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COKELY v. NEW YORK CONVENTION CENTER OPERATING CORP.

March 31, 2003

DAVID COKELY, NATASHA PEREZ, SEAN HANNAH, JULIO TERAN, INDIVIDUALLY AND AS CLASS REPRESENTATIVES ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND DENNIS CROWLEY, ROBERT IADAROLA AND DANIEL PERRELLA, INDIVIDUALLY, PLAINTIFFS, AGAINST THE NEW YORK CONVENTION CENTER OPERATING CORPORATION, GERALD T. MCQUEEN, RICHARD POWERS, AND AL TOMACZUK, DEFENDANTS.


The opinion of the court was delivered by: Constance Baker Motley, United States District Judge

MEMORANDUM OPINION AND ORDER
INTRODUCTION AND BACKGROUND

Plaintiffs David Cokely, Natasha Perez, Sean Hannah and Julio Teran, on behalf of themselves and all other persons similarly situated, bring this putative class action, alleging discrimination based on race, ethnicity and gender against the New York Convention Center Operating Corporation ("NYCCOC"), the entity that runs the Jacob K. Javits Convention Center ("the Javits Center"), as well as three individuals, Richard Powers ("Powers"), Gerald McQueen ("McQueen") and Alexander Tomaczuk ("Tomaczuk") (collectively, "Individual Defendants"). The suit is brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1981 et seq.; the 1991 Civil Rights Act, as amended, 42 U.S.C. § 1981a et seq.; and 42 U.S.C. § 1983 et seq..

In their Second Amended Complaint, plaintiffs allege that the discrimination practiced by the white males who run the Javits Center is manifested in four different ways. First, plaintiffs complain that the job allocation and promotion system is manipulated to give white male employees preferences with respect to the type and amount of work assigned and greater opportunities to obtain higher paying jobs at the Javits Center. Second, plaintiffs claim that management has created and condones a hostile work environment rife with racist and misogynist epithets. Third, plaintiffs allege that they have been denied various privileges of employment and singled out for reprimand because of their race and/or gender. Finally, plaintiffs argue that they have suffered retaliation for complaining to management about this discrimination.

Plaintiffs' Motion for Class-Certification

Currently before the court is plaintiffs' Motion for Class Certification. Plaintiffs offer two alternative schemes for certification:

Scheme A.

Plaintiffs move that the court certify "a class of all black and Hispanic persons who are or have been employed as freight handlers, carpenters or housekeepers at the Javits Center from July 1, 1995 to the present (`the Class')." Pl.s' Mem. in Supp. at 2. "The representative plaintiffs seek certification on behalf of the entire Class, including their claims for injunctive and equitable relief, backpay and compensatory and punitive damages under Rule 23(b)(2)." Id. at 2-3; or, alternatively,
Scheme B.
Plaintiffs move that the court "certify the Class's claims for injunctive and other equitable relief under Fed.R.Civ.P. 23(b)(2), and . . . certify the claims for the Class' compensatory and punitive damages under Fed. R. Civ. P. 23(b)(3), with three separate 23(b)(3) subclasses consisting of: (1) minority freight handlers; (2) minority carpenters; and (3) minority housekeeping employees." Id. at 3.
For the reasons explained in the Discussion section below, although the court believes that at least some aspects of this case may be fit for adjudication as a class action (under some version of Scheme B and along the lines of the partial certification mandated by the Second Circuit in Robinson v. Metro North Commuter R.R., 267 F.3d 147, 168 (2d Cir. 2001)), plaintiffs' motion is denied without prejudice.

Procedural History

The original complaint filed in this matter was brought on behalf of fifty current and former Javits Center employees, in their individual capacities. Initial Complaint, June 22, 2000. That was followed by the First Amended Complaint, which joined an additional thirty-eight plaintiffs, bringing the total number to eighty-eight. First Amended Complaint, January 4, 2002. Still, the suit was not brought on behalf of a formal class. On April 8, 2002, attorneys for plaintiffs wrote to the court suggesting that in setting a discovery schedule it order the parties to "select [several] representative `test claims' . . . and conduct discovery on those claims. . . ." Fraser Aff. Ex. A (Weprin Letter, April 8, 2002). Plaintiffs' attorneys noted that the case "has certain similarities to a class action" and that the proposed test claim scenario would thus be appropriate under the Second Circuit's recent holding in Robinson. Fraser Aff. Ex. A (Weprin Letter). Attorneys for defendants NYCCOC and Individual Defendants opposed this suggestion (and NYCCOC explicitly took no position on whether the matter was appropriate for class treatment). Fraser Aff. Ex. A (Levin Letter, April 25, 2002).

The court, familiar with the pleadings and the similarities of at least some of the allegations of the eighty-eight plaintiffs, ordered plaintiffs to move for partial class certification by Order dated June 5, 2002.*fn1 Having ordered that defendant NYCCOC produce documents relating to personnel and other matters see Orders dated June 5, 2002 and July 18, 2002, the court presumed that plaintiffs would have the information necessary to make at least a modest evidentiary showing in support of their Motion.

DISCUSSION

The court finds that plaintiffs have not met their evidentiary burden in moving to have their class certified and will discuss that failure first. However, some of the reasons offered by defendants in opposition to the motion are ...


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