EAST ST. LOUIS – U.S. District Judge Nancy Rosenstengel dismissed nine union members from a privacy invasion action against nursing homes on Dec. 14, leaving two plaintiffs to carry on.
She ruled that union members must resolve claims against homes in the Symphony Acute Care Network through collective bargaining agreements.
District courts of the Seventh Circuit “have consistently found that Biometric Information Privacy Act claims from unionized employees are preempted by federal law,” she wrote.
She also denied a motion to remand the action to St. Clair County.
John Driscoll filed it there in 2017, for Saroya Roberson.
Roberson claimed Sycamore Village, a Symphony network home in Swansea, failed to protect privacy of fingerprints she registered on its time clock.
Driscoll proposed to certify a class action against Sycamore Village and other Symphony network homes, mostly in the Chicago area.
St. Clair County Associate Judge Garrett Hoerner granted it in March 2019.
Fifth District appellate judges affirmed class certification in November 2019, but only against Sycamore Village.
Justice Randy Moore wrote, “While investigation conducted by the plaintiff reveals that there may be some relationship between the various entities that own the other locations, those entities are not named defendants in this action.
“It is unclear from this record what the common questions are as to class members employed by entities who are not named in this lawsuit.”
He wrote that Roberson couldn’t establish that she could fairly and adequately protect class members beyond Sycamore Village.
Sycamore Village alone would have produced 552 class members, but Driscoll still aimed at the entire network.
He amended his complaint this July, to add 10 plaintiffs and allege 169 counts against 13 nursing homes and eight other entities.
Network counsel Richard McArdle of Chicago removed the complaint to district court on Sept. 2, claiming diversity of citizenship.
McArdle wrote that at least 14 persons on Sycamore Village’s roster in five years had last known addresses in Missouri, Michigan, Massachusetts, and Washington.
He wrote that Illinois citizens who were in the class at the initial pleading might no longer be Illinois citizens.
He wrote that the employee pool stretched across state lines.
On Sept. 23, his colleague Joseph Donado moved to dismiss union members under the Labor Management Relations Act.
Donado also moved to transfer the action to the Northern District, where all plaintiffs resided except Roberson.
On Sept. 30, plaintiffs moved to remand the action to St. Clair County.
Paul Johnson of Driscoll’s firm claimed the action qualified for an exception in the Class Action Fairness Act for local controversies.
He wrote that at least 95 percent of class members are Illinois citizens and all defendants are Illinois citizens.
He wrote that plaintiffs asserted Illinois statutory claims.
On Oct. 22, Driscoll opposed the motion to dismiss union members.
He quoted a precedent that, “Nothing that labor and management put in a collective bargaining agreement exempts them from state laws of general application.”
He wrote that Illinois law didn’t take away rights in the collective bargaining agreement but added an independent right.
Rosenstengel disagreed, relying on a precedent the Seventh Circuit set last year in Miller v. Southwest Airlines.
It stated, “A state cannot remove a topic from the union’s purview and require direct bargaining between individual workers and management.
“It is not possible even in principle to litigate a dispute about how an air carrier acquires and uses fingerprint information for its whole workforce without asking whether the union has consented on the employees’ collective behalf.”
Rosenstengel dismissed claims of union members without prejudice, and set a Jan. 4 deadline for amending the complaint.
She found she couldn’t conclude that there are no other facts that could establish a claim that federal law wouldn’t preempt.
She also decided not to send the action back to St. Clair County, finding it didn’t qualify as a local controversy.
“Defining the class to include only Illinois citizens whose biometric data was captured by defendants is not helpful,” Rosenstengel wrote.
She wrote that plaintiffs only provided data produced by one defendant.
“Plaintiffs ignore the potential non-Illinois citizens employed by the newly named defendants with facilities in the Chicagoland area,” she wrote.
“The number of class members also remains unclear.”
The Symphony network’s transfer motion remains pending.