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Gulino v. The Board of Education of The City School District of The City of New York

United States District Court, Second Circuit

August 29, 2013

GULINO, ET AL., Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Defendant.

OPINION & ORDER

KIMBA M. WOOD, District Judge.

Plaintiffs, a group of African-American and Latino teachers in the New York City public school system, filed the above-captioned action in 1996. Plaintiffs alleged that Defendant, the Board of Education of the City School District of the City of New York ("the Board"), violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII") by requiring Plaintiffs to pass certain racially discriminatory standardized tests in order to obtain a license to teach in New York City public schools. Judge Constance Baker Motley, to whom the case was originally assigned, certified the plaintiff class on July 13, 2001, pursuant to Federal Rule of Civil Procedure 23(b)(2). Gulino v. Bd. of Educ. of the City Sch. Dist. of City of N.Y., 201 F.R.D. 326 (S.D.N.Y. 2001) (Motley, J.). On December 5, 2012, this Court decertified the Plaintiff class to the extent it sought damages and individualized injunctive relief in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 907 F.Supp.2d 492, 504-05, 507 (S.D.N.Y. 2012) (Wood, J.). The class survived, however, to the extent Plaintiffs sought relief that may be awarded under Rule 23(b)(2), including a declaratory judgment regarding liability and classwide injunctive relief. Id. at 507-09.

Plaintiffs now move to certify a"remedy-phase class, " seeking classwide backpay and other individualized relief, pursuant to Rule 23(b)(3). [Dkt. No. 328]. For the following reasons, the Court GRANTS Plaintiffs' motion to certify a remedial phase class pursuant to Rule 23(b)(3).

I. BACKGROUND

The Court addresses only those facts relevant to the instant motion. The facts and complex procedural history of this case are set out in this Court's prior opinions, familiarity with which is assumed.[1]

A. Liability Issues

Plaintiffs alleged that the Board and the New York State Education Department ("SED")[2] discriminated against them by requiring teachers to pass a licensing exam that had a disparate impact on minorities. Class members were initially awarded New York City teaching licenses between 1986 and 1991. Gulino, 201 F.R.D. at 328. In 1991, in accord with state legislation, SED began requiring prospective teachers and licensed teachers seeking full-time employment to pass a generalized liberal arts exam, initially administering the National Teacher Core Battery ("Core Battery") and then phasing in the Liberal Arts and Sciences Test ("LAST-1") in 1993. Id. at 328-29. After being notified that they must pass the Core Battery or LAST-1 in order to retain their licenses, thousands of experienced teachers took and failed the exams. Id. at 329. Rather than terminate these teachers, however, the Board retained them in the same teaching positions and assigned the same course load, but revoked their licenses, demoted them to substitute status, reduced their salaries, froze their pensions, and revoked their seniority rights. Id.

After sixteen years of litigation, including an eight-week bench trial and a remand from the Second Circuit, this Court held that the Board's use of LAST-1 violated Title VII. Gulino, 907 F.Supp.2d at 525. The Court found that LAST-1 had a disparate impact on minority testtakers, and that the Board failed to prove that the test was had been properly validated as job-related (an affirmative defense to Title VII liability).[3] Id. Accordingly, the Board violated Title VII by requiring Plaintiffs to pass LAST-1 in order to obtain a permanent teaching license. Id. However, on January 28, 2013, this Court granted the Board's motion to certify its liability ruling for immediate interlocutory appeal. See id. at 525-26. Specifically, the Court certified the question of whether an employer can be liable under Title VII for complying"with a facially neutral state licensing requirement for teachers that allegedly has a disparate impact on members of a protected class." Id. at 526.

B. Class Certification Issues

Judge Motley certified the original Plaintiff class on July 13, 2001 pursuant to Federal Rules 23(a) and 23(b)(2). The class was defined as:

All African-American and Latino individuals employed as New York City public school teachers by Defendants, on or after June 29, 1995, who failed to achieve a qualifying score on either the [Core Battery] or the [LAST-1], and as a result either lost or were denied a permanent teaching appointment.

Gulino, 201 F.R.D. at 330. Three named plaintiffs-Elsa Gulino, Mayling Ralph, and Peter Wilds- represented the class. Id. Judge Motley found that the proposed class satisfied the requirements of Rule 23(a), in that the class was sufficiently numerous; that there were legal issues common to the class members' claims; that the class representatives' claims were typical of those of the other members of the class, and that the named plaintiffs would adequately represent the other members of the class. Id. at 331-333. Judge Motley also found that the proposed class satisfied Rule 23(b)(2), which authorizes class actions where a defendant"has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole." Id. at 333 (quoting Fed.R.Civ.P. 23(b)(2)). Judge Motley found that Plaintiffs' claims for monetary damages did not predominate over their claims for injunctive and declaratory relief, but did not consider whether the class action was the superior method of adjudication because Rule 23(b)(2) did not require such a determination. Id. at 333-34.

On June 20, 2011, the Supreme Court held that courts could no longer use Rule 23(b)(2) to certify class actions where plaintiffs sought non-incidental monetary relief or individualized injunctive relief. Wal-Mart, 131 S.Ct. at 2557. Rather, classes may be certified under Rule 23(b)(2) only where the plaintiffs seek"an indivisible injunction benefitting all its members at once"; if each plaintiff would be entitled to an individualized injunction or backpay, the class must be certified under Rule 23(b)(3). Id. at 2557-58. On July 18, 2011, the Board moved to decertify the plaintiff class in light of this decision. [Dkt. No. 306].

The Court granted in part and denied in part the Board's motion to decertify the plaintiff class in light of Wal-Mart. Gulino, 907 F.Supp.2d at 503-09. First, the Court explained that the Second Circuit encourages courts to birfurcate class proceedings into two phases pursuant to Rule 23(c)(4). Under this approach, courts certify a"liability"class under Rule 23(b)(2), and then certify a"remedial" class under 23(b)(3). Applying these principles, the Court found that Plaintiffs' request for declaratory relief and classwide injunctive relief-such as the appointment of a monitor- could proceed as a liability phase class action under Rule 23(b)(2).[4] The Court agreed with the Board, however, that Plaintiffs' claims for backpay and individualized injunctive relief must be de-certified in light of Wal-Mart. However, the Court explained that Plaintiffs would be able to move to re-certify a damages class under Rule 23(b)(3) in order to"promote judicial flexibility in managing complex class actions." Id. at 507 (citing Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167-69 (2d Cir. 2001), reversed on other grounds by Wal-Mart, 131 S.Ct. at 2559).

Plaintiffs now request that the Court certify a remedial class under Rule 23(b)(3). Plaintiffs proposed class consists of:

All African-American and Latino individuals employed as New York City public school teachers by Defendant, on or after June 29, 1995, who failed to achieve a qualifying score on the [LAST-1], and as a result either lost or were denied a permanent teaching appointment.

(Pls.'s Mem. of Law in Supp. 1 [Dkt. No. 329]). The proposed class is identical to the class certified by Judge Motley, except that it confines its membership to those teachers who failed LAST-1 (it eliminates those who failed the Core Battery).

Peter Wilds, one of the original class representatives, submitted a declaration indicating his willingness to continue representing the class. Mr. Wilds is an African-American man who has been employed by the Board since 1985. (2013 Wilds Decl. ¶ 1 [Dkt. No. 332]). In 1988, he received a full-time license to teach special education and was hired into a full-time position. ( Id. ). In 1994, the Board notified Mr. Wilds that he must pass either the Core Battery or LAST-1 in order to retain his teaching license. ( Id. ). After Mr. Wilds failed to achieve a passing score on either test, the Board revoked his license, demoted him to a substitute teaching position, cut his salary, froze his pension benefits, and revoked his seniority rights. ( Id. ). Mr. Wilds continued in his previous full-time job as a substitute until 1997, and then began working as a guidance counselor. ( Id. at ¶ 2).

The Board opposes Plaintiffs' motion to certify a class under Rule 23(b)(3). ( See Am. Mem. of ...


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