Duane Morris Class Action Review - 2023 - Report - Page 182
certify the class at this juncture of the litigation - with the new plaintiff following discovery
and depositions - would result in undue prejudice to defendant. The court reasoned that
certification of the class under these circumstances would incentivize improper
manipulation in the designation and substitution of class representatives in class action
litigation. For these reasons, the court denied plaintiff’s motion for class certification.
E.
Rulings Granting Class Certification Based On Challenges To Discrete
Employment Practices
Plaintiffs were generally successful in 2022 where they sought class certification over
discrete employment practices. Four rulings in the U.S. District Court for the Southern
District of New York illustrate that principle.
In Abbananto, et al. v. County Of Nassau, 2022 U.S. Dist. LEXIS 19975 (E.D.N.Y. Feb.
3, 2022), plaintiffs - a group of male and female Police Communications Operators
(PCOs) and Police Communications Operators Supervisors (PCOSs) - filed a class
action alleging defendant subjected them to a system whereby the predominantly male
Fire Communication Technicians (FCTs) and Fire Communications Technicians
Supervisors (FCTSs) were treated more favorably than the predominantly female PCOs
and PCOSs, despite having nearly identical job responsibilities. Plaintiffs claimed
violations of Title VII of the Civil Rights Act and the New York Human Rights Law.
Plaintiffs filed a motion for class certification pursuant to Rule 23, and the court granted
the motion. The court found that Plaintiff met the requirements of Rule 23(a), and that
common questions predominated. The court reasoned that plaintiffs’ claims that
defendant’s policies were a result of discriminatory intent were subject to generalized
proof given that the crux of Plaintiffs' case was that the predominantly male FCTs and
FCTSs were not subject to the same policies as plaintiffs. The court determined that
plaintiffs’ claims would require generalized proof, such as statistical evidence, that
would apply generally to all class members. The court also ruled that a class action
would be the superior method of adjudication, as there were no other pending actions
with the same controversy at issue, the class members wished to proceed as a class,
and the close proximity of all class members mitigated any hardship in proceeding as a
class action.
Likewise, in Chalmers, et al. v. City Of New York, 2022 U.S. Dist. LEXIS 169111
(S.D.N.Y. Sept. 19, 2022), Plaintiffs, a group of fire protection inspectors and associate
fire protection inspectors (FPIs), filed a class action alleging that defendant, the City of
New York (the City), subjected them to discrimination on the basis of their race in
violation of Title VII of the Civil Rights Act and the New York City Human Rights Law.
Plaintiffs filed a motion for class certification pursuant to Rule 23, and the court granted
the motion. The court found that plaintiff met all Rule 23(a) requirements, and
specifically as to commonality: (i) defendant had a common policy of paying employees
the minimum under the applicable collective bargaining agreement, and whether that
policy was discriminatory was a question common to all class members; (iii) common
questions as to plaintiffs’ disparate treatment claims existed because all class members
were subject to the same policies that disadvantaged them relative to a comparator
group of employees that performed similar duties; and (iii) plaintiffs offered significant
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Duane Morris Class Action Review – 2023
