United States District Court, E.D. New York
March 11, 2004.
FRANK WARREN et al., Plaintiffs against XEROX CORPORATION, Defendant
The opinion of the court was delivered by: JOHN GLEESON, District Judge
Plaintiffs filed this suit on May 9, 2001, claiming that defendant
Xerox Corporation ("Xerox") conducted a continuing pattern and practice
of racial discrimination and retaliation against black sales
representatives in violation of (1) Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., (2) 42 U.S.C. § 1981 et seq.,
(3) New York Executive Law § 296, (4) Title 8 of the Administrative
Code of New York City, and (5) the California Fair Employment and Housing
Act. Plaintiffs have moved for class certification pursuant to Federal
Rule of Civil Procedure 23. I referred the motion to the Honorable Roanne
L. Mann, United States Magistrate Judge, for Report and Recommendation.
Judge Mann issued a Report and Recommendation on January 26, 2004.
Despite Xerox's objections,*fn1 I agree with the substance of Judge
Mann's thorough Report and Recommendation, and therefore adopt it in
Specifically, I hereby 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
representatives who (within the applicable statute of limitations) have
been, continue to be, or may in the future be affected by Xerox's
alleged pattern and practice of racial discimination in assignments of
sales territories, promotions, and compensations.
I deny at this time plaintiffs' request for certification of their
retaliation claims and for the creation of subclasses.
Rule 23(f), which became effective on December 1, 1998, provides that
[a] court of appeals may in its discretion permit an appeal from an
order of a district court granting or denying class action
certification under this rule if application is made to it within ten
days after entry of the order." Fed.R.Civ.P. 23(f). According to the
note following this provision, the rules drafters contemplated that
the decision whether to accept such an appeal is within "the sole
discretion" of the court of appeals and can be analogized to the
Supreme Court's certiorari power. Id. advisory committee's
note on 1998 amendments. The committee note also states that "[t]he
district court, having worked through the certification decision,
often will be able to provide cogent advice on the factors that bear
on the decision whether to permit appeal." Id.
Toe the extent my advice is useful to the Second Circuit. I
recommend against taking an interlocutory appeal of this class
certification order. There is no reason to believe that the order will
effectively terminate the litigation by forcing Xerox to settle, and
as cogently explained in judge Mann's Report and Recommendation, the
dispute between the parties does
not implicate unresolved legal issues. See Plaintiffs
Class v. Credit Lyonnais Rouse. Ltd. (In re Sumitomo Copper
Litig.), 262 F.3d 134, 139 (2d Cir. 2001).