United States District Court, E.D. New York
January 26, 2004.
FRANK WARREN, et. al., Plaintiffs against XEROX CORPORATION, Defendant
The opinion of the court was delivered by: ROANNE MANN, Magistrate Judge
REPORT AND RECOMMENDATION
Currently pending before this Court, on a referral from the Honorable
John Gleeson, is a motion by plaintiffs Frank Warren, Clifford Brooks,
Alicia Dean-Hall, Kenneth Jimerson, Dora Miller, and Gene Simms
("plaintiffs") for class certification pursuant to Rule 23 of the Federal
Rules of Civil Procedure. Defendant Xerox Corporation ("defendant" or
"Xerox") opposes the motion. For the reasons that follow, it is the
recommendation of this Court that plaintiffs' motion for class
certification be granted for the purpose of determining liability on
plaintiffs' disparate impact and treatment claims.
The six named plaintiffs are black sales employees of Xerox who worked
at various locations throughout the United States, including New York and
California. See Class Action Complaint and Jury Demand
("Compl.") at ¶¶ 6-11. In their Complaint, plaintiffs allege that from
February 1997 through the filing of the complaint in 2001, Xerox carried
out a continuing pattern and practice of race discrimination and
retaliation by: "(i) systematically assigning black salespeople to
inferior sales territories, often located in low-income or minority
neighborhoods; (ii) refusing to promote them or to transfer them to more
no matter how hard they work or how well they perform; (iii)
denying them sales commissions they have rightfully earned; and (iv)
retaliating against black salespeople who assert their civil rights."
Id., at ¶ 1; see id., at ¶ 130.
Xerox's employment policies and practices, plaintiffs contend, violated
various federal and state civil rights laws. See id.
at ¶ 2.
On February 17, 2000, plaintiff Kenneth Jimerson filed a charge of
discrimination with the Equal Employment Opportunity Commission ("EEOC"),
claiming that he and a class of African-American sales representatives
were being discriminated against by Xerox on account of their race.
See EEOC Charge, attached as Exhibit B to Affidavit of Eugene
D. Ulterino, Esq., dated July 15, 2003 ("Ulterino Aff.").*fn1 Later that
year, Jimerson filed a second charge with the EEOC, this time asserting a
claim of retaliation pertaining only to himself. See Charge of
Retaliation [DX C]. The EEOC issued a Determination and Right to Sue
letter to Jimerson on February 9, 2001. See Determination and
Right to Sue Letter [DX D]. In that letter, the EEOC concluded that the
"[e]vidence shows that [Xerox] relied on a nondiscriminatory reason for
assigning [Jimerson] to public sector accounts rather than assigning a
female who had more public sector accounts prior to the 2000
restructuring." Id. at 1.*fn2
On August 7, 2002, in response to charges filed by other
African-American sales representatives employed by Xerox, the EEOC issued
a "reasonable cause" determination that
Xerox had engaged in a pattern or practice of discrimination on the
basis of race. See EEOC Amended Determination, attached as
Exhibit 3 to Affirmation of Douglas Hoffman, Esq., dated May 30, 2003
The six named plaintiffs filed this suit against Xerox on May 9, 2001,
claiming that their employer conducted "a continuing pattern and practice
of race discrimination and retaliation" against black sales
representatives. Compl. at ¶ 1. In their Complaint, plaintiffs allege
three theories of liability: (1) disparate treatment; (2) disparate
impact; and (3) retaliation. See id.; Transcript of
Oral Argument dated October 14, 2003 ("10/14/03 Tr.") at 29-30. Counts I
and II allege violations of federal law under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under
42 U.S.C. § 1981 et seq. See Compl, at ¶¶ 141-49.
Counts III, IV, and V charge that Xerox's conduct violated state and city
municipal codes, to wit, N.Y. Executive Law § 296, Title 8 of the
Administrative Code of New York City, and the California Fair Employment
and Housing Act. See id., at ¶¶ 150-65,
After completion of the first phase of discovery, pertaining solely to
class certification issues, this Court conducted settlement discussions
on April 16, 2003, which were unsuccessful at resolving the case.
See Docket Sheet at Docket No. 19. On May 30, 2003, plaintiffs
moved to certify this suit as a class action. See Notice of
Motion, attached to Hoffman Aff. Following Judge Gleeson's referral of
the motion (see Order endorsed on Letter from Christopher
D'Angelo, Esq., dated May 9, 2003), this Court heard oral argument on
plaintiffs' motion for class certification on October 14, 2003,
See 10/14/03 Tr. At the
conclusion of the hearing, the Court again conducted settlement
discussions that proved unproductive. See id. at 86-87.
Plaintiffs seek an order certifying their entire case as a class
action, with the class defined as "[a]ll black individuals employed at
Xerox Corporation in the United States as a salesperson at any time from
February 1, 1997 to the present, or who will be employed as a salesperson
between the date of the filing of the Complaint in this action and the
date of judgment." Notice of Motion, attached to Hoffman Aff., at 1;
see also Compl, at ¶ 130. Plaintiffs contend that the class
action is maintainable under Rule 23(b)(2) of the Federal Rules of Civil
Procedure, or alternatively, Rule 23(b)(3). See Compl, at ¶¶
138-39. They also request certification of three subclasses within the
proposed class, comprising black salespersons employed by Xerox in the
State of New York, City of New York, and State of California,
respectively. See id. at ¶¶ 131-33.*fn4
Summary of Plaintiffs' Proof
All six named plaintiffs provide similar anecdotal accounts of racially
discriminatory territory assignment. See generally PX
4 (Warren Affidavit); PX 5 (Dean-Hall Affidavit); PX 6 (Simms Affidavit);
PX 7 (Brooks Affidavit); PX 8 (Miller Affidavit); PX 13 (Excerpts from
the Deposition Transcript of Kenneth Jimerson). Plaintiffs allege that
they were initially assigned to small, unprofitable territories while
their white counterparts were given lucrative territories with
established accounts. See, e.g., Compl, at ¶¶
41-42 (Warren); 56 (Brooks); 72-73 (Dean-Hall); 86 (Jimerson); 105
(Miller); 119 (Simms).*fn5 Five of the six contend that when they
applied for promotions or better positions, they were rejected in favor
of less qualified white co-workers. See id. at ¶
43, 45, 47-48 (Warren); 58 (Brooks); 79-82 (Dean-Hall); 112 (Miller);
121-22 (Simms). Several state that the explanation given for such
racially disparate treatment was that the plaintiff was not "the right
fit" (id. at ¶ 82 (Dean-Hall); Dean-Hall Aff. [PX 5] at
¶ 13; Compl, at ¶ 120 (Simms); Simms Aff. [PX 6] at ¶ 9) or
that the white employee "fit in better with the team." Compl, at ¶ 46
(Warren); Warren Aff. [PX 4] at ¶ ll. Additionally, four plaintiffs
complain that Xerox moved them to worse territories or stripped the best
accounts from their territories. See Compl, at ¶¶ 65
(Brooks); 74 (Dean-Hall); 89, 91 (Jimerson); 106, 117 (Miller). Two
plaintiffs, Brooks and Jimerson, further allege that Xerox attempted to
deny them commissions they earned on accounts that were either
rotated out of their territories or taken over by white colleagues.
See id. at ¶¶ 57 (Brooks); 90 (Jimerson).
Plaintiffs also detail instances of discriminatory disciplinary and/or
retaliatory conduct by Xerox. Three plaintiffs Brooks, Jimerson,
and Miller claim they were disciplined for performance
deficiencies although similarly situated white colleagues were not
punished. See id. at ¶¶ 59-61 (Brooks); 96
(Jimerson); 109-10, 113-14, 116 (Miller). All six plaintiffs assert that
they complained to Xerox of discrimination, either to a superior (Sales
Manager or Vice President), Human Resources Manager, or both.
See id. at ¶¶ 44, 46 (Warren); 66, 69 (Brooks);
93-94 (Jimerson); 123-24 (Simms); Excerpts from the Deposition Transcript
of Dora Miller ("Miller Dep.") [PX 15] at 31-34; Excerpts from the
Deposition Transcript of Alicia Dean-Hall [PX 10] at 48-49. Three
plaintiffs Brooks, Jimerson, and Miller allege that Xerox
subsequently retaliated against them for either complaining of
discrimination or supporting the allegations of other black sales
representatives. See Compl, at ¶¶ 61-62 (Brooks); 100-01
(Jimerson); Miller Dep. [PX 15] at 31-36, 42.
In addition to anecdotal evidence of discrimination, plaintiffs rely on
an analysis conducted by their statistical expert, Dr. Leonard Cupingood.
See Pl. Mem. at 2. After analyzing compensation data on an
aggregate, company-wide basis, Dr. Cupingood concluded that during the
relevant time period, and controlling for salary grade, sales experience
at Xerox, and seniority, black salespeople at Xerox earned "statistically
significantly less total compensation than white commission sales
employees in each year from 1997 to 2001." Statistical Analysis of
Commission Earnings and Total Compensation Among Commission Sales
Employees at Xerox During the Period 1997-2001, by Dr. Leonard Cupingood
February 21, 2003 ("Cupingood Report") [PX 2] at 2.*fn6 The
statistical significance of the disparity in average per-person
compensation varied from year to year, but, according to Dr. Cupingood,
reached a high of $15,483 in 2000, representing a difference of 6.4
standard deviations. See Pl. Mem. at 2.*fn7
Xerox's Organizational Structure
In opposing plaintiffs' motion, defendant proffers evidence to
establish the decentralized and multifaceted process through which
assignments are made at Xerox and compensation determined. Plaintiffs do
not at this point refute the defense accounts but instead challenge their
Defendant manufactures, develops, and markets a range of document
solutions, services, and systems, including various kinds of printers,
presses, and copiers. See Affidavit of John DiVincenzo dated
July 14, 2003 ("DiVincenzo Aff.") at ¶ 2. Nationwide, Xerox employs
approximately 2,500 sales representatives, who work at 31 sales
operations. See id.
Between 1997 and 2001, Xerox on several occasions significantly
restructured its direct sales operations. See id., at
¶ 6. From 1997 to 1999, direct sales were handled by two separate
organizations within Xerox, United States Customer Operations ("USCO")
and Xerox Business Services ("XBS"). See id. USCO,
which mainly sold and leased document processing machines, systems, and
equipment-services contracts, divided its sales operations
into geographic or industry-focused entities, which were further
divided into several dozen Customer Business Units ("CBUs").
See id. at ¶ 7. The CBUs, which functioned as
separate business organizations, were each managed by a Vice
President/General Manager and were responsible for meeting centrally
determined overall revenue goals. See id. at ¶¶ 7,
XBS primarily sold on-site document management services contracts.
See Affidavit of Kevin Zielinski dated July 9, 2003 ("Zielinski
Aff.") at ¶ 5. XBS was divided into geographic regions, each overseen
by a Vice President/Region General Manager. See id.,
These regions were further divided into several dozen local sales
operations with responsibilities similar to CBUs for "implementing sales
activities" in their region and meeting overall revenue goals.
See id. Each year, XBS developed its own strategies
for territory coverage, marketing, and account management, and
promulgated and implemented its own sales coverage guides, quota
methodologies, and compensation plans, with input from Xerox corporate
executives; subject to centrally determined principles and guidelines,
local management was vested with considerable discretion in determining
territory configuration and assignments. See id. at
¶¶ 6-7, 16-26.
In January 1999, Xerox formed the North American Solutions Group
("NASG") and created, within USCO, a Public Sector entity, which grouped
governmental, public, and academic institutions accounts. See
id., at ¶ 8; DiVincenzo Aff. at ¶¶ 6-7, 10, A year
later, the sales operations of USCO and XBS were merged into NASG.
See DiVincenzo Aff. at ¶¶ 6, 9; Zielinski Aff. at ¶ 8.
This reorganization took place pursuant to a change in Xerox's direct
sales strategy from a geographic, or horizontal, focus to an industrial,
or vertical, focus. See DiVincenzo Aff. at ¶ 8; Zielinski
Aff. at ¶ 8. As part of the reorganization, XBS local
sales operations and USCO CBUs were consolidated into larger
business units, which were realigned to service specific industry
sectors. See DiVincenzo Aff. at ¶ 9.
As soon became evident, the vertical realignment process disrupted
customer relationships, adversely affected Xerox's sales, and caused
substantial dissatisfaction across Xerox's sales force. See
id. As a result, prior to the end of the second quarter of
2000, Xerox reorganized some of the vertical entities back into
geographic sales operations. See id. at ¶ 10. The
only entity that was not subsequently reorganized was the Public Sector
entity, which remained unchanged. See id. By
September 2000, Xerox had fully implemented its new reorganization back
to a horizontal sales strategy. See id.
Compensation of Sales Representatives
Although a number of elements influenced the compensation of Xerox
sales representatives, four factors predominated, namely "base salary,
sales territory, territory quota or budget, and individual performance
(revenue produced)." Id., at ¶ 15. Sales representative
compensation typically comprised two elements: a fixed base salary and a
"pay-at-risk" portion, the latter of which an employee could influence
through performance. Id. at ¶¶ 1516. The specific base
salary for a sales representative was set by Xerox at the local level by
the sales manager for that (NASG/USCO) CBU or (XBS) local sales operation
(hereinafter collectively referred to as "the local sales entities"),
within centrally determined parameters and with instructions and guidance
from Xerox's Human Resources Department. See id. at
15; Affidavit of Edward Ciaschi dated July 11, 2003 ("Ciaschi Aff.") at
¶¶ 23-26. Thus, each sales position or title was assigned a salary
grade, and the base salary would be set at the local level within the
predetermined salary range for that grade. See Ciaschi Aff. at
¶¶ 23. The
pay-at-risk element of compensation was composed of commission
rates and bonuses based on the sales representative's individual
performance. See DiVincenzo Aff. at ¶ 16. NASG/USCO and XBS
each issued written directives specifying the "typical base/at-risk
compensation split and the formulas for commissions and bonuses for each
type of sales position." Id. The salary/incentive ratios ranged
from the "most common" ratio for NASG/USCO sixty percent
salary/forty percent incentives, see id. at ¶¶ 16,
24 to XBS's "typical" ratios, ninety (or seventy) percent
salary/ten (or thirty) percent incentives, depending upon the job
position or title. See Zielinski Aff. at ¶ 9.*fn8
Pursuant to a "pay for performance" incentive, each sales
representative was assigned a quota "a specific numerical value
that represented the revenue expectation of a given sales territory"
against which his or her performance would be measured to
determine additional compensation above the base salary. DiVincenzo Aff.
at ¶ 17. In theory, the sales quota was designed to ensure fairness
in compensation by reflecting the revenue potential of the territory,
with sales expectations rising in conjunction with revenue potential.
See id., at ¶ 18. Commissions were calculated
according to a base rate for all sales revenue up to the quota, with an
overachievement rate applied to sales exceeding the quota. See
Although the local entities were provided headcount and sales goals,
see DiVincenzo Aff. at ¶¶ 30-31; Zielinski Aff. at ¶¶
16-17, 20, 22, they controlled, to a large extent, who would comprise
their sales staff and how that staff would be compensated. See
Aff. at ¶ 33; Zielinski Aff. at ¶ 23. To that end, sales
managers at the local entities determined and allocated territory
configurations and quota assignments for their sales representatives,
taking into account strategic business plans and revenue forecasts
projected by Xerox headquarters. See DiVincenzo Aff. at ¶¶
30-32; Zielinski Aff. at ¶¶ 16-17, 23. Territories were not usually
configured or assigned from scratch, but, on an annual basis, were
modified by managers from an existing territory base of accounts and
establishments, with the modifications taking into account centrally
determined sales coverage guidelines and marketing strategies for the
upcoming year. See DiVincenzo Aff. at ¶¶ 31-32; Zielinski
Aff. at ¶ 18.
After territories were configured, local entity sales managers set a
"quota" (NASG/USCO) or "budget" (XBS) specific to each territory.
See DiVincenzo Aff. at ¶ 34; Zielinski Aff. at ¶ 24,
During the existence of XBS from 1997 through 1999, "[l]ocal management
assigned a revenue budget for each account in accordance with
nationally-published budget guidelines." Zielinski Aff. at ¶ 25.
Within NASG/USCO, the quota or revenue target for that area often took
into account important business metrics such as potential page volume,
actual page volume, and historical revenue. See DiVincenzo Aff.
at ¶ 34. Although a territory's quota was initially determined using
a formula comprised of those business metrics, without any regard to the
identity of the assigned sales representative, the local sales manager
had the discretion to adjust the territory's quota in the event of
"extenuating local circumstances." Id. at ¶¶ 34-35.*fn9
While local sales managers typically made the final territory
assignment decisions, their discretion to match sales representatives to
territories was limited by a desire to minimize disruption of customer
relationships. See DiVincenzo Aff. at ¶ 33; Zielinski Aff.
at ¶ 20, 23. Therefore, once a sales representative was assigned to a
territory, that assignment was unlikely to change significantly "unless
the territory was eliminated, a new territory was created, the sales
representative bid for and was awarded a new position . . . or a sales
representative moved laterally into an open territory." DiVincenzo Aff.
at ¶ 33; see also Zielinski Aff. at ¶ 23.
Company Policy Regarding Diversity
During the relevant time period (from 1997 to 2001), Xerox's formal
human resource policy proscribed discrimination in all terms and
conditions of employment on the ground of any protected class status,
including race. See Human Resource Policy 201, attached as
Exhibit A to Ciaschi Aff.; see also Ciaschi Aff. at
¶ 5. Xerox developed affirmative action plans for each organization,
which were implemented and monitored by its Corporate Human Resources
Affirmative Action/Equal Employment Opportunity ("EEO") Office.
See Ciaschi Aff. at ¶ 8. Within the local entities, general
managers, with the assistance of an assigned EEO/Affirmative Action
Program Coordinator, were responsible for ensuring that those EEO
policies were carried out. See id., at ¶ 9.
"In addition to its affirmative action efforts, Xerox since 1985 has
comprehensive company-wide Balanced Work Force (BWF) strategy to
ensure proportional representation of all affirmative action groups
. . . and EEO categories . . . at all position levels and in all
business divisions and operating units." Id. at ¶ 10.
Between 1997 and 2001, this BWF strategy was applied to all Xerox sales
organizations. See id., at ¶ 12. Senior managers
were held accountable for achieving BWF goals for each sales operation,
which targeted proportional representation for each employee group by
salary grade level. See id. at ¶¶ 12-13. In
addition, in determining compensation, including base pay, managers were
required to consider BWF, along with an employee's "demonstrated sales
skills, market knowledge, sales experience, and job performance."
Id. at ¶ 26; see also id. at ¶ 24.
I. Class Certification
Rule 23 of the Federal Rules of Civil Procedure sets forth a two-step
process for determining whether certification of a class action is
appropriate. First, the party seeking class certification must establish
the four requirements of Rule 23(a), i.e., that:
(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.
Fed.R.Civ.P. 23(a). Second, the party seeking class
certification must satisfy one of the three subsections of Rule 23(b),
only two of which (b)(2) and (b)(3) are relevant here.
See Compl, at ¶¶ 138-39. Rule 23(b)(2) requires that "the
party opposing the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive
relief or corresponding declaratory relief with respect to the class as a
R. Civ. P. 23(b)(2). Rule 23(b)(3) provides that a class action is
maintainable if the court finds "that the questions of law or fact common
to the members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy." Fed.R.Civ.P. 23(b)(3).
The movant bears the burden of demonstrating that the criteria for
class certification have been satisfied. See Caridad v.
Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999);
Fed.R.Civ.P. 23(a). The Court, in evaluating a class certification motion,
must treat the complaint's allegations as true for that purpose.
See Spinner v. City of New York, No. 01 Civ. 2715 (CPS),
2003 U.S. Dist. LEXIS 19298, at *7 (E.D.N.Y. Oct. 6, 2003). Because
"Rule 23 is given liberal rather than restrictive construction," courts within
the Second Circuit are afforded significant flexibility in deciding
whether to grant certification. Marisol A. v. Giuliani,
126 F.3d 372, 377 (2d Cir. 1997) (internal quotation marks and citation
omitted). To that end, courts must rigorously inquire whether the
requirements of Rule 23 have been satisfied and may find it necessary to
"probe behind the pleadings" in order to resolve the certification
question. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 157,
160 (1982). "Nevertheless, a motion for class certification is not an
occasion for examination of the merits of the case." Caridad,
191 F.3d at 291.
A. Plaintiffs' Disparate Impact and Disparate Treatment
In moving for certification, plaintiffs rely primarily on a handful of
recent decisions by the Second Circuit and Southern District of New York,
in which classes were certified in actions alleging racial
discrimination. A brief discussion of the facts and holdings of three of
those decisions will precede this Court's application of the
Rule 23 criteria to the facts of the instant action.
In Robinson v. Metro-North Commuter Railroad Co.,
267 F.3d 147 (2d Cir. 2001), a Title VII action alleging race discrimination
with respect to promotion and discipline, and in an earlier appeal in the
same case, Caridad v. Metro-North Commuter Railroad, 191 F.3d 283,
the Second Circuit twice reversed the district court's denial of a motion
to certify a class and ultimately directed certification of the liability
stage of the disparate impact pattern-or-practice claim, The plaintiffs
in Robinson and Caridad challenged Metro North's
company-wide policy of delegating to department supervisors discretionary
authority to make employment decisions related to discipline and
promotion. Relying on statistical and anecdotal evidence, the plaintiffs
argued that this authority was exercised in a racially discriminatory
manner and had a disparate impact on African-American employees.
See Robinson, 267 F.3d at 155; Caridad, 191 F.3d
In Caridad, the Second Circuit rejected Metro North's
challenge to the persuasiveness of the plaintiffs' statistical evidence,
and held that such "statistical dueling" is not permitted on
a certification motion. Cardidad, 191 F.3d at 292. The
Court of Appeals further concluded in Caridad that the
delegation of discretionary authority constituted a policy or practice
sufficient to establish commonality under Rule 23(a). See
Caridad, 191 F.3d at 291-92. In Robinson, the Second
Circuit reaffirmed these principles, directing certification of the
disparate impact claim on the basis of the plaintiffs' statistical report
and anecdotal evidence, and directing that the trial court reconsider
certification of the disparate treatment claim. See
Robinson, 267 F.3d at 169-70.*fn11
Judge Lewis A. Kaplan reached a similar result in Latino Officers
Ass'n City of New York v. City of New York, 209 F.R.D. 79 (S.D.N.Y.
2002), which followed Caridad and Robinson. The
plaintiffs in Latino Officers were Latino and African-American
members of the New York City Police Department ("NYPD"), who, among other
things, complained that grants of discretion to NYPD supervisors to
administer discipline resulted in racially discriminatory disciplinary
treatment and retaliation. The district court certified the class for
liability purposes, rejecting a defense challenge to plaintiffs'
statistical analysis. Whatever the "ultimate persuasiveness" of the
plaintiffs' statistical evidence, Judge Kaplan found it sufficient to
warrant class certification, in that "it tend[ed] to establish that being
Latino or African-American ha[d] an effect on an officer's involvement
and treatment in the NYPD's disciplinary system." 209 F.R.D. at 89.
The instant action presents many of the same issues addressed in
Robinson, Caridad and Latino Officers.
1. Rule 23(a) Criteria
In connection with plaintiffs' disparate impact and treatment
allegations, Xerox does not dispute that the requirements of numerosity
and adequacy of representation have been met. See Defendant's
Memorandum of Law in Opposition to Plaintiffs' Motion for Class
Certification ("Def. Mem.") at 1. Given the size of the proposed class
("at least hundreds," Pl. Mem. at 15), and the adequacy of both the class
representatives and plaintiffs' counsel (see id., at
22-23), this Court concurs that plaintiffs have satisfied their burden on
those two elements. See generally In re Drexel Burnham
Lambert Group. Inc., 960 F.2d 285, 291 (2d Cir. 1992) (adequacy of
representation); Adames v. Mitsubishi Bank, Ltd.,
133 F.R.D. 82, 89-90 (E.D.N.Y. 1989) (numerosity).
Of the four elements that plaintiffs are required to establish under
Rule 23(a), Xerox challenges commonality and typicality.
Commonality is established if class members present common questions of
law or fact. See Fed.R.Civ.P. 23(a)(2). This condition,
however, does not require that all class members make identical claims
and arguments. See Trief v. Dun & Bradstreet
Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992). Rather, it is sufficient
if a single common issue is shared by the class. See
id., Fox v. Cheminova, Inc., 213 F.R.D. 113, 126
Defendant challenges commonality on several grounds. First, Xerox
argues that plaintiffs' statistical evidence does not establish
commonality across the proposed class. See
Def. Mem. at 12-19. Second, defendant claims that its territory
configuration and quota assignment processes were not "entirely
subjective," id. at 19-23, and that its decentralized
decisionmaking process negates commonality. See id.,
at 24-25. Third, defendant argues that the diversity of the proposed
class detracts from commonality. See id. at 25-28.
(i) Statistical evidence
Defendant contends that the study submitted by plaintiffs' statistical
expert, Dr. Leonard Cupingood, fails to establish commonality, because
the data "neither establishes a common pattern or practice of pay
differential for African-American sales representatives nor does it even
attempt to demonstrate a nexus between the alleged pay differential and
the decentralized practices of which they complain." Def. Mem, at 13.
Xerox claims that because plaintiffs seek to certify a class based on
discrimination arising from decentralized decisionmaking at the local
entities, Dr. Cupingood erred in utilizing aggregate company-wide
statistics; according to Xerox, Dr. Cupingood's "statistics do not
address any one of those common questions," 10/14/03 Tr. at 33, and
therefore do not constitute sufficient proof of a causal connection
between the alleged pay differential and the challenged practices.
See Def. Mem. at 13-14. Indeed, defendant goes so far as to
argue that Dr. Cupingood's analysis is inadmissible as a matter of law
because "it doesn't prove commonality of the issues which [plaintiffs]
claim should be certified as a class." 10/14/03 Tr. at 36.*fn12 Xerox
contends that the CBU-by-CBU analysis conducted by its own expert, Dr.
David Bloom, is methodologically
superior and reveals statistically significant compensation
disparities in only a small minority of organizational units.
See Def. Mem. at 15.*fn13
While statistical evidence offered by plaintiffs on a class
certification motion should be rigorously analyzed by the Court,
see Sheehan v. Purolator. Inc., 839 F.2d 99, 103 (2d
Cir. 1988), such analysis does not extend to weighing the merits of
expert reports. See In re Visa Check/Master Money
Antitrust Litig., 280 F.3d 124, 135 (2d Cir. 2001) (trial court
should not weigh conflicting expert evidence in deciding class
certification), cert. denied sub nom.
Visa U.S.A., Inc. v. Wal-Mart Stores. Inc., 536 U.S. 917
(2002). In the Second Circuit, "statistical dueling" is proscribed at the
class certification stage. Caridad, 191 F.3d at 292;
see In re Visa, 280 F.3d at 135. Therefore, the Court
should analyze plaintiffs' expert report with the limited goal of
ensuring "that the basis of the expert opinion [submitted in support of
the motion for certification] is not so flawed that it would be
inadmissible as a matter of law." In re Visa, 280 F.3d at 135.
In this case, plaintiffs' evidence reveals a statistically significant
disparity between the earnings of black and white salespersons at Xerox,
after controlling for salary grade, sales experience at the company, and
seniority. See Cupingood Report [PX 2] at 3-8. In arguing
that this disparity vanishes when considered on a CBU-by-CBU basis,
defendant prematurely challenges the merits of plaintiffs' discrimination
claim. This critique should not be considered on a class certification
ruling, as plaintiffs "need not demonstrate at this stage that they will
prevail on the merits." Caridad, 191 F.3d at 292.*fn14
In a related vein, Xerox argues that the Cupingood report fails to
establish a nexus between "the decentralized territory configuration
practices of which [plaintiffs] complain and the claimed disparities" in
compensation. Def. Mem. at 16; see 10/14/03 Tr. at 33-36.
Specifically, defendant faults the Cupingood report for failing to
analyze the relationship, if any, between the alleged pay disparity and
defendant's practices in assigning territories, setting quotas, and
making promotion decisions. See Def. Mem. at 16-17; 10/14/03
Tr. at 35-36.
This argument is but a variant of the defense challenge to Dr.
Cupingood's use of company-wide statistics. It is not the Court's role
at this stage to determine the ultimate persuasiveness of plaintiffs'
statistical analysis. See Caridad, 191 F.3d at
292-93. Moreover, commonality can be established by statistical evidence
tending to show that "being [African-American or black] has an effect on"
a salesperson's compensation. Latino Officers, 209 F.R.D. at
89; see Wright v. Stern, No. 02 Civ. 4699 (DC), 2003
WL 21543539, at *5-6 (S.D.N.Y. July 9, 2003). The fact that one class
member may have been given a less desirable territory, while another was
denied a promotion, "is of little moment. Both allegedly were injured by
discriminatory acts of" Xerox, resulting from the overarching practice
challenged by plaintiffs: decentralized, subjective decisionmaking at the
managerial level. Latino
Officers, 109 F.R.D. at 88.*fn15
Equally unavailing is Xerox's argument that its "highly complex"
compensation system distinguishes it from "a run-of-the mill salary or
promotion case." 10/14/03 Tr. at 33. To be sure, the total compensation
of a Xerox sales representative depends on a combination of factors
territory, quota, position, and performance, see
id., at 33; DiVincenzo Aff. at ¶ 15 and, as in any
employment situation, individual employees may have their own
preferences. Nevertheless, defendant concedes that, as a general matter,
one can reasonably assume that employees seek to maximize their
compensation and that the pay disparity found by Dr. Cupingood is not
attributable to employee preferences. See 10/14/03 Tr. at
44-46.*fn16 Consequently, whatever elements may enter into Xerox's
"complex" compensation system, only one is cited by Xerox as a possible
explanation for any statistically significant disparity in earnings:
performance. See id., at 38; Def. Mem. at 17.
However, any suggestion that black employees are inferior performers goes
to the merits of plaintiffs' discrimination claims and may not be
considered on this motion.*fn17
In short, consistent with the decisions in Robinson,
Caridad, and Latino Officers, where, as here,
plaintiffs' statistical and anecdotal evidence tends to show that being a
member of a racial minority has a negative effect on compensation, that
showing suffices to demonstrate a common question of fact concerning
defendant's employment practices, within the meaning of Rule 23(a).
See also Wright, 2003 WL 21543539, at *6 (where
statistics showed 6.12 standard deviations between minority and Caucasian
compensation, court held that "plaintiffs' statistics demonstrate common
questions of fact because they tend to show that being African-American
or Hispanic has an effect on an employee's promotion, compensation, and
geographic assignment."); McReynolds v. Sodexho Marriott Servs.,
Inc., 208 F.R.D. 428, 443-44 (D.D.C. 2002) (rejecting "statistical
dueling" and finding commonality where anecdotal evidence and statistical
analysis, which controlled for race and seniority but not education and
experience by position, supported plaintiffs' claim of discrimination
against African-Americans in promotions).
(ii) Subjective and decentralized decisionmaking
Seeking to distinguish Caridad, defendant also argues that
because its territory configuration and quota assignment processes are
not "entirely subjective," but involve several objective variables and
limitations, the process cannot be said to present common questions of
fact. See Def. Mem. at 19-20; see also
10/14/03 Tr. at 62-65. Xerox also claims that its highly decentralized
decisionmaking process precludes a finding of commonality. See
Def. Mem. at 24-25.
The decisions in Caridad and Latino Officers are
substantially on point. In Caridad, the African-American
plaintiffs challenged the "subjective components of company-wide
employment practices," which negatively affected blacks in terms of
disciplinary and promotion decisions. 191 F.3d at 292 (emphasis added),
Although Metro North, like Xerox, had promulgated policies that included
objective variables, it was the application of those variables by
individual managers to specific employees that allegedly injected
subjectivity into the process. See id. at 286-87. The
Second Circuit rejected the district court's ruling that such a
decisionmaking process precluded a finding of commonality. See
id. at 292-93. Similarly, in Latino Officers, a class
was certified where, as here, the plaintiffs challenged, as racially
discriminatory, the delegation of authority to supervisors to apply
entity-wide objective rules and practices there, involving
disciplinary proceedings. See 209 F.R.D. at 81-83, 88-89.
In the instant case, the territory configuration and quota assignment
processes allegedly took into account several objective variables.
See Def. Mem. at 20. Nevertheless, Xerox provided only general
goals, not specific formulas as to how those factors should be applied;
even within BWF strategy, supervisors retained significant discretion.
See 10/14/03 Tr. at 63-64; see also Ciaschi
Aff. at ¶¶ 25-26. Caridad and Latino Officers
likewise involved decentralized, subjective decisionmaking processes
that, in theory, were supposed to apply objective factors. See
also McReynolds, 208 F.R.D. at 442 ("Whether a
particular manager uses objective criteria in making particular promotion
decisions is irrelevant to the commonality analysis; instead, what is
significant is that the determination of which criteria to use is left
entirely to the individual manager."). Thus, the existence of some
objective factors does not negate a claim that the process is "entirely
subjective" where those variables are alleged to have been
Furthermore, the fact that company-wide policies may be implemented
differently in local sales operations does not negate a finding of
commonality where, as here, the policy or practice was applied to the
entire class. See Spinner, 2003 U.S. Dist. LEXIS
19298, at *10-12 (finding commonality and certifying class where
plaintiffs, whose individual strip searches varied, alleged a policy,
practice, or custom); see also Marisol A.,
126 F.3d at 377 (commonality found where "injuries derive from a unitary
course of conduct by a single system"); McReynolds,
208 F.R.D. at 443 (rejecting defense view of commonality test that would
"preclude class certification in an action against any company that has
decentralized its personnel practices," as such a test "would run afoul
of the purpose of Title VII. . . ."). Therefore, the subjective nature
of the decentralized decisionmaking process does not prevent
certification of plaintiffs' disparate impact and treatment claims.
(iii) Diversity of the proposed class
Finally, defendant contends that because plaintiffs worked in "entirely
different sales organizations . . . and numerous different autonomous
CBUs or sales operations within those organizations," they should not be
certified as a class. Def. Mem. at 25; see also
id., at 26-28. Plaintiffs respond that all black sales
representatives, regardless of sales organization or operation, were
subject to the same subjective, nationwide procedure for territory
assignment. See Reply Memorandum in Further Support of
Plaintiffs' Motion for Class Certification at 8-9.
Courts within the Second Circuit have certified classes despite varying
circumstances among the individual members of the proposed class.
See In re Visa, 280 F.3d at 139 ("Common issues may
predominate [for purposes of Rule 23(b)(3)] when liability can be
determined on a class-wide basis, even when there are some individualized
Wright, 2003 WL 21543539, at *5-6 (commonality satisfied
inasmuch as claims of discriminatory promotion and compensation, asserted
by class consisting of employees of city department of parks and
recreation, was supported by statistical evidence and did not depend on
employment terms of individual class members); Ingles v. City of New
York, No. 01 Civ. 8279 (DC), 2003 WL 402565, at "1-5 (S.D.N.Y. Feb.
20, 2003) (class of inmates charging city prison officials with excessive
force satisfied commonality requirement despite experiencing different
instances and severity of violence); Latino Officers,
209 F.R.D. at 88-89 (commonality met although members of class of police
officers were disciplined for different reasons and with varying
outcomes). So long as a common question of law or fact binds the class
together, it will be deemed to have met the requirement of commonality.
See Fed.R.Civ.P. 23(a)(2) (requiring only that "there are
questions of law or fact common to the class"). Although the sales
positions of Xerox employees may differ in some respects, the general
method by which salespersons are assigned to sales territories and are
awarded compensation is the same.*fn18 Because plaintiffs, however
diverse, challenge a system, policy, or practice of discrimination,
see Compl, at ¶ l, this case presents common questions of
fact and law regarding these practices. Accordingly, plaintiffs'
diversity does not preclude class certification.
Defendant also alleges that the diversity of the proposed class members
prevents a finding of typicality. See Def. Mem. at 28-37.
Although the "commonality and typicality
requirements of Rule 23(a) tend to merge," Falcon, 457
U.S. at 157 n. 13, the Court will separately address diversity as it
applies to typicality.
To establish typicality, plaintiffs must demonstrate that "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."
In re Drexel, 960 F.2d at 291; see also
Fed.R.Civ.P. 23(a)(3). The factual background of each plaintiff need
not be the same so long as the disputed issue of law or fact occupies
"essentially the same degree of centrality to the named plaintiffs claims
as to that of other members of the proposed class." Caridad,
191 F.3d at 293 (internal quotation marks and citation omitted). The
primary consideration in assessing typicality is the "forthrightness and
vigor" with which the named plaintiff will pursue the common interests of
the class. Latino Officers, 209 F.R.D. at 89-90.
Defendant challenges typicality on many of the same grounds raised with
respect to commonality. In particular, defendant contends that
differences between plaintiffs' abilities and preferences will
necessitate individualized inquiries regarding territory assignment, and
that those inquiries are not susceptible to generalized proof or
defenses. See Def. Mem. at 29-36. Nevertheless, whether a
plaintiff is qualified for the desired position is a factual question
that goes to the merits of the case and should not be considered for
class certification purposes. See Avagliano v. Sumitomo
Shoji Am., Inc., 103 F.R.D. 562, 575-76 (S.D.N.Y, 1984) (plaintiff
need not establish, for class certification, that members were qualified
for positions from which they claimed illegal exclusion). This principle
applies with particular force where, as here, the named representatives
of the proposed class allege a broad practice or policy of
discrimination. See id. at 576. Although the factual
circumstances of each class member may
differ in this case, their overarching challenge is to what they
contend is a company-wide system of "subjective and racially
discriminatory policies and practices with respect to assignment of sales
territories, promotion opportunities, compensation, and other terms of
employment." Pl. Mem. at 21. As discussed previously, courts within the
Second Circuit have repeatedly certified classes challenging
discriminatory policies or practices, despite differing factual
circumstances of the class members' claims. See
Spinner, 2003 U.S. Dist. LEXIS 19298, at *10 (certifying class
of persons subjected to policy or practice of strip search at booking
facility although central policy may have been "carried out in a variety
of different ways in different cases"); Wright, 2003 WL
21543539, at *7 (typicality satisfied when plaintiffs' allegations of
disparate treatment are shared by the class although factual
circumstances differ); Ingles, 2003 WL 402565, at *5
(plaintiff inmates with different accounts of violent conduct by
prison officials met typicality requirement because their "claims
[are] grounded in the same legal arguments and aris[e] from
sufficiently similar events. . . ."); Latino Officers,
209 F.R.D. at 89 (typicality established even though plaintiffs felt
different effects of discrimination and had different backgrounds).
Defendant also argues that because "any purported disparate treatment
was not Xerox'[s] standard operating procedure" but instead was
"committed by individual local sales managers" in autonomous sales
organizations, the named plaintiffs are not typical of the geographical
scope of the class they seek to represent. Def. Mem. at 36. In defining
the appropriate class scope where purported class members are scattered
in different locations or corporate divisions, courts have emphasized the
importance of three factors: "(1) that a single policy prevails in
several or all of defendant's subdivisions, or (2) that the subdivisions
autonomous, or (3) where there are specific allegations pertaining
to more than one location." Avagliano, 103 F.R.D. at 579
(certifying nationwide class of employees in various branch offices
pursuant to strong showing on the first and second factors).
In this case, plaintiffs have made a significant showing in connection
with the first and third factors. Plaintiffs allege that a company-wide
policy or practice of discrimination exists and is implemented in a
number of offices nationwide, as evidenced by the testimony of the
variously located named plaintiffs. See Compl. at ¶¶ l,
6-12. Although defendant contends that each sales unit is autonomous
(factor #2), plaintiffs have provided specific allegations regarding
several Xerox sales units at different locations (factor #3).
See id., at ¶¶ 6-12, 32. Considering plaintiffs'
showing on two of the three factors, this Court is persuaded that a class
nationwide in scope is appropriate at this juncture. Accordingly,
Rule 23(a)(3) is satisfied.
2. Rule 23(b) Criteria
Plaintiffs, who request both injunctive relief and non-incidental
monetary damages, seek certification under Rule 23(b)(2) or,
alternatively, 23(b)(3). If certification under Rule 23(b)(2) is
appropriate, it is unnecessary to consider certification under
Rule 23(b)(3). See In re Visa, 280 F.3d at 147.
A class is appropriately certified under Rule 23(b)(2) "where broad,
class-wide injunctive or declaratory relief is necessary to redress a
group-wide injury." Robinson, 267 F.3d at 162. "Rule 23(b)(2)
does not require that all plaintiffs be identically situated. What is
important is that the relief sought by the named plaintiffs  benefit
the entire class." In re Methyl Tertiary Butyl Ether ("MTBE") Prods.
Liab. Litig., 209 F.R.D. 323, 342 (S.D.N.Y. 2002) (internal
quotation marks and citation omitted). As the Second Circuit explained in
The district court may allow (b)(2) certification
if it finds in its informed, sound judicial
discretion that (1) the positive weight or value
[to the plaintiffs] of the injunctive or
declaratory relief sought is predominant even
though compensatory or punitive damages are also
claimed, and (2) class treatment would be
efficient and manageable, thereby achieving an
appreciable measure of judicial economy.
Although the assessment of whether injunctive or
declaratory relief predominates will require an ad
hoc balancing that will vary from case to case,
before allowing (b)(2) certification a district
court should, at a minimum, satisfy itself of the
following: (1) even in the absence of a possible
monetary recovery, reasonable plaintiffs would
bring the suit to obtain the injunctive or
declaratory relief sought; and (2) the injunctive
or declaratory relief sought would be both
reasonably necessary and appropriate were the
plaintiffs to succeed on the merits. Insignificant
or sham requests for injunctive relief should not
provide cover for (b)(2) certification of claims
that are brought essentially for monetary
267 F.3d at 164 (internal quotation marks and citations omitted).
In performing the balancing required under Rule 23(b)(2), a court
should bear in mind the procedural aspects of a pattern-or-practice class
action, which involves two phases: "the so-called liability and remedial
phases." Latino Officers, 209 F.R.D. at 86; see
also Robinson, 267 F.3d at 158.*fn19 Typically, if,
in the liability phase, the plaintiffs succeed in proving, by a
preponderance of the evidence, that the defendant engaged in a pattern or
practice of discrimination against the class, the Court may fashion
class-wide injunctive relief. See Latino Officers,
209 F.R.D. at 86. If, in addition to injunctive relief, plaintiffs are
seeking individual relief, such as back pay, compensatory, and/or
punitive damages, the liability phase is then followed by a remedial
phase to determine whether the individual plaintiff deserves any such
relief. See Robinson, 267 F.3d at 159; Latino
Officers, 209 F.R.D. at 86. Although "class members
enjoy a presumption in their favor that any particular employment
decision, during the period in which the discriminatory policy was in
force, was made pursuant to that policy," a class member must
nevertheless show, in the remedial phase, that he or she suffered an
adverse employment decision. Latino Officers. 209 F.R.D. at
86-87 (internal quotation marks and citations omitted). Where an
individual plaintiff succeeds in establishing an adverse employment
action, the burden then shifts to the employer to show that the action
taken was not unlawful. See id. at 87; see
also Int'l Bhd. of Teamsters v. United States,
431 U.S. 324, 362 (1977). If the employer cannot establish a valid reason for
the challenged action, the employee is entitled to individualized
equitable relief, including back pay and front pay. See
Robinson, 267 F.3d at 160; Latino Officers,
209 F.R.D. at 87. If further compensatory damages are requested, the class
member will be required to prove that the discrimination caused the harm
alleged. See Robinson, 267 F.3d at 160; Latino
Officers, 209 F.R.D. at 87.
As the liability and remedial phases of a pattern and practice case
require proof of different elements, the Court will separately consider
class certification under Rule 23(b) for each of the two phases.
a. Liability Phase
Under the ad hoc balancing approach adopted by the Second Circuit in
Robinson, the Court must "assess whether (b)(2) certification
is appropriate in light of the relative importance of the remedies
sought, given all of the facts and circumstances of the case."
Robinson, 267 F.3d at 164 (internal quotation marks omitted);
accord Parker v. Time Warner Entm't Co., L.P.,
331 F.3d 13, 20 (2d Cir. 2003). "[T]he presence of a damages claim will not
maintenance of a class action under Rule 23(b)(2) when the
requested . . . injunctive relief is a significant component of the
overall relief which plaintiffs seek." In re Visa Check/Mastermoney
Antitrust Litig., 192 F.R.D. 68, 88 (E.D.N.Y. 2000) (internal
quotation marks and citation omitted), aff'd, 280 F.3d 124 (2d
Cir. 2001), cert. denied sub nom. Visa
U.S.A. Inc. v. Wal-Mart Stores. Inc., 536 U.S. 917 (2002).
In the instant case, plaintiffs' claim for equitable relief includes
"an injunction that would require Xerox to change the method of
assignment, in a way that would give less unfettered [discretion] and try
to ensure some balance in the assignment of territories," with specific
mechanisms and monitoring "to ensure that . . . African Americans are
not, predominantly, assigned to . . . the less desirable territories."
10/14/03 Tr. at 14; see id. at 14-16, 20-22.
Cognizant of the need for "fine-tuning and input from defendant,"
id., at 20, plaintiffs specifically propose a mechanism for
ranking territories within the different units, consistent with the BWF
program and aided by computer software programs that use objective
measures. See id. at 21-22.
Although, as defendant notes, see Def, Mem. at 38-39,
plaintiffs do request significant monetary damages and other
individualized relief,*fn20 the Court may nevertheless certify a class
action if, "(1) even in the absence of a possible monetary
recovery, reasonable plaintiffs would bring the suit to obtain the
injunctive or declaratory relief sought; and (2) the injunctive or
declaratory relief sought would be both reasonably necessary and
appropriate were the plaintiffs to succeed on the merits."
Robinson, 267 F.3d at 164. If plaintiffs in this case succeeded
in establishing a pattern or practice of racial discrimination, they
would be entitled to class-wide injunctive relief of the kind they
request, in order to eradicate that discrimination. See
Wright, 2003 WL 21543539, at *8; Compl, at pp. 39-41. Such
relief could result in the assignment of class members to more lucrative
territories. Relief of this nature cannot be characterized as
insignificant. In these circumstances, and consistent with the deposition
testimony of a number of the named plaintiffs,*fn21 the Court concludes
that it is highly likely that plaintiffs would have pursued this action
even if monetary relief were not available. See,
e.g., Wright, 2003 WL 21543539, at *8; Latino
Officers, 209 F.R.D. at 93; cf. Legrand v. New York
City Transit Auth., No. 95 Civ. 333 (JG), 1999 WL 342286, at *7
(E.D.N.Y. May 26, 1999) (denying class certification where relief sought
"relates predominantly to money damages," and plaintiff failed to satisfy
Xerox also argues that calculating damages for each class member would
entail too many individualized determinations for the class to be
certified under either (b)(2) or (b)(3). See
generally Def. Mem. at 38-40. However, this is a concern at the
remedial phase, but not the liability stage, of the proceeding.
See Wright, 2003 WL 21543539, at *8. Pursuant to
Rule 23(c)(4)(A), the Court may sever the liability phase from the
remedial, to allow class
certification of particular issues. See Latino
Officers, 209 F.R.D. at 93.
For the reasons discussed above, class treatment of the liability phase
of trial is appropriate under Rule 23(b)(2).
b. Remedial Phase
Plaintiffs acknowledge that issues such as "damages for the past
assignments" may require individualized determinations at the remedial
phase. 10/14/03 Tr. at 17; see id., at 18-19.*fn22
Because this Court concludes that damages arising out of past
assignments, among other issues, may well require separate determinations
for each class member, the remedial (monetary) phase should be severed
from the liability and injunctive relief phase for class certification
purposes. See, e.g., Robinson, 267 F.3d at
167 (district court erred in refusing to bifurcate pattern-or-practice
claim and certify liability stage for (b)(2) class treatment);
Latino Officers, 209 F.R.D. at 93 (certifying liability stage
for class treatment and severing individual remedial stage);
McReynolds, 208 F.R.D. at 448-49 (bifurcating case and
certifying class under (b)(2) for liability phase where plaintiffs
requested monetary damages, including back pay); Morgan v. UPS,
169 F.R.D. 349, 358 (E.D. Mo. 1996) (severing issues of liability and
injunctive relief from damages phase of class action under Title VII and
section 1981),*fn23 If
liability is found, the certification issue may be revisited in
connection with the damages phase.*fn24
B. Plaintiffs' Retaliation Claims
Xerox challenges each of the Rule 23(a) elements in regard to
plaintiffs' request for class certification based on retaliation.
See Def. Mem. at 18 n. 18. Although it is plaintiffs' burden to
establish the prerequisites to class certification, they now concede that
retaliation "is always a difficult claim for class certification"
(10/14/03 Tr. at 10) and, indeed, is "the weakest part" of their motion.
Id. Expressing fear that the class representatives may face
adverse consequences because of their participation in this lawsuit,
plaintiffs characterize their retaliation claim "primarily, as a request
for injunctive relief. . . ." Id. Whatever their
characterization of that claim, plaintiffs nevertheless bear the burden
of proving (among other things) the four elements of Rule 23(a):
numerosity, commonality, typicality, and adequacy of representation.
See Caridad, 191 F.3d at 291. Plaintiffs do not
address, let alone establish, any of those elements with respect to their
While "[c]ourts have not required evidence of exact class size or
identity of class members to satisfy the numerosity requirement,"
Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993),
plaintiffs must show that "the class is so numerous that joinder of all
members is impracticable." Fed.R.Civ.P. 23(a)(1). Here, only three of
the named plaintiffs Jimerson,
Brooks, and Miller claim to have suffered acts of
retaliation. See 10/14/03 Tr. at ll. Because plaintiffs offer
no other evidence of numerosity, other than a concern that "any African
American who is a member of this class is potentially subject to
retaliation," id. at 13, this element has not been satisfied.
Nor have plaintiffs offered any proof to establish commonality or
typicality, other than the testimony of three class representatives that
each suffered what he or she believed to be retaliation; plaintiffs
concede that they have no statistical evidence of retaliation or any
other "evidence of class-wide" retaliation. Id. at 11;
see id. at 13.*fn25 Given plaintiffs' inadequate
showing, their retaliation claims do not warrant class certification at
this time. See, e.g., Sheehan v. Purolator,
Inc., 103 F.R.D. 641, 652 (E.D.N.Y. 1984), aff'd,
839 F.2d 99 (2d Cir. 1988).
II. Subclass Certification
Under Rule 23(c)(4), a court may divide a class into subclasses when
all members of the class challenge the same conduct but assert differing
specific interests and legal theories. See Fed.R.Civ.P.
23(c)(4); David Herr, Federal Judicial Center, Annotated Manual for
Complex Litigation. Third 251-53 (2003). The trial court has broad
discretion to decide whether subclasses are necessary based on the facts
of the particular case. See id. at 252-53. A court is
not obligated to create subclasses at the class certification stage of
the litigation, but retains the "flexibility to certify subclasses as the
case progresses and as the nature of the proof to be developed at trial
becomes clear." Marisol A., 126 F.3d at 379.
Plaintiffs request the creation of three subclasses the New
York State, New York City, and California Subclasses because "the
laws of the States of New York and California are superior to federal
law, in some respects." 10/14/03 Tr. at 25. Specifically, plaintiffs
contend that the aforesaid state and local laws would result in different
damages and statute of limitations calculations. See
id. at 27.
Certification of subclasses requires fulfillment of the requirements
for class certification generally. See Burka v. New York
City Transit Auth., 110 F.R.D. 595, 601 (S.D.N.Y. 1986). To that
end, a subclass must meet the Rule 23(a) requirements of numerosity,
commonality, typicality, and adequate representation, as well as one of
the maintainability conditions of Rule 23(b), See
Burka, 110 F.R.D. at 600-01. Although plaintiffs have requested
the creation of subclasses, they have neglected to include sufficient
facts for the Court to conclude, at this point in the proceeding, that
the prerequisites of Rules 23(a) and (b) are satisfied.
While the overall class of plaintiffs may number in the hundreds, the
record is devoid of any information that would allow the Court to
conclude that numerosity has been satisfied for each of the three
subclasses plaintiffs request. See Pl. Mem. at 15; 10/14/03 Tr.
at 52. Even accepting plaintiffs' contention that New York and California
are two of the four largest states in which black Xerox sales
representatives are employed, plaintiffs admittedly can provide no
concrete information to support numerosity within the subclasses.
See 10/14/03 Tr. at 26. Courts within the Second Circuit have
refused subclass certification where, without more, the requirement of
numerosity has not been met. See Ashe v. Bd. of Elections
in City of New York, 124 F.R.D. 45, 52 (E.D.N.Y. 1989) (failure to
satisfy numerosity resulted in
refusal to certify subclass of eleven delegate candidate plaintiffs
whose support was allegedly diminished by defendant's weakening of
minority voting rights). Therefore, plaintiffs' deficient showing of
numerosity is a sufficient basis for denying subclass
II. Statute of Limitations
Defendant also raises a statute of limitations defense in regard to the
scope of plaintiffs' class, which was proposed to run from February l,
1997. See Def. Mem. at 37-38. Specifically, Xerox argues that
"non-retaliation claims [under Section 1981] may not extend beyond May 8,
1998" and that Title VII claims start from April 23, 1999. Def. Mem. at
Defendant's statute of limitations defense implicates the so-called
"continuing violation doctrine," Nat'l R.R. Passenger Corp., v.
Morgan, 536 U.S. 101, 106-08 (2002), which in turn may necessitate a
detailed analysis of the underlying facts. See Quarless v.
Bronx-Lebanon Hosp. Ctr., 228 F. Supp.2d 377, 383 (S.D.N.Y, 2002),
aff'd mem., 75 Fed. Appx. 846 (2d Cir. 2003);
Branch v. Guilderland Cent. Sch. Dist., 239 F. Supp.2d 242, 254
(N.D.N.Y. 2003). Discovery has not been completed in this case
(see 10/14/03 Tr. at 26-27), and both parties agree that there
is no need for the limitations issue to be decided at this time.
See id. at 28 (plaintiff states that "[w]hether the
continuing violation theory would apply here . . . goes to the merits
and that's appropriate for decision down the road, either on a summary
judgment-type application or possibly even for the jury, if the
judge decided that it raised factual questions."); id. at 60
(defense agrees "that that issue could be examined at a later date.");
see also id. at 81-82),*fn27 Accordingly,
the District Court should defer resolution of this issue.
For the foregoing reasons, it is the recommendation of this Court that
the District Court bifurcate the liability and remedial phases of this
litigation and certify the following class pursuant to Rule 23(b)(2), for
liability and class-wide injunctive and declaratory relief on plaintiffs'
disparate impact and treatment claims: all black Xerox sales
representatives who (within the applicable statutes of limitation) have
been, continue to be, or may in the future be, affected by defendant's
alleged pattern and practice of racial discrimination in assignments of
sales territories, promotions, and compensation.
Plaintiffs' requests for certification of their retaliation claim and
for the creation of subclasses should be denied at this time.
Any objections to the recommendations contained herein must be filed
with the Honorable John Gleeson on or before February 9, 2004. Failure to
file objections in a timely manner may waive a right to appeal the
District Court's order. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Secretary of Health &
Human Servs., 829 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to send copies of this Report and Recommendation
by Federal Express to all counsel of record.