OUTTEN & GOLDEN LLP Adam T. Klein (AK 3293) Piper Hoffman (PH 4990) Justin M. Swartz (JS 7989) Cara E. Greene (CG 0722) 3 Park A venue, 29th Floor New York, New York 10016 Telephone: 212-245-1000 Fax: (212) 977-4005
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

---.....---
U .S.D.C. S.D. N.Y. CASHIERS

VANESSA HILL and MARGARET ANDERSON, on behalf of themselves and all others similarly situated,

Plaintiffs,

-against-

JURY TRIAL DEMANDED

GRISTEDE'S OPERATING CORP.; RED APPLE GROUP, INC., D/B/A! GRISTEDE'S; GRISTEDE'S FOOD INC.; GRISTEDE'S DELIVERY SERVICE, INC.; GRISTEDE'S FOODS NY, INC.; GRISTEDE'S NY, LLC; and NAMDOR, INC. ;

Defendants.

Plaintiffs Vanessa Hill ("Hill") and Margaret Anderson ("Anderson") (collectively "Plaintiffs"), by their attorneys Outten and Golden LLP, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
NATURE OF THE CASE 1. Defendants Gristede's Operating Corp.; Red Apple Group, d/b/a! Gristede ' s; Gristede 's Foods, Inc.; Gristede's Delivery Service Inc.; Gristede's Foods NY, Inc.; Gristede's NY, LLC; and Namdor, Inc. , (collectively "Defendants" or "Gristede 's"), a retail grocery chain of over 50 stores operating in New York City, Westchester County, and Long Island, New York,

under the banner "Gristede's," have systematically discriminated against women on the basis of their gender in job placement, compensation, promotion, and other terms and conditions of employment, in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §§ 2000e et seq. ("Title VII"); the New York State Human Rights Law, New York Executive Law § 296 et seq. ("NYSHRL"); and the New York City Human Rights Law, New York City Administrative Code §§ 8-101 et seq. ("NYCHRL").
2. The violations are systemic, constituting a pattern or practice of gender discrimination that pervades the corporate culture of Gristede's. They are not isolated or exceptional incidents, but rather the regular and predictable result of Defendants' company-wide policies and practices. Gristede's company-wide policies and practices with regard to placing, promoting, and compensating women have the effect, and have been undertaken with the purpose, of denying equal opportunities in the terms and conditions of employment for female employees.
3. It is Gristede's routine policy or practice to channel women into lower-paying, part-time positions such as cashier and bookkeeper solely on the basis oftheir gender. Gristede's does this with complete disregard for the qualifications, capabilities, and desires of the women. In fact, women who apply for jobs with Gristede's have been told that the only positions for which they will be considered are cashier and/or bookkeeper.
4. In contrast, Gristede's gives men who apply for employment preferential treatment and places them in higher paying, full-time positions with greater advancement potential.
5. It is Gristede's company-wide pol icy or practice to promote employees through an ad hoc and subjective system that is inherently discriminatory . Store managers and upper management, the overwhelming majority of whom are male, simply "tap on the shoulder" the
2

employees they want to promote. Almost uniformly, these managers offer these promotions and
advancements to males.
6. Gristede's does not post available higher-level positions and does not afford
women the opportunity to apply for management or higher-level positions. Even when qualified
women express a desire to be promoted to higher-level positions, Gristede's ignores them and
instead promotes male employees.
7. Gristede's systematically discriminates against women on a company-wide basis
in the following ways:
(a) with respect to job placement; (b) with respect to compensation; (c) with respect to promotion; (d) with respect to training and mentoring; (e) with respect to discipline; (f) with respect to other terms and conditions of employment; (g) by failing to implement effective EEO policies; (h) by creating and maintaining a discriminatory corporate culture; (i) b y failing to implement any system for posting promotion opportunities within the
company; and (j) b Y failing to provide store managers and executives with any EEO training.
8. Accordingly, in addition to bringing this action on their own behalf, Plaintiffs also
bring this action on behalf of a class of similarly situated current and former employees of
Defendants ("the Class"), in order to end Gristede's discriminatory policies and/or practices and
to make the plaintiff class whole.
J URISDICTION AND VENUE
9 . This Court has original subject matter jurisdiction over the Title VII claims
pursuant to 28 U.S.c. §§ 1331 and 1343, because they arise under the laws of the United States
and are brought to recover damages for deprivation of equal rights.
10. This Court has original jurisdiction over the NYSHRL and NYCHRL claims in
this action under the Class Action Fairness Act, 28 U.S .C. § 1332(d). This is a putative class
3

action in which: (1) there are 100 or more members in the Class; (2) at least some members of the proposed class have a different citizenship from at least one Defendant; and (3) the claims of the proposed class members exceed $5,000,000.00 in the aggregate.
11. In addition, this Court has supplemental jurisdiction over the NYSHRL and NYCHRL claims under 28 U.S.c. § 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution.
12. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Defendants have their headquarters and offices, conduct business, and can be found in this district, and the cause of action arose and the acts and omissions complained of occurred herein.
13. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII claims, by filing charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 8, 2005, and September 2, 2005. By notices dated September 26, 2006, the EEOC dismissed Plaintiffs' cases and issued Notices of Right to Sue.
14. Contemporaneously with the filing of this Complaint, Plaintiffs have mailed a copy of same, along with a letter of explanation, to the New York City Commission of Human Rights and the Office ofthe Corporation Counsel of the City of New York, thereby satisfying the notice requirements of § 8-502 of the New York City Administrative Code.
15. Any and all other prerequisites to the filing of this suit have been met. PARTIES
The Plaintiffs
4

16. Plaintiff Hill is an African-American woman who lives in Bronx County, in the State of New York. She is a citizen of the United States.
17. Hill was employed part-time by Gristede's as a cashier from approximately February 1999 through June 2005.
18. Plaintiff Anderson is an African-American woman who lives in Bronx County, in the State of New York. She is a citizen of the United States.
19. Anderson was employed part-time by Gristede's as a cashier from approximately November 2004 through December 2004.
Defendant Gristede's Operating Corp. 20. Upon information and belief, Defendant Gristede's Operating Corp. is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County of New York at 823 Eleventh Avenue, New York, NY 10019. 21. Upon information and belief, Defendant Gristede's Operating Corp. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 22. During relevant times, Defendant Gristede 's Operating Corp. was Plaintiffs' employer within the meaning of all applicable statutes. 23. On information and belief, at all times pertinent hereto, Defendant Gristede's Operating Corp. has employed more than fifty people. Defendant Red Apple Group, Inc., d/b/a! Gristede's 24. Upon information and belief~ Defendant Red Apple Group, Inc. is a domestic corporation doing business within the City and County of New York, and maintains corporate
5

headquarters within the City and County of New York at 823 Eleventh Avenue, New York, NY 10019.
25. Upon information and belief, Defendant Red Apple Group, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
26. During relevant times, Defendant Red Apple Group, Inc. was Plaintiffs' employer within the meaning of all applicable statutes.
27. On information and belief, at all times pertinent hereto, Defendant Red Apple Group, Inc. has employed more than fifty people.
Defendant Gristede's Foods, Inc. 28. Upon information and belief, Defendant Gristede's Foods, Inc. is a Delaware corporation doing business within the City and County of New York, and maintains offices within the City and County of New York at 823 Eleventh Avenue, New York, NY 10019. 29. Upon information and belief, Defendant Gristede's Foods, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 30. During relevant times, Defendant Gristede' s Foods, Inc. was Plaintiffs' employer within the meaning of all applicable statutes. 31. On information and belief, at all times pertinent hereto, Defendant Gristede ' s Foods, Inc. has employed more than fifty people. Defendant Gristede's Delivery Services, Inc. 32. Upon information and belief, Defendant Gristede's Delivery Services, Inc. is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County of New York at 823 Eleventh Avenue, New York, NY 1001 9.
6

33. Upon information and belief, Defendant Gristede's Delivery Services, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
34. During relevant times, Defendant Gristede's Delivery Services, Inc. was Plaintiffs' employer within the meaning of all applicable statutes.
35. On information and belief, at all times pertinent hereto, Defendant Gristede's Delivery Services, Inc. has employed more than fifty people.
Defendant Gristede's Foods NY, Inc. 36. Upon information and belief, Defendant Gristede's Foods NY, Inc. is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County of New York at 823 Eleventh Avenue, New York, NY 10019. 37. Upon information and belief, Defendant Gristede's Foods NY, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 38. During relevant times, Defendant Gristede's Foods NY, Inc. was Plaintiffs' employer within the meaning of all applicable statutes. 39. On information and belief, at all times pertinent hereto, Defendant Gristede 's Foods NY, Inc. has employed more than fifty people. Defendant Gristede's NY, LLC 40. Upon information and belief, Defendant Gristede' s NY, LLC is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County of New York at 823 Eleventh Avenue, New York, NY 10019.
7

41. Upon information and belief, Defendant Gristede's NY, LLC maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
42. During relevant times, Defendant Gristede's NY, LLC was Plaintiffs' employer within the meaning of all applicable statutes.
43. On information and belief, at all times pertinent hereto, Defendant Gristede's NY, LLC has employed more than fifty people.
Defendant Namdor, Inc. 44. Upon information and belief, Defendant Namdor, Inc. is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County of New York at 823 Eleventh Avenue, New York, NY 10019. 45. Upon information and belief, Defendant Namdor, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 46. During relevant times, Defendant Namdor, Inc. was Plaintiffs' employer within the meaning of all applicable statutes. 47. On information and belief, at all times pertinent hereto, Defendant Namdor, Inc. has employed more than fifty people.
CLASS ALLEGATIONS 48. Plaintiffs bring this Class Action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) on behalfofa Class of all past, present, and future female employees of Gristede's in the United States. Plaintiffs reserve the right to amend the definition of the Class based on discovery or legal developments. 49 . Plaintiffs are members of the Class they seek to represent. 50 . The members of the Class identified herein are so numerous that joinder of all members is impracticable. As of the filing of this Complaint, Gristede's has approximately 800
8

or more female employees. Although the precise number of female employees is currently unknown, it is far greater than can be feasibly addressed through joinder.
51. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others: (1) whether Gristede's policies or practices discriminate against female employees; (2) whether Gristede's Human Resources Department has failed to implement policies and procedures to prevent discrimination against women in the workplace; (3) whether Gristede's policies or practices violate Title VII and/or the NYSHRL and/or the NYCHRL; and (4) whether equitable remedies, injunctive relief, compensatory, and punitive damages for the Class are warranted.
52. The Plaintiffs' claims are typical of the claims of the Class. 53. The Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof. 54. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Gristede's has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class members are entitled to injunctive relief to end Gristede's common, uniform, unfair and discriminatory policies and practices. 55. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23 (b)(3) because common questions of fact and law predominate over any questions affecting only individual m embers of the Class, and because a class action is superior to other available methods fo r the fai r and efficient adjudication of this litigation. The Class members have been damaged and are entitled to recovery as a result of Gristede' s common, uniform, unfair, and discriminatory
9

policies and practices. Gristede's has computerized account data, payroll, and personnel data that will make calculation of damages for specific Class members relatively simple. The propriety and amount of punitive damages are based on the conduct of the Defendants, making these issues common to the Class.
GENERAL POLICIES OR PRACTICES OF DISCRIMINATION 56. The denials and abridgments of employment opportunities suffered by the Plaintiffs are part of a general policy or practice of discrimination on the basis of gender in employment that has existed at Gristede's throughout the relevant time period. These are not isolated examples of employment practices or individual decisions. On the contrary, these incidents are representative of Gristede's systematic discrimination against female employees in favor of male employees. 57. From the time a woman initially seeks employment with the company, Gristede's subjects her to gender-based bias and discrimination. 58. When women apply for work at either Gristede's Headquarters or local Gristede's stores, Gristede's tells them the only positions for which they will be considered are cashier and/or bookkeeper. 59. When women inquire about other available positions, such as clerk, Gristede's representatives tell them that the company needs men for those positions. 60. As a result of these practices, Gristede's workforce is substantially segregated by gender. 61. As a result of segregating its workforce by gender, Gristede's has created a maledominated environment that denies women equal opportunities. 62. Cashier and bookkeeper positions often pay less than clerk positions.
10

63. Cashier and bookkeeper positions are often given part-time status, as opposed to the full-time status afforded many clerk positions.
64. Gristede's gives more opportunities for extra hours and for full-time positions to clerks than to cashiers or bookkeepers.
65. Cashiers and bookkeepers are seldom promoted to management positions or other advanced positions within the company.
66. Gristede's uses the proverbial "tap on the shoulder" promotion selection system. Gristede's does not post promotional opportunities or open positions. Instead store and district managers, virtually all of whom are men, approach more junior men directly and on their own initiative about promotional opportunities.
67. Gristede's promotional selection system is discriminatory in that it perpetuates the historical exclusion of women from management positions and it permits excessive subjectivity by store and district managers, which they exercise in a discriminatory fashion. By entrusting these managers, virtually all of whom are men, with undue discretion in these matters, Gristede's maintains a system whereby store and district managers apply their own personal preferences and biases in making advancement decisions. This discriminatory promotional system is a uniform practice across all Gristede's stores.
68 . Gristede's has intentionally implemented and maintained this discriminatory promotional system in order to favor male workers over female workers.
69. Gristede' s has pursued policies or practices on a continuing basis that have had the purpose and effect of denying or restricting the availability of employment opportunities, compensation, promotions, and other favorable employment conditions to qualified females. Such discriminatory policies or practices include, without limitation:
11

(a) Systematically discriminating against women by placing them in parttime, lower paying positions than their male counterparts;
(b) Relying upon unweighted, subjective, gender-based and/or arbitrary criteria that a nearly all-male managerial workforce applies to make promotional and advancement decisions;
(c) Failing and refusing to take reasonable and adequate steps to eliminate the effects of Defendants' past discriminatory practices;
(d) Failing to provide women with the same quality and quantity of training and mentoring as is provided to men;
(e) Maintaining a discriminatory and gender-biased corporate culture; (f) Making employment decisions based on gender; and (g) Making employment decisions based on gender stereotypes.
PLAINTIFFS' FACTUAL ALLEGATIONS Vanessa HilI
70. Representative Plaintiff Vanessa Hill was employed as a part-time cashier by Gristede's from approximately February 1999 through June 2005.
71. Hill was first employed at the Gristede' s store on 100th Street and Broadway in New York, New York. She was later transferred to the Gristede's store on 89th Street and Lexington Avenue in New York, New York.
72. When Gristede's first hired Hill, it intentionally steered her into the cashier

73. positions.

While working for Gristede's, HiB never saw postings of available management

12

74. During Hill ' s employment at Gristede's, her managers never approached her about promotional opportunities within Gristede's.
75. Hill remained a part-time cashier during her entire tenure with Gristede's. 76. Upon information and belief, Hill was qualified for other positions, including management-level positions. Margaret Anderson 77. Representative Plaintiff Margaret Anderson was employed as a part-time cashier by Gristede's from approximately November 2004 through December 2004. 78 . Anderson was employed at the Gristede' s store on 96th Street and Broadway in New Yark, New York. 79. When Gristede ' s first hired Anderson, it intentionally steered her into the cashier position because of her gender. 80. When Anderson went to Gristede's main office to apply for a position, the male who took her application told her that the position of cashier was available. 81. Anderson asked about other available positions, especially that of stock clerk, but the man told her that Gristede's needed "big guys" for stock positions and the only position for which he would consider her was that of cashier. 82. Gristede ' s did not consider Anderson for the position of stock clerk because she was a woman. 83 . Anderson remained a part-time cashier during her entire tenure with Gristede ' s. 84. Upon information and belief, Anderson was qualified for other positions, including management-level positions.
CAUSES OF ACTION First Claim for Relief
13

Intentional Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.)
(On Behalf of All Plaintiffs and the Class) 85. Plaintiffs incorporate by reference each allegation of each preceding paragraph. 86. Gristede' s has intentionally maintained a system that discriminates on the basis of gender with respect to job placement, compensation, promotion, and other terms and conditions of employment. 87. Gristede's has intentionally discriminated against Plaintiffs and the Class in violation of Title VII by, among other things:
(a) treating them in a discriminatory manner based on their gender; (b) denying them promotion opportunities because of their gender; (c) denying them other opportunities for advancement because of their gender; (d) providing them with less favorable compensation because of their gender; (e) providing disparate terms and conditions of employment because of their gender; and (f) failing to examine its workplace to correct gender-biased and discriminatory policies and failing to address problems of disparate treatment on the basis of gender. 88. The foregoing conduct constitutes illegal, intentional discrimination prohibited by 42 U.S. c. §§ 2000e et seq.
Second Claim for Relief Disparate Impact Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.c. §§ 2000e, et seq.) (On behalf of AU Plaintiffs and the Class)
89. Plaintiffs incorporate the preceding paragraphs as alleged above.
14

90. Gristede's has maintained a system and/or policies that are discriminatory,

subjective, standardless, and/or arbitrary with respect to the assignment of employees to

employment positions and promotions, which affect compensation and other terms and

conditions of employment. This system has an adverse impact on female employees and is not,

and cannot be, justified by business necessity. Even if such system could be justified by business

necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.

91. The foregoing conduct constitutes illegal discrimination prohibited by 42 U.S.c.

§§ 2000e et seq.

Third Claim for Relief Intentional Discrimination (NYSHRL, New York Executive Law § 296 et seq.) (On Behalf of All Plaintiffs and the Class)

92. Plaintiffs incorporate by reference each allegation of each preceding paragraph.

93. Gristede's has maintained a system that discriminates on the basis of gender with

respect to job placement, compensation, promotion, and other terms and conditions of

employment.

94. Gristede's has intentionally discriminated against Plaintiffs and the Class in

violation of NYSHRL by, among other things:

(g) treating them in a discriminatory manner based on their gender;

(h) denying them promotion opportunities because of their gender;

(i) denying them other opportunities for advancement because of their

gender;

CD providing them with less favorable compensation because of their gender;

(k) providing disparate terms and conditions of employment because of their

gender; and

15

(1) failing to examine its workplace to correct gender-biased and
discriminatory policies and failing to address problems of disparate treatment on the basis of
gender.
95. The foregoing conduct constitutes illegal, intentional discrimination prohibited by
New York Executive Law § 296 et seq.
Fourth Claim for Relief Disparate Impact Discrimination (NYSHRL, New York Executive Law § 296 et seq.) (On behalf of All Plaintiffs and the Class)

96. Plaintiffs incorporate the preceding paragraphs as alleged above.
97. Gristede's has maintained a system and/or policies that are discriminatory,
subjective, standardless, and/or arbitrary with respect to the assignment of employees to
employment positions and promotions, which affect compensation and other terms and
conditions of employment. This system has an adverse impact on female employees and is not,
and cannot be, justified by business necessity. Even if such system could be justified by business
necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
98. The foregoing conduct constitutes illegal discrimination prohibited by New York Executive Law § 296 et seq.
Fifth Claim for Relief Intentional Discrimination (NYCHRL, New York City Administrative Code §§ 8-101 et seq.) (On behalf of All Plaintiffs and the Class)

99. Plaintiffs incorporate by reference each allegation of each preceding paragraph.

100.

mamt6line:d a svs1tem

discrimiJ1at(~S on

respel:::t to j ob placement, compensation, promotion, and

tem1S conditions of

employment.

16

101. Gristede' s has intentionally discriminated against Plaintiffs and the Class in violation of the NYCHRL by, among other things:
(a) treating them in a discriminatory manner based on their gender; (b) denying them promotion opportunities because of their gender; (c) denying them other opportunities for advancement because of their gender; (d) providing them with less favorable compensation because of their gender; (e) providing disparate terms and conditions of employment because of their gender; and (f) failing to examine its workplace to correct gender-biased and discriminatory policies and failing to address problems of disparate treatment on the basis of gender. 102. The foregoing conduct constitutes illegal, intentional discrimination prohibited by the NYCHRL, New York City Administrative Code §§ 8-1 01 et seq.
Sixth Claim for Relief Disparate Impact Discrimination (NYCHRL, New York City Administrative Code §§ 8-101 et seq.) (On behalf of All Plaintiffs and the Class)
103. Plaintiffs incorporate the preceding paragraphs as alleged above. 104. Gristede's has maintained a system and/or policies that are discriminatory, subjective, standardless, and/or arbitrary with respect to the assignment of employees to employment positions and promotions, which affect compensation and other terms and conditions of employment. This system has an adverse impact on female employees and is not, and cannot be, justified by business necessity. Even if such system could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity.
17

105. The foregoing conduct constitutes illegal discrimination prohibited by NYCHRL, New York City Administrative Code §§ 8-101 et seq.
ALLEGATIONS REGARDING RELIEF 106. Plaintiffs and the Class they seek to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the Class they seek to represent are now suffering, and will continue to suffer, irreparable injury from Defendants' discriminatory acts and omissions. 107. Gristede's actions have caused and continue to cause Plaintiffs and all Class members substantial losses in earnings and other employment benefits. 108. In addition, Plaintiffs and the Class suffer and continue to suffer humiliation, embarrassment, and anguish, all to their damage. 109. Gristede's has performed the acts herein alleged with malice or reckless indifference. Plaintiffs and Class members are thus entitled to recover punitive damages.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that upon trial this Court enter judgment:
(a) Certifying the case as a class action on behalf of the proposed Class; (b) Designating Plaintiffs Vanessa Hill and Margaret Anderson as representatives of the Class; (c) Designating Plaintiffs' counsel of record as Class counsel; (d) Declaring that Defendants' actions and practices violate Title VII, the NYS HRL, and the NYCHRL, and constitute discrimination on the basis of gender; (e) Permanently enjoining and restraining Defendants (and their officers, agents, and successors) from engaging in actions or practices that discriminate against Plaintiffs
18

or the Class because of their gender or participation in this lawsuit;

(t) Directing Defendants to institute and carry out policies, practices, and

programs that provide equal employment opportunities for all employees regardless of gender,

and to eradicate the effects of its past and present unlawful employment practices;

(g) Directing Defendants to pay all damages sustained as a result of its

conduct, including damages for emotional distress, humiliation, embarrassment, and anguish;

(h) Directing Defendants to pay punitive damages;

(i) Directing Defendants to pay all costs incurred herein, including reasonable

attorneys' fees to the extent allowable by law;

(j) Directing Defendants to pay pre-judgment and post-judgment interest, as

provided by law; and

(k) Granting such other or additional relief as this Court deems just and

proper.

JURY DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial

by jury in this action.

Dated: New York, New York October 19, 2006

Respectfully submitted,

OUTTEN & GOLDEN LLP

\<~ /~~ (O).r:eys!or PlaintW: ~nd '.h.e Putative Class

By:

0/

AdamT. Klein (AK 3293)

Piper Hoffman (PH 4990)

Justin M. Swartz (JS 7989)

Cara E. Greene (eG 0722) 3 Park Avenue, 29th Floor

New York, New York 10016

Telephone: (212) 245-1000

Fax: (212) 977-4005

19

 
 Case 1:06-cv-10197-LTS-HBP Document 120 Filed 01/19/10 Page 1 of 24

OUTTEN & GOLDEN LLP Adam T. Klein (AK 3293) Justin M. Swartz (JS 7989) Lewis M. Steel (LS 4463) Cara E. Greene (CG 0722) 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Fax: (212) 977-4005
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

SUSAN DULING, MARGARET ANDERSON, and LAKEYA SEWER, on behalf of themselves and all others similarly situated,
Plaintiffs,

-against-
GRISTEDE'S OPERATING CORP.; RED APPLE GROUP, INC., D/B/A/ GRISTEDE'S; GRISTEDE'S FOOD INC.; GRISTEDE'S DELIVERY SERVICE, INC.; GRISTEDE'S FOODS NY, INC.; GRISTEDE'S NY, LLC; NAMDOR, INC.; and JOHN CATSIMATIDIS,
Defendants.

JURY TRIAL DEMANDED 06 Civ. 10197 (LTS)(HBP)

Plaintiffs Susan Duling ("Duling"), Margaret Anderson ("Anderson"), and Lakeya Sewer ("Sewer") (collectively "Plaintiffs"), by their attorneys Outten and Golden LLP, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as

follows:

NATURE OF THE CASE

1. Defendants Gristede's Operating Corp.; Red Apple Group, d/b/a/ Gristede's; Gristede's Foods, Inc.; Gristede's Delivery Service Inc.; Gristede's Foods NY, Inc.; Gristede's NY, LLC; and Namdor, Inc. (collectively, with John Catsimatidis, "Defendants" or "Gristede's")

Case 1:06-cv-10197-LTS-HBP Document 120 Filed 01/19/10 Page 2 of 24
are a retail grocery chain of over 50 stores operating in New York City, Westchester County, and Long Island, New York, under the banner "Gristede's." John Catsimatidis is the President, owner, Chairman ofthe Board of Directors, and Chief Executive Officer ("CEO") ofGristede's. Gristede's has systematically discriminated against women on the basis of their gender in job placement, compensation, promotion, and other terms and conditions of employment, in
violation ofTitle VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"); the New York State Human Rights Law, New York Executive Law § 296 et seq.
("NYSHRL"); and the New York City Human Rights Law, New York City Administrative Code
§§ 8-101 et seq. ("NYCHRL").
2. The violations are systemic, constituting a pattern or practice of gender discrimination that pervades the corporate culture of Gristede's. They are not isolated or exceptional incidents, but rather the regular and predictable result of Defendants' company-wide policies and practices. Gristede's company-wide policies and practices with regard to placing, promoting, and compensating women have the effect, and have been undertaken with the purpose, of denying equal opportunities in the terms and conditions of employment for female employees.
3. It is Gristede's routine policy or practice to channel women into lower-paying, part-time positions such as cashier and bookkeeper solely on the basis of their gender. Gristede's does this with complete disregard for the qualifications, capabilities, and desires of the women. In fact, many women who apply for jobs with Gristede's have been told that the only positions for which they will be considered are cashier and/or bookkeeper.
4. In contrast, Gristede's gives men who apply for employment preferential treatment and places them in higher paying positions that are full-time or have more opportunity for extra hours, and have greater advancement potential.
2

Case 1:06-cv-10197-LTS-HBP Document 120 Filed 01/19/10 Page 3 of 24
5. It is Gristede's company-wide policy or practice to promote employees through an ad hoc and subjective system that is inherently discriminatory. Store managers and upper management, the overwhelming majority of whom are male, simply "tap on the shoulder" the employees they want to promote. Almost uniformly, these managers offer these promotions and advancements to males.
6. Gristede's does not post available higher-level positions and does not afford women the opportunity to apply for management or higher-level positions. Even when qualified women express a desire to be promoted to higher-level positions, Gristede's ignores them and instead promotes male employees.
7. Gristede's systematically discriminates against women on a company-wide basis in the following ways:
(a) with respect to job placement; (b) with respect to hours; (c) with respect to compensation; (d) with respect to promotion; (e) with respect to training and mentoring; (f) with respect to discipline; (g) with respect to other terms and conditions of employment; (h) by failing to implement effective EEO policies; (i) by creating and maintaining a discriminatory corporate culture; (j) by failing to implement any system for posting promotion opportunities within the
company; and (k) by failing to provide store managers and executives with any EEO training. 8. Accordingly, in addition to bringing this action on their own behalf, Plaintiffs also bring this action on behalf of a class of similarly situated current and former employees of Defendants ("the Class"), in order to end Gristede's discriminatory policies and/or practices and to make the plaintiff class whole.
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Case 1:06-cv-10197-LTS-HBP Document 120 Filed 01/19/10 Page 4 of 24
JURISDICTION AND VENUE 9. This Court has original subject matter jurisdiction over the Title VII claims pursuant to 28 U.S.C. §§ 1331 and 1343, because they arise under the laws of the United States and are brought to recover damages for deprivation of equal rights. 10. This Court has original jurisdiction over the NYSHRL and NYCHRL claims in this action under the Class Action Fairness Act, 28 U.S.C. § 1332(d). This is a putative class action in which: (1) there are 100 or more members in the Class; (2) at least some members of the proposed class have a different citizenship from at least one Defendant; and (3) the claims of the proposed class members exceed $5,000,000.00 in the aggregate. 11. In addition, this Court has supplemental jurisdiction over the NYSHRL and NYCHRL claims under 28 U.S.C. § 1367, because they arise from a common nucleus of operative facts with the federal claims and are so related to the federal claims as to form part of the same case or controversy under Article III of the United States Constitution. 12. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Defendants have their headquarters and offices, conduct business, and can be found in this district, and the cause of action arose and the acts and omissions complained of occurred herein. 13. Plaintiffs have exhausted their administrative remedies and complied with all statutory prerequisites to their Title VII claims. Anderson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 2, 2005. By notice dated September 26, 2006, the EEOC dismissed Anderson's case and issued a Notice of Right to Sue. 14. Contemporaneously with the filing of this Second Amended Complaint, Plaintiffs have mailed a copy of same, along with a letter of explanation, to the New York City
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Commission of Human Rights and the Office of the Corporation Counsel ofthe City ofNew

York, thereby satisfying the notice requirements of§ 8-502 ofthe New York City Administrative

Code.

15. Any and all other prerequisites to the filing of this suit have been met.

PARTIES

The Plaintiffs 16. Plaintiff Duling is a woman who lives in New York County, in the State ofNew

York. 17.

Duling is employed by Gristede's as a part-time cashier. She has held this

position since approximately August 2003. 18. Plaintiff Anderson is a woman who lives in Bronx County, in the State ofNew

York. 19.

Anderson was employed by Gristede's as a part-time cashier from approximately

November 2004 through December 2004. 20. Plaintiff Sewer is a woman who lives in Bronx County, in the State ofNew York.

21. Sewer was employed by Red Apple Group to work in its corporate office in

approximately 1996. · 22. Sewer was employed full-time by Gristede's from approximately February 2002

until approximately September 2006 as a receptionist and cashier.

Defendant Gristede's Operating Corp.

23. Upon information and belief, Defendant Gristede's Operating Corp. is a domestic

corporation doing business within the City and County ofNew York, and maintains corporate headquarters within the City and County of New Yark at 823 Eleventh Avenue, New Yark, NY

10019.

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24. Upon information and belief, Defendant Gristede's Operating Corp. maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
25. During relevant times, Defendant Gristede's Operating Corp. was Plaintiffs' employer within the meaning of all applicable statutes.
26. On information and belief, at all times pertinent hereto, Defendant Gristede's Operating Corp. has employed more than fifty people.
Defendant Red Apple Group, Inc., d/b/a/ Gristede's 27. Upon information and belief, Defendant Red Apple Group, Inc. is a domestic corporation doing business within the City and County ofNew York, and maintains corporate headquarters within the City and County ofNew York at 823 Eleventh Avenue, New York, NY 10019. 28. Upon information and belief, Defendant Red Apple Group, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 29. During relevant times, Defendant Red Apple Group, Inc. was Plaintiffs' employer within the meaning of all applicable statutes. 30. On information and belief, at all times pertinent hereto, Defendant Red Apple Group, Inc. has employed more than fifty people. Defendant Gristede's Foods, Inc. 31. Upon information and belief, Defendant Gristede's Foods, Inc. is a Delaware corporation doing business within the City and County ofNew York, and maintains offices within the City and County ofNew York at 823 Eleventh Avenue, New York, NY 10019. 32. Upon information and belief, Defendant Gristede's Foods, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
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33. During relevant times, Defendant Gristede's Foods, Inc. was Plaintiffs' employer within the meaning of all applicable statutes.
34. On information and belief, at all times pertinent hereto, Defendant Gristede's Foods, Inc. has employed more than fifty people.
Defendant Gristede's Delivery Services, Inc. 35. Upon information and belief, Defendant Gristede's Delivery Services, Inc. is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County ofNew York at 823 Eleventh Avenue, New York, NY 10019. 36. Upon information and belief, Defendant Gristede's Delivery Services, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 37. During relevant times, Defendant Gristede's Delivery Services, Inc. was Plaintiffs' employer within the meaning of all applicable statutes. 38. On information and belief, at all times pertinent hereto, Defendant Gristede's Delivery Services, Inc. has employed more than fifty people. Defendant Gristede's Foods NY, Inc. 39. Upon information and belief, Defendant Gristede's Foods NY, Inc. is a domestic corporation doing business within the City and County ofNew York, and maintains corporate headquarters within the City and County ofNew York at 823 Eleventh Avenue, New York, NY 10019. 40. Upon information and belief, Defendant Gristede's Foods NY, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices.
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41. During relevant times, Defendant Gristede's Foods NY, Inc. was Plaintiffs' employer within the meaning of all applicable statutes.
42. On information and belief, at all times pertinent hereto, Defendant Gristede's Foods NY, Inc. has employed more than fifty people.
Defendant Gristede's NY, LLC 43. Upon information and belief, Defendant Gristede's NY, LLC is a domestic limited liability company doing business within the City and County of New York, and maintains its headquarters within the City and County ofNew York at 823 Eleventh Avenue, New York, NY 10019. 44. Upon information and belief, Defendant Gristede's NY, LLC maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 45. During relevant times, Defendant Gristede's NY, LLC was Plaintiffs' employer within the meaning of all applicable statutes. 46. On information and belief, at all times pertinent hereto, Defendant Gristede's NY, LLC has employed more than fifty people. Defendant Namdor, Inc. 47. Upon information and belief, Defendant Namdor, Inc. is a domestic corporation doing business within the City and County of New York, and maintains corporate headquarters within the City and County ofNew York at 823 Eleventh Avenue, New York, NY 10019. 48. Upon information and belief, Defendant Namdor, Inc. maintains control, oversight, and direction over the operation of its facilities, including its employment practices. 49. During relevant times, Defendant Namdor, Inc. was Plaintiffs' employer within the meaning of all applicable statutes. Defendant John Catsimatidis
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50. Upon information and belief, Defendant Catsimatidis is a resident of the State of

New York. 51. Upon information and belief, Defendant Catsimatidis maintains an office in the
City ofNew York, County ofNew York, at 823 Eleventh Avenue, New York, NY 10019. 52. During all relevant times, Defendant Catsimatidis has been the owner of

Gristede's. 53.

During all relevant times, Defendant Catsimatidis has been the President of

Gristede's. 54.

During all relevant times, Defendant Catsimatidis has been the CEO ofGristede's.

55. During all relevant times, Defendant Catsimatidis has been an agent of Gristede's. 56. During all relevant times, Defendant Catsimatidis has had power over personnel

decisions at Gristede's. 57. During all relevant times, Defendant Catsimatidis has had power over payroll

decisions at Gristede's.

58. During all relevant times, Defendant Catsimatidis has maintained control, oversight, and direction over the operation of Gristede's facilities, including its employment

practices. 59.

During relevant times, Defendant Catsimatidis has been Plaintiffs' and the Class's

employer within the meaning of Title VII, NYSHRL, and NYCHRL.

CLASS ALLEGATIONS

60. Plaintiffs bring this Class Action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and

(b)(3) on behalf of a Class of all past, present, and future female employees of Gristede's in the United States. Plaintiffs reserve the right to amend the definition of the Class based on discovery

or legal developments.

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61. Plaintiffs are members of the Class they seek to represent. 62. The members of the Class identified herein are so numerous that joinder of all members is impracticable. As of the filing ofthis Second Amended Complaint, Gristede's has approximately 800 or more female employees. Although the precise number of female employees is currently unknown, it is far greater than can be feasibly addressed through joinder. 63. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others: (1) whether Gristede's policies or practices discriminate against female employees; (2) whether Gristede's has failed to implement policies and procedures to prevent discrimination against women in the workplace; (3) whether Gristede's policies or practices violate Title VII and/or the NYSHRL and/or the NYCHRL; and (4) whether equitable remedies, injunctive relief, compensatory damages, and punitive damages for the Class are warranted. 64. The Plaintiffs' claims are typical of the claims ofthe Class. 65. The Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have retained'counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof. 66. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Gristede's has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiffs and the Class as a whole. The Class members are entitled to injunctive relief to end Gristede's common, uniform, unfair and discriminatory policies and practices. 67. Class certification is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the Class, and because a class action is superior to other available methods for the
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fair and efficient adjudication of_this litigation. The Class members have been damaged and are entitled to recovery as a result of Gristede' s common, uniform, unfair, and discriminatory policies and practices. Gristede's has computerized account data, payroll, and personnel data that will make calculation of damages for specific Class members relatively simple. The propriety and amount of punitive damages are based on the conduct of the Defendants, making these issues common to the Class.
GENERAL POLICIES OR PRACTICES OF DISCRIMINATION 68. The denials and abridgments of employment opportunities suffered by the Plaintiffs are part of a general policy or practice of discrimination on the basis of gender in employment that has existed at Gristede's throughout the relevant time period. These are not isolated examples of employment practices or individual decisions. On the contrary, these incidents are representative ofGristede's systematic discrimination against female employees in favor of male employees. 69. From the time a woman initially seeks employment with the company, Gristede's subjects her to gender-based bias and discrimination. 70. When women apply for work at either Gristede's Headquarters or local Gristede's stores, Gristede's often tells them the only positions for which they will be considered are cashier and/or bookkeeper. 71. When women inquire about other available positions, such as clerk, Gristede's representatives tell them that the company needs men for those positions, or otherwise indicate that such positions are not available to female applicants. 72. As a result of these practices, Gristede's workforce is substantially segregated by gender.
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73. As a result of segregating its workforce by gender, Gristede's has created a maledominated environment that denies women equal opportunities.
74. Cashier and bookkeeper positions often pay less than clerk positions. 75. Cashier and bookkeeper positions are often part-time, as opposed to the full-time status afforded many clerk positions. 76. Gristede's gives more opportunities for extra hours to clerks than to cashiers or bookkeepers. 77. Cashiers and bookkeepers are seldom promoted to management positions or other advanced positions within the company. 78. Gristede's uses the proverbial "tap on the shoulder" promotion selection system. Gristede's does not post promotional opportunities or open positions. Instead store and district managers, virtually all of whom are men, approach more junior men directly and on their own initiative about promotional opportunities. 79. Gristede's promotional selection system is discriminatory in that it perpetuates the historical exclusion of women from management positions and it permits excessive subjectivity by store and district managers, which they exercise in a discriminatory fashion. By entrusting these managers, virtually all of whom are men, with undue discretion in these matters, Gristede's maintains a system whereby store and district managers apply their own personal preferences and biases in making advancement decisions. This discriminatory promotional system is a uniform practice across all·Gristede's stores. 80. Gristede's has intentionally implemented and maintained this discriminatory promotional system in order to favor male workers over female workers. 81. Gristede' s has pursued policies or practices on a continuing basis that have had the purpose and effect of denying or restricting the availability of employment opportunities,
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compensation, promotions, and other favorable employment conditions to qualified females. Such discriminatory policies or practices include, without limitation:
(a) Systematically discriminating against women by placing them in parttime, lower paying positions than their male counterparts;
(b) Relying upon unweighted, subjective, gender-based and/or arbitrary criteria that a nearly all-male managerial workforce applies to make promotional and advancement decisions;
(c) Failing and refusing to take reasonable and adequate steps to eliminate the effects of Defendants' past discriminatory practices;
(d) Failing to provide women with the same quality and quantity of training and mentoring as is provided to men;
(e) Maintaining a discriminatory and gender-biased corporate culture; (f) Making employment decisions based on gender; and (g) Making employment decisions based on gender stereotypes.
PLAINTIFFS' FACTUAL ALLEGATIONS Susan Duling
82. Plaintiff Susan Duling has been employed as a part-time cashier by Gristede's since approximately August 2003.
83. Duling is currently employed at the Gristede's store on 64th Street and West End Avenue in New York City. She previously worked at the Gristede's store on 76th Street and 3rd Avenue in New York City.
84. When Gristede's first hired Duling, it intentionally steered her into the cashier position because ofher gender.
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85. During the entire time she has worked at Gristede's, Duling has never seen postings of available management positions.
86. During the entire time Duling has worked at Gristede's, her managers have never approached her about promotional opportunities within Gristede's.
87. Duling has remained a part-time cashier during her entire tenure with Gristede's. 88. Upon information and belief, Duling is qualified for other positions, including management-level positions. Margaret Anderson 89. Plaintiff Margaret Anderson was employed as a part-time cashier by Gristede's from approximately November 2004 through December 2004. 90. Anderson was employed at the Gristede's store on 96th Street and Broadway in New York, New York. 91. When Gristede's first hired Anderson, it intentionally steered her into the cashier position because ofher gender. 92. When Anderson went to Gristede's main office to apply for a position, the male who took her application told her that the position of cashier was available. 93. Anderson asked about other available positions, especially that of stock clerk, but the man told her that Gristede's needed "big guys" for stock positions and the only position for which he would consider her was that of cashier. 94. Gristede's did not consider Anderson for the position of stock clerk because she was a woman. 95. Anderson remained a part-time cashier during her entire tenure with Gristede's. Lakeya Sewer
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96. PlaintiffLakeya Sewer was employed by Gristede's as a full-time cashier from approximately 2001 through 2002.
97. In February 2002, Gristede's transferred Sewer to a receptionist position in Gristede's corporate office, where she worked until May 2006.
98. In approximately 2006, Sewer took a leave under the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et al, for the birth of her son.
99. When Sewer reported back to Gristede's following her FMLA leave, Gristede's told her that she would no longer be working in the corporate office.
100. Instead, Gristede's reassigned Sewer to a full-time cashier position. 101. The cashier position was not equivalent to the receptionist position. 102. The cashier position did not have the same responsibilities as the receptionist position. 103. The cashier position did not have the same duties as the receptionist position. 104. The cashier position did not have the same status as the receptionist position. 105. The cashier position reasonably is viewed as a demotion from the receptionist position. 106. On information and belief, Gristede's knew or should have known that Plaintiff Sewer was entitled to restoration to an equivalent position under the FMLA. 107. On information and belief, Gristede's showed reckless disregard for whether its actions towards Plaintiff Sewer were in violation of the FMLA. 108. Sewer remained a cashier with Gristede's until approximately September 2006. 109. As a result of Defendants' unlawful actions towards her, Plaintiff Sewer has lost . pay and promotional opportunities and has experienced emotional distress and mental pain and suffering.
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110. Upon information and belief, Sewer was qualified for other positions, including

management-level positions, during her tenure with Gristede's.

CAUSES OF ACTION

First Claim for Relief
Intentional Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.)
(On Behalf of All Plaintiffs and the Class)

111. Plaintiffs incorporate by reference each allegation of each preceding paragraph. 112. Gristede's has intentionally maintained a system that discriminates on the basis of

gender with respect to job placement, compensation, promotion, and other terms and conditions

of employment.

113. Gristede' s has intentionally discriminated against Plaintiffs and the Class in

violation of Title VII by, among other things:

(a) treating them in a discriminatory manner based on their gender;

(b) denying them promotion opportunities because of their gender;

(c) denying them other opportunities for advancement because of their

gender;

(d) denying them opportunities for increased compensation because of their

gender;

(e) providing them with less favorable compensation because of their gender;

(f) providing disparate terms and conditions of employment because of their

gender; and

(g) failing to examine its workplace to correct gender-biased and

disc;riminatory policies and failing to address problems of disparate treatment on the basis of

. gender.

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114. The foregoing conduct constitutes illegal, intentional discrimination prohibited by
42 U.S.C. §§ 2000e et seq.
Second Claim for Relief Disparate Impact Discrimination (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.) (On behalf of All Plaintiffs and the Class)
115. Plaintiffs incorporate the preceding paragraphs as alleged above. 116. Gristede's has maintained a system and/or policies that are discriminatory, subjective, standardless, and/or arbitrary with respect to the assignment of employees to employment positions, promotions, compensation, and other terms and conditions of employment. This system has an adverse impact on female employees and is not, and cannot be, justified by business necessity. Even if such system could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 117. The foregoing conduct constitutes illegal discrimination prohibited by 42 U.S.C.
§§ 2000e et seq.
Third Claim for Relief Intentional Discrimination (NYSHRL, New York Executive Law§ 296 et seq.) (On Behalf of All Plaintiffs and the Class) 118. Plaintiffs incorporate by reference each allegation of each preceding paragraph. 119. Gristede' s has maintained a system that discriminates on the basis of gender with respect to job placement, compensation, promotion, and other terms and conditions of employment. 120. Gristede's has intentionally discriminated against Plaintiffs and the Class in violation ofNYSHRL by, among other things: (a) treating them in a discriminatory manner based on their gender; (b) denying them promotion opportunities because of their gender;
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(c) denying them other opportunities for advancement because of their gender; (d) denying them opportunities for increased compensation because of their
gender; (e) providing them with less favorable compensation because oftheir gender; (f) providing disparate terms and conditions of employment because of their
gender; and (g) failing to examine its workplace to correct gender-biased and discriminatory
policies and failing to address problems of disparate treatment on the basis of gender. 121. The foregoing conduct constitutes illegal, intentional discrimination prohibited by New York Executive Law § 296 et seq.
Fourth Claim for Relief Disparate Impact Discrimination (NYSHRL, New York Executive Law § 296 et seq.) (On behalf of All Plaintiffs and the Class) 122. Plaintiffs incorporate the preceding paragraphs as alleged above. 123. Gristede's has maintained a system and/or policies that are discriminatory, subjective, standardless, and/or arbitrary with respect to the assignment of employees to employment positions, promotions, compensation, and other terms and conditions of employment. This system has an adverse impact on female employees and is not, and cannot be, justified by business necessity. Even if such system could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 124. The foregoing conduct constitutes illegal discrimination prohibited by New York Executive Law § 296 et seq.
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Fifth Claim for Relief
Intentional Discrimination (NYCHRL, New York City Administrative Code§§ 8-101 et seq.)
(On behalf of All Plaintiffs and the Class)

125. Plaintiffs incorporate by reference each allegation of each preceding paragraph. 126. Gristede's has maintained a system that discriminates on the basis of gender with respect to job placement, compensation, promotion, and other terms and conditions of

employment. 127. Gristede's has intentionally discriminated against Plaintiffs and the Class in

violation of the NYCHRL by, among other things: (a) treating them in a discriminatory manner based on their gender; (b) denying them promotion opportunities because of their gender;

(c) denying them other opportunities for advancement because of their

gender;

(d) denying them opportunities for increased compensation because of their

gender;

(e) providing them with less favorable compensation because of their gender; (f) providing disparate terms and conditions of employment because of their

·gender; and

(g) failing to examine its workplace to correct gender-biased and .discriminatory policies and failing to address problems of disparate treatment on the basis of

gender. 128. The foregoing conduct constitutes illegal, intentional discrimination prohibited by

the NYCHRL, New York City Administrative Code§§ 8-101 et seq.

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Sixth Claim for Relief Disparate Impact Discrimination (NYCHRL, New York City Administrative Code§§ 8-101 et seq.) (On behalf of All Plaintiffs and the Class) 129. Plaintiffs incorporate the preceding paragraphs as alleged above. 130. Gristede's has maintained a system and/or policies that are discriminatory, subjective, standardless, and/or arbitrary with respect to the assignment of employees to employment positions, promotions, compensation, and other terms and conditions of employment. This system has an adverse impact on female employees and is not, and cannot be, justified by business necessity. Even if such system could be justified by business necessity, less discriminatory alternatives exist and would equally serve any alleged necessity. 131. The foregoing conduct constitutes illegal discrimination prohibited by NYCHRL, New York City Administrative Code§§ 8-101 et seq.
Seventh Claim for Relief Interference with Family Medical Leave Act Restoration Rights
(FMLA, 29 U.S.C. §§ 2601 eta[) (On behalf of Plaintiff Sewer) 132. Plaintiffs incorporate the preceding paragraphs as alleged above. 133. Under the FMLA, Gristede's was required to restore Plaintiff Sewer to an equivalent position when she returned from protected leave. 134. Gristede's interfered with Plaintiff Sewer's rights in violation of the FMLA when it failed to restore her to an equivalent position following her protected leave. 135. Gristede's failure to restore Plaintiff Sewer to an equivalent position was willful.
Eighth Claim for Relief
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Gender and Pregnancy Discrimination (NYCHRL)
(On behalf of Plaintiff Sewer)
136. Plaintiffs incorporate the preceding paragraphs as alleged above. 13 7. By the acts and practices described above, Defendants have discriminated against Plaintiff Sewer in the terms and conditions of her employment on the basis of her gender and her status as a pregnant woman and a woman with children, in violation of the New York City Human Rights Law, New York City Administrative Code§ 8-107(1). 13 8. Defendants knew that their actions constituted unlawful discrimination and showed willful and/or reckless disregard for Plaintiff Sewer's statutorily protected rights.

ALLEGATIONS REGARDING RELIEF 139. Plaintiffs and the Class they seek to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the Class they seek to represent are now suffering, and will continue to suffer, irreparable injury from

Defendants' discriminatory acts and omissions. 140. Gristede's actions have caused and continue to cause Plaintiffs and all Class
members substantial losses in earnings and other employment benefits. 141. Gristede' s has performed the acts herein alleged with malice or reckless
indifference. Plaintiffs and Class members are thus entitled to recover punitive damages.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that upon trial this Court enter judgment:

Class-wide Relief (a)

Certifying the case as a class action on behalf ofthe proposed Class;

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(b) Designating Plaintiffs Susan Duling, Margaret Anderson, and Lakeya

Sewer as representatives of the Class; (c) Designating Plaintiffs' counsel of record as Class counsel; (d) Declaring that Defendants' actions and practices violate Title VII, the

NYSHRL, and the NYCHRL, and constitute discrimination on the basis of gender; (e) Declaring that Defendant Catsimatidis is individually liable for violations

of the NYSHRL and the NYCHRL; (f) Permanently enjoining and restraining Defendants (and their officers,
agents, and successors) from engaging in actions or practices that discriminate against Plaintiffs

or the Class because of their gender or participation in this lawsuit; (g) Directing Defendants to institute and carry out policies, practices, and
programs that provide equal employment opportunities for all employees regardless of gender, and to eradicate the effects of its past and present unlawful employment practices;
(h) Requiring Defendants to develop and institute objective standards for

assignments, promotions, and determination of pay; (i) Directing Defendants to restore Plaintiffs and Class members to their
rightful positions at Gristede's, or in lieu of reinstatements, an order for front pay benefits; (j) Appointing a monitor to ensure that Defendants comply with the

injunction provisions of any decree that the Court orders; (k) Retaining jurisdiction over this action for three years to insure that

Defendants comply with such a decree; (I) Directing Defendants to pay all damages sustained as a result of its

conduct;

(m) Directing Defendants to pay punitive damages;

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(n) Directing Defendants to pay all costs incurred herein, including reasonable

attorneys' fees to the extent allowable by law; (o) Directing Defendants to pay pre-judgment and post-judgment interest, as

provided by law; (p)

Granting such other or additional relief as this Court deems just and

proper; and

Individual Relief for Plaintiff Sewer (q) Declaring that Defendants' actions and practices violate the Family

Medical Leave Act, 29 U.S.C. §§ 2601 et al;
(r) Directing Defendants to make Plaintiff Sewer whole by paying back pay, front pay, and reimbursement for lost benefits in an amount to be determined at trial;
(s) Directing Defendants to make Plaintiff Sewer whole for the emotional distress and pain and suffering experienced by her as a result of Defendants' illegal actions, in an

amount to be determined at trial; (t) Directing Defendants to pay punitive damages; (u) Directing Defendants to pay all costs incurred herein, including reasonable

attorneys' fees to the extent allowable by law; (v) Directing Defendants to pay pre-judgment and post-judgment interest, as

provided by law; and (w) Granting such other or additional relief as this Court deems just and

proper.

JURY DEMAND Pursuant to Rule 38(b) ofthe Federal Rules of Civil Procedure, Plaintiffs demand a trial

by jury in this action.

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Dated: New York, New York January 19, 2010

Respectfully submitted,

By: Adam T. Klein (AK 3293) Justin M. Swartz (JS 7989) Lewis M. Steel (LS 4463) Cara E. Greene (CG 0722) 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000
Fax: (212) 977-4005

24

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x

SUSAN DULING, MARGARET ANDERSON, and LAKEYA SEWER on behalf of themselves and all others similarly situated,

Plaintiffs,

-v-

No. 06 Civ. 10197 (LTS)(HBP)

GRISTEDE'S OPERATING CORP., et al.,

Defendants.

-------------------------------------------------------x

OPINION AND ORDER

APPEARANCES: OUTTEN & GOLDEN,LLP By: Adam T. Klein, Esq. Justin M. Swartz, Esq. Cara E. Greene, Esq. 3 Park Avenue, 29th Floor New York, New York 10016
Attorneys for Plaintiffs

MORGAN, LEWIS & BOCKIUS LLP By: Michael J. Puma, Esq.
Amber L. Kagan, Esq. 101 Park Avenue New York, New York 10178
FINKEL GOLDSTEIN ROSENBLOOM & NASH LLP By: Kevin J. Nash, Esq. 26 Broadway, Suite 711 New York, NY 10004
Attorneys for Defendants

LAURA TAYLOR SWAIN, United States District Judge

GRISTEDES CLASS CERT.W PD

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Plaintiffs Susan Duling, Margaret Anderson, and Lakeya Sewer (collectively “Plaintiffs”) bring this action on behalf of themselves and all others similarly situated, asserting intentional discrimination and disparate impact claims for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”), by defendants Gristede’s Operating Corp., Red Apple Group, Inc., d/b/a Gristede’s, Gristede’s Foods, Inc., Gristede’s Delivery Service, Inc., Gristede’s Foods NY, Inc., Gristede’s NY, LLC, Namdor, Inc., and John Catsimatidis (collectively “Gristede’s” or “Defendants”). Sewer also asserts individual claims for interference with her restoration rights under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”), and gender and pregnancy discrimination under § 8-107(1) of the NYCHRL.
The Court has federal question jurisdiction of Plaintiffs’ Title VII and FMLA claims pursuant to 28 U.S.C. §§ 1331 and 1343. The court has supplemental jurisdiction of the state statutory claims pursuant to 28 U.S.C. § 1367.
Plaintiffs now move for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure of their class claims asserted pursuant to Title VII and the state and local Human Rights laws. Defendants oppose the motion, and move to strike two expert reports submitted by Plaintiffs in support of their motion. For the reasons stated below, Defendants’ motions to strike are denied and Plaintiffs’ motion for class certification is granted in part.

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BACKGROUND

Plaintiffs allege that Gristede’s maintains a pattern and practice of intentional

discrimination against women in terms of hiring and promotions, and that its hiring, promotion and

compensation policies have an illegal disparate impact on women. Women, according to Plaintiffs,

are predominantly steered or placed initially into “cashier,” as opposed to “clerk” positions,

regardless of their qualifications or interests. (Second Am. Compl. ¶¶ 3, 69-71). Plaintiffs further

allege that Gristede’s selects managers, who are almost exclusively promoted from within the

company, predominantly from among clerks. (Id. ¶¶ 77-79.) According to Plaintiffs, the

combination of initially placing women in certain positions upon hiring and seldom promoting

employees from those positions results in a dearth of women in management positions. These

hiring and promotion practices are not undertaken pursuant to a formal policy. Rather, hiring to

and promotion from all entry-level positions is done pursuant to unwritten, subjective and

discretionary processes. (Id. ¶¶ 5, 78-79.) Plaintiffs argue that the unconstrained discretion

exercised by the individuals who make Gristede’s hiring and promotion decisions causes those

individuals’ biases to manifest themselves in the company’s practices. (Id. ¶¶ 79-81.)

The Court has performed a rigorous review of the parties’ extensive evidentiary

submissions in connection with this motion practice. The following factual summary presents the

Court’s findings as to undisputed facts, and findings as to disputed ones, that are relevant to

Plaintiff’s class certification motion.

Gristede’s operates a chain of forty-two grocery stores in and near New York City.

(Decl. of Cara E. Greene (“Greene Decl.”), Ex. 5, Tr. of Dep. of Christopher Lang (“Lang Dep.”) at

19:14-16; Greene Decl., Ex. 2, Tr. of Dep. of Charles Criscuolo (“Criscuolo Dep.”) at 37:22-38:5.)

The stores are divided into two districts, each of which is overseen by a “district manager.”

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(Criscuolo Dep. at 37:7-21.) Each district manager, in turn, supervises the “store managers” who

run the grocery stores within his district. (Id. at 32:10-12, 37:3-6.) Individual stores are separated

into departments, each of which is staffed by clerks and may be run by a “department manager.”

(Id. 26:15-32:9.) The majority of clerks and cashiers are part-time employees. (Greene Decl., Ex.

11, Tr. of Dep. of James Monos (“Monos Dep.”) at 87:14-18.)

Until September 2007, every decision regarding whether to hire an applicant for an

entry-level position at Gristede’s and the placement of successful applicants was made by Michael

McCormick. (Greene Decl., Ex. 7, Tr. of Dep. of Michael McCormick (“McCormick Dep.”) at

118:4-13; Greene Decl., Ex. 1, Tr. of Dep. of Deborah Clusan (“Clusan Dep.”) at 67:6-14;

Criscuolo Dep. at 57:23-25; Lang Dep. at 55:14-23; Greene Decl., Ex. 10, Tr. of Dep. of Mitchell

Moore (“Moore Dep.”) at 24:20-25:8, 28:13-16, 29:23-30:5, 58:14-59:4.) McCormick, who has

been Gristede’s Human Resources Specialist since approximately December 2003 (McCormick

Dep. at 13:2-5), has a college degree in human resource management, but no other post-college

work experience or other experience in human resources. (McCormick Dep. at 14:25-15:15;

Criscuolo Dep. at 57:9-22.) McCormick received no training regarding employment and anti-

discrimination laws, and essentially no training on how to determine whether an applicant is

qualified for a particular entry level position. (McCormick Dep. at 37:18-41:24.) McCormick

decides whether to hire an applicant on the basis of purely subjective criteria, namely his

impression of “how [applicants] conducted themselves, [whether they] were . . . friendly, [and

whether they] were . . . honest” during the interview. (McCormick Dep. at 117:7-18:3; see also id.

at 36:19-37:17.) Charles Criscuolo, who is Gristede’s senior executive vice president and who

“run[s] the operations of the company” (Criscuolo Dep. at 24:3-23), “imagine[s]” that McCormick

bases his hiring decisions “on the needs of the company” and is “sure [McCormick] has his

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requirements on interviewing and talking to the people to see what it would be like for their

specific requirements” (Criscuolo Dep. at 55:20-56:17).

There are no written descriptions of Gristede’s entry level positions. (Decl. of

Michael J. Puma (“Puma Decl.”), Ex. N., Tr. of Dep. of Angelo Mendoza (“Mendoza Dep. (Def.)”)

at 81:3-5.) While applicants for entry level positions are given the opportunity to state the position

for which they are applying (McCormick Dep. at 99:3-10), they are not told which positions are

available (McCormick Dep. at 97:22-24). McCormick decides into which position to place a

successful applicant on the basis of the length of time each available position has been open and the

amount of pressure he receives from store managers to fill particular openings. (McCormick Dep.

at 99:19-100:6.) At his deposition, McCormick denied having suggested to any applicant that they

apply for a specific position. (Puma Decl., Ex. K, Tr. of Dep. of Michael McCormick

(“McCormick Dep. (Def.)”) at 102:19-104:7, 106:24-108:6.) He testified that, when an applicant

asks which positions exist, McCormick “run[s] through a list of what the positions are, off the top

of [his] head, real quick,” but does not otherwise make suggestions to the applicant. (McCormick

Dep. (Def.) at 103:2-11.) Since September 2007, hiring and initial placement decisions have also

been made by four male store managers, who were given no direction as to how to make those

decisions other than to verify that applicants have valid identifying documents. The managers’

decisions are reviewed by “headquarters.” (Moore Dep. at 24:20-32:17, 54:13-60:3.)

A number of present and former Gristede’s employees, including the named

plaintiffs, proffer that they and other female applicants were “steered” into cashier positions;

several state that they were told on applying that only cashier positions were available. (Greene

Decl., Ex. 3, Tr. of Dep. of Susan Duling (“Duling Dep.”) at 53:6-19; Greene Decl., Ex. 15, Decl. of

Susan Duling (“Duling Decl.”) ¶ 4; Greene Decl., Ex. 16, Decl. of Opalita Echevearria

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(“Echevearria Decl.”) ¶¶ 6-7; Greene Decl., Ex. 17, Decl. of Cynthia Gonzales (“Gonzales Decl.”)

¶ 3; Greene Decl., Ex. 20, Decl. of Racquel McDonald (“McDonald Decl.”) ¶ 6; Greene Decl., Ex.

21, Decl. of France Ortiz (“Ortiz Decl.”) ¶ 5; Greene Decl., Ex. 23, Decl. of Yashira Santiago

(“Yashira Santiago Decl.”) ¶ 4; Greene Decl., Ex. 24, Decl. of Yesenia Santiago (“Yesenia

Santiago Decl.”) ¶ 6; Greene Decl., Ex. 26, Decl. of Ebony Singleton (“Singleton Decl.”) ¶ 5). One

declarant alleges that, when she and a man applied and both expressed interest in two open

positions – one for a cashier and one in “deli” – the man was given the deli position. (Greene

Decl., Ex. 18, Decl. of Dailin Gonzalez (“Gonzalez Decl.”) ¶ 5.) Defendants proffer that most

cashier applicants are women and that the women express their preference for the cashier position.

(Defs.’ Br. 20.)

Gristede’s attempts to fill openings for non-entry level positions by promoting from

within the company, and only “[v]ery rarely do[es the company] hire from the outside.” (Criscuolo

Dep. at 34:8-10; see also id. at 43; Puma Decl., Ex. J, Tr. of Dep. of Charles Criscuolo (“Criscuolo

Dep. (Def.)”) at 46:20-48:5; McCormick Dep. at 33:10-34:15; Monos Dep. at 45:6-9.) While the

procedure for promoting entry level employees to management positions is not as centralized as is

the hiring procedure, it is equally discretionary. When a department manager position becomes

available at a store within his district, Christopher Lang, one of Gristede’s two district managers

who oversee the individual store managers (see Criscuolo Dep. at 37:3-15; Lang Dep. at 19:2-20:6),

solicits recommendations of entry level employees from store managers (Lang Dep. at 55:2-58:3,

78:20-24, 84:10-23). James Monos, the other district manager, simply passes store managers’

promotion recommendations along to McCormick and other managers. (Monos Dep. at 44:3-12,

45:12-46:4, Puma Decl., Ex. L, Tr. of Dep. of James Monos (“Monos Dep. (Def.)”) at 60:13-61:15,

64:15-65:21.) Monos also discusses promotions with employees who raise the issue directly with

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him. (Monos Dep. at 49:5-19.) The promotion recommendations eventually reach Criscuolo, who makes the ultimate decision about whether to make the recommended promotion. (Lang Dep. at 100:22-24.)1
There are no written criteria for promotions of employees, and store managers, who often make the initial promotion recommendations, are not told of any such criteria. (Greene Decl., Ex. 4, Tr. of Dep. of Faustino Ferdinand (“Ferdinand Dep.”) at 70:19-71:4, 71:13-16.) Employees are not told how to seek a promotion (see id. at 70:19-24 (stating that Ferdinand, a store manager, has “no idea” what an employee should do in order to get a promotion); Monos Dep. at 49:20-25; Monos Dep. (Def.) at 62:6-11, 63:20-64:13), and they often are not told when a management position is available (Criscuolo Dep. at 86:25-87:5; Greene Decl., Ex 8, Tr. of Dep. of Angelo Mendoza (“Mendoza Dep.”) at 67:4-14; Greene Decl., Ex. 9, Tr. of Dep. of Sandi Molina (“Molina Dep.”) at 107:2-23; Moore Dep. 72:21-24; Monos Dep. at 49:15-50:25; but see Ferdinand Dep. at 68:25-70:13). One store manager evaluates an employee’s “attendance, their personality and their ability for them to do the job that they have to do” in deciding whether to promote that employee (Mendoza Dep. at 60:13-20), as well as “a gut feeling” that the employee can perform the duties of the new position (id. at 62:4-7).

1

Monos testified at his deposition that Michael McCormick makes final promotion

decisions. (Monos Dep. at 44:7-12.) However, McCormick disavowed any

involvement in promotion decisions, stating that he merely transmits the district

managers’ recommendations to Criscuolo, who makes the final determination.

(McCormick Dep. at 125:20-127:23.) Thus, it appears from the record that store

managers make recommendations to the district managers, who transmit them

unreviewed to McCormick, who transmits them unreviewed to Criscuolo. It is not

clear by what criteria Criscuolo decides whether to act upon the recommendations; he

suggested at his deposition that he simply accedes to the recommendations that are

given to him, at least with respect to some management positions. (See Criscuolo

Dep. at 79:21-24, 93:12-95:17.)

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Some management positions require specific experience. (Criscuolo Dep. (Def.) at

111:22-112:11 (a dairy manager “should have working knowledge” of the dairy department);

Monos Dep. (Def.) at 84:11-86:2 (deli, meat and grocery department managers must have

experience in those departments).) A department manager usually has been a clerk in that

department. (Monos Dep. (Def.) at 121:4-11; Mendoza Dep. (Def.) at 79:3-5.) It is unusual for an

entry-level employee to transfer into a different entry-level position. (Mendoza Dep. (Def.) at

78:17-79:2.) Potential promotees do not complete an application. (Lang Dep. at 57; Monos Dep.

at 50:2-11.) There are no written job descriptions for department manger positions. (McCormick

Dep. at 68:9-11.)

Plaintiffs’ witnesses have observed that most Gristede’s cashiers are women and/or

most clerks are men (see Greene Decl., Ex. 12, Decl. of Kizzy Bueford (“Bueford Decl.”) ¶ 9;

Greene Decl., Ex. 13, Decl. of Lewis Chewning (“Chewning Decl.”) ¶ 6; Greene Decl., Ex. 14,

Decl. of Adela Davila (“Davila Decl.”) ¶¶ 3, 7; Duling Decl. ¶ 2; Echevearria Decl. ¶¶ 3, 11;

Gonzales Decl. ¶¶ 2, 7; Gonzalez Decl. ¶ 8; Greene Decl., Ex. 19, Decl. of Angela Johns (“Johns

Decl.”) ¶¶ 3, 9; McDonald Decl. ¶¶ 2, 8; Ortiz Decl. ¶¶ 3, 9; Greene Decl., Ex. 22, Decl. of

Starliza Ramos (“Ramos Decl.”) ¶¶ 3, 7; Yashira Santiago Decl. ¶¶ 2, 7; Yesenia Santiago Decl.

¶¶ 3, 11; Greene Decl., Ex. 25, Decl. of Lakeya Sewer (“Sewer Decl.”) ¶¶ 4, 11; Greene Decl., Ex.

26, Decl. of Ebony Singleton (“Singleton Decl.”) ¶¶ 3, 9; Greene Decl., Ex. 33, EEOC Charge of

Margaret Anderson (“Anderson EEOC Charge”) ¶ 11); and assert that employees were not told

about the existence of, or process for seeking, promotions from entry level positions, regardless of

whether they expressed an interest in a promotion (see Bueford Decl. ¶ 10; Chewning Decl. ¶ 10;

Davila Decl. ¶ 8; Duling Decl. ¶ 9; Echevearria Decl. ¶¶ 9, 11, 12, 14; Gonzales Decl. ¶¶ 5-8;

Gonzalez Decl. ¶ 9; Johns Decl. ¶¶ 7, 10; McDonald Decl. ¶¶ 9-12; Ortiz Decl. ¶¶ 7, 10; Ramos

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Decl. ¶¶ 4, 5, 8; Yashira Santiago Decl. ¶¶ 6, 8; Yesenia Santiago Decl. ¶¶ 10, 12; Sewer Decl. ¶¶ 9, 12, 13; Anderson EEOC Charge ¶ 12). Two of Plaintiffs’ witnesses assert that women were expressly disfavored for promotions (see Davila Decl. ¶ 4; Ramos Decl. ¶ 4).2
Plaintiff Susan Duling has been employed by Gristede’s as a part-time cashier since
approximately August 2003. (Second Am. Compl. ¶¶ 82-83.) Plaintiff Margaret Anderson was
employed by Gristede’s as a part-time cashier from approximately November 2004 through
December 2004. (Id. ¶¶ 89, 95.) Gristede’s records indicate that Anderson’s employment was
terminated because she was “continually short on [her] register.” (Puma Decl., Ex. Q, Anderson Termination Report.) Plaintiff Lakeya Sewer was employed by Gristede’s as a full time cashier from approximately 2001 until February 2002, when she transferred to a receptionist position in Gristede’s
corporate office. (Id. ¶¶ 96-97.) Duling, Anderson and Sewer contend that, at the time they were hired, Gristede’s steered them into cashier positions by refusing to consider their applications for any other position. (Id. ¶ 84, 92-94; Duling Dep. at 53:6-19; Puma Decl., Ex. H, Tr. of Dep. of Margaret Anderson (“Anderson Dep.”) at 33:2-25; Sewer Decl. ¶ 7; Puma Decl., Ex. V, Tr. of Dep. of Lakeya Sewer (“Sewer Dep.”) at 26:3-27:6.) Duling wrote on her Gristede’s application that she was interested in a cashier position before speaking to anyone about the available positions (Puma Decl., Ex. G, Tr. of Dep. of Susan Duling (“Duling Dep. (Def.)”) at 50:7-13, 60:16-24; Puma Decl., Ex. B, Application for Employment of Susan Duling (“Duling App.”)), but alleges that when she delivered her completed application she asked about other positions and was told none were available (Duling Dep. at 53:6-19). Duling also alleges that, over the course of her tenure at

2

Defendants correctly note that many of the declarations submitted by Plaintiffs contain

boilerplate conclusory language. The Court has focused on the aspects of the

declarations that contain specific factual allegations.

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Gristede’s, she has never been made aware of available management positions at Gristede’s (Second Am. Compl. ¶¶ 85-86), despite her belief that she is qualified for such positions (id. ¶ 88).
During that time Duling has received four “write-ups” for poor performance. (Duling Dep. (Def.) at 88:2-16.) Sewer alleges that she was told when she applied for Gristede’s employment that the only position available at the time she applied was that of cashier, and that she did not ask to be placed in a
different position. (Sewer Decl. ¶ 7; Sewer Dep. at 26:3-27:6.) Plaintiffs have also proffered reports from their expert witnesses William T. Bielby
and David L. Crawford in support of their motion for class certification. (Greene Decl., Ex. 28 (“Bielby Report”); Greene Decl., Ex. 29 (“Crawford Report”).)3 Plaintiffs’ expert reports purport to show that gender disparities exist in the hiring and promoting of Gristede’s employees, and that those disparities are the result of the practices described above. Using a “multiple pools exact test,” which is “based on the computation of an exact probability” and “combines information for multiple groups (or multiple pools) to test for overall bias across several groups of employees” and which he describes as “a widely accepted method for computing statistical significance” (Crawford Report ¶ 15), Dr. Crawford calculated the probability that hiring and promotion decisions for 4,889 employees made by Gristede’s during the period from 1999 to 2007 were gender neutral (id. ¶¶ 11, 15). Dr. Crawford reported the results of his analysis in terms of standard deviations from projected gender-neutral results, noting that discrepancies of “2 or 3" standard deviations are generally considered statistically significant in litigation involving tests based on the normal distribution. (Id. at ¶ 13-14.) According to Dr. Crawford, “the probability that a discrepancy of 2

3

Plaintiffs also submit a report by Dr. Crawford in response to a report by Defendants’

expert, Dr. June O’Neill, itself apparently responding to Dr. Crawford’s initial report.

(Greene Decl., Ex. 30 (“Crawford Rebuttal Report”).) Dr. O’Neill’s report is not

before the Court.

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or more standard deviations would occur by chance is 4.55% . . . [and] the probability that a discrepancy of 3 or more standard deviations would occur by chance is 0.27% . . . .” (Id. ¶ 14.)
Dr. Crawford determined that the initial placement of new hires into entry-level clerk positions significantly departed from gender-neutrality, with a difference of more than 6 standard deviations. (Id. ¶¶ 22-23 (noting that 319 women were placed into clerk positions whereas a gender-neutral assignment would have placed 1038 women into clerk positions, and asserting that the probability that the actual assignments were made in a gender-neutral manner is essentially zero).)4 Similarly, Dr. Crawford found that the promotion of entry-level employees also departed from gender-neutrality by approximately 6.3 standard deviations. Even when controlling for initial position, significantly fewer women were promoted than expected, resulting in a departure from gender-neutrality equivalent to a difference of approximately 4.9 standard deviations. (Id. ¶¶ 12, 16, 18-19.) Dr. Crawford opined that “[p]osition is not a legitimate control variable . . . because it is tainted by initial assignments that were not gender-neutral.” (Id. ¶ 24.) Dr. Crawford also reported a discrepancy, equivalent to a difference of approximately 3.1 standard deviations, in the placement of new cashiers in part-time and full-time positions. (Id. ¶ 26.) He found the placements of new clerks in part-time and full-time positions consistent with gender-neutrality. (Id. ¶ 27.)
Finally, Dr. Crawford analyzed wage disparities. He found that, when controlling for length of tenure at Gristede’s, gender differences ranged from 24.4% to 10.5% for each year during the period of time examined, with each year’s disparity larger than seven standard

4

Dr. Crawford did not purport to account for applicants’ preferences in initial

placement. Defendants contend, without any specific evidentiary proffer, that female

applicants overwhelmingly request cashier positions. Plaintiffs, as previously noted,

contend that female applicants are steered toward such positions. The parties dispute

the quality and significance of preference-related information provided in discovery.

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deviations. (Id. ¶ 28.) When controlling for position, which, as noted above, he believes is itself the product of a “tainted” initial placement process, the wage differences are not statistically significant. (Id. ¶ 29.) Dr. Crawford concludes that gender disparities in wages are due to disparities in ultimate job position. (Id. ¶ 30.)5 Dr. Crawford similarly found that “merit increases,” which are discretionary pay increases, are awarded in a non-gender-neutral manner, in that women were awarded fewer such increases than expected, and the disparity was equivalent to approximately 2.2 standard deviations. (Crawford Report ¶ 31.) However, as with the wage disparity, the disparity in merit increases disappears when one controls for position, and women even receive “a disproportionately large share of merit increases” under such an analysis. (Id. ¶ 32.) This last result is not informative, according to Dr. Crawford, because job position “is tainted by past departures from gender-neutrality” and is thus not a legitimate control variable. (Id.)
Dr. Bielby, relying on the Crawford Report, Gristede’s job placement and promotion practices, and social science research, opined as to the potential causes of the discrepancies described in the Crawford Report. Dr. Bielby reviewed social science literature showing that “occupations and jobs with highly skewed ratios of men to women become sex labeled – widely viewed as ‘men’s work’” (Bielby Report ¶ 23 (emphasis in original)), that sex labeling reinforces gender-based disparities by contributing to a “gender-based schema” of the job (id.), and that such schemas tend to solidify over time (id. ¶ 24).
Dr. Bielby’s report also discusses social science research demonstrating that “substantial discretion in assessing and weighing evaluative criteria [for employment] invites bias”

5

In accordance with a collective bargaining agreement, clerks and cashiers receive

identical beginning wages and wage increases. (Puma Decl., Ex. I, Tr. of Dep. of

Deborah Clusan (“Clusan Dep. (Def.)”) at 79:5-17; Criscuolo Dep. (Def.) at 64:24-

65:6.)

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(id. ¶ 25), and that “discretion in the definition and weighing of evaluative criteria, even with regard to ostensibly objective criteria, contributes to bias, and . . . often does so in a way that allows decision-makers to justify to themselves and to others that their actions are fair and nondiscriminatory” (id. ¶ 26).6 Bias resulting from such discretion is largely due, according to Dr. Bielby’s report, to the influence of gender stereotypes, which are “socially shared beliefs about the characteristics or attributes of men and women in general that influence our perception of individual men and women.” (Id. ¶ 27 (internal quotation and citation omitted).)
Dr. Bielby proffers that the influence of gender stereotypes can sometimes be curtailed (id. ¶ 28-33), but only when “human resources practices are formalized so that decisionmakers know that they will be held accountable for the criteria used to make decisions, for the accuracy of the information upon which the decisions are based, and for the consequences their actions have for equal employment opportunity” (id. ¶ 31). Formal written policies are insufficient to minimize bias if they are merely “passive” or symbolic. (Id. ¶ 32.) Instead, Dr. Bielby opines, bias reduction requires “proactive policies and practices, including recurring and mandatory training of managers and supervisors, and systematic and consistent monitoring of outcomes of personnel decisions,” as well as “explicit evaluation of managers and supervisors on their contributions to an organization’s equal opportunity goals.” (Id. ¶ 33.) Dr. Bielby also pointed to “[a] large body of research in sociology and organizational studies, dating back to the 1950s,” showing that employees with fewer opportunities for advancement tend to lower their ambitions and commitment to their work as compared to others with more opportunities. (Id. ¶ 40.)
Dr. Bielby noted that “Gristede’s provides very little guidance to its managers about

6

Like Dr. Crawford, Dr. Bielby did not purport to account for applicants’ preferences

in initial placement.

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the criteria to be used in making decisions about hiring, job assignment, and promotion,” and characterized the “qualifications and criteria” used in making those decisions as “highly subjective.” (Id. ¶ 34.) He asserted that “Gristede’s nondiscrimination and equal employment opportunity policies are virtually nonexistent.” (Id. ¶ 48.) Dr. Bielby also noted Gristede’s failure to make any “systematic efforts to learn which employees are interested and qualified for promotions” (id. ¶ 39), that employees are not informed about promotion requirements (id.), and that employees learn of open positions primarily by word of mouth (id. ¶ 41). When information about job opportunities is disseminated in this manner, says Dr. Bielby, “opportunities for advancement tend to be more accessible to advantaged groups in the workplace – ‘insiders,’” namely men. (Id. ¶ 42.)
Dr. Bielby opined that Gristede’s does not even have ineffective passive, or symbolic, nondiscrimination policies, but rather that it has no such policies at all. (Id. ¶ 48.) Dr. Bielby concluded that Gristede’s inadequate nondiscrimination policies, its failure to monitor personnel decisions, and its highly subjective criteria for making such decisions “creates and sustains a highly segretated workforce and gender disparities in promotion rates.” (Id. ¶ 50.)
Plaintiffs’ proposed class consists of “all current and former female Gristede’s employees who worked for Gristede’s at any time between November 2, 2004 and the date of final judgment in this matter.” (Pls.’ Br. 1.)7

7

Defendants contest the scope of the class period on the ground that Anderson’s EEOC

charge cannot support promotion claims in light of Anderson’s brief tenure at

Gristede’s. (Defs’ Br. 8, n.4.) However, Anderson’s September 2, 2005, EEOC

charge supports all class claims because they are “reasonably related” to the claims in

that charge. The question is whether “the conduct complained of would fall within

the scope of the EEOC investigation which can reasonably be expected to grow out of

the charge of discrimination.” Velez v. Novartis Pharmaceuticals Corp., 244 F.R.D.

243, 255 (S.D.N.Y. 2007) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d

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DISCUSSION
Defendants’ Motions to Strike Plaintiffs’ Expert Reports
Defendants move, pursuant to Rule 702 of the Federal Rules of Evidence, to strike
the expert reports of William T. Bielby and David L. Crawford, both of which were submitted by
Plaintiffs in support of their motion for class certification. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. The proponent of an expert’s testimony bears the burden of establishing its
admissibility by a preponderance of the evidence. Figueroa v. Boston Sci. Corp., 254 F. Supp. 2d
361, 366 (S.D.N.Y. 2003). “The Federal Rules of Evidence assign to [the Court] ‘the task of
ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at
hand.’” United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (quoting Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 597 (1993)). The Court has “broad latitude” in deciding both
“how to determine reliability” and in reaching “its ultimate reliability determination,” but it may
not abandon its gatekeeping function. Id. at 160-61 (internal quotation marks and citations

Cir. 2001)). The Holtz court “approvingly noted a district court's conclusion that ‘it
would have been reasonable to suspect that the EEOC, in investigating [a] complaint of failure to train because of age, would have assessed [the corporation's] promotion and transfer policies.’” Velez, 244 F.R.D. at 256 (quoting Holtz, 258 F.3d at 84) (alterations in original). Similarly, it would have been reasonable to suspect that the EEOC, in investigating Anderson’s discrimination claims relating to initial job placement, would have assessed Gristede’s promotion policies and practices. This is especially true in light of the allegations in Anderson’s EEOC charge that Gristede’s promotion practices also discriminate against women.

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omitted).

The Crawford and Bielby Reports easily satisfy the requirements of Rule 702.

Defendants’ arguments, made in legal memoranda but not supported by expert or other evidence,

challenge various aspects of the experts’ procedures in conducting their statistical evaluations,

including the time frame used, the alleged failure to control for certain variables, and the failure to

consider certain alleged facts. The validity of Plaintiffs’ experts’ conclusions is not vitiated by the

consideration of data outside of the class period, National R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002) (such data may constitute “background evidence in support of a timely

claim”); there is no evidence in the current record of material changes in Gristede’s practices over

the class period or the longer period. The challenged aspects of the methodology are apparent on

the face of the reports, thus permitting a fact finder to evaluate the impact and weight of the alleged

flaws. Furthermore, there is evidence in the record that, if believed, would support a finding of

deliberate sex-segregation of the workforce from hiring onward. On this record, Plaintiffs have

demonstrated sufficiently the reliability of the underlying data and the methodologies employed by

the experts to satisfy the requirements of Rule 702. Defendants’ arguments are relevant, if at all, to

the weight that should be given to the reports. The Court concludes that both reports plainly

employ reliable and well accepted methods and adequately apply them to sufficient data in order to

render the conclusions reliable.

Plaintiffs’ expert reports also satisfy the relevance requirement of Rule 702. The

Crawford Report provides evidence that, with the other evidence of record concerning initial hiring

and promotions in a sex-segregated workforce, would tend to make more probable Plaintiffs’

disparate treatment hypotheses. As to the Bielby Report, which offers no new data but makes

social-science based observations relating to sex-stereotyping as an underlying mechanism that, if

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not actively checked, could explain the impact of Gristede’s hiring and promotion practices, the sources cited and methodology employed are sufficiently well explained for Rule 702 purposes and the report is relevant to the disparate treatment and disparate impact claims.
Finally, the Court finds that Dr. Crawford’s and Dr. Bielby’s qualifications suffice to establish their expertise in the fields of statistics and sociology, respectively, as required by Rule 702. Accordingly, Defendants’ motions to strike the reports are denied. Class Certification Motion
Rule 23 of the Federal Rules of Civil Procedure governs the certification of an action as a class action. First, Rule 23(a) requires Plaintiffs to show: (1) that the class is so numerous that joinder of all members is impracticable (“numerosity”); (2) that there are questions of law or fact common to the class (“commonality”); (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) that the representative parties will fairly and adequately protect the interests of the class (“adequacy”). Fed. R. Civ. P. 23(a). Second, Plaintiffs must show that the action is of one of the three types listed in Rule 23(b). Plaintiffs’ motion seeks class certification on the basis of Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).8
A class action “‘may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites’” of Rule 23 are met. In re Initial Pub. Offering Secs. Litig. (“In re

8

The Second Amended Complaint also invokes Rule 23(b)(3), but Plaintiffs have not

requested Rule 23(b)(3) certification in this motion practice. (Second Am. Compl. ¶

60).

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IPO”), 471 F.3d 24, 33 (2d Cir. 2006) (quoting General Telephone Co. of the Southwest v. Falcon,

457 U.S. 174, 161 (1982)). “[T]he requirements of Rule 23 must be met, not just supported by

some evidence.” Id.; see also Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc.,

546 F.3d 196, 202 (2d Cir. 2008) (holding that “the preponderance of the evidence standard applies

to evidence proffered to establish Rule 23's requirements”); cf. In re IPO, 471 F.3d 24 (rejecting

lower “some showing” standard). The burden on Plaintiffs to prove satisfaction of the Rule 23

requirements is not reduced by the overlap of those requirements with the merits of Plaintiffs’

claims. Id. at 41 (“there is no reason to lessen a district court’s obligation to make a determination

that every Rule 23 requirement is met before certifying a class just because of some or even full

overlap of that requirement with a merits issue”).

While it remains true that there is “nothing in either the language or history of Rule

23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order

to determine whether it may be maintained as a class action,” Eisen v. Carlisle & Jacquelin, 417

U.S. 156, 177 (1974), such an inquiry is appropriate where the class certification determination

incidentally overlaps with merits, In re IPO, 471 F.3d at 33 (explaining that the merits inquiry

reproved in Eisen was gratuitous and “had nothing to do with determining the requirements for

class certification”). Thus, the Court must make a “definitive assessment” based on the

“resol[ution of] factual disputes relevant to each Rule 23 requirement and [a] find[ing] that

whatever underlying facts are relevant to a particular Rule 23 requirement have been established”

while avoiding the “assess[ment of] any aspect of the merits unrelated to a Rule 23 requirement.”

Id. at 41.

The Court has made just such a thorough and rigorous definitive assessment with

respect to each of the Rule 23(a) factors and Plaintiffs’ contention that certification pursuant to

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Rule 23(b)(2) is appropriate.

Rule 23(a) Factors

Numerosity

Defendants do not contest that the proposed class, which Plaintiffs contend consists

of “at least 668 women,” meets the numerosity requirement. (Pls.’ Br. 17.) Because “numerosity is

presumed at a level of 40 members,” the Court concludes that the Plaintiffs’ proposed class is

sufficiently numerous to satisfy Rule 23(a)(1). Consolidated Rail Corp. v. Town of Hyde Park, 47

F.3d 473, 483 (2d Cir. 1995).

Commonality and Typicality

The commonality and typicality requirements “‘tend to merge’ because ‘[b]oth serve

as guideposts for determining whether . . . the named plaintiff’s claim and the class claims are so

inter-related that the interests of the class members will be fairly and adequately protected in their

absence.’” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999) (alterations

in original) (quoting Falcon, 457 U.S. at 157 n.13 (1982)); see also Marisol A. v. Giuliani, 126 F.3d

372, 376 (2d Cir. 1997). “To determine commonality, it is not necessary to decide whether

plaintiffs' evidence is ultimately compelling” as to the merits of their claims. Velez, 244 F.R.D. at

257. “Commonality requires that plaintiffs present common questions of fact or law; plaintiffs'

ultimate success at trial on the merits requires an answer to that question, specifically that

defendants actually did discriminate against plaintiffs.” Id. (emphasis in original) (quoting Hnot v.

Willis Group Holdings Ltd., 241 F.R.D. 204, 211 (S.D.N.Y. 2007)). “Even a single common legal

or factual question will suffice” to satisfy the commonality requirement as to a particular claim. In

re NYSE Specialists Sec. Litig. (“In re NYSE”), No. 03 Civ. 8264 (RWS), 2009 WL 1683349, at

*14 (S.D.N.Y. June 5, 2009) (quoting Freeland v. AT&T Corp., 238 F.R.D. 130, 140 (S.D.N.Y.

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2006)).

Similarly, the typicality requirement “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 v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155

(2d Cir. 2001) (quoting Marisol A., 126 F.3d at 376). The purpose of this requirement is “to ensure

that a class representative has ‘the incentive to prove all the elements of the cause of action which

would be presented by the individual members of the class were they initiating individualized

actions.’” In re NYSE, 2009 WL 1683349, at *15 (quoting In re NASDAQ Market-Makers

Antitrust Litig., 172 F.R.D. 119, 126 (S.D.N.Y. 1997)).

Typicality is absent where the named plaintiffs are “‘subject to unique defenses

which threaten to become the focus of the litigation.’” Id. (quoting Baffa v. Donaldson, Lufkin &

Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000)). “‘The unique defense rule, however, is not

rigidly applied in this Circuit,’ and is ‘intended to protect [the] plaintiff class – not to shield

defendants from a potentially meritorious suit.’” Id. (quoting In re Parmalat Sec. Litig., No. 04 MD

1653 (LAK), 2008 WL 3895539, at *5 (S.D.N.Y. Aug. 21, 2008)); see also Caridad, 191 F.3d at

293 (the typicality requirement “does not require that the factual background of each named

plaintiff's claim be identical to that of all class members; rather, it 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”); Velez, 244 F.R.D. at 268 (“As long as plaintiffs assert

. . . that defendants committed the same wrongful acts in the same manner, against all members of

the class, they establish the necessary typicality.” (internal quotation marks and alteration omitted)).

Thus, the commonality and typicality requirements, together, require Plaintiffs to show that they

raise questions of fact or law, arising out of a single course of conduct or set of events, that are

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common to all putative class members and that their individual claims and circumstances are

sufficiently similar to those of the absent class members so as to ensure that the named plaintiffs

will press the claims of all class members.

Plaintiffs assert both disparate treatment and disparate impact discrimination claims.

When such claims “focus on allegations of widespread acts of intentional discrimination against

individuals,” as they do here, plaintiffs typically seek to establish a prima facie case by producing

“two kinds of circumstantial evidence . . . (1) statistical evidence aimed at establishing the

defendant’s past treatment of the protected group, and (2) testimony from protected class members

detailing specific instances of discrimination.” Robinson, 267 F.3d at 158. Disparate impact

claims challenge policies or practices that are neutral on their face but have a disparate effect on the

protected group. To make their prima facie case on their disparate impact claims, Plaintiffs “must

(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal

relationship between the two.” Id. at 160 (citing Byrnie v. Town of Cromwell, Bd. of Educ., 243

F.3d 93, 111 (2d Cir. 2001)).

Plaintiffs’ claims are of injury and ongoing violations arising from company-wide

policies and practices rather than one-on-one specific decisions or acts of discrimination. Plaintiffs

have proven by a preponderance of the evidence that common questions exist, through their

evidence of steering or channeling practices at the initial hiring stage, lack of hiring and promotion

standards having the purpose or effect of protecting against intentional or unintentional sex

discrimination, and data showing statistically significant disparities in hiring into job categories and

in promotion and resulting compensation rates. The Court cautions that it does not address the

overlapping question of whether Plaintiffs have demonstrated that they can prevail on the merits of

any of their claims, but determines merely that Plaintiffs have met their burden of demonstrating

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that there are core questions that are common to the claims asserted, such that the commonality

requirement is satisfied.

Defendants argue that Duling’s voluntary indication of interest in a cashier position

and her allegedly poor job performance, in that she received four “write-ups,” and Anderson’s tenure

at Gristede’s having been too brief for her to have been eligible, and thus denied the opportunity, for

a promotion, subject the named Plaintiffs to unique defenses that render them atypical of the class.

Arguing that the named plaintiffs’ circumstances are unique “is, of course, always the defendant’s

contention in class action discrimination claims,” but “claiming that something other than

discrimination explains the named plaintiffs’ experience” is insufficient to defeat typicality because

“[t]he question presented by each plaintiff’s claim is undoubtedly typical of the class, whether or

not defendants are eventually able to prove that the answer to that question is unique to each

plaintiff.” Velez, 244 F.R.D. at 268. The individual circumstances on which Defendants base this

argument relate to the named Plaintiffs’ ability to prove their specific claims of injury, but do not

bear upon whether Plaintiffs have raised common questions of law or fact as to Gristede’s

employment policies and practices. “A difference in the amount of damages arising from differing

degrees of injury does not preclude either commonality or typicality.” Vengurlekar v. HSBC Bank,

No. 03 Civ. 243 (LTS), 2007 WL 1498326, at *6 (S.D.N.Y. May 22, 2007).

Furthermore, “the fact that the Class Plaintiffs challenge the subjective components

of company-wide employment practices does not bar a finding of commonality under either the

disparate treatment or disparate impact model.” Caridad, 191 F.3d at 292. The Supreme Court has

recognized that intentional discrimination claims are susceptible to class action suits where “the

discrimination manifested itself . . . through entirely subjective decisionmaking processes.” Falcon,

457 U.S. at 159 n.15. “And, it is beyond dispute that the disparate impact analysis may be applied

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to subjective, as well as objective, employment practices.” Caridad, 191 F.3d at 292 (stating

further that “[w]e see no reason to limit this principle to individual claims of disparate impact,” as

opposed to class-wide claims).

In order to demonstrate that their claims challenging Defendants’ subjective

decision-making practices satisfy the commonality and typicality criteria, Plaintiffs must show “that

the challenged practice is causally related to a pattern of disparate treatment or has a disparate

impact.” Velez, 244 F.R.D. at 258 (quoting Caridad, 191 F.3d at 292). In support of their claims,

Plaintiffs have submitted deposition testimony from Gristede’s high-level managers tending to

show that all hiring decisions are made by five male individuals, in their sole discretion, are

unguided by any policies or criteria, and are not reviewed by anyone else.

Plaintiffs have offered numerous accounts of female applicants being steered or

directed to cashier positions. Plaintiffs have also submitted an expert report indicating a significant

gender discrepancy in the initial placement of newly hired employees, in that women are far more

likely than men to be placed into cashier positions. Similarly, Plaintiffs have submitted testimony

from various Gristede’s managers demonstrating that manager positions are usually filled by

promoting from within the company, and that the selection of employees for promotion is based

primarily on the recommendations of store managers. Gristede’s has no policy or criteria, and store

managers are not otherwise given any guidance, regarding the qualifications required for any of the

various manager positions. Thus, the promotion decisions, like the initial hiring decisions, are left

to the discretion and subjective preferences of the managers in charge of making those decision.

As with the placement of initial hires, Plaintiffs’ experts’ reports show that women

are disproportionately less likely than men to be selected for promotion, and in particular that

cashiers are disproportionately unlikely to be promoted. In addition, Plaintiffs proffer the

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deposition testimony of several managers who confirm that they received no direction from their

superiors as to selecting employees to recommend for promotion, have promoted few or no women,

or are disinclined to promote cashiers. This anecdotal evidence appears to be consistent with

Plaintiffs’ expert and statistical evidence regarding the relevant practices and their effects.

Plaintiffs’ evidentiary submissions are sufficient to demonstrate, by the requisite

preponderance of the evidence, that there are multiple questions that are common to the proposed

class and that are susceptible to class-wide resolution, including: whether Defendants’ hiring and

job placement practices are discretionary and based on subjective judgments; whether female entry-

level employees were disproportionately placed into cashier positions as a result of those job

placement practices; whether, and to what extent, intentional gender bias is a component of the

subjective exercise of the discretionary hiring and initial placement decisions; whether Defendants’

promotion practices are discretionary and based on subjective judgments; whether female entry-

level employees were disproportionately passed over for promotion as a result of those promotion

practices; and whether, and to what extent, intentional gender bias is a component of the

discretionary promotion decisions. At least some of these questions are relevant to each of the

named Plaintiffs’ individual claims, establishing that they meet the typicality requirement.

The evidence submitted by Defendants does not contradict Plaintiffs’

characterizations of Gristede’s relevant personnel practices as discretionary and subjective, nor

does it undermine the relevance of the expert reports. Rather, Defendants endeavor to show that

Gristede’s managers exercise their discretion appropriately, and that the named Plaintiffs and

several other potential class members did not qualify for positions they claim they were denied

discriminatorily. These are merits-related questions that the Court need not, and should not,

resolve at this stage. These issues do not vitiate the presence of common questions applicable to all

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class members. To be sure, there are also individual questions, such as whether each class member
was qualified for a particular position or promotion. However, the presence of such individual questions does not preclude class certification with respect to the liability and injunctive relief aspects of Plaintiffs’ pattern or practice disparate treatment, and disparate impact, claims relating to Defendants’ hiring, promotion and compensation practices.
Adequacy Rule 23(a)(4) of the Federal Rules of Civil Procedure requires that “the representative
parties [demonstrate that they] will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “A class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 62526 (1997) (internal quotation marks and citations omitted). “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006) (citing Baffa, 222 F.3d at 60; Robinson, 267 F.3d at 170). As a part of its inquiry, the Court must determine whether Plaintiffs’ attorneys “are qualified, experienced and able to conduct the litigation.” Baffa, 222 F.3d at 60.
As they did with respect to the typicality requirement, Defendants argue that Duling’s voluntary selection of the cashier position on her application and the brevity of Anderson’s tenure at Gristede’s make those plaintiffs atypical, and therefore inadequate, class representatives. As
explained above, this argument fails. Furthermore, the fact that representatives are no longer employed by Gristede’s does not make them inadequate, as the relief they seek includes injunctive relief that would open avenues to a greater range of entry level jobs and prospects for promotion

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should they decide to return to work for Gristede’s.
The interests of the proposed class representatives, Duling, Anderson and Sewer, are well aligned with those of the absent class members. There are no conflicts of interest, and certainly no “fundamental” conflicts, see Denney, 443 F.3d at 268 (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir. 2001)), between the representatives and the other class members, and Defendants do not suggest otherwise. Similarly, the Court is persuaded, and Defendants do not dispute, that Plaintiffs’ counsel are experienced and well qualified to conduct the
instant litigation. (See Declaration of Adam T. Klein ¶¶ 20-26 (discussing counsel’s and Plaintiffs’
adequacy, and describing nine other class actions prosecuted by Plaintiffs’ counsel’s firm in various courts).) The Court therefore finds that Plaintiffs satisfy the adequacy requirement of Rule 23(a)(4).
Rule 23(b)(2) Rule 23(b)(2) of the Federal Rules of Civil Procedure permits the certification of a
class action where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Court may grant 23(b)(2) certification if it determines that “(1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy.” Robinson, 267 F.3d at 164 (internal quotation marks, citation, and alteration omitted).
Plaintiffs seek several forms of relief, including declarations that Defendants have violated the law and discriminated against the class on the basis of gender, a permanent injunction, a judgment directing Defendants to institute policies and practices that eliminate gender disparities in

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employment opportunities and “eradicate the effect of [their] past and present” practices and to implement “objective standards” for making employment decisions, appointment of a monitor to ensure compliance with any injunctive provisions of the judgment, and an award of “all damages sustained as a result” of Defendants’ conduct and punitive damages. Among the damages potentially available to Plaintiffs should they succeed, are back pay and front pay, which are individualized
equitable forms of relief. See Robinson, 267 F.3d at 160. Plaintiffs request the certification of a Rule 23(b)(2) class with respect to all of their injunctive and equitable relief claims, including remedial pay, and that the court direct the provision of individualized notice of the action and an opportunity to opt-out of the litigation as well.
In order for the injunctive or declaratory relief to predominate, the Court must conclude, at minimum, that (1) “reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought,” and (2) such relief “would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. at 164. The nature of the harm that Plaintiffs allege – namely, that Defendants’ employment policies and practices deprive them of opportunities to obtain certain positions and better pay – lends itself to injunctive and declaratory prospective relief, and the Court is therefore satisfied that the injunctive and declaratory relief sought is predominant and would be sought by reasonable plaintiffs. See Velez 244 F.R.D. at 271 (certifying a Rule 23(b)(2) liability class, reasoning that “it would serve little purpose to award money damages for discrimination without addressing the institutional structure that perpetuates it”).
It may be that back- and front-pay determinations, and monetary damages calculations, for individual class members may not be as amenable to class-based determination, particularly in light of individualized performance, job selection and similar issues. Rule 23(c)(4) permits the certification of class actions with respect to particular issues. Here, the court finds that

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 Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DOC#:

152012 DATE

~Q~ ----------~-=----
FiLED:

SUSAN DULING, MARGARET ANDERSON, and LAKEYA SEWER, on behalf of themselves and all others similarly situated,
Plaintiffs,

06 Civ. 10197 (LTS)(HBP)

-against-

GRISTEDE'S OPERATING CORP.; RED APPLE GROUP, INC., D/B/A/ GRISTEDE'S; GRISTEDE'S FOOD INC.; GRISTEDE'S DELIVERY SERVICE, INC.; GRISTEDE'S FOODS NY, INC.; GRISTEDE'S NY, LLC; NAMDOR, INC.; and JOHN CATSlMATlDlS,

Defendants.

lPilt@ I 0 lilY] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF PLAINTIFf'S' COUNSEL AS CLASS COlfNSEL, AND APPROVAL OF THE PROPOSED NOTICE OJ' SETTLEMENT AND CLASS ACTION SETTLEMENT
PROCEDURE

The above-entitled matters came before the Court on Plaintiffs' Motion for Preliminary

Approval of Settlement, Conditional Certification of the Settlement Class, Appointment of

Plaintiffs' counsel as Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settlement

and Claim Form and Class Action Settlement Procedure ("Motion for Preliminary Approval"),

ECF No. 164.

I.

Preliminary Approval of Settlement

I.

Based upon the Court's review of the Motion for Preliminary Approval and with

the modifications requested in the Court's September 17, 20 I2 Order, the Court grants

pre! iminary approval of the settlement memorialized in the Tem1 Sheet, attached to the

Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 2 of 7
Declaration of Rachel Bien, ECF No. 166 (''Bien Decl.") as Exhibit B. 2. The Court concludes that the proposed Term Sheet is within the range of possible
settlement approval, such that notice to the Class is appropriate. See In re Traffic Exec. Ass 'n, 627 F.2d 631, 634 (2d Cir. 1980); In reState Street Bank & Trust Co. ERJSA Litig., No. 08 Civ. 0265, 2009 WL 3458705, at *2 (S.D.N.Y. Oct. 28, 2009); Capsolas v. Pasta Resources, inc., No. 10-5595,2012 WL 1656920, at *3-4 (S.D.N.Y. May 9, 2012).
3. The Court finds that the Term Sheet is the result of extensive, arm's length negotiations by counsel well-versed in the prosecution of employment class actions. See Duling v. Gristede 's Operating Corp., 267 F.R.D. 86, 99 (S.D.N.Y. 20 10); Capsolas, 2012 WL
1656920, at *1.
4. The assistance of an experienced mediator reinforces that the Term Sheet is noncollusive. Capsolas. 2012 WL 1656920, at *I. H. Conditional Certification of the Proposed Rule 23 Settlement Class
5. The Court finds that all ofthe requirements of Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure are satisfied for settlement purposes.
6. Plaintiffs satisfy Fed. R. Civ. P. 23(a)(l) because there are approximately 2,527 class members and, thus, joinder is impracticable. See Consol. Rail Corp. v. Town a/Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (''[N]umerosity is presumed at a level of 40 members"); Duling, 267 F.R.D. at 96 (numerosity satisfied by a class of 668 class members).
7. Plaintiffs satisfy Fed. R. Civ. P. 23(a)(2) because they and the class members share common issues of fact and law, including: ( J) whether Gristede's steered women who applied to work in one of its approximately 40 New York supermarkets into part-time, dead-end cashier jobs- with little or no prospect for transfers or promotions into management-track
2

Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 3 of 7

positions; and (2) whether Gristede's condoned a well-established culture of systematic

discriminatory treatment of female employees which prevented them from obtaining promotions

into higher-paying positions. Duling, 267 F.R.D. at 96.

5. These alleged discriminatory violations involving common operative facts

stemming from corporate policies that affected the class members in the same way are

sufficient to meet Rule 23(a)'s commonality factor. Duling, 267 F.R.D. at 96 (commonality

satisfied by "evidence of steering or channeling practices at the initial hiring stage, lack of hiring

and promotion standards having the purpose or effect of protecting against intentional or

unintentional sex discrimination, and data showing statistically significant disparities in hiring

into job categories and in promotion and resulting compensation rates").

6.

Plaintifis satisfy Fed. R. Civ. P. 23(a)(4) because there is no evidence that the

named Plaintiffs' and the class members' interests are at odds. See Duling, 267 F.R.D. at 97-98

("The interests of the proposed class representatives, Duling, Anderson and Sewer, are well

aligned with those of the absent class members.").

7. In addition, Class Counsel, Outten & Golden LLP, "have substantial experience

prosecuting and settling employment class actions[.]" Weste1jield v. Wash. Mut. Bank, No. 06

Civ. 2817, 2009 WL 6490084, at *3 (E.D.N.Y. June 26, 2009); Duling, 267 F.R.D. at 99

(appointing Outten & Golden LLP as class counsel and finding them ''experienced and well

qualified to conduct the instant [Title Vll class action] litigation").

8. Plaintiffs also satisfy Rule 23(b)(3). Common factual allegations and a common

legal theory predominate over any factual or legal variations among class members. See

Easterling v. Conn. Dep 't qf'Corr., 08 Civ. 826.2011 WL 5864829, at *8 (D. Conn. Nov. 22,

2011) (holding that individual questions regarding class member status, qualifications, and

3

Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 4 of 7
mitigation were less substantial than the issues that were subject to generalized proof, including whether the challenged physical fitness test had a disparate impact on female applicants; whether that impact was justified by business necessity; the total amount of back pay; the rate at which those women would have been paid; the total number of priority hiring slots that should be awarded, if any; and the total amount affront pay); United States v. City ofNew York, 276 F.R.D. 22, 48-49 (E.D.N.Y. 2011 ). Class adjudication of this case is superior to individual adjudication because it will conserve judicial resources and is more efficient for class members, pm1icularly those who lack the resources to bring their claims individually. See Capsolas, 2012 WL 1656920, at *2.
9. The Com1 provisionally certifies the following class under Fed. R. Civ. P. 23(e), for settlement purposes only ("Settlement Class"):
all women, except for those who opt out, who worked for Gristede's for at least 90 days in one or more of its stores in New York between November 2, 2004 and the date on which the Court grants preliminary approval of the settlement. Ill. Appointment of Plaintiffs' Counsel as Class Counsel 10. The Court appoints Outten & Golden LLP as Class Counsel because they meet all of the requirements of Fed. R. Civ. P. 23(g). See Duling, 267 F.R.D. at 99 ("the Court is persuaded, and Defendants do not dispute, that Plaintiffs' counsel are experienced and well qualified to conduct the instant litigation"). 11. Outten & Golden did substantial work identifying, investigating, litigating, and settling Plaintiffs' and the class members' claims, have years of experience prosecuting and settling employment class actions, and are well-versed in Title VII law and in class action law. See, e.g., Duling, 267 F.R.D. at 99; Westerfield, 2009 WL 6490084, at *3. 12. The work that Class Counsel have performed both in investigating, litigating, and
4
---------

Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 5 of 7
settling this case demonstrates their commitment to the class and to representing the class's interests. IV. Notice & Claim Form
13. The Court approves the proposed Court-Authorized Notice ("Notice") and Claim Form, attached as Exhibit 4 to the Supplemental Declaration of Rachel Bien, ECF No. 169, and as Exhibit D to the Bien Decl., respectively, and directs their distribution.
14. The contents of the Notice fully comply with due process and Federal Rule of Civil Procedure 23.
15. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(8), the notice must be: the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language: the nature ofthe action; the definition of the class certified; the class claims, issues, or defenses; that a class member may enter an appearance through counsel if the member so desires; that the com1 will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and the binding efl'ect of a class judgment on class members under Rule 23(c)(3 ).
Fed. R. Civ. P. 23(c)(2)(B). 16. The Notice satisfies each of these requirements and adequately puts Rule 23 Class
Members on notice of the proposed settlement. See, e.g., In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 60 (S.D.N.Y. 1993) (class notice "need only describe the terms of the
settlement generally"); Capsolas, 2012 WL 1656920, at *1.
17. The Notice is appropriate because it describes the tem1s of the settlement, informs the class about the allocation of attorneys' fees, and provides specific information regarding the date, time, and place of the final approval hearing. Capsolas, 2012 WL 1656920, at *3.
5

Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 6 of 7

V. CJass Action Settlement Procedure
18. The Court hereby adopts the following settlement approval process:

a.

Within 30 days of the Final Approval Order (but no earlier than January 1,

20 13), Defendants will deposit $950,000 into an escrow account

administered by the claims administrator. Defendants will also submit

$500,000 in fully redeemable cash certificates for products sold at

Gristede's stores to the claims administrator for distribution to class

members.

b.

Within 10 days of the Court's grant of preliminary approval, the claims

administrator will mail the Notice and Claim Fom1 to class members.

c. Class members will have 45 days after the date the Notice is mailed to opt out of or object to the settlement. Class members will have 60 days to return a Claim Form after the date the Notice is mailed.

d. No sooner than 100 days of the date of this Order, the Court will hold a
final fairness hearing on ~ lS" 1 !to l "b at ~.m. at the
United States District Cou11 for the Southern District of New York, 500
Pearl Street, New York, New York, in Courtroom UC.. .

e.

Plaintiffs will file Motions for Final Settlement Approval and Service

Payments ("Final Approval Motions") no later than 21 days before the

fairness hearing. Plaintiffs must file any class member objections and

requests to speak at the faimess hearing at the time that they file the Final

Approval Motions. The Final Approval Motions shall include a

mechanism for judicial resolution of any claims that remain disputed and a

provision for filing a final schedule of distributions.

f.

At least 7 days before the faimess hearing, Plaintiffs shall file all

objections and opt-out fonns received by the claims administrator.

g. Defendants shall file any opposition to the Final Approval Motions no later than 7 days before the fairness hearing. Plaintiffs shall file any reply to the Final Approval Motions no later than 3 days before the fairness hearing.

h. After the fairness hearing, if the Com1 grants the Final Approval Motions, the Court will issue a Final Order and Judgment. If no party appeals the Court's Final Order and Judgment, the "Effective Date" of the settlement will be 30 days after the Court enters its Final Order and Judgment.

1.

If an individual or party appeals the Court's Final Order and Judgment, the

"Effective Date" of Settlement shall be the day after all appeals are finally

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Case 1:06-cv-10197-LTS-HBP Document 170 Filed 11/15/12 Page 7 of 7

resolved in favor of final approval and the time for any further appeal, rehearing, or reconsideration has expired.

J.

The Court shall maintain jurisdiction over the case to oversee

implementation of the injunctive relief and to resolve Plaintiffs' motion

for attorneys' fees and costs, which they shall submit within 45 days ofthe

Effective Date. At that time, Plaintiffs may request permission to submit a

supplemental attorneys' fees and cost application at the cone] usion of the

case.

k. The claims administrator will disburse settlement checks to class members, Court-approved attorneys' fees and costs, and Court-approved service awards within 21 days of (a) receipt by the claims administrator of a final list approved by Class Counsel, including dates of employment; or (b) the Effective Date or January 31,2013, whichever is later.

l.

The parties shall abide by all terms of the Tetm Sheet.

It is so ORDERED this l5t"day of ~ ~ , 2012.
~Swain United States District Judge

7

 
 Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 1 of 15

G.:snc UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------

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FILED

SUSAN DULING, MARGARET ANDERSON, and LAKEYA SEWER, on behalf of themselves and all others similarly situated,

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t.::..-....-c=i:--v. 10197 (LTS)(HBP)

Plaintiffs,

-against-

GRISTEDE'S OPERATING CORP.; RED APPLE GROUP, INC., D/B/A/ GRISTEDE'S; GRISTEDE'S FOOD INC.; GRISTEDE'S DELIVERY SERVICE, INC.; GRISTEDE'S FOODS NY, INC.; GRISTEDE'S NY, LLC; NAMDOR, INC.; and JOHN CATSIMATIDIS,

Defendants.
[PR~ ORDER GRANTING PLAINTIFFS' MOTION FOR CERTIFICATION OF THE SETTLEMENT CLASS, FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT, AND CLASS REPRESENTATIVE SERVICE AWARDS AND INDIVIDUAL AWARDS

Plaintiffs Susan Duling, Margaret Anderson, and Lakeya Sewer and the class are current

and former female non-managerial employees who worked in Gristede's supermarkets in New

York City. Plaintiffs allege that Gristede's Operating Corp.; Red Apple Group, d/b/a/ Gristede's;

Gristede's Foods, Inc.; Gristede's Delivery Service Inc.; Gristede's Foods NY, Inc.; Gristede's

NY, LLC; and Namdor, Inc. (collectively, with John Catsimatidis, "Defendants" or "Gristede's")

have engaged in class-wide gender discrimination with respect to hiring, promotion,

compensation, and other terms and conditions of employment.

On October 23, 2006, Plaintiff Anderson filed a class action complaint, alleging disparate

treatment and disparate impact claims against Defendants under Title VII of the Civil Rights Act

of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), and the New Yark

Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 2 of 15
City Human Rights Law ("NYCHRL"). She subsequently filed two amended complaints, adding Plaintiffs Duling and Sewer (together the "Named Plaintiffs").
The lawsuit alleges that Defendants violated Title VII, the NYSHRL, and the NYCHRL by steering women who had applied for work at Gristede's supermarkets into part-time cashier jobs with little or no prospect for transfers or promotions into management-track positions. It also alleges that women were denied promotions in favor of men and were paid less than them. Plaintiff Sewer also brought an individual claim of discrimination based on her gender and pregnancy and a claim for interference with her rights under the Family & Medical Leave Act, 29 U.S.C. §§ 2601 et seq. In a separate action, class member Jenneil-Adams Hargrett brought an individual claim in New York State Supreme Court for gender and pregnancy discrimination and retaliation. Collectively, all three matters constitute the "Action" for purposes of this Order.
After almost two years of discovery and significant discovery motion practice, Plaintiffs moved for class certification on January 30, 2009. ECF No. 58. On March 8, 2010, the Court certified the following class under Fed. R. Civ. P. 23(b)(2): all current and former female Gristede's employees who worked for Gristede's at any time between November 2, 2004 and the date of final judgment. See ECF No. 127.
Gristede's has reviewed the claims in detail and believes them to be without merit and denies any wrongdoing or liability in this matter. Nevertheless, Gristede' s values its reputation as a responsible company and employer, and it has worked with Plaintiffs and their counsel in order to implement new policies and practices, settle this matter and avoid the burden and expense of further litigation.
The parties reached a settlement in May 2012, involving a Settlement Fund of $1,450,000 ($500,000 in the form of fully redeemable Gristede's store gift cards) and corrective measures.
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 3 of 15
On November 15, 2012 (the "Preliminary Approval Date"), the Court entered an Order preliminarily approving the settlement, conditionally certifying the settlement class, and authorizing notice to be issued to class members (the "Preliminary Approval Order"). ECF No. 170.
On December 11, 2012, a third-party claims administrator (the "Claims Administrator") sent a Court-approved settlement notice ("Notice") to all class members informing them of their right to opt out of or object to the settlement and their right to submit a claim form to obtain a monetary recovery. No class members objected to the terms of the settlement and only one class member has requested to be excluded. Approximately 666 class members submitted timely claim forms.
On March 1, 2013, Plaintiffs moved for Final Certification of Settlement Class and Final Approval of Class Action Settlement ("Motion for Final Approval"). The same day, Plaintiffs also moved for Approval of Class Representative Service Awards and Individual Awards ("Motion for Service Awards").
The Court held a fairness hearing on March 15, 2013. Having considered the Motion for Final Approval, the Motion for Service Awards, the arguments presented at the March 15, 2013 fairness hearing, and the complete record in this matter, for good cause shown, NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: CERTIFICATION OF THE SETTLEMENT CLASS
1. The Court certifies the following class, under Federal Rule of Civil Procedure 23(e), for settlement purposes only: all women who worked for Gristede's for at least 90 days in one or more of its stores in New York at any time between November 2, 2004 and November 15, 2012.
3

Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 4 of 15
2. Plaintiffs meet all of the requirements for class certification under Fed. R. Civ. P. 23(a) and 23(b)(2) and (3) for the reasons stated in the Preliminary Approval Order, which the
Court hereby incorporates into this Order. APPROVAL OF THE SETTLEMENT AGREEMENT
3. The Court hereby grants the Motion for Final Approval and finally approves the settlement, the terms of which are set forth in the Term Sheet agreed to by the parties, which is Exhibit B to the Declaration of Rachel Bien in Support of Preliminary Approval, ECF No. 166-2, and which terms are set forth below.
4. The Court finds that the Term Sheet is the result of extensive, arm's length negotiations by counsel well-versed in the prosecution of employment class actions. See Duling v. Gristede 's Operating Corp., 267 F.R.D. 86, 99 (S.D.N.Y. 201 0); Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595,2012 WL 1656920, at *I (S.D.N.Y. May 9, 2012).
5. The settlement is procedurally and substantively fair, reasonable, adequate, and is not a product of collusion. See Fed. R. Civ. P. 23(e); Reyes v. Altamarea Group LLC, No. I06451, 2011 WL 4599822, at *4 (S.D.N.Y. Aug. 16, 2011 ); City of Detroit v. Grinnell Corp., 495 F.2d 448, 462-63 (2d Cir. 1974).
ALLOCATION FORMULA
6. The Court approves the following allocation formula agreed to by the parties: payments will be based on the number of weeks worked by each class member with each week counting as 1 point.
7. A "Qualified Settlement Class Member" is a Settlement Class Member who has submitted a claim form and who did not request exclusion from the settlement.
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 5 of 15
8. Each Qualified Settlement Class Member will receive a proportionate amount of the settlement fund based upon the amount of time they worked for Gristede's. Individual settlement amounts will consist of a monetary settlement amount and/or a gift card amount. The allocation between monetary payment and gift card may differ from person to person, but that will not change Qualified Settlement Class Members' overall proportionate share of the settlement fund which shall be determined without regard to whether they receive a monetary payment or gift cards or both. The Claims Administrator will determine each Qualified Class Member's proportionate share of the settlement fund and proportion of monetary payment to gift cards with the goal of having the proportion of monetary payment to gift cards be as similar as possible for each person (i.e., each gets the same proportion of monetary payment and gift cards). In general, Class Members who are eligible for gift cards will receive approximately 60% of their award as a monetary award and 40% in gift cards. To determine each Qualified Settlement Class Member's proportionate share of the settlement fund, each will be allocated one ( 1) point for each week worked for Defendants. With respect to the number of weeks worked, the Claims Administrator will rely on Defendants' records, which will be presumed to be accurate, unless good cause is shown why, in a particular case, they are not accurate.
9. To calculate each Qualified Settlement Class Member's settlement award: a. Add all points for Qualified Settlement Class Members together to obtain the "Total Denominator;" b. Divide the number of points for each Qualified Settlement Class Member by the Total Denominator to obtain each Qualified Settlement Class Member's portion of the Net Settlement Class Award (the Net Settlement Class Award is $1,450,000 minus Court-approved payments of$50,000 to
5

Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 6 of 15

Jenneil Adams-Hargrett and $20,000 to Lakeya Sewer, Court-approved

service awards of between $5,000 and $10,000 to Susan Duling, Margaret

Anderson, and Lakeya Sewer, the Claims Administrator's fees, all

employment taxes on the settlement payments to be made; and $30,000 for

a reserve fund to cover any additional Compliance Monitor fees above the

$20,000 amount that shall be borne by Defendants, and for any

unidentified class members who come forward);

c.

Multiply each Qualified Settlement Class Member's portion of the Net

Settlement Class Award by the Net Settlement Class Award to determine

each Qualified Settlement Class Member's "Settlement Award."

10. For Qualified Settlement Class Members who reside in New York, a portion of

their Settlement Award will be provided in gift cards. The gift cards will be issued in

denominations of $500, $1,000, $1,500, and $2,500 (or in any other bunched (i.e. not individual)

amount the Claims Administrator deems necessary to make the distributions with the approval of

the parties). For any Qualified Settlement Class Member whose settlement amount cannot be

fully paid using one of or a combination of those denominations, a monetary payment will be

used to provide the additional amount (with the goal of not having to issue any gift cards in

individual, different amounts).

UNIDENTIFIED POTENTIAL CLASS MEMBERS

11. If any individuals come forward who claim to be class members who have not

been identified by Defendants on the class-list submitted to the Claims Administrator in

December of2012, and they wish to participate in and are eligible to participate in the

settlement, and all settlement fund monies have not yet been fully exhausted, these previously

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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 7 of 15
unidentified individuals will be added to the participating class and receive payments hereunder as if they had they been listed on the class-list and will become part of this settlement. COMPLIANCE WITH CORRECTIVE MEASURES
12. The Court approves the corrective measures agreed to by the parties. Such relief shall prohibit the steering of female employees into certain positions, including the formerly cashier position; contain hiring and promotion goals for female store employees and applicants set by the Compliance Monitor as set forth in paragraph 14 below; the posting, electronically, through open hire, or otherwise, of all store job openings and job requirements, including with respect to store management positions; maintaining job descriptions that do not discriminate in purpose or effect against female employees; appropriate management and cross-training programs and a commitment to make good faith efforts to maximize female participation in all such programs with the goal of having at least approximately a 50% female participation rate; appropriate human resources oversight of Gristede's hiring and promotion policies and practices; establish a monitoring mechanism with respect to the above goals and obligations set by the Compliance Monitor as set forth in paragraph 14 below; and a dispute resolution mechanism established by the Compliance Monitor as set forth in paragraph 14 below, to address and resolve any disputes that arise between the parties during the settlement term.
13. The provisions of the corrective measures contained herein shall remain in effect for four (4) years from the date of this Order. The corrective measures provision shall expire without further action by the parties at midnight on the fourth anniversary of this Order. The parties may agree in writing to extend the term of the corrective measures for good cause.
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 8 of 15
COMPLIANCE MONITOR & DISPUTE RESOLUTION 14. The Court hereby appoints Dr. Kathleen Lundquist of APT Metrics, Inc. as the
Compliance Monitor (the "Compliance Monitor"). The Compliance Monitor shall resolve all disputes pertaining to the corrective measures. To the extent that there is a dispute over Defendant's compliance with such corrective measures and the Compliance Monitor is unable to resolve such dispute, the Court shall retain jurisdiction to enforce this Order.
15. Dr. Kathleen Lundquist, Ph.D. is a nationally recognized organizational psychologist who testifies frequently as an expert witness in employment discrimination classaction lawsuits for both defendants and plaintiffs. Bien Decl. ~ 19.
16. Dr. Lundquist is President of APT Metrics, Inc., a national firm that consults with Fortune 100 employers on the design and implementation of Human Resources processes. !d. ~ 19. In consulting with clients, she recommends proactive measures to improve the fairness, validity, and legal defensibility of Human Resources processes before they are challenged. !d. ~ 19.
17. Dr. Lundquist is familiar with Defendants' operations and has already been retained by Defendants to create and implement various personnel policies, including hiring and promotion policies. Bien Decl. ~ 19.
18. Dr. Lundquist's duties shall include, but will not be limited to: developing, implementing, and enforcing hiring and promotion policies; reviewing Defendants' efforts to comply with the corrective measures outlined in paragraph 12 above; reviewing Defendant's semi-annual progress reports towards meeting its corrective measures obligations; reviewing Defendants' exit questionnaires to ensure compliance with the corrective measures; attending semi-annual meetings with Defendants to discuss compliance with the corrective measures;
8

Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 9 of 15
conferring with Defendants regarding any other policies, procedures, program, or any other item developed, implemented, maintained, or otherwise in existence as a result of the corrective measures herein; and resolving any disputes which arise between the parties concerning Defendants' implementation of the corrective measures.
19. In the event that Dr. Lundquist cannot serve as the Compliance Monitor, or for any reason must resign before her term expires, the parties shall meet to determine a replacement Compliance Monitor, and in the absence of an agreement may apply to the Court for the appointment of a replacement. Dr. Lundquist will be asked for her recommendation for a replacement and that recommendation will be entitled to significant weight. RELEASE OF CLAIMS BY NAMED PLAINTIFFS AND THE SETTLEMENT CLASS
20. Scope of Release. Upon Gristede's full payment of all monies owed under the settlement, Gristede's shall be fully released and forever discharged from any and all Released Claims. This includes any and all individual and class-wide claims, demands, charges, complaints, rights and causes of action of any kind and nature whatsoever, and whether seeking monetary and/or equitable relief of any sort, which arose out of or are related to any conduct arising up to the Preliminary Approval Date. "Released Claims" means any and all claims, demands and causes of action of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, that were brought in the Action or which could have been brought in the Action or that are based on the same facts and circumstances as the claims brought in the Action and which arose at any time up to the Preliminary Approval Date, including, but not limited to, any claims under any Federal anti-discrimination statutes, the New York Human Rights Law, the New York City Human Rights Law, and/or any other law prohibiting gender discrimination, whether statutory, pursuant to local ordinance or at common law.
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 10 of 15
21. Release of Claims. Upon Gristede's full payment of all monies owed under the settlement, for and in consideration of the mutual promises, terms and conditions set forth in the parties' agreement, the sufficiency of which consideration the parties expressly acknowledged, Gristede's, its directors, officers, managers, agents, employees, attorneys, insurers, successors and/or assigns, and anyone acting in concert with or on behalf of them, and their respective pension, profit-sharing, savings and other employee benefit plans of whatsoever nature, and those plans' respective trustees and administrators (together the "Releasees"), are fully, finally and forever released and discharged of and from all Released Claims arising up to the Preliminary Approval Date. DISSEMINATION OF NOTICE AND CLAIM FORMS
22. Pursuant to the Preliminary Approval Order, the Notice was sent by first-class mail to each class member at his or her last known address (with re-mailing of returned Notices for which new addresses could be located). The Court finds that the Notice fairly and adequately advised class members of the terms of the settlement, as well as their ability to opt out of or to object to the settlement, and to appear at the fairness hearing conducted on March 15, 2013. Class members were provided with the best notice practicable under the circumstances.
23. The Court further finds that the Notice and its distribution comported with all constitutional requirements, including those of due process.
24. The Court confirms Kurtzman Carson Consultants LLC as the Claims Administrator. AWARD OF ATTORNEYS' FEES AND COSTS
25. On November 15, 2012, the Court appointed Outten & Golden LLP as Class Counsel because they met all ofthe requirements of Fed. R. Civ. P. 23(g).
10

Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 11 of 15
26. The parties have agreed, as reflected in the Term Sheet and in this Order, that Class Counsel are entitled to an award of attorneys' fees, costs, and expenses in addition to the Settlement Fund in an amount to be agreed upon by the parties or determined by the Court.
27. The parties shall meet and confer in an attempt to negotiate in good faith an award of Class Counsel's attorneys' fees and costs. Ifthey cannot reach agreement within 60 days of the date of this Order, the parties agree to choose a mutually acceptable mediator and to submit the issue of attorneys' fees and costs to the mediator with the mediation required to take place within 120 days of the date of this Order. If an agreement cannot be reached in mediation, Plaintiffs may file a motion for fees and costs within 30 days of providing written notice that mediation has failed. Defendants will have 45 days to respond to any such motion and Plaintiffs shall have 30 days for any reply to Defendants' submission. Within 5 days of the date of this Order, Plaintiffs shall provide Defendants with a copy of Class Counsel's contemporaneously recorded fee and cost records to assist the parties in attempting to resolve the issue of attorneys' fees and costs, pursuant to an appropriate agreement, to be negotiated by the parties and "so ordered" by the Court, that will protect any confidential and/or privileged information in these records.
28. If the parties cannot reach an agreement regarding Class Counsel's attorneys' fees, costs, and expenses and Plaintiffs move for Attorneys' Fees, Costs, and Expenses, Defendants reserve all rights, defenses and objections to the fullest extent possible with respect to such motion, except with respect to Plaintiffs' right to receive an award of attorneys' fees, costs, and expenses. SERVICE AND INDIVIDUAL AWARDS TO PLAINTIFFS
29. The Court finds reasonable service awards of $5,000 each for class
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 12 of 15
representatives Lakeya Sewer and Margaret Anderson and $10,000 for class representative Susan Duling. These amounts shall be paid from the settlement fund.
30. Service awards are common in class action cases and serve to compensate plaintiffs for the time and effort expended in assisting the prosecution of the litigation, the risks incurred by becoming and continuing as a named plaintiff, and any other burdens sustained by
the plaintiffs. Reyes, 2011 WL 4599822, at *9.
31. The Court tinds reasonable payments of $50,000 to Jenneil Adams-Hargrett and $20,000 to Lakeya Sewer in settlement of all of their individual claims of pregnancy discrimination, Family Medical Leave Act, and/or retaliation, including the full settlement and discontinuance of Ms. Adams-Hargrett's New York State Supreme Court action. SETTLEMENT FUND
32. Gristede's agrees to transmit to the Claims Administrator the following monetary settlement payments within 30 days of this Order but in no event earlier than April 26, 2013:
a. $500,000 in gift cards, which shall be redeemable at all Gristede's stores in New York and which may be used to purchase all products sold in such stores. The gift cards shall be available for all purposes, shall expire two years after they are issued, and shall be transferrable to all family members and domestic partners; and
b. $950,000, less the employer's share of taxes on the wage portion of Qualified Settlement Class Members' awards to be calculated by the Claims Administrator and less the Claims Administrator's fees.
33. If this Order was not entered on or before May 1, 2013, Gristedes may make the payment under Paragraph 32.b on or before September 15,2013.
12

Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 13 of 15
TAXATION OF AWARDS 34. Before distribution, the Claims Administrator shall calculate and withhold from
the portion of each Qualified Settlement Class Member's total gross award allocated to back and front pay all applicable taxes, including federal, state and local income tax withholding and FICA tax. The Claims Administrator shall report and remit such amounts to the Internal Revenue Service ("IRS") and/or other applicable tax authorities and to the payee under the payee's name and social security number on an IRS Form W-2. Payments treated as compensatory damages and prejudgment interest shall be made without withholding and shall be reported to the IRS and the payee, to the extent required by law, under the payee's name and social security number on an IRS Form I099. The Service Awards pursuant to Paragraph 29 shall be made without withholding and shall be reported to the IRS and the payee under the payee's name and social security number on an IRS Form 1099.
35. The Settlement Claims Administrator shall also determine the employer's share of taxes associated with the front and back pay payments, including the employer's share of FICA and any federal and state unemployment tax due, and shall notify Gristede's of the amount.
36. Defendants shall promptly pay the employer's share of taxes on the wage portion of Qualified Settlement Class Members' settlement awards, the Claims Administrator's fees, and their portion of the Compliance Monitor's fees when due, but in no case shall these payments delay the mailing of Qualified Settlement Class Members' settlement awards.
37. The monetary settlement payments should be allocated accordingly: (i) 40 percent shall be allocated as non-wage compensatory damages; (ii) 40 percent shall be allocated as back and front pay; (iii) 20 percent shall be allocated as prejudgment interest.
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 14 of 15
38. Gristede's makes no representations and it is understood and agreed that Gristede's has made no representations as to the taxability of any payments, including payments to Settlement Class Members, and payments to the Class Representatives. ADDITIONAL PROVISIONS
39. Any funds from individuals who opt out of the settlement and from uncashed checks (after 90 days from delivery to class members) will first be used toward the items set forth in Paragraph 41 (b)-(e) below. If additional funds remain, after deducting the cost of the redistribution, they shall be split between Defendants and a redistribution to participating Qualified Settlement Class Members. There shall be no reversion to Defendants except as set forth herein. If any remaining amount is too small to warrant a redistribution (i.e., it would cost more with labor and costs to do a redistribution than the amount remaining), one half of the remaining amount will be returned to Defendants and one half will be donated to National Employment Law Project as a cy pres designee.
40. The "Effective Date" of the settlement shall be 31 days after the date of this Order if no party appeals. If a party appeals, the "Effective Date" of the settlement shall be the day after all appeals are finally resolved and no further right to appeal remains.
41. Unless paragraph 33 applies, within 15 days of the Effective Date, the claims administrator shall distribute the Settlement Fund by making the following payments in the order below (and if paragraph 33 applies, the distribution shall be made within 15 days of September 15, 2013):
a. Paying individual awards of$50,000 to Jenneil Adams-Hargrett and $20,000 to Lakeya Sewer;
b. Paying service awards of $5,000 each to Lakeya Sewer and Margaret Anderson and $10,000 to Susan Duling;
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Case 1:06-cv-10197-LTS-HBP Document 182 Filed 06/19/13 Page 15 of 15

c. Paying the Claims Administrator's fees;
d. Paying the remainder of the fund to Qualified Settlement Class Members in accordance with the allocation plan described above;
e. Setting aside $30,000 in a fund for the Compliance Monitor's fees above those to be paid by Defendants as set forth in the Term Sheet ($1 0,000 in each ofthe first two years of the settlement to be paid in accordance with this order), as needed.
42. The Court retains jurisdiction over this action for the purpose of enforcing the
corrective measures, overseeing the distribution of the Settlement Fund, and to resolve any issues
relating to Class Counsel's award of attorneys' fees and costs, including in the event that the
parties are unable to reach an agreement. The parties shall abide by all terms of this Order.

It is so ORDERED this fi_1'day of ~

' 2013.

Honorable Laura Taylor Swain United States District Judge

15

 
 Court Certifies Gender Discrimination Class Action Against Gristede's Supermarkets and John Catsimatidis, According to Outten & Golden LLP
NEW YORK, March 9 /PRNewswire/ -- A group of current and former Gristede's female employees has won its bid to represent a class of female grocery store workers in a case alleging that the grocery chain and its owner, John Catsimatidis, violated civil rights laws by segregating women into lower-paying jobs and failing to promote them to management positions. Federal Judge Laura T. Swain of the Southern District of New York granted the plaintiffs' class certification motion on Monday, finding that there are common issues as to whether Gristede's hiring, job placement, and promotion practices are based on subjective decision-making that is biased against women. The Court held that the plaintiffs offered sufficient evidence that Gristede's steers women into cashier positions, regardless of their qualifications or interests, and that Gristede's promotes clerks, a position it primarily staffs with men, to managers. The Court also held that Plaintiffs' statistical evidence, suggesting that there is virtually zero probability that the significant disparities in assignment and promotion of men and women occur by chance, supported their class action bid. The plaintiffs are Susan Duling, of Manhattan, Margaret Anderson, of the Bronx, and Lakeya Sewer, also of the Bronx. The Court cited the plaintiffs' evidence that hiring and promotion decisions are made by a handful of men who have unchecked discretion and are subject to little or no oversight, and that Gristede's fails to provide managers and human resources employees with anti-discrimination training, post available positions, or formulate job requirements. The Court also noted the company's lack of anti-discrimination policies. Attorneys Adam T. Klein, Justin M. Swartz, Lewis Steel, Cara E. Greene, and Rachel Bien of Outten & Golden LLP represent the plaintiffs. Adam T. Klein said, "Women at Gristede's are disadvantaged from the moment they hand in their employment applications. And because promotions are based on a tap-on-the-shoulder system that favors men, women are unlikely ever to be promoted. Allowing the case to proceed as a class action is an important step in righting these wrongs." The litigation began in 2006 when two former cashiers sued Gristede's on behalf of themselves and all other women who worked for the company from November 2, 2004 through the present. In January 2010, the Court allowed the plaintiffs to add John Catsimatidis as an individual defendant, to add an additional plaintiff, and to request additional relief. The case is "Duling v. Gristede's Operating Corp." (No. 06 CV 10197) (LTS) in the U.S. District Court for the Southern District of New York. Attorney Contact: Adam T. Klein (atk@outtengolden.com), Lewis Steel (ls@outtengolden.com), and Cara E. Greene(ceg@outtengolden.com), Outten & Golden LLP, 3 Park Avenue, 29th Floor, New York, N.Y. 10016, Phone: (212) 245-1000 or (877) 468-8836, www.outtengolden.com. SOURCE Outten & Golden LLP

 
 Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 1 of 28
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:06−cv−10197−LTS−HBP

Duling et al v. Gristede's Operating Corp. et al

Date Filed: 10/23/2006

Assigned to: Judge Laura Taylor Swain

Date Terminated: 08/14/2013

Referred to: Magistrate Judge Henry B. Pitman

Jury Demand: Plaintiff

Cause: 42:2000e−2e Job Discrimination (Unlawful Employment Nature of Suit: 442 Civil Rights: Jobs

Practices)

Jurisdiction: Federal Question

Plaintiff

Vanessa Hill on behalf of themselves and all others similarly situated TERMINATED: 06/21/2007

represented by Adam T Klein Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212) 245−1000 Fax: (212) 977−4005 Email: atk@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara Elizabeth Greene Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212) 245−1000 Fax: (212) 977−4005 Email: ceg@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212) 245−1000 Fax: (646)−509−2060 Email: jms@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Piper Hoffman Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212) 245−1000 Fax: (212) 977−4005 Email: ph@outtengolden.com LEAD ATTORNEY

Plaintiff
Margaret Anderson on behalf of themselves and all others similarly situated

represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara Elizabeth Greene (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Mitchell Swartz

Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 2 of 28

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Piper Hoffman (See above for address) LEAD ATTORNEY

Delyanne Barros Outten &Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212)−245−1000 Fax: (212)−977−4005 Email: dbarros@outtengolden.com ATTORNEY TO BE NOTICED

Lewis M. Steel Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (646) 825−9835 Fax: (212) 245−4005 Email: ls@outtengolden.com ATTORNEY TO BE NOTICED

Mariko Hirose Outten &Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212)−245−1000 Fax: (212)−977−4005 Email: mhirose@outtengolden.com TERMINATED: 02/16/2012

Rachel Megan Bien Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646) 509−2060 Email: rmb@outtengolden.com ATTORNEY TO BE NOTICED

Plaintiff
Susan Duling on behalf of herself and all others similarly situated

represented by Adam T Klein Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 212 245−1000 Fax: 212 977−4005 Email: atk@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara Elizabeth Greene Outten &Golden,LLP (NYC) 685 Third Avenue 25th Floor New York, NY 10017 (212)−245−1000 Fax: (212)−977−4005 Email: ceg@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Lakeya Sewer on behalf of herself and all others similarly situated

Piper Hoffman (See above for address) LEAD ATTORNEY
Delyanne Barros (See above for address) ATTORNEY TO BE NOTICED
Justin Mitchell Swartz (See above for address) ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) TERMINATED: 02/16/2012
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Greene (See above for address) ATTORNEY TO BE NOTICED
Delyanne Barros (See above for address) ATTORNEY TO BE NOTICED
Justin Mitchell Swartz (See above for address) ATTORNEY TO BE NOTICED
Lewis M. Steel (See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) TERMINATED: 02/16/2012
Piper Hoffman (See above for address) ATTORNEY TO BE NOTICED
Rachel Megan Bien (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Gristede's Operating Corp.

represented by

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Kevin J. Nash Finkel Goldstein Rosenbloom &Nash LLP 26 Broadway, Ste. 711 New York, NY 10004 (212)−344−2929 Fax: (212)−422−6838 Email: KNash@gwfglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Nicole Slatin Morgan, Lewis &Bockius LLP (New York) 101 Park Avenue New York, NY 10178 (212)−309−6024 Fax: (212)−309−6001 Email: aslatin@morganlewis.com ATTORNEY TO BE NOTICED

Christopher Alan Parlo Morgan, Lewis &Bockius LLP (New York) 101 Park Avenue New York, NY 10178 212−309−6000 Fax: 212−309−6273 Email: cparlo@morganlewis.com ATTORNEY TO BE NOTICED

Emily Rose Pankow Red Apple Group, Inc. In−House Counsel 823 11th Avenue New York, NY 10019 (212)−956−5770 Fax: (212)−262−4979 Email: epankow@gristedes.com ATTORNEY TO BE NOTICED

Joseph Ted Donovan Finkel Goldstein Rosenbloom &Nash LLP 26 Broadway, Ste. 711 New York, NY 10004 (212)344−2929 Fax: (212)−422−6836 Email: tdonovan@finkgold.com ATTORNEY TO BE NOTICED

Michael Jonathan Puma Morgan, Lewis and Bockius LLP (NY) 101 Park Avenue New York, NY 10178 (212) 309−6000 Fax: (212) 309−6273 Email: mpuma@morganlewis.com ATTORNEY TO BE NOTICED

Defendant
Red Apple Group, Inc. doing business as Gristede's

represented by Kevin J. Nash (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Nicole Slatin

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(See above for address) ATTORNEY TO BE NOTICED

Christopher Alan Parlo (See above for address) ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Joseph Ted Donovan (See above for address) ATTORNEY TO BE NOTICED

Michael Jonathan Puma (See above for address) ATTORNEY TO BE NOTICED

Defendant Gristede's Foods, Inc.

represented by Kevin J. Nash (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Nicole Slatin (See above for address) ATTORNEY TO BE NOTICED

Christopher Alan Parlo (See above for address) ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Joseph Ted Donovan (See above for address) ATTORNEY TO BE NOTICED

Michael Jonathan Puma (See above for address) ATTORNEY TO BE NOTICED

Defendant Gristede's Delivery Service, Inc.

represented by Kevin J. Nash (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Nicole Slatin (See above for address) ATTORNEY TO BE NOTICED

Christopher Alan Parlo (See above for address) ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Joseph Ted Donovan

Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 6 of 28

(See above for address) ATTORNEY TO BE NOTICED

Michael Jonathan Puma (See above for address) ATTORNEY TO BE NOTICED

Defendant Gristede's Foods NY, Inc.

represented by Kevin J. Nash (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Nicole Slatin (See above for address) ATTORNEY TO BE NOTICED

Christopher Alan Parlo (See above for address) ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Joseph Ted Donovan (See above for address) ATTORNEY TO BE NOTICED

Michael Jonathan Puma (See above for address) ATTORNEY TO BE NOTICED

Defendant Gristede's NY, LLC

represented by Kevin J. Nash (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda Nicole Slatin (See above for address) ATTORNEY TO BE NOTICED

Christopher Alan Parlo (See above for address) ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Joseph Ted Donovan (See above for address) ATTORNEY TO BE NOTICED

Michael Jonathan Puma (See above for address) ATTORNEY TO BE NOTICED

Defendant Namdor, Inc.

represented by Kevin J. Nash (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Amanda Nicole Slatin (See above for address) ATTORNEY TO BE NOTICED

Christopher Alan Parlo (See above for address) ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Joseph Ted Donovan (See above for address) ATTORNEY TO BE NOTICED

Michael Jonathan Puma (See above for address) ATTORNEY TO BE NOTICED

Defendant John Catsimatidis

represented by Amanda Nicole Slatin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Rose Pankow (See above for address) ATTORNEY TO BE NOTICED

Miscellaneous White Rose Incorporated

Date Filed 10/23/2006
10/23/2006 10/23/2006 10/24/2006 11/03/2006
11/20/2006
11/20/2006

# Docket Text
1 COMPLAINT against Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc. (Filing Fee $ 350.00, Receipt Number 594123)Document filed by Vanessa Hill, Margaret Anderson.(mbe, ) (Entered: 10/25/2006)
SUMMONS ISSUED as to Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (mbe, ) (Entered: 10/25/2006)
Magistrate Judge Henry B. Pitman is so designated. (mbe, ) (Entered: 10/25/2006)
Case Designated ECF. (mbe, ) (Entered: 10/25/2006)
2 ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE: Initial Conference set for 2/2/2007 11:00 AM before Judge Laura Taylor Swain, in courtroom 17C. (Signed by Judge Laura Taylor Swain on 11/2/06) (cd, ) (Entered: 11/03/2006)
3 AFFIDAVIT OF SERVICE of Summons and Complaint,. Gristede's Delivery Service, Inc. served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene, Cara) (Entered: 11/20/2006)
4 AFFIDAVIT OF SERVICE of Summons and Complaint,. Gristede's Foods, Inc. served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene,

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11/20/2006 11/20/2006 11/20/2006 11/20/2006 11/20/2006 12/08/2006 12/11/2006 12/11/2006
12/15/2006 12/15/2006 01/09/2007 01/19/2007 01/26/2007

Cara) (Entered: 11/20/2006)
5 AFFIDAVIT OF SERVICE of Summons and Complaint,. Gristede's Foods NY, Inc. served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene, Cara) (Entered: 11/20/2006)
6 AFFIDAVIT OF SERVICE of Summons and Complaint,. Gristede's NY, LLC served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene, Cara) (Entered: 11/20/2006)
7 AFFIDAVIT OF SERVICE of Summons and Complaint,. Namdor, Inc. served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene, Cara) (Entered: 11/20/2006)
8 AFFIDAVIT OF SERVICE of Summons and Complaint,. Red Apple Group, Inc. served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene, Cara) (Entered: 11/20/2006)
9 AFFIDAVIT OF SERVICE of Summons and Complaint,. Gristede's Operating Corp. served on 11/13/2006, answer due 12/4/2006. Service was accepted by Emily Panhow, attorney. Document filed by Vanessa Hill; Margaret Anderson. (Greene, Cara) (Entered: 11/20/2006)
10 STIPULATION AND ORDER; defendants' time to answer or otherwise respond to the complaint is extended to and including December 8, 2006. (Signed by Judge Laura Taylor Swain on 12/8/06) (djc, ) (Entered: 12/11/2006)
11 STIPULATION EXTENDING TIME TO ANSWER: Defendants' time to answer or otherwise respond to the complaint is further extended to and including 12/15/2006. (Signed by Judge Laura Taylor Swain on 12/8/2006) (lb, ) (Entered: 12/12/2006)
Set Answer Due Date purs. to 11 Stipulation and Order as to Gristede's Operating Corp. answer due on 12/15/2006; Red Apple Group, Inc. answer due on 12/15/2006; Gristede's Foods, Inc. answer due on 12/15/2006; Gristede's Delivery Service, Inc. answer due on 12/15/2006; Gristede's Foods NY, Inc. answer due on 12/15/2006; Gristede's NY, LLC answer due on 12/15/2006; Namdor, Inc. answer due on 12/15/2006. (lb, ) (Entered: 12/12/2006)
12 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc..(Nash, Kevin) (Entered: 12/15/2006)
13 ANSWER to Complaint. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit A)(Nash, Kevin) (Entered: 12/15/2006)
14 CERTIFICATE OF SERVICE of Initial Conference Order served on Kevin J. Nash, Esq. on 01/04/07. Service was made by Mail. Document filed by Vanessa Hill. (Hoffman, Piper) (Entered: 01/09/2007)
15 RULE 26 DISCLOSURE.Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Affidavit of Service)(Brozik, Matthew) (Entered: 01/19/2007)
16 PRELIMINARY PRETRIAL STATEMENT. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc..(Brozik, Matthew) (Entered: 01/26/2007)

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01/29/2007 02/02/2007 02/02/2007 02/02/2007 03/26/2007 03/27/2007 03/27/2007 03/27/2007 04/06/2007
04/10/2007 04/11/2007
04/18/2007

17 NOTICE OF APPEARANCE by Kevin J. Nash on behalf of Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc. (Nash, Kevin) (Entered: 01/29/2007)
18 PRE−TRIAL SCHEDULING ORDER:Amended Pleadings due by 3/30/2007.,Motions due by 1/4/2008.,Discovery due by 10/31/2007., Final Pretrial Conference set for 3/28/2008 10:00 AM before Judge Laura Taylor Swain. (Signed by Judge Laura Taylor Swain on 2/2/07) (js) (Entered: 02/05/2007)
19 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Laura Taylor Swain on 2/2/07) (js) (Entered: 02/05/2007)
Minute Entry for proceedings held before Judge Laura Taylor Swain : Interim Pretrial Conference held on 2/2/2007. Parties referred to MJ for GPT − ptc adj to 3/28/08 at 10:00 a.m. (ae) (Entered: 02/06/2007)
20 FILING ERROR − WRONG PDF FILE ASSOCIATED WITH DOCKET ENTRY − MOTION for Leave to File Amended Complaint. Document filed by Vanessa Hill, Margaret Anderson.Motions referred to Henry B. Pitman. (Attachments: # 1 Exhibit Proposed Amended Complaint)(Greene, Cara) Modified on 3/27/2007 (KA). (Entered: 03/26/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − PDF ERROR. Note to Attorney Cara Elizabeth Greene to RE−FILE Document 20 MOTION for Leave to File Amended Complaint. (KA) (Entered: 03/27/2007)
21 MOTION for Leave to File Amended Complaint. Document filed by Vanessa Hill, Margaret Anderson.Motions referred to Henry B. Pitman.(Greene, Cara) (Entered: 03/27/2007)
22 MEMORANDUM OF LAW in Support re: 21 MOTION for Leave to File Amended Complaint.. Document filed by Vanessa Hill, Margaret Anderson. (Attachments: # 1 Exhibit Ex. A Proposed Amended Complaint)(Greene, Cara) (Entered: 03/27/2007)
23 ORDER counsel are directed to confer promptly and in good faith in an effort to resolve their differences concerning plaintiffs' document requests 6 and 11. Unless I receive notification from counsel that their diferences concerning these items has been resolved, a conference to resolve tha parties disputes will be held on April 19,2007 at 2:00 p.m. in Courtroom 18A, United States Courthouse, 500 Pearl Street, New York, New York 10007. Defendants are directed to produce a witness or witnesses prepared to testify concerning the topics identified in plaintiffs' notice of deposition pursuant to Fed.R.Civ.P. 30 (b)(6) on a mutually convenient date, said to be no later than april 26, 2007. SO ORDERED. (Signed by Judge Henry B. Pitman on 4/5/2007) (jmi) (Entered: 04/09/2007)
24 ENDORSED LETTER addressed to Judge Laura T. Swain from Sarit Shmulevitz dated 4/9/2007 re: to we respectfully request an extension by which to file and serve our objection until Friday, April 13, 2007.Objections to RRdue by 4/13/2007. ENDORSEMENT: The request is granted. SO ORDERED. (Signed by Judge Laura Taylor Swain on 4/9/2007) (jmi) (Entered: 04/11/2007)
25 AFFIDAVIT OF SERVICE of Endorsed Memo served on Vanessa Hill, Margaret Anderson on 4/10/07. Service was accepted by Piper Hoffman, Esq.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Endorsed Memo)(Donovan, Joseph) (Entered: 04/11/2007)
26 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Sarit Shmulevitz dated 4/13/07 re: We request an extension by which to file our reply until April 27, 2007. ENDORSEMENT: Application Granted. (Signed by Judge Henry B. Pitman on 4/17/07) (js) (Entered: 04/19/2007)

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04/18/2007 04/30/2007 05/01/2007
05/02/2007
05/07/2007 05/07/2007 05/29/2007 06/12/2007 06/12/2007 06/14/2007 06/18/2007 06/18/2007 06/21/2007

Set Deadlines/Hearings: Replies due by 4/27/2007. (js) (Entered: 04/19/2007)
27 ENDORSED LETTER addressed to Mag. Judge Henry Pitman from Sarit Shmulevitz dated 4/26/07 re: dfts requests that the Court permit them to submit their reply papers to Plaintiffs motion for leave to Amended Complaint by 5/1/07 rather than 4/27/07. So Ordered. Application Granted. (Signed by Judge Henry B. Pitman on 4/30/07) (pl) (Entered: 05/01/2007)
28 DECLARATION of Kevin J. Nash in Opposition re: 21 MOTION for Leave to File Amended Complaint.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit "A"# 2 Exhibit "B"# 3 Exhibit "C"# 4 Gristede's Memorandum of Law in Opposition to Motion to Amend the Complaint)(Nash, Kevin) (Entered: 05/01/2007)
29 AFFIDAVIT OF SERVICE of Declaration of Kevin J. Nash in Support of Gristede's Opposition to Plaintiffs' Motion to Amend their Complaint and Gristede's Memorandum of Law in Opposition to Motion to Amend the Complaint served on Attorneys for the Plaintiffs, Outten &Golden, LLP on 5/1/2007. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Nash, Kevin) (Entered: 05/02/2007)
30 REPLY MEMORANDUM OF LAW in Support re: 21 MOTION for Leave to File Amended Complaint.. Document filed by Vanessa Hill, Margaret Anderson. (Attachments: # 1 Exhibit Exhibit A)(Hoffman, Piper) (Entered: 05/07/2007)
31 AFFIDAVIT OF SERVICE of Affidavit of Service served on Attorney of the Defendants on 050707. Service was made by Mail. Document filed by Vanessa Hill, Margaret Anderson. (Hoffman, Piper) (Entered: 05/07/2007)
32 ORDER; no later than 6/19/2007, defendants are to produce the following information in electronic format: (1) name (2) employer i.d. (3)whether a current or former employee (4) start and end date of employment (5) sex and (6)payroll information stored on the ABRA system.Motions due by 11/19/2007. (Signed by Judge Henry B. Pitman on 5/29/07) (kco) (Entered: 05/30/2007)
33 FIRST MOTION for Reconsideration re; 32 Order, Set Deadlines/Hearings,,. Document filed by Vanessa Hill, Margaret Anderson. (Attachments: # 1 Memorandum of Law in Support of Plaintiffs' Motion for Reconsideration and Expansion)(Greene, Cara) (Entered: 06/12/2007)
34 CERTIFICATE OF SERVICE of Notice of Motion and Memorandum of Law served on Attorney for Defendants on June 12, 2007. Document filed by Vanessa Hill, Margaret Anderson. (Greene, Cara) (Entered: 06/12/2007)
35 NOTICE OF APPEARANCE by Joseph Ted Donovan on behalf of Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc. (Donovan, Joseph) (Entered: 06/14/2007)
36 MEMORANDUM OPINION AND ORDER #94803; that plaintiffs' motion to file an amended complaint is granted in all respects. Plaintiffs are directed to serve and file their amended complaint within ten days of the date of this order. (Signed by Judge Henry B. Pitman on 6/17/07) (dle) Modified on 6/20/2007 (Martin, Leslie). (Entered: 06/19/2007)
37 MEMO ENDORSEMENT : the application in the attached letter for an extension of time is denied for the reasons set forth in this endorsement. (Signed by Judge Henry B. Pitman on 6/15/07) (dle) (Entered: 06/19/2007)
38 AMENDED COMPLAINT amending 1 Complaint, against Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.Document filed by Susan Duling, Margaret Anderson. Related document: 1 Complaint, filed by Vanessa Hill, Margaret Anderson.(jco) (Entered: 06/25/2007)

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06/26/2007 06/29/2007
07/03/2007 07/03/2007 07/05/2007 07/09/2007 08/30/2007
11/21/2007 11/21/2007 12/17/2007

39 DECLARATION of Kevin J. Nash in Opposition re: 33 FIRST MOTION for Reconsideration re; 32 Order, Set Deadlines/Hearings,,.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Nash, Kevin) (Entered: 06/26/2007)
40 CERTIFICATE OF SERVICE of Summons and Amended Complaint,. Gristede's Operating Corp. served on 6/21/2007, answer due 7/11/2007; Red Apple Group, Inc. served on 6/21/2007, answer due 7/11/2007; Gristede's Foods, Inc. served on 6/21/2007, answer due 7/11/2007; Gristede's Delivery Service, Inc. served on 6/21/2007, answer due 7/11/2007; Gristede's Foods NY, Inc. served on 6/21/2007, answer due 7/11/2007; Gristede's NY, LLC served on 6/21/2007, answer due 7/11/2007; Namdor, Inc. served on 6/21/2007, answer due 7/11/2007. Service was made by Mail. Document filed by Susan Duling; Margaret Anderson. (Greene, Cara) (Entered: 06/29/2007)
41 ANSWER to Amended Complaint. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. Related document: 38 Amended Complaint, filed by Susan Duling, Margaret Anderson.(Nash, Kevin) (Entered: 07/03/2007)
43 CERTIFICATE OF SERVICE of Summons and Amended Complaint,. Service was made by Mail. Document filed by Susan Duling, Vanessa Hill, Margaret Anderson. (jp) (Entered: 07/06/2007)
42 AMENDED ANSWER to 38 Amended Complaint,. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Nash, Kevin) (Entered: 07/05/2007)
44 ORDER; defendant is directed to produce the data from the ABRA system taht it previously produc in PDF form in EXCEL or another or another format that can be read and analyzed by computer by no later than 7/13/2007. Plaintiff's motion for re−argument is granted. No later than 8/6/2007, defendant shall produce the employment histories for defendants' emloyees for the class period. (Signed by Judge Henry B. Pitman on 7/9/07) (kco) (Entered: 07/11/2007)
45 STIPULATION AND ORDER SETTING DEPOSITION AND PRODUCTION DATES EXTENDING DISCOVERY DEADLINES: 1. It is hereby ordered as follows: The deposition of Chris Lang will take place on 8/20/07 at 1:00 p.m. 2. The deposition of Debbie Clusan which will also be the 30(b)(6) deposition regarding electronic data, will take place on Tuesday, August 21st at 10:00 a.m. The deposition of Jim Monos will take place on Friday, August 31st, begining at 11 a.m. So Ordered. (Signed by Judge Henry B. Pitman on 8/17/07) (js) (Entered: 08/30/2007)
46 ENDORSED LETTER addressed to Magistrate Judge Henry B Pitman from Piper Hoffman dated 11/14/07 re: Request for an extension of the deadlne for expert discovery to 12/21/07. ENDORSEMENT: Application granted on consent. (Signed by Judge Henry B. Pitman on 11/20/07) (cd) (Entered: 11/21/2007)
Set Deadlines/Hearings: Expert Discovery due by 12/21/2007. (cd) (Entered: 11/21/2007)
47 ORDER no later than December 28, 2007, defendants are to identify to plaintiffs' counsel their three largest stores that opened before 1999. Defendants are to make all personnel files for the stores identified in response to paragraph 1 available for inspection and copying by plaintiffs' counsel no later than January 4, 2008. Defendants are to produce for deposition the managers of the three stores identified in response to paragraph 1 on dates mutually convenient to all counsel, said dates to be no later than January 25, 2008. Plaintiffs shall make all their Rules 26 (a) (2) disclosures concerning class certification issues no later than February 8, 2008. Defendants shall make all their Rule 26 (a) (2) disclosures concerning class certification issues no later than March 7, 2008. Plaintiff motion for class certification shall be served no later than April 11, 2008. If Counsel wish to depose any experts proffered with respect to class certification issues, they are directed to

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do so between February 9 and April 10, 2008. I shall set a schedule for the remaining matters in this case after it is determined whether the action will be certified as a class. Counsel are directed to advise my chambers promptly of Judge Swain's decision on the motion for class certification. SO ORDERED (Signed by Magistrate Judge Henry B. Pitman on 12/17/2007) Copies Transmitted By Chambers.(jmi) (Entered: 12/18/2007)
48 MEMO ENDORSEMENT: Plaintiff's application to compel discovery the addresses and telephone numbers of women who worked for Gristede's between July 8, 2002 and the present is granted. Since Caridad v. Metro N. Commuter R.R., 191 F. 3d 283, 292 (2d Cir. 1999) unmistakably teaches that anecdotal evidence can be relevant to the issue of class certification, the request is reasonably calculated to lead to the discovery of relevant evidence. Although my prior Order appears to have been contrary to Caridad and erroneous. See generally Henslee v. Union Planters Nat. Bank &Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting) ("Wisdom too often never comes, and so one ought not to reject it merely because it comes late.") Defendants are directed to provide he contact information by February 8, 2008. Defendants are not being ordered to produce Social Security numbers because it appears from Mr. Nash's January 29, 2008 letter, that information has already been provided. (Signed by Magistrate Judge Henry B. Pitman on 2/1/08) Copies Transmitted.(js) (Entered: 02/01/2008)
49 ENDORSED LETTER addressed to Magistrate Judge Henry Pitman from Cara E. Greene dated 2/7/08 re: counsel to plaintiffs asks for an extension of the deadlines for discovery and for their motion for class certification, due to delays in discovery. For these reasons, Plaintiffs request an extension until April 8th for the disclosure of their expert discovery; until May 7th for disclosure of Defendant's expert discovery; and until June 11th for the class certification motion. ENDORSEMENT: Application Granted. ( Discovery due by 4/8/2008., Motions due by 6/11/2008.) (Signed by Magistrate Judge Henry B. Pitman on 2/8/08) (djc) (Entered: 02/13/2008)
50 ORDER: It is hereby ordered that: 1. Defendants shall serve a formal, written response to plaintiff's Second request for Production of Documents, electronically stored Information and things no later than March 24, 2008. 2. Defendants shall complete their production of documents in response to Plaintiffs' Second Request no later than March 31, 2008. I strongly recommend that defendants number their document production so that documents can be referred in a simple, fail−safe method. to the extent responsive documents have been produced to plaintiffs' counsel in other litigations, the documents need not be produced a second time so long as responsive documents produced in other litigations are expressly identified by defendants in clear unambiguous manner. So Ordered. (Signed by Magistrate Judge Henry B. Pitman on 3/14/08) Copies transmitted.(js) . (Entered: 03/17/2008)
51 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Kevin J. Nash dated 4/21/08 re: counsel requests that the time for the Gristede defendants to submit their expert report be extended for 45 days from the current date of May 7, 2008 to June 23, 2008. The parties also request with consent that Plaintiffs' time to serve and file their motion for class certification be extended 45 days as well, from June 11, 2008 to July 28, 2008. ENDORSEMENT: Application Granted. (Motions due by 7/28/2008.) (Signed by Magistrate Judge Henry B. Pitman on 4/22/08) (djc) (Entered: 04/22/2008)
52 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Kevin J. Nash dated June 16, 2008 re: I write to request an additional extension of time from June 23, 2008 through July 31, 2008 for the Gristede's defendants to complete and file a rebuttal expert report. We are compelled to formally make this request to Your Honor because plaintiffs' counsel has refused to consent to our request for an extension. A copy of the parties' recent correspondence relating to the extension is attached hereto. ENDORSEMENT: APPLICATION GRANTED. NO FURTHER EXTENSIONS. (Signed by Magistrate Judge Henry B. Pitman on 6/17/08) (rw) (Entered: 06/18/2008)
53 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Cara E. Greene dated 6/19/08 re: counsel for plaintiffs request an extension of expert discovery until 8/31/08. ENDORSEMENT: Application Granted. (Signed by

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54 ENDORSED LETTER addressed to Magistrate Judge Henry Pitman from Piper Hoffman dated 8/7/08 re: Counsel requests a 30−day extension of time to complete expert discovery and move for class certification. ENDORSEMENT: Application Granted. (Signed by Magistrate Judge Henry B. Pitman on 8/14/08) (mme) (Entered: 08/15/2008)
55 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Piper Hoffman dated 9/16/2008 re: Counsel writes on behalf of both Defendants and Plaintiffs to request a 45−day extension of time, to 11/17/2008, to complete expert discovery and move for class certification. ENDORSEMENT: Application Granted. SO ORDERED. ( Discovery due by 11/17/2008.) (Signed by Magistrate Judge Henry B. Pitman on 9/17/2008) (tve) (Entered: 09/18/2008)
56 ENDORSED LETTER addressed to Magistrate Judge Henry Pitman from Kevin J. Nash dated 11/4/2008 re: Counsel for defendants writes with consent of plaintiff's counsel to respectfully request a further extension of the discovery deadline from 11/17/2008 to 12/31/2008. ENDORSEMENT: As required by paragraph 1(E) of my rule of practice, counsel is directed to submit a proposed revised scheduling order. This Order does not grant this application. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 11/5/2008) (tve) Modified on 11/6/2008 (tve). (Entered: 11/06/2008)
57 MOTION to Certify Class. Document filed by Susan Duling, Margaret Anderson. Responses due by 12/17/2008 Return Date set for 1/7/2009 at 12:00 PM.(Hoffman, Piper) (Entered: 11/18/2008)
58 MEMORANDUM OF LAW in Support re: 57 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Hoffman, Piper) (Entered: 11/18/2008)
59 AFFIDAVIT OF SERVICE of Plaintiffs' Motion for Class Certification served on Kevin J. Nash on 11/17/2008. Service was made by Mail. Document filed by Susan Duling, Margaret Anderson. (Hoffman, Piper) (Entered: 11/18/2008)
60 DECLARATION of Adam T. Klein in Support re: 57 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit A− B)(Hoffman, Piper) (Entered: 11/18/2008)
61 DECLARATION of Piper Hoffman in Support re: 57 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3−4, # 4 Exhibit 5− 6, # 5 Exhibit 7− Part 1, # 6 Exhibit 7− Part 2, # 7 Exhibit 8− 9, # 8 Exhibit 10, # 9 Exhibit 11, # 10 Exhibit 12− 19, # 11 Exhibit 20− 26, # 12 Exhibit 27, # 13 Exhibit 28, # 14 Exhibit 29, # 15 Exhibit 30, # 16 Exhibit 31, # 17 Exhibit 32, # 18 Exhibit 33− 35, # 19 Exhibit 36, # 20 Exhibit 37− 38, # 21 Exhibit 39− 40, # 22 Exhibit 41, # 23 Exhibit 42, # 24 Exhibit 43)(Hoffman, Piper) (Entered: 11/18/2008)
62 ORDER It is hereby ordered, that the above referenced motion is hereby Terminated for purposes of the Courts docket, without prejudice to reinstatement upon application, upon notice to adverse parties and accompanied by the requite certification; and it is further ordered that no response to the motion is required unless a reinstatement application is granted, in which case the time to respond to any adverse party shall be calculated from the date of service of the order of reinstatement and in accordance with Local Civil Rule 6.1 of the United States District Court for the Southern District of New York.. (Signed by Judge Laura Taylor Swain on 11/20/08) (mme) (Entered: 11/20/2008)
63 MOTION to Certify Class. Document filed by Susan Duling, Margaret Anderson.(Hoffman, Piper) (Entered: 11/25/2008)
64 ENDORSEMENT: My individual rules, which are available on the Court'sweb site, limit faxes to my chambers to ten pages in length. Although I routinely grant attorneys reasonable leeway on the page limit, the annexed submission is excessively long and cannot be considered to fall within an allowance for reasonable leeway. The annexed letter and its exhibits total 113 pages in length and

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were sent by fax without permission from my chambers. Since the annexed letter violates my rules by more than 1,000%, I have not read the attached letter and shall not consider it. This order is without prejudice to plaintiff's resubmitting the letter in a matter that is consistent with my rules, i.e., either by hand or by mail. (Signed by Magistrate Judge Henry B. Pitman on 11/26/2008) Copies Mailed By Chambers.(jpo) (Entered: 11/26/2008)
65 REVISED SCHEDULING ORDER: it is hereby ORDERED, that the prior scheduling Order of this Court dated December 17, 2007, as amended by Endorsed Letters dated February 13, 2008; April 22, 2008; June 18, 2008, June 25, 2008, August 15, 2008 and September 18. 2008 is hereby further amended, and the deadline for the completion of expert discovery and the filing of a motion for class certification is hereby extended from November 17, 2008 to December 31, 2008. Plaintiffs' application to Defendants subpoena to plaintiffs experts is denied. So Ordered (Signed by Magistrate Judge Henry B. Pitman on 12/5/08) (js) (Entered: 12/05/2008)
66 ENDORSED LETTER addressed to Judge Laura T. Swain from Cara E. Greene dated 12/18/2008 re: Requesting that the motion for class certification be withdrawn. ENDORSEMENT: The Clerk is requested to terminate docket event #63. (Signed by Judge Laura Taylor Swain on 12/18/2008) (jpo) (Entered: 12/19/2008)
67 ENDORSED LETTER addressed to Magistrate Judge Henry Pitman from Piper Hoffman dated 11/25/08 re: Counsel requests that the Court deny Defendants request for an additional extension of discovery since it will only serve to prejudice Plaintiffs. Counsel also requests that the Court quash the subpoenas of William Bielby and David Crawford since discovery has closed and Plaintiffs have already filed their motion for class certification. ENDORSEMENT: Magistrate Judge Pitman's individual rules, which are available on the Court's web site, limit faxes to his chambers to ten pages in length. Although he routinely grants attorneys reasonable leeway on the page limit, the annexed submission is excessively long and cannot be considered to fall within an allowance for reasonable leeway. The annexed letter and its exhibits total 113 pages in length and were sent by fax without permission from this chambers. Since the annexed letter violates my rules by more than 1,000%, Magistrate Judge Pitman has not read the attached letter and shall not consider it. This order is without prejudice to plaintiff's resubmitting the letter in a matter that is consistent with his rules, i.e., either by hand or by mail. (Signed by Magistrate Judge Henry B. Pitman on 11/25/08) Copies Mailed By Chambers.(mme) (Entered: 12/19/2008)
68 REVISED SCHEDULING ORDER FOR CERTAIN DEPOSITIONS AND PLAINTIFFS' CLASS CERTIFICATION MOTION: Class certification motion due 1/30/2009. Expert depositions 1/30/2009. Depositions of declarants named herein 1/30/2009. Other motions, including but not limited to motions in limine relating to evidentiary issues, must be filed by 5/27/2009. Preliminary conference − no later than 5/15/2009. Joint pre−trial statement − no later than 6/12/2009. Parties to file Joint requests to charge 6/19/2009. Proposed findings and fact and conclusions of law − 5 business days before Final Pre − Trial Conference 6/19/2009. Final Pre−Trial Conference − parties are directed to appear before The Honorable Laura Taylor Swain in Courtroom No. 17C, 500 Pearl St, NY, NY 10007 7/3/2009. (Signed by Magistrate Judge Henry B. Pitman on 1/13/2009) (tve) (Entered: 01/13/2009)
69 MOTION to Certify Class. Document filed by Susan Duling, Margaret Anderson.(Greene, Cara) (Entered: 01/30/2009)
70 MEMORANDUM OF LAW in Support re: 69 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Greene, Cara) (Entered: 01/30/2009)
71 DECLARATION of Adam T. Klein in Support re: 69 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit A and B)(Greene, Cara) (Entered: 01/30/2009)

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72 DECLARATION of Cara E. Greene in Support re: 69 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3−4, # 4 Exhibit 5−6, # 5 Exhibit 7 Part 1, # 6 Exhibit 7 Part 2, # 7 Exhibit 8−9, # 8 Exhibit 10, # 9 Exhibit 11, # 10 Exhibit 12−19, # 11 Exhibit 20−26, # 12 Exhibit 27, # 13 Exhibit 28, # 14 Exhibit 29, # 15 Exhibit 30, # 16 Exhibit 31, # 17 Exhibit 32, # 18 Exhibit 33−35, # 19 Exhibit 36, # 20 Exhibit 37−38, # 21 Exhibit 39−40, # 22 Exhibit 41, # 23 Exhibit 42, # 24 Exhibit 43)(Greene, Cara) (Entered: 01/30/2009)
73 AFFIDAVIT OF SERVICE of Plaintiffs' Motion for Class Certification served on Kevin J. Nash on 01/30/09. Document filed by Susan Duling, Margaret Anderson. (Greene, Cara) (Entered: 01/30/2009)
74 NOTICE OF APPEARANCE by Lewis M. Steel on behalf of Susan Duling, Margaret Anderson (Steel, Lewis) (Entered: 02/12/2009)
75 REVISED SCHEDULING ORDER: Defendants Opposition to Class Certification: March 9, 2009; Plaintiffs Reply for Class Certification: March 30, 2009. (Signed by Magistrate Judge Henry B. Pitman on 2/13/09) (mme) (Entered: 02/13/2009)
76 NOTICE OF APPEARANCE by Michael Jonathan Puma on behalf of Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc. (Puma, Michael) (Entered: 03/09/2009)
77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Text of Proposed Order)(Puma, Michael) (Entered: 03/09/2009)
78 MEMORANDUM OF LAW in Support re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/09/2009)
79 DECLARATION of Michael J. Puma in Support re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit A (6/11/07 Lupinetti to Crawford E−mail), # 2 Exhibit B [1 of 2] (Relevant portions of deposition of Dr. Crawford), # 3 Exhibit B [2 of 2] (Relevant portions of deposition of Dr. Crawford), # 4 Exhibit C (2/25/08 Lupinetti to Crawford E−mail), # 5 Exhibit D (11/10/07 Lupinetti to Crawford E−mail), # 6 Exhibit E (Relevant portions of the deposition of Dr. Bielby), # 7 Exhibit F (Relevant portions of the deposition of Plaintiff Duling), # 8 Exhibit G (Relevant portions of the deposition of James Monos), # 9 Exhibit H (Relevant portions of the deposition of Angelo Mendoza), # 10 Exhibit I (Relevant portions of the deposition of Mitchell Moore), # 11 Exhibit J (Relevant Portions of Dr. Bielby's 5/02 Report in Gosho v. U.S. Bancorp), # 12 Exhibit K (Relevant portions of Dr. Bielby's 5/2/95 report in Butler v. Home Depot))(Puma, Michael) (Entered: 03/09/2009)
80 DECLARATION of Emily Pankow in Support re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit 1 (Chart of Gristede's Applicants))(Puma, Michael) (Entered: 03/09/2009)
81 CERTIFICATE OF SERVICE of Motion to Strike Expert Report of Dr. Crawford, and supporting pleadings served on Plaintiffs on 3/9/09. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's

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Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/09/2009)
82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Text of Proposed Order)(Puma, Michael) (Entered: 03/09/2009)
83 MEMORANDUM OF LAW in Support re: 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/09/2009)
84 DECLARATION of Michael J. Puma in Support re: 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit A [1 of 2] (Relevant portions of the deposition of William T. Bielby), # 2 Exhibit A [2 of 2] (Relevant portions of the deposition of Willaim T. Bielby), # 3 Exhibit B (Relevant portions of article by Dr. Bielby), # 4 Exhibit C (3/6/05 Report of Dr. Bielby in Nelson v. Wal−Mart), # 5 Exhibit D (Relevant portions of deposition of Deborah Clusan), # 6 Exhibit E (CBA between Gristede's and Local 338), # 7 Exhibit F (CBA between Gristede's and Local 1500), # 8 Exhibit G (Relevant portions of the deposition of Angelo Mendoza), # 9 Exhibit H (Relevant portions of the deposition of James Monos), # 10 Exhibit I (Relevant portions of the deposition of Charles Criscuolo))(Puma, Michael) (Entered: 03/09/2009)
85 DECLARATION of Emily Pankow in Support re: 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit 1 (Chart of Gristede's Applicants))(Puma, Michael) (Entered: 03/09/2009)
86 CERTIFICATE OF SERVICE of Motion to Strike Expert Report of William T. Bielby, together with all supporting pleadings served on Plaintiffs on 3/9/09. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/09/2009)
87 MEMORANDUM OF LAW in Opposition re: 69 MOTION to Certify Class.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/09/2009)
88 DECLARATION of Michael J. Puma in Opposition re: 69 MOTION to Certify Class.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit A (Chart of Representative Portions of Declarants' Deposition Testimony), # 2 Exhibit B (Plaintiff Duling's Employment Application), # 3 Exhibit C (Plaintiff Anderson's Employment Application), # 4 Exhibit D (Plaintiff Anderson's EEOC Charge), # 5 Exhibit E (Plaintiff Duling's EEOC Charge), # 6 Exhibit F (Expert report of Dr. Bielby in Publix class action), # 7 Exhibit G (Relevant portions of Plaintiff Duling's deposition), # 8 Exhibit H (Relevant portions of Plaintiff Anderson's deposition), # 9 Exhibit I (Relevant portions of deposition of Deborah Clusan), # 10 Exhibit J (Relevant portions of deposition of Charles Criscuolo), # 11 Exhibit K (Relevant portions of deposition of Michael McCormick), # 12 Exhibit L (Relevant portions of deposition of James Monos), # 13 Exhibit M (Relevant portions of

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deposition of Mitchell Moore), # 14 Exhibit N (Relevant portions of deposition of Angelo Mendoza), # 15 Exhibit O (Relevant portions of deposition of Faustino Ferdinand), # 16 Exhibit P (Plaintiff Anderson's Interview Responses), # 17 Exhibit Q (Plaintiff Anderson's Disciplinary and Termination Notices), # 18 Exhibit R (Plaintiff Duling's Disciplinary Notices), # 19 Exhibit S (Deposition of Declarant Yesenia Santiago), # 20 Exhibit T (Deposition of Declarant Opalita Echevearria), # 21 Exhibit U (Deposition of Declarant Ebony Singleton), # 22 Exhibit V (Deposition of Declarant Lakeya Sewer))(Puma, Michael) (Entered: 03/09/2009)
89 DECLARATION of Emily Pankow in Opposition re: 69 MOTION to Certify Class.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit 1 (Chart of Gristede's Applicants))(Puma, Michael) (Entered: 03/09/2009)
90 CERTIFICATE OF SERVICE of Opposition to Motion for Class Certification, together with supporting declarations and exhibits thereto served on Plaintiffs on 3/9/09. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/09/2009)
91 MOTION to Amend/Correct the First Amended Complaint. Document filed by Susan Duling, Margaret Anderson.(Greene, Cara) (Entered: 03/17/2009)
92 MEMORANDUM OF LAW in Support re: 91 MOTION to Amend/Correct the First Amended Complaint.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Second Amended Complaint)(Greene, Cara) (Entered: 03/17/2009)
93 REVISED SCHEDULING ORDER: Plaintiffs' Motion to Amended the Complaint, March 17, 2009. Defendants' Opposition to Motion to Amended the Complaint March 31, 2009. Plaintiffs' Reply to Motion to Amend the Complaint April 7, 2009. Plaintiffs' Opposition to Motions to Exclude Expert Witnesses 4/16/2009. Plaintiffs' Reply on Class Certification 3/30/2009. Defendants' Sur−Reply on Class Certification, NONE TO BE FILED UNLESS ORDERED BY THE COURT. Defendants' Reply on Motion to Exclude Expert Witnesses 5/7/09. After the Court's decision on class certification, all non−expert witness discovery within 90 days after the Court's ruling on class certification. After close of witness discovery, court conference to discuss further proceedings TBD. Counsel should not have schedule trips that conflicted with the schedule set in the 2/13/09 order. To the extent there is burden resulting from the motion to amend, that is a burden of plaintiffs' own making. (Signed by Magistrate Judge Henry B. Pitman on 3/19/2009) (rw) (Entered: 03/23/2009)
94 REPLY MEMORANDUM OF LAW in Support re: 69 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Greene, Cara) (Entered: 03/30/2009)
95 DECLARATION of Cara E. Greene in Support re: 69 MOTION to Certify Class.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Errata 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Greene, Cara) (Entered: 03/30/2009)
96 MEMORANDUM OF LAW in Opposition re: 91 MOTION to Amend/Correct the First Amended Complaint.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 03/31/2009)
97 CERTIFICATE OF SERVICE of Memorandum of Law in Opposition to Motion for Leave to Amend the Amended Complaint served on Plaintiffs on March 31, 2009. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael)

Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 18 of 28

04/07/2009 04/07/2009 04/16/2009 04/16/2009 04/16/2009 04/16/2009
05/07/2009 05/07/2009
05/07/2009 05/07/2009
05/07/2009

(Entered: 03/31/2009)
98 REPLY MEMORANDUM OF LAW in Support re: 91 MOTION to Amend/Correct the First Amended Complaint.. Document filed by Susan Duling, Margaret Anderson. (Greene, Cara) (Entered: 04/07/2009)
99 DECLARATION of Cara E. Greene in Support re: 91 MOTION to Amend/Correct the First Amended Complaint.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit 2, # 2 Exhibit 1, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Greene, Cara) (Entered: 04/07/2009)
100 NOTICE OF APPEARANCE by Rachel Megan Bien on behalf of Susan Duling, Margaret Anderson (Bien, Rachel) (Entered: 04/16/2009)
101 MEMORANDUM OF LAW in Opposition re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford).. Document filed by Susan Duling, Margaret Anderson. (Bien, Rachel) (Entered: 04/16/2009)
102 MEMORANDUM OF LAW in Opposition re: 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Susan Duling, Margaret Anderson. (Bien, Rachel) (Entered: 04/16/2009)
103 DECLARATION of Rachel M. Bien in Opposition re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford)., 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Bien, Rachel) (Entered: 04/16/2009)
104 REPLY MEMORANDUM OF LAW in Support re: 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/07/2009)
105 DECLARATION of Michael J. Puma in Support re: 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit J (Portions of Dr. Bielby's Deposition Cited In Reply Brief), # 2 Exhibit K (Article Regarding Statisticians' Use Of Samples))(Puma, Michael) (Entered: 05/07/2009)
106 CERTIFICATE OF SERVICE of Reply Brief and supporting Declaration (and Exhibits thereto) served on Plaintiffs on May 7, 2009. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/07/2009)
107 REPLY MEMORANDUM OF LAW in Support re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/07/2009)
108 DECLARATION of Michael J. Puma in Support re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of

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05/07/2009 05/08/2009 05/08/2009 05/08/2009 05/08/2009
05/22/2009 05/22/2009 05/22/2009 06/01/2009 06/01/2009 01/08/2010

David L. Crawford).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Exhibit L (Portions of Dr. Crawford's Deposition Cited In Reply Brief), # 2 Exhibit M (Portions of Michael McCormick's Deposition Cited In Reply Brief), # 3 Exhibit N (Article Regarding Statisticians' Use Of Samples), # 4 Exhibit O (Portion of Dr. Bielby's Deposition Cited In Reply Brief))(Puma, Michael) (Entered: 05/07/2009)
109 CERTIFICATE OF SERVICE of Reply Brief and supporting Declaration (and exhibits thereto) served on Plaintiffs on May 7, 2009. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/07/2009)
110 MOTION for Protective Order. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc..(Puma, Michael) (Entered: 05/08/2009)
111 MEMORANDUM OF LAW in Support re: 110 MOTION for Protective Order.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/08/2009)
112 DECLARATION of Michael J. Puma in Support re: 110 MOTION for Protective Order.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/08/2009)
113 CERTIFICATE OF SERVICE of Motion for Protective Order, supporting Memorandum of Law, supporting Declaration of Michael Puma (and Exhibits A−I thereto) served on Plaintiffs on May 8, 2009. Service was made by Mail. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 05/08/2009)
114 MEMORANDUM OF LAW in Opposition re: 110 MOTION for Protective Order.. Document filed by Susan Duling, Margaret Anderson. (Steel, Lewis) (Entered: 05/22/2009)
115 DECLARATION of Lewis M. Steel in Opposition re: 110 MOTION for Protective Order.. Document filed by Susan Duling, Margaret Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Steel, Lewis) (Entered: 05/22/2009)
116 CERTIFICATE OF SERVICE of Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Protective Order and the Declaration of Lewis M. Steel in Opposition to Defendants' Motion for Protective Order served on Kevin J. Nash and Michael J. Puma on May 22, 2009. Service was made by FedEx. Document filed by Susan Duling, Margaret Anderson. (Steel, Lewis) (Entered: 05/22/2009)
117 REPLY MEMORANDUM OF LAW in Support re: 110 MOTION for Protective Order.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Attachments: # 1 Certificate of Service)(Puma, Michael) (Entered: 06/01/2009)
118 DECLARATION of Michael J. Puma in Support re: 110 MOTION for Protective Order.. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Puma, Michael) (Entered: 06/01/2009)
119 OPINION AND ORDER. #98439 Accordingly, for all the foregoing reasons, plaintiffs' motion for leave to file an amended complaint (Doc. No. 91 filed 3/17/09) is granted, and as further set forth. (Signed by Magistrate Judge Henry B. Pitman on 1/8/10) (rjm) Modified on 1/11/2010 (ajc). (Entered: 01/08/2010)

Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 20 of 28

01/19/2010 02/18/2010 02/18/2010 02/26/2010 02/26/2010 03/04/2010 03/05/2010
03/08/2010

120 SECOND AMENDED COMPLAINT amending 38 Amended Complaint, against Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc., John Catsimatidis.Document filed by Susan Duling, Lakeya Sewer, Margaret Anderson. Related document: 38 Amended Complaint, filed by Susan Duling, Margaret Anderson. (Attachments: # 1 affidavit of service)(ama) (Entered: 01/21/2010)
121 NOTICE of Notice Of Supplemental Authority re: 83 Memorandum of Law in Support of Motion, 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby).. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc.. (Pankow, Emily) (Entered: 02/18/2010)
122 CERTIFICATE OF SERVICE of Notice of Supplemental Authority served on Plaintiff on 2/18/2010. Service was made by MAIL. Document filed by Gristede's Operating Corp., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC. (Pankow, Emily) (Entered: 02/18/2010)
123 ANSWER to Amended Complaint. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc., John Catsimatidis. Related document: 120 Amended Complaint, filed by Lakeya Sewer, Susan Duling, Margaret Anderson.(Pankow, Emily) (Entered: 02/26/2010)
124 CERTIFICATE OF SERVICE of Answer served on PLAINTIFFS on 2/26/10. Service was made by UPS MAIL. Document filed by Gristede's Operating Corp., Red Apple Group, Inc., Gristede's Foods, Inc., Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's NY, LLC, Namdor, Inc., John Catsimatidis. (Pankow, Emily) (Entered: 02/26/2010)
125 ORDER, In the light of the amendment of the Complaint to add Plaintiff Sewer and Defendant Catsimatidis, the Clerk of Court is respectfully directed to change the caption in this action to read as set forth above. (Signed by Judge Laura Taylor Swain on 3/4/10) (cd) (Entered: 03/04/2010)
126 LETTER addressed to Judge Laura Taylor Swain from Cara E. Greene dated 2/25/2010 re: Counsel for Plaintiffs write in response to Defendants' Notice of Supplemental Authority, filed on 2/18/2010, attaching the decision in EEOC v. WalMart Stores, Inc. 6:01−cv−339−KKC, 2010 U.S. Dist. LEXIS 13192 (E.D. Ky. Feb. 16, 2010). That decision, relating to sexual discrimination matter, excluded one of Plaintiffs' experts in this case, Dr. William Bielby, on the ground that his opinion did not reach the ultimate fact issue of whether WalMart intended to discriminate against women. For the reasons stated in Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Strike the Expert Report of William T. Bielby, dated 4/16/2009 (Docket No. 102), and Plaintiffs' Memorandum of Law in Support of Motion for Class Certification, dated 1/30/2009, (Docket No. 70), and Reply Memorandum of Law in Support of Plaintiffs' Motion for Class Certification, dated 3/30/2009, (Docket No. 94), the WalMart decision adds nothing to Gristede's misguided arguments and was wrongly decided for the reasons and precedents set forth in those memoranda. Document filed by Susan Duling, Lakeya Sewer, Margaret Anderson.(tro) (Entered: 03/08/2010)
Motion No Longer Referred: re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford) filed by Red Apple Group, Inc., Gristede's Operating Corp., Gristede's Foods NY, Inc., Gristede's Delivery Service, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Namdor, Inc., 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby) filed by Red Apple Group, Inc., Gristede's Operating Corp., Gristede's Foods NY, Inc., Gristede's Delivery Service, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Namdor, Inc.. (ad) (Entered: 03/08/2010)

Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 21 of 28

03/08/2010
03/30/2010 05/03/2010 02/14/2011 04/15/2011 05/10/2011 05/11/2011 05/13/2011

127 OPINION AND ORDER, # 98638 that for the foregoing reasons set forth in this Order, the Court denies Defendants' motions to strike the expert reports of William T. Bielby and David L. Crawford, and grants Plaintiffs' motion to certify, pursuant to Fed. R. Civ. P. 23(b)(2), a class consisting of "all current and former female Gristede's employees who worked for Gristede's at any time between November 2, 2004 and the date of final judgment in this matter" with respect to Plaintiffs' claims for injunctive and declaratory relief based on Defendants' alleged systemic pattern or practice intentional discrimination, and the allegedly disparate impact of Defendants' hiring, promotion and compensation policies. Plaintiffs' motion for class certification is denied without prejudice in all other respects. The parties are directed to proceed in accordance with Judge Pitman's Order of March 19,2009. (Docket entry no. 93.) This Opinion and Order resolves docket entry nos. 69, 77, and 82. re: 77 MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). MOTION to Strike Document No. [72 (Exh. 29)] (Proposed Expert Report of David L. Crawford). filed by Red Apple Group, Inc., Gristede's Operating Corp., Gristede's Foods NY, Inc., Gristede's Delivery Service, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Namdor, Inc., 69 MOTION to Certify Class. filed by Susan Duling, Margaret Anderson, 82 MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). MOTION to Strike Document No. [72 (Exh. 28)] (Expert Report of William T. Bielby). filed by Red Apple Group, Inc., Gristede's Operating Corp., Gristede's Foods NY, Inc., Gristede's Delivery Service, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Namdor, Inc.. (Signed by Judge Laura Taylor Swain on 3/8/10) (pl) Modified on 3/9/2010 (ajc). (Entered: 03/08/2010)
128 OPINION AND ORDER #98762 that for the reasons set forth herein defendants' motion is granted. The specific provisions of the Protective Order are outlines as further set forth herein. Defendants are directed to produce any personnel files they have not yet produced from the three largest stores going back to 1999 within fifteen days of the date of this Opinion and Order. (Signed by Magistrate Judge Henry B. Pitman on 3/30/10) Copies sent by chambers.(dle) Modified on 3/31/2010 (ajc). (Entered: 03/30/2010)
129 STIPULATION AND ORDER STAYING DISCOVERY: It is hereby stipulated and agreed by and between the parties that all proceedings including formal discovery, will be stayed pending mediation of this action, as set forth in this Stipulation and Order. (Signed by Magistrate Judge Henry B. Pitman on 4/28/2010) (jpo) (Entered: 05/03/2010)
130 ENDORSED LETTER: addressed to Magistrate Judge Henry B. Pitman from Cara E. Greene dated 2/8/2011 re: Counsel for plaintiffs requests that the Court continue to stay discovery pursuant to the Court's May 3, 2010 Order while the parties seek a resolution of this matter. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Henry B. Pitman on 2/11/11) (js) (Entered: 02/14/2011)
131 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Rachel Bien dated April 14, 2011 re: We represent the Plaintiffs and the class in the above−referenced matter. We write to inform the Court that the parties' settlement negotiations have reached an impasse. Accordingly, we respectfully request that the Court lift the stay that it ordered on May 3, 2010, so that the parties can resume litigation. ENDORSEMENT: The stay of Discovery previously entered in this matter is hereby vacated. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 4/15/2011) (jmi) Modified on 4/21/2011 (jmi). (Entered: 04/18/2011)
132 NOTICE OF APPEARANCE by Mariko Hirose on behalf of Margaret Anderson, Susan Duling, Lakeya Sewer (Hirose, Mariko) (Entered: 05/10/2011)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 5/11/2011. Order to follow. (mbe) (Entered: 05/13/2011)
133 SCHEDULING ORDER: Dispositive Motions due by 12/31/2011. Fact discovery due by 9/30/2011. Expert Discovery due by 10/31/2011. Deposition due by 12/15/2011, and as further set forth in this Order. (Signed by Magistrate Judge Henry B. Pitman on 5/13/2011) Copies Sent By Chambers. (tro) (Entered:

Case: 1:06-cv-10197 As of: 11/10/2016 02:52 PM EST 22 of 28

05/16/2011 05/16/2011 05/20/2011
05/20/2011
06/10/2011 06/21/2011 06/21/2011 06/21/2011
06/21/2011 06/24/2011 06/27/2011 06/27/2011

05/13/2011)
134 NOTICE OF APPEARANCE by Christopher Alan Parlo on behalf of Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc. (Parlo, Christopher) (Entered: 05/16/2011)
135 NOTICE OF APPEARANCE by Amanda Nicole Slatin on behalf of Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc. (Slatin, Amanda) (Entered: 05/16/2011)
136 TRANSCRIPT of Proceedings re: status conference held on 5/12/2011 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/13/2011. Redacted Transcript Deadline set for 6/23/2011. Release of Transcript Restriction set for 8/22/2011.(tro) (Entered: 05/20/2011)
137 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a status conference proceeding held on 5/12/2011 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 05/20/2011)
138 NOTICE OF APPEARANCE by Delyanne Barros on behalf of Margaret Anderson, Susan Duling, Lakeya Sewer (Barros, Delyanne) (Entered: 06/10/2011)
139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp.. Document filed by John Catsimatidis, Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc.. (Attachments: # 1 Certificate of Service)(Slatin, Amanda) (Entered: 06/21/2011)
140 MEMORANDUM OF LAW in Support re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by John Catsimatidis, Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc.. (Slatin, Amanda) (Entered: 06/21/2011)
141 AFFIDAVIT of Amanda N. Slatin in Support re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by John Catsimatidis, Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Slatin, Amanda) (Entered: 06/21/2011)
142 AFFIDAVIT of Robert Zorn in Support re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by John Catsimatidis, Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc.. (Slatin, Amanda) (Entered: 06/21/2011)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 6/24/2011. (ft) (Entered: 06/27/2011)
143 MEMORANDUM OF LAW in Opposition re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Bien, Rachel) (Entered: 06/27/2011)
144 DECLARATION of Rachel Bien in Opposition re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bien, Rachel) (Entered: 06/27/2011)

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06/29/2011 07/01/2011 07/07/2011 07/07/2011 07/13/2011 07/13/2011 07/18/2011
08/03/2011 08/10/2011

145 AFFIDAVIT of Sharon Konzelman in Support re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by White Rose Incorporated. (Banerjee, Nabeena) (Entered: 06/29/2011)
146 ENDORSED LETTER addressed to Magistrate Judge Henry H. Pitman from Christopher A. Parlo dated 6/30/11 re: counsel for defendants request a brief extension of time, until Thursday, July 7, 2011, to submit our reply memorandum, which is currently due Tuesday. July 5, 2011, with regard to Defendants' Motion to Quash Subpoenas directed to White Rose, Inc. and Wakefern Food Corp. ENDORSEMENT: Application Granted. ( Replies due by 7/7/2011.) (Signed by Magistrate Judge Henry B. Pitman on 6/30/11) (pl) Modified on 7/1/2011 (pl). (Entered: 07/01/2011)
147 REPLY MEMORANDUM OF LAW in Support re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by John Catsimatidis, Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc.. (Attachments: # 1 Certificate of Service)(Slatin, Amanda) (Entered: 07/07/2011)
148 DECLARATION of Amanda N. Slatin, Esq. in Support re: 139 MOTION to Quash Subpoenas Directed to White Rose, Inc. and Wakefern Food Corp... Document filed by John Catsimatidis, Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Slatin, Amanda) (Entered: 07/07/2011)
149 TRANSCRIPT of Proceedings re: telephone conference held on 6/24/2011 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/8/2011. Redacted Transcript Deadline set for 8/18/2011. Release of Transcript Restriction set for 10/14/2011.(tro) (Entered: 07/13/2011)
150 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a telephone conference proceeding held on 6/24/2011 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(tro) (Entered: 07/13/2011)
151 STIPULATION TO WITHDRAW SUBPOENAS AND MOTION TO QUASH:IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel for the Plaintiffs and Defendants in the above−captioned action that: 1.Plaintiffs hereby withdraw the subpoenas that they served on White Rose, Inc. ("White Rose") and Wakefern Food Corp. ("Wakefern") on June 13, 2011; 2.In exchange for Plaintiffs' withdrawal of the subpoenas. Defendants have agreed to provide Plaintiffs with certain agreements (with proprietary information redacted and subject to a confidentiality agreement) Gristede's' Foods, Inc. entered into with Wakefern, have stipulated to certain facts regarding those agreements and the relationship with Wakefern, and will withdraw their motion to quash, filed on June 21, 2011. (Signed by Magistrate Judge Henry B. Pitman on 7/18/11) (js) Modified on 7/18/2011 (js). (Entered: 07/18/2011)
152 ORDER. Accordingly, the draft protective order submitted by defendants with their letter dated July 6, 2011 is approved provided the following sentence is added at the end of numbered paragraph 2: "If Plaintiffs' challenge to defendants' designation is successful, plaintiffs shall be awarded their reasonable attorneys' fees." Defendants are directed to submit an amended proposed Protective Order. (Signed by Magistrate Judge Henry B. Pitman on 8/3/11) Copies Sent By Chambers. (rjm) (Entered: 08/03/2011)
153 REVISED SCHEDULING ORDER: All remaining fact discovery shall completed no later than 12/30/11. If plaintiff wish to supplement their expert disclosures, they are directed to do so no later than: 12/30/11. Defendants are to complete their

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08/10/2011 11/23/2011 11/29/2011
11/29/2011
11/29/2011 11/29/2011 12/28/2011
01/23/2012 02/16/2012

expert disclosures not later than: 2/29/12. If Defendants' expert disclosures raise any new matters, Plaintiffs may serve reply expert reports limited to those new matters no later than:3/15/12. Depositions of expert witnesses are to be completed no later than: 4/16/12. Dispositive motions, if any, shall be served and filed no later than 4/30/12. (Signed by Magistrate Judge Henry B. Pitman on 8/10/2011) (jfe) (Entered: 08/10/2011)
154 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Magistrate Judge Henry B. Pitman on 8/10/2011) (jfe) (Entered: 08/10/2011)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 11/23/2011. A follow up Telephone Conference set for 11/29/2011 at 03:00 PM before Magistrate Judge Henry B. Pitman. (rjm) (Entered: 11/28/2011)
155 ORDER: A conference having been held on November 23, 2011, during which various discovery disputes were discussed, for the reasons stated on the record in open court, it is hereby ORDERED that: Plaintiffs' application to compel defendants to produce the names of female employees who expressed interest in (1) a promotion to management or a full−time, or (2) a different position at Gristede's supermarkets in response to a registration of interest survey that defendants instituted in approximately April or May 2011 is granted. (Signed by Magistrate Judge Henry B. Pitman on 11/29/2011) Copies Sent By Chambers. (mro) (Entered: 11/29/2011)
156 REVISED SCHEDULING ORDER:All fact discovery (except with respect to Defendants' production of emails and any depositions related thereto) shall be completed no later than: 12/30/2011. Fact discovery with respect to Defendants' production of emails and any depositions related thereto shall be completed no later than: 1/31/2012. Plaintiffs shall move for summary judgment and make expert disclosures not later than 2/29/2012. Defendants' opposition to Plaintiffs' motion for summary judgment and any expert disclosures shall be filed not later than: Depositions of Plaintiffs' expert(s) shall also be completed no later than: 4/18/2012. Plaintiffs' reply in support of summary judgment and any rebuttal expert reports shall be filed no later than: 5/16/2012. (Signed by Magistrate Judge Henry B. Pitman on 11/29/2011) (mro) (Entered: 11/29/2011)
Set/Reset Deadlines: Deposition due by 4/18/2012. (mro) (Entered: 11/29/2011)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 11/29/2011. (js) (Entered: 12/08/2011)
157 REVISED SCHEDULING ORDER: All fact discovery (including with respect to Defendants' production of emails and any depositions related thereto) shall be completed no later than: January 31, 2012; Plaintiffs shall move for summary judgment and make expert disclosures not later than: February 29, 2012;Defendants' opposition to Plaintiffs' motion for summary judgment and any expert disclosures shall be filed not later than: Depositions of Plaintiffs' expert(s) shall also be completed no later than: April 18, 2012 Plaintiffs' reply in support of summary judgment and any rebuttal expert reports shall be filed no later than: Plaintiffs' depositions of Defendants' experts shall also be completed no later than: June 6, 2012. The pretrial order in the form required by Judge Swain's rules, along with all other submissions required by Judge Swain's rules, shall be filed: 30 days after the decision on motion(s) for summary judgment, if such documents are still necessary after the resolution of such motion(s). (Motions due by 2/29/2012. Responses due by 4/18/2012. Replies due by 6/6/2012. Deposition due by 1/31/2012. Fact Discovery due by 1/31/2012). (Signed by Magistrate Judge Henry B. Pitman on 12/28/2011) (djc) (Entered: 12/28/2011)
158 REVISED SCHEDULING ORDER: Summary Judgment Motions due by 4/11/2012; Defendants' Responses due by 5/30/2012; Plaintiffs' Replies due by 7/18/2013. All Fact Discovery due by 3/16/2012. (Signed by Magistrate Judge Henry B. Pitman on 1/23/2012) (djc) (Entered: 01/23/2012)
159 NOTICE TO WITHDRAW AS ATTORNEY. Plaintiffs, by and through their attorneys, hereby notify the Court that Mariko Hirose is no longer associated with

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the law firm of Outten &Golden LLP and should be withdrawn as attorney of record in the above−captioned matter. The undersigned requests that all further electronic notices to Mariko Hirose in the above−referenced matter be terminated. Plaintiffs continue to be represented by the undersigned counsel Outten &Golden LLP. Annexed is the Declaration of Adam T. Klein in Support of Motion to Withdraw as Attorney. Attorney Mariko Hirose terminated. (Signed by Judge Laura Taylor Swain on 2/16/2012) (rjm) (Entered: 02/16/2012)
160 REVISED SCHEDULING ORDER: Motion for summary judgment due by 5/14/2012. Responses due by 7/6/2012. Replies due by 7/24/2012. Plaintiffs' Depositions of Defendants' experts due by 7/24/2012. All Fact Discovery due by 4/20/2012, and as further set forth. (Signed by Magistrate Judge Henry B. Pitman on 3/23/2012) (rjm) (Entered: 03/23/2012)
161 ENDORSED LETTER addressed to Magistrate Judge Henry B. Pitman from Rachel Bien dated 4/13/2012 re: Counsel writes jointly with Defendants to respectfully request a one−month stay of litigation in order for the parties to continue engaging in settlement negotiations. ENDORSEMENT: APPLICATION GRANTED.(Signed by Magistrate Judge Henry B. Pitman on 4/17/2012) (djc) (Entered: 04/18/2012)
162 ENDORSED LETTER addressed to Judge Laura Taylor Swain and Magistrate Judge Henry B. Pitman from Lewis M. Steel dated 7/24/2012 re: Counsel ask that the Court also approve an extension of discovery and the pretrial procedure issues to run on the same time schedule as the present schedule if the Court enters an order denying final approval of the settlement. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Henry B. Pitman on 7/25/2012) (jfe) (Entered: 07/25/2012)
163 ENDORSED LETTER addressed to Magistrate Judge Henry Pitman from Delyanne D. Barros dated 8/1/2012 re: Class counsel requests that the current deadline to file their Motion for Preliminary Approval of settlement be extended to Friday, August 10, 2012. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Henry B. Pitman on 8/2/2012) (ago) (Entered: 08/07/2012)
Set/Reset Deadlines: Motions due by 8/10/2012. (ago) (Entered: 08/09/2012)
164 MOTION for Settlement Notice of Motion for Preliminary Approval of Settlement. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A)(Bien, Rachel) (Entered: 08/10/2012)
165 MEMORANDUM OF LAW in Support re: 164 MOTION for Settlement Notice of Motion for Preliminary Approval of Settlement.. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Bien, Rachel) (Entered: 08/10/2012)
166 DECLARATION of Rachel Bien in Support re: 164 MOTION for Settlement Notice of Motion for Preliminary Approval of Settlement.. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bien, Rachel) (Entered: 08/10/2012)
167 ORDER. The Court has received the motion requesting preliminary approval of settlement. Plaintiffs' Counsel is directed to supplement the application within 14 days by providing a revised proposed order and related documents reflecting the revisions as further specified in this order. (Signed by Judge Laura Taylor Swain on 9/14/2012) (rjm) (Entered: 09/17/2012)
168 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Delyanne D. Barros dated 9/28/2012 re: We are Class Counsel in the above−referenced matter. We write to respectfully request an extension of Plaintiffs' deadline to supplement their Motion For Preliminary Approval of the Settlement pursuant to the Court's Order issued on September 17, 2012. The current deadline is Monday, October 1, 2012. We request that the Court extend this deadline to Friday, October 5, 2012. ENDORSEMENT: The request is granted. (Signed by Judge Laura Taylor Swain on 9/28/2012) (djc) (Entered: 10/01/2012)
169 DECLARATION of Rachel Bien in Support re: 164 MOTION for Settlement Notice of Motion for Preliminary Approval of Settlement.. Document filed by

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Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Bien, Rachel) (Entered: 10/05/2012)
170 ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, APPOINTMENT OF PLAINTIFFS' COUNSEL AS CLASS COUNSEL, AND APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION SETTLEMENT PROCEDURE granting 164 Motion for Settlement. Based upon the Court's review of the Motion for Preliminary Approval and with the modifications requested in the Court's September 17, 2012 Order, the Court grants preliminary approval of the settlement memorialized in the Term Sheet, attached to the Declaration of Rachel Bien, ECF No. 166 ("Bien Decl.") as Exhibit B. The Court hereby adopts the enclosed settlement approval process. No sooner than 100 days of the date of this Order, the Court will hold afinal fairness hearing on March 15, 2013 at 3:00 p.m. at the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York, in Courtroom 11C. (Signed by Judge Laura Taylor Swain on 11/15/2012) (ft) (Entered: 11/16/2012)
Set/Reset Hearings: Fairness Hearing set for 3/15/2013 at 03:00 PM in Courtroom 11C, 500 Pearl Street, New York, NY 10007 before Judge Laura Taylor Swain. (ft) (Entered: 11/16/2012)
171 ENDORSED LETTER: addressed to Judge Laura Taylor Swain from Christopher A. Parlo dated 11/29/2012 re: Defendants request a brief extension of the deadline to send out the settlement notice to class members until December 4, 2012 in order to complete a final review of the contents of the notice that the Court previously approved. Plaintiffs consent to the brief extension. ENDORSEMENT: The request is granted. So Ordered. (Signed by Judge Laura Taylor Swain on 11/30/2012) (js) (Entered: 12/03/2012)
172 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Christopher A. Parlo dated 12/3/2012 re: Defense counsel writes that Plaintiffs' counsel agreed to permit one final review of the proposed notice to be sent to putative settlement class participants in the above−reference matter. The parties have agreed to a few small, additional changes which are noted in an attached red−lined copy of the notice which the Court previously approved. We have also attached a clean copy of the revised notice with the changes included. The parties respectfully ask for the Court's approval to send out the revised notice. ENDORSEMENT: The revisions are approved except as noted on page 2 of the attached red−lined version. So Ordered. (Signed by Judge Laura Taylor Swain on 12/5/2012) (ago) Modified on 12/20/2012 (ago). (Entered: 12/05/2012)
173 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Delyanne D. Barros dated 2/14/2013 re: We write to respectfully request an extension of Plaintiffs' deadline to file their Motion For Final Approval of the Settlement pursuant to the Court's Order issued on November 15,2012. The parties are currently finalizing the terms of the injunctive relief. The current deadline is Friday, February 22, 2013. We request that the Court extend this deadline to Friday, March 1, 2013. ENDORSEMENT: The extension is Granted. SO ORDERED., ( Motions due by 3/1/2013.) (Signed by Judge Laura Taylor Swain on 2/15/2013) (ama) (Entered: 02/15/2013)
174 MOTION for Settlement Final Approval. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A)(Bien, Rachel) (Entered: 03/01/2013)
175 MEMORANDUM OF LAW in Support re: 174 MOTION for Settlement Final Approval.. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Bien, Rachel) (Entered: 03/01/2013)
176 MOTION to Approve Class Representative Service Awards. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer.(Bien, Rachel) (Entered: 03/01/2013)

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177 MEMORANDUM OF LAW in Support re: 176 MOTION to Approve Class Representative Service Awards.. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Bien, Rachel) (Entered: 03/01/2013)
178 DECLARATION of Rachel Bien in Support re: 174 MOTION for Settlement Final Approval., 176 MOTION to Approve Class Representative Service Awards.. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bien, Rachel) (Entered: 03/01/2013)
Minute Entry for proceedings held before Judge Laura Taylor Swain: Fairness Hearing held on 3/15/2013. FAIRNESS HEARING held. All motions are reserved. Parties are directed to submit a revised proposed final order. (lan) (Entered: 03/15/2013)
179 TRANSCRIPT of Proceedings re: Settlement held on 3/15/2013 before Judge Laura Taylor Swain. Court Reporter/Transcriber:Ruth Ann Hager. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/21/2013. Redacted Transcript Deadline set for 7/1/2013. Release of Transcript Restriction set for 8/29/2013.(sdi) (Entered: 05/28/2013)
180 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Settlement proceeding held on 03/15/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(sdi) (Entered: 05/28/2013)
181 LETTER addressed to Judge Laura Taylor Swain from Christopher A. Parlo dated 6/18/2013 re: Pursuant to 28 U.S.C. § 1715(d), "[a]n order giving final approval of a proposed settlement may not be issued earlier than 90 days" after notice has been given. The 90 day period expired on June 15, 2013 and, accordingly, the Court may now grant final approval of the proposed settlement in this matter. Document filed by Gristede's Delivery Service, Inc., Gristede's Foods NY, Inc., Gristede's Foods, Inc., Gristede's NY, LLC, Gristede's Operating Corp., Namdor, Inc., Red Apple Group, Inc. (ft) (Entered: 06/20/2013)
182 ORDER GRANTING PLAINTIFFS' MOTION FOR CERTIFICATION OF THE SETTLEMENT CLASS, FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT, AND CLASS REPRESENTATIVE SERVICE AWARDS AND INDIVIDUAL AWARDS granting 174 Motion for Settlement; granting 176 Motion to Approve Class Representative Service Awards. The Court certifies the following class, under Federal Rule of Civil Procedure 23(e), for settlement purposes only: all women who worked for Gristede's for at least 90 days in one or more of its stores in New York at any time between November 2, 2004 and November 15, 2012. Plaintiffs meet all of the requirements for class certification under Fed. R. Civ. P. 23(a) and 23(b)(2) and (3) for the reasons stated in the Preliminary Approval Order, which the Court hereby incorporates into this Order. The Court retains jurisdiction over this action for the purpose of enforcing the corrective measures, overseeing the distribution of the Settlement Fund, and to resolve any issues relating to Class Counsel's award of attorneys' fees and costs, including in the event that the parties are unable to reach an agreement. The parties shall abide by all terms of this Order. (Signed by Judge Laura Taylor Swain on 6/19/2013) (ft) Modified on 6/20/2013 (ft). (Entered: 06/20/2013)
183 ORDER: WHEREAS the Court approved the settlement of this matter on June 19, 2013 (docket entry no. 182), it is hereby requested that the Clerk of Court close this case. (Signed by Judge Laura Taylor Swain on 8/14/2013) (ft) (Entered: 08/15/2013)
184 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Delyanne D. Barros dated 9/3/2013 re: Counsel requests that the Court allow the matter to remain open until the issue of attorneys' fee, costs, and expenses is resolved. ENDORSEMENT: Jurisdiction of the attorneys' fees issues has been retained. It is

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not necessary to reopen the case on the docket at this juncture. (Signed by Judge Laura Taylor Swain on 9/5/2013) (ft) Modified on 9/10/2013 (ft). (Entered: 09/06/2013)
185 ENDORSED LETTER: addressed to Judge Laura Taylor Swain from Emily R. Pankow dated 10/15/2013 re: The parties request an extension of their current deadline to mediate to November 30, 2013 And then if the parties are unable to reach a mediated agreement, Plaintiffs will file a motion letter fees, costs, and expenses within 30 days of providing written notice that mediation has failed in accordance with the deadlines set forth in the Court's Final Approval Order, ECF No. 182 paragraph 27 the mediation is successful, Plaintiffs will file a motion for approval of the negotiated resolution ENDORSEMENT: The requested extension id granted. So Ordered. (Signed by Judge Laura Taylor Swain on 10/15/2013) (js) Modified on 10/16/2013 (js). (Entered: 10/16/2013)
186 ENDORSED LETTER addressed to Judge Laura Taylor Swain from Emily R. Pankow dated 11/27/2013 re: Counsel for defendants are respectfully requesting an extension of time by which to mediate the Plaintiffs' fee request from November 30th to January 30th. ENDORSEMENT: The extension request is granted. (Signed by Judge Laura Taylor Swain on 12/2/2013) (rsh) (Entered: 12/03/2013)
187 LETTER addressed to Judge Laura Taylor Swain from Rachel Bien dated 12/12/2013 re: Delay in mailing of settlement awards to class members. Document filed by Susan Duling.(cd) (Entered: 12/13/2013)
188 MOTION for Attorney Fees . Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A)(Bien, Rachel) (Entered: 05/20/2014)
189 MEMORANDUM OF LAW in Support re: 188 MOTION for Attorney Fees . . Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Bien, Rachel) (Entered: 05/20/2014)
190 DECLARATION of Rachel M. Bien in Support re: 188 MOTION for Attorney Fees .. Document filed by Margaret Anderson, Susan Duling, Lakeya Sewer. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bien, Rachel) (Entered: 05/20/2014)
191 ORDER GRANTING PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND COSTS: granting 188 Motion for Attorney Fees. The Court hereby approves the parties' settlement of Class Counsel's attorneys' fees and costs in the amount of $1,500,000.00, and as further set forth in this document. (Signed by Judge Laura Taylor Swain on 6/5/2014) (cd) (Entered: 06/06/2014)