Hill et al v. City of New York et al

Filing 202

ORDER: For the reasons stated in the attached Memorandum and Order, the Court amends its previous class certification and certifies the following two classes in this action:Section 1981 Rule 23(b)(2) class: All individuals who are curre ntly employed by the City of New York as Police Communications Technicians ("PCTs") or Supervisor Police Communications Technicians ("SPCTs") in the NYPD Communications Section.Section 1981 Rule 23(b)(3) class: All i ndividuals who are currently employed, or have been employed within the three years preceding the filing of this action on November 6, 2013, by the City of New York as Police Communications Technicians ("PCTs") or Supervisor Police Communications Technicians ("SPCTs") in the NYPD Communications Section. Ordered by Judge Pamela K. Chen on 4/29/2019. (Brodziak, Maya)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
CYNTHIA HILL, GAIL WILLIAMS,
DENISE INMAN, VICKIE GORDON,
ROLANDO LOPEZ, TAURA PATE, ELLEN
ENNIS, and ANDREA HOLLY, individually
and on behalf of all others similarly situated,

MEMORANDUM & ORDER
13-CV-6147 (PKC) (JO)

Plaintiffs,
- against CITY OF NEW YORK, MICHAEL R.
BLOOMBERG, as Mayor of the City of New
York, RAYMOND KELLY, as Police
Commissioner, RICHARD F. NAPOLITANO,
CHARLES F. DOWD, MICHAEL V.
POLITO, LJUBOMIR BELUSIC, DONALD
CHURCH, DAVID LICHENSTEIN, LOCAL
1549, DISTRICT COUNCIL 37, AFSCME,
AFL-CIO, and JOHN and JANE DOES 1–20
(said names being fictitious, the persons
intended being those who aid and abetted the
unlawful conduct of the Named Defendants),
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Named Plaintiffs, on behalf of a class of minority New York City Police Department
(“NYPD”) 911 Operators, bring this action against the Defendants New York City; Mayor
Bloomberg as Mayor of New York City and Raymond Kelly as NYPD Commissioner, both in
their official capacities1; and Richard F. Napolitano, Charles F. Dowd, Michael V. Polito,

1

Because former Mayor Bloomberg and former NYPD Commissioner Kelly are named
only in their official capacities, the current City Mayor and NYPD Commissioner, respectively,
Bill de Blasio and William Bratton, are automatically substituted in this action in their official
capacities pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
25(d); cf. Phillip v. Schriro, No. 12-CV-8349 (RA), 2014 WL 4184816, at *9 (S.D.N.Y. Aug. 22,
2014). The Clerk of Court is respectfully requested to correct the caption on the docket.

Ljubomir Belusic, Donald Church, and David Lichtenstein, all in their official and individual
capacities (collectively, “City Defendants”), as well as Defendant Local 1549, District Council 37,
AFSCME, AFL-CIO (“Defendant Union”) (collectively, “Defendants”), alleging, inter alia,
violations of 42 U.S.C. § 1981 and § 1983. The Court granted Plaintiffs’ motion for class
certification under Federal Rule of Civil Procedure (“FRCP” or “Rule”) 23(b)(2) on September
28, 2015. (Memorandum & Order (“M&O”), Dkt. 115.) Plaintiffs now seek an amendment to the
Court’s class certification order in order to effectuate the settlement the parties have reached.
(Plaintiffs’ Memorandum in Support of Preliminary Approval of Class Action Settlement (“Pls.’
Settlement Br.”), Dkt. 193, at 4–5; Letter Motion to Certify Class (“Letter Motion”), Dkt. 199, at
ECF2 2.) For the following reasons, the Court amends its original class certification to include
both a Rule 23(b)(2) and 23(b)(3) class as defined infra.
BACKGROUND3
The Court granted Plaintiffs’ motion for class certification under FRCP 23(b)(2) on
September 28, 2015. (Dkt. 115.) Since this class certification, the parties have engaged in
discovery and extensive settlement negotiations. (See, e.g., Dkts. 128, 130, 134, 144, 158;
4/23/2018 Minute Entry; 5/31/2018 Minute Entry; 7/13/2018 Minute Entry; 9/18/2018 Minute
Entry; 10/09/2018 Minute Entry; 12/07/2018 Minute Entry.) On December 21, 2018, the parties
indicated that they had reached a settlement. (Dkt. 190.) Plaintiffs filed a motion seeking
preliminary approval of their class action settlement (Dkts. 191, 199) and Defendants filed a
motion seeking approval of the notice of proposed settlement and fairness hearing (Dkt. 194), as
2

Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
3

The Court assumes the parties’ familiarity with the facts of this action as previously
recited in the Court’s September 28, 2015 M&O, incorporates those facts herein, and summarizes
only the procedural history of the instant motion.
2

required by Rule 23(e). As part of their motion, Plaintiffs4 seek to amend the Court’s previous
class certification of two Rule 23(b)(2) classes to combine them into a single § 1981 Rule 23(b)(2)
class. (Letter Motion, Dkt. 199, at ECF 2.)
LEGAL STANDARD
“‘Even after a certification order is entered, the judge remains free to modify it in light of
subsequent developments in the litigation.’” Easterling v. Conn. Dep’t of Corr., 278 F.R.D. 41,
44 (D. Conn. 2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)); see also
Fed. R. Civ. P. 23(c)(1) (“An order that grants or denies class certification may be altered or
amended before final judgment.”). In fact, “courts are ‘required to reassess their class rulings as
the case develops.’” Doe v. Karadzic, 192 F.R.D. 133, 136 (S.D.N.Y. 2000) (quoting Boucher v.
Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999)). However, a court “may not disturb its prior
findings absent some significant intervening event, or a showing of compelling reasons to
reexamine the question.” Doe, 192 F.R.D. at 136–37 (internal quotations and citations omitted).
“Settlement is relevant to a class certification.” Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 619 (1997). Though a court certifying a class for the purposes of settlement “need not inquire
whether the case, if tried, would present intractable management problems” as required by Rule
23(b)(3)(D), “other specifications of [Rule 23] . . . demand undiluted, even heightened, attention
in the settlement context.” Id. at 620. “Such attention is of vital importance, for a court asked to
certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the
class, informed by the proceedings as they unfold.” Id.
DISCUSSION
The Court, in its original class certification order, certified two Rule 23(b)(2) classes:

4

Defendants do not oppose this modification. (See Letter Motion, Dkt. 199, at ECF 2.)
3

Section 1981 Racial Discrimination Rule 23(b)(2) Class: All minority individuals
who are currently employed, or have been employed within three years preceding
the filing of this action, by the City of New York as Police Communications
Technicians (“PCTs”) or Supervisor Police Communication Technicians
(“SPCTs”) in the NYPD Communications Section.
FMLA Rule 23(b)(2) Class: All minority individuals who are currently working in
the civil service titles of PCT and SPCT in the NYPD Communications Section
who are eligible for FMLA leave.
(M&O, Dkt. 115, at 52, 65.) In making this class certification determination, the Court noted that
“these definitions are limited to operators still employed by the City since only they will benefit
from injunctive relief sought in this action.” (Id. at 52.)
Plaintiffs now seek to modify the class definitions, “to address City Defendants’ concerns
and to facilitate settlement of this matter.” (Pls.’ Settlement Br., Dkt. 193, at 5; see also Letter
Motion, Dkt. 199, at ECF 2.) Plaintiffs propose a single § 1981 class, to be defined as follows:
Rule 23(b)(2) Class: All individuals who are currently employed, or have been
employed within three years preceding the filing of this action on November 6,
2013, by the City of New York as Police Communications Technicians (“PCTs”)
or Supervisor Police Communication Technicians (“SPCTs”) in the NYPD
Communications Section.
(Pls.’ Settlement Br., Dkt. 193, at 5.)5
For the reasons that follow, the Court grants Plaintiffs’ modification of the class, subject
to further modification by the Court, as described infra.

5

In their Letter Motion, Plaintiffs propose a slightly different class definition:

Section 1981 Class pursuant to Rule 23(b)(2): All individuals who were employed
by the City of New York as PCTs and SPCTs in the NYPD Communications
Section at any time between November 6, 2010 and October 23, 2018.
(Dkt. 199, at ECF 2.) As discussed infra, since the Court will make a distinction between
currently-employed and formerly-employed PCTs and SPCTs, the Court will use the original
language provided by Plaintiffs in order to make the distinction clear.
4

I.

Standing
“Article III standing is ‘the threshold question in every federal case, determining the power

of the court to entertain the suit.’” Janes v. Triborough Bridge & Tunnel Auth., 889 F. Supp. 2d
462, 465 (S.D.N.Y. 2012) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d
Cir.2006)). This necessarily includes class action cases. To establish Article III standing, a
plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing, inter alia, Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992)). “In the context of a class action, this Circuit does ‘not require that
each member of a class submit evidence of personal standing.’ However, ‘no class may be certified
that contains members lacking Article III standing.’” Janes, 889 F. Supp. 2d at 466 (quoting
Denney, 443 F.3d at 263–64).
A.

Standing as to Former Employees

Plaintiffs’ proposed amended class includes former PCTs and SPCTs seeking injunctive
relief. However, former employees do not have standing to seek injunctive relief against their
former employer. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364 (2011). “[A] plaintiff
generally lacks standing to seek injunctive or declaratory relief against his or her former employer,
as there is no prospect that he or she will be injured in the future.” Kassman v. KPMG LLP, 925
F. Supp. 2d 453, 465–66 (S.D.N.Y. 2017).6 Given that Plaintiffs’ proposed definition includes

6

In Kassman, the court noted that former employees would have standing to sue for
injunctive relief if they were seeking reinstatement as part of that relief. 925 F. Supp. 2d at 466.
However, in the instant action, Plaintiffs do not allege that they were terminated from their
employment for improper reasons, and are not seeking reinstatement as their relief.
5

both current and former employees and the relief included in the proposed settlement includes
injunctive relief, there is a clear standing issue.
However, “[a] court should be wary of revoking a certification order completely at a late
stage in the litigation process.” Easterling, 278 F.R.D. at 44; cf. Woe ex rel. Woe v. Cuomo, 729
F.2d 96, 107 (2d Cir. 1984) (“[I]t is an extreme step to dismiss a suit simply by decertifying a
class, where a potentially proper class exists and can be easily created.”) (internal quotations and
citation omitted). Given the Court’s power to modify class certification, see Fed. R. Civ. P.
23(c)(1)(C), the Court finds that it can address this standing issue by certifying two separate
classes, one under Rule 23(b)(2), consisting solely of current employees (who seek injunctive
relief), and one under Rule 23(b)(3), consisting of both current and former employees (who seek
monetary relief).7 The Court will therefore conduct its class certification analysis using the
following modified class definitions:
Section 1981 Rule 23(b)(2) class: All individuals who are currently employed by
the City of New York as Police Communications Technicians (“PCTs”) or
Supervisor Police Communications Technicians (“SPCTs”) in the NYPD
Communications Section.
Section 1981 Rule 23(b)(3) class: All individuals who are currently employed, or
have been employed within the three years preceding the filing of this action on
November 6, 2013, by the City of New York as Police Communications
7

“Recent precedent from this [Circuit] establishes that when a district court engages in the
analysis required under Rule 23(b)(2) and Rule 23(b)(3), a class can be certified seeking both
declaratory and injunctive relief as well as money damages.” Stinson v. City of New York, 282
F.R.D. 360, 380 (S.D.N.Y. 2012); see also Easterling, 278 F.R.D. at 41 (certifying, in a Title VII
disparate impact action, both a 23(b)(2) and 23(b)(3) class); Jermyn v. Best Buy Stores, L.P., 256
F.R.D. 418 (S.D.N.Y. 2009) (certifying 23(b)(2) and 23(b)(3) classes based on state law consumer
claims). The Court notes that by certifying separate classes for injunctive and monetary relief, it
avoids any questions as to whether claims for monetary relief can ever be certified under Rule
23(b)(2). See Wal-Mart, 564 U.S. at 360 (noting that the Supreme Court’s opinion in Ticor Title
Insurance Co. v. Brown, 511 U.S. 117 (1994) “expressed serious doubt about whether claims for
monetary relief may be certified under [Rule 23(b)(2)]”); see also Amara v. CIGNA Corp., 775
F.3d 510, 519 (2d Cir. 2014) (noting that “[t]he Supreme Court has left open the question [of]
whether [even] incidental monetary relief may be sought on a class-wide basis pursuant to Rule
23(b)(2)”).
6

Technicians (“PCTs”) or Supervisor Police Communications Technicians
(“SPCTs”) in the NYPD Communications Section.
B.

Standing as to Non-Minority Operators Bringing Racial
Discrimination Claims

The proposed amended class includes a significant definitional change: rather than a class
of minority PCTs and SPCTs, Plaintiffs now ask that the class be defined to include both minority
and non-minority PCTs and SPCTs. This proposed change is reflective of Plaintiffs’ theory of
their case, i.e., “that the City’s predominately non-minority dispatcher units outside the NYPD,
including the [New York City Fire Department (“FDNY”) and Emergency Medical Services
(“EMS”)] dispatcher units, are treated more favorably” than Plaintiffs’ NYPD 911 Operators unit
as a whole. (Letter Motion, Dkt. 199, at ECF 2; see also Amended Complaint (“Am. Compl.”),
Dkt. 77, ¶¶ 257–67.)8
“[A] plaintiff does not have to be a member of a racial minority to bring a claim under
Section 1981; a non-minority plaintiff can allege personal injury stemming from a defendant’s
discriminatory conduct against a racial minority.” Robledo v. Bond No. 9, 965 F. Supp. 2d 470,
476 (S.D.N.Y. 2013); see also Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972)
(holding that both minorities and non-minorities have standing to challenge racially discriminatory
acts under the Fair Housing Act if they can show injury). For example, in Puglisi v. Underhill
Park Taxpayer Association, 947 F. Supp. 673 (S.D.N.Y. 1996), the Court found that a nonminority plaintiff landlord had standing to sue under various racial discrimination statutes,
including § 1981, because he alleged “that he suffered injuries that stemmed from discrimination
against his African American tenants, who as African Americans, are members of a protected
class.” Id. at 685. Critically, the Court in Puglisi noted that the plaintiff landlord was not

8

This proposed definition also addresses Defendants’ concern regarding reverse-race
discrimination lawsuits. (Letter Motion, Dkt. 199, at ECF 1.)
7

attempting to bring claims on behalf of his minority tenants, but instead “alleging his own injuries
stemming from the racial discrimination targeted at his minority tenants.” Id. Likewise, the nonminority 911 Operators have suffered injuries, such as the cancellation of their sick time or the
imposition of mandatory double- and overtime-shifts, as a result of Defendants’ alleged racial
discrimination towards their majority-minority unit. Therefore, even though the non-minority 911
Operators are not themselves part of a protected class, they nonetheless have suffered personal
injuries as a result of discrimination aimed at a protected class. This is enough to confer standing
to the non-minority 911 Operators.
Courts in other circuits have likewise found, in the employment context, that non-minority
employees have the same standing to challenge racially discriminatory acts as their minority
counterparts. In Boyd v. Illinois State Police, the Honorable Joan Humphrey Lefkow of the
Northern District of Illinois found that plaintiff-employees’ theory that defendants “perceived”
their majority-minority employee group as “minority” was sufficient to raise “a triable issue of
fact whether defendants were motivated by race in incorporating plaintiffs into their work force on
less favorable terms than would have occurred had the [employee] group not been ‘majority
minority.’” No. 98-CV-8348 (JHL), 2001 WL 301150, at *6 (N.D. Ill. Mar. 28, 2001). Similarly,
in Carter v. Pennsylvania, the Honorable James Knoll Gardner of the Eastern District of
Pennsylvania found that both minority and non-minority employees had standing to assert racial
discrimination claims under Title VII and § 1981 because the non-minority employees were either
“the unintended victims of [defendant’s] intentional racial discrimination against the minorit[y]”
employees or defendant “intentionally discriminated against the [non-minority employees] . . . , as
well as the minority [employees], in order to cover up for their intentional discrimination against
the minority [employees].” No. 08-CV-5421 (JKG), 2009 WL 3140238, at *9 (E.D. Pa. Sept. 28,

8

2009). The Court found that, under either interpretation of the facts, both the non-minority and
minority employees had adequately pled facts to establish injury and therefore standing. Id. at *8–
9.
The same is true in the instant case. Plaintiffs allege that the non-minority 911 Operators,
as members of a majority-minority unit, have been subject to the same “overarching pattern of
discriminatory conduct” (M&O, Dkt. 115, at 66) as their minority counterparts. As a result, the
non-minority 911 Operators that work in the NYPD’s Communications Section have the same
standing to sue.
II.

Rule 23(a) Factors
Having determined that all potential class members would have standing, the Court next

evaluates whether the proposed classes satisfy the requirements of Rule 23(a). As part of its
analysis, as indicated infra, the Court relies on, and incorporates by reference its September 28,
2015 decision regarding Plaintiffs’ original motion for class certification. (See M&O, Dkt. 115,
at 54–62.) Rule 23(a)
permits a case to be litigated as a class action only if (1) the class is so numerous
that joinder of all members is impracticable [(numerosity)]; (2) there are questions
of law or fact common to the class [(commonality)]; (3) the claims or defenses of
the representative parties are typical of the claims or defenses of the class
[(typicality)]; and (4) the representative parties will fairly and adequately protect
the interests of the class [(adequacy of representation)].
Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015). The Second Circuit has also
recognized that “Rule 23(a) contains an implied requirement of ascertainability.”

B & R

Supermarket, Inc. v. MasterCard Int’l Inc., No. 17-CV-2738 (MKB), 2018 WL 1335355, at *11
(E.D.N.Y. Mar. 14, 2018) (citing In re Petrobras Sec., 862 F.3d 250, 266 (2d Cir. 2017)).

9

A.

Numerosity

Rule 23(a)(1) provides: “One or more members of a class may sue or be sued as
representative parties on behalf of all members only if . . . the class is so numerous that joinder of
all members is impracticable[.]” Fed. R. Civ. P. 23(a)(1). “[A] plaintiff need not present a precise
calculation of the number of class members[,] and it is permissible for the court to rely on
reasonable inferences drawn from available facts[.]” Velez v. Majik Cleaning Service, Inc., No.
03-CV-8698 (SAS), 2005 WL 106895, at *2 (S.D.N.Y. Jan. 19, 2005). In the Second Circuit,
“numerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47
F.3d 473, 483 (2d Cir. 1995).
The Court is satisfied that the proposed classes meet this requirement. According to
Plaintiffs, the City employs over 1,200 PCTs and SPCTs. (Am. Compl., Dkt. 77, ¶ 17.) The Court
previously found that a class of minority PCTs and SPCTs, who constitute about 95% of the total
PCTs and SPCTs the City employs in the NYPD Communications Section, was sufficiently
numerous. (M&O, Dkt. 115, at 54–55.) Given that the proposed class definitions expand the class
to include non-minority operators, and in the case of the proposed Rule 23(b)(3) class, former
employees, the Court finds that both proposed classes are sufficiently numerous.
B.

Commonality

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). For a question to be common, it must be “capable of class[-]wide resolution—
which means that determinations of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. The party seeking
certification must demonstrate “the capacity of a class[-]wide proceeding to generate common
answers apt to drive the resolution” of the case. Id. (emphasis omitted) (quoting Richard A.

10

Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
“[E]ven a single common legal or factual question will suffice” to prove commonality. Ruiz v.
Citibank, N.A., 93 F. Supp. 3d 279, 289 (S.D.N.Y. 2015) (quoting Freeland v. AT & T Corp., 238
F.R.D. 130, 140 (S.D.N.Y. 2006)).
In its original certification, the Court found that “common questions exist” sufficient to
satisfy the commonality requirement of Rule 23. (M&O, Dkt. 115, at 55–57.) Specifically, the
Court found that Plaintiffs’ allegations that “City Defendants applied a set of practices and policies
uniformly across the class as part of an overarching pattern of discrimination, including blanket
cancellation of sick leave, mandatory double-shifts and/or overtime shifts several times a week,
and automatic declarations that operators who request limited overtime as an [Americans with
Disability Act (“ADA”)] accommodation were unfit for duty,” (M&O, Dkt. 115, at 56), created
common questions, “including whether the City Defendants maintained a pervasive system of
discrimination against the 911 Operators through the challenged discriminatory practices and
policies, and whether the City Defendants’ discriminatory intent can be inferred from statistical
evidence, anecdotal evidence, or evidence that a similarly-situated group was not subjected to the
same policies” (id).
This finding of commonality is not disrupted by the proposed addition of non-minority
class members. As previously noted, the crux of Plaintiffs’ allegations are that Defendants treated
the 911 Operators in the NYPD Communications Section, a majority-minority group, differently
than their non-majority-minority counterparts in the FDNY or EMS sections. Specifically,
Plaintiffs do not allege that non-minority 911 Operators received favorable
treatment compared to minority 911 Operators. Rather, Plaintiffs allege that the
City Defendants’ discriminatory intent is demonstrated by their imposition of
policies and practices on the 95%-minority 911 Operators unit that were not
imposed on the City’s predominately non-minority dispatcher units outside the
NYPD, including the FDNY and EMS dispatcher units.

11

(M&O, Dkt. 115, at 25.) Given that Plaintiffs’ allegations have always focused on discrimination
at the group, as opposed to individual, level, the addition of the non-minority 911 Operators does
not destroy commonality. In fact, Defendants have acknowledged that the practices and policies
that Plaintiffs challenge apply to all, rather than just the minority, 911 Operators. (M&O, Dkt.
115, at 56.) Therefore, the common questions relating to the Defendants’ challenged practices and
policies apply equally to the claims of the minority and non-minority 911 Operators.
C.

Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical
of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality requirement “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.” Shahriar v. Smith &
Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir. 2011) (quoting Robidoux v. Celani, 987
F.2d 931, 936 (2d Cir. 1993). Typicality ensures that class representatives have the proper
incentive to prove all elements of the cause of action that would be presented by individual
members of the class if they were pursuing their own individualized actions. Floyd v. City of New
York, 283 F.R.D. 153, 175 (S.D.N.Y. 2012) (citing In re NASDAQ Market-Makers Antitrust Litig.,
169 F.R.D. 493, 510 (S.D.N.Y. 1996)). Commonality and typicality often merge because “[b]oth
serve as guideposts for determining whether under the particular circumstances maintenance of a
class action is economical and whether the named plaintiff’s claim and the class claims are so
interrelated that the interests of the class members will be fairly and adequately protected in their
absence.” Wal-Mart, 564 U.S. at 349 n.5.
As with its commonality analysis, the Court does not find that its previous finding of
typicality is disrupted by the proposed addition of non-minority class members to the classes. As

12

discussed supra, the claims of both the minority and non-minority 911 Operators are grounded in
the same “overarching pattern of discrimination.” (M&O, Dkt. 115, at 56.) Therefore, though all
of the named Plaintiffs are minorities (id. at 4), their claims are still typical of the claims of the
non-minority 911 Operators. For example, each named Plaintiff, like any other 911 Operator,
regardless of race, alleges that he or she was subject to the same policies and practices, including
blanket sick leave cancellations, mandatory overtime policies, and automatic ADA declarations.9
Non-minority class members have also, allegedly, suffered these injuries for the same reason as
their minority named Plaintiff counterparts, i.e., because of Defendants’ discriminatory intent
towards their majority-minority unit. Therefore, the Court finds that the claims of the named
Plaintiffs are typical of the claims of the proposed classes.10
D.

Adequacy

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4). The representative parties may be found
inadequate if there are conflicts of interest between the named plaintiffs and the class they seek to
represent. Amchem, 521 U.S. at 625. “Adequacy of representation is evaluated in two ways: (1)
by looking to the qualifications of plaintiffs’ counsel; and (2) by examining the interests of the
named plaintiffs.” Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 164 (S.D.N.Y. 2014) (quoting

9

Furthermore, as noted in the Court’s original certification “[t]he factual variations in each
named Plaintiff’s experiences with these policies do not destroy typicality so long as the dispute
issues occupy the same degree of centrality between the named representatives and the class.”
(M&O, Dkt. 115, at 59 (citing Caridad v. Metro–N. Commuter R.R., 191 F.3d 283, 293 (2d
Cir.1999); and Latino Officers Ass’n v. City of New York, 209 F.R.D. 79, 88 (S.D.N.Y.2002)).)
10

As the Court noted in its previous certification, named Plaintiffs Cynthia Hill and Andrea
Holly, who are retired, do not have standing to seek injunctive relief and therefore cannot be named
Class Representatives for the purposes of the Rule 23(b)(2) class. However, as former employees,
they do have standing to seek monetary relief, and therefore can be Class Representatives for the
23(b)(3) class.
13

Flores v. Anjost Corp., 284 F.R.D. 112, 128–29 (S.D.N.Y. 2012)). In examining the interests of
named plaintiffs, courts consider whether they are prepared to fully litigate the action or have any
known conflicts with other class members. Shayler v. Midtown Investigations, Ltd., No. 12-CV4685 (KBF), 2013 WL 772818, at *5 (S.D.N.Y. Feb. 27, 2013). A conflict of interest “must be
fundamental” and concrete to defeat a motion for certification. In re Flag Telecom Holdings, Ltd.
Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (quotation omitted). In addition, class counsel must be
“‘qualified, experienced[,] and generally able’ to conduct the litigation.” In re Drexel Burnham
Lambert Grp. Inc., 960 F.2d 285, 291 (2d Cir. 1992) (quoting Eisen v. Carlisle & Jacquelin, 391
F.2d 555, 562 (2d Cir. 1968)).
The Court finds that the named Plaintiffs continue to be adequate class representatives,
notwithstanding the proposed change to the makeup of the class. The Court does not believe that
the interests of the minority named Plaintiffs are in fundamental conflict with the interests of
proposed non-minority class members because, as discussed supra, all class members, regardless
of their race, encountered the same discriminatory practices and policies that are at the core of this
action. The Court also finds that class counsel continues to be competent and adequate as they
have navigated this action successfully through the discovery and settlement process. The Court
therefore finds that the adequacy requirement of Rule 23 is satisfied as to the proposed new classes.
E.

Ascertainability

Under the Second Circuit’s implied ascertainability requirement, “a class is ascertainable
if it is defined using objective criteria that establish a membership with definite boundaries.” In
re Petrobras Sec., 862 F.3d 250, 257 (2d Cir. 2017). The party seeking certification is not
“require[ed to make] a showing of administrative feasibility at the class certification stage.” Id. at
265. Both proposed classes are ascertainable because the membership can be determined with

14

reference to objective criteria. Specifically, both classes consist of employees within a specific
NYPD unit who held specific titles over a defined period of time. Therefore, the implied
requirement of ascertainability is also satisfied.
*

*

*

Accordingly, the Court finds that the two proposed Rule 23(b) classes satisfy all four
requirements of Rule 23(a), as well as the additional implied requirement of ascertainability.11
III.

Rule 23(b) Factors
Having found that Rule 23(a)’s requirements are satisfied, the Court must now determine

whether the proposed classes satisfy the relevant requirements under Rule 23(b).
11

By finding that a proposed class of minority and non-minority class members alleging
racial discrimination claims satisfies the requirements of Rule 23(a), the Court respectfully
disagrees with previous decisions in this Circuit finding that “[i]t is impossible . . . for [D]efendants
to have engaged in racial discrimination against both minorities and non-minorities at the same
time.” Strykers Bay Neighborhood Council, Inc. v. City of New York, 695 F. Supp. 1531, 1537
(S.D.N.Y. 1988) (denying class certification because “[t]he claims of minority and non-minority
class members are . . . inconsistent with each other [and] [b]ecause of this inherent inconsistency,
it is impossible to find a representative who can adequately represent the entire class as required
by Rule 23(a)(4)” ); see also 3004 Albany Crescent Tenants’ Ass’n v. City of New York, No. 95CV-10662 (BSJ), 1999 WL 1067891, at *3 (S.D.N.Y. Nov. 24, 1999) (denying class certification
for failing to satisfy commonality and typicality because “the claims of non-minority tenants and
minority tenants in the proposed class are inconsistent”).
The Court finds that the reasoning regarding standing in Trafficante v. Metropolitan Life
Insurance Co., 409 U.S. 205 (1972), Gladstone, Realtors v. Bellwood, 441 U.S. 91 (1979), and
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), which all held that a non-minority plaintiff
could sue for racial discrimination under the Fair Housing Act, is relevant to the determinations
required under Rule 23(a) in the employment context. In the same way that “[e]veryone in a
neighborhood, regardless of race, is aggrieved by housing discrimination practices, [and therefore]
. . . has claims typical of the others,” Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703
N.E.2d 340, 347 (Ohio Ct. Com. Pl. 1996), every employee in a workplace, aggrieved by the
discriminatory policies and practices aimed at that workplace, has the same type of claim in an
action challenging those policies. Ensuring that class action claims are sufficiently congruent is
the underlying purpose of most of Rule 23(a)’s requirements. See Wal-Mart, 564 U.S. at 349 n.5
(noting that the commonality, typicality, and adequacy-of-representation requirement all tend to
merge because all three inquiries “serve as guideposts for determining . . . whether the named
plaintiff’s claim and the class claims are so interrelated that the interests of the class members will
be fairly and adequately protected in their absence”).
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A.

FRCP 23(b)(2)

A class may be certified under Rule 23(b)(2) if “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). “A Rule 23(b)(2) class is appropriate only when ‘a single injunction or declaratory
judgment would provide relief to each member of the class.’” Ault v. J.M. Smucker Co., 310
F.R.D. 59, 68 (S.D.N.Y. 2015) (quoting Wal-Mart, 564 U.S. at 360). “It does not authorize class
certification when each individual class member would be entitled to a different injunction or
declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 360.
As with its Rule 23(a) analysis, the Court relies on, and incorporates by reference its
September 28, 2015 decision regarding Plaintiffs’ original motion for class certification. (See
M&O, Dkt. 115, at 62–65.) The Court does not find that the addition of non-minority class
members changes its analysis as to whether certifying a class seeking injunctive relief is
appropriate. All of the Defendants’ challenged actions—e.g., blanket cancellation of sick leave,
imposition of mandatory double- or overtime-shifts, and requiring 911 Operators to undergo
“sham” medical examinations when they requested reasonable ADA accommodations—were
enforced against the non-minority 911 Operators as much and in the same manner as they were
enforced against their minority counterparts. Likewise, Defendant Union’s alleged failure to
protect the 911 Operators is equally applicable to both the minority and non-minority Operators.
Therefore, Defendants have acted on grounds generally applicable to the proposed larger class. In
fact, the Court notes that even if the class had not been changed to include non-minority class
members, those employees would nonetheless have stood to gain from the proposed injunctive
relief in the settlement, as it requires Defendants to implement changes that will affect the whole

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unit. Therefore, the Court certifies a Rule 23(b)(2) class of current employees to seek declaratory
and injunctive relief.
B.

FRCP 23(b)(3)

A class may be certified under Rule 23(b)(3) if “the court finds that the questions of law or
fact common to class members predominate over any questions affecting only individual class
members, and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
1.

Predominance

“With respect to common issues, Rule 23(b)(3), by its plain terms, imposes a ‘far more
demanding’ inquiry into the common issues which serve as the basis for class certification.” Sykes
v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 81 (2d Cir. 2015) (quoting Amchem, 521 U.S. at
623–24). “Rule 23(b)(3), however, does not require a plaintiff seeking class certification to prove
that each element of her claim is susceptible to class[-]wide proof.” Amgen Inc. v. Conn. Ret.
Plans & Tr. Funds, 568 U.S. 455, 469 (2013) (internal quotations, brackets, and citation omitted).
“That is, ‘[i]ndividual questions need not be absent. The text of Rule 23(b)(3) itself contemplates
that such individual questions will be present. The rule requires only that those questions not
predominate over the common questions affecting the class as a whole.’” Sykes, 780 F.3d at 81
(quoting Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012)); see also
Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002) (“Class-wide issues predominate
if resolution of some of the legal or factual questions that qualify each class member’s case as a
genuine controversy can be achieved through generalized proof, and if these particular issues are
more substantial than the issues subject only to individualized proof.”). “Although predominance
is a more stringent inquiry, ‘satisfaction of the typicality requirement of Rule 23(a) . . . goes a long

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way toward satisfying the Rule 23(b)(3) requirement of commonality.’” Stinson v. City of New
York, 282 F.R.D. 360, 382 (S.D.N.Y. 2012) (quoting Rossini v. Ogilvy & Mather, Inc., 798 F.2d
590, 598 (2d Cir.1986)).
In order to assert a pattern or practice disparate treatment claim, Plaintiffs must show that
“(1) the alleged racial discrimination amounted to more than sporadic acts of discrimination, but
rather the defendant’s ‘standard operating procedure’ or the ‘regular rather than unusual practice,’
and (2) the discrimination was directed at a class of victims.” (M&O, Dkt. 115, at 17 (quoting
United States v. City of New York, 717 F.3d 72, 83 (2d Cir. 2013)).) In the instant action, the
gravamen of every class member’s claim is that Defendants engaged in an “overarching pattern of
discrimination, including blanket cancellation of sick leave, mandatory double-shifts and/or
overtime shifts several times a week, and automatic declarations that operators who request limited
overtime as an ADA accommodation were unfit for duty.” (M&O, Dkt. 115, at 56.) These claims
are provable at a class-wide level, based on evidence showing that Defendants had such policies
in place and that they were uniformly enforced against 911 Operators in the NYPD
Communications unit. (Cf. M&O, Dkt. 115, at 22 (noting that at the initial liability phase, instances
of discrimination against specific employees are not required).) In this way, the nature of
Plaintiffs’ claim lends itself to the need for generalized proof to satisfy the predominance
requirement: the essence of a pattern-or-practice claim is that if a pattern or practice exists as to
one employee, it exists as to all employees given that the claim requires that the employer’s
behavior be the “standard operating procedure.”
Furthermore, Plaintiffs’ claim that these policies are the result of Defendants’
discriminatory intent are also subject to generalized proof, since Plaintiffs allege that Defendants
did not impose these policies on similarly situated non-minority groups, such as the FDNY and

18

EMS dispatchers. (See M&O, Dkt. 115, at 24.) The evidence required to prove such a claim will
be equally applicable to all class members, since it requires analysis at the group level. (See M&O,
Dkt. 115, at 25–26 (“Plaintiffs allege that the City Defendants’ discriminatory intent is
demonstrated by their imposition of policies and practices on the 95%-minority 911 Operators unit
that were not imposed on the City’s predominately non-minority dispatcher units outside the
NYPD, including the FDNY and EMS dispatcher units.” (emphasis added)).) Proving such a claim
would likely also involve statistical evidence, an example of generalized proof. See Chen-Oster
v. Goldman, Sachs & Co., 325 F.R.D. 55, 82–83 (S.D.N.Y. 2018) (noting that in a disparate
treatment pattern-or-practice claim, “Plaintiffs’ statistical evidence of . . . disparities is the type of
generalized proof that satisfies the predominance requirement”).
Of course, even if the answers to these common questions show that Defendants are liable,
some individualized determinations might be required. (See M&O, Dkt. 115, at 23 (noting that “if
Plaintiffs succeed in showing that the City Defendants maintained a discriminatory pattern or
practice, individual adverse employment decisions will be litigated at the remedial phase”).)
However, “[t]he individualized nature of the potential damages does not preclude a finding that
common questions of law and fact predominate over individualized damages.” Jermyn v. Best Buy
Stores, L.P., 256 F.R.D. 418, 435 (S.D.N.Y. 2009) (internal quotations and citations omitted); cf.
Wal-Mart, 564 U.S. at 362 (“[I]t [is] clear that individualized monetary claims belong in Rule
23(b)(3).”). Accordingly, the Court finds that Rule 23(b)(3)’s predominance requirement is
satisfied.

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2.

Superiority

“The second prong of Rule 23(b)(3) requires that Plaintiffs demonstrate that a class action
is ‘superior to other available methods for fairly and efficiently adjudicating the controversy.’”
Stinson, 282 F.R.D. at 383 (quoting Fed. R. Civ. P. 23(b)(3)).
The matters pertinent to [superiority] include: (A) the class members’ interests in
individually controlling the prosecution or defense of separate actions; (B) the
extent and nature of any litigation concerning the controversy already begun by
. . . class members; (C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and (D) the likely difficulties in
managing a class action.
Fed. R. Civ. P. 23(b)(3); see also Sykes, 780 F.3d at 82 (“[W]hile these factors, structurally, apply
to both predominance and superiority, they more clearly implicate the superiority inquiry.”).
However, in the context of class action settlements, the Court is not required to consider the “likely
difficulties in managing a class action.” See Amchem, 521 U.S. at 620. “Class actions are the
superior method for resolving controversies when the main objects of Rule 23 are served, namely
the efficient resolution of the claims or liabilities of many individuals in a single action, as well as
the elimination of repetitious litigation and possibly inconsistent adjudications.” Rodolico v.
Unisys Corp., 199 F.R.D. 468, 479–80 (E.D.N.Y. 2001) (citing Califano v. Yamasaki, 442 U.S.
682, 700–01 (1979)); see also Amchem, 521 U.S. at 617 (noting that the Advisory Committee, in
outlining the factors of Rule 23(b)(3), “had dominantly in mind [the] vindication of the rights of
groups of people who individually would be without effective strength to bring their opponents
into court at all”) (internal quotations and citation omitted).
In the instant case, the Court finds that the relevant superiority factors weigh in favor of
certifying the proposed Rule 23(b)(3) class. The Court is not aware of any other litigation
concerning the controversy at issue in this action. That this action is over five years old (see Dkt.
1) also suggests that potential class members do not have a strong interest in pursuing litigation on

20

their own. This is not surprising, given that the likely monetary relief is not likely to exceed the
costs of pursuing an individual claim. (Cf. Proposed Settlement Agreement, Dkt. 199-1, at 9–10
(class members will receive a total of $205 in monetary compensation).); see also Stinson, 282
F.R.D. at 383 (“the relatively small amount of damages suffered by each individual plaintiff
decreases the possibility of individual lawsuits being filed”); Jermyn, 256 F.R.D. at 436 (finding
superiority where “[e]ach class member’s claim is too small to warrant bringing an individual
lawsuit”). Furthermore, in light of the potential class size of over 1,000 current and former
employees, it is clearly desirable to concentrate the litigation of their claims into a single action.
The Court therefore finds that the superiority requirement of Rule 23(b)(3) is satisfied.
*

*

*

Because Plaintiffs have satisfied both the predominance and superiority requirements of
FRCP 23(b)(3), this Court certifies a Rule 23(b)(3) class of current and former employees to seek
monetary relief.
CONCLUSION
For the reasons stated herein, the Court amends its previous class certification and certifies
the following two classes in this action:
Section 1981 Rule 23(b)(2) class: All individuals who are currently employed by
the City of New York as Police Communications Technicians (“PCTs”) or
Supervisor Police Communications Technicians (“SPCTs”) in the NYPD
Communications Section.
Section 1981 Rule 23(b)(3) class: All individuals who are currently employed, or
have been employed within the three years preceding the filing of this action on
November 6, 2013, by the City of New York as Police Communications
Technicians (“PCTs”) or Supervisor Police Communications Technicians
(“SPCTs”) in the NYPD Communications Section.

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SO ORDERED.
/s/ Pamela K. Chen
PAMELA K. CHEN
UNITED STATES DISTRICT JUDGE
Dated: April 29, 2019
Brooklyn, New York

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