Plaintiffs Whiteside, Crooks, Reed, and Rolland did not file individual Charges of
Discrimination with the EEOC. With respect to these plaintiffs, the alleged illegal behavior
seems to have been initiated in 1994, when GES purchased the various predecessor companies at
which the plaintiffs were employed. These plaintiffs allege that they were subject to a hostile
work environment and discrimination based on race, including retaliation for complaining about
the unlawful conduct. Specifically, these plaintiffs allege they were denied promotions,
compensation, overtime work, vacation, pension and insurance benefits and membership in the
Union, which resulted in lower pay and frequent layoffs.

DISCUSSION
A. Laches

Defendants first move for dismissal of the Complaint in its entirety based on the doctrine
of laches. Laches is an affirmative defense. See Hawxhurst v. Pettibone Corp., 40 F.3d 175, 182
n.5 (7th Cir. 1994). It may be applicable when (1) a plaintiff has unreasonably and inexcusably
delayed his claim and (2) the defendant would suffer material prejudice in allowing the claim to
proceed. Jeffries v. Chicago Transit Auth., 770 F.2d 676, 679 (7th Cir. 1985). The Seventh
Circuit has noted that laches is generally a question of fact ill-suited for resolution on a motion
for summary judgment, much less a motion to dismiss. Jd. at 679 (“Laches is generally a factual
question not subject to summary judgment.”). Defendants argue that laches may be used to
dismiss plaintiffs’ Complaint in this case because plaintiffs have pled themselves out of court
and the facts supporting the affirmative defense are apparent from the face of plaintiffs’
Complaint. See, e.g., Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.

2004) (“Only when the plaintiff pleads itself out of court—that is, admits all the ingredients of an


the person’s absence will be adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.

Defendants argue that the Union is a necessary party because complete relief cannot be
afforded among the parties in its absence and because GES might be subject to multiple or
inconsistent obligations if the Union is not joined. See Fed. R. Civ. P. 19(b)(a)(1) & (2)(ii).
Defendants note that Brown and Rockett, who are currently members of the Union, are subject to
the collective bargaining agreement (“CBA”) between GES and the Union. Because, defendants
argue, the seniority system that forms the basis of plaintiffs’ claims is governed by the CBA, the
Union must be joined in the Title VII claims. Defendants argue that the relief requested by
plaintiffs, if granted, will affect the rights of the Union under the CBA. Moreover, defendants
state that any relief granted under Title VII will not be binding on the Union and may result in
conflicting obligations for GES.

As for the Union’s ability to be joined in this action, defendants argue that the Union
cannot be joined because Rockett and Brown failed to name the Union in their respective EEOC
charges. According to defendants, the Union cannot now be joined because plaintiffs failed to
exhaust their administrative remedies under Title VII with regard to the Union. Finally,
regarding the issue of indispensability, defendants argue that the Union is indispensable to this
suit insofar as relief could not be framed without the Union, any judgment granting plaintiffs’
proposed injunctive relief would require the Union to implement certain changes, and any
judgment without the presence of the Union would be inadequate because the issue could not be

conclusively litigated.


Cir, 1996). A court may consider a claim brought in a complaint but not raised in an EEOC
charge if both “(1) the claim is like or reasonably related to the EEOC charges, and (2) the claim
in the complaint could reasonably develop from the EEOC investigation into the original
charges.” Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995).

In the EEOC charges filed by Brown and Rockett, they alleged a denial of seniority in
1995 and, based on such denial, increases in being laid-off and reduction in vacation time,
overtime and work assignments.- Similarly, plaintiff Joncek alleges he was denied seniority,
benefits, wages and membership in the Union in 1990. Plaintiffs’ Complaint contains further
allegations, including (1) that they were denied/prevented from applying for promotions; (2) that
they were denied transfers and assignments; (3) that they were subject to a hostile work
environment based on race; and (4) that they were discriminated against with respect to training,
advancement and disciplinary action.

Regarding the denial/prevention of promotions, transfers and assignments, the court
believes that these claims bear a like or reasonable relation to the claims in plaintiffs’ EEOC
charges that they were denied seniority. Seniority is very likely an overriding factor in obtaining
promotions, transfers or assignments and, without seniority, it is presumable that plaintiffs would
not receive these desired job changes. Moreover, the court is convinced that the claims regarding
these alleged denials of promotions, transfers and assignments could have reasonably developed
from an EEOC investigation into the original charges concerning seniority.

As for the claims that plaintiffs were subjected to a hostile work environment and were
discriminated against with respect to training, however, these claims are not reasonably related to

the denial of seniority. See, ¢.g., Oates v. Discovery Zone, 116 F.3d 1161, 1168 (7th Cir. 1997)


impenetrable defense-may a complaint that otherwise states a claim be dismissed under Rule
12(b)(6).”).

While perhaps defendants could make out part (1) of the above laches test based only on
plaintiffs’ allegations in their Complaint, the court declines to consider such argument because,
clearly, part (2) of the above test cannot be satisfied by reference only to the Complaint.
Defendants state that they have been prejudiced by plaintiffs’ alleged inexcusable delay because
they may be exposed to a disproportionately higher amount of back pay, records have been lost or
destroyed and witnesses with knowledge of the events have passed away, changed jobs, retired,
or their memories have faded. Plaintiffs’ Complaint does not address any of these issues.
Defendants may be able to establish laches at trial or on a motion for summary judgment, but
plaintiffs’ Complaint on its face does not establish that this affirmative defense is applicable at
this stage of the case. Accordingly, defendants’ motion on this ground is denied.

B. EEOC Charges

Defendants next move to dismiss portions of the Title VII claims on grounds that
plaintiffs’ Complaint contains allegations not included in the charges filed with the EEOC.
Defendants’ motion in this regard takes two parts. First, they allege that, with the exception of
the allegations related to seniority, plaintiffs’ Title VII allegations are outside the scope of their
respective EEOC charges. Second, defendants maintain that the class-wide allegations of race
discrimination should be dismissed because the plaintiffs’ EEOC charges contain no class-wide
allegations.

Generally, to bring a claim under Title VII in federal court a plaintiff must have first

included that claim in an EEOC charge. E.g., McKenzie v. Illinois DOT, 92 F.3d 473, 481 (7th



involved a scenario where a private plaintiff was attempting to expand an individual charge into a
class action. Jd. at 935. Since this is not an action filed by the EEOC, Dial Corp. is unhelpful.
Instead, Schnellbaecher, which is binding precedent, is applicable, and since defendants did not
receive notice of the class-wide allegations by plaintiff during the EEOC review, the class-wide
allegations with respect to the Title VII claims must be stricken.
Cc. Necessary and Indispensable Party

Defendants next argue that all the Title VII claims should be dismissed because the Union
is a necessary party that cannot be joined. The Title VII claims are Counts II, [V and V. With
the exception of Count V, these claims are not brought against and do not include the Union?

Under Federal Rule of Civil Procedure 12(b)(7), a claim may be dismissed for “failure to
join a party under Rule 19.” The court’s first task in a Rule 19 analysis is to determine whether
the Union is a necessary party. See United States ex rel. Hall v. Tribal Dey. Corp., 100 F.3d 476,
478 (7th Cir. 1996). If the Union is in fact a necessary party, and if it cannot be joined in this
action, then the court must determine “whether in equity and good conscience the action should
proceed among the parties before it, or should be dismissed, the absent person being thus
regarded as indispensable.” Fed. R. Civ. P. 19(b). To “help the court navigate the path of equity
and good conscience,” id. at 479, Rule 19(b) lists the following four factors:

first, to what extent a judgment rendered in the person’s absence might be

prejudicial to the person or those already parties; second, the extent to which, by

protective provisions in the judgment, by the shaping of relief, or other measures,
the prejudice can be lessened or avoided; third, whether a judgment rendered in

3Count V is a claim for retaliation against both GES and the Union. The plaintiffs allege that they have
filed a charge of discrimination against both GES and the Union with regard to the retaliation allegations. (Sec. Am.
Compl. § 114.)


‘Minute Order Form (06/97)

. United States District Court, Northern District of Mlinois
Name of Assigned Judge Joan H. Lefkow Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 3921 DATE 8/24/2004
CASE Brown vs. GES Exposition Services, Inc.
TITLE
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
a) imi} Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) Qo Ruling/Hearing on set for at
(5) a Status hearing{held/continued to] [set for/re-set for] on set for at
(6) im) Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a) Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CO Local Rule 41.1 OFRCP41(a)(1) 0 FRCP41(a)(2).

(0) «oi [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order, defendants’ motion to dismiss [25-1] is granted in part and denied in

part. Defendants shall answer the remaining portions of the Second Amended Complaint by 9/1/04,

Status hearing is set for 9/27/04 at 9:30 a.m.
(1) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.

oS | Notices maited by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
MD deputy's
initials

O18 Nd

3

umber of notices

Aug 26 2004

date docketed

SK

docketing deputy initials

sr2ar2004

date mailed notice

MD

central Clerk’s Office

sailing deputy initials

het


427 F.2d at 488-89; but see 427 F.2d at 491 (Fairchild, J. concurring) (“In my opinion, Rule
19(b) F.R.C.P. does not authorize dismissal of an otherwise proper Title VII action against an
employer on account of the absence of the union and other employees.”).

The court agrees with defendants that the Union is a necessary party to the Title VII
claims insofar as the seniority system, which forms the basis for plaintiffs’ claims, is governed by
the CBA. Relief granted under the Title VII claims will affect the rights of the Union under the
CBA and, because the relief granted under the Title VII claims will not be binding on the Union,
there is the possibility of conflicting obligations to GES. See Hardy, 398 F. Supp. at 67 (“The
injunctive relief sought by plaintiff... would certainly affect the interest of the union and would
create a situation in which the defendant company’s obligations under the collective bargaining
agreement with the union might be substantially inconsistent with the obligations imposed upon
it by the Court as a result of this lawsuit.”).

However, the court is not convinced that the Union is unable to be joined in this action.
In EEOC v. Rockwell Int'l Corp., 23 F. Supp. 2d 892 (N.D. Ill. 1998), Judge Gettlemen
addressed a similar issue and allowed a defendant union to be joined even though that union was
not named in the underlying EEOC charge. As Judge Gettlemen noted,

plaintiff has not charged the Unions with substantive liability under the ADA, but

has named them only as parties need[ed] to effect complete relief pursuant to Rule

19(a). The purpose of the EEOC charging requirement is to notify the charged

party of the violation and to bring the party before the EEOC to effectuate the

Act’s primary goal of securing voluntary compliance with the law. Because the

Unions are not charged with violating the law, neither of these purposes would be

advanced by requiring a claimant to name a relief defendant in the initial charge.

See EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086, 1095-96 (6th Cir.

1974). The proper course is to add the Unions under Rule 19(a). Jd.

23 F. Supp. 2d at 894,

11


In support of their argument, defendants point to Waters v. Wisconsin Steel Works of Int’l
Harvester Co., 301 F, Supp. 663 (N.D. Ill 1969), rev’d in part, 427 F.2d 476 (7th Cir. 1970). In
Waters, the plaintiffs alleged that the defendants (an employer defendant and a union defendant)
engaged in a racially discriminatory seniority system in violation of both Title VII and § 1981.
Id. at 665. The union defendant moved to dismiss the complaint because it was not named in the
underlying charge before the EEOC. Jd. at 666. The court noted that the plaintiffs sought
injunctive relief including, among other things, prohibiting enforcement of existing seniority
provisions in the collective bargaining agreement. Jd. Under such factual circumstances the
court explained that the union defendant could be adversely affected and was required to be
before the court. Jd. Moreover, the court held that since the union defendant was never named in
the EEOC charge, the claims against the union defendant had to be dismissed. Id. at 667. Since
the union defendant was a necessary and indispensable party “needed for just adjudication,” the
court also dismissed the claim against the employer defendant. Id; see also, Hardy v. Bucyrus-
Erie Co., 398 F. Supp. 64 (E.D. Wis. 1975) (noting that union was a necessary and indispensable
party to a Title VII suit where plaintiff sought injunctive relief to revamp existing programs and
practices contracted by the union and the union could not be joined because no charge of
discrimination was ever filed).

On appeal in Waters, the Seventh Circuit reversed on other grounds and, in regard to the
argument that the union was a necessary and indispensable party to the Title VII claims, noted
that “[s]ince the relief available to the plaintiffs under section 1981 is potentially as broad as that
available in their action against [the employer defendant] under Title VII, . .. we need not

consider the district court’s ruling concerning the applicability of Rule 19, Fed.R.Civ. P.”

10


(harassment claim in complaint failed because EEOC charge contained only claims of
discriminatory termination, retaliation and intentional infliction of emotional distress); Kirk v.
Federal Prop. Mgmt. Co., 22 F.3d 135, 139 (7th Cir. 1994) (failure to train claim was not
reasonably related to failure to promote claim contained in EEOC charge); Weiss v. Coca-Cola
Bottling Co., 990 F.2d 333, 338 (7th Cir. 1993) (claim of discrimination with respect to job
transfers failed because EEOC charges contained allegations of discriminatory training and
discharge and sexual harassment); Karella v. Ameritech Info. Sys. Inc., 953 F. Supp. 945, 950
(N.D. Ill. 1996) (no reasonable relation between claim of disability harassment and disability
discrimination). Accordingly, because the hostile work environment and failure to train claims
contained in Plaintiffs’ Complaint are outside the scope of their EEOC charges, such claims are
dismissed.

Defendants’ next argument is that plaintiffs’ class-wide allegations of discrimination
must be dismissed because plaintiffs alleged only individual instances of discrimination in their
EEOC charges. Defendants rely on Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127-
28 (7th Cir. 1989), where the Seventh Circuit upheld dismissal of the plaintiffs’ class-wide
allegations because the plaintiffs only alleged individual discrimination in their EEOC charges.
Plaintiffs respond by pointing to EEOC v. Dial Corp., 156 F. Supp. 2d 926, 935 (N.D. Ill. 2001),
where the court allowed the EEOC to bring a claim alleging that the defendant had engaged in a
pattern or practice of tolerating sexual harassment based initially on only a single charge of
harassment filed by one employee. Jd. at 937. Plaintiffs do not address the rather obvious
distinguishing factor of the Dial Corp. case, namely that it was brought by the EEOC and not by

individuals. Indeed, the court in Dial Corp. distinguished Schnellbaecher on grounds that it


predecessor of GES in 1976 and 1981 respectively and were denied membership in the Union.
Because they were not Union members, Brown and Rockett were deprived of wages, benefits,
and insurance available to white Union members. After 1994, both Brown and Rockett were
admitted to the Union, but their hire dates were changed to February 1994, and they lost the
privileges of seniority, including reduced vacation time, less overtime, work assignments that
required fewer hours and, therefore, lower pay and frequent layoffs. Brown alleges that in 1996
he asked the owner of United Exposition, the predecessor of GES, why he and other black
employees were being denied benefits and compensation and was told that, at the direction of the
Union, United made payments for the dues of all African-American employees to keep them out
of the Union. In March 1998, both Brown and Rockett filed Charges of Discrimination against
GES with the EEOC, Each received a right to sue letter in 2003.

Joncek, who is white, was hired in 1990 by Andrews Bartlett, which was purchased by
GES in 1994. From 1990 to 1995, Joncek was denied Union membership and deprived of the
benefits therefrom, including better wages, benefits and insurance. After inquiring why he and
his black colieagues were being denied the same benefits and compensation as other white
employees, Joncek was told by GES officials, including McGarvey, that he would not be given
seniority because if he was, GES would have to give seniority to the black employees as well.
Because of his loss of seniority, Joncek has been laid off on a regular basis, denied vacation time,
insurance coverage, pension benefits and compensation. In August 2003, Joncek filed a Charge
of Discrimination against GES and the Union with the EEOC. In November 2003, a right to sue

letter was issued.


compensatory damages and injunctive relief. Before the court is the defendants’ motion to
dismiss plaintiffs’ Complaint? Defendants first move to dismiss the Complaint in its entirety on
grounds that the doctrine of laches is applicable and bars plaintiffs’ claims. In the alternative,
defendants move to dismiss the Title VII claims because (1) plaintiffs’ claims contain allegations
beyond the scope of the Equal Employment Opportunity Commission (“EEOC”) charges that
were filed and (2) plaintiffs failed to join the Union as a necessary and indispensable party. For
the reasons set forth below, defendants’ motion is granted in part and denied in part.
MOTION TO DISMISS STANDARDS

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint for
failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it
appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sanville v.
McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). In ruling on a motion to dismiss, the court
accepts as true all well-pleaded facts alleged in the complaint, and it draws all reasonable
inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir.
2002).

ALLEGATIONS OF THE COMPLAINT
According to plaintiffs’ Second Amended Complaint, which is taken as true for purposes

of this motion, Brown and Rockett, who are African-American, were initially hired by the

2The motion was filed by defendants GES and McGarvey. Defendants Union, Hogan, Faraj, and Gilmore
have requested leave to join in the motion to dismiss. Such leave is granted and the motion to dismiss is considered
as if filed by all defendants.



UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION OOCKETEL

AUG 2.6 2004

)
CHARLES BROWN, BILLY ROCKETT, and ) oe

ROBERT JONCEK, HERBERT WHITESIDE, )
CLEARCHIE CROOKS, LUTHER REED,
JOHNNIE ROLLAND, and all others similarly
situated,

~

Plaintiffs,

No. 03 C 3921
Judge Joan H. Lefkow

vs.

subsidiary, affiliate and parent companies,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 714, ROBERT
HOGAN, WALTER FAREJ, JOHN
GILMORE, T.J. MCGARVEY,

)

)

)

)

)

GES EXPOSITION SERVICES, INC., its )
)

)

)

)

)

)

Defendants. )
)

MEMORANDUM OPINION AND ORDER
Plaintiffs, Charles Brown, Billy Rockett, Robert Joncek, Herbert Whiteside, Clearchie
Crooks, Luther Reed, and Johnnie Rolland, filed this putative class action against defendants,
GES Exposition Services, Inc. (“GES”), the International Brotherhood of Teamsters, Local 714
(“Union”), Robert Hogan (“Hogan”), Walter Farej (“Farej”), John Gilmore (“Gilmore”) and T.J.
McGarvey (“McGarvey”) (collectively “defendants”), alleging discrimination, retaliation and
harassment in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. §§ 2000¢ et seg.! Defendants’ requested relief includes front and back pay,

‘Count I is brought by all plaintiffs except Joncek against all defendants pursuant to 42 U.S.C. § 1981,
Count II is a Title VII discrimination claim brought by Brown and Rockett against only GES. Count III] is brought
by Joncek against all defendants pursuant to § 1981. Count IV is a Title VII discrimination claim brought by Joncek
against GES only. Count V is a Title VII retaliation claim brought by Joncek against GES and the Union.

4


A similar approach can be employed in this case. With the exception of Count V (for
which a charge of discrimination was filed against the Union), the Title VII claims (Counts I and
IV) do not seek substantive liability against the Union. Thus, the Union would be joined in those
Counts not because of any of its actions but, instead, because it is needed to effectuate complete
relief among the parties. Since the Union is not charged with violating Title VII in these Counts,
the Rockwell case is persuasive that the purpose for requiring a claimant to name a defendant in a
charge is not advanced. Furthermore, this court does not believe that this case is different
because plaintiffs have alleged that the Union has acted in violation of § 1981 in other portions
of the Complaint. The fact remains that the Union is not named as a defendant in the Count II
and IV Title VII claims and, if added to those claims, would be only so as to ensure that full
relief could be afforded to the existing parties and not because of any substantive liability.
Accordingly, the Union is added to Counts II and IV as a party needed to effectuate complete
relief. Defendants’ motion to dismiss for failure to join an indispensable party is denied.

CONCLUSION

For the reasons stated above, defendants’ motion to dismiss is granted in part and denied
in part [#25]. Defendants shall answer the remaining portions of the Second Amended
Complaint by September 1, 2004. This case will be called for status on September 27, 2004 at

9:30 a.m.

Enter: Opn-~ / t-Gfe fb

[OAN HUMPHREY LEFKOW
United States District Judge

Dated: August 24, 2004

12