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COKELY v. NEW YORK CONVENTION CENTER OPERATING CO.

May 20, 2004.

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
v.
THE NEW YORK CONVENTION CENTER OPERATING CORPORATION d/b/a/ JACOB K. JAVITS CONVENTION CENTER OF NEW YORK, RICHARD POWERS, GERALD McQUEEN AND ALEXANDER TOMACZUK, Defendants



The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION

By Memorandum Opinion and Order, this Court denied plaintiffs' Motion for Class Certification without prejudice, Cokely v. New York Convention Ctr. Operating Corp., 2003 WL 1751738, at *6, (S.D.N.Y. Apr. 2, 2003) ("Cokely Class Cert. I "), on the ground that plaintiffs had failed to compile sufficient evidence for the court to undertake "a rigorous analysis" to determine whether "the pre-requisites of Rule 23(a) have been satisfied." Id. at *3 (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). The Court granted plaintiffs "leave to refile this motion as soon as they have gathered more evidence of commonality and typicality, either in the form of a statistical analysis, or in the form of affidavits from a number of plaintiffs, or both." Id. at *6. Plaintiffs have renewed their motion, and defendants have once again filed papers in opposition. For the reasons that follow, plaintiffs' motion is granted.

BACKGROUND*fn1

  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 racial discrimination and retaliation, 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. § 1981 a 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 hosfile 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. Finally, plaintiffs argue that they have suffered retaliation for complaining to management about this discrimination.

  DISCUSSION

 Plaintiffs' Renewed Motion for Class-Certification

  In their renewed motion, 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')." Pls.' Mem. in Supp. of First Mot. for Class Certification at 2.*fn2 "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's 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 [part-time] housekeeping employees." Id. at 3.*fn3
The court declined to certify this class the last time plaintiffs so moved, on the grounds that in "making a certification decision, a judge must look somewhere between the pleading[s] and the fruits of discovery," and plaintiffs had provided only one affidavit of one named plaintiff beyond the pleadings already submitted. Cokely Class Cert. I, 2003 WL 1751738, at *3 (citing In re Philip Morris, Inc., 214 F.3d 132, 135 (2d Cir. 2000)(emphasis and alteration in original).

 Sufficiency of the Evidence Submitted

  Plaintiffs have provided material beyond the pleadings in support of their renewed motion. They have provided sworn statements of seven minority freight handlers, four minority carpenters, and three minority housekeepers, who testify to discrimination within the "shaping" system*fn4 and the seniority and promotion system, unequal disciplinary measures, and a hosfile work environment. Affirmation of Neil Fraser dated May 16, 2003 ("Fraser May Aff."), Exs. 3-9, 13-18. They have also provided the sworn statements of three Caucasian freight handlers who testify to pervasive and overt racism at the Javits Center, and who claim to have suffered retaliation for complaining about it. Fraser Aff, Exs. 10-12.*fn5 In addition to the affidavits, plaintiffs have provided union grievance forms alleging racial discrimination and harassment at the Javits Center; letters detailing the same; verified complaints filed with the New York State Division of Human Rights ("NYSDHR"), detailing the same; probable cause determinations rendered by the NYSDHR with reference to the complaints; and complaints filed with the Equal Employment Opportunity Commission ("EEOC"), Fraser May Aff., Exs. 19-40, as well as a memo denying a union grievance and attached correspondence; a table of "Teamsters Calls" apparently demonstrating how often certain Javits Center employees are called for work and how much money they have earned; a letter in reference to an attached table of journeymen carpenters with racial background identified; and a decision issued by an impartial arbitrator in reference to a dispute between two members of the plaintiff class and two white employees of the Javits Center. Affirmation of Neil Fraser dated June 16, 2003 ("Fraser June Aff"), Exs. 1-4, respectively. Lastly, plaintiffs have submitted some statistics calculated by one of their attorneys purporting to demonstrate that plaintiffs are paid less than white employees. Fraser May Aff. at 2.

  Defendants argue, as before, that plaintiffs have failed to provide sufficient evidence for the court to undertake an analysis of the typicality and commonality of the claims as required for certification under Rule 23. Specifically, they argue that the court provided a "road map" in Cokely Class Cert. I which plaintiffs failed to follow. NYCCOC Mem. in Supp. at 4; the statistics offered by plaintiffs are of no probative worth, id.; the Affidavits are from an insufficiently large sample of plaintiffs and flawed as to what they assert and how they assert it, id. at 9, 11-12; and the additional supporting materials are largely inadmissible and duplicative. Id. at 13.

  We are not persuaded by defendants' argument that plaintiffs have failed to adhere to the court's instructions. The court would have preferred plaintiffs to have hired an expert to provide a statistical analysis of the employment data (and assumes that they will do so before trial). However, the court's instructions were not rigorous:*fn6 We asked that, "If plaintiffs are in possession of the materials to make a statistical showing, they should do so." (emphasis added). They have done so. We concluded the opinion by stating that plaintiffs were granted leave to file their certification motion "as soon as they have gathered more evidence of commonality and typicality, either in the form of a statistical analysis, or in the form of affidavits from a number of plaintiffs, or both." (emphasis added). They have done both.

  The court limited its order in this way for three reasons. First, the Second Circuit has set a low standard regarding the amount of evidence which must be submitted. See In re Philip Morris, 214 F.3d at 135. Second, as it noted in the last Opinion, the court was already quite "familiar with the pleadings and the similarities of at least some of the allegations of the eighty-eight plaintiffs. . . ." Cokely Class Cert. 7, 2003 WL 1751738, at *2.*fn7 Finally (again, as stated in the last Opinion),
Judges sitting and living in New York City can take judicial notice of the fact that discrimination based on race, nationality and gender have been endemic in the construction industry over the past several decades. See Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992); see also United States v. Wood, Wire and Metal Lathers Int'l Union, Local Union 46, 328 F. Supp. 429 (S.D.N.Y. 1971); Rios v. Enterprise Ass'n Steamfitters Local Union No. 638 of U.A., 326 F. Supp. 198 (S.D.N.Y. 1971).
Id. at *3 n.3.

  Thus, in light of the court's familiarity with the facts of the case and its general awareness of discrimination in the construction industry in recent years, the affidavits are sufficient to allow this court to conclude that the evidentiary ...


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