Eagle v. Vee-Pak, Inc.

JOE EAGLE, MICHAEL KEYS, JAMES ZOLLICOFFER, and EVAN FRANKLIN on behalf of themselves and other similarly situated individuals, Plaintiffs, v. VEE PAK, INC., VEE PAK, LLC d/b/a VOYANT BEAUTY, and STAFFING NETWORK HOLDINGS, LLC, Defendants.

No. 12-CV-09672

United States District Court, N.D. Illinois, Eastern Division

February 21, 2023

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

The claim in this case is straightforward. The plaintiffs, who are African American, allege that Vee Pak, a beauty supply distributor, had a policy that favored hiring Latino workers over African Americans and instructed several staffing agencies to implement that policy when filling temporary positions in its warehouse. They have brought this putative class action, individually and on behalf of other African Americans similarly denied work, against Vee Pak and three staffing agencies that allegedly implemented Vee Pak's discriminatory policy. Two of the staffing agencies have settled the claims against them; Vee Pak and the third staffing agency, Staffing Network, remain in the case. The plaintiffs have moved to certify a class of African American workers who sought, but were denied, work assignments at the three staffing agencies from which they could have been referred to Vee Pak between 2011 and 2015. Vee Pak and Staffing Network oppose certification and have also moved to bar the testimony of Dr. Mark Bendick, a labor economist on whose proffered opinions the plaintiffs rely in their classcertification motion.

Because Bendick's report satisfies the admissibility standards articulated in Daubert and Rule 702, the Court denies Defendants' motion to strike Bendick's testimony. The Court finds that the defendants' objections to Bendick's report implicate its probative value, rather than its admissibility. The Court further finds that plaintiffs' proposed class satisfies the criteria of Federal Rule of Civil Procedure Rule 23. A class action is the most efficient way to determine whether a company-wide discriminatory policy caused the defendants to disfavor African Americans. Accordingly, the Court certifies the class with an amended definition.

BACKGROUND

A. Vee Pak Temporary Staffing Procedures

Vee Pak,^[1] a company located in Countryside and Hodgkins, Illinois operates manufacturing facilities in which workers fill and cap bottles and tubes for personal-care and drug companies. Due to cyclical demand for its clients' products, Vee Pak hired temporary workers through staffing agencies Staffing Network Holdings LLC (“Staffing Network”) Personnel Staffing Group, LLC d/b/a Most Valuable Personnel (“MVP”), and Alternative Staffing, Inc. d/b/a ASI (“ASI”) to fulfill client orders during the class period.^[2]

During the class period, Vee Pak laborers worked in two shifts, one running from 5:30 a.m. to 3:30 or 4:30 p.m. and one running from 3:30 or 4:30 p.m. to midnight or 2:00 a.m. Nearly all of Vee Pak's temporary workers were assigned to Vee Pak's Countryside manufacturing facility in the far western side of the Chicago metropolitan area. Some staffing-agency employees testified that workers would sometimes decline assignments to Vee Pak. Workers' hesitance was due in part to the time and difficulty required to travel to Vee Pak from Chicago, the low wages, and the grueling nature of the temp positions, which required lifting and standing for long hours.

The parties dispute the level of skills and experience that Vee Pak required of its workers. According to testimony that plaintiffs cite, Vee Pak's production-floor jobs required no formal training or education. All necessary skills could be learned on the job through training. Vee Pak did not require its employees to submit criminal background checks, credit tests, or drug tests. For its part, Vee Pak presents testimony that its managers instructed staffing-agency workers to send experienced, or “regular” workers-workers who had consistently worked at Vee Pak in the past-to help run the production lines. These workers, according to Vee Pak, knew how to do different jobs more efficiently and effectively without supervision, and reduced Vee Pak's availability for less-experienced workers. According to testimony from a Staffing Network employee, dispatchers assigned workers who had prior warehouse experience to Vee Pak, worrying that employees who had never worked in a warehouse could not handle long, demanding shifts.

Plaintiffs present evidence that Vee Pak used the term “regular” worker as a code word for its preferred type of worker: one who is Latino, rather than African American. Some staffingagency management understood “regular” to mean non-African American. According to plaintiffs, Vee Pak kept a list of “regulars” that it preferred to be assigned to shifts. As certain staffing-agency employees testified, almost all the workers on Vee Pak's list of “regulars” happened to be Latino. Vee Pak's Executive Director, Tom Zwartz, however, stated in an email that Vee Pak “do[es] not order specific individuals, and . . . do[es] not provide long term assignments to specific individuals,” but instead requests individuals “with previous experience at Vee Pak.” Dec. 2, 2015 Email from Tom Zwartz, ECF No. 585-2. Zwartz later confirmed that his email concerning Vee Pak's assignments of specific individuals reflected official policy.

Unlike the disagreement about worker qualifications and eligibility, the parties dispute little about the logistics of scheduling. All three staffing agencies referred workers to Vee Pak in a similar manner. Vee Pak's master schedulers determined the number of laborers needed each shift, and Vee Pak would communicate those needs to the staffing companies each day. Until 2013, Vee Pak management called dispatchers directly to communicate staffing needs. After 2013, Vee Pak submitted its orders by email. Workers registered for work at the staffing agencies using sign-in sheets. At Staffing Network and ASI, workers would also fill out an application. Dispatchers then assigned the workers to a client company either in person or by calling the workers directly. If a position was available, then a worker would be assigned to a client company like Vee Pak.

During some portion of the class period, some staffing agencies would transport workers to client companies, including to Vee Pak, by van, either directly from the workers' homes or from the staffing agencies. Some workers had to travel directly to the client using their own vehicles or via public transportation. The parties dispute the extent and availability of van transportation at each agency.

As detailed below, multiple staffing-agency employees testified that they were given explicit instructions not to assign African American workers to Vee Pak. Some workers who did receive assignments initially, moreover, were turned away at Vee Pak's door. When workers could not comply with the demands of Vee Pak's manufacturing job or did not follow the instructions included with Vee Pak's training materials, they were designated “Do Not Return,” or “DNR.” Some testifying staffing-agency employees observed that workers whom Vee Pak designated DNR were disproportionately African American. Other staffing-agency employees testified that Vee Pak turned away African American laborers that the staffing agency brought to Vee Pak.

B. Testimony of MVP Employees

Until 2015, MVP operated an office in Cicero, from which it would staff temporary workers to clients, including Vee Pak. MVP referred workers to Vee Pak from 2008 until October 2013.

MVP dispatcher Yessenia Saucedo testified about Vee Pak's and MVP's hiring practices. According to Saucedo, her supervisors and other dispatchers instructed her not to send African American workers to Vee Pak because Vee Pak would send them back.

Other MVP employees testified that MVP also generally avoided referring African American workers to various non-Vee Pak clients. MVP supervisors told dispatchers and onsite employees not to send African American workers to certain clients, sometimes openly, and sometimes using certain code words, like “bilingual” to refer to Latinos and “lazy” or “not bilingual” to refer to African Americans. MVP dispatcher Saucedo testified that, following supervisors' instructions, she falsely told African Americans that MVP was not giving out applications, while making applications available to Latino workers. Another dispatcher, Pamela Sanchez, testified that she was similarly trained to withhold applications from African American workers.

C. Testimony of Staffing Network Employees

Staffing Network provided workers from its Cicero and Burbank offices to Vee Pak from 2009 to 2015. Most of these workers were referred from Staffing Network's Burbank office, the location of which changed during the class period. According to Staffing Network employees, Vee Pak's needs for workers fluctuated and was based on the type of work available at the time. Depending on the number of workers Vee Pak needed, Staffing Network would send workers from Vee Pak's list of “regulars,” then “back up” workers (i.e., workers ones that had previously worked at Vee Pak but not on the “regulars” list), then new applicants, in that order.

Staffing Network branch manager Judy Cruz testified that Staffing Network managers instructed her to refer only Latino workers to Vee Pak when she started working there in 2000. Although Cruz testified that she did not follow those instructions another Staffing Network employee, Paloma Martinez, testified that Cruz condoned the policy after the employee and African American workers themselves raised concerns about Vee Pak's racial discrimination. Another Staffing Network witness, who was the branch manager before...