner Katrina Dismuke Cureton, petitioner Ramona Camprindo, petitioner Robert Curtington, petitioner Darryl W Donahue, petitioner Donna D Jackson, petitioner Delores Miller, petitioner Keith Moody, petitioner Evelyn D Norris, petitioner Wellington Okoh, petitioner Noelle Olivier, petitioner James Reaves, petitioner Jennifer Thomas, petitioner Tamara R Turner, petitioner Lawrence D Williams judgment entered [125-1], Scheduling order terminating case. [124-1], all Entered Memorandum Opinion

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

10/27/2004 10/28/2004 10/28/2004 11/01/2004 11/01/2004 11/19/2004
11/22/2004 12/01/2004 12/03/2004 12/03/2004
12/03/2004 12/03/2004 12/03/2004 12/03/2004
12/21/2004 01/03/2005

and Order. [124-2], motion minute order [124-3], Scheduling order Entered Memorandum Opinion and Order. [98-1], motion minute order [98-2] ( Fee Due) (dj) (Entered: 10/27/2004)
TRANSMITTED to the 7th Circuit the short record on appeal [129-1] . Mailed notice to all counsel. (dj) (Entered: 10/27/2004)
SCHEDULE set on 10/28/04 by Hon. Martin C. Ashman : Status hearing set to 10:00 11/22/04 . Mailed notice (is) (Entered: 10/28/2004)
RECEIPT #10216963 for payment of notice of appeal in the amount of $255.00. (dj) (Entered: 10/29/2004)
130 ACKNOWLEDGEMENT of receipt of short record on appeal [129-1] USCA 04-3780 (las) (Entered: 11/02/2004)
131 CIRCUIT Rule 3(b) Notice (las) (Entered: 11/02/2004)
TRANSMITTED to the 7th Circuit the long record on appeal no. 04-3780 consisting of 2 volumes of pleadings, 4 transcripts and 7 loose pleadings. [129-1], appeal [129-1] Mailed notice to all counsel. (dj) (Entered: 11/19/2004)
SCHEDULE set on 11/22/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 12/1/04 . Mailed notice (is) (Entered: 11/22/2004)
SCHEDULE set on 12/1/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 12/3/04 . Mailed notice (is) (Entered: 12/01/2004)
132 BILL OF COSTS submitted (lc) (Entered: 12/06/2004)
COSTS taxed bill of costs [132-1] for defendants NV Landing Prt, Elgin Riverboat in the amount of $ 10,703.11 against plaintiffs. (lc) (Entered: 12/06/2004)
133 AFFIDAVIT of Joel W. Rice. (lc) (Entered: 12/06/2004)
134 MEMORANDUM by defendant Elgin Riverboat in support bill of costs [0-0]; Notice. (lc) (Entered: 12/06/2004)
135 ITEMIZATION by defendant Elgin Riverboat of bill of costs (Attachments). (lc) (Entered: 12/06/2004)
136 MINUTE ORDER of 12/3/04 by Hon. Martin C. Ashman : Status hearing held. Hearing no objections, bill of costs is approved. Judgment having been entered in this action on 09/22/04 against Lisa Ellis, et al, costs are taxed in the amount of $10,703.11 and included in the judgment. Filed bill of cost. Mailed notice (lc) (Entered: 12/06/2004)
137 TRANSCRIPT of proceedings for the following date(s): 10/26/04 appeal [129-1] before The Honorable Martin C. Ashman. (lc) (Entered: 12/23/2004)
TRANSMITTED to the 7th Circuit supplement to appeal no. 04-3780

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CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

3/13/08 4:09 PM

02/17/2005 02/17/2005
01/05/2006 01/05/2006 01/10/2006 01/11/2006 04/20/2006 04/20/2006

consisting of: One volume of transcript. Mailed notice to all counsel. (lc) (Entered: 01/03/2005)
138 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 04-3780 consisting of two volumes of pleadings, seven volumes of loose pleadings and 5 volumes of transcripts. (mjc, ) (Entered: 02/22/2005)
139 MANDATE of USCA dated 01/26/05 regarding notice of appeal [129] ; We further note that the parties make no argument that the papers filed by appellants on October 20, 2004, should be treated as a notice of appeal under Smith v. Barry, 502 U.S. 244 (1992). This appeal is dismissed. USCA No. 043780. (mjc, ) (Entered: 02/22/2005)
140 PRAECIPE by defendants against plaintiff Lisa Ellis in the amount of $10,703.11 (Exhibits). (cdy, ) . (Entered: 01/05/2006)
FOUR CERTIFIED ORIGINAL WRITS of execution with a copy of praecipe issued to the U.S. Marshal's Office for service as to Lisa Ellis (cdy, ) . (Entered: 01/05/2006)
141 PRAECIPE by defendants against plaintiff Marcia English in the amount of $10,703.11 (Exhibits) (cdy, ) . (Entered: 01/10/2006)
FOUR CERTIFIED ORIGINAL WRITS of execution with copy of praecipe issued to the U.S. Marshal's Office for service as to Marcia English. (cdy, ). (Entered: 01/11/2006)
142 WRIT of Execution by U.S. Marshals Service returned Unexecuted as to Marcia English. (eav, ) (Entered: 04/24/2006)
143 WRIT of Execution by U.S. Marshals Service, unexecuted as to Lisa Ellis (eav) (Entered: 04/24/2006)

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