• Different Claims and Non-Expert Statistics Sufficient To Certify Class Action
  • February 5, 2005
  • Law Firm: Mayer, Brown, Rowe & Maw LLP - Chicago Office
  • The United States District Court for the Southern District of New York recently certified a class of all black and Hispanic persons employed by the Javitz Center as carpenters, freight handlers and part time housekeepers from July 1, 1995 to the present, who allege that they were discriminated against on the basis of race in job assignments, promotion, discipline and retaliation in violation of Title VII, §1981 and §1983. Cokely v. Javitz Convention Center of New York. Central to plaintiffs' motion was their allegation that the method for assigning work to carpenters and freight handlers who sought assignments on a daily basis, while purportedly random, was in actuality not at all random and minority workers received fewer such assignments as a result.

    Evidence Suffices for Certification

    The court had dismissed plaintiffs' earlier motion for class certification in April 2003, granting the plaintiffs leave to refile their motion as soon as they had gathered more evidence of commonality and typicality in the form of statistical analyses, or affidavits or both. In their renewed class certification motion, the plaintiffs provided numerous affidavits, as well as grievance forms, letters and formal complaints alleging racial discrimination at the Javitz Center. Plaintiffs also submitted a statistical analysis purporting to demonstrate a disparity in wages paid to black and white employees, but the Judge stated that he would have preferred the statistical analysis to have been prepared by an expert rather than plaintiffs' counsel who prepared the analysis, and "assumed" plaintiffs would submit such an analysis in advance of trial.

    Notwithstanding the non-expert statistical analysis, the court held that in providing the affidavits, in addition to a statistical analysis, the plaintiffs had followed the Court's previous instruction and had therefore provided sufficient evidence to qualify for certification. In making the determination that plaintiffs had made a sufficient showing of discrimination, the court also took judicial notice of the fact that racial discrimination as well as other forms of discrimination had been endemic in the construction industry over the past several decades.

    Typicality Satisfied

    Defendants argued that the class representatives' claims were not typical of the class, as required by Rule 23(a)(3), because the claims of the housekeepers (which revolved around their alleged inability to obtain permanent positions), and the claims of the freight handlers and carpenters (which centered on the allegedly discriminatory work assignment system) were fundamentally different. Ultimately, the Court decided that all the plaintiffs' claims were rooted in an allegation of pervasive subordination of minority employees, and therefore satisfied the typicality requirement. Furthermore, the court reserved the right to form subclasses should they appear necessary at a later stage in the litigation.