The opinion of the court was delivered by: John T. Curtin United States District Judge
In an order entered on January 3, 2004 (Item 192), this court denied plaintiffs' motion for certification of a class in Complaint "B" in this action, without prejudice to renew at an appropriate time at or near the close of discovery. Plaintiffs have now renewed the motion, seeking an order pursuant to Rule 23 of the Federal Rules of Civil Procedure certifying the following class:
All African-Americans who took the civil service examination for promotion to fire lieutenant (Examination) on or about March 14, 1998 and all African-American Firefighters who met the minimum qualifications contained in the notice of that examination, but who did not apply to take the Examination because they had been discouraged from doing so by the City of Buffalo's discriminatory promotion policy and practice. (Item 258, p. 1). The parties have requested that the court rule on this motion without hearing or argument.
As discussed in the court's several prior decisions and orders in this case, Complaint "B" involves plaintiffs' challenge to the City's use of the 1998 Exam as the sole qualifying factor for promotion to the rank of lieutenant in the Buffalo Fire Department. Plaintiffs assert claims seeking injunctive relief and damages for employment discrimination under 42 U.S.C. §§ 1981 and 2000e (Title VII) based on theories of both disparate impact and disparate treatment, as well as equal protection and due process claims under 24 U.S.C. § 1983 (and related claims under New York State Human Rights Law). In its November 9, 2007 decision and order denying both parties' most recent cross-motions for summary judgment, this court found that several issues of fact and law remain for trial with respect to both the disparate treatment and disparate impact claims, including
(1) whether the City has engaged in a policy, custom, or practice of discrimination by using the results of the 1998 Lieutenant's Exam as the basis for promotions despite having knowledge that the Exam had a discriminatory impact on African-American firefighters, and
(2) whether the Exam was "job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i).
As noted by the Supreme Court in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982), while a suit (like this one) alleging race-based discrimination, by its very nature, typically involves "classwide wrongs" and "common questions of law or fact," id. at 157, it nonetheless may be certified as a class action only if, "like any other class action, . . . the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Id. at 161. Accordingly, to succeed on their class certification motion, plaintiffs have the burden to demonstrate that this case meets the four prerequisites set forth in Rule 23(a):
(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); see In re Visa Check/Mastermoney Antitrust Litigation, 280 F.3d 124, 132-33 (2d Cir. 2001). In addition, the suit must qualify under at least one of the categories provided in Rule 23(b). See id. at 133; see also Norflet v. John Hancock Life Ins. Co., 2007 WL 2668936, at *3 (D.Conn. September 6, 2007). Plaintiffs contend that this case qualifies for certification under Rule 23(b)(2), which provides that, "[a] class action may be maintained if Rule 23(a) is satisfied and 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).
In opposition to plaintiffs' renewed motion for class certification, the City contends that plaintiffs have failed to meet the numerosity requirement of Rule 23(a)(1) because there has been no showing that joinder of the 89 African-American firefighters would be impracticable, and that plaintiffs' attempt to expand the class membership by including those firefighters who were deterred from taking the 1998 Exam is too speculative a basis upon which to certify a class. The City also asserts that plaintiffs have failed to present sufficient evidence to satisfy the commonality, typicality, and adequacy requirements of Rule 23(a)(2), (3), and (4), and that the action does not qualify for Rule 23(b)(2) certification because the relief sought is predominately money damages, as opposed to injunctive or declaratory relief. Finally, the City argues--as it did in opposing plaintiffs' previous motion for class certification--that the renewed motion is untimely.
With respect to this latter contention, the court thoroughly addressed the timeliness issue in its January 3, 2004 order, and sees no need to revisit this issue at length here. The thrust of the previous order was that the parties should be allowed to proceed with further discovery and dispositive motion practice on the underlying discrimination claims in the interest of providing the court with a more complete basis upon which to determine whether the prerequisites of Rule 23 have been satisfied. Now that discovery is complete, and the case is set for trial "with a focus on determining whether the 1998 Lieutenant's Exam was 'job related for the position in question and consistent with business necessity' as ...