Synthia Ross v. Citizens Financial , 667 F.3d 900 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3848
S YNTHIA G. R OSS, JAMES K APSA, and SHARON W ELLS,
on behalf of themselves and all others similarly situated,
Plaintiffs-Appellees,
v.
RBS C ITIZENS, N.A. d/b/a C HARTER O NE and
C ITIZENS F INANCIAL G ROUP, INC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 5695—Joan Humphrey Lefkow, Judge.
A RGUED A PRIL 12, 2011—D ECIDED JANUARY 27, 2012
Before K ANNE and E VANSΠ, Circuit Judges and
C LEVERT, District Judge.ŒŒ
Œ
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
ŒŒ
The Honorable Charles N. Clevert, Jr., United States District
Court for the Eastern District of Wisconsin, sitting by designa-
tion.
2 No. 10-3848
K ANNE, Circuit Judge. Synthia Ross, James Kapsa, and
Sharon Wells 1 filed this class action against RBS Citizens,
N.A. doing business as Charter One (a related entity,
Citizens Financial Group, Inc. is also named but for
simplicity, it need not be mentioned) for allegedly
violating the Fair Labor Standards Act, 29 U.S.C. § 216(b),
and the Illinois Minimum Wage Law (“IMWL”), 820 ILCS
§ 105/1 et seq. The central claim is that the plaintiffs
and other similarly situated employees and former em-
ployees of Charter One were denied overtime pay to
which they were entitled. For the IMWL claim, the
district court granted the plaintiffs’ motion to certify
two classes. Charter One challenges the district court’s
class certification order solely on the ground that it
did not comply with Rule 23(c)(1)(B) of the Federal Rules
of Civil Procedure. Following oral argument, the
Supreme Court clarified the Rule 23(a) commonality
element in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541 (2011). Shortly thereafter, we requested the
parties file statements of position addressing
whether the class certification order satisfied Dukes.
We now affirm.
1
Plaintiff Wells worked for Charter One in Ohio. She is not a
party to this appeal because she has no claim against Charter
One under the Illinois Minimum Wage Law.
No. 10-3848 3
I. B ACKGROUND
Charter One operates more than 100 bank branches in
Illinois. Most are traditional stand-alone branches, and
the rest are small “in-store” branches usually located
inside places like supermarkets. The branches are orga-
nized into seven regions, each with a regional manager
who reports to the state director. Employees at the
Illinois branches are organized, for overtime pur-
poses, into two categories: “exempt” and “non-exempt.”
The non-exempt category is comprised of employees
who do more routine tasks—like tellers and personal
bankers—all of whom are eligible to receive overtime
pay when they work more than forty hours per week.
The exempt category is comprised of branch managers
and assistant branch managers (“ABMs”). These em-
ployees are ineligible to receive overtime pay.
Synthia Ross began working as a teller at a Chicago
branch in 2000 and was later promoted to teller manager
before her employment terminated in 2007. James Kapsa
was hired as an ABM at a branch in St. Charles, Illinois,
in 2007 and became acting branch manager for a short
period of time before switching roles to become a
personal banker. Kapsa spent time at several other
Illinois branches before his employment terminated in
2009. Ross alleges that Charter One has an unofficial
policy of denying overtime pay to its non-exempt em-
ployees by: (1) instructing them not to record hours
worked per week over forty; (2) erasing or modifying
recorded overtime hours; (3) giving them “comp time”
instead of paying overtime; and (4) requiring them to
4 No. 10-3848
perform work during unpaid breaks. Kapsa alleges
that Charter One illegally denies ABMs overtime pay by
misclassifying their positions as exempt even though
ABMs spend the majority of their time performing non-
exempt work. Charter One denies that any such
unofficial policy exists, and further contends that ABMs
are correctly classified as exempt employees.
Plaintiffs sought to certify two classes for the IMWL
claim—the “Hourly” class and the “ABM” class. The
proposed Hourly class definition is:
All current and former non-exempt employees of
[Charter One] who have worked at their Charter
One retail branch locations in Illinois at any time
during the last three years, who were subject to
[Charter One’s] unlawful compensation policies
of failing to pay overtime compensation for all
hours worked in excess of forty per work week.
The proposed ABM class definition is:
All current and former Assistant Branch Manager
employees of [Charter One] who have worked at
their Charter One retail branch locations in
Illinois at any time during the last three years,
who were subject to [Charter One’s] unlawful
compensation policies of failing to pay overtime
compensation for all hours worked in excess of
forty per work week.
In a carefully reasoned seventeen-page opinion and
order, Judge Lefkow found that the plaintiffs satisfied
the four class-action prerequisites of Federal Rule of
No. 10-3848 5
Civil Procedure 23(a), namely: numerosity, commonality,
typicality, and adequacy of representation. She also
found that the plaintiffs satisfied Rule 23(b)(3), which
requires that “questions of law or fact common to
class members predominate over any questions af-
fecting only individual members, and that a class action
is superior to other available methods for fairly and
efficiently adjudicating the controversy.” The district
court then certified both classes as opt-out classes under
Rule 23(b)(3) based on the proposed class definitions.
Charter One filed this timely interlocutory appeal
pursuant to Rule 23(f). On September 14, 2011, following
oral argument, we asked the parties to file statements
of position describing whether the certified classes
satisfy the Dukes conception of commonality.
II. A NALYSIS
Charter One appealed the district court’s certification
order, and this interlocutory appeal is now before us on
(1) the very narrow issue of whether the district court
judge’s certification order complied with Rule 23(c)(1)(B)2
2
In the guise of suggesting that a remand would be futile,
Charter One devotes a fair portion of its briefs arguing
that both certified classes are fundamentally unsuitable for
class treatment. But, our November 30, 2010, order granting
defendant’s motion for leave to appeal pursuant to
Rule 23(f) limited our review to “the sole issue of whether
the district court complied with Rule 23(c)(1)(B).” Thus,
(continued...)
6 No. 10-3848
and (2) whether the two certified classes satisfy the com-
monality prerequisite post-Dukes. We review class cer-
tification decisions for an abuse of discretion. Ervin v.
OS Rest. Servs., Inc., 632 F.3d 971, 976 (7th Cir. 2011).
But, “[i]f a district court’s findings rest on an erroneous
view of the law, they may be set aside on that basis.”
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990)
(quotation marks omitted); Ervin, 632 F.3d at 976.
A. Defining the Class and the Class Claims, Issues, or Defenses
Rule 23(c)(1)(B) was added to the Federal Rules in 2003.
The Rule provides, “An order that certifies a class action
must define the class and the class claims, issues, or
defenses, and must appoint class counsel under Rule
23(g).” Fed. R. Civ. P. 23(c)(1)(B). Although we touched
briefly on the importance of properly defining the class,
claims, issues, and defenses in Spano v. Boeing Co.,
633 F.3d 574 (7th Cir. 2011),3 the exact contours of
2
(...continued)
we decline to review Charter One’s suitability argument
to the extent it does not directly respond to our Septem-
ber 14, 2011, order requesting position statements dis-
cussing whether Dukes alters the district court’s commonality
analysis.
3
In Spano, referring to classes certified under Rule 23(b)(1), we
wrote, “[T]he most important part of that order is the place
where it defines the class. This is a vital step. Both the scope
of the litigation and the ultimate res judicata effect of the
(continued...)
No. 10-3848 7
Rule 23(c)(1)(B) is an issue of first impression for us.
See also Simer v. Rios, 661 F.2d 655, 670 (7th Cir. 1981) (pre-
subsection (c)(1)(B) case finding that proper class iden-
tification “alerts the court and parties to the burdens
that such a process might entail” and “insures that
those actually harmed by defendants’ wrongful con-
duct will be the recipients of the relief eventually pro-
vided”).
Only the Third Circuit has fully addressed the meaning
of Rule 23(c)(1)(B). Wachtel ex rel. Jesse v. Guardian Life
Ins. Co. of Am., 453 F.3d 179 (3d Cir. 2006).4 The Wachtel
court started its analysis, as it must, with the rule’s text.
See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002).
The Third Circuit reasoned:
To “define” a thing or concept is “to state precisely
or determinately [its boundaries]; to specify” or
“[t]o frame or give a precise description” of a thing.
Oxford English Dictionary (2d ed. 1989). According
to the Rule, those things to be defined in a certifica-
tion order include the “class and the class claims,
issues, or defenses. . . .” Fed. R. Civ. P. 23(c)(1)(B)
3
(...continued)
final judgment depend on the class definition.” 633 F.3d at 583-
84 (citations omitted). We ultimately reversed the district
court’s certification order, and thus, had no need to fully
interpret Rule 23(c)(1)(B).
4
The First Circuit, in dictum, adopted the reasoning in
Wachtel. In re Pharm. Indus. Average Wholesale Price Litig., 588
F.3d 24, 38-41 (1st Cir. 2009).
8 No. 10-3848
(emphasis added). The above elements occur in
a conjunctive, undifferentiated list, indicating
that the requirement to “define” the “class claims,
issues or defenses” is identical to the requirement
to define the “class” itself within a given certifica-
tion order. Id. Furthermore, the use of the definite
article “the” before “class claims, issues, or de-
fenses” connotes comprehensiveness and specific-
ity, rather than illustrative or partial treatment,
in defining those aspects of class action certifica-
tion.
Wachtel, 453 F.3d at 185.
We find this interpretation persuasive, especially when
read in conjunction with the history and purpose of the
2003 amendments to Rule 23. Although the Advisory
Committee Notes accompanying these amendments
do not specifically address subsection (c)(1)(B), the pub-
lished report of the Standing Committee on Rules
of Practice and Procedure introduced the proposed
Rule 23 amendments by noting that the Rule 23(c)(1)(B)
requirement “facilitates application of the interlocutory-
appeal provision of Rule 23(f) by requiring that a court . . .
define the class it is certifying and identify the class
claims, issues, and defenses.” Comm. on Rules of
Practice and Procedure, Judicial Conference, Report of the
Judicial Conference, 8, 11 (Sept. 2002). Without a precise
definition of the class, claims, issues, and defenses, it
would be exceedingly difficult for this court to review
the propriety of a class certification order.
No. 10-3848 9
The Third Circuit’s plain reading of the Rule is also
supported by the Federal Rule’s apparent move
towards the creation of voluntary trial plans. In ob-
serving courts’ increased use of class-action trial plans,
the Advisory Committee noted that the “critical need is
to determine how the case will be tried.” Fed. R. Civ.
P. Rule 23 advisory committee’s note. The justification
for a clear trial plan applies with equal force to subsec-
tion (c)(1)(B). In other words, there is a critical need
to define the class, claims, issues, and defenses so the
parties can adequately prepare for trial. See also Simer,
661 F.2d at 670.
Given the text, history, and purpose of Rule 23 and
the importance we ascribed to precise class definitions
in Spano and Simer, we agree with the Third Circuit’s
interpretation of subsection (c)(1)(B). Wachtel, 453 F.3d
at 187-88. Therefore, we hold that the appropriate sub-
stantive inquiry for Rule 23(c)(1)(B) is “whether the
precise parameters defining the class and a complete list
of the claims, issues, or defenses to be treated on a class
basis are readily discernible from the text either of the
certification order itself or of an incorporated memoran-
dum opinion.” Id. at 185. This means that an order
(or incorporated opinion) must include two elements:
“(1) a readily discernible, clear, and precise statement of
the parameters defining the class or classes to be
certified, and (2) a readily discernible, clear, and com-
plete list of the claims, issues or defenses to be treated on
a class basis.” Id. at 187-88. The question confronting
us now is whether the district judge’s certification
order meets this standard. Although there might be
10 No. 10-3848
some room for the district court to have drafted a
clearer certification order, we find the trial court
did not abuse its discretion in defining the class and
the class claims, issues, or defenses for both the Hourly
and ABM classes.
1. Defining the Class
Charter One first challenges whether the class was
properly defined. The district court’s certification order
created an Hourly class and an ABM class both of
which included employees and former employees “who
were subject to defendants’ unlawful compensation poli-
cies” (emphasis added). Charter One contends that the
class certification order creates a conditional class that
hinges on whether its overtime policy was unlawful. To
the defendant, the term “unlawful” suggests that the
court must first determine liability before class member-
ship can be determined. Without a precise class defini-
tion, Charter One warns that it is impossible to send
notice to class members as required by Rule 23(c)(2)(B).
Although there is perhaps some minor ambiguity in
the certification order, the district court’s memorandum
opinion accompanying the order eliminates any
potential for confusion. In fact, Judge Lefkow concluded
in her Rule 23(b)(3) predominance analysis that an unlaw-
ful policy could be inferred based on “the number of
people making the same allegations across branches,
managers, positions, and time frames.” Ross v. RBS
Citizens, N.A., No. 09 CV 5695, 2010 WL 3980113, at *6
(N.D. Ill. Oct. 8, 2010). For purposes of class certification,
No. 10-3848 11
Judge Lefkow found that all current and former em-
ployees who have worked at an Illinois Charter One
location within the last three years were subject to an
unlawful overtime policy, and as such, qualify as class
members. Thus, the certification order, when read in
conjunction with the memorandum opinion, leaves no
doubt about which employees and former employees
constitute the class.
Furthermore, the potential harms of a poorly-defined
class are not implicated by the district court’s alleged
lack of precision. For example, our review of the certifica-
tion order and memorandum opinion was in no way
diluted by an imprecise class definition. As we have
already made clear, we read Judge Lefkow’s well-
reasoned seventeen-page opinion and order to define
both classes as consisting of all Hourly and ABM em-
ployees and former employees who have worked at
Charter One during the previous three years. Similarly,
the Simer justifications for a clear class definition do
not come into play. Here, employees and former
employees within the past three years are on notice of
how their rights might be affected by litigating this
dispute as a class because the plaintiffs’ proposed
notice mirrors the district court’s certification order.5
5
The plaintiffs’ Motion for Approval of Class Notices and the
attached proposed notice for the Hourly class is directed to
“current and former Charter One Illinois bankers, personal
bankers, tellers, teller managers, head tellers and senior tellers
working at Charter One’s Illinois retail branch locations
(continued...)
12 No. 10-3848
Ultimately, we find that the district court defined the
class in a manner that is “readily discernible from the
text either of the certification order itself or of an incorpo-
rated memorandum opinion.” Wachtel, 453 F.3d at 185.
2. Defining the Class Claims, Issues, or Defenses
Charter One also asserts that the district court abused
its discretion by identifying only two claims for trial
instead of identifying a comprehensive list of claims,
issues, or defenses. See Wachtel, 453 F.3d at 188 (affirming
the district court’s definition of the class, but remanding
because the district court failed to identify a comprehen-
sive list of claims, issues, or defenses). Charter One con-
cedes that the district court properly identified two
claims, but it identifies seven additional questions that
the district court purportedly should have discussed as
5
(...continued)
who were employed in this position from October 23, 2006 to
the present.” Further, the description of the Hourly claim
specifically mentions four mechanisms Charter One allegedly
employed in failing to pay overtime. Likewise, the proposed
notice for the ABM class is directed to “all current and former
Charter One Illinois assistant branch managers who were
employed in this position from October 23, 2006 to the pres-
ent.” The description of the ABM lawsuit explains the claim
as one of incorrect classification of ABMs as exempt person-
nel. Both class-notice documents leave little room for con-
fusion among potential class members.
No. 10-3848 13
claims or issues.6 Without a comprehensive list of
issues, Charter One warns that the parties cannot ade-
quately prepare for trial and potential class members
cannot make informed decisions about whether to opt
out of the class.
Like the district court’s definition of the class, we find
no abuse of discretion in how Judge Lefkow defined the
class issues, claims, or defenses. To begin, Charter One’s
heavy reliance on Wachtel is misplaced. There, the Third
Circuit chided the district court for using the Latin
phrase inter alia (“among other things”) because the very
use of that phrase suggests that the list of common
issues is intentionally incomplete. 453 F.3d at 189. The
district court in this case did not make the same mis-
take. The Wachtel court also found the district court’s
treatment of the claims, issues, and defenses to be
“unclear, intermittent, and incomplete,” with nothing in
the certification order that “evidences an intent to explic-
itly define which claims, issues, or defenses are to be
treated on a class basis.” Id.
Here, the district court’s opinion does not suffer from
the same deficiencies as the Third Circuit found in
Wachtel. Rather, the plaintiffs’ claims that will be tried
as a class are “readily discernible” from the district
court’s order and accompanying opinion. For example,
6
For example, Charter One contends that it is unclear whether
its actual or constructive knowledge of each alleged IMWL
violation will be tried on a common basis or through some
type of individual proceeding.
14 No. 10-3848
Judge Lefkow clearly identified the Hourly class’s
claim that they were subject to a company policy that
intentionally failed to pay lawfully earned overtime.
Ross, 2010 WL 3980113, at *6 (“[T]he common issue of
whether a company-wide policy existed to deny
overtime will predominate over the variations in
methods used to accomplish the alleged policy.”). The
district court went so far as to identify four possible
ways in which the plaintiffs claimed they had been
forced to work off-the-clock, although Judge Lefkow
appropriately left room for the introduction of other
types of evidence illustrating the nature of Charter
One’s unlawful policy. Id. Explicit identification of this
claim and four possible types of evidence is exactly
the type of clarity and completeness required by
Rule 23(c)(1)(B). Likewise, the district court clearly identi-
fied the ABM class’s claim that their primary duty was
to perform non-exempt work under an unlawful
company policy. Id. at *7 (“[T]he relevant inquiry is what
an ABM’s primary duty is.”). The district court also
stated that the application of any IMWL exemptions
(e.g., executive or administrative exemptions) should
be tried as a class rather than through individualized
inquiries. Id.
Ultimately, the claims identified by the district court
are the only claims that require resolution at trial and
the district court appropriately found that these claims
will be litigated as a class. The seven questions raised
by Charter One are merely issues of trial strategy or
proof, rather than overall claims or issues necessitating
resolution. If we read Rule 23(c)(1)(B) to require a
No. 10-3848 15
district court to list any possible method of proof, as
Charter One appears to suggest, the length of such an
order would border on the absurd. Here, the district
court rightfully identified the two critical claims and
the potential for an exemption defense, and found that
it is all best litigated as a class.
B. Commonality
Following oral argument in this case, the Supreme
Court clarified the Rule 23(a)(2) commonality prerequisite
in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. at 2541.
Shortly thereafter, we issued an order asking the parties
to file brief statements of position describing whether
the certified classes satisfy Dukes. We find that Dukes
does not change the district court’s commonality result,
and as such find that the district court properly certified
both classes.
The commonality prerequisite requires the plaintiff
to show that “there are questions of law or fact common
to the class.” Fed. R. Civ. P. 23(a)(2). The Supreme
Court has interpreted commonality as requiring the
plaintiff to show that class members “have suffered the
same injury,” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
157 (1982); Dukes, 131 S. Ct. at 2551, but notably “[t]his
does not mean merely that they have all suffered
a violation of the same provision of law,” Dukes, 131
S. Ct. at 2551. “What matters to class certification . . . is
not the raising of common ‘questions’—even in droves—
but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution
16 No. 10-3848
of litigation.” Id. (emphasis in original). To satisfy the
commonality element, it is enough for plaintiffs to
present just one common claim. Id. at 2556.
In Dukes, a nationwide class of 1.5 million current
and former female employees from 3,400 stores sued Wal-
Mart, alleging that the company engaged in a pattern
or practice of gender discrimination in violation of Title VII
of the Civil Rights Act of 1964. Id. at 2547. A Title VII
disparate-treatment suit of course requires that
plaintiffs show proof of discriminatory motive or intent.
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-
36 (1977); Dukes, 131 S. Ct. at 2552 (“[I]n resolving an in-
dividual’s Title VII claim, the crux of the inquiry is
the reason for a particular employment decision.”). In
Dukes, the Court reversed the district court’s certifica-
tion order on the grounds that the plaintiff could not
offer “significant proof that Wal-Mart operated under
a general policy of discrimination.” Dukes, 131 S. Ct. at
2553, 2556 (a policy allowing discretion “is just the op-
posite of a uniform employment practice that would
provide the commonality needed for a class action”)
(quotation marks omitted). In reversing class certification,
the Court found that there was no unifying motive
theory holding together “literally millions of employ-
ment decisions.” Id. at 2552.
In the present case, Charter One attempts to find sig-
nificant similarities with Dukes. Charter One’s principal
contention is that both classes’ claims require the same
significant and time-consuming individualized liability
inquiries that the Supreme Court found problematic
in Dukes. For the Hourly class, Charter One argues
No. 10-3848 17
that there are at least four ways in which plaintiffs
were denied overtime, and sifting through such individ-
ualized evidence should preclude a commonality find-
ing. Similarly for the ABM class, Charter One contends
that a factfinder would be required to individually deter-
mine whether each ABM performed non-exempt duties.7
The defendant makes one additional argument re-
garding the ABM class. Namely, Charter One branch
managers are vested with the same kind of discretion as
the store managers in Dukes and such discretion limits
the ability of the court to find common claims.
Despite Charter One’s best efforts to fit the present
case into the Dukes mold, there are significant distinc-
tions. Perhaps the most important distinction is the size
of the class and the type of proof the Dukes plaintiffs
were required to offer. See, e.g., Youngblood v. Family
7
Misreading Dukes, Charter One also contends that it has a
statutory right to present its affirmative exemption defenses
on an individualized basis, and thus, there is no commonal-
ity. However, the Dukes passage the defendant cites in
support of its argument discusses how the Ninth Circuit
improperly certified a Rule 23(b)(2) class that sought equitable
relief. In so ruling, the Court struck down the Ninth Circuit’s
attempt to circumvent 42 U.S.C. § 2000e-5(g)(2)(A) by holding
that Wal-Mart had a statutory right to avoid equitable
damages by showing that “it took an adverse employment
action for any reason other than discrimination.” Dukes, 131
S. Ct. at 2560-61 (emphasis added). Charter One has no such
statutory right because both classes are seeking only monetary
relief through a Rule 23(b)(3) class.
18 No. 10-3848
Dollar Stores, Inc., No. 09 Civ. 3176 (RMB), 2011 WL
4597555, at *4 (S.D.N.Y. Oct. 4, 2011) (distinguishing
Dukes on the ground that New York’s version of the
FLSA does not require “an examination of the subjective
intent behind millions of individual employment deci-
sions”); Bouaphakeo v. Tyson Foods, Inc., No. 5:07-cv-04009-
JAJ, 2011 WL 3793962, at *2 (N.D. Iowa Aug. 25, 2011)
(reasoning that because “Dukes was a Title VII case, the
focus of the inquiry in resolving each individual’s
claim was ‘the reason for [the] particular employment
decision’ ”). In Dukes, 1.5 million nationwide claimants
were required to prove that thousands of store managers
had the same discriminatory intent in preferring men
over women for promotions and pay raises. Here, there
are 1,129 Hourly class members and substantially
fewer ABMs, all of whom are based only in Illinois. The
plaintiffs’ IMWL claim requires no proof of individual
discriminatory intent. Instead, the plaintiffs’ theory,
supported by ninety-six Hourly class declarations and
twenty-four ABM class declarations, is that Charter
One enforced an unofficial policy in Illinois denying
certain employees overtime pay that was lawfully due.
All ninety-six Hourly declarations specifically allege
that the declarant had been denied lawfully due
overtime com pensation. Eighty-nine declarations
further allege that Charter One had a policy instructing
the declarant not to record earned overtime. Mean-
while, the majority of the ABM declarants assert that
they primarily performed non-exempt work. Although
there might be slight variations in how Charter One
enforced its overtime policy, both classes maintain a
No. 10-3848 19
common claim that Charter One broadly enforced an
unlawful policy denying employees earned-overtime
compensation. This unofficial policy is the common
answer that potentially drives the resolution of this
litigation. Dukes, 131 S. Ct. at 2551.
Appellant’s final criticism of the ABM class equating
Wal-Mart managers’ promotion discretion with the
limited discretion vested in Charter One branch
managers is misplaced. Specifically, the plaintiffs in
Dukes alleged that the discretion given to Wal-Mart
managers is what caused female employees to experience
disparate treatment. Id. at 2548. The Supreme Court
was clearly unable to infer a common claim from an
allegation that on its face suggested store managers
exercised significant discretion. Id. at 2554. Here, the
ABM class contends, and is supported in part by twenty-
four ABM declarations, that a company-wide policy in
Illinois requires ABMs to perform non-exempt work in
violation of the IMWL. Although there again might be
slight variations in the exact duties that each ABM per-
forms from branch to branch, the ABMs maintain a com-
mon claim that unofficial company policy compelled
them to perform duties for which they should have
been entitled to collect overtime. Contrary to Charter
One’s assertion, an individualized assessment of each
ABM’s job duties is not relevant to a claim that an
unlawful company-wide policy exists to deny ABMs
overtime pay.
Ultimately, the glue holding together the Hourly and
ABM classes is based on the common question of
whether an unlawful overtime policy prevented em-
20 No. 10-3848
ployees from collecting lawfully earned overtime com-
pensation. For that reason, we find that the district
court’s certification order satisfies the commonality
prerequisite and the district court properly granted
class certification.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s order certifying an Hourly and ABM class for
the plaintiffs’ IMWL claims.
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