United States Court of Appeals For the Seventh Circuit
Employment – discrimination — class actions
In a class action discrimination suit against a construction company, at which multiple managers exercise independent discretion, conditions at different sites do not present a common question.
“The sort of statistical evidence that plaintiffs present has the same problem as the statistical evidence in Wal-Mart: it begs the question. Plaintiffs’ expert, Stan V. Smith, assumed that the appropriate unit of analysis is all of Walsh’s Chicago-area sites. He did not try to demonstrate that proposition. If Walsh had 25 superintendents, 5 of whom discriminated in awarding overtime, aggregate data would show that black workers did worse than white workers—but that result would not imply that all 25 superintendents behaved similarly, so it would not demonstrate commonality. Smith’s analysis has additional problems. For example, he did not attempt to control for variables other than race. Walsh’s collective bargaining agreements require it to offer overtime opportunities first to union stewards. If these stewards are more likely to be white than other journeymen, that could explain the data without any need to impute discrimination to Walsh’s superintendents. Smith did not attempt to determine the effect of the stewards-first clause. We need not determine whether Smith’s study should have been excluded under Fed. R. Evid. 702. It is enough to say that it does not show any common issue that would allow a multi-site class.”
12-2205 Bolden v. Walsh Construction Co.
Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Easterbrook, J.