UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

LAURA GARCIA and LORE REDNOUR, ) 

individually and on behalf of other ) 

similarly situated, ) 

 ) 

 Plaintiffs, ) 

 ) Case No. 12-cv-3687 

 v. ) 

 ) Judge Joan B. Gottschall 

JCPENNEY CORPORATION, INC., ) 

 ) 

 Defendant. ) 

 

MEMORANDUM OPINION & ORDER

 Plaintiffs Laura Garcia (“Garcia”) and Lore Rednour (“Rednour”), for themselves and on 

behalf of the class they seek to represent (“Plaintiffs”), bring this lawsuit against Defendant 

JCPenney Corporation, Inc. (“JCPenney”), alleging violations of the Illinois Wage Payment and 

Collection Act (“IWPCA”), 820 ILCS § 115/1, et seq., and Illinois Department of Labor 

(“IDOL”) regulations. Specifically, Plaintiffs, on behalf of a putative class consisting of former 

JCPenney part-time non-management associates (“PTNMA”), claim that they did not receive 

vacations benefits earned pursuant to JCPenney’s “My Time Off” vacation policy (the “vacation 

policy” or the “MTO vacation policy”). Plaintiffs’ motion for class certification pursuant to Fed. 

R. Civ. P. 23 is before the court. (Pls. Mot. Class Cert., ECF No. 173.) The present motion for 

class certification is the second such motion filed by Plaintiffs. This court denied Plaintiffs’ 

original motion for class certification for two reasons: (1) Plaintiffs’ motion for class 

certification was not based on an action pending in this district;1

 and (2) the proposed class 

 

1

 Instead, Plaintiff’s motion for class certification was based on a second amended complaint filed in the Southern 

District of California: Tschudy v. JCPenney, No. 11 C 1011. [Dkt. 45] The court in Tschudy carved off the Illinois 

portion of the case and transferred it to his district. [Dkt. 74]. 
2 

definition suffered from a number of deficiencies. For the following reasons, Plaintiffs’ second 

motion for class certification is granted. 

I. BACKGOUND 

 Plaintiffs have cured the first defect in its original motion for class certification by filing 

their Third Amended Complaint (“TAC”) in this district alleging a violation of the IWPCA by 

JCPenney. (TAC, ECF No. 159.) The TAC contains a proposed class of “all former PTMNAs 

employed by JC Penney [sic] in Illinois and terminated between January 1, 2004 through the date 

of entry of an order certifying the instant action as a class action (‘IWPCA Vacation Pay 

Class’).” (TAC at ¶ 18, ECF No. 159.) 

A. JCPenney’s MTO Vacation Policy

 JCPenney’s vacation policies are memorialized in its MTO vacation policy. (Pls. Class 

Cert. Memo. at 2, ECF No. 173-1.) The parties agree that all iterations of the MTO are 

substantively identical. (Id., Def. Resp. at 2, ECF No. 174.) The MTO policy defines “My Time 

Off” as “a bank of hours that you earn each month.” (Pls. Mot. for Class Cert. at 3, ECF No. 

127) (emphasis in original.) The amount of vacation benefits accrued by a JCPenney associate 

depends on his/her position, length of service, and the average number of hours worked per 

week. According to Plaintiffs, each iteration of the MTO in effect during the proposed class 

period is a “look back” policy whereby the amount of vacation an associate is entitled to receive 

in a current year of employment is based on past performance, i.e. the number of hours he/she 

worked during the look back period. (Pls. Class Cert. Memo. at 3, ECF No. 173-1.) That is, the 

amount of MTO an associate receives is based on the number of hours he/she worked in the 

preceding year and his or her length of service. (Id.) 
3 

 PTNMAs become eligible to receive MTO vacation benefits and receive their first 

deposit on the first day of the month following 12 months of employment if they averaged 252

 or 

more hours per week during the first 48 weeks of employment. PTNMAs must qualify each year 

to receive MTO deposits. “Each July3 [following the first 48 weeks of employment, JCPenney] 

will look back at the previous 52 weeks to determine [each PTNMAs] eligibility for MTO 

[vacation benefits] for the near year.” (Id. at 4.) The amount of time of vacation earned each 

month is calculated by multiplying the employee’s average weekly hours by the appropriate 

“MTO Weeks Factor,” then diving by twelve. The “MTO Weeks Factor” is a constant value that 

is based on length of service: 

Months of Service Part-Time Non-Management 

Associate “MTO Weeks Factor” 

Less than 12 months 2.6 

12-35 months 2.6 

35-59 months 2.8 

60-179 3.4 

180-299 months 4.0 

300+ months 4.6 

(Pls. Class Cert. Memo., at 5, ECF No. 173-1.) Assuming that employees are eligible to use 

vacation time, they can use earned MTO vacation hours at their discretion. (Id. at 4.) 

B. The Named Plaintiffs 

 From November 17, 2005 to June 28, 2009, Garcia worked for JCPenney in Illinois as a 

part-time non-management associate. (Pl. Class Cert. Memo. at 5, ECF 173-1.) During the first 

 

2

 Since January 31, 2015, the MTO Policy has required PTNMAs to have averaged at least 30 hours per week in the 

previous year to remain eligible for MTO benefits. (Def. Resp. at 5, fn. 8, ECF 174.) 

3

 Beginning in 2007, JCPenney moved its annual calculation of whether an employee remained eligible to receive 

MTO deposits to July 1, from December 31. (Def. Resp. at 4, fn. 6, ECF 174.) 
4 

48 weeks of Garcia’s employment, she averaged approximately 18.24 hours per week. (Id.) 

During her entire 188 weeks of employment she worked 3,796.7 hours and averaged 20.2 hours 

per week. (Id. at 6.) Garcia did not receive any vacation benefits under the MTO vacation 

policy. 

 From November 26, 2007 until October 3, 2010, Rednour worked for JCPenney in Illinois 

as a part-time non-management associate. (Pl. Class Cert. Memo. at 7, ECF 173-1.) Rednour 

averaged 29.47 hours per week during the first 48 weeks of her employment and received the 

MTO vacation days she accrued during that time period on a pro rata basis on the first day of 

each month during her second year of employment. (Id.) According to Rednour, she averaged 

more than 25 hours per week during the first 48 weeks of her second year of employment in 

2009 as calculated by JCPenney. (Id.) Rednour did not receive the MTO benefits she accrued in 

2009 that were due in November and December 2010 because her employment terminated on 

October 30, 2010. (Id.) Rednour also claims she did not receive any MTO benefits for the hours 

she worked during the period between January 1, 2010 and October 30, 2010. (Id.) 

 

II. LEGAL STANDARD 

 Federal Rule of Civil Procedure 23 allows class certification when the proposed class 

satisfies all of the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). 

The party seeking class certification must present proof that the requirements of Rule 23 are 

satisfied. “[T]he party seeking class certification assumes the burden of demonstrating that 

certification is appropriate.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 

(7th Cir. 1993). Plaintiffs bear the burden of showing by a preponderance of the evidence that 

all of Rule 23’s requirements are satisfied. Comcast Corp. v. Behrend, —U.S. , 131 S.Ct. 

2541, 2551 (2011). The requirements of Federal Rule of Civil Procedure 23(a) are as follows: 
5 

(1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there 

are questions of law or fact common to the class (commonality); (3) the claims or defenses of the 

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

representative parties will fairly and adequately protect the interests of the class (adequacy). 

Fed. R. Civ. P. 23(a) 

 If Plaintiffs meet this initial burden, they must then show that the proposed class satisfies 

one of the three requirements set forth in Rule 23(b). See Oshana v. Coca-Cola Co., 472 F.3d 

506, 513 (7th Cir. 2006). Because plaintiffs seek money damages, they must meet the 

requirements of Rule 23(b)(3). Therefore, Plaintiffs must show that “questions of law or fact 

common to the members of the class predominate over any questions affecting only individual 

members (predominance), and that a class action is superior to all other available methods for 

fair and efficient adjudication of the controversy (superiority).” Fed. R. Civ. P. 23(b)(3); see 

also Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 814 n.5 (7th Cir. 2012). In 

addition to Rule 23 requirements, plaintiffs must also provide a workable class definition by 

demonstrating that the members of the class are identifiable. See Oshana, 472 F.3d at 513. 

 The court “must make whatever factual and legal inquiries necessary to ensure that 

requirements for class certification are satisfied before deciding whether a class should be 

certified, even if those considerations overlap the merits of the case.” Am. Honda Motor Co. v. 

Allen, 600 F.3d 813, 815 (7th Cir. 2010) (citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 

676 (7th Cir. 2001)). Although Szabo stands for the proposition that the court is not free to 

accept all of the complaint’s allegations when deciding whether to certify a class, the decision 

whether to certify a class is not based on a preliminary assessment of the ultimate merits of 

Plaintiffs’ claims. Rahim v. Sheahan, 2001 WL 1263493, at *10 (N.D. Ill. Oct. 19, 2001). 
6 

Rather, the preliminary inquiry is into the merits of those allegations that bear on the suitability 

of a case for class treatment under Rule 23(a) and (b). Id. To base class certification on a 

prediction of who will win the case would be at odds with Eisen v. Carlisle & Jacquelin, 417 

U.S. 156 (1974). Id. In the end, the court has “broad discretion to determine whether 

certification of a class-action lawsuit is appropriate.” Ervin v. OS Restaurant Servs., Inc., 632 

F.3d 971, 976 (7th Cir. 2011). 

III. ANALYSIS

 The issue in this case is whether JCPenney’s vacation policy, as applied to PTNMAs, 

violates the IWPCA. The IWPCA provides the following: 

Unless otherwise provided in a collective bargaining agreement, whenever a 

contract of employment or employment policy provides for paid vacations, and an 

employee resigns or is terminated without having taken all vacation time earned 

in accordance with such contract of employment or employment policy, the 

monetary equivalent of all earned vacation shall be paid to him or her as part of 

his or her final compensation at his or her final rate of pay and no employment 

contract or employment policy shall provide for forfeiture of earned vacation time 

upon separation. 

820 ILCS § 115/5. 

 The corresponding Illinois Department of Labor regulations provide the following: 

 (a) Whenever an employment contract or an employment policy provides for 

 paid vacation earned by length of service, vacation time is earned pro rata 

 as the employee renders service to the employer. 

 (b) Oral promises, handbooks, memoranda, and uniform patterns of practice 

 may create a duty to pay the monetary equivalent of earned vacation 

 . . . . 

 (e) An employment contract or an employer’s policy may require an 

 employee to take vacation by a certain date or lose the vacation, provided 

 that the employee is given a reasonable opportunity to take the vacation. 

 The employer must demonstrate that the employee had notice of the 

 contract or policy provision. 
7 

 (f) The Department recognizes policies under which: 

 (1) no vacation is earned during a limited period at the 

 commencement of employment. The employer must 

 demonstrate that the policy is not a subterfuge to avoid payment 

 of vacation actually earned by length of service and, in fact, no 

 vacation is implicitly earned or accrued during that period 

 . . . . 

 (3) the employer does not have separate arrangements for vacation 

 and sick leave. Under the policy, employees earn a certain 

 amount of “paid time off” that they can use for any purpose, 

 including vacation and sick leave. Because employees have an 

 absolute right to take this time off (unlike traditional sick leave 

 in which using sick leave is contingent upon illness), the 

 Department will treat “paid time off” as earned vacation days. 

56 Ill. Admin. Code § 300.520(a), (b), (e), & (f) 

 The “primary objective of the [IWPCA] is to ensure employees receive all earned 

benefits upon leaving their employer and the evil it seeks to remedy is the forfeiture of any of 

those benefits.” Swavely v. Freeway Ford Truck Sales, Inc., 700 N.E.2d 181, 189 (Ill. App. Ct. 

1998) (quoting Mueller v. Dept. of Labor, 543 N.E.2d 518, 521 (Ill. App. Ct. 1989)). Plaintiffs 

allege that the MTO policy is a “length of service” plan, which is a policy that rewards past 

service and is earned on a pro rata basis as the employee performs service for the employer. 

Arrez v. Kelly Services, Inc., 522 F.Supp.2d 997, 1002 (N.D. Ill. 2007), citing Golden Bear 

Family Restaurants, Inc. v. Murray, 494 N.E.2d 581 (Ill. App. Ct. 1986); Mueller Co. v. 

Department of Labor, 543 N.E.2d 518 (Ill. App. Ct. 1989). Accordingly, “an employer violates 

[the IWPCA] when it either fails to pay its former employees for their earned but unused 

vacation time or adopts a policy which provides that an employee loses earned but unused 

vacation time upon separation.” Prettyman v. Commonwealth Edison Co., 653 N.E.2d 65, 68 

(Ill. App. Ct. 1995). 
8 

 Plaintiffs argue that the MTO is unlawful because it conditions the payment of vacation 

benefits on anniversary dates and average hours worked in specific weeks with an impermissible 

waiting period, which is contrary to cases interpreting the IWCPA. More specifically, Plaintiffs 

argue that the MTO requirement that PTNMAs be employed by JCPenney on the first day of the 

thirteenth month after they have satisfied the 25 hour per week requirement in order to receive 

their first vacation deposit is contrary to the ruling in Golden Bear. 494 N.E.2d at 589 (“If some 

share of vacation pay is earned daily, it would be both inconsistent and inequitable to hold that 

employment on an arbitrary date is a condition precedent to the vesting of the right to such pay.”) 

Similarly, Plaintiffs also argue that the requirement of a 25 hour per week average is itself 

unlawful. Rosales v. The Placers, Ltd., d/b/a Randstad, 2011 WL 833359, at *3 (N.D. Ill. 2011) 

(“Because The Placer’s policy is a length-of-service plan where employees earn vacation as they 

work, the 1,500-hour requirement in a 52-week period merely serves to strip them of their earned 

vacation. As such, it is impermissible...Thus, the plaintiffs earned pro rata vacation pay.”) 

A. Rule 23(a) Class Certification Requirements

i. Class Definition

 Plaintiffs seek to represent the following class: All former PTMNAs employed by 

JCPenney in Illinois and terminated between January 1, 2004 through the date of the certification 

order. (Pl. Class Cert. Memo. at 7, ECF 173-1.) In denying class certification the first time, this 

court ruled that the class definition originally proposed by Plaintiffs constituted a “fail-safe” 

class. (Opinion at 9, ECF No. 158.) A “fail-safe” class is defined so that whether a person 

qualifies as a member depends on whether he or she has a valid claim, so that individuals with no 

claim are not bound by the judgment in the class action case. Messner, 669 F.3d at 825. Such a 

class definition is improper because a class member either wins or, by virtue of losing, is defined 
9 

out of the class and is therefore not bound by the judgment. Id. Plaintiffs’ current definition 

does not suffer from a “fail-safe” problem. Rather, JCPenney argues that the class definition is 

deficient because it includes PTNMAs who are subject to binding arbitration agreements and, 

therefore, must be excluded if the court certifies the class. This issue is addressed below. 

In addition, Plaintiffs’ class definition is ascertainable. N.B. v. Hamos, 26 F.Supp.3d 756, 

763 (N.D. Ill. 2014) (“[A]scertainability is really a threshold issue—if the class cannot be 

identified, then courts cannot reliably assess whether an action on behalf of that class satisfies the 

express requirements of Rule 23.”) Ascertainability entails two important elements: (1) the class 

must be defined with reference to objective criteria; and (2) there must be a reliable and 

administratively feasibly mechanism for determining whether putative class members fall within 

the class definition. Id. Here, Plaintiffs have satisfied both elements. There are three objective 

characteristics that define the class: (1) employed as a PTNMA; (2) the PTNMA’s employment 

was terminated; and (3) the termination occurred between January 1, 2004 through the date of 

this order. Additionally, JCPenney’s employment records and computer software database 

should include information to identify the class members. 

ii. Numerosity

 To meet the numerosity requirement, Plaintiffs must show that the proposed class is “so 

numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “[A] plaintiff 

does not need to demonstrate the exact number of class members as long as a conclusion is 

apparent from good-faith estimates.” Barragan v. Evanger’s Dog and Cat Food Co., 259 F.R.D. 

330, 333 (N.D. Ill. 2009). Although there is no bright-line rule for exactly how many members 

are enough to establish a class, “[g]enerally, where class members number at least 40, joinder is 

considered impracticable and numerosity is satisfied.” Oplchenski v. Parfums Givenchy, Inc., 
10 

254 F.R.D. 489, 495 (N.D. Ill. 2008); see also Pruitt v. City of Chicago, 472 F.3d 925, 926-27 

(7th Cir. 2006) (“Sometimes ‘even’ 40 plaintiffs would be unmanageable.”); Swanson v. Am. 

Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (holding that a proposed class of 

40 was “a sufficiently large group to satisfy Rule 23(a)”). 

 On March 17, 2014, JCPenney produced data that establishes that there are 

approximately 33,699 terminated PTNMAs; JCPenney does not dispute this figure. (Pl. Class 

Cert. Memo. at 12, ECF 173-1.) Numerosity is satisfied. 

iii. Commonality and Typicality

 Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” To 

establish commonality, the class representative must demonstrate that members of the class 

“have suffered the same injury,” which in this case is forfeiture of vacation time. Wal-Mart 

Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551 (2011). Commonality requires that all 

of the class members’ claims “depend upon a common contention” that is “of such a nature that 

it is capable of classwide resolution—which means that determination of its truth or falsity will 

resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. 

Additionally, “[a] plaintiff’s 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 v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998). Typicality is closely 

related to commonality. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). 

 Plaintiffs argue that the commonality requirement is satisfied as the claims of the class 

are based on JCPenney’s allegedly unlawful MTO vacation policy. Plaintiffs’ entire claim rests 

on the argument that the MTO policy, as it is applied to PTNMAs, is unlawful. Because every 

PTNMA is subject to the MTO policy, each class member is harmed by the allegedly unlawful 
11 

MTO policy. Moreover, there are two components of the MTO vacation policy, specifically, that 

are unlawful according to Plaintiffs: (1) the minimum average weekly hours that must be worked 

in order to be eligible for vacation benefits is improper; and (2) the period of time that must 

elapse before the vacation benefits vest is also improper (employment on the first day of the first 

month following the 52-week “look back” period). Garcia and Rednour represent each of these 

claims, respectively. 

 However, JCPenney argues that the claims of the named representatives are not typical of 

the claims of certain members of the class. More specifically, JCPenney argues that the claims 

of Garcia and Rednour are not typical of a certain subset of the proposed class—those PTNMAs 

who initially qualified for MTO benefits but subsequently lost eligibility (for example, by failing 

to work the necessary average number of weekly hours in their second or subsequent years of 

employment). (Def. Resp. at 15, ECF No. 174.) Because neither Plaintiff was affected by the 

MTO’s annual re-qualification requirement, JCPenney argues they have no standing to challenge 

it and lack commonality and typicality with any putative class members who lost eligibility for 

MTO benefits in subsequent years. 

 Typicality can exist “even if there are factual distinctions between the claims of the 

named plaintiffs and those of other class members.” Muro v. Target Corp., 580 F.3d 485, 492 

(7th Cir. 2009). “Typicality requires ‘enough congruence between the named representative’s 

claim and that of the unnamed members of the class to justify allowing the named party to 

litigate on behalf of the group.’” Rosen Family Chiropractic, S.C. v. Chi-Town Pizza on 

Division St., Inc., No. 11 C 6753, 2015 WL 638522, at *3 (N.D. Ill. Feb. 13, 2015) (quoting 

Spano v. The Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011)). JCPenney’s argument that 

Plaintiffs have no standing to challenge the MTO’s annual re-qualification requirement is 
12 

incorrect. The argument ignores the fact that if an employee did not satisfy the annual 

requalification requirement, then, by default, he was affected by the minimum weekly hours 

requirement, which is part of the case being made by Plaintiffs. 

iv. Adequacy

 Plaintiffs must show that the “representative parties will fairly and adequately protect the 

interests of the class.” Fed. R. Civ. P. 23(a)(4). There are typically two components to the 

adequacy analysis: (1) the adequacy of the named plaintiff’s counsel; and (2) the adequacy of 

representation provided in protecting the different, separate, and distinct interest of the class 

members. Retired Chicago Police Ass’n, 7 F.3d at 598; see also Spano, 633 F.3d at 586-87. In 

order to be an “adequate representative,” the named plaintiff must not have “antagonistic or 

conflicting claims.” Retired Chicago Police Ass’n, 7 F.3d at 598. The typicality and adequacy 

inquiries are linked: “typicality insures the class representative’s claims resemble the class’ 

claims to an extent that an adequate representation can be expected.” Ellis v. Elgin Riverboat 

Resort, 217 F.R.D. 415, 429 (N.D. Ill. 2003) (internal citation omitted). Here, the claims of the 

named plaintiffs are the same as those of the proposed class members— that Plaintiffs’ earned 

vacation time was forfeited by JCPenney’s unlawful MTO policy. In addition, there are no 

individual defenses or other claims that would impede the named plaintiffs’ ability to adequately 

represent the interest of the class members. 

 It should be noted here that JCPenney devotes a substantial portion of its response in 

opposition to class certification arguing that a full written version of the MTO policy was readily 

available to all PTNMAs. JCPenney’s argument is in response to assertions made by Plaintiffs 

that PTNMAs did not receive full copies of the MTO policy and instead received only 

summaries of it or references to it in other materials that were provided to newly hired PTNMAs. 
13 

JCPenney argues that Plaintiffs’ assertion that not all PTNMAs received fully copies of the MTO 

policy defeats certification as the case would turn on each PTNMA’s individual knowledge of 

the policy. However, as JCPenney notes in its response brief, “[a]s a legal matter, whether an 

associate chose to access the full statement of the MTO Policy online is irrelevant, as the 

controlling effect of the policy does not depend upon whether any particular associate took the 

time to review it as long as it was published and available.” (Def. Resp. at 11, ECF 174, citing 

Hurst v. Dep’t of Emp’t Sec., 913 N.E.2d 1067, 1072 (Ill. App. Ct. 2009)) (emphasis added). 

Therefore, the MTO policy applied to all PTNMAs, regardless of whether or not they reviewed 

it. 

 Finally, there is no reason to doubt that Plaintiffs’ counsel will adequately represent the 

interests of the class members. 

v. Arbitration Agreement

 According to JCPenney, all PTNMAs hired after July 17, 2009 were required to execute 

individual arbitration agreements (the “Arbitration Agreement”). (Def. Resp. at 16, ECF 174.) 

The Arbitration Agreement, under the heading titled “Binding Mandatory Arbitration 

Agreement,” states the following: 

[JCPenney] and I voluntarily agree to resolve disputes arising from, related to, or 

asserted after the termination of my employment through mandatory binding 

arbitration under the JCPenney Rules of Employment Arbitration. [JCPenney] 

and I voluntarily waive the right to resolve these disputes in courts. 

(Def. Resp. at 17, ECF 174, Ex. E at JCP Garcia 002438.) Moreover, JCPenney contends that 

the Arbitration Agreement expressly waives the right to participate in class actions. (Id.) (“[T]he 

Rules prohibit multi-party litigation such as class actions.”) Based on these provisions, 

JCPenney asserts that PTNMAs who signed documents containing these provisions must 
14 

challenge the MTO vacation policy in individual arbitration actions. In response, Plaintiffs argue 

that the arbitration issue is speculative, premature and does not defeat class certification. 

 As noted by the court in In re Evanston Northwestern Corp. Antitrust Litigation, 2013 

WL 6490152 (N.D. Ill. Dec. 10, 2013), there is no clear rule that requires motions to compel 

arbitration invariably to be decided after motions for class certification. Although JCPenney has 

not filed its motion to compel arbitration,4

 it effectively seeks to bar the alleged signatories to the 

Arbitration Agreement from joining the instant class. However, the sensible course in this case 

is to decide whether to certify the class without considering the possibility of arbitration and then 

allow JCPenney, if it so chooses, to file its motion to compel arbitration. Id. at *5 (citing 

Whittington v. Taco Bell of Am., Inc., 2011 WL 1772401, at *5 (D.Colo. May 10, 2011) (“The 

court finds no procedure or authority under 9 U.S.C. § 4 to compel putative class members, who 

are not currently before the court and, because a class has not yet been certified, have not even 

received notice of the litigation, to arbitrate their potential claims against Defendants.”); McLeod 

v. Ford Motor Co., at *3 (C.D.Cal. Apr. 14, 2005) (“Defendants' argument for a stay of these 

claims on the basis of putative class members' arbitration agreements is premature. Indeed, if a 

class is eventually certified on these claims, it possibly may not include any members who 

reached arbitration agreements with Defendants.”). If it turns out that the PTNMAs hired after 

July 17, 2009 must arbitrate, the court can always decertify, subclassify, or otherwise alter the 

class later. Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, U.A., 657 F.2d 

 

4

 It is important to note that by not having filed its motion to compel at this stage, JCPenney has not waived its right 

to enforce its arbitration agreement. In fact, JCPenney could not have filed its motion to compel arbitration directed 

at putative class members as they are not parties to the lawsuit. In re Evanston Northwestern Corp., 2013 WL 

6490152, at *4 (citing Devlin v. Scardelletti, 536 U.S. 1, 16 n.1 (Scalia, J., dissenting) (“Not even petitioner, 

however, is willing to advance the novel and surely erroneous argument that a nonnamed class member is a party to 

the class-action litigation before the class is certified.”) 
15 

890, 896 (7th Cir. 1981); Messner, 669 F.3d at 826. Therefore, the arbitration agreement is not 

grounds for denying class certification. 

B. Rule 23(b) Class Certification Requirements

 In addition to meeting the four Rule 23(a) factors above, plaintiffs must also demonstrate 

that their proposed class meets the requirements of Rule 23(b)(3), which requires Plaintiffs to 

demonstrate that “questions of law or fact common to class members predominate over any 

questions affecting only individual members, and that a class action is superior to other methods 

for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In applying 

these standards, courts focus on “the substantive elements of plaintiffs’ cause of action and 

inquire into the proof necessary for the various elements.” Simer v. Rios, 661 F.2d 655, 672 (7th 

Cir. 1981). The Supreme Court has held that “the predominance criterion is far more 

demanding” than “Rule 23(a)’s commonality requirement.” Anchem Prods., Inc. v. Windsor, 

521 U.S. 591, 624 (1997). The court thus must compare the role of common issues of law and 

fact with the role of individual issues. Messner, 669 F.3d at 814. Rule 23(b)(3)'s predominance 

requirement is satisfied when “common questions represent a significant aspect of [a] case and ... 

can be resolved for all members of [a] class in a single adjudication.” Id., quoting 7AA Wright 

& Miller, Federal Practice & Procedure § 1778 (3d ed. 2011). More simply, common questions 

can predominate if a “common nucleus of operative facts and issues” underlies the claims 

brought by the proposed class. In re Nassau County Strip Search Cases, 461 F.3d 219, 228 (2d 

Cir.2006), quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir.2000). 

However, individual questions need not be absent. Messner, 699 F.3d at 814. The rule requires 

only that those questions not predominate over the common questions affecting the class as a 

whole. Id. 
16 

 Plaintiffs argue that Rule 23(b)(3)’s predominance requirement is satisfied because the 

legality of the MTO vacation policy is the entire case. JCPenney has not specifically addressed 

this issue. Instead, JCPenney’s argument against predominance is premised on the notion that 

different understandings of the MTO vacation policy by the putative class members defeat 

predominance. However, as explained above, the parties do not dispute that the MTO policy was 

applied universally to all PTNMAs, and that the policy did not change in any substantive way 

during the class period. Therefore, a particular PTNMA’s understanding of the MTO policy is 

inconsequential—he or she was bound to it either way. Rather, the question that must be 

resolved is whether the average hourly requirement and mandatory vesting period were lawful. 

Chander v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 310 (“Both TILA and the Consumer 

Fraud Act claims lend themselves readily to the finding that a common issue predominates over 

individual issues, as the principal question presented is whether the disclosure provisions of 

Southwest's standard retail installment contract provided to Chandler and all the proposed class 

members violated TILA and/or the Consumer Fraud Act.”) Whether the MTO vacation policy 

violates the IWPCA predominates over any questions affecting only individual members. 

Further, the Seventh Circuit has long held that individualized damages do not defeat the 

predominance prong of Rule 23(b)(3). Butler v. Sears, Roebuck and Co., 727 F.3d 796, 801 (7th 

Cir. 2013). 

 To satisfy Rule 23(b)(3), Plaintiffs must also show that “a class action is superior to other 

available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 

23(b)(3). JCPenney’s main argument against superiority is that the Arbitration Agreement 

provides a superior method for adjudication. As noted, the court declines to rule on the 
17 

Arbitration Agreement at this time, but JCPenney may raise the issue again after the class is 

certified. The superiority requirement is satisfied. 

C. Supplemental Authority

 On December 16, 2015, JCPenney filed a notice of supplemental authority (“notice”) 

with the court. (Supp. Auth., ECF No. 181.) Attached to the notice was a decision by the 

Southern District of California to decertify the class in Tschudy v. J.C. Penney Corporation, Inc., 

No. 11 C 1011, 2015 WL 8484530 (S.D. Cal. Dec. 9, 2015). Although not made clear by 

JCPenney in its notice, the court assumes that JCPenney provided the decision to bolster its 

argument against class certification. However, the ruling in Tschudy does not affect this court’s 

decision. First, Tschudy recognized that typicality and adequacy under Rule 23(a)(3) and (4) 

were not satisfied by including both PTNMAs and Management Associates (“MA”) in the class 

definition. Id. at *3. This court came to the same conclusion in its March 31, 2015 ruling. 

(Opinion at 17, ECF No. 158.) The court in Tschudy also found that current employees of 

JCPenney could not be class members, Tschudy, 2015 WL 8484530 at *3, consistent with the 

ruling of this court. (Opinion at 11, ECF No. 158.) Finally, Tschudy ruled that putative class 

members who signed arbitration agreements upon being hired cannot be included in the class. 

Tschudy, 2015 WL 8484530 at *3-4. At this point, no motion to compel arbitration has been 

filed. 

 Plaintiffs have demonstrated that their proposed class meets the numerosity, 

commonality, typicality, and adequacy requirements of Rule 23(a) and the predominance and 

superiority requirements of Rule 23(b)(3). Their motion to certify a class for IWPCA claims is 

granted. 

III. CONCLUSION 
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 For the foregoing reasons, Plaintiffs’ motion is granted. Plaintiffs’ IWPCA claims are 

certified as a class action. The parties are ordered to meet and confer regarding the names, dates 

of employment, and other pertinent information for all persons in the class defined by plaintiffs. 

The parties are also ordered to meet and confer regarding a mutually agreeable notice that is to 

be submitted to the court on or before April 5, 2016. The matter is set for status on April 6, 2016 

at 9:30 a.m. 

Date: March 8, 2016 /s/ 

 Joan B. Gottschall 

 United States District Judge