Seyfarth Synopsis: In Richardson v. City of New York, No. 17 Civ. 9447, 2021 WL 1910689 (S.D.N.Y. May 12, 2021), a putative class of Plaintiffs alleged that the Fire Department of New York was discriminatory in its hiring, promotion, and compensation decisions relative to its civilian workforce. Citing the U.S. Supreme Court's landmark decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 352 (2011), the U.S. District Court for the Southern District of New York denied Plaintiffs' motion for class certification, holding that plaintiffs seeking to litigate a class action involving a large number of individual employment decisions must establish "some glue holding the alleged reasons for all those decisions together" in order to satisfy the commonality requirement of Rule 23(a)(2). This case is a must-read for employers facing class claims and another addition to the arsenal for opposing class certification of employment discrimination claims.
Case Background
In Richardson, the named plaintiffs filed a putative class action alleging that the Fire Department of New York ("FDNY") engaged in discriminatory hiring, promotion, and compensation decisions with respect to FDNY's civilian workforce, which is distributed across six main job groups, including: Management Specialists, Science Professionals, Health Professionals, Clerical Supervisors, Clerical, and Craft. The plaintiffs alleged that these decisions had not produced equal outcomes across racial groups, and claimed that FDNY's hiring processes had resulted in a significant "underutilization" of African Americans in its civilian workforce. Id. at *3.
The named Plaintiffs brought disparate impact and disparate treatment claims on behalf of two putative classes of employees. The first class proposed by the named Plaintiffs included all African-Americans who passed any applicable Department of Citywide Administrative Service tests, possessed all other posted requirements for any posted FDNY civilian vacancy, and applied and were rejected by FDNY for any such position in the relevant time period, and the second class was all African-Americans who were otherwise already employed in a civilian full-time position in FDNY in the relevant time period.
After two years of litigation, the City brought a partial motion for summary judgment and motion to strike the plaintiffs' claims, arguing in part that a number of the named Plaintiffs' claims for injunctive and declarative relief were mooted when they retired from FDNY, thus precluding them from serving as representatives of the one of the proposed classes, and that the plaintiffs' disparate impact claims were legally deficient. Around the same time, the Plaintiffs filed a motion to certify their proposed classes.
The Court's Decision
The Court's opinion first addressed the City's motions for partial summary judgment and to strike. The Court agreed that the retirements of several of the named Plaintiffs from the FDNY rendered their claims for equitable relief moot, as the relief sought would not redress any of the alleged injuries of the retired individuals.
As to the City's arguments that the Plaintiffs' disparate impact claims were insufficiently pleaded and were foreclosed by the Supreme Court's holding in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and thus, should be stricken, the Court declined to consider such arguments in the context of a motion to strike and found that the sufficiency of class allegations should be determined on a motion for class certification.
The Court next addressed the Plaintiffs' motion for class certification. In briefing the motion, the parties mainly addressed whether the Plaintiffs' claims presented questions of law and fact common to the proposed classes. The City had argued that the complaint failed to allege that FDNY relied upon a "common mode of exercising discretion" over its hiring, promotion, and compensation processes and failed to "pinpoint facially neutral policies that are applicable to the putative class." The Court considered whether the Plaintiffs established that African-Americans at FDNY were subjected to "a common mode" or "general policy" of discrimination or whether, instead, FDNY has a "policy against having uniform employment practices."
First, relative to their disparate impact claims, the Court found that the Plaintiffs failed to show that the involvement of various departments at the City in hiring, promotion, or compensation decisions was sufficiently "consistent," "pervasive," or "classwide" to produce common questions and answers across the putative classes. Instead, the Court found that the roles of the various offices varied substantially with respect to FDNY's employment procedures and that the putative class members would have had varied experiences in applying for promotions and with respect to compensation decisions. Ultimately, the Court found that even if the various offices of the City discriminated against FDNY employees or applicants, the Plaintiffs failed to show that all of their proposed class members would have been subjected to the same mode of discrimination.
Further, the Court rejected the Plaintiffs' argument that the FDNY EEO Office's failure to impose a "system for evaluating and rewarding managers based on compliance with EEO policies" support certification of a class, finding that the complaint boiled down to an allegation that supervisors were allowed too much discretion to make employment decisions. However, "too much discretion, as Dukes explains, is 'the opposite of a uniform employment practice that would provide the commonality needed for a class action.'" Id. at *9. The Court also found that the Plaintiffs' statistical analysis even undermined the idea that a uniformly applied, common practice was driving the outcomes at issue, as the plaintiffs failed to identify any practice that would have disparately impacted all members of their proposed classes. Accordingly, the Court denied class certification with respect to the disparate impact claims.
Second, with respect to the disparate treatment claims, the Court explained that the Plaintiffs needed only to show that FDNY engaged in "widespread acts of intentional discrimination against individuals," or that "intentional discrimination was [FDNY's] standard operating procedure." Id. To do so, the Plaintiffs presented statistical evidence demonstrating that African-Americans were under hired at a statistically significant degree in only seven of the 32 titles that had attracted at least 15 African-American and white job-seekers. Recognizing the statistical analysis the Plaintiffs presented was "troubling," and noting that it could suggest that African-American applicants to seven job titles faced discrimination, the Court nevertheless found the evidence did not suggest the kind of pattern or practice of discrimination that would create common questions across the proposed class. The Court further reaffirmed that "[i]n the wake of Dukes, courts have been skeptical of "aggregated statistical evidence . derived from hundreds of employment decisions made by myriad decision makers, at different times, under mutable procedures and guidelines, in different departments, . [and] concerning employees at varying levels of experience, responsibilities, and education." Id. Thus, while statistics alone may be sufficient to establish a pattern or practice of discrimination, they must also be of a level that makes other plausible non-discriminatory explanations for the statistical results very unlikely.
Finally, the Court believed the Plaintiffs' anecdotal evidence could not salvage their disparate treatment claims, stating that specific testimony about discrimination rarely supports an organization-wide remedy and that the anecdotal evidence offered was thin or purely speculative. Accordingly, the Court denied to certify any class with respect to the discriminatory impact claims and ultimately denied the Plaintiffs' motion for class certification in its entirety.
Implications For Employers
The ruling in Richardson is noteworthy for employers as the latest in a significant line of decisions indicating that the U.S. Supreme Court's landmark Wal-Mart v. Dukes decision from 2011 remains a critical defense in employment discrimination class actions. When plaintiffs attempt to certify classes with putative class members who were allegedly harmed by a multitude of managers or departments in an organization, employers can point to Wal-Mart v. Dukes to illustrate why class treatment is not appropriate. Though the Plaintiffs in Richardson were armed with potentially "troubling" statistical evidence and additional anecdotal evidence related to hiring, promotion and compensation decisions, the lack of "glue holding the alleged reasons for all those decisions together" precluded them from certifying a class.
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