Opinion
No. 71 Civ. 2877 (RLC).
October 27, 2004
DEBEVOISE PLIMPTON EDWIN G. SCHALLERT PATRICIA G. CORLEY JYOTIN HAMID WENDY B. REILLY New York, New York, Attorneys for Plaintiffs.
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, MICHAEL L. FOREMAN, KRISTIN M. DADEY, AUDREY J. WIGGINS Washington, DC, Attorneys for Plaintiffs.
PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, ALAN LEVINE, JACKSON CHIN, New York, New York, Attorneys for Plaintiffs.
EDMUND P. D'ELIA, P.C., EDMUND P. D'ELIA, New York, New York, Attorneys for Defendant.
HIGHSAW, MAHONEY CLARKE, JOHN O'B. CLARKE, Washington, DC, Attorneys for Defendant.
OPINION
Individual black and Hispanic members of Local 28 seek to certify a class, pursuant to Rule 23, F.R. Civ. P., of all black and Hispanic persons who are or were at any time since 1984 members, either as journeypersons or apprentices, of Local 28 and who are or were "underemployed" as compared to their white counterparts.
This court continues to use the term "underemployed" as it has been defined for the purposes of this litigation. Specifically, it refers to those "black and Hispanic union members and former members [whose] work hours were two or more standard deviations below what would be expected" if there were no discrimination. EEOC v. Local 638-Local 28 of Sheet Metal Workers' Int'l Ass'n, 13 F.Supp.2d 453, 465 (S.D.N.Y. 1999) (Carter, J.)
BACKGROUND
Familiarity with this more than thirty-year-old race discrimination suit is presumed. See EEOC v. Local 638, 401 F.Supp. 467 (S.D.N.Y. 1975) (Werker, J.), aff'd sub nom, EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 532 F.2d 821 (2d Cir. 1976); EEOC v. Local 638 Local 28 of Sheet Metal Workers' Int'l Ass'n, 1982 WL 445 (S.D.N.Y.) (Werker, J.), aff'd in part, rev'd in part, 753 F.2d 1172 (2d Cir. 1985), aff'd sub nom, Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986); EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 889 F.Supp. 642 (S.D.N.Y. 1995) (Carter, J.), aff'd in part, rev'd in part sub nom, EEOC v. Local 638, 81 F.3d 1162 (2d Cir. 1996); EEOC v. Local 638-Local 28 of Sheet Metal Workers' Int'l Ass'n, 13 F.Supp. 2d 453 (S.D.N.Y. 1999) (Carter, J.), aff'd in part, rev'd in part sub nom, City of New York v. Local 28, Sheet Metal Workers' Int'l Ass'n, 170 F.3d 279 (2d Cir. 1999); EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n., 2003 WL 21767772 (S.D.N.Y.) (Carter, J.); EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n., 2003 WL 21804837 (S.D.N.Y.) (Carter, J.). Only those facts relevant to this decision are recited below.
This race discrimination suit was originally brought by government agencies against Local 28 on behalf of black and Hispanic members of the union. In 1975, this court found that Local 28 had discriminated against black and Hispanic union members in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and entered an order permanently enjoining Local 28 from discriminating in its recruitment or admission to the union and requiring the parties to work with a court-appointed administrator to establish an affirmative action program. Over the years, this court has issued a series of orders in an attempt to remedy Local 28's past discrimination and ensure its compliance with court-imposed remedies. Much of the litigation to date has resulted from Local 28's non-compliance with this court's orders after liability was established in 1975.
After decades of contentious litigation government plaintiffs and defendant entered into settlement negotiations that culminated in the submission of a proposed consent order. In response to the proposed consent order, the Hispanic Society of Local 28 and a group of individual black and Hispanic members of Local 28 filed a motion to intervene in this action as plaintiffs and objecting to the proposed consent order. By decisions dated July 30, 2003, and August 6, 2003, respectively, the court granted the motion to intervene and rejected the proposed consent order. In granting the motion to intervene, the court noted that "[t]hough at times the government has been a zealous advocate on behalf of the black and Hispanic members of Local 28, the congruity of their interests has been less apparent recently." EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21767772, at * 2. On August 18, 2003, plaintiff-intervenors (hereinafter "plaintiffs") moved for class action certification under Rule 23 F.R. Civ. P.
The court assumes that by referring only to the individually named plaintiffs as proposed class representatives, plaintiff-intervenors are not asking the court to certify the Hispanic Society of Local 28 as class representative. Pl.f' compl. ¶¶ 14, 20. The court therefore expresses no opinion on the propriety of such a demand.
The individually named plaintiffs are Anthony Flores, a Hispanic sheet metal worker and member of Local 28 since 1992, Robert Lee Taylor, Sr., a black sheet metal worker and member of Local 28 since 1977 and Melborne Pearson, a black sheet metal worker and member of Local 28 since 1977.
PLAINTIFFS' ALLEGATIONS
Plaintiffs allege that Local 28 continues to engage in persistent and widespread discrimination in violation of this court's long-standing orders. Specifically, plaintiffs' complaint alleges that black and Hispanic members continue to face significant work hours disparities as compared to their white counterparts and that Local 28 perpetuates these disparities through its continuing discriminatory practices. In addition, the complaint alleges that Local 28 has failed to comply with this court's orders (i) requiring efforts to meet the affirmative action goals and (ii) requiring Local 28 to provide data necessary to establish a voluntary computerized work referral hall. Finally, the complaint contends that Local 28 has engaged in conduct designed to harass and intimidate black and Hispanic members and discourage them from complaining about discrimination and violations of this court's orders.
Plaintiffs base their allegations, in part, on the lengthy record developed throughout the course of this litigation which they assert is replete with evidence supporting their claims. Drawing on the "repeated judicial findings of intentional, systematic racial discrimination," City of New York v. Local 28 Sheet Metal Workers' Int'l Ass'n, 170 F.3d at 284 (citing EEOC v. Local 638, 401 F.Supp. at 487 ("Local 28 has maintained clearly discernable discriminatory practices in recruitment, selection, training and admission to membership of non-white workers."); EEOC v. Local 638, 532 F.2d at 825 (Local 28 has "consistently and egregiously violated Title VII."); EEOC v. Local 638, 565 F.2d 31, 36 n. 8 (noting "overwhelming evidence of purposeful racial discrimination"); EEOC v. Local 638, 81 F.3d at 1173-74 (affirming district court's finding of discriminatory practices by union business agents)), plaintiffs contend that Local 28 continues to engage in discriminatory practices. Plaintiffs stress Local 28's continued failure to comply with court-ordered remedies and the repeated contempt findings that have ensued. They assert that Local 28 has already been held in contempt for the 1984-1991 period and that the court has noted the existence of similar evidence of discrimination from 1991 to the present. See EEOC v. Local 638 . . . Local 28, 889 F.Supp. at 660-662; EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21804837, at * 2.
Plaintiffs further cite to the October 28, 2002 report of the court appointed statistical expert, Dr. Bernard Siskin, as additional proof that significant hours disparities between white and nonwhite workers persist within Local 28. Dr. Siskin found, for example, that from 1987 to 2001, the disparity in work hours between whites and blacks was always highly statistically adverse to blacks. Siskin Expert Report at 4. In 2001, the last full year for which data was available, the disparity between whites and blacks was 162 hours, which represents 7.35 units of standard deviation, well above the 2 units of standard deviation benchmark this court has used to define "underemployed". Id. The report also reveals that Hispanics suffered from a disparity in work hours for a significant portion of the 1984 to 2001 period. Id. at 5-6. Plaintiffs also submit a report from David Raff, the court appointed Special Master, in which he labels as misleading much of the evidence submitted by Local 28 to rebut claims of work hours disparities between whites and nonwhites. David Raff letter to the court of 11/12/2002, at 1-3.
In addition, plaintiffs have submitted numerous statements by the individual plaintiffs and by members of the putative class detailing Local 28's alleged ongoing discriminatory practices. These include instances of retaliation, harassment and discrimination in the distribution of work suffered by black and Hispanic union members.
Declarations of Rafael Vazquez, Charlie A. Saunders and Robert Lee Taylor, Sr., dated April 8, 2003. Similar allegations can also be found in the Appendix and Supplemental Appendix of Individual Objections, submitted in opposition to the approval of the proposed consent order.
DISCUSSION
Defendant's preliminary contention is that plaintiffs do not have the right to enforce the "affirmative requirements" of this court's previous orders. Def. Mem. at 6. Relying heavily on Rule 71 F.R. Civ. P., defendant contends that certain aspects of the injunctions — such as the affirmative action and computerized referral hall requirements — do not sufficiently affect plaintiffs directly and that only government plaintiffs may enforce them. Def. Mem. at 6-11.
Specifically, defendant refers to this court's order and judgment, see EEOC v. Local 638, 401 F. Supp. at 487-88, and the amended affirmative action plan and order, see EEOC v. Local 638 Local 28, Sheet Metal Workers' Int'l Ass'n, 1982 WL 445, at *1, *3-5.
Defendant's reliance on Rule 71 seems misguided since the rule applies only to non-parties. Plaintiffs however, are parties given that their motion to intervene was granted. Rule 71 states:
When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.
Rule 71, F.R. Civ. P.
The court has already rejected much of the thrust of defendant's argument in its opinion granting plaintiffs' motion to intervene. We held that plaintiffs had an "interest in this case that is `direct, substantial, and legally protectable,'" and we summarized that interest as including "adequate compensation for past inequities as well as institution of proper mechanisms to rid Local 28 of the pervasive discrimination that they allege continues to date." EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21767772, at * 1. Defendant's attempt to distinguish between varying aspects of the injunction, and who may enforced them, is not supported by relevant case law. Intervenors are now parties to this case and may seek enforcement of this court's orders given their recognized interest in having Local 28 abide by them. Cf. EEOC v. International Association of Bridge, Structural and Ornamental Ironworkers, Local 580, 139 F.Supp.2d 512, 518 (S.D.N.Y. 2001) (Carter, J.) (Finding that intervenor status pursuant to Rule 24 F.R. Civ. P. allowed non-party union members to move to enforce the court's prior consent judgment and subsequent orders enjoining the union from engaging in discriminatory practices) (citing Berger v. Heckler, 771 F.2d 155, 1565 (2d Cir. 1985)). Therefore, having granted plaintiffs' motion to intervene, the court can see "no reason why class certification, assuming the existence of a proper class, may not be made if the intervenor would be a proper class representative." Swan v. Stoneman, 635 F.2d 97, 102 n. 6 (2d Cir. 1980). The court now turns to the issue of class certification.
Rule 23 of the Federal Rules of Civil Procedure sets forth a two-step analysis for determining the propriety of class certification. First, the party seeking class certification must establish that the four requirements of Rule 23(a) are met. Second, the party seeking class certification must satisfy one of the three subsections of Rule 23(b), only two of which — b(2) and b(3) — are relevant here. See Pl.f' Comp. at ¶ 19.
The four prerequisites to a class action are that:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Rule 23(a), F.R. Civ. P.
Rule 23(b)(2) requires that:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Rule 23(b)(2), F.R. Civ. P.
Rule 23(b)(3) provides that a class action is maintainable if the court finds:
that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Rule 23(b)(3), F.R. Civ. P.
While the court must rigorously insist that all of the prerequisites of Rule 23 are satisfied before permitting the class action to go forward, the court is inclined to construe liberally the requirements for class certification during the early stages of litigation. See, e.g., Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984); see also Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). A narrow, strict definition of what may be appropriate for class action treatment in the early stages of litigation would undermine a fundamental virtue of the class action device, namely flexibility. Liberal consideration of the requirements for class certification in the early stages of litigation permits courts the later discretion to tailor the scope of, or even eliminate, an initial class action. Woe, 729 F.2d at 107 ("It is often proper for a district court to view a class action liberally in the early stages of litigation, since the class can always be modified or subdivided as issues are refined for trial" (citation omitted)).
In determining whether class treatment is warranted, a court must assume the truth of the allegations of the complaint. Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978). The Second Circuit has cautioned that "[a]lthough a trial court must conduct a `rigorous analysis' to ensure that the prerequisites of Rule 23 have been satisfied before certifying a class, `a motion for class certification is not an occasion for examination of the merits of the case.'" In re Visa Check/Master Money, 280 F.3d 124, 134-35 (2d Cir. 2001) (quoting Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999)).
Therefore, the issue before the court is whether, based upon the record, plaintiffs have satisfied their burden of showing that each of the four Rule 23(a) requirements has been met and that the action is maintainable under one of the subdivisions of Rule 23(b). See Krueger v. New York Tel. Co., 163 F.R.D. 433, 438 (S.D.N.Y. 1995) (Koeltl, J.).
Rule 23(a) (1) Numerosity
While there is no exact numerical threshold that plaintiffs must reach, the Second Circuit has suggested that numerosity is presumed when there are more than forty class members. See Consol. Rail Corp v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citation omitted). Defendant does not dispute that the numerosity requirement has been met. Given the size of the proposed class, approximately 1,000 members, the court finds that the requirement has been fulfilled.
(2) Commonality
"The commonality requirement is satisfied if plaintiffs grievances share a common question of law or of fact." Marisol A. v. Giuliani, 126 F.3d at 376. To satisfy the "commonality" requirement of Rule 23(a)(2), the named plaintiffs need show only a single question of fact or law common to the prospective class. Robinson v. Metro-North Commuter R.R., 267 F.2d 147, 155 (2d Cir. 2001) (quoting Marisol A., 126 F.3d at 376). Furthermore, class members need not allege that they all suffered the same injury to show commonality; "demonstrating that all class members are subject to the same harm will suffice." Gulino v. Bd. of Educ. of City Sch. Dist. of New York, 201 F.R.D. 326, 331 (S.D.N.Y. 2001) (Motley, J.) (quoting Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. 1994) (emphasis in Baby Neal).
Defendant argues that any hours disparities between white and nonwhite union members are attributable to contractors' hiring practices and not to Local 28's actions or inactions. Def. Mem. at 12. Defendant claims that because plaintiffs fail to provide the court with sufficient evidence with regards to Local 28's direct responsibility for the work hours disparity, the court cannot adequately exercise its discretion as to whether there are questions of law and fact common to the class. Def. Mem. at 21.
As an initial matter, the court has rejected similar attempts to shift responsibility away from defendant. This court has held, and the Second Circuit has affirmed, that Local 28 "is liable for the disparity in hours unless it can show that it has made diligent efforts to ensure equal work opportunities for all its members." EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 889 F.Supp. at 663. Moreover, defendant's contention goes to the merits of plaintiffs' claims and is arguably outside the limited purview of this motion. Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177 (1974).
In any event, the court is satisfied that there exist numerous factual and legal questions common to the named plaintiffs and the putative class. Underemployed black and Hispanic union members are attempting to demonstrate that they are subject to the same harm, namely racial discrimination, and that they have been adversely affected by Local 28's failure to abide by court-ordered remedies. Plaintiffs' anecdotal and statistical evidence, regardless of their ultimate persuasiveness, are sufficient to establish common questions of fact because they suggest that race has an effect on a union member's work and work environment. Caridad v. Metro-North R.R., 191 F.3d at 292-293 (finding that statistical evidence in conjunction with anecdotal evidence sufficient to satisfy plaintiffs burden of demonstrating commonality).
Plaintiffs' claims of coercion and retaliation by Local 28 against those reporting violations of this court's orders are admittedly the least supported by the evidence proffered. Nonetheless, the record before the court still provides a sufficient basis on which to exercise our discretion to grant certification. This is particularly true when plaintiffs' evidence, see e.g. Vazquez Decl. ¶ 57 (alleging termination in response to his objections to the proposed consent order), is taken in light of union members' documented fears of reprisal, see Saunders Decl. ¶ 55-56 (noting nonwhite members' fears of retaliation); Transcript of December 4, 2002 Hearing, at 13 (noting concerns by nonwhite members about being "marked" and held in "disfavor"), and Local 28's past history of discrimination.
Plaintiffs' grievances will also bring the court to decide common questions of law. Chief amongst them are whether Local 28's conduct constitutes actionable contempt of this court's orders and whether additional remedial measures need be implemented. Thus, the court concludes that plaintiffs have established Rule 23(a)(2)'s commonality requirement.
(3) Typicality
Rule 23's commonality and typicality requirements often overlap substantially. General Tel. Co. v. Falcon, 457 U.S. 147, 157 n. 13 (1982). Typicality "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Robinson, 267 F.3d at 155 (internal quotation omitted). There is no requirement that "the factual background of each named plaintiff's claim be identical to that of all class members." Caridad, 191 F.3d at 293. Courts within the Second Circuit have repeatedly certified classes challenging discriminatory policies or practices, despite differing factual circumstances of the class members' claims. See Wright v. Stern, 2003 WL 21543539, at *7 (S.D.N.Y.) (Chin, J.) (typicality satisfied when plaintiffs' allegations of disparate treatment are shared by the class although factual circumstances differ); Ingles v. City of New York, 2003 WL 402565, at *5 (S.D.N.Y.) (Chin, J.) (plaintiff inmates with different accounts of violent conduct by prison officials met typicality requirement because their "claims [are] grounded in the same legal arguments and aris[e] from sufficiently similar events. . . ."); Latino Officers, 209 F.R.D. at 89 (typicality established even though plaintiffs felt different effects of discrimination and had different backgrounds); Spinner v. City of New York, 2003 WL 23648356, at *10 (E.D.N.Y. 2003) (certifying class of persons subjected to policy or practice of strip search at booking facility although central policy may have been "carried out in a variety of different ways in different cases"). In essence, typicality "requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." Caridad, 191 F.3d at 293 (internal quotations omitted).
As previously noted, named plaintiffs assert claims representative of those of the putative class. Proposed class representatives allege that they have suffered from discriminatory conduct in violation of this court's orders and face retaliation for reporting violations of these orders. They seek redress for injuries suffered as a result of that conduct and appropriate remedial measures designed to end that conduct going forward. Whether Local 28 continues to perpetuate a discriminatory policy and whether the union contravened the courts' orders are disputed issues that are equally central to the named plaintiffs as they are to members of the putative class. The court thus finds that plaintiffs have satisfied Rule 23(a)(3)'s typicality requirement.
(4) Adequacy of Representation
Generally, adequacy of representation is assessed according to whether (1) plaintiffs' interests are antagonistic to the interests of other members of the class and (2) plaintiffs' attorneys are qualified, experienced and able to conduct the litigation. Baffa v. Donaldson, Lufkin Jenrette Securities Corp., 222 F.3d 52, 60 (2d Cir. 2000). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997), quoted in Robinson, 267 F.3d at 171 ("[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members." (internal quotation marks omitted)) (alterations in the original).
The Second Circuit has noted that "not every potential disagreement between a representative and class members will stand in the way of a class suit." In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 145 (quoting 1 Herbert B. Newberg Alba Conte, Newberg on Class Actions § 3.26, at 3-143 (3d ed. 1992)). Rather, "[t]he conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental." Id. (quoting Newberg § 3.26, at 3-143 to 3-144). At the class certification stage, "speculative conflict should be disregarded." Id. (quoting Newberg § 3.25, at 3-136).
Defendant does not contest counsels' qualifications or experience and the court is satisfied that they would adequately and fairly represent the interests of the class.
Defendant does, however, challenge the adequacy of the proposed class representatives. Defendant argues that there are significant conflicts between plaintiffs Taylor and Pearson, two black sheet metal workers and members of Local 28 since 1977, and the class they seek to represent. Specifically, defendant contends that since both plaintiffs have filed claims for compensation for the 1984-1991 period, for which a finding of contempt has already been issued, they will be in conflict with those members of the class who seek recovery for the post-1991 period. Defendant reasons that since there is but a limited amount of monies available to Local 28, recovery by any of the post-1991 members will dilute the 1984-1991 claimants' recovery.
Defendant's argument fails on two counts. First, plaintiffs Taylor and Pearson claim back pay losses for both the 1984-1991 period and the 1991-present period. Hamid Supp. Decl. ¶ 3 and Exs. A, B. In fact, at least 70% of the claimants from the 1984-1991 period were underemployed during, and thus are potential backpay claimants for, the post-1991 period. Hamid Supp. Decl. ¶ 4 and Exs. A, B. Plaintiffs Taylor and Pearson clearly have incentives to vigorously pursue backpay claims for both periods and any potential conflict is speculative at best. Second, defendant's reasoning is based on an underlying assumption — that it has insufficient funds to cover all of its liability — that has yet to be established. This court has previously rejected Local 28's contentions that its financial condition would prevent it from paying back claims. See Local 28, 2003 WL 21804837, at *2; Local 28, 117 F.Supp. 2d at 392-93. As they stand, Local 28's protestations of financial hardship remain merely speculative and are insufficient to defeat a motion for class certification.
Defendant also argues that the third named plaintiff, Anthony Flores, a Hispanic sheet metal worker and member of Local 28 since 1992, is not an adequate representative of the putative class. Defendant claims that because Mr. Flores did not join the union until 1992 and because the other two plaintiffs are black, and not Hispanic, no other named plaintiff purports to represent the interests of Hispanics from 1984 to 1991. The court however, finds no conflicting interests between black and Hispanic union members. The court has never chosen to divide blacks and Hispanics in its prior orders and refuses do so now. Both groups are clearly pursuing the same claims and seeking the same remedies. The court notes however, that should the need for subclasses arise at a later stage in the proceeding, it retains the discretion to do so. See Marisol A., 126 F.3d at 379.
None of the defendant's perceived conflicts are "fundamental and actual rather than hypothetical and speculative." Latino Officers, 209 F.R.D. at 90. The court thus finds that plaintiffs have satisfied Rule 23(a)(4)'s adequacy of representation standard. Rule 23(b)
In addition to satisfying each of the requirements of Rule 23(a), a plaintiff seeking class certification must also show that the proposed class qualifies under at least one of the subsections of Rule 23(b). See Amchem, 521 U.S. at 614. In this action, plaintiffs seek certification under either Rule 23(b)(2) or (b)(3). If certification under Rule 23(b)(2) is appropriate, it is unnecessary to consider certification under Rule 23(b)(3). See In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d at 147.
Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Rule 23(b)(2), F.R. Civ. P. The (b)(2) class action is "intended for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury." Robinson, 267 F.3d at 162. Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples. Amchem, 521 U.S. at 614.
Where plaintiffs seek monetary damages along with the injunctive or declaratory relief, certification is appropriate only when the equitable relief sought predominates over the claims for monetary relief. See Parker v. Time Warner Entm't Co., 331 F.3d 13, 20 (2d Cir. 2003) (citing Robinson, 267 F.3d at 164). To evaluate whether injunctive relief predominates, courts in this circuit conduct an ad-hoc determination. Robinson, 267 F.3d at 164. Before certifying the class under 23(b)(2), the court "should, at a minimum, satisfy itself [that] (1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits." Id.
The court finds that the positive value to plaintiffs of the injunctive and declaratory relief sought is predominant over that of the monetary relief. Plaintiffs seek a declaration that the practices of Local 28 are unlawful. Plaintiffs also seek injunctive relief in the nature of, inter alia, the full enforcement of this courts' previous orders, including the referral hall and affirmative action goal obligations, the entry of additional orders, back pay, and injunctive relief against Local 28 and its directors, officers, owners, agents, successors, employees and representatives, and any and all persons acting in concert with any of them. Pl.f' Compl. at 8-9.
There is little doubt that plaintiffs would have pursued this action even if monetary relief were not available. If plaintiffs' allegations are true, black and Hispanic members of Local 28 can only strive to achieve equal work hours and earn wages and pension benefits comparable to those of their white counterparts if Local 28 is forced to remedy its discriminatory practices. In the past, black and Hispanic members have relied on government plaintiffs to end Local 28's discrimination and ensure that defendant complied with this court's orders. In granting the motion to intervene, we recognized that that reliance may no longer be as appropriate and that plaintiffs have an interest in this case that is "direct, substantial, and legally protectable." EEOC v. Local 638 Etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21767772, at *1. The injunctive relief sought allows plaintiffs to most fully exercise and protect that interest. Moreover, were plaintiffs to succeed on the merits, equitable relief would clearly be both reasonably necessary and appropriate to cure proven discriminatory practices.
Finally, defendant also contends that the back pay claims are inappropriate for class certification because they would entail too many individualized determinations. See Def. Mem. at 16. The court does not believe that this concern should bar class certification at this stage. The court has already addressed the issue of back pay in a manner common to all affected individuals in this case in the context of the 1993 contempt motion and believes it could adopt a similar approach going forward. See EEOC v. Local 638-Local 28 of Sheet Metal Workers' Int'l Ass'n, 13 F. Supp. 2d at 465-66. Furthermore, the court notes that if problems were to arise which rendered continued treatment of a particular issue inappropriate for class action treatment, Rule 23(c)(4)(A) allows the court to sever particular issues from class certification. Therefore, we choose to certify the entire class under Rule 23(b)(2) with the knowledge that we may reconsider certification at a later stage. See Robinson, 267 F.3d at 162 n. 7; see also Cokely v. New York Convention Center Operating Corp., 2004 WL 1152531 (S.D.N.Y. 2004) (Motley, J.) (noting this option).
CONCLUSION
The court holds that plaintiffs have satisfied the criteria for class certification under Rule 23 and grants their motion for class certification. Individual named plaintiffs are designated as representatives of the class and their counsel of record as class counsel.
IT IS SO ORDERED