DocketNumber: 14-cv-2818 (SAS)
Citation Numbers: 314 F.R.D. 122
Judges: Scheindlin
Filed Date: 1/19/2016
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
I. INTRODUCTION
Brian Wynn, John Williams, Awilda Guzman, Jose Otero, and Kevin Fulton (the “Named Plaintiffs”) bring this action alleging that their employer, the New York City Housing Authority (“NYCHA”), has been systematically under-compensating them due to their race and/or ethnicity. Plaintiffs assert causes of action for violations of them civil rights under Sections 1981 and 1983 of Title 42 of the United States Code as well as the New York City Human Rights Laws (“NYCHRL”) against NYCHA In addition, the plaintiffs allege that Local 237 of the International Brotherhood of Teamsters (“Local 237”), the representative union, “tacitly engaged in and/or encouraged such discriminatory conduct.”
Currently before the Court is plaintiffs’ motion for certification of a class to pursue these claims. For the following reasons, that motion is DENIED.
II. BACKGROUND
The Named Plaintiffs are Black and Hispanic members of Local 237 who have been employed as “Caretakers” by NYCHA since at least 2000.
The Named Plaintiffs argue that while classified as Caretakers P, they actually performed the duties of — what are referred to in the private sector as — “plasterer tenders,” but were not compensated as such.
These employees — represented by Local 237 — have twice failed to attain reclassification. First, a formal complaint to the Office of the Comptroller of the City of New York was denied in 2007. Second, a petition for an audit by the Department of Citywide Administrative Services was denied in 2008.
Finally, on April 9, 2010, after failing to attain reclassification, Local 237 and NYCHA reached an agreement formally expanding the duties of Caretakers P who assist plasterers and “increasing the existing Caretaker ’P’ assignment differential by a pro rata amount of $756.00 per annum.”
B. Class Definitions
Plaintiffs provide varying definitions of the class that they seek to certify. First, in the Amended Complaint: “all Black and Puerto Rican members of Local 237, who have worked in the NYCHA, as Plasterer Helpers or Plasterer Tenders, within the relevant time periods applicable to the claims made herein.”
III. LEGAL STANDARD
A. Federal Rule of Civil Procedure 23(a)
Rule 23(a) permits individuals to sue as representatives of an aggrieved class. To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a), generally referred to as numerosity, commonality, typicality, and adequacy.
“Rule 23 does not set forth a mere pleading standard. A party seeking class cer
1.Numerosity
Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” In the Second Circuit, sufficient numerosity can be presumed at a level of forty members or more.
2.Commonality
Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Commonality thus requires plaintiffs “to demonstrate that the class members ’have suffered the same injury.’”
3.Typicality
Under Rule 23(a)(3), “[typicality ’requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events! ] and each class member makes similar legal arguments to prove the defendant’s liability.’”
4. Adequacy
Adequacy under Rule 23(a)(4) “is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.”
5. Implied Requirement of Ascertainability
Finally, in addition to the express requirements of Rule 23(a), the Second Circuit recognizes an “implied requirement of ascertainability.”
B. Federal Rule of Civil Procedure 23(b)(3)
If the requirements of Rule 23(a) are met, the court “must next determine whether the class can be maintained under any one of the three subdivisions of Rule 23(b).”
The predominance inquiry focuses on whether “a proposed class is ‘sufficiently cohesive to warrant adjudication by representation.’”
IV. DISCUSSION
A. Ascertainability
The very fact that counsel defines the class in at least four different ways
It would be particularly inappropriate for the Court to craft the specific class definition in the first instance where — as here — the plaintiffs have failed to do so themselves. To choose the most appropriate class definition where multiple class definitions are presented would reward the plaintiffs for presenting defendants with a moving target. For example, the definition from the Amended Complaint refers to all “Plasterer Helpers or Plasterer Tenders”
B. Commonality, Typicality, and Predominance
Because the inquiries into commonality, typicality, and predominance overlap, I consider them together here. There is no doubt that common issues are present. For example, the Court must determine (1) whether the expanded duties of Caretakers P enumerated in the 2010 Agreement qualified them as private sector plasterer tenders, (2) whether the wage-setting decisions of NY-CHA were based on a pattern or practice of discrimination, and (3) whether Local 237 aided this allegedly discriminatory policy. However, the claims of the class representatives are not and cannot be typical of every individual class member because those claims are subject to the individualized defense that a given class member never in fact performed the duties of a plasterer tender. Successfully raising this defense would mean that some employees were paid the proper wage and therefore were not discriminated against. Plaintiffs fail to even acknowledge this argument in their Reply Memorandum, restating only the legal conclusion that their claims are typical.
For similar reasons, plaintiffs have failed to show that common issues predominate. The second and third common questions— whether there was a pattern or practice of discrimination and whether Local 237 aided that practice — do little to resolve the question of liability without analyzing the circumstances of individual class members. Even after resolving liability, the Court would have to make individualized damages determinations regarding to what extent and for how long a particular employee performed the duties of a plasterer tender. Once again, rather than respond to this argument in their Reply, plaintiffs simply restate the relevant legal standard and conclude that “there
Plaintiffs have not carried their burden of proving that the claims of the class members are typical of the class as a whole or that common issues predominate.
C. Adequacy
Finally, I have serious doubts that plaintiffs’ counsel can adequately represent the interests of the proposed class. Adequacy of counsel is particularly important in the class action context where the class as a whole is bound by the result of the litigation. Here, both defendants have challenged counsel’s adequacy.
In response to this challenge, plaintiffs’ counsel states in a conclusory manner that he is “pretty qualified.”
Even if this is not counsel’s first motion for class certification, it might as well be. Quite aside from counsel’s lack of class action experience, his performance in the present case has been so lacking as to raise doubts about his ability to diligently pursue the interests of the class.
Plaintiffs memorandum in support of class certification provides little more than a recitation of the requirements of Rule 23 and conclusory statements that the requirements are met in this case. ... Plaintiffs reply memorandum is also lacking. ... The memorandum avoids any analysis or discussion of a number of weighty arguments raised by defendants in opposition to class certification, opting instead for ... conclusory assertions.52
Counsel’s inability to provide a consistent definition for the class he purports to represent or respond to the arguments made by the defendants leads me to conclude that counsel is not “’qualified, experienced and able to conduct the litigation.’”
V. CONCLUSION
For the foregoing reasons, the motion for class certification is DENIED.
SO ORDERED:
. Amended Complaint ¶ 48.
. Plaintiff Guzman ceased working for NYCHA after the filing of the present suit. The parties differ as to whether she retired or was terminated. See Defendant International Brotherhood of Teamsters, Local 237's Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification ("Local 237 Mem”) at 11; Plaintiffs’ Reply Memorandum of Law in Further Support of Their Motion for Class Certification ("Reply Mem.”) at 3. This dispute is immaterial for the present motion.
. Defendant New York City Housing Authority’s Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification ("NYCHA Mem.”) at 2.
. Id. Accord Ex. E ("2010 Agreement”) to the Declaration of David Marcinek ("Marcinek Decl.”), Deputy Director of NYCHA’s Human Resources Department, in Opposition to Plaintiffs’ Motion for Class Certification.
. Plaintiffs’ Memorandum of Law in Support of Their Motion for Class Certification ("PL Mem.”) at 1, Importantly, while the undercompensation claim pegs the prevailing rate in the private sector as the amount of compensation due — the relevant metric for compensation under Section 220 of Article 8 of the New York Labor Law—
. See Amended Complaint ¶¶ 50-53.
. See id. at 16 ("Prayer for Relief”).
. 2010 Agreement at 1-2 (notably, Caretakers P "assigned to assist Painters are not eligible for this increased amount”).
. See id. at 2.
. Amended Complaint ¶ 12.
. Notice of Motion for Class Certification ¶ 1.
. Pl. Mem. at 1.
. Id. at 10.
. See Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 80 (2d Cir.2015). In full, Rule 23(a) reads:
Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
. See Parker v. Time Warner Entm't Co. L.P., 331 F.3d 13, 28 (2d Cir.2003).
. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (emphasis in original).
. See New Jersey Carpenters Health Fund v. Rall Series 2006-Q01 Trust, 477 Fed.Appx. 809, 812 (2d Cir.2012).
. In re IPO Secs. Litig., 471 F.3d 24, 42 (2d Cir.2006).
. Id. at 41.
. Wal-Mart, 131 S.Ct. at 2551.
. See Pennsylvania Pub. Sch. Emps. Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 116 (2d Cir.2014) (citing Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995)).
. Central States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 244-45 (2d Cir.2007).
. See Kaplan v. S.A.C. Capital Advisors, 311 F.R.D. 373, 377-78 (S.D.N.Y.2015) (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)).
. Wal-Mart, 131 S.Ct. at 2551 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
. Id.
. Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.2001)).
. In re Smith Barney Transfer Agent Litig., 290 F.R.D. 42, 46 (S.D.N.Y.2013) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.1997)).
. Marisol A., 126 F.3d at 376.
. Ligon v. City of New York, 288 F.R.D. 72, 79 (S.D.N.Y.2013) (quoting Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 64 (S.D.N.Y.2006)).
. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir.2006).
. Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006).
. In re Flag Telecom Holdings, Ltd. Secs. Litig., 574 F.3d 29, 35 (2d Cir.2009) (quoting Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir.2000)).
. Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir.2015) (citations omitted).
. Id. (quoting 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1760 (3d ed. 1998)).
. Id. at 24-25 (quotation marks and citation omitted).
. McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.2008).
. Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)).
. In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir.2006) (citing Amchem, 521 U.S. at 623-24, 117 S.Ct. 2231).
. In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 118 (2d Cir.2013) (quoting UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir.2010)).
. See Johnpoll v. Thornburgh, 898 F.2d 849, 852 (2d Cir.1990) (affirming denial of class certification because the plaintiff "did not define the class he seeks to represent with sufficient particularity”).
. See NYCHA Mem. at 11-12,
. Lundquist v. Security Pac. Auto. Fin. Servs. Corp., 993 F.2d 11, 14 (2d Cir.1993) (citations omitted).
. Amended Complaint ¶ 12.
. Notice of Motion for Class Certification ¶ 1; Pi. Mem. at 1.
. See Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418, 430 (S.D.N.Y.2009) (noting that the statute of limitations "call[s] into question the scope of [the] proposed class”).
. Reply Mem. at 6.
. See NYCHA Mem. at 17; Local 237 Mem. at 13.
. Reply Mem. at 4.
. Ex. F ("Case List”) to the Reply Declaration of Lee Nuwesra, plaintiffs' counsel, in Support of Class Certification.
. See Auscape Int'l v. National Geographic Enters. Inc., No. 02 Civ. 6441, 2003 WL 23531750, at *4 (S.D.N.Y. July 25, 2003) C"[I]n determining the adequacy of counsel, the court looks beyond reputation built upon past practice and examines counsel’s competence displayed by present performance.’” (quoting Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 156 (S.D.N.Y.2002))).
. See 142 F.R.D. 597 (S.D.N.Y.1992).
. Id. at 602.
. In re Flag Telecom Holdings, 574 F.3d at 35 (quoting Baffa, 222 F.3d at 60).