By Kathleen Kapusta, J.D.
Denying Ford Motor Company’s motion to strike the class claims of more than 30 plaintiffs who alleged that there are more than 1000 women working at two Chicago Ford plants who have been subjected to or work in the same hostile environment as the named plaintiffs, a federal district court in Illinois found the automaker’s motion was premature. The appropriate remedy for alleging—as Ford contended—a “fail-safe” class is not to strike the claims but to refine the class definition, explained the court. The court also denied in part Ford’s partial motion to dismiss the 123-count complaint (Van v. Ford Motor Co.
, March 28, 2016, Coleman, S.).
Male employees and supervisors at the two Chicago plants routinely make discriminatory and harassing remarks and gestures based on race and gender towards female Ford employees and the company takes no action, the complaint asserted. Further, the plaintiffs alleged, Ford maintains a pattern and practice of inferior treatment of female employees with respect to the terms and conditions of employment, including job assignments, harassment, training, promotions, and overtime assignments, which created a hostile work environment that has continued at the plants since the 1980s. The plaintiffs asserted claims for sexual harassment and hostile work environment, gender/sex discrimination, race discrimination, retaliation, national origin discrimination, failure to accommodate under the ADA, battery, assault, and intentional infliction of emotional distress.
While Ford first argued that all claims brought by five of the named plaintiffs should be dismissed because they failed to disclose them in their respective bankruptcy petitions, the court found that none of the plaintiffs should be judicially estopped based on their bankruptcy filings. The omissions by two of the plaintiffs of their claims in their initial bankruptcy filings were innocent and not intended to conceal the claims. Two other plaintiffs filed their EEOC charges months after being discharged from bankruptcy should likewise be excused for their omissions, said the court.
As to Ford’s motion to dismiss the Section 1981 race discrimination claims filed by 24 of the plaintiffs, the court found that the complaint’s allegations only provided specific facts of racial harassment directed at one plaintiff. Because the allegations did not provide particularized facts as to the others, those claims were dismissed.
Turning to the plaintiffs’ retaliation claims, the court first noted that there is a split in the circuits on the issue of whether a person who rejects a supervisor’s sexual advances has engaged in protected activity. Because the Seventh Circuit has not yet resolved this issue and the Supreme Court has not resolved the circuit-split, the court found that the plaintiffs could not state a claim for retaliation where the sole protected activity alleged was the refusing of sexual advances. While “bare bones” retaliation claims brought by 10 plaintiffs were dismissed, the claims of one plaintiff, which contained significantly more factual enhancement relating to Ford’s alleged failure to remedy the harassment and discrimination survived Ford’s motion, as did the claims of another plaintiff who alleged she was forced to accept a lower paying job assignment after she complained that a supervisor was stalking her.
State-law tort claims.
The court next found that the plaintiffs’ various intentional tort claims against Ford were preempted by the Illinois Workers Compensation Act. Although the complaint alleged that supervisors and managers participated in and knew of the alleged conduct, there were no allegations showing that these managers had any authority to make decisions or set policy on behalf of Ford. The plaintiffs’ intentional infliction of emotional distress claims were also preempted by the Illinois Human Rights Act, said the court, finding that where, as here, an IIED claim is supported by factual allegations identical to those set forth in a Title VII sexual-harassment claim, the IHRA preempts the IIED claim.
Finally, addressing Ford’s assertion that the complaint’s class definition was impermissibly fail safe—meaning that membership in the class depended on the liability of the defendant and thus could not be determined until final judgment—the court found that the appropriate remedy was to refine the class definition. Because the plaintiffs had not yet moved to certify the purported class, the court considered the claims as a “placeholder” for the plaintiffs to seek certification if it becomes appropriate to do so.
And while Ford moved to strike the class claims on the basis that the putative class contained conflicts of interest since the proposed class definition could include both managerial and non-managerial employees and the complaint contained allegations that female supervisors engaged in some of the allegedly wrongful conduct, the court found this argument was also easily resolved by refinement of the class definition at such time that the plaintiffs seek certification. Thus, the court denied the motion without prejudice.