The opinion of the court was delivered by: David G. Larimer United States District Judge
These four cases arise out of alleged racial discrimination against inmates at the Elmira Correctional Facility, which is operated by the New York State Department of Correctional Services ("DOCS") in Elmira, New York. The four African-American plaintiffs, Jerry Reynolds, Khalib Gould, Anthony Mack, and Joseph Ponder, all of whom were at all relevant times incarcerated at Elmira, allege that they were subjected to discrimination on account of their race in connection with their inmate jobs in the Print Shop at Elmira. Plaintiffs assert claims under 42 U.S.C. §§ 1983 and 1985.
Several motions are now pending before the Court. Plaintiffs have moved to amend their complaints, by filing a single consolidated complaint governing all four actions. Plaintiffs have also moved to certify a class under Rule 23 of the Federal Rules of Civil Procedure. In addition, defendants have moved for summary judgment dismissing all the plaintiffs' claims.
These cases have their collective genesis in this Court's decision in Santiago v. Miles, an action that was filed in 1986 by a class of inmates at Elmira against various prison officials, alleging widespread discrimination at Elmira on the basis of race, in violation of the Fourteenth Amendment to the United States Constitution. The case went to trial, and on October 1, 1991, this Court found that black and Hispanic inmates at Elmira had been "systematically subjected ... to discrimination on the basis of race in the areas of housing and job assignment and in the imposition of discipline." 774 F.Supp. 775, 801. The Court directed the parties to work together to create a plan to end that discrimination and to agree on the terms of a remedial injunction to be issued by the Court.
On April 13, 1993, the court adopted a plan, previously agreed to by the parties, setting forth various provisions and safeguards designed to remedy the systemic discrimination at Elmira. For example, the plan provided that inmate jobs at Elmira were required to be assigned in such a way that the percentage of black and Hispanic inmates in certain "preferred" jobs, see id. at 782, including jobs in the Print Shop, would correspond to the percentage of blacks and Hispanics in Elmira's inmate population. Santiago, 86-CV-694, Dkt. #128 ¶ 9. The plan further provided that the judgment incorporating the plan would "continue in full force and effect and bind the defendants as well as their successors, agents, and employees until modified or terminated by the Court ...," and that "[i]n the event that plaintiffs believe that defendants are not in compliance with this Judgment, ... plaintiffs may seek relief from this Court." Santiago, Dkt. #128 ¶ 29.
The first of the four cases at bar, Reynolds v. Chamberlin, was filed on June 3, 1999. Reynolds, who began working in the Print Shop in 1994, alleges that his incentive bonus pay was docked for alleged errors that, if committed by a white inmate, would not have resulted in a similar reduction in pay. Reynolds Second Amended Complaint (Dkt. #6) ¶ 20. Reynolds was terminated from the Print Shop in September 1999, after he was found guilty on several charges involving possession of contraband in his cell.
The second of these actions, Gould v. Barrett, was filed on October 5, 1999. Gould, who also began working in the Print Shop in 1994, alleges that he was passed over for promotion, demoted, and eventually removed from the Print Shop in March 1999, ostensibly for poor performance, but in reality on account of his race, and in retaliation for his having filed grievances about various matters related to the Print Shop. Gould Complaint (Dkt. #1) ¶¶ 13-96.
The complaint in Mack v. Barrett was filed on March 27, 2000. Mack began working in the Print Shop in 1998. He alleges that despite his initially satisfactory job performance, he was repeatedly, and unfairly, blamed by his supervisors for printing press malfunctions. After receiving a series of inmate counseling notifications for those alleged problems, Mack was programmed out of the Print Shop in April 1999. He contends that he was programmed out because of his race, and also in retaliation for his having filed grievances about some of these matters.
The fourth action, Ponder v. Chamberlin, was commenced on September 7, 2000. Ponder began working in the Print Shop in 1997. He was programmed out of the Print Shop in March 1999, after having also received a number of inmate counseling notifications. Plaintiff alleges that his termination was the result of race discrimination and retaliation for his prior complaints about various matters.
In November 2000, the Court appointed counsel for plaintiffs in all four of these actions. In October 2001, plaintiffs' counsel filed a motion to consolidate these actions for all purposes under Rule 42(a), and for leave to file a consolidated amended complaint. Reynolds, Dkt. #47.*fn1
On November 15, 2001, Magistrate Judge Jonathan W. Feldman issued an order directing plaintiffs to refile a proposed amended complaint providing more detail as to the nature of each plaintiff's claims against each individual defendant. Dkt. #51. That order also set forth a briefing schedule on the motion to amend, should defendants oppose the motion.
By stipulation and order entered on December 20, 2001, these cases were consolidated for purposes of discovery. Dkt. #52. That stipulation and order also set forth the parties' agreement and understanding that "no adverse inferences shall be drawn and neither side shall be prejudiced in any way because either (I) the defendants stipulate to proceed with discovery on a consolidated basis, or (ii) plaintiffs agree to amend the complaints after discovery has been completed."
Pursuant to a scheduling order issued on May 2, 2005, discovery in these actions was closed on August 31, 2005. Dkt. #87. On October 3, 2005, plaintiffs again filed a motion for leave to file an amended consolidated complaint. Dkt. #99. Defendants filed papers in opposition to the motion, after which the Court heard oral argument and reserved decision on the motion.
While the motion to amend was pending, defendants filed summary judgment motions in each of these actions on October 29, 2008. Dkt. #118. Two days later, on October 31, 2008, plaintiffs filed their class certification motion. Dkt. #123. The Court heard oral argument on those motions on April 8, 2009.
I. Timing and Sequence of the Motions
"Courts have held that in general, issues relating to class certification should be decided before a decision on the merits is rendered." Mendez v. The Radec Corp., 260 F.R.D. 38, 44 (W.D.N.Y. 2009) (citing cases). See also Fed. R. Civ. P. 23(c)(1) (district court should determine whether a class is maintainable "[a]t an early practicable time after a person sues or is sued as a class representative"). That is particularly true in cases in which certification is sought under Rule 23(b)(3), which requires that absent class members be given an opportunity to exclude themselves from the class. Once the opt-out date has passed in a Rule 23(b)(3) action, absent members are bound by the judgment.
"There are exceptions to that general principle, however," and in particular, "there is authority that a defendant can waive any objection to a decision on the merits prior to, or simultaneous with, a decision on class certification." Mendez, 2009 WL 2584831, at *4. See, e.g., Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995) (defendant may elect to seek summary judgment prior to decision on class certification as a "way to try to knock ... off [the action] at low cost," by disqualifying the named plaintiffs as proper class representatives, in order to moot the question whether to certify the suit as a class action); Schwarzschild v. Tse, 69 F.3d 293, 297 (9th Cir. 1995) ("By obtaining summary judgment before notice had been sent to the class, the defendants waived their right to have such notice given and to obtain a judgment that was binding upon the class").
In fact, the Advisory Committee Notes to the 2003 amendments to Rule 23 (which changed subdivision (c)(1)(A) to require that the determination whether to certify a class be made "at an early practicable time," rather than "as soon as practicable") expressly recognize "the many valid reasons that may justify deferring the initial certification decision," including the possibility that "[t]he party opposing the class may prefer to win dismissal or summary judgment as to the individual plaintiffs without certification and without binding the class that might have been certified." See also Curtin v. United Airlines, Inc., 275 F.3d 88, 93 (D.C. Cir. 2001) ("where the merits of the plaintiffs' claims can be readily resolved on summary judgment, where the defendant seeks an early disposition of those claims, and where the plaintiffs are not prejudiced thereby, a district court does not abuse its discretion by resolving the merits before considering the question of class certification"); Jamieson v. Vatterott Educ. Ctrs., Inc., 259 F.R.D. 520, 526 (D.Kan. 2009) ("As a practical matter, it is appropriate to clarify the nature and scope of the pending claims before determining their suitability for class action treatment").
In each of the cases at bar, defendants have moved for summary judgment, dismissing the claims in their entirety. They have therefore implicitly waived any right they may have had to have class certification issues decided first. In addition, since it appears that at least some of plaintiffs' individual claims may be subject to dismissal, I believe that "[r]eversing the usual order of disposition [may] spare both the parties and the court a needless, time-consuming inquiry into certification." Curtin, 275 F.3d at 92.
II. Defendants' Motions for Summary Judgment
Although each of the four plaintiff's complaints is sui generis and must be evaluated on its own merits, they are similar in some respects. Each plaintiff asserts claims under 42 U.S.C. §§ 1981, 1983, 1985 and 1986. The gist of their claims is that plaintiffs were subjected to some adverse actions, including their removal from the Print Shop and loss of pay, on account of their race. Each plaintiff also asserts some variation of a claim or claims for what they describe as a breach of defendants' "duty to protect," but what they apparently mean is that the supervisory defendants failed to prevent or stop the alleged violations from occurring.
The proposed amended class action complaint is similar. As proposed, it would also assert claims under §§ 1981, 1983, 1985 and 1986, as well as a claim alleging that "[d]efendants violated their obligations directly and through subterfuge in regards to Judge Larimer's Order dated April 13, 1993 and are liable to plaintiffs," Dkt. #101 at 56 ¶ 254, a claim under the New York Human Rights Law, Exec. L. § 296, a claim under the New York State Constitution, and a claim for attorney's fees under N.Y. C.P.L.R. § 8601.
Despite the variety of claims asserted, the § 1983 claims lie at the heart of these cases. And though § 1983 provides a vehicle by which to seek redress against state actors for a wide range of constitutional violations, it is plaintiffs' equal protection claims that form the core of their § 1983 claims.
Although a prison inmate "has no right to any particular prison job, ... prison officials cannot discriminate against him on the basis of his race in work assignments." LaBounty v. Adler, No. 89 Civ. 4242, 1999 WL 961776, at *2 (S.D.N.Y. Oct. 21, 1999). See also LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991) (holding that inmate had stated facially valid equal protection claim based on allegations that he and other black inmates were subjected to more stringent requirements for certain work assignments than similarly situated white inmates, and remanding to district court for further proceedings).
Both sides here agree that in analyzing plaintiffs' equal protection claims, the Court should employ the burden-shifting paradigm used in Title VII cases under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Williams v. Federal Bureau of Prisons and Parole Comm'n, 85 Fed.Appx. 299, 305 (3d Cir. 2004) (stating that McDonnell Douglas burden-shifting framework applies to prisoners' equal protection claims of racial discrimination) (citing Stewart v. Rutgers, 120 F.3d 426, 432 (3d Cir. 1997)); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004) (applying McDonnell Douglas framework to § 1983 employment discrimination case by public school psychologist); Reece v. Low, No. CIV-05-307, 2009 WL 2761923, at *13 (W.D.Okla. Aug. 27, 2009) (evaluating inmate's claim of race discrimination with respect to his prison job under McDonnell Douglas).
Under that approach, the plaintiff must first establish a prima facie case by demonstrating that: (1) he is a member of a protected class; (2) his job performance was satisfactory; (3) he suffered an adverse action in connection with his job; and (4) the action occurred under conditions giving rise to an inference of discrimination. If the plaintiff makes out a prima facie case, the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for the adverse action. If the defendant makes such a showing, the burden shifts back to the plaintiff to prove discrimination, by showing that the defendant's proffered reason is a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-04; Leibowitz v. Cornell Univ., 584 F.3d 487, 498-99 (2d Cir. 2009); Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006). "In such situations, plaintiff carries the ultimate burden of persuasion and must produce evidence such that a rational finder of fact could conclude that the adverse action taken against [him] was more likely than not a product of discriminatory animus." Leibowitz, 584 F.3d at 504.
Retaliation claims are analyzed under a similar framework. The chief differences are that to establish the first element, the plaintiff must show that he engaged in protected activity (such as filing a grievance), and that with respect to the fourth element, there must be evidence that retaliation was a motivating factor for the adverse job action. Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003); Webster v. Fischer, 694 F.Supp.2d 163, 182 (N.D.N.Y. 2010).
B. Plaintiff's Statistical Evidence
In support of their claims of race discrimination, plaintiffs rely in part on an expert report prepared by Michael J. Guilfoyle (Dkt. #125, Ex. H). Guilfoyle, a professional applied statistician, analyzed certain data concerning 185 inmates who worked at the Print Shop between April 1994 and December 1999.
Guilfoyle states that his analysis of the data shows that, to a statistically significant degree, white inmates had a longer tenure in the print shop, and were paid more, than non-white inmates during that time period. He also states that non-white inmates were penalized (through demotions or pay reductions) "at much higher rates" than white inmates. Dkt. #125-3 at 57. For example, according to Guilfoyle, the mean tenure of employment in the Print Shop during the period that he examined was 23.9 months for white inmates, and 15.14 months for black inmates. The average hourly pay rate was 42 cents for white inmates and 30 cents for black inmates. Guilfoyle opines that "[t]hese results suggest that there is a strong bias against non-white inmates working the Elmira prison print shop when tenure, rate of pay and demotions are examined." Id.
Statistical evidence can be used to bolster an individual claim of disparate treatment, but "[s]tatistics alone are insufficient in a disparate-treatment claim because an individual plaintiff must prove that he or she in particular has been discriminated against." Baron v. New York City Dep't of Educ., No. 06-CV-2816, 2009 WL 1938975, at * 6 (E.D.N.Y. July 7, 2009) (quoting Drake v. Delta Air Lines, Inc., No. 94-CV-5944, 2005 WL 1743816, at *6 (E.D.N.Y. July 21, 2005), aff'd, 216 Fed. Appx. 95 (2d Cir. 2007)); see also E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1185-86 (5th Cir. 1996) ("statistics are impotent, without more," to create fact issue about whether individual employee was discriminated against).
"Rather, statistical evidence can be used along with other evidence to prove discriminatory intent." Bussey v. Phillips, 419 F.Supp.2d 569, 583 (S.D.N.Y. 2006) (citing Catanzaro v. Weiden, 140 F.3d 91, 96 (2d Cir. 1998)). See also Simpson v. Leavitt, 437 F.Supp.2d 95, 104 (D.D.C. 2006) (statistical "evidence generally is not conclusive [in disparate-treatment cases] and will instead serve to 'add "color"' to the inquiry into the employer's decision-making process") (quoting Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987)). Regardless of the weight that should be given to Guilefoyle's conclusions, then, the Court must also examine each plaintiff's evidence concerning his own individual circumstances to determine whether he has presented a viable claim that can withstand defendants' motion for summary judgment.
C. Individual Plaintiffs' Discrimination Claims
There is no dispute here that plaintiff Reynolds has satisfied the first and third elements of his prima facie case: he is black, and he suffered an adverse action in connection with his job at the Print Shop, specifically the loss of a bonus in 1998. Although Reynolds was also terminated from the Print Shop in 1999, he does not appear to allege that his termination, which followed Reynolds's conviction on charges involving contraband in his cell, was the result of discrimination. His claim is based solely on the loss of the bonus in 1998.
What is at issue here is whether plaintiff has met the other two prongs of his prima facie case: whether his job performance was satisfactory, and whether the adverse action occurred under conditions giving rise to an inference of discrimination. Even viewing the evidence in the light most favorable to plaintiff, I conclude that he has not done so.
The primary decisionmaker responsible for denying plaintiff his bonus was Jerry Rathbun, who was plaintiff's Industrial Training Supervisor ("ITS"), a civilian employee of DOCS who supervised the Print Shop. On November 18, 1998, Rathbun issued an inmate counseling notification to Reynolds (Dkt. #121, Ex. B) stating, "You were told by me today 11-18-98 that if you had to have more plates made for [a certain job] to see me not for you to go back and see Goulds to find out how many more you had to do over." Id. at 2371. Rathbun added, "You sent Leake from prepress back to see Goulds to find out how many more, when you are told by me to see me thats [sic] what I want done. You will loose [sic] your bonus untill [sic] the cost of the plates & material is paid for $57.00 worth." Id.
At his deposition in this action, Rathbun explained that Reynolds "was running back to the bindery and finding out which page he screwed up that they couldn't use and then running into the camera room and getting plates made over. He went around me." Dkt. #121 Ex. E at 87. In other words, according to Rathbun, plaintiff had made a mistake in running the machine, and was trying to cover up his mistake by redoing the plates that had been affected by the mistake, "without telling [Rathbun] that [plaintiff had] screwed it up to start with ... ." Id.
There is no evidence, however, that Rathbun's stated basis for issuing the counseling notification was false, or that he harbored any racial animus toward Reynolds. In opposition to defendants' summary judgment motion, plaintiff states that "Rathbun ... often made racial remarks in plaintiff's presence ...," Plaintiff's Mem. of Law (Dkt. #130) at 14, but plaintiff's own deposition testimony fails to support that assertion. When he was asked if had "ever hear[d] Mr. Rathbun make a negative racial remark," Reynolds replied that "Mr. Rathbun was an extremely racial man," but the only specifics that he could offer to support that allegation were that on one occasion, Rathbun called the inmates in the Print Shop together and "ma[d]e an announcement that ... he heard that a lot of the inmates were saying that he's a racist," and that Rathbun "ma[d]e a declaration in front of the entire shop that, 'I don't think that I have a racist bone in my body.'" Reynolds Depo. Tr. (Dkt. #121 Ex. A) at 142.
When asked if he could recall any particular "racial comments Mr. Rathbun made," however, plaintiff simply responded that "it wouldn't, you know, be fair to him. I wouldn't want to attempt to recite what they [sic] said." Id. at 143. When defense counsel replied that was simply "giving [Reynolds] an opportunity to tell ... what [he] recall[ed]," Reynolds stated, "[I]n all honesty, I don't want to sit here at the risk of maybe misquoting what he said. I don't want to take the chance of trying to, under oath, swear to he said this or that, you know." Id.
The only statements by Rathbun to which plaintiff did testify, then, were Rathbun's statements to the Print Shop inmates to the effect that he was not a racist, and that any impressions of him to the contrary were mistaken. Those statements might indicate that Rathbun believed, or was aware, that some inmates considered him to be a racist--a perception that he sought to dispel--but by themselves they are not probative of any actual racial animus on Rathbun's part.
Reynolds has also submitted (as have the other three plaintiffs) a copy of a poster that allegedly hung on the wall of Rathbun's office. On the left-hand side of the poster is a photograph of an ape (described by plaintiff as a gorilla, though it appears to be an orangutan) staring directly into the camera, and on the right side are the words, "Whoever regards work as pleasure can sure have a HELL of a good time in this institution." Dkt. #132 Ex. J.
Plaintiff apparently seeks to have the factfinder draw an inference of racial animus from that poster. There does not appear to be any evidence, however, that the poster itself conveyed any inherent or obvious racial message, or that Rathbun ever said or did anything to imply that the poster was targeted at any particular inmate or group of inmates, black or otherwise. In the absence of other evidence suggesting that Rathbun harbored any racial animus, this poster is not probative of discriminatory animus on Rathbun's part. Cf. Gregory v. Widnall, 153 F.3d 1071, 1074-75 (9th Cir. 1998) ("A single drawing of a monkey on a memo circulated to senior NCOs, accompanied by the verbal explanation that it was intended to remind ...