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Duling v. Gristede's Operating Corp.

March 8, 2010

SUSAN DULING, MARGARET ANDERSON, AND LAKEYA SEWER ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
GRISTEDE'S OPERATING CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

OPINION AND ORDER

Plaintiffs Susan Duling, Margaret Anderson, and Lakeya Sewer (collectively "Plaintiffs") bring this action on behalf of themselves and all others similarly situated, asserting intentional discrimination and disparate impact claims for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"), by defendants Gristede's Operating Corp., Red Apple Group, Inc., d/b/a Gristede's, Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc., and John Catsimatidis (collectively "Gristede's" or "Defendants"). Sewer also asserts individual claims for interference with her restoration rights under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA"), and gender and pregnancy discrimination under § 8-107(1) of the NYCHRL.

The Court has federal question jurisdiction of Plaintiffs' Title VII and FMLA claims pursuant to 28 U.S.C. §§ 1331 and 1343. The court has supplemental jurisdiction of the state statutory claims pursuant to 28 U.S.C. § 1367.

Plaintiffs now move for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure of their class claims asserted pursuant to Title VII and the state and local Human Rights laws. Defendants oppose the motion, and move to strike two expert reports submitted by Plaintiffs in support of their motion. For the reasons stated below, Defendants' motions to strike are denied and Plaintiffs' motion for class certification is granted in part.

BACKGROUND

Plaintiffs allege that Gristede's maintains a pattern and practice of intentional discrimination against women in terms of hiring and promotions, and that its hiring, promotion and compensation policies have an illegal disparate impact on women. Women, according to Plaintiffs, are predominantly steered or placed initially into "cashier," as opposed to "clerk" positions, regardless of their qualifications or interests. (Second Am. Compl. ¶¶ 3, 69-71). Plaintiffs further allege that Gristede's selects managers, who are almost exclusively promoted from within the company, predominantly from among clerks. (Id. ¶¶ 77-79.) According to Plaintiffs, the combination of initially placing women in certain positions upon hiring and seldom promoting employees from those positions results in a dearth of women in management positions. These hiring and promotion practices are not undertaken pursuant to a formal policy. Rather, hiring to and promotion from all entry-level positions is done pursuant to unwritten, subjective and discretionary processes. (Id. ¶¶ 5, 78-79.) Plaintiffs argue that the unconstrained discretion exercised by the individuals who make Gristede's hiring and promotion decisions causes those individuals' biases to manifest themselves in the company's practices. (Id. ¶¶ 79-81.)

The Court has performed a rigorous review of the parties' extensive evidentiary submissions in connection with this motion practice. The following factual summary presents the Court's findings as to undisputed facts, and findings as to disputed ones, that are relevant to Plaintiff's class certification motion.

Gristede's operates a chain of forty-two grocery stores in and near New York City. (Decl. of Cara E. Greene ("Greene Decl."), Ex. 5, Tr. of Dep. of Christopher Lang ("Lang Dep.") at 19:14-16; Greene Decl., Ex. 2, Tr. of Dep. of Charles Criscuolo ("Criscuolo Dep.") at 37:22-38:5.) The stores are divided into two districts, each of which is overseen by a "district manager."

(Criscuolo Dep. at 37:7-21.) Each district manager, in turn, supervises the "store managers" who run the grocery stores within his district. (Id. at 32:10-12, 37:3-6.) Individual stores are separated into departments, each of which is staffed by clerks and may be run by a "department manager." (Id. 26:15-32:9.) The majority of clerks and cashiers are part-time employees. (Greene Decl., Ex. 11, Tr. of Dep. of James Monos ("Monos Dep.") at 87:14-18.)

Until September 2007, every decision regarding whether to hire an applicant for an entry-level position at Gristede's and the placement of successful applicants was made by Michael McCormick. (Greene Decl., Ex. 7, Tr. of Dep. of Michael McCormick ("McCormick Dep.") at 118:4-13; Greene Decl., Ex. 1, Tr. of Dep. of Deborah Clusan ("Clusan Dep.") at 67:6-14; Criscuolo Dep. at 57:23-25; Lang Dep. at 55:14-23; Greene Decl., Ex. 10, Tr. of Dep. of Mitchell Moore ("Moore Dep.") at 24:20-25:8, 28:13-16, 29:23-30:5, 58:14-59:4.) McCormick, who has been Gristede's Human Resources Specialist since approximately December 2003 (McCormick Dep. at 13:2-5), has a college degree in human resource management, but no other post-college work experience or other experience in human resources. (McCormick Dep. at 14:25-15:15; Criscuolo Dep. at 57:9-22.) McCormick received no training regarding employment and anti-discrimination laws, and essentially no training on how to determine whether an applicant is qualified for a particular entry level position. (McCormick Dep. at 37:18-41:24.) McCormick decides whether to hire an applicant on the basis of purely subjective criteria, namely his impression of "how [applicants] conducted themselves, [whether they] were... friendly, [and whether they] were... honest" during the interview. (McCormick Dep. at 117:7-18:3; see also id. at 36:19-37:17.) Charles Criscuolo, who is Gristede's senior executive vice president and who "run[s] the operations of the company" (Criscuolo Dep. at 24:3-23), "imagine[s]" that McCormick bases his hiring decisions "on the needs of the company" and is "sure [McCormick] has his requirements on interviewing and talking to the people to see what it would be like for their specific requirements" (Criscuolo Dep. at 55:20-56:17).

There are no written descriptions of Gristede's entry level positions. (Decl. of Michael J. Puma ("Puma Decl."), Ex. N., Tr. of Dep. of Angelo Mendoza ("Mendoza Dep. (Def.)") at 81:3-5.) While applicants for entry level positions are given the opportunity to state the position for which they are applying (McCormick Dep. at 99:3-10), they are not told which positions are available (McCormick Dep. at 97:22-24). McCormick decides into which position to place a successful applicant on the basis of the length of time each available position has been open and the amount of pressure he receives from store managers to fill particular openings. (McCormick Dep. at 99:19-100:6.) At his deposition, McCormick denied having suggested to any applicant that they apply for a specific position. (Puma Decl., Ex. K, Tr. of Dep. of Michael McCormick ("McCormick Dep. (Def.)") at 102:19-104:7, 106:24-108:6.) He testified that, when an applicant asks which positions exist, McCormick "run[s] through a list of what the positions are, off the top of [his] head, real quick," but does not otherwise make suggestions to the applicant. (McCormick Dep. (Def.) at 103:2-11.) Since September 2007, hiring and initial placement decisions have also been made by four male store managers, who were given no direction as to how to make those decisions other than to verify that applicants have valid identifying documents. The managers' decisions are reviewed by "headquarters." (Moore Dep. at 24:20-32:17, 54:13-60:3.)

A number of present and former Gristede's employees, including the named plaintiffs, proffer that they and other female applicants were "steered" into cashier positions; several state that they were told on applying that only cashier positions were available. (Greene Decl., Ex. 3, Tr. of Dep. of Susan Duling ("Duling Dep.") at 53:6-19; Greene Decl., Ex. 15, Decl. of Susan Duling ("Duling Decl.") ¶ 4; Greene Decl., Ex. 16, Decl. of Opalita Echevearria ("Echevearria Decl.") ¶¶ 6-7; Greene Decl., Ex. 17, Decl. of Cynthia Gonzales ("Gonzales Decl.") ¶ 3; Greene Decl., Ex. 20, Decl. of Racquel McDonald ("McDonald Decl.") ¶ 6; Greene Decl., Ex. 21, Decl. of France Ortiz ("Ortiz Decl.") ¶ 5; Greene Decl., Ex. 23, Decl. of Yashira Santiago ("Yashira Santiago Decl.") ¶ 4; Greene Decl., Ex. 24, Decl. of Yesenia Santiago ("Yesenia Santiago Decl.") ¶ 6; Greene Decl., Ex. 26, Decl. of Ebony Singleton ("Singleton Decl.") ¶ 5). One declarant alleges that, when she and a man applied and both expressed interest in two open positions -- one for a cashier and one in "deli" -- the man was given the deli position. (Greene Decl., Ex. 18, Decl. of Dailin Gonzalez ("Gonzalez Decl.") ¶ 5.) Defendants proffer that most cashier applicants are women and that the women express their preference for the cashier position. (Defs.' Br. 20.)

Gristede's attempts to fill openings for non-entry level positions by promoting from within the company, and only "[v]ery rarely do[es the company] hire from the outside." (Criscuolo Dep. at 34:8-10; see also id. at 43; Puma Decl., Ex. J, Tr. of Dep. of Charles Criscuolo ("Criscuolo Dep. (Def.)") at 46:20-48:5; McCormick Dep. at 33:10-34:15; Monos Dep. at 45:6-9.) While the procedure for promoting entry level employees to management positions is not as centralized as is the hiring procedure, it is equally discretionary. When a department manager position becomes available at a store within his district, Christopher Lang, one of Gristede's two district managers who oversee the individual store managers (see Criscuolo Dep. at 37:3-15; Lang Dep. at 19:2-20:6), solicits recommendations of entry level employees from store managers (Lang Dep. at 55:2-58:3, 78:20-24, 84:10-23). James Monos, the other district manager, simply passes store managers' promotion recommendations along to McCormick and other managers. (Monos Dep. at 44:3-12, 45:12-46:4, Puma Decl., Ex. L, Tr. of Dep. of James Monos ("Monos Dep. (Def.)") at 60:13-61:15, 64:15-65:21.) Monos also discusses promotions with employees who raise the issue directly with him. (Monos Dep. at 49:5-19.) The promotion recommendations eventually reach Criscuolo, who makes the ultimate decision about whether to make the recommended promotion. (Lang Dep. at 100:22-24.)*fn1

There are no written criteria for promotions of employees, and store managers, who often make the initial promotion recommendations, are not told of any such criteria. (Greene Decl., Ex. 4, Tr. of Dep. of Faustino Ferdinand ("Ferdinand Dep.") at 70:19-71:4, 71:13-16.) Employees are not told how to seek a promotion (see id. at 70:19-24 (stating that Ferdinand, a store manager, has "no idea" what an employee should do in order to get a promotion); Monos Dep. at 49:20-25; Monos Dep. (Def.) at 62:6-11, 63:20-64:13), and they often are not told when a management position is available (Criscuolo Dep. at 86:25-87:5; Greene Decl., Ex 8, Tr. of Dep. of Angelo Mendoza ("Mendoza Dep.") at 67:4-14; Greene Decl., Ex. 9, Tr. of Dep. of Sandi Molina ("Molina Dep.") at 107:2-23; Moore Dep. 72:21-24; Monos Dep. at 49:15-50:25; but see Ferdinand Dep. at 68:25-70:13). One store manager evaluates an employee's "attendance, their personality and their ability for them to do the job that they have to do" in deciding whether to promote that employee (Mendoza Dep. at 60:13-20), as well as "a gut feeling" that the employee can perform the duties of the new position (id. at 62:4-7).

Some management positions require specific experience. (Criscuolo Dep. (Def.) at 111:22-112:11 (a dairy manager "should have working knowledge" of the dairy department); Monos Dep. (Def.) at 84:11-86:2 (deli, meat and grocery department managers must have experience in those departments).) A department manager usually has been a clerk in that department. (Monos Dep. (Def.) at 121:4-11; Mendoza Dep. (Def.) at 79:3-5.) It is unusual for an entry-level employee to transfer into a different entry-level position. (Mendoza Dep. (Def.) at 78:17-79:2.) Potential promotees do not complete an application. (Lang Dep. at 57; Monos Dep. at 50:2-11.) There are no written job descriptions for department manger positions. (McCormick Dep. at 68:9-11.)

Plaintiffs' witnesses have observed that most Gristede's cashiers are women and/or most clerks are men (see Greene Decl., Ex. 12, Decl. of Kizzy Bueford ("Bueford Decl.") ¶ 9; Greene Decl., Ex. 13, Decl. of Lewis Chewning ("Chewning Decl.") ¶ 6; Greene Decl., Ex. 14, Decl. of Adela Davila ("Davila Decl.") ¶¶ 3, 7; Duling Decl. ¶ 2; Echevearria Decl. ¶¶ 3, 11; Gonzales Decl. ¶¶ 2, 7; Gonzalez Decl. ¶ 8; Greene Decl., Ex. 19, Decl. of Angela Johns ("Johns Decl.") ¶¶ 3, 9; McDonald Decl. ¶¶ 2, 8; Ortiz Decl. ¶¶ 3, 9; Greene Decl., Ex. 22, Decl. of Starliza Ramos ("Ramos Decl.") ¶¶ 3, 7; Yashira Santiago Decl. ¶¶ 2, 7; Yesenia Santiago Decl. ¶¶ 3, 11; Greene Decl., Ex. 25, Decl. of Lakeya Sewer ("Sewer Decl.") ¶¶ 4, 11; Greene Decl., Ex. 26, Decl. of Ebony Singleton ("Singleton Decl.") ¶¶ 3, 9; Greene Decl., Ex. 33, EEOC Charge of Margaret Anderson ("Anderson EEOC Charge") ¶ 11); and assert that employees were not told about the existence of, or process for seeking, promotions from entry level positions, regardless of whether they expressed an interest in a promotion (see Bueford Decl. ¶ 10; Chewning Decl. ¶ 10; Davila Decl. ¶ 8; Duling Decl. ¶ 9; Echevearria Decl. ¶¶ 9, 11, 12, 14; Gonzales Decl. ¶¶ 5-8; Gonzalez Decl. ¶ 9; Johns Decl. ¶¶ 7, 10; McDonald Decl. ¶¶ 9-12; Ortiz Decl. ¶¶ 7, 10; Ramos Decl. ¶¶ 4, 5, 8; Yashira Santiago Decl. ¶¶ 6, 8; Yesenia Santiago Decl. ¶¶ 10, 12; Sewer Decl. ¶¶ 9, 12, 13; Anderson EEOC Charge ¶ 12). Two of Plaintiffs' witnesses assert that women were expressly disfavored for promotions (see Davila Decl. ¶ 4; Ramos Decl. ¶ 4).*fn2

Plaintiff Susan Duling has been employed by Gristede's as a part-time cashier since approximately August 2003. (Second Am. Compl. ¶¶ 82-83.) Plaintiff Margaret Anderson was employed by Gristede's as a part-time cashier from approximately November 2004 through December 2004. (Id. ¶¶ 89, 95.) Gristede's records indicate that Anderson's employment was terminated because she was "continually short on [her] register." (Puma Decl., Ex. Q, Anderson Termination Report.) Plaintiff Lakeya Sewer was employed by Gristede's as a full time cashier from approximately 2001 until February 2002, when she transferred to a receptionist position in Gristede's corporate office. (Id. ¶¶ 96-97.) Duling, Anderson and Sewer contend that, at the time they were hired, Gristede's steered them into cashier positions by refusing to consider their applications for any other position. (Id. ¶ 84, 92-94; Duling Dep. at 53:6-19; Puma Decl., Ex. H, Tr. of Dep. of Margaret Anderson ("Anderson Dep.") at 33:2-25; Sewer Decl. ¶ 7; Puma Decl., Ex. V, Tr. of Dep. of Lakeya Sewer ("Sewer Dep.") at 26:3-27:6.) Duling wrote on her Gristede's application that she was interested in a cashier position before speaking to anyone about the available positions (Puma Decl., Ex. G, Tr. of Dep. of Susan Duling ("Duling Dep. (Def.)") at 50:7-13, 60:16-24; Puma Decl., Ex. B, Application for Employment of Susan Duling ("Duling App.")), but alleges that when she delivered her completed application she asked about other positions and was told none were available (Duling Dep. at 53:6-19). Duling also alleges that, over the course of her tenure at Gristede's, she has never been made aware of available management positions at Gristede's (Second Am. Compl. ¶¶ 85-86), despite her belief that she is qualified for such positions (id. ¶ 88). During that time Duling has received four "write-ups" for poor performance. (Duling Dep. (Def.) at 88:2-16.) Sewer alleges that she was told when she applied for Gristede's employment that the only position available at the time she applied was that of cashier, and that she did not ask to be placed in a different position. (Sewer Decl. ¶ 7; Sewer Dep. at 26:3-27:6.)

Plaintiffs have also proffered reports from their expert witnesses William T. Bielby and David L. Crawford in support of their motion for class certification. (Greene Decl., Ex. 28 ("Bielby Report"); Greene Decl., Ex. 29 ("Crawford Report").)*fn3 Plaintiffs' expert reports purport to show that gender disparities exist in the hiring and promoting of Gristede's employees, and that those disparities are the result of the practices described above. Using a "multiple pools exact test," which is "based on the computation of an exact probability" and "combines information for multiple groups (or multiple pools) to test for overall bias across several groups of employees" and which he describes as "a widely accepted method for computing statistical significance" (Crawford Report ¶ 15), Dr. Crawford calculated the probability that hiring and promotion decisions for 4,889 employees made by Gristede's during the period from 1999 to 2007 were gender neutral (id. ¶¶ 11, 15). Dr. Crawford reported the results of his analysis in terms of standard deviations from projected gender-neutral results, noting that discrepancies of "2 or 3" standard deviations are generally considered statistically significant in litigation involving tests based on the normal distribution. (Id. at ¶ 13-14.) According to Dr. Crawford, "the probability that a discrepancy of 2 or more standard deviations would occur by chance is 4.55%... [and] the probability that a discrepancy of 3 or more standard deviations would occur by chance is 0.27%...." (Id. ¶ 14.)

Dr. Crawford determined that the initial placement of new hires into entry-level clerk positions significantly departed from gender-neutrality, with a difference of more than 6 standard deviations. (Id. ¶¶ 22-23 (noting that 319 women were placed into clerk positions whereas a gender-neutral assignment would have placed 1038 women into clerk positions, and asserting that the probability that the actual assignments were made in a gender-neutral manner is essentially zero).)*fn4 Similarly, Dr. Crawford found that the promotion of entry-level employees also departed from gender-neutrality by approximately 6.3 standard deviations. Even when controlling for initial position, significantly fewer women were promoted than expected, resulting in a departure from gender-neutrality equivalent to a difference of approximately 4.9 standard deviations. (Id. ¶¶ 12, 16, 18-19.) Dr. Crawford opined that "[p]osition is not a legitimate control variable... because it is tainted by initial assignments that were not gender-neutral." (Id. ¶ 24.) Dr. Crawford also reported a discrepancy, equivalent to a difference of approximately 3.1 standard deviations, in the placement of new cashiers in part-time and full-time positions. (Id. ¶ 26.) He found the placements of new clerks in part-time and full-time positions consistent with gender-neutrality. (Id. ¶ 27.)

Finally, Dr. Crawford analyzed wage disparities. He found that, when controlling for length of tenure at Gristede's, gender differences ranged from 24.4% to 10.5% for each year during the period of time examined, with each year's disparity larger than seven standard deviations. (Id. ¶ 28.) When controlling for position, which, as noted above, he believes is itself the product of a "tainted" initial placement process, the wage differences are not statistically significant. (Id. ¶ 29.) Dr. Crawford concludes that gender disparities in wages are due to disparities in ultimate job position. (Id. ¶ 30.)*fn5 Dr. Crawford similarly found that "merit increases," which are discretionary pay increases, are awarded in a non-gender-neutral manner, in that women were awarded fewer such increases than expected, and the disparity was equivalent to approximately 2.2 standard deviations. (Crawford Report ΒΆ 31.) However, as with the wage disparity, the disparity in merit increases disappears when one controls for position, and women even receive "a ...


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