UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT

'-'"., .. ' '
ZJ:; ::H ?0 o 2" 22

CHERIE EASTERLING, individually and on behalfof all others similarly situated
Plaintiffs,

CLASS ACTION COMPLAINT
CIVIL ACTION NO. 3/6(cv'f.J' (J\:#)

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION.
Defendant.

May 30,2008

Individual and Representative PlaintiffCherie Easterling (hereinafter "Plaintiff' or "Easterling"), on behalfof herself and all others similarly situated, alleges, upon pcrwnal knowledge as to herself and upon info=tion and belief as to other matters, as follows:
NATURE OF THE CLATM I. Defendant State of Connecticut Department of Correction ("D.O.C.") manages eighteen correctional facilities located throughout the State ofConne<.-1icut. The D.O.C. discriminates against female applicants for the position of Corrections Officer ("C.O.") by utilizing a hiring-selection process that has a gender-based advcr.se impact in violation ofTitle Vn of the Civil Rights Act ofl964, 42 U.S.C. §§ 2000c et seq. 2. In order to secure employment as a C.O. with the D.O.C., applicants arc required to pass a written exam, a physical fitness test, a criminal background invcstib'lltion, and an interview.
3. During the class-liability period, the D.O.C. utilized a tOur-part physical fitness test that included a sit and reach test, a one-minute sit-up test, a one-minute push up test, and a

timed 1.5-milc run test. In order to pass the physical fitness test ("'test~), the D.O.C. required applicants to meet a minimum sex-by-age standard, whereby an applicant's pass/fail status was assessed according to the applicant's sex and age. On average, female applicants for the C.O. position failed the physical fitness test at a rate that was higher than their male counterparts. This observed disparity in pass/fail rates by gender is statistically significant both in the aggregate and lbr each test administered by the D.O.C.
4. ·n1c D.O.C. was aware of this adverse impa<..i as early as September 2004, prior to the administration ofthe October 2004 exam. The D.O.C. chose to administer the exam and utilize its results for hiring C.O.s, despite its adverse impact on women. Since learning of the test's adverse impact on women, the D.O.C. utilized this physical fitness test on three more occasions, in October 2004, June 2006, and October 2006.
5. Every administration of the test since 2001 has resulted in a disparate impact on women. In 2007, the D.O.C. modified the physical fitness component ofits selection process.
Instead of a timed 1.5-mile test, the D.O.C. substituted a 300-metcr nm. test. Upon information and belief, the new 300-metcr nm. test does not create an adverse impact on female applicants for
the C.O. position. JURISDICTION AND VENUE
6. Jurisdiction of this court is invoked pur:snant to 28 U.S.C. § 1331. 7. Venue is proper in this Distrid pun;uant to 2S U.S.C. § 139l(b). Plaintiffand members of the class reside in Connecticut and throughout the United States. Defendant D.O.C. is an agency of the State of Connecticut. The acts that gave rise to the claims alleged in this Complaint occurred in Connecticut and in this District.
2

EXHAUSTION 01<' ADMINISTRATIVE REQUIREMENT 8. On April 22, 2005, Plaintiff, on behalfof herself and sim1larly situated individuals, filed administrative charges of discrimination on the basis of her sex with the
Conne~.-1icut Commission on Human Rights and Opportunities ("CHRO") and with the Equal
Employment Opportunity Commission ("EEOC")_ 9_ On February I, 2008, the CHRO issued a Release of Jurisdiction. 10. On February 4, 2008, the EEOC forwarded Plaintiff's request for a Notice of
Right to Sue to the U.S_ Department of Justice ("D.O.J."). On March 4, 2008, the D.O.J., Civil Rights Division, issued a Notice of Right to Sue. Plaintiffhas fulfilled all administrative prerequisites necess.ury to maintain this action.
PARTIES I I. PlaintiffCherie Easterling is a citizen of the United States and a resident of Bloomfield, Connecticut_ 12. Plaintiff is female. 13. The D.O.C. is an agency of the State ofConnecticut. The D.O.C. engages in husiness affecting commerce and employs more than 15 employees. At aU times relevant to this complaint, the D.O.C. has been an employer within the meaning ofTitle VU, § 2000c{b).
CLASS ACTION ALLEGATIONS 14. Plaintiff brings this Class Action pursuant to Fed. R Civ. P. 23(a), and (b)(2) on behalfof a Class ofall female applicants who participated in the C.O. selection process and failed the physical fitness test at any time from June 28, 2004 and continuing to the present. 15. Plaintiffis a member of the Class she seeks to represent
3

16. The members of the Class identified herein are so numerous that joinder ofall members is impracticable. During the class-liability period, there were approximately 353 female applicants for the position ofC.O. who took and failed the D.O.C. physical fitness test. Although plaintiffs do not know precisely how many women have failed to receive C.O. positions due to the adverse impact of the physical fitness test, their number is far greater than can be feasibly addressed through joinder.
17. There are questions of law and fact corrunon to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others; (!)whether the D.O.C. used a discriminatory employment practice by administering a physical-fitness test that had a disparate impact on female applicants for the C.O. position; (2) whether the D.O.C.'s use of the physical-fitness test was job related for the C.O. position; {3) whether the cut score used by D.O.C. to determine whether an applicant passed or failed the physical-fitness test was a business necessity; 4)) whether the D.O.C. 's polices and/or practices violate Title VII ; and 5) whether equitable and injunctive relief for the Class is warrant.
18. The Representative Plaintiff's claims are typical of the claims of the Class. 19. The Representative Plaintiff will fairly and adequately represent and protect the interests of the members ofthc Class. Plaintiff has retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof 20. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because the State ofConnecticut D.O.C. has acted and/or refused to act on grounds generally applicable to the Class, making appropriate declaratory and injunctive relief with respect to Plaintiff and the
4

Class as a whole. The Class members are entitled to injunctive relief to end the D.O.C.'s common, uniform, unfair, and discriminatory policies and/or practices.
GENERAL POLICIES OR PRACTICES OF DISCRIMINATION 21. In order to obtain a C.O. position with the D.O.C., a candidate must first pass a
written test. After a candidate p~~:>ses the written exam, he or she progresses to the physical
fitness test. The physical fitness test consist;; of four parts; failing any one part leads to failing the entire test. Prior to 2007, these parts were:
(!) A sit and reach test. This test measures the number of inches that an applicant can reach beyond his or her toes from a sithng position.
(2) A one-minute sit-up test. The test measures the number of bent leg sit-ups an applicant can complete in a one-minute period.
{3) A one-minute push up test. The test measures the number of push-ups an applicant can complete in a one-minute period. (Female applicants are pcnn.itted to perform modified push-ups.)
(4) A timed 1.5 mile nm test. This test measures how long an applicant takes to run/walk 1.5 miles.
22. According to the D.O.C. website from April2005, the following were the minimum standards for applicants, arranged by gender and age;
5

MALE: Exercise
Sit and Reach l Minute Sit~U s l Minute Push U 1.5 Mile Run

AGE GROUP:

21-29

30-39

16.!12" 38

15.1/2"" 35

29

24

12:25

12:51

40-49 14.114" 29 18 13:46

50+ 13.114"
24
13 14:50

23. Since 1998, the D.O.C. has administered the physical fitness test with the !.5-mi1e

run a total of nine times. In each of the nine tests, female applicants have failed the physical

fitness test at a rate that is materially higher than their male oountetparts. The observed gender-

based disparities are statistically significant at greater than 2 standard deviations.
24. There is no empirical data dcmon~trating that the physical fitness test is predictive
ofor significantly correlated with important elements ofjob pcrfonnance. The individual fitness

activities tested by the physical fitness test have not been proven to be an underlying factor for

performing essential or critical physical functions of the job nf C.O. (that is, the physical fitness test does not have demonstrated construct validity).

25. The physical fitness test has not been shown to be predictive of who can and cannot perfonn the essential or critical physu.:al functions of the job ofC.O. (that is, the physical fitness test does not have demonstrated criterion validity.)

6

26. The physical fitness test has not been scientifieal!y validated as it neither has construct validity, criterion validity nor has been shown to be an accurate and reliable measure of the fitness area tested.
CLAIMS OF REPRESENTATIVE PLAINTU<'l<' 27. Plaintiff applied for the position ofC.O. with the State of Connecticut's Department of Correction in 2004. 28. Plaintiff took and passed the written portion of the examination. 29. Plaintiff then took and failed the physical fitness test as part of the examination in October 2004 and was notified of her failure on or about October 28, 2004.
(Title VII of the Civil Rights Act of 1964, 42 U.S.C §§ 2000(e) et seq.)
{On Behalf of Plaintiff and the Class) 30. Plaintiffs incorporate by reference the preceding paragraphs as alleged above. 31. This Claim is brought by the Representative Plaintiff on behalf of herself and the Class she represents. 32. Throughout the class-liability period the Defendant used an employment practice that caused a disparate impact on the basis of sex and that was neither job related for the C.O. position, nor consistent with business necessity. The foregoing conduct constitutes unlawful discrimination in violation of 42 U.S.C. §§ 2000 et seq.
RELIEF ALLEGATIONS 33. Plaintiff and the Class she seeks 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. Plaintiffand the Class she seeks to
7

represent arc now suffering, and will continue to suffer, irreparable injury from Dctf:ndant's discriminatory acts and omissions.
34. The D.O.C.'s actions have caused and continue to cause Plaintiffand aH Class members substantial losses in earnings and other employment benefits.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs and the Class pray IQr relief as follows:
35. Certification of the case as a class action on behalf of the proposed Clas~;
36. Designation of Representative Plaintiff Cherie Easterling as representative on behalfof the Class;
37. Designation of Representative Plaintiff's counsel of record as Class counsel; 38. A declaratory judgment that the practices complained of herein arc unlawful and violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §!i 2000e et seq. 39. A preliminary and permanent mjunction against the State ofConnecticut, Department of Correction and its officers, agents, successors, employees, representatives, and IDly IDld all persoiiS acting in conccli with them, from engaging in each of the unlawful policies, practices, customs and nsages set forth herein; 40. An order tha.t the State of Connecticut, Department of Correction institute IDld c:my out policies, practices, IDld progriDlls that provide equal employment opportunities fur all applicants and employees regardless of gender, IDld that it eradicate the effects of its past 31ld present unlawful employment practices; 41. An order restoring Plaintill" and Class members to their rightful positions at Department of Correction, as applic31lts or employees, or in lieu of reinstatements, an order for front pay and benefits;
8

42.
43. by law;

Back pay (including interest and benefits) for Plaintiffand Class members;
Costs incurred herein, including reasonable attorneys· fees to the e~tent allowable

44. Pre-judgment and post-judgment interest, as provided by law; and 45. Such other and further legal and equitable relief as this Court deems necessary, just, and proper. Dated: May 30, 2008

Respectfully submitted,

Adam T. Klein (pro hac vice pending) Deborah L. McKenna (ctl7326) Stephanie M. Mamin (ct27308)
Outten & Golden LLP
Four Landmark Square, Suite 201 Stamford, CT 06901 PH: (203) 363-7888 FAX: (203) 363-0333 dlm@outtengolden.com srnm@outtengolden.com atk@outtcngolden.com
Michael T. Kirkpatrick (pro hac vice pending) Public Citizen Litigation Group 1600 2oth Street, NW Washington, DC 20009 PH: (202) 588-\000 FAX: (202) 588-7795 mkirkpatrick@citizcn.org

9

 
 Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CHERIE EASTERLING, individually and on behalf of all others similarly situated,
Plaintiffs,
-against-
STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION
Defendant.

CIVIL ACTION NO. 3:08-CV-826 (JCH)
JULY 26, 2103

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT AND CLASS ACTION
SETTLEMENT PROCEDURE
The above-entitled matter came before the Court on Plaintiff s Motion for Preliminary Approval of Settlement and Approval of Plaintiffs' Proposed Notices of Settlement and Class Action Settlement Procedure ("Motion for Preliminary Approval"). This Court granted class certification on January 4,2010. On May 5, 2011 the Court entered partial summary judgment in favor of Plaintiff as to liability for disparate impact discrimination arising from Defendant's use of the 1.5 mile portion of the physical fitness test for female Correction Officer applicants to the State of Connecticut.
On November 22,2011, the Court modified its earlier certification Order, certifying Plaintiffs claims for class-wide declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2), and Plaintiffs claims for monetary and individualized injunctive relief pursuant to Fed. R. Civ. P. 23(b)(3). ECF No. 156. The Court held that the members of the class include "[a]ll female applicants for the position of Correction Officer ("CO") at the State of Connecticut

Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 2 of 7
Department of Correction ("DOC") who participated in the CO selection process and failed only the 1.5 mile run portion of the physical fitness test at any time from June 28, 2004, and continuing to the date of final judgment in this matter." Id. at 51.
On January 3, 2012, following briefing, the Court approved the form of notice and optout form for the class, ECF No. 166. The Court then set the schedule for the remedial damages phase of litigation on January 19,2012. ECF No. 172. Only one class member, Virginia C. Brennan, opted-out of the class. ECF No. 173.
Having considered the Motion for Preliminary Approval, the supporting declaration, and the complete record in this matter, for good cause shown, NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: I. Preliminary Approval of Settlement
1. Based upon the Court's review of the Motion for Preliminary Approval, the Court grants preliminary approval of the settlement memorialized in the Stipulated Agreement, attached to the Dugger Declaration ("Dugger Decl.") as Exhibit B.
2. The Court concludes that the proposed Stipulated Agreement 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); Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80, 101 (D. Conn. 2010); Reade-Alvarez v. Eltman, Eltman & Cooper, P.e., 237 F.R.D. 26, 33 (E.D.N.Y. 2006).
3. Having conducted an initial evaluation of the fairness of the proposed settlement on the basis of the Motion for Preliminary Approval, the supporting declaration and its attached documents, the Court finds that there is "probable cause to submit the [settlement] to class members" and will "hold a full-scale hearing as to its fairness." In re Traffic Exec. Ass 'n, 627
2

Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 3 of 7

F.2d at 634 (internal quotations omitted).

4. The Court finds that the Stipulated Agreement is the result of extensive, arm's

length negotiations by counsel, well-versed in the prosecution of complex employment class

actions. See Wal-Mart Stores, Inc. v. Visa US.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005).

5. The assistance of an experienced mediator reinforces that the Stipulated

Agreement is non-collusive. See Capsolas v. Pasta Res., Inc., No. 10 CV 5595, 2012 WL

1656920, at *1 (S.D.N.Y. May 9, 2012).

II. Notices to the Class

6.

The Court approves**th**e proposed Court-Authorized Notices ("Notices") attached

to the Dugger Declaration as Exhibit C (notice for class members for whom Class Counsel

already has SSA and IRS authorizations) and Exhibit D (notice for class members for whom

Class Counsel does not have SSA and IRS authorizations), and directs their distribution on

August 2,2013.

7. The contents ofthe Notices comply fully with due process and Federal Rule of

Civil Procedure 23.

8. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), 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 of the 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 court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and the binding effect of a class judgment on class members under Rule 23(c)(3).

Fed. R. Civ. P. 23(c)(2)(B).

9. The Notices satisfy each of these requirements and adequately put Rule 23 class
****with the modification at page 5 of the Notice (para. 2 of Ex. C, para. 3 of Ex. D) to read: "It is important to understand that if you opt-out of the class, Class Counsel will no longer represent you, and if you wish to pursue your claims on your own behalf before they expire, you will need to retain separate counsel or represent yourself."
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Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 4 of 7
members on notice of the proposed settlement. See, e.g., Menkes, 270 F.R.D. at 105 (class notice
"must be of such nature as reasonably to convey the required information ... and it must afford a
reasonable time for those interested to make their appearance") (citing McReynolds v. Richards-
Cantave, 588 F.3d 790,804 (2d Cir. 2009».
10. The Notices are appropriate because they describe the terms of the settlement,
inform the class about the allocation of attorneys' fees, and provide specific information
regarding the date, time, and place of the final approval hearing. Capsolas, 2012 WL 1656920,
at *3.
III. Class Action Settlement Procedure
11. The Court hereby adopts the following general settlement approval procedures:
a) Class members who have submitted complete IRS and SSA authorization forms and who do not opt out will receive back pay awards.
b) Class members who have not submitted IRS and SSA authorization forms will receive the required forms.
c) If a class member submits incomplete SSA or IRS authorization(s), Class Counsel will send a letter to the class member explaining the reason that the authorization is incomplete within five days, after which the class member will have fourteen days from the mailing to submit the corrected authorization(s) to Class Counsel via facsimile (or submit by mail by the original deadline if that deadline provides more time).
d) Class members will be divided into two groups based on whether they first applied to the Correction Officer position in 2004 or 2006.
e) Using the information obtained for each class member from the IRS and SSA, Class Counsel will calculate the difference in wages for each class member as compared to the Correction Officer position (as valued in damages Tables 2 and 3 of the Stipulated Agreement) during the Damages Period. This value will represent the back pay value each class member would have been entitled to
4

Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 5 of 7

prior to a pro rata reduction reflecting the gross class damages methodology.!
f) The total difference in wages between each class member and the Correction Officer position during the Damages Periods will be separately totaled for 2004 and 2006 applicants. Class members whose actual wages were more than the wages they would have received as a Correction Officer during their Damages Period will have a value of zero for this step.
g) For each group (i.e. 2004 and 2006 applicants) the gross class damages attributed to that applicant group in damages Table 1 ($565,474 for 2004 and $1,286,418 for 2006)2 will be divided by the total income difference for all participating class members for each respective group derived from the totals of step #6.
h) The resulting proportional value for the 2004 applicants and 2006 applicants will be applied to the value calculated for each class member in step #5, which will determine that class member's appropriate pro rata distribution (the 2004 and 2006 applicant groups will have different proportional values).
12. In addition, the Court hereby also adopts the following specific settlement
approval procedures:
a) Following preliminary approval, and prior to mailing notice, Class Counsel will run a search for any new addresses for each class member reported since January 1,2012, on Westlaw People Search.

Where the information provided by the IRS and SSA differ for a given year, the values will be averaged. Where only one agency provides information in response to Class Counsel's submission of complete authorization forms for a given year, Class Counsel will base its calculations on only the information provided by the disbursement deadline. In instances where an authorization was submitted to Class Counsel, but became stale before submission to the IRS or SSA, Class Counsel will rely on the information received as of the time of disbursement of awards, but prior to such reliance, will also request an additional authorization from the class member and submit it to the relevant agency.

2

The 2004 and 2006 totals will each be reduced by half of any incentive payment awarded

to Cherie Easterling from the gross class damages fund. The maximum such award permitted by

the Stipulated Agreement is $10,000.

5

Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 6 of 7
b) On August 2,2013, Class Counsel will mail the notices to class members (class members for whom Class Counsel has not received SSA and IRS authorization forms will also receive the required forms and a pre-paid envelope for delivery to Class Counsel), at their last known address, as well as any additional addresses provided by Westlaw People Search, for the period after January 1, 2012. Class members for whom Class Counsel have received completed IRS and SSA authorization forms will receive the notice attached to the Dugger Decl. as Ex. C, and class members for whom Class Counsel has not received completed authorizations will receive the notice attached to the Dugger Decl. as Ex. D.
c) Class members will have until September 3, 2013, to opt out of or object to the settlement ("Notice Period").
d) A final fairness hearing will occur on September 10,2013 at 2:00 pm.
e) Plaintiff will file a Motion for Final Settlement Approval and Motion for Approval of Attorney's Fees and Costs and Incentive Award by September 6, 2013.
f) After the fairness hearing, if the Court grants Plaintiff s Motion for Approval of Settlement, the Court will issue a Final Order and Judgment. If no party objects to the proposed settlement, the "Effective Date" of the settlement will be the day the Court enters its Final Order and Judgment.
g) If an individual or party object to and appeals the Court's Final Order and Judgment, the "Effective Date" of the settlement shall be the day after all appeals are finally resolved in favor of final approval and the time for any further appeal, rehearing, or reconsideration has expired.
h) Class Counsel will mail class members a copy of the Final Order and Judgment and the pension credit request form, Dugger Decl., Ex. E (Pension Credit Request Form), within seven days of the Effective Date of settlement. Following approval of the settlement, Class Counsel will also send a short follow-up notice, to be agreed to by both parties, and ultimately approved by the Court at the fairness hearing, containing the final deadline for submitting SSA and IRS authorizations (to class members that have failed to submit them), and any other information agreed to by the parties.
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Case 3:08-cv-00826-JCH Document 245 Filed 07/29/13 Page 7 of 7

i)

Defendant will disburse one check in the amount of $1 ,851 ,892

(gross back pay relief) and one check in the amount of $1,232,463

(attorney's fees and costs) to Class Counsel within thirty days of

the Effective Date of settlement.

j) Back pay award checks will be mailed to class members one hundred and fifty days after the Effective Date of the settlement. If, after Class Counsel submits the IRS and SSA authorization forms, it does not receive SSA and/or IRS information from the respective agencies (for any class member in any given year) within one hundred and thirty-five days of the Effective Date of settlement, Class Counsel will designate that year a value of $10,000 in wages with respect to the class member's wages/damages calculations.

k) Class Counsel will deduct the amount of outstanding liens due and owing to the State of Connecticut from the disbursement made to each class member who is subject to such lien(s) and remit those funds to the State at the time the disbursement check is sent to the class member. Defendant's counsel will provide Class Counsel with a list of such outstanding liens.

1) Funds that remain undisbursed because class members do not cash their back pay award checks within ninety days of receipt (as required under the Stipulated Agreement), will be disbursed to the class members who deposited checks within the required ninety days. This second distribution of the remaining funds will be apportioned equally, to all class members who deposited their checks within the deadline, and will be disbursed sixty days after the latest deadline for all class members to have deposited their back pay award check.

m) The parties shall abide by all terms of the Stipulated Agreement attached as Ex. B to the Dugger Decl.

It is so ORDERED this 2_6th day of _J_uly_ _ _, 2013.
/s/ Janet C. Hall
Honorable Janet C. Hall United States District Judge

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 Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 1 of 38

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CHERIE EASTERLING, individually

:

and on behalf of all others

:

similarly situated,

:

:

Plaintiffs,

:

:

-against-

:

:

STATE OF CONNECTICUT,

:

DEPARTMENT OF CORRECTION

:

:

Defendant.

:

CIVIL ACTION NO. 3:08-CV-826 (JCH)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND APPROVAL OF THE PROPOSED NOTICE OF SETTLEMENT
AND CLASS ACTION SETTLEMENT PROCEDURE

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 2 of 38
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
I. Factual and Procedural Background ................................................................................... 2 II. Summary of the Settlement Terms ..................................................................................... 5
A. The Settlement Fund ............................................................................................... 5 B. One-Time Payment in Lieu of Retroactive Seniority ............................................. 5 C. Second Priority Hiring Agreement ......................................................................... 6 D. Pension Credit ......................................................................................................... 6
1. Pension Credit for 2012 Priority Hire Class Members. ..................................... 7 2. Pension Credit for Class Members Hired Through the
Second Priority Hiring Process .......................................................................... 7 3. Pension Credit for Non-Priority Hire Class Members
Currently Working in Hazardous Duty Positions .............................................. 7 4. Pension Credit for Class Members Currently Working in
Non-Hazardous Duty Positions or Otherwise Eligible to Participate in the Connecticut State Employee Retirement System .................................... 8 E. Release .................................................................................................................... 8 F. Eligible Employees ................................................................................................. 8 G. Claims Process ........................................................................................................ 9 1. Back Pay Awards .............................................................................................. 9 2. Claims Process for Rate of Pay and PTO Accrual Rates ............................... 14 3. Claims Process for One-Time Payment in Lieu of Retroactive Seniority. .... 14 4. Claims Process for SERS Credits. .................................................................. 14 5. Second Priority Hiring Process. ...................................................................... 14 H. Attorneys’ Fees and Litigation Costs.................................................................... 15
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Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 3 of 38
I. Service Award....................................................................................................... 15 III. Class Action Settlement Procedure................................................................................... 16 ARGUMENT ................................................................................................................................ 18 IV. Preliminary Approval of the Settlement Is Appropriate................................................... 18
A. The Settlement Is Fair Reasonable and Adequate. ............................................... 20 1. The Reaction to the Settlement Has Been Positive (Grinnell Factor 2) .......................................................................................... 21 2. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly (Grinnell Factor 3)......................... 22 3. The Risk of Establishing Damages for the Class through Trial (Grinnell Factor 5) .......................................................... 24 4. The Risks of Maintaining the Class Action Through the Trial (Grinnell Factor 6) ........................................................................... 25 5. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation (Grinnell Factors 8 and 9).......................................................... 26
B. The Proposed Notices are Appropriate. ............................................................... 29 CONCLUSION............................................................................................................................. 30
ii

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 4 of 38
TABLE OF AUTHORITIES
Page(s)
Cases
In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000)..................................................................................22, 25
Authors Guild v. Google, Inc., No. 05 CV 8136, 2009 WL 4434586 (S.D.N.Y. Dec. 1, 2009) ...............................................19
Cagan v. Anchor Sav. Bank FSB, No. 88 CV 3024, 1990 WL 73423 (E.D.N.Y. May 22, 1990).................................................26
Capsolas v. Pasta Res., Inc., No. 10 CV 5595, 2012 WL 1656920 (S.D.N.Y. May 9, 2012) ...............................................20
Chin v. RCN Corp., No. 08 CV 7349, 2010 WL 1257586 (S.D.N.Y. Mar. 12, 2010).............................................19
City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)............................................................................................. passim
Easterling v. Conn. Dep’t of Corr. (“Easterling I”), 265 F.R.D. 45 (D. Conn. 2010)..............................................................................................2, 3
Easterling v. Conn. Dep’t of Corr. (“Easterling II”), 783 F. Supp. 2d 323 (D. Conn. 2011) ....................................................................................2, 3
Easterling v. Conn. Dep’t of Corr. (“Easterling III”), 278 F.R.D. 41 (D. Conn. 2011)........................................................................................ passim
Easterling v. Conn. Dep’t of Corr. (“Easterling IV”), No. 08 CV 826 ...........................................................................................................................2
Frank v. Eastman Kodak Co., 228 F.R.D. 174 (W.D.N.Y. 2005)................................................................................19, 27, 28
Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 CV 3452, 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008)...............................................26
Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980).................................................................................................13, 28
Ingram v. Madison Square Garden Ctr., Inc., 709 F.2d 807 (2d Cir. 1983)...................................................................................10, 12, 27, 28
iii

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 5 of 38
James v. Nat’l R.R. Passenger Corp., No. 02 CV 3915, 2005 WL 6182322 (S.D.N.Y. Mar. 3, 2005)...............................................28
Maturo v. Nat’l Graphics, Inc., 722 F. Supp. 916 (D. Conn. 1989) ...........................................................................................28
Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072 (2d Cir. 1998).....................................................................................................18
Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80 (D. Conn. 2010)................................................................................................19
Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 688 F.2d 615 (E.D. Tex. 1982) ................................................................................................26
Reyes v. Buddha-Bar NYC, No. 08 CV 02494, 2009 WL 5841177 (S.D.N.Y. May 28, 2009) ...........................................16
Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001)...............................................................................................24, 27
Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ...............................................................................................27
In re Sturm, Ruger, & Co., Inc. Sec. Litig., No. 09 CV 1293, 2012 WL 3589610 (D. Conn. Aug. 20, 2012).............................................21
Teamsters v. United States, 431 U.S. 324 (2011) ...............................................................................................12, 24, 25, 28
Torres v. Gristede’s Operating Corp., Nos. 04 CV 3316, 08 CV 8531, 08 CV 9627, 2010 WL 2572937 (S.D.N.Y. June 1, 2010).. 18
In re Traffic Exec. Ass’n, 627 F.2d 631 (2d Cir. 1980).....................................................................................................18
United States v. City of Miami, 195 F.3d 1292 (11th Cir. 1999) ...............................................................................................27
United States v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011) ..................................................................................10, 27, 28
Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) ....................................................................................................3, 24, 25
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005).................................................................................................18, 19
iv

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 6 of 38 In re Warfarin Sodium Antitrust Litig.,
391 F.3d 516 (3d Cir. 2004).....................................................................................................22 Willix v. Healthfirst, Inc.,
No. 07 CV 1143, 2011 WL 754862 (E.D.N.Y. Feb. 18, 2011) ...............................................19 Statutes 42 U.S.C. § 2000e-5(g) ..............................................................................................................9, 24 Conn. Gen. Stat. §3-125a .................................................................................................................2 Other Authorities Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11.22 (4th ed. 2002).........16, 18 Fed. R. Civ. P. 23 .....................................................................................................................29, 30 Fed. R. Civ. P. 23(b) ..............................................................................................................2, 3, 15 Fed. R. Civ. P. 23(c) ......................................................................................................................29 Fed. R. Civ. P. 23(e) ......................................................................................................................16
v

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 7 of 38
INTRODUCTION Plaintiff seeks preliminary approval of the parties’ settlement of this Title VII class action lawsuit.1 After extensive negotiations with the assistance of Magistrate Judge Fitzsimmons, the parties have agreed to settle Named Plaintiff Cherie Easterling’s and class members’ disparate impact hiring claims. Under the settlement, the State of Connecticut will pay $1,851,892, in gross back pay to be distributed to class members on a pro rata basis. The settlement also includes: (1) a second priority hiring process offering expedited processing of applications for the Correction Officer (“CO”) position and priority hiring of otherwise qualified class members; (2) adjustment of salary, overtime rates, and certain benefit accrual rates for up to 28 class members hired as Correction Officers; (3) a one-time payment for up to 28 class members hired as Correction Officers as compensation in lieu of certain seniority benefits; (4) pension credits for up to 28 class members who are otherwise eligible to participate in the State Employee’s Retirement System (“SERS”) as of the date of final approval of settlement; and (5) a payment of $1,232,463 in attorneys’ fees and costs. Assuming all 124 members of the class participate, the average back pay award is approximately $15,000,2 which is close to the actual economic loss that each class member suffered in back pay as a result of the challenged hiring process. Moreover, the plan of allocation is tailored to the lost earnings of each class member based on individualized information.

1

Defendant does not oppose preliminary approval of the proposed settlement, approval of

the proposed notices of class action settlement, or approval of the proposed schedule for final

settlement approval. See Declaration of Cyrus E. Dugger in Support of Plaintiff’s Unopposed

Motion for Preliminary Approval of Settlement and Approval of the Proposed Notice of

Settlement and Class Action Settlement Procedure, dated July 23, 2013 (“Dugger Decl.”) ¶¶ 4-5.

2

This average excludes the value of the additional monetary and non-monetary relief to

which members of the class may be entitled under the agreement.

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 8 of 38

On May 3, 2013, defense counsel submitted the proposed settlement to the Connecticut General Assembly, in accordance with the provisions of Conn. Gen. Stat. §3-125a. The General Assembly did not vote to approve or reject the settlement and it was thus deemed approved thirty days after the submittal. Declaration of Cyrus E. Dugger in Support of Plaintiff’s Unopposed Motion for Preliminary Approval of Settlement and Approval of the Proposed Notice of Settlement and Class Action Settlement Procedure, dated July 23, 2013 (“Dugger Decl.”) ¶ 32. The proposed settlement satisfies all of the criteria for preliminary approval. With this motion, Plaintiff respectfully requests that the Court: (1) grant preliminary approval of the parties’ Stipulated Agreement, attached as Exhibit B to the Dugger Decl.;3 (2) approve the proposed Notices of Class Action Settlement (“Notices”), attached as Exhibits C and D to the Dugger Decl.; and (3) approve the proposed class action settlement procedure. I. Factual and Procedural Background
This Court, having presided over this class litigation for its entirety, is well-versed with its facts and history. For purposes of this motion, Plaintiff provides an abbreviated background; for a more comprehensive history of the case, see Easterling v. Conn. Dep’t of Corr. (“Easterling I”), 265 F.R.D. 45 (D. Conn. 2010) (certifying class pursuant to Rule 23(b)(2)); Easterling v. Conn. Dep’t of Corr. (“Easterling II”), 783 F. Supp. 2d 323 (D. Conn. 2011) (granting Plaintiff’s motion for summary judgment); Easterling v. Conn. Dep’t of Corr. (“Easterling III”), 278 F.R.D. 41 (D. Conn. 2011) (modifying class certification from Rule 23(b)(2) to bifurcated Rule 23(b)(2) and Rule 23(b)(3) class); Easterling v. Conn. Dep’t of Corr. (“Easterling IV”), No. 08 CV 826 (D. Conn. June 27, 2012) (resolving temporal period of gross class damages relief and hiring shortfall calculation) (Dugger Decl., Exhibit G).

3

All exhibits are attached to the Dugger Decl.

2

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 9 of 38
On April 20, 2005, Plaintiff Easterling filed a charge of discrimination with the Connecticut Commission on Human Rights and Opportunities (“CCHRO”). Dugger Decl., Ex. A (Complaint) ¶ 8. After she received a notice of right to sue, Plaintiff Easterling commenced this litigation against the Connecticut Department of Correction on May 30, 2008, alleging that the physical fitness test applied to applicants for the Correction Office position resulted in a disparate impact on female applicants in violation of Title VII of the Civil Rights Act. See Dugger Decl., Ex. A (Complaint).
On January 4, 2010, the Court granted Plaintiff’s Motion for Class Certification, pursuant to Fed. R. Civ. P. 23(b)(2). See Easterling I, 265 F.R.D. 45. On May 5, 2011, the Court granted Plaintiff’s Motion for Summary Judgment as to liability for disparate impact discrimination, based on Defendant’s use of the 1.5 mile portion of the physical fitness test. See Easterling II, 783 F. Supp. 2d 323.
On November 22, 2011, in response to the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Court modified its earlier certification order. The Court certified Plaintiff’s claims for class wide declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2), and Plaintiff’s claims for monetary and individualized injunctive relief pursuant to Fed. R. Civ. P. 23(b)(3). See Easterling III, 278 F.R.D. 41. The Court held that the members of the class include “[a]ll female applicants for the position of Correction Officer (“CO”) at the State of Connecticut Department of Correction (“DOC”) who participated in the CO selection process and failed only the 1.5 mile run portion of the physical fitness test at any time from June 28, 2004, and continuing to the date of final judgment in this matter.” Id. at 51.
On January 3, 2012, following briefing, the Court approved the notice and opt-out forms. See ECF No. 166. The Court then scheduled the remedial damages phase of litigation on
3

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 10 of 38
January 19, 2012. ECF No. 172. Only one class member, Virginia C. Brennan, opted out of the class. ECF No. 173.
On March 27, 2012, the parties filed a Joint Stipulation, pursuant to which the defendant agreed to grant priority hiring status to otherwise qualified class members who successfully completed the 2012 Correction Officer selection process. ECF No. 187. The Joint Stipulation did not provide for retroactive seniority or other individualized relief for the class. Id. ¶ 13.
Following the Court’s November 22, 2011 decision denying Defendant’s motion to decertify the class, the parties engaged in further extensive settlement negotiations regarding post-liability relief. Dugger Decl. ¶ 26. In furtherance of these negotiations, the parties submitted two critical issues concerning gross back pay to the Court for resolution: (1) the number of class members who would have been hired absent discrimination (the “hiring shortfall”); and (2) the eligibility period for back pay (“Damages Period”). Id. ¶ 27; ECF Nos. 182, 189, 197, 205, 208.
The Court resolved these questions on June 27, 2012. See ECF No. 213. With respect to the Damages Period, the Court determined that for class members who first took the physical fitness test in 2004, the back pay period began on the average date of appointment for successful candidates from the 2004 application cycle, and that for class members who took the test in 2006, the back pay period began on the average date of the appointment for successful candidates from the 2006 application cycle. Id. at 14. The Court also held that the back pay period terminated on the average date of appointment for class members who successfully completed the 2012 application cycle pursuant to the parties’ 2012 priority hiring agreement. Id. Because the DOC offered a sufficient number of Correction Officer positions to class members
4

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 11 of 38
who successfully completed the selection process on November 2, 2012, the first hiring date of 2012, the parties agreed that the damages period ended on that date. Dugger Decl. ¶ 28.
The Court also resolved the methodology for calculating the hiring shortfall. The Court determined that “the hiring shortfall analysis in this case will assume that class members would have satisfied post-physical fitness test hiring criteria at the same rate as other applicants.” ECF No. 213 at 9. Following this ruling, the parties agreed that the proper hiring shortfall number was 28. Dugger Decl. ¶ 28.
The parties thereafter continued settlement negotiations with the assistance of Judge Fitzsimmons, including telephonic conferences and in-person mediations, as well as numerous additional settlement discussions directly between the parties. Id. With the benefit of Judge Fitzsimmons’s assistance, these mediations and negotiations ultimately resulted in the Stipulated Agreement. Id. ¶¶ 26-34. II. Summary of the Settlement Terms
A. The Settlement Fund The State of Connecticut will pay $1,851,892, which represents a complete settlement of the class members’ back pay relief.4 Dugger Decl., Ex. B (Stipulated Agreement) ¶ 22. The settlement funds will be distributed on a pro rata basis to participating class members as set forth in the claims process below.5 Id.
B. One-Time Payment in Lieu of Retroactive Seniority Class members who complete either priority hiring process will, upon successful

4

The class currently stands at 124 members.

5

The parties have agreed that the State of Connecticut will assert any outstanding liens due

and owing to the State against such payments. Dugger Decl., Ex. B (Stipulated Agreement) ¶ 23.

5

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 12 of 38

completion of the working test period, receive a one-time payment of $8,078 (for 2004 applicants) and $6,126 (for 2006 applicants). Id. ¶ 26. The total number of such awards is limited to a maximum of 28 and will be awarded up to that number, based upon the order in which class members complete the priority hiring process and become COs. Id. These payments are being made in lieu of certain retroactive seniority relief to which they may have otherwise been entitled. Id.6
C. Second Priority Hiring Agreement In addition to the previously stipulated 2012 priority hiring agreement, ECF No. 187, class members will have an additional opportunity to participate in a priority hiring process, upon successful completion of the entire selection process for the CO position, during the first administration of the CO exam that occurs after the Effective Date of the Stipulated Agreement.7 Dugger Decl., Ex. B (Stipulated Agreement) ¶ 28. Defendant is under no obligation to notify class members of the commencement of the hiring process, and class members must affirmatively notify Defendant that they are class members seeking priority hiring status. The total number of priority hires pursuant to the 2012 or second priority hiring agreement cannot exceed 28. Id. ¶ 29.
D. Pension Credit Certain class members may seek pension credit in one of several forms under the circumstances described in the Stipulated Agreement. Pension credits will be provided to the first 28 class members who request and obtain them, but will not be provided to any class

6

Class members who receive this one-time payment are still eligible for a back pay award.

7

Defendant expects that the Department of Administrative Services may administer the

next Correction Officer examination in or around the year 2015, but is unable to state with

certainty when the administration of the examination will take place. Dugger Decl., Ex. B

(Stipulated Agreement) ¶ 28 n.1.

6

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 13 of 38

member for any period during which they otherwise received pension credit of any kind. Class

members seeking pension credit must complete the required paperwork, including the required

request form, Dugger Decl., Ex. E (Pension Credit Request Form), which will be distributed to

the class shortly after final approval of the settlement. Dugger Decl. ¶ 41.

1) Pension Credit for 2012 Priority Hire Class Members.

Each class member who successfully completes the 2012 priority hiring process may,

upon successful completion of her working test period and upon making a timely request, obtain

hazardous duty pension credit for all or part of the applicable Damages Period, contingent upon

her payment of the employee contribution for such credit. The amount of will be based upon the

rate of pay that the class member would have earned had she been employed as a CO during the

applicable Damages Period. Id. ¶¶ 31-32. This payment will be withheld from the class

member’s back pay award and any remainder must be paid in order to receive pension credit. Id.

¶ 32.

2) Pension Credit for Class Members Hired Through the Second

Priority

Hiring Process.

Each class member who successfully completes the second priority hiring process may,

upon successful completion of the working test period for the CO position, likewise elect to

obtain hazardous duty credit for all or part of the Damages Period. Id. ¶ 33. In such instance, the

required employee contribution must be paid within sixty days of the class members’ completion

of her working test period. Id.

3) Pension Credit for Non-Priority Hire Class Members Currently

Working

in Hazardous Duty Positions.

Each class member who, on the Effective Date of the Stipulated Agreement, is working

in a position with the State of Connecticut that is categorized as a hazardous duty position (other

7

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 14 of 38
than those class members hired through the first or second priority hiring processes), may elect to obtain hazardous duty credit for all or part of the Damages Period. Id. ¶ 34. In such instance, the required employee contributions will be deducted from the class member’s back pay award. If the back pay award is less than the required employee contribution, the additional contribution must be paid in order for the class member to receive pension credit. Id.
4) Pension Credit for Class Members Currently Working in NonHazardous Duty Positions or Otherwise Eligible to Participate in the Connecticut State Employee Retirement System.
Each class member currently working in a position with the State of Connecticut categorized as non-hazardous duty or who is otherwise eligible to participate in the State Employee Retirement System (SERS) on the Effective Date of the Stipulated Agreement, may elect to obtain non-hazardous duty pension credit for all of part of her Damages Period. In such instance, the required employee contributions will be deducted from the class member’s back pay award. If the back pay award is less than the required employee contribution, the additional contribution must be paid in order for the class member to receive pension credit. Id. ¶ 34
E. Release Upon the Effective Date of the Stipulated Agreement, each class member will release the Defendant and the State of Connecticut from all claims that were brought or could have been brought during the class period. Id. ¶ 46.
F. Eligible Employees The settlement class consists of the following: All female applicants for the position of Correction Officer (“CO”) at the State of Connecticut Department of Correction (“DOC”) who participated in the CO selection process and failed only the 1.5 mile run portion of the physical fitness test at any time from June 28, 2004, and continuing to the date of final judgment in this matter. Id. ¶ 5.
8

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 15 of 38
The Court has already certified this class pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3). See Easterling III, 278 F.R.D. 41. Any class member who desires to opt out of the class may do so by writing a letter to the clerk as detailed in the notices attached as Exhibit C and Exhibit D to the Dugger Decl. Only those class members selected under either of the priority hiring agreements and/or who return completed IRS and SSA authorizations within sixty days of the class members’ receipt of notice of final approval of this settlement, will be eligible to receive any of the relief associated with this settlement agreement. Dugger Decl., Ex. B (Stipulated Agreement) ¶ 43.
G. Claims Process 1. Back Pay Awards
The Stipulated Agreement provides for distribution of funds on a pro rata basis, pursuant to a methodology developed by Class Counsel, and to be approved by the Court. Id. ¶ 22. Pursuant to the Stipulated Agreement, Defendant does not contest the methodology for the pro rata distribution proposed here. Id.
In individual Title VII litigation, each class member would have been entitled to the difference between the salary she would have obtained in the CO position and her interim earnings. See 42 U.S.C. § 2000e-5(g)(2)(A). The lower a plaintiff’s interim earnings, the higher the value of her respective back pay award.
Here, the Court has already determined that: (1) because the number of applicant class members was higher than the number of positions that would have been available to the class absent discrimination; and (2) because it would be impossible to identify precisely which class members would have obtained the available positions, the Court must make a determination of gross class damages to be distributed to the class on a pro rata basis. Easterling III, 278 F.R.D.
9

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 16 of 38
at 48; see also United States v. City of New York, 276 F.R.D. 22, 44 (E.D.N.Y. 2011) (“Because it is impossible to determine exactly which non-hire victims would have received job offers . . . the court must first determine the aggregate amount of individual relief to which the subclasses are entitled and then distribute that relief pro rata to eligible claimants.”).
The Court determined that “[r]ather than resort to ‘mere guesswork,’ . . . [it would] . . . make an aggregate calculation of the back pay to which the class is entitled” that could then “be distributed to eligible class members on a pro rata basis.” Easterling III, 278 F.R.D. at 49; see also Ingram v. Madison Square Garden Ctr., Inc., 709 F.2d 807, 812-13 (2d Cir. 1983) (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 161 n.6 (2d Cir. 2001)) (“The fairer procedure [is] to compute a gross award for all the injured class members and divide it among them on a pro rata basis.”).
Plaintiff seeks approval of the following general methodology for distribution of back pay on a pro rata basis:
1. Class members who have submitted complete IRS and SSA authorization forms and who do not opt out will receive back pay awards.
2. Class members who have not submitted IRS and SSA authorization forms will receive the required forms.
3. If a class member submits incomplete SSA or IRS authorization(s), Class Counsel will send a letter to the class member explaining the reason that the authorization is incomplete within five days, after which the class member will have fourteen days from the mailing to submit the corrected authorization(s) to Class Counsel via facsimile (or submit by mail by the original deadline if that deadline provides more time).
4. Class members will be divided into two groups based on whether they first applied to the Correction Officer position in 2004 or 2006.
5. Using the information obtained for each class member from the IRS and SSA, Class Counsel will calculate the difference in wages for each class member as compared to the Correction Officer position (as valued in damages Tables 2 and 3 10

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 17 of 38
of the Stipulated Agreement) during the Damages Period. This value will represent the back pay value each class member would have been entitled to prior to a pro rata reduction reflecting the gross class damages methodology.8
6. The total difference in wages between each class member and the Correction Officer position during the Damages Periods will be separately totaled for 2004 and 2006 applicants. Class members whose actual wages were more than the wages they would have received as a Correction Officer during their Damages Period will have a value of zero for this step.
7. For each group (i.e. 2004 and 2006 applicants) the gross class damages attributed to that applicant group in damages Table 1 ($565,474 for 2004 and $1,286,418 for 2006)9 will be divided by the total income difference for all participating class members for each respective group derived from the totals of step #6.
8. The resulting proportional value for the 2004 applicants and 2006 applicants will be applied to the value calculated for each class member in step #5, which will determine that class member’s appropriate pro rata distribution (the 2004 and 2006 applicant groups will have different proportional values).
Dugger Decl. ¶ 41.
For example, if the combined wages differential calculated in step #6 for the 2004
applicant group is $750,000, Class Counsel would divide $565,474 by $750,000 to determine the
proportional reduction (.754) to be applied to a 2004 applicant’s individual pay differential
calculated in step #5. In this example, a 2004 applicant whose total wages differential with the

8

Where the information provided by the IRS and SSA differ for a given year, the values

will be averaged. Where only one agency provides information in response to Class Counsel’s

submission of complete authorization forms for a given year, Class Counsel will base its

calculations on only the information provided by the disbursement deadline. In instances where

an authorization was submitted to Class Counsel, but became stale before submission to the IRS

or SSA, Class Counsel will rely on the information received as of the time of disbursement of

awards, but prior to such reliance, will also request an additional authorization from the class

member and submit it to the relevant agency.

9

The 2004 and 2006 totals will, however, each be reduced by half of any incentive

payment awarded to Cherie Easterling from the gross class damages fund. The maximum such

award permitted by the Stipulated Agreement is $10,000. Dugger Decl., Ex. B (Stipulated

Agreement) ¶ 41.

11

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 18 of 38
CO position was $85,000 (as calculated in step #5) would be subject to a proportional reduction of (.754) and receive a pro rata back pay award of $64,087.10
This proposed methodology most closely approximates the pro rata distribution that would have occurred following individualized Teamsters hearings during the remedial period had this litigation proceeded to trial. See Teamsters v. United States, 431 U.S. 324 (2011); see also Ingram, 709 F.2d 807 at 812-13.
The proposed methodology proportionally allots class members’ pro rata back pay share based on their respective income levels. Class members with the lowest interim earnings will receive a larger proportional share of gross class damages and class members with the highest interim earnings will receive a smaller proportional share (or no back pay award if their interim earnings exceeded CO compensation for their Damages Period).
While this methodology does not perfectly mirror the pro rata distribution each class member would have received if these issues had been fully litigated to trial (because it only compares wages and not the difference in the value of fringe benefits), it is a reasonable estimate for the pro rata award possible from successful litigation. Indeed, even in litigation, the Court is charged only with “as nearly as possible . . . recreat[ing] the conditions and relationships that would have been had there been no unlawful discrimination,” Teamsters, 431 U.S. at 372 (internal quotation marks omitted), and “[u]nrealistic exactitude is not required in determining back pay.” Grant v. Bethlehem Steel Corp., 622 F.2d 43, 47 (2d Cir. 1980) (citing EEOC v. Enter. Ass’n. Steamfitters, 542 F.2d 579, 587 (2d Cir. 1976)).
10 As noted above, the amount of the back pay award distributed to each class member will be reduced by the amount of any outstanding liens that are due and owing to the State of Connecticut. See Dugger Decl., Ex. B (Stipulated Agreement) ¶ 23.
12

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 19 of 38
Class Counsel’s proposed claim methodology is also procedurally sound. First, class members from whom Class Counsel have received IRS and SSA authorization forms will automatically receive a pro rata share of the gross class damages. For years that the IRS and SSA report no information, and/or for which records are not available regarding income, the class member will be designated an income of $10,000.11 Dugger Decl. ¶ 41. Second, class members from whom Class Counsel have not received IRS and SSA authorizations will have sixty days from the final approval of settlement to return the forms to be eligible to obtain a monetary recovery. Dugger Decl., Ex. B (Stipulated Agreement) ¶ 43. Funds that remain because class members do not cash their back pay award checks within ninety days of receipt will be disbursed to the class members who deposited their checks within ninety days. Id. ¶ 25. This second distribution from the remaining funds will be apportioned equally to all class members who deposited their checks within ninety days of receipt, and will be sent within sixty days of the latest deadline for all class members to have deposited their back pay award check. Dugger Decl. ¶ 41.
If a class member submits incomplete IRS and SSA authorizations, Class Counsel will send any such class members notice of such deficiency within five days of receipt of the deficient authorizations, after which the class member will have fourteen days to submit complete forms via facsimile (or until the original mailing deadline if sent by mail). Dugger Decl. ¶ 41.
11 Where only one agency provides information by the disbursement date for a given year, Class Counsel will utilize that agency’s records. See also supra note 8.
13

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 20 of 38
2. Claims Process for Rate of Pay and PTO Accrual Rates. Class members who complete either of the priority hiring processes or who are COs on the date of final approval of settlement (and submit completed IRS and SSA authorization forms within sixty days of the final approval of settlement), will, upon completion of the working test period for Correction Officers, automatically have their rate of pay and accrual of vacation and sick time adjusted to the rate each would have received had she been hired on her presumptive hire date. Dugger Decl., Ex. B (Stipulated Agreement) ¶ 37.
3. Claims Process for One-Time Payment in Lieu of Retroactive Seniority.
The payments in lieu of retroactive seniority will be made to eligible class members within thirty days of the Effective Date of the Stipulated Agreement if Class Counsel is in possession of their SSA and IRS authorization forms on the Effective Date. Id. ¶ 26. Class members hired pursuant to the second priority hiring process will receive this payment within thirty days of the successful completion of the working test period for the Correction Officer position. Id. In either instance, in order to be eligible for this payment, the class member must submit complete SSA and IRS authorization forms within sixty days of the class member’s notice of final approval of settlement. Id. ¶¶ 26, 42.
4. Claims Process for SERS Credits. Class members who are seeking SERS credit must follow the claims process, including completion of the required forms, within the time limits stated in the Stipulated Agreement. Id. ¶¶ 31-35.
5. Second Priority Hiring Process. In order to participate in the second priority hiring process, class members must successfully complete the written examination and physical fitness test administered by the
14

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 21 of 38
Department of Administrative Services and, within ten business days of their notification of passage of the physical fitness test, notify the Director of Recruitment for DOC that they are seeking employment as a priority hire, as set forth in the Stipulated Agreement. Id. ¶ 28. Only those class members who successfully complete the entire CO selection process are eligible for priority hiring status. Id. Class members who declined to participate in or failed to advance within the 2012 priority hiring process are also eligible to participate in the second priority hiring process. Id.
H. Attorneys’ Fees and Litigation Costs Under the Stipulated Agreement, Defendant will pay Class Counsel a negotiated amount of $1,232,463 as complete settlement of Plaintiff’s entitlement to attorneys’ fees and costs through the termination of the case (including the disbursement of the settlement proceeds to the Class). Id. ¶ 48. Plaintiff will file a Motion for Approval of Attorneys’ Fees and Costs and Incentive Award, along with a Motion for Final Approval of Settlement.12 This value was reached following extensive mediations with Judge Fitzsimmons, who recommended settlement of fees and costs in this amount after accepting detailed submissions from both parties. Dugger Decl. ¶ 30.
I. Service Award In addition to her individual award under the allocation formula, Plaintiff Cherie Easterling seeks a reasonable service payment of up to $10,000, in recognition of the services she rendered on behalf of the class (“Service Award”). Dugger Decl., Ex. B (Stipulated
12 Class Counsel will also share $40,000 of their attorney’s fee award with the Law Offices of Jamie L. Mills pursuant to an agreement between the firms. The Law Offices of Jamie L. Mills provided assistance in the early phase of the case and Class Counsel is not seeking any additional fees or costs for their work. Dugger Decl. ¶ 30 n.1.
15

Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 22 of 38
Agreement) ¶ 41. This payment will be deducted from the gross back pay damages award in addition to Plaintiff Easterling’s pro rata share of the back pay award. Id. Plaintiff Easterling will submit a motion seeking an incentive payment in addition to attorney’s fees and costs. Dugger Decl. ¶ 40.
III. Class Action Settlement Procedure Courts have established a defined procedure and specific criteria for settlement approval in class action settlements that include three distinct steps: 1. Preliminary approval of the proposed settlement after submission to the Court of a
written motion for preliminary approval and certification of the settlement class; 2. Dissemination of mailed and/or published notice of settlement to all affected class
members; and 3. A final settlement approval hearing at which class members may be heard
regarding the settlement, and at which argument concerning the fairness, adequacy, and reasonableness of the settlement may be presented. See Fed. R. Civ. P. 23(e); see also Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”) §§ 11.22 et seq. (4th ed. 2002); Reyes v. Buddha-Bar NYC, No. 08 CV 02494, 2009 WL 5841177, at *1-2 (S.D.N.Y. May 28, 2009). This process safeguards class members’ procedural due process rights and enables the Court to fulfill its role as the guardian of class interests. With this motion, Plaintiff requests that the Court take the first step – granting preliminary approval of the Stipulated Agreement, approving the proposed notices, and authorizing the claims administrator to send it. Plaintiff respectfully submits the following specific schedule for final resolution of this matter for the Court’s approval: 1. Following preliminary approval, and prior to mailing notice, Class Counsel will run a search for any new addresses for each class member reported since January 1, 2012, on Westlaw People Search. 2. On August 2, 2013, Class Counsel will mail the notices to class members (class members for whom Class Counsel has not received SSA and IRS authorization
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forms will also receive the required forms and a pre-paid envelope for delivery to Class Counsel), at their last known address, as well as any additional addresses provided by Westlaw People Search, for the period after January 1, 2012. Class members for whom Class Counsel have received completed IRS and SSA authorization forms will receive the notice attached to the Dugger Decl. as Ex. C, and class members for whom Class Counsel has not received completed authorizations will receive the notice attached to the Dugger Decl. as Ex. D.
3. Class members will have until September 3, 2013, to opt out of or object to the settlement (“Notice Period”).
4. A final fairness hearing will occur on September 10, 2013 at 2:00 pm.
5. Plaintiff will file a Motion for Final Settlement Approval and Motion for Approval of Attorney’s Fees and Costs by September 6, 2013.
6. After the fairness hearing, if the Court grants Plaintiff’s Motion for Approval of Settlement, the Court will issue a Final Order and Judgment. If no party objects to the proposed settlement, the “Effective Date” of the settlement will be the day the Court enters its Final Order and Judgment.
7. If an individual or party object to and appeals the Court’s Final Order and Judgment, the “Effective Date” of the settlement shall be the day after all appeals are finally resolved in favor of final approval and the time for any further appeal, rehearing, or reconsideration has expired.
8. Class Counsel will mail class members a copy of the Final Order and Judgment and the pension credit request form, Dugger Decl., Ex. E (Pension Credit Request Form), within seven days of the Effective Date of settlement. Following approval of the settlement, Class Counsel will also send a short follow-up notice, to be agreed to by both parties, and ultimately approved by the Court at the fairness hearing, containing the final deadline for submitting SSA and IRS authorizations (to class members that have failed to submit them), and any other information agreed to by the parties.
9. Defendant will disburse one check in the amount of $1,851,892 (gross back pay relief) and one check in the amount of $1,232,463 (attorney’s fees and costs) to Class Counsel within thirty days of the Effective Date of settlement.
10. Back pay award checks will be mailed to class members one hundred and fifty days after the Effective Date of the settlement. If, after Class Counsel submits the IRS and SSA authorization forms, it does not receive SSA and/or IRS information from the respective agencies (for any given class members in any given year) within one hundred and thirty-five days of the Effective Date of settlement, Class
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Counsel will designate that year a value of $10,000 in wages with respect to the class member’s wages/damages calculations.13 11. Class Counsel will deduct the amount of outstanding liens due and owing to the State of Connecticut from the disbursement made to each class member who is subject to such lien(s) and remit those funds to the State at the time the disbursement check is sent to the class member. Defendant’s counsel will provide Class Counsel with a list of such outstanding liens. 12. Funds that remain undisbursed because class members do not cash their back pay award checks within ninety days of receipt (as required by the Stipulated Agreement ¶ 25) will be disbursed to the class members who deposited checks within the required ninety days. This second distribution of the remaining funds will be apportioned equally, to all class members who deposit their checks within the deadline, and will be disbursed sixty days after the latest deadline for all class members to have deposited their back pay award check. Dugger Decl. ¶ 41.
ARGUMENT IV. Preliminary Approval of the Settlement Is Appropriate.
The law favors compromise and settlement of class action suits. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116-17 (2d Cir. 2005) (quoting In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir. 1998)) (internal quotation marks omitted) (noting the “strong judicial policy in favor of settlements, particularly in the class action context”); Newberg § 11.25 (4th ed.) (“The compromise of complex litigation is encouraged by the courts and favored by public policy.”). The approval of a proposed class action settlement is a matter of discretion for the trial court. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1998). In exercising their discretion, courts should give “proper deference to the private consensual decision of the parties.” Torres v. Gristede’s Operating Corp., Nos. 04 CV 3316, 08 CV 8531, 08 CV 9627, 2010 WL 2572937, at *2 (S.D.N.Y. June 1, 2010) (quoting Clark v. Ecolab, Inc.
13 See also supra note 8. 18

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Nos. 07 CV 8623, 04 CV 4488, 06 CV 5672, 2009 WL 6615729, at *3 (S.D.N.Y. Nov. 17, 2009)) (internal quotation marks omitted).
Preliminary approval requires only an “initial evaluation” of the fairness of the proposed settlement on the basis of written submissions and an informal presentation by the settling parties. Newberg § 11.25. The Court need only find that there is “‘probable cause’ to submit the [settlement] to class members and hold a full-scale hearing as to its fairness.” In re Traffic Exec. Ass’n, 627 F.2d 631, 634 (2d Cir. 1980); see Newberg § 11.25 (“If the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness . . . and appears to fall within the range of possible approval, the court should permit notice of the settlement to be sent to class members.”).
“As such, [preliminary approval] is appropriate where it is the result of serious, informed, and non-collusive negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies . . . , and where the settlement appears to fall within the range of possible approval.” Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80, 101 (D. Conn. 2010) (quoting Reade– Alvarez v. Eltman, Eltman & Cooper, P.C., 237 F.R.D. 26, 33 (E.D.N.Y. 2006) (internal quotation marks omitted); see also Authors Guild v. Google, Inc., No. 05 CV 8136, 2009 WL 4434586, at *1 (S.D.N.Y. Dec. 1, 2009); Chin v. RCN Corp., No. 08 CV 7349, 2010 WL 1257586, at *2 (S.D.N.Y. Mar. 12, 2010)).
A court decides whether a proposed settlement falls within the range of possible approval by looking to its fairness. See Stolt-Nielsen S.A., 270 F.R.D. at 101-02. “Fairness is determined upon review of both the terms of the settlement agreement and the negotiating process that led to such agreement.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 184 (W.D.N.Y. 2005). “A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached
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in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Wal-Mart Stores, 396 F.3d at 116 (quoting Manual for Complex Litigation, Third, § 30.42 (1995)) (internal quotation marks omitted). “‘Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.’” Willix v. Healthfirst, Inc., No. 07 CV. 1143, 2011 WL 754862, *2 (E.D.N.Y. Feb. 18, 2011) (quoting In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 CV 10240, 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007)); see also Capsolas v. Pasta Res., Inc., No. 10 CV 5595, 2012 WL 1656920, at *1 (S.D.N.Y. May 9, 2012).
The first step in the settlement process simply allows notice to issue to the class and for class members to object or opt out of the settlement. After the notice period, the Court will be able to evaluate the settlement with the benefit of the class members’ input.
A. The Settlement Is Fair Reasonable and Adequate. In evaluating a class action settlement, courts in the Second Circuit consider the nine factors set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberg v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). Although the Court need not evaluate the Grinnell factors in order to conduct its initial evaluation of the settlement, for purposes of evaluating the settlement’s fairness, it is useful for the Court to consider these criteria. The Grinnell factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of
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the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463.
Here, the protracted litigation and posture of the case make several of the factors less relevant to the fairness inquiry. First, because this Court granted class certification (with one later modification) and granted Plaintiff’s Motion for Summary Judgment, the first and fourth factors (regarding duration of litigation and risk of establishing liability) are less relevant. Additionally, because Defendant is the State of Connecticut, the seventh factor (regarding ability to withstand greater judgment) is also less relevant. All of the rest of the Grinnell factors weigh in favor of approval of the Stipulated Agreement, and certainly in favor of preliminary approval.
1. The Reaction to the Settlement Has Been Positive (Grinnell Factor 2).
“It is well settled that the reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy.” In re Sturm, Ruger, & Co., Inc. Sec. Litig., 09 CV 1293, 2012 WL 3589610, at *5 (D. Conn. Aug. 20, 2012) (citing In re Am. Bank Note Holographics, Inc., 127 F. Supp. 2d 418, 425 (S.D.N.Y.2001)).
After notice issues and class members have had an opportunity to be heard, the Court can more fully analyze this factor. At this point, the Named Plaintiff has indicated her support for the settlement. Dugger Decl. ¶ 33. Based on Class Counsel’s communications with the class over the course of the last year, most class members expected to receive far less than the $15,000 in back pay that will be the average award if all 124 class members participate. Id. ¶ 39. In addition, many class members have also expressed strong interest in receiving their awards in the near future. Id. ¶ 34.
Indeed, Class Counsel is particularly attuned to the interests of the class because they have mounted extraordinary outreach efforts to identify class members, keep them informed, and
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obtain extensive information and documentation regarding their circumstances in response to Defendant’s request for class wide discovery. Id. ¶ 35-39. Shortly after the commencement of the remedial damages phase, Class Counsel conducted two in-depth class meetings in Connecticut in early June 2012. Id. ¶ 36. At these meetings, Class Counsel spent considerable time explaining the nature of the class claims and procedural posture of the case, as well as answering a wide range of questions from class members regarding the potential scope of relief. Id. These class meetings not only resulted in class members having a particularly acute understanding of the claims, they likewise provided Class Counsel with insight into the views, opinions, and expectations of the class. Id. Following these class meetings, Class Counsel conducted close to 100 in-depth interviews of class members in anticipation of Defendant’s requests for class discovery. Id. ¶ 21. Over the course of the remedial proceedings, Class Counsel has also made or received more than a thousand class member telephone calls. Id. ¶ 36.
Accordingly, given these extensive interactions with members of the class (atypical of most Title VII class actions) Class Counsel is confident that they have accurately forecast that the class will respond favorably to the proposed settlement. Id. ¶¶ 37-38.
2. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly (Grinnell Factor 3).
The parties have completed enough discovery to recommend settlement. The proper question is “whether counsel had an adequate appreciation of the merits of the case before negotiating.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004) (internal quotation marks omitted). “[T]he pretrial negotiations and discovery must be sufficiently adversarial that they are not designed to justify a settlement . . . but an aggressive effort to ferret out facts helpful to the prosecution of the suit.” In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 176 (S.D.N.Y. 2000) (internal quotation marks omitted).
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The parties’ litigation efforts and discovery here meet this standard. As outlined above, the litigation thus far has been “an aggressive effort” by both parties, including a motion to dismiss, cross-motions for summary judgment, a motion for class certification motion, a motion for decertification, and briefing on the proper scope of gross class damages.
The parties have also engaged in extensive investigatory and discovery efforts. While few previous Title VII class actions had been extensively litigated post-liability, Defendant vigorously contested the remedial damages phase in this action. Dugger Decl. ¶ 25. Indeed, Defendant served extensive class interrogatories and document requests regarding all potential defenses to individualized relief. Id. ¶ 20.
As a result, Class Counsel made extraordinary efforts to contact class members (many of whom Defendant did not have current contact information for), including utilizing: (1) electronic databases; (2) a private investigator; and (3) a contract attorney to conduct home visits for class members that were otherwise unreachable. These efforts led to communication with almost 80% of class members, a ratio which greatly exceeds comparable class actions. Id. ¶ 35.
After identifying class members, Class Counsel obtained comprehensive information, from 2004 to the present, regarding class members’ income, job history, current eligibility for the CO position, and additional potentially relevant information. Id. Class Counsel obtained this information through: (1) extensive interviews of almost 100 class members (many of which were in-person home visits); and (2) collecting SSA and IRS authorization forms providing Class Counsel with detailed salary and employment information for almost 100 class members. Id. ¶ 21. Much of this information was shared with defense counsel in the context of settlement discussions. Id. Class Counsel also obtained and analyzed massive amounts of information regarding Defendant’s potential defenses to instatement and front pay relief. Plaintiff served
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extensive document requests and interrogatories on Defendant concerning all post-liability defenses to individual back pay, instatement, and/or front pay relief (as well as all pre-liability issues). Id. ¶¶ 22-23. Class Counsel also conducted a Fed. R. Civ. P. 30(b)(6) deposition concerning Defendant’s employment processes. Id. ¶ 24.
Similarly, prior to the Court’s finding of liability, the parties engaged in vigorous litigation and discovery, as chronicled in this Court’s previous decisions. By way of a general summary, prior to the finding of liability: (1) the parties conducted six pre-liability depositions (including expert depositions); (2) Defendant unsuccessfully moved to dismiss; and (3) the parties submitted cross-motions for summary judgment as to liability. Id. ¶ 19.
Accordingly, the parties were well-equipped to evaluate the strengths and weaknesses of their respective claims and defenses. The extensive (and protracted) litigation in both the preliability and post-liability phases of this litigation strongly favors preliminary approval.
3. The Risk of Establishing Damages for the Class through Trial (Grinnell Factor 5).
Although the class has strong claims, Title VII disparate impact class actions are subject to considerable risk at trial, even when the only issues that remain are the scope of individualized relief available in the remedial damages phase. Even following liability, Defendant still maintained the right to raise individualized affirmative defenses as to each class member’s entitlement to back pay, the amount of back pay relief, and instatement rights. See 42 U.S.C. § 2000e-5(g)(2)(A); Robinson, 267 F.3d at 162 (following a finding of liability “the class member is entitled to individual relief unless the employer in turn can establish by a preponderance of the evidence that a legitimate non-discriminatory reason existed for the particular adverse action”) (emphasis added).
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In fact, Wal-Mart Stores, Inc. v. Dukes, recently reminded litigants that Defendant’s affirmative defenses cannot be determined based on a “trial by formula,” but must be resolved in individualized Teamsters hearings. Dukes, 131 S.Ct. at 2561 (2011) (quoting Teamsters, 97 S.Ct. 1843) (emphasis added) (internal quotation marks omitted) (“We have established a procedure . . . that gives effect to these statutory requirements” in which “the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.”).
Substantial risk existed for each class member that their back pay award would have been reduced following individualized Teamsters hearings through: (1) an attack on the scope of each class member’s mitigation efforts; and/or (2) Defendant’s potential ability to establish that a class member would have been disqualified from the CO position in 2004 or 2006 for an alternative lawful reason. Dugger Decl. ¶ 43.
Defendant settled this litigation without reducing the gross class damages for individual mitigation failures. This was a concession made in furtherance of settlement and benefited the class as a whole. Id. ¶ 42.
4. The Risks of Maintaining the Class Action Through the Trial (Grinnell Factor 6).
Although Plaintiff was successful in certifying the class and withstanding a motion to decertify, Defendant’s potential appeal of class certification was not an insubstantial risk for the class. The legal framework for class actions undeniably shifted during the pendency of this litigation, at one point, requiring the Court to modify the initial certification decision. Easterling III, 278 F.R.D. 41. Indeed, the Second Circuit’s leading decision on Title VII class certification, upon which the Court initially relied in certifying the class, was abrogated in part by the
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Supreme Court’s Dukes decision. Id. Given the legal landscape, Plaintiff’s class certification may have been exposed to further modification on appeal, and the settlement of these claims ensured the class would avoid the associated risks and delays.
5. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation (Grinnell Factors 8 and 9).
The $1,851,892 settlement of back pay, as well as the hiring processes and additional benefits, represent a good value given the risks of continued litigation. In Class Counsel’s estimation, the back pay settlement represents a significant percentage of the recovery that Plaintiff and the class would have achieved if they succeeded on all claims at trial and survived an appeal.14 Dugger Decl. ¶ 44. As discussed above, settlement of the class claims means that class members will receive close to the maximum value for their claims because they will not be subject to reduction by mitigation defenses. The primary discount to the gross class damages award has been: (1) an agreement to accept a slight reduction in value to reflect potential of unemployment benefits; and (2) removal of the value of pension benefits from back pay and substitution of pension credits. Id.
Moreover, in addition to a pro rata back pay distribution, each class member is (or was) eligible to: (1) participate in the 2012 priority hiring process; (2) participate in a second priority hiring process applicable to the next time Defendant accepts applications for the CO position: (3) receive compensation in lieu of certain seniority benefits for up to 28 successful priority hires;
14 Even if the relief obtained were far less favorable, it would not necessarily preclude the approval of the settlement, as “there is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” Grinnell, 495 F.2d at 455 n.2. “It is well settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 688 F.2d 615, 628 (E.D. Tex. 1982); see also Cagan v. Anchor Sav. Bank FSB, No. 88 CV 3024, 1990 WL 73423, at *12-13 (E.D.N.Y. May 22, 1990) (approving $2.3 million class settlement over objections that the “best possible recovery would be approximately $121 million”).
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(4) receive a prospective adjustment of regular and overtime pay; (5) receive a prospective adjustment of rate of vacation and sick time accrual; and (6) receive pension credits. See Dugger Decl, Ex. B (Stipulated Agreement).
Although Plaintiff could have appealed the Court’s determination that Defendant was not obligated to put forward evidence disqualifying each of the 124 class members, the Court’s resolution of this issue was not unsupported by pre-Dukes case law, making the prospects for a successful appeal far from certain. See ECF 123 at 14. Weighing the significant scope of the monetary and non-monetary benefits of the settlement, against the risks associated with proceeding in the litigation, the settlement is more than reasonable.15
Moreover, when, as here, settlement assures immediate payment of substantial amounts to class members, “even if it means sacrificing ‘speculative payment of a hypothetically larger amount years down the road,’” it is all the more reasonable under this factor. See Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 CV 3452, 2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008) (quoting Teachers’ Ret. Sys. of Louisiana v. A.C.L.N. Ltd., No. 01 CV 11814, 2004 WL 2997957, at *5 (S.D.N.Y. May 14, 2004)). Indeed, many class members have expressed strong interest in payment now instead of further litigation. Dugger Decl. ¶ 34.
Nor is the gross class damages methodology cause to question the fairness of this settlement. As this Court has already recognized, when “the number of qualified class members exceeds the number of openings lost to the class through discrimination,” City of New York, 276
15 The determination of whether a settlement amount is reasonable “does not involve the use of a ‘mathematical equation yielding a particularized sum.’” Frank, 228 F.R.D. at 186 (quoting In re Austrian and German Bank Holocaust Litig., 80 F. Supp. 2d 164, 178 (S.D.N.Y. 2000)). “Instead, ‘there is a range of reasonableness with respect to a settlement – a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion.’” Id. (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)).
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F.R.D. at 39; Robinson, 267 F.3d at 161 n. 6; see also Ingram, 709 F.2d at 812-13; United States v. City of Miami, 195 F.3d 1292, 1299-01 (11th Cir. 1999); Segar v. Smith, 738 F.2d 1249, 128991 (D.C. Cir. 1984), and the “identification of the individuals entitled to relief would drag the court into a quagmire of hypothetical judgments and result in mere guesswork,” courts in the Second Circuit utilize a modified “gross” form of proof. City of New York, 276 F.R.D. at 44 n.11 (internal quotations marks and citation omitted). Specifically, to avoid “mere guesswork,” the Second Circuit holds that “[t]he fairer procedure [is] to compute a gross award for all the injured class members and divide it among them on a pro rata basis.” City of New York, 276 F.R.D. at 39 (quoting Ingram, 709 F.2d at 812-13). Absent this procedure, each class member could pursue her damages claim as an individual with a presumption of liability, yet her damages award, litigated separately, would be unbound from the total number of positions that were available. See, e.g., Ingram, 709 F.2d at 812-13.
Similarly, the fact that the settlement procedure takes into account the difference in annual income between class members and the CO position, but not the difference in the value of each class member’s fringe benefits, is not a reason to disapprove this settlement agreement. Certainly, “[u]nrealistic exactitude is not required in determining back pay.” Grant, 622 F.2d at 47 (quoting EEOC v. Enter. Ass’n. Steamfitters, 542 F.2d 579, 587 (2d Cir. 1976)); see also Teamsters, 431 U.S. at 372 (internal quotation marks omitted) (citing Franks, 424 U.S. at 769). Indeed, averages are often used by courts even when fashioning equitable remedies in individual Title VII discrimination cases. See, e.g., Maturo v. Nat’l Graphics, Inc.,722 F. Supp. 916, 929 (D. Conn. 1989) (utilizing average hours worked a week to calculate plaintiff’s backpay award); see also James v. Nat’l R.R. Passenger Corp., No. 02 CV. 3915, 2005 WL 6182322, at *10 (S.D.N.Y. Mar. 3, 2005) (“The determination of back-pay need not be made with mathematical
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exactitude” and there “was sufficient evidence in the record [for] a reasonable estimation of plaintiff’s average workweek during her employment.”).
Here, the proposed methodology means that each class members’ award reflects her proportional lost wages from the failure to obtain the CO position. The less money a class member made with respect to their peers, the higher their share of the gross class damages award. This approach is reasonable and applies the pro rata distribution methodology that the Court endorsed (and neither party appealed), without requiring complicated calculations concerning the value of all of each class member’s fringe benefits.
B. The Proposed Notices Are Appropriate. The contents of the proposed Notices, which are attached as Exhibit C and D to the Dugger Decl., comply fully with due process and Federal Rule of Civil Procedure 23. Pursuant to Rule 23(c)(2)(B), the notice must provide: the best no tice that is p racticable under the circum stances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and state in plain, easily understood langua ge: (i) the nature of the action; (ii) the def inition of the class certif ied; (iii) the c lass claims, issues, o r defenses; (iv) that a class member may enter an appearance through counsel if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the tim e and m anner for reque sting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). The Notices satisfy each of these requirements. They generally explain the pro rata distribution methodology, the allocation of attorneys’ fees and costs, the priority hiring processes, the prospective wage rate and accrual adjustments, the one-time payment, and the pension credit. The Notices also provide specific information regarding the date, time, and place of the final approval hearing and how to object to or exclude oneself from the settlement. This information is adequate to put class members on notice of the proposed settlement and is well within the requirements of Rule 23(c)(2)(B).
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The proposed settlement procedure provides that Class Counsel will mail the Notices to the last known address of each class member (as well as any additional new addresses found through Westlaw People Search for the period after January 1, 2012). Dugger Decl. ¶ 41. Class Counsel will mail the notice attached as Exhibit C the Dugger Decl. to class members that have sent Class Counsel completed IRS and SSA authorization forms. Id. Class Counsel will mail the notice attached as Exhibit D the Dugger Decl. to class members that have not sent Class Counsel completed IRS and SSA authorization forms, as well as the required SSA and IRS authorization forms and a pre-paid return envelope. Id. Class members will have thirty days to opt out of the settlement and/or object to the settlement, and sixty days after final approval of the settlement to return the signed IRS and SSA authorization forms. Id. If a class member submits an incomplete authorization, Class Counsel will send written notification of such deficiency within five days, and the class member will have fourteen from such date to submit the corrected authorization to Class Counsel via facsimile (or will have until their original deadline to mail the new forms to Class Counsel). Id.
In sum, because the information provided in the proposed Notices comply fully with the Rule 23 requirements in a clear and precise manner, it should be approved by the Court for dissemination to the Class.
CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that the Court preliminarily approve the settlement, approve the Notices, approve the proposed settlement procedure, and enter the Proposed Order. See Dugger Decl., Ex. F (Proposed Order). Dated: July 23, 2013 New York, New York
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Respectfully submitted, OUTTEN & GOLDEN LLP /s/ Adam T. Klein Adam T. Klein OUTTEN & GOLDEN LLP Adam T. Klein Tammy Marzigliano Cyrus E. Dugger 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 Email: atk@outtengolden.com
tm@outtengolden.com cdugger@outtengolden.com
PUBLIC CITIZEN LITIGATION GROUP Michael T. Kirkpatrick (phv02893) Public Citizen Litigation Group 1600 20th Street NW Washington, DC 20009 Telephone: (202) 588-1000 Facsimile: (203) 588-7795 Email: mkirkpatrick@citizen.org
Attorneys for Plaintiff and the Class
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Case 3:08-cv-00826-JCH Document 243 Filed 07/24/13 Page 38 of 38 CERTIFICATE OF SERVICE
I hereby certify that on July 24, 2013, a copy of the foregoing was filed electronically or served by certified mail to anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system or by certified mail for anyone unable to accept electronic filing. The parties may access this filing through the Court’s system.
/s/ Adam T. Klein
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 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CHERIE EASTERLING, Plaintiff,
v.
STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION,
Defendant,

:

:

:

CIVIL ACTION NO.

:

3:08-cv-0826 (JCH)

:

:

:

:

JANUARY 4, 2010

RULING RE: PLAINTIFF’S MOTION FOR CLASS CERTIFICATION (Doc. No. 57) I. INTRODUCTION
In 2004, the plaintiff, Cherie Easterling, applied to work as a Correction Officer (“CO”) with the defendant, State of Connecticut Department of Correction (the “DOC”). Easterling brings this action on behalf of herself and a class of similarly situated applicants against the DOC, asserting that the DOC violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq. (“Title VII”), by using an employment practice – a discriminatory physical fitness test – that caused a disparate impact on the basis of sex, and that was neither job-related nor consistent with business necessity.
Plaintiffs now move the court to certify a class action under Federal Rule of Procedure 23(b)(2). See Pl.’s Mot. for Class Certification (“Mot. for Class Cert.”) (Doc. No. 57). For the reasons that follow, the court grants the Motion. II. BACKGROUND
A. Summary of Facts The State of Connecticut Department of Correction operates eighteen correctional facilities throughout Connecticut. Facilities Page, Exh. 5 to Mot. for Class Cert. In order to obtain a Correction Officer position within one of these DOC facilities,

a candidate must possess a high school diploma or G.E.D., be at least twenty-one years of age, be in good health, have a good educational or work record, and be free from felony convictions. Correction Officer Exam Announcement, Exh. 3 to Mot. for Class Cert. Applicants who meet these criteria first take a written examination. Libby Dep., Exh. 8 to Mot. for Class Cert. at 9. If an applicant passes the written exam, they would then take a physical fitness test (“PFT”). Id. Only if an applicant passes both the written and physical examinations is their application turned over to the DOC for interviews, background checks, and medical examinations. Id. at 10. Once an applicant has passed through each of these steps successfully, it is “more than likely” that the applicant will be hired by the DOC. Callahan Dep., Exh. 9 to Mot. for Class Cert. at 37.
The physical fitness test consists of four parts, and failing any one part causes a candidate to fail the entire test. See Libby Dep. at 14.1 Prior to 2007, the physical fitness test included: (1) a sit and reach test; (2) a one-minute sit-up test; (3) a oneminute push-up test; and (4) a timed 1.5-mile run. See id. The minimum standards for candidates were arranged by gender and age. See State of Connecticut Physical Fitness Score Sheet (“PFT Score Sheet”) Exh. 1 to Mot. for Class Cert. For example, a female candidate in the 21-29 age group was required to complete the 1.5-mile run in
1 The physical fitness test was developed by the Department of Administrative Services (DAS) with input from the DOC. Under Connecticut law, the Commissioner of Administrative Services, or his authorized agent, is statutorily responsible for adm inistering the selection program s that identify qualified candidates for appointment to, or promotion in, state agencies. See Conn. Gen. Stat. § 5-200a, et seq. This includes, inter alia, the creation and adm inistration of written and oral tests as well as tests of skill or physical ability. See Conn. Gen. Stat. § 5-219. Easterling does not dispute that the DAS, with input from the DOC, developed and adm inistered the physical fitness test at issue in this suit. In an earlier Ruling, this court held that Easterling’s failure to join the DAS as a party did not warrant dism issal pursuant to Federal Rule of Civil Procedure 12(b)(7). See Ruling Re: Mot. to Dismiss (Doc. No. 50).
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14 minutes, 49 seconds; a female candidate in the 50+ age group was required to complete the 1.5-mile run in 17 minutes, 14 seconds. See id. The corresponding standards for male candidates were 12 minutes, 25 seconds for the 21-29 age group, and 14 minutes, 50 seconds for the 50+ age group. See id. These standards are based upon the Cooper Institute’s age and gender norms for fitness, and represent the 40th percentile of performance according to age and gender. See Anderson Dep., Exh. 17 to Mot. for Class Cert. at 14. The Cooper Institute has stated that using its “percentile rankings. . . for standards is not defensible” because the standards “do not predict the ability to do the job and do not demonstrate criterion validity.” Cooper Institute Document, Exh. 18 to Mot. for Class Cert.
The 1.5-mile timed run was administered as part of the PFT in October 2004, June 2006, and October 2006. See Mot. for Class Cert. at 4. For each of these tests, the DOC used the Cooper Institute 40th percentile marks as minimum standards. See Information Pamphlets Regarding DOC Test, Exhs. 14-16 to Mot. for Class Cert. On each of these three occasions that the 1.5-mile test was administered, women failed the test at a higher percentage than men, although there is a dispute as to the specific passage rates. Easterling claims that in 2004, 62% of female applicants passed the run component, whereas 82% of male applicants passed. See 2004 Test Data, Exh. 10 to Mot. for Class Cert. However, the DOC asserts that in 2004, 87% of male applicants passed, whereas 71% of female applicants passed. See Libby Decl., Exh 1 to Opposition to Mot. for Class Cert. (“Opposition”) (Doc. No. 61) at ¶ 15. For the June 2006 test, Easterling contends that 59% of the female applicants passed, while 84% of men passed. See June 2006 Test Data, Exh. 11 to Mot. for Class Cert. With respect
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to the October 2006 exam, Easterling asserts that 46% of women who performed the run component passed whereas 77% of men passed. See October 2006 Test Data, Exh. 12 to Mot. for Class Cert. The DOC contends that, for the entire 2006 period, 73% of women passed, while 91% of men passed. See Libby Decl. at ¶ 16. Easterling also offers the report of a statistical expert, Dr. Alex Vekker, who asserts that there “is a big statistically significant gender disparity in test outcomes.” Vekker Report, Exh. 23 to Mot. for Class Cert. at 3. Specifically, he opines that the gender disparity for the October 2004, June 2006, and October 2006 tests is 5.8, 6.8, and 2.7 standard deviations, respectively. Id. at 4. There appears to be no dispute that the physical fitness test has not been shown to be predictive of who can and cannot perform the essential or critical physical functions of the job of CO.
In 2004, Cherie Easterling, a resident of Bloomfield, Connecticut, applied for employment as a Correction Officer with the DOC. See id. ¶ 27. She took and passed the written exam. See PFT Score Sheet. In October 2004, Easterling took the physical fitness test. See Physical Fitness Confirmation Sheet, Exh. 2 to Mot. for Class Cert. Although Easterling passed the “sit and reach test,” the “one-minute sit-up test,” and the “one-minute push-up test,” she failed the 1.5-mile run portion of the test. See PFT Score Sheet. As a result of failing the 1.5-mile run test, Easterling was precluded from advancing in the DOC selection process.
In 2007, the DOC modified the physical fitness component of its selection process. See Libby Dep. at 22. Instead of a timed 1.5-mile run, the DOC is now piloting a 300-meter run test. See id. at 22, 37. No concerns have been raised about the potential for the 300-meter test to have a disparate impact on female applicants.
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See Callahan Dep. at 49. B. Procedural History On April 22, 2005, Easterling, on behalf of herself and similarly situated
individuals, filed administrative charges of discrimination on the basis of sex with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) and with the Equal Employment Opportunity Commission (“EEOC”), against the DOC. See Cmplt. at ¶ 8. On February 1, 2008, the CHRO issued a Release of Jurisdiction. See id. at ¶ 9. On February 4, 2008, the EEOC forwarded Easterling’s request for a Notice of Right to Sue to the United States Department of Justice (the “DOJ”). See id. at ¶ 10. On March 4, 2008, the DOJ Civil Rights Division issued a Notice of Right to Sue. See id. Easterling initiated the present action in the District of Connecticut on May 30, 2008, naming the DOC as the sole defendant. Easterling now moves the court to certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(2). III. STANDARD OF REVIEW
Plaintiffs bear the burden of showing that the class they have proposed meets the requirements for class certification. See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999); Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 484 (2d Cir. 1995). "[T]he preponderance of the evidence standard applies to evidence proffered to establish Rule 23's requirements." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008). A court must "receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met. In Re Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 41 (2d Cir. 2006) [hereinafter "In Re IPO"].
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The Second Circuit has defined the standard that district courts are to use in deciding whether a plaintiff has met its burden under Rule 23. In Re IPO, 471 F.3d at 41. A “district court may not grant class certification without making a determination that all of the Rule 23 requirements are met.” Id. at 40. These determinations “can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met.” Id. at 41. “The obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement.” Id. IV. DISCUSSION
Easterling seeks to certify as a Class: All female applicants for the position of Correction Officer (“CO”) at the State of Connecticut Department of Correction (“DOC”) who participated in the CO selection process and failed the 1.5 mile run portion of the physical fitness test at any time from June 28, 2004 and continuing to the date of final judgment in this matter.
Mot. for Class Cert. at 9. To maintain this class action, Easterling must establish the four prerequisites of every class action found in Federal Rule of Civil Procedure 23(a) and satisfy at least one of the prerequisites found in Rule 23(b). See Fed. R. Civ. P. 23(a) and 23(b).
A. Rule 23(a) Requirements Rule 23(a) of the Federal Rules of Civil Procedure sets forth the following prerequisites to class certification: One or more members of a class may sue or be sued as representative parties
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on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). These requirements are commonly referred to as "numerosity," “commonality," "typicality," and "adequacy." See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d. Cir. 2000). The DOC does not challenge that Easterling has met the “numerosity” requirement. See Opposition. The DOC only “challenges Ms. Easterling’s ability to be a representative for a class action involving the 2006 exam since she did not apply for the position of Correction Officer in 2006.” See id. at 4. While the DOC does not specifically identify which requirement of 23(a) it believes Easterling fails to meet, this lone contention it raises suggests that it challenges the Class on the ground that Easterling is an inadequate representative of any class that consists of applicants that took the exam in 2006 as well as 2004. Nonetheless, in addition to addressing the adequacy requirement, the court will also address commonality and typicality. Addressing each of these requirements is helpful considering that the Supreme Court has concluded that: “[t]he adequacy-of-representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (internal citation, quotation marks, ellipses, and brackets omitted).
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1. Adequacy “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc., 521 U.S. at 625 (internal citation omitted). “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 625-26 (internal citation and quotation marks omitted). Rule 23(a)(4) “requires courts to ask whether plaintiff's interests are antagonistic to the interest of other members of the class.”2 In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 142 (2d Cir.2001) (internal citation and quotation marks omitted). Disagreement as to the type of damages sought, however, does not mean representation is inadequate. See, e.g., Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 447 (E.D.N.Y.1995) (quoting Robertson v. National Basketball Ass'n, 389 F. Supp. 867, 899 (S.D.N.Y.1975) (holding that, even though different plaintiffs sought different types of damages, “all players, past and present, seek damages for the same acts”). Easterling, who herself applied for a CO position with the DOC in 2004 but failed the 1.5-mile run, seeks to represent a Class of plaintiffs who also applied for a CO position with the DOC but were eliminated from the applicant pool because they failed the 1.5-mile run. Easterling shares the same interest as the other members of the proposed Class, namely to: (1) enjoin the DOC from returning to the 1.5-mile test as a PFT component; (2) obtain declaratory relief; (3) obtain job instatement; (4) receive
2 Rule 23(a) also requires that the lead plaintiff's attorney “be qualified, experienced, and generally able to conduct the proposed litigation.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968); see also W eber v. Goodman, 9 F.Supp.2d 163, 171 (E.D.N.Y.1998) (citing Eisen); W alsh v. Northrop Grumman Corp., 162 F.R.D. 440, 447 (E.D.N.Y.1995) (same). The defendants do not dispute that Easterling’s counsel m eets this standard, and the court finds that this requirem ent has been satisfied.
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back and future pay; and (5) obtain punitive damages. See Cmplt. at 8-9. Moreover, Easterling has suffered the same injury -- denial of a CO position due to the allegedly discriminatory 1.5-mile run test -- as the other members in the proposed Class. This is not a case in which “differences among members of a class are such that subclasses must be established.” In re Joint E. and S. Dist. Asbestos Litig., 982 F.2d 721, 743 (2d. Cir. 1992). Therefore, the court concludes that Easterling fulfills the adequacy requirement of Rule 23(a).
2. Commonality The commonality requirement is met “if plaintiffs' grievances share a common question of law or fact” with potential class members. Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). However, "[i]t does not require that all questions of law or fact raised be common." Reese v. Arrow Fin. Servs., LLC, 202 F.R.D. 83, 91 (D. Conn. 2001) (internal citations omitted). Rather, Rule 23(a)(2) requires only that common questions exist "at the core of the cause of action alleged." Id. at 91. Where the question of law involves "standardized conduct of the defendant towards members of the proposed class. . . the commonality requirement of Rule 23(a)(2) is usually met." Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D. Ill.1984). The DOC argues that, because Easterling only took the PFT in 2004, she cannot represent a Class consisting of members that failed the PFT in 2006. See Opposition at 6. However, that Easterling did not take the test in 2006 does not negate the fact that plaintiffs’ grievances share a “common question of law or fact.” The DOC administered the identical 1.5-mile test as a component of the PFT in both 2004 and 2006. See Mot. for Class Cert. at 4. Moreover, the DOC utilized identical standards by
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which to evaluate the performance of applicants in both 2004 and 2006. See Information Pamphlets Regarding DOC Test, Exhs. 14-16 to Mot. for Class Cert. Considering that Easterling took the identical test and was judged against identical benchmarks as those applicants that took the PFT in 2006, the court concludes that there is sufficient commonality between the plaintiffs for the purposes of Rule 23(a).
This case closely resembles Gulino v. Bd. of Educ. of City School Dist. of City of New York, in which a district court in this Circuit certified a class of teachers that alleged the New York City test for teacher certification was discriminatory. 201 F.R.D. 326 (S.D.N.Y. 2001). Although the named plaintiffs failed the certification test in 1995, the court certified a class of all “African-American and Latino individuals employed as New York City public school teachers by Defendants, on or after June 29, 1995, who failed to achieve a qualifying score [on the exams].” See id. at 330. The fact that the named plaintiffs may had taken the certification exams on a different date than other members of the class did not preclude class certification. Id. Likewise, although Easterling took the PFT in 2004 while a portion of the proposed Class took the PFT in 2006, class certification is nonetheless appropriate under Rule 23(a).
3. Typicality “Typicality. . . requires that the claims of the class representatives be typical of those of the class, and 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.” Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58, 63 (D. Conn. 2003) (quoting Marisol A.,126 F.3d at 376)). “Minor conflicts, however, do not make a plaintiff's claims atypical; it is when the conflict goes to the very subject
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matter of the litigation that the conflict will defeat the claim of representative status.” Walker, 214 F.R.D. at 63-64 (quoting Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 445 (E.D.N.Y.1995)) (internal quotation marks omitted). “Differences in the degree of harm suffered, or even in the ability to prove damages, do not vitiate the typicality of a representative's claims.” Ouellette v. Int’l Paper Co., 86 F.R.D. 476, 480 (D. Vt. 1980) (citations omitted). Therefore, it is unnecessary to determine whether Easterling’s damages are the same as those suffered by others in the Class. In light of the reasoning discussed in the preceding sections, the court finds that each Class member's claim arises from the same course of events, and that each Class member would rely on similar legal arguments to prove the DOC's liability.
B. Rule 23(b) Requirements In order to be certified as a class action, a class must not only meet all Rule 23(a) requirements, but it must also qualify under one of the three Rule 23(b) subdivisions. Rule 23(b) delineates three types of class actions. The first two subsections of the Rule outline two types of cases in which class certification is especially appropriate: first, in Rule 23(b)(1), where the rights of either potential class members or the party opposing the class would be harmed by piecemeal adjudication, and second, in (b)(2), where the class seeks injunctive or declaratory relief against a party who has itself treated the class as a group in the context of its own acts or admissions. Subsection (b)(3) addresses the residual situation where class adjudication would "achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results," but where the circumstances of
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(b)(1) or (b)(2) are not met. Rules Advisory Comm. Notes, 39 F.R.D. 69, 102-03 (1966).
Plaintiffs seek class certification under Rule 23(b)(2). Rule 23(b)(2) provides for class litigation where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” FED. R. CIV. P. 23(b)(2). The relief sought need not be solely equitable in nature. When both equitable and monetary relief are sought, the district court may still certify the class under subsection (b)(2) if it determines that certification is appropriate “in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case.” Parker v. Time Warner Cable, 331 F.3d 13, 20 (2d Cir.2003) (internal quotations omitted). As the Second Circuit explained in Parker, when making a determination about subsection (b)(2) certification, the district court must first determine whether, “even in the absence of possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought.” Id. (quoting Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir.2001)). Next, the court must also consider whether “the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id.
The DOC argues that the proposed Class should not be certified under Rule 23(b)(2) because the DOC has modified its physical fitness test so that applicants must no longer perform the 1.5-mile run, and instead must adequately perform a 300-meter run. See Opposition at 3. The DOC claims that the request for injunctive relief is moot considering that no complaints have been received about the disparate impact of the
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300-meter run, see Callahan Dep. at 49, and that the Motion for Class Certification should therefore be denied because “injunctive and declaratory relief do not predominate the relief sought.” Opposition at 3-4. Easterling contends that the replacement of the 1.5-mile test with the 300-meter test has only been made on a provisional basis, and that injunctive relief remains appropriate. See Pl.’s Reply in Support of Class Cert. (“Reply”) (Doc. No. 67) at 2.
A defendant’s voluntary cessation of allegedly unlawful activities can render a claim for injunctive relief moot “only ‘if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Seidemann v. Bowen, 499 F.3d 119, 128 (2d Cir. 2007) (quoting Granite State Outdoor Advert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2d Cir. 2002)). In other words, the party “claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 327 (2d Cir. 2003) (quoting Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 174 (2000)).
In this case, defendants have not demonstrated that there is “no reasonable expectation that the alleged violation will recur.” Seidemann, 499 F.3d at 128. The DOC only asserts in its Opposition that “the physical fitness test has been modified by DAS,” but it does not allege that the 1.5-mile test cannot be reasonably expected to recur. Opposition at 3. Easterling has herself offered evidence to support the conclusion that there is a reasonable likelihood that the DOC will reinstate the 1.5-mile
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run component. During her deposition, Pamela Libby, a member of the Department of Administrative Services, made it clear that the 300-meter run has only replaced the 1.5 mile run as a “pilot program.” See Libby Dep. at 22. Libby stated that “[w]e are piloting the 300-meter run currently.” Id. Furthermore, when asked if that means “that at some later point it may be canceled,” Libby responded, “That would be correct. We have to review the data.” Id. at 37. This review process will consist of evaluating “success in the academy, turnover, workers’ comp. data, performance evaluations.” Id. Finally, when asked when the review of the 300-meter pilot program was to commence, Libby responded, “[v]ery shortly.” Id. This testimony suggests that the 300-meter run has only been implemented on a provisional basis, and that there is therefore a reasonable expectation that the DOC may return to its previous 1.5-mile run test. Therefore, the injunctive relief plaintiffs seek has not been rendered moot.
Moreover, during her deposition, Libby states that the DOC implemented the new 300-meter test only in response to the current lawsuit. See Libby Dep. at 22. When asked why the 1.5-mile run component of the exam was replaced for the 2007 exam, Libby answered: “In response to this lawsuit, we were looking for an alternative, and we are piloting the 300-meter run currently.”3 Id. Where a defendant takes steps to remedy potentially unlawful behavior following the filing of a lawsuit, courts have been willing to grant certification under 23(b)(2) because the fact that the defendant changed its behavior only in the face of a lawsuit indicates that the defendant’s
3 Although Easterling first filed her Com plaint in federal court on May 30, 2008, she first initiated her action against the DOC on April 22, 2005. At that time, Easterling, on behalf of herself and similarly situated individuals, filed adm inistrative charges of discrim ination on the basis of sex against the DOC with the CHRO and with the EEOC. See Cmplt. at ¶ 8. Therefore, despite the fact that the docket indicates this action was initiated in 2008, the DOC had notice of Easterling’s claim s from early 2005.
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commitment to its changed practice is questionable. See, e.g. Buchanan v. Consolidated Stores Corp., 217 F.R.D. 178, 189 n.14 (D. Md. 2003) (granting 23(b)(2) certification because “the fact that the no-check policy was abolished [before the Certification Ruling] does not render injunctive relief moot” in as much as “[d]efendants’ commitment to the new check acceptance policy is questionable having instituted it just several months after the filing of this lawsuit”); Mack v. Suffolk County, 191 F.R.D. 16, 21 (D. Mass. 2000) (“The Defendants bear a particularly heavy burden of establishing mootness if the challenged policy had been in place at the time the suit was filed.”). Because the DOC has failed to demonstrate that the 1.5-meter test cannot be reasonably expected to recur, and because the DOC modified that policy only in response to the filing of Easterling’s claims with the CHRO and EEOC, the injunctive relief plaintiffs seek is not moot, and certification under Rule 23(b)(2) is appropriate.
Easterling also contends that, even if the DOC had met its burden of demonstrating that there was no reasonable expectation that the 1.5-mile test will be reimplemented, class certification under Rule 23(b)(2) would still have been appropriate because injunctive relief would still predominate the Class claims. Specifically, Easterling notes that, in her Complaint, she requests “[a]n order restoring Plaintiff and Class members to their rightful positions at the [DOC],” and “[b]ack pay (including interest and benefits) for Plaintiff and Class members.” Cmplt. at ¶ 41, 42. Easterling contends that, because this relief sought is equitable in nature, certification under Rule 23(b)(2) is still appropriate even if her request for an injunction against the DOC from using the 1.5-mile test, Cmplt. at ¶ 39, has been rendered moot.
In light of the fact that the DOC has not met its burden of demonstrating that -15-

there is no reasonable expectation that the 1.5-mile test will recur, the court need not address this issue in great detail. Nonetheless, the court agrees that the remaining relief plaintiffs request is equitable in nature. See Robinson, 267 F.3d at 157 (determining that under Title VII “back pay and front pay have historically been recognized as equitable relief” and that “back pay could be sought in a [23](b)(2) class action, because, as an equitable remedy similar to other forms of affirmative injunctive relief permitted in (b)(2) class actions, it was an integral component of Title VII’s ‘make whole’ remedial scheme”) (citing inter alia Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)). The court therefore concludes that, even if the request for injunctive relief relating to the elimination of the 1.5-mile test were in fact moot, and even in the absence of possible monetary recovery, “reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought.” Parker, 331 F.3d at 20. Additionally, the “injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id. Class certification under Rule 23(b)(2) is therefore appropriate. V. CONCLUSION
For the foregoing reasons, the court concludes that the Class Easterling proposes to represent in her Motion for Class Certification satisfies the requirements of Rule 23(a). Furthermore, the injunctive relief pertaining to the elimination of the 1.5mile test has not been rendered moot by the DOC’s voluntary cessation of that exam, considering that the DOC has not demonstrated that there is no reasonable expectation that the 1.5-mile test might recur. Even if that relief was deemed moot, certification under 23(b)(2) would still be appropriate considering the nature of the remaining
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remedies that the Class seeks. Therefore, the Motion for Class Certification (Doc. No. 57) is GRANTED. SO ORDERED.
Dated at Bridgeport, Connecticut this 4th day of January, 2010. /s/ Janet C. Hall
Janet C. Hall United States District Judge
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 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CHERIE EASTERLING,

:

Individually and on behalf of all

others similarly situated,

:

v.

STATE OF CONNECTICUT

DEPARTMENT OF CORRECTION,

Defendant.

:

CRIMINAL CASE NO.

:

3:08-cv-826 (JCH)

:

:

:

:

NOVEMBER 22, 2011

:

RULING RE: MOTION TO DECERTIFY CLASS (DOC. NO. 142)

I. INTRODUCTION

This court granted plaintiff Cherie Easterling’s Motion for Class Certification

under Fed. R. Civ. P. 23(b)(2) on January 4, 2010. See Ruling Re: Class Cert. (Doc.

No. 75). The defendant, State of Connecticut Department of Correction, has moved the

court to decertify the class based on the United States Supreme Court’s ruling in Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. __, 131 S. Ct. 2541 (2011). See Mot. to Decertify

Class (Doc. No. 142). In her response, the plaintiff asks the court to instead convert the

existing class to a hybrid class, maintaining the Rule 23(b)(2) certification with regard to

the issues of liability and class-wide injunctive relief and certifying a separate class

under Fed. R. Civ. P. 23(b)(3) with regard to the determination of monetary damages

and individualized injunctive relief. The court heard oral argument on the Motion on

November 4, 2011. For the following reasons, the court denies the defendant’s Motion

to Decertify the class and, pursuant to Fed. R. Civ. P. 23(c)(1)(C), modifies its earlier

certification order as requested by the plaintiff.

1

II. BACKGROUND1 The State of Connecticut Department of Correction (“DOC”) employs Correction
Officers (“COs”), who are responsible for the confinement, safety, control, and monitoring of inmates in its facilities, and for the security of those facilities. Defendant’s Local Rule 56(a)(1) Statement (“Def.’s 56(a)(1)”), ¶ 2. In addition to satisfying certain preliminary criteria, applicants for CO positions with the DOC must pass, first, a written examination and, second, a physical fitness test. Plaintiff’s Corrected Local Rule 56(a)(1) Statement (“Pl.’s 56(a)(1)”), ¶¶ 2, 4. If both tests are passed, an applicant proceeds to an interview, followed by a background investigation and medical examination. Id. ¶ 8.
The physical fitness test administered by DOC consists of four parts, and failing any single part causes a candidate to fail the entire test. Def.’s 56(a)(1), ¶ 23. In 2004 and 2006, the physical fitness test included: (1) a sit and reach test; (2) a one minute sit-up test; (3) a one minute push-up test; and (4) a timed 1.5 mile run. Id. The time in which the 1.5 mile run had to be completed varied by age and gender. Pl.’s 56(a)(1), Ex. 4.
In 2004, Easterling applied to work as a CO with the DOC. Pl.’s 56(a)(1), ¶ 1. She passed the written examination and three of the four components of the physical fitness test, but she failed to complete the 1.5 mile run within the time allotted for her age/gender cohort. Id. ¶¶ 3, 5-6. As a result, she was precluded from advancing to the interview stage of the selection process. Id. ¶ 7.
In 2008, Easterling filed suit against DOC, alleging that its physical fitness test
1 For a more thorough discussion of the facts and procedural history of this case, see Ruling Re: Mots. for Summ. J. (Doc No. 106) at 2–10.
2

had a disparate impact on female applicants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). On January 4, 2010, the court certified the suit as a class action under Rule 23(b)(2) of the Federal Rules of Civil procedure. See Ruling Re: Mot. for Class Cert. (Doc. No. 75). On May 5, the court granted summary judgment for the plaintiff on the issue of liability. See Ruling Re: Mots. for Summ. J. (Doc. No. 133). III. LEGAL STANDARD
“Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); see also Fed R. Civ. P. 23(c)(1) (“An order that grants or denies class certification may be altered or amended before final judgment.”). However, a court “may not disturb its prior findings absent ‘some significant intervening event’ or ‘a showing of compelling reasons to reexamine the question.’” Doe v. Karadzic, 192 F.R.D. 133, 136-37 (S.D.N.Y. 2000) (internal citations omitted). “Compelling reasons for reexamination include an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Id. (citing Wilder v. Bernstein, 645 F. Supp. 1291, 1311-12 (S.D.N.Y. 1988)) (internal quotation marks omitted).
A court should be wary of revoking a certification order completely at a late stage in the litigation process. See Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984) (“[A] class can always be modified or subdivided as issues are refined for trial. . . . [I]t is an extreme step to dismiss a suit simply by decertifying a class, where a potentially proper class exists and can easily be created.”) (internal quotation marks and citations
3

omitted); see also Langley v. Coughlin, 715 F. Supp. 522, 552 (S.D.N.Y. 1989) (“[T]he Court must take into consideration that an eve-of-trial decertification could adversely and unfairly prejudice class members, who may be unable to protect their own interests.”). IV. DISCUSSION
A. Wal-Mart Stores, Inc. v. Dukes and Rule 23(b)(2) Rule 23(b)(2) of the Federal Rules of Civil Procedure (“23(b)(2)”) provides for class litigation where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Prior to the Supreme Court’s decision in Dukes, multiple circuits had held that the relief sought by a 23(b)(2) class need not be solely injunctive or declaratory in nature. See United States v. Robinson, 267 F.3d 147, 169-70 (2d Cir. 2001) (collecting cases). Under Second Circuit precedent, a district court could use Rule 23(b)(2) to certify a class seeking both injunctive and monetary relief so long as “(1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought [was] predominant [over the value or the monetary relief] . . . and (2) class treatment would be efficient and manageable.” 267 F.3d at 164 (internal quotation marks and citations omitted). In Wal-Mart Stores, Inc. v. Dukes, however, the Supreme Court rejected the Second Circuit’s broad reading of Rule 23(b)(2): 2 Rule 23(b)(2) applies onl y when a s ingle injunction or dec laratory judgment would prov ide relief to each me mber of the class. I t does not
2 Dukes overturned an en banc decision from the Ninth Circuit, not the Second. However, the Ninth Circuit’s predominance test was identical to that of the Second Circuit. See Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 616 (9th Cir. 2010) (en banc) (citing Robinson); see also Robinson, 267 F.3d at 164.
4

authorize class certification when each indiv idual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not author ize class certification when eac h class member would be entitled to an individualized award of monetary damages. 131 S. Ct. at 2557 (2010); see also id. at 2559 (“The mere ‘predominance’ of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections.”). While the Court stopped short of holding that Rule 23(b)(2) does not authorize the certification of any monetary claims, it found that “at a minimum, claims for individualized relief (like the back pay at issue [in Dukes]) do not satisfy the Rule.” Id. at 2557. This court explicitly relied on Robinson’s now-defunct predominance test when it granted Easterling’s Motion for Class Certification. See Ruling Re: Mot. for Class Cert. at 12. Neither party disputes that the Supreme Court’s wholesale disavowal of that test qualifies as a “compelling reason” for this court to reexamine its earlier certification Ruling. See Doe v. Karadzic, 192 F.R.D. 133, 136-37 (S.D.N.Y. 2000). The question is how the court should respond to this shift in controlling law. Namely, should it (1) revoke the certification entirely and dismiss the case; (2) maintain Rule 23(b)(2) certification with regard to the issues of liability and class-wide injunctive relief, but leave claims for monetary and individualized injunctive relief to be pursued in separate suits; or (3) adopt the hybrid approach suggested by the plaintiff, maintaining the Rule 23(b)(2) certification with regard to liability and class-wide injunctive relief and certifying a separate Rule 23(b)(3) class on the issues of monetary and individualized injunctive relief?
5

B. Rule 23(b)(2) Certification for Determination of Liability and Class-wide

Injunctive

Relief

Rule 23(c)(4) provides that “an action may be brought or maintained as a class

action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). In Robinson, the

Second Circuit exhorted district courts to “take full advantage of this provision to certify

separate issues in order to reduce the range of disputed issues in complex litigation and

achieve judicial efficiencies.” 267 F.3d at 167 (internal quotation marks and alterations

omitted). More specifically, the court found that a district court abused its discretion in

declining to certify the liability stage of a Title VII pattern-or-practice disparate treatment

case under Rule 23(b)(2):

[L]itigating the pattern-or-practice liabi lity phase for the class as a whole would reduce the r ange of issues in dispute and promote judicial economy. For example, if the c lass should succeed and, even assuming that the remedial stage is ultima tely resolved on a non-class basis, the issues and evidence relevant to t hose individual adjudi cations would be substantially narrowed. . . . If, on the other hand, [the defendant] succeeds at the liability stage, the question of whether it engaged in a pattern or practice of intentional discrimination that inju red its African American employees would be completely and finally determined, thereby eliminating entirely the need for a rem edial stage inquiry on behalf of each class member.

Id. at 168.

While the Robinson court’s discussion of Rule 23(c)(4) focused on a pattern-or-

practice disparate treatment claim, its logic is equally applicable to disparate impact

suits. Liability in both types of action is established via class-wide, statistical proof. See

United States v. City of New York, 2011 U.S. Dist. LEXIS 73660, at *34 (July 8, 2011

E.D.N.Y.) (“Disparate impact and pattern-or-practice [disparate treatment] claims raise

individual questions of law or fact only after the plaintiff proves that the defendant ‘acted

or refused to act on grounds that apply generally to the class.’ In the liability phase the

6

class seeks an indivisible declaration that the employer has discriminated against a protected group of which the class plaintiffs are members.”) (quoting Fed. R. Civ. P. 23(b)(2)). In both types of actions, as soon as systemic adverse treatment or impact is established, a court may enter class-wide injunctive relief without investigating the validity or value of individual class members’ claims. See Robinson, 267 F.3d at 159 (“Should the plaintiffs prove a pattern or practice of discrimination, the court may proceed to fashion class-wide injunctive relief.”); id. at 161 (“Should the plaintiffs succeed in establishing a Title VII disparate impact violation, the court may order prospective class-wide injunctive relief.”).
Dukes did not reject the Robinson court’s interpretation of Rule 23(c)(4). United States v. City of New York, 2011 U.S. Dist. LEXIS 73660, at *13 (“The Second Circuit’s interpretation of Rule 23(c)(4) is consistent with Wal-Mart’s interpretation of Rule 23(b)). Accordingly, “even where class plaintiffs file a complaint seeking non-incidental individual monetary relief, the classwide liability questions raised by their disparate impact and pattern-or-practice disparate treatment claims are properly certified under Rule 23(b)(2) and (c)(4).” Id.; see also Jermyn v. Best Buy Stores, 2011 U.S. Dist. LEXIS 104449, at *2 (finding that Dukes did not undermine the court’s earlier decision to certify an “injunction class” under 23(b)(2) and a “damages class” under 23(b)(3)).
The defendant contends that maintaining a Rule 23(b)(2) class on the issues of liability and class-wide injunctive relief in this case would be inappropriate, because the class-wide relief in question—an injunction barring DOC from using the challenged portion of its physical fitness test as part of its hiring selection process—is “meaningless” to the plaintiff. Def.’s Reply (Doc. No. 148) at 11. It points out that “the
7

State of Connecticut voluntarily stopped requiring the 1.5 mile run in 2007. Id. The
court, however, already rejected this mootness argument in its earlier certification ruling:
Where the defendant t akes steps to remedy potentially unlawful behavior following the filing of a laws uit, courts have been willing to grant certification under 23( b)(2) because t he fact that the defendant changed its behavior only in the face of a la wsuit indicates that the defendant’s commitment to its changed prac tice is questionable. See, e.g., Buchanan v. Consolidated Corp., 217 F.R.D. 178, 189 n.14 (D. Md. 2003) (granting 23(b)(2) certification because the fa ct that the no-check policy was abolished [before the Certification Ruling] does not render injunc tive relief moot” in as much as “[d]efendant s’ commitment to the new check acceptance policy is questionable having instituted it just several months after the filing of this lawsuit”); Ma ck v. Suffolk Co unty, 191 F.R.D. 16, 21 (D. Mass. 2000) (“The Defendants bear a particularly heavy burden of establishing mootness if the challe nged policy has been in place at the time the suit was filed.”) Becaus e the DOC has failed to demonstrate that the 1.5-meter test cannot be reasonab ly expected to recur, and because the DOC modified that policy only in response to the fili ng of Easterling’s claims with the CHRO and EEOC, the injunctive relief plaintiffs seek is not moot, and certification under Rule 23(b)(2) is appropriate.
Ruling Re: Mot. for Class. Cert. at 14-15. The defendant cites no new evidence that
suggests it did not, in fact, modify its policy in response to Easterling’s suit. Nor does it
cite any intervening change in law with regard to this issue. Accordingly, the court
declines to reconsider its earlier decision on this point.
In summary, the court finds that Rule 23(b)(2) certification on the issues of
liability and class-wide injunctive relief would comport with both the Supreme Court’s
recent dictates on the proper scope of Rule 23(b)(2) and the Second Circuit’s instruction
to “take full advantage” of Rule 23(c)(4) in order to “reduce the range of disputed issues
in complex litigation and achieve judicial efficiencies.”3 Robinson, 267 F.3d at 167.
Accordingly, the court declines to revoke its earlier certification entirely. See Woe v.
3 The issue of judicial efficiency is particularly salient in this case, considering that this court has already granted summary judgment to the plaintiff on the issue of liability.
8

Cuomo, 729 F.2d at 107 (“[I]t is an extreme step to dismiss a suit simply by decertifying

a class, where a potentially proper class exists and can easily be created.”). Instead,

the earlier 23(b)(2) certification is modified to include only the issues of the defendant’s

liability and the plaintiff’s claims for class-wide declaratory and injunctive relief, because,

unlike claims for monetary damages or individualized injunctions, resolution of these

issues “must perforce affect the entire class at once.” Dukes, 131 S. Ct. at 2557.

C. Rule 23(b)(3) Certification of Claims for Monetary and Individualized

Injunctive

Relief

The court next confronts the issue of whether it should separately certify

plaintiff’s claims for monetary and individualized injunctive relief under Fed. R. Civ. P.

23(b)(3) (“23(b)(3)”). See Compl. (Doc. No. 1), ¶ 42 (requesting “[b]ack pay (including

interest and benefits) for Plaintiff and Class Members); id. ¶ 41 (requesting an “order

restoring Plaintiff and Class members to their rightful positions at Department of

Correction, as applicants or employees, or in lieu of reinstatements, an order for front

pay and benefits”).

A class certified under Rule 23(b)(2) is a “mandatory” class: “The Rule provides

no opportunity for . . . class members to opt out, and does not even oblige the District

Court to afford them notice of the action.” Dukes, 131 S. Ct. at 2557. This is because

of the “indivisible nature” of the injunctive or declaratory relief covered by the Rule. Id.

(“[T]he conduct [addressed by a Rule 23(b)(2) class] is such that it can be enjoined or

declared unlawful only as to all of the class members or as to none of them.”). Rule

23(b)(3), on the other hand, “allows class certification in a much wider set of

circumstances but with greater procedural protections . . . [C]lass members are entitled

to receive the ‘best notice that is practicable under the circumstances’ and to withdraw

9

from the class at their option.” Id. (quoting Fed. R. Civ. P. 23(c)(2)(B)).

“To qualify for certification under Rule 23(b)(3) a class must meet two

requirements beyond the Rule 23(a) prerequisites: Common questions must

‘predominate over any questions affecting only individual members’; and class

resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’” 4 Amchem Products, Inc. v. Windsor, 521 U.S. 591,

615 (1997) (quoting Rule 23(b)(3)). The Rule is intended “to cover cases in which a

class action would achieve economies of time, effort, and expense, and promote . . .

uniformity of decision as to persons similarly situated, without sacrificing procedural

fairness or bringing about other undesirable results.” Id. (quoting Advisory Committee’s

Notes on Rule 23(b)(3)). Rule 23(b)(3) provides a nonexclusive list of factors for a court

to consider when determining whether a class meets its predominance and superiority

requirements:

(A) the interests of mem bers of the class in indi vidually controlling the prosecution of separate actions; (B) t he extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties lik ely to be encountered in the management of a class action.

Fed. R. Civ. P. 23(b)(3).

1.

Predominance

The Rule 23(b)(3) predominance requirement “is satisfied if resolution of some of

the legal or factual questions that qualif y each class member’s case as a genuine

controversy can be achieved through generaliz ed proof, and if t hese particular iss ues

4 The defendants do not raise any arguments with regard to the court’s initial finding that the suit satisfies the Rule 23(a) prerequisites of commonality, numerosity, typicality, and adequacy, see Ruling Re: Mot. for Class Cert. at 6–11, and the court finds no need to revisit that portion of its earlier Ruling.
10

are more substantial than the issues subject only to indivi dualized proof.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (internal quotation marks and citation omitted). In determining whet her common issues will predom inate, a court “is required to consider all factual or legal iss ues, including those conceded by the party opposing certification or resolved earlier in the litigation.” United States v. City of New York, 2011 U.S. Dist. LEXIS 73660, at *5 (citing Myers).
The liability stage of this case was re solved on the basis of generalized proof: the plaintiff made a prima facie showing— via class-wide statistical evidenc e—that the challenged physical fitness test caused a dis parate impact on the basis of sex, and the defendant failed to rebut that statistical ev idence or demonstrate a business justification for the test’s use. See generally Ruling Re: Mots. for Summ. J.
The remedial stage of a dis parate impact action, in contrast, is ty pically dominated by individualized proof:
Each class member must show that he or she was among those adversely affected by the challenged policy or practice. If this sho wing is made, the class member is entitled to individual relief unless the employer in turn can establish by a preponderance of the evidence that a legitimate nondiscriminatory reason existed for the particular adverse action. Robinson, 267 F.3d at 161-62. T he goal of this remedial assessment is to recreate “as nearly as possible . . . the conditions and relationships that would have been had there been no unlawful discrimination.” Teamsters v. United States, 421 U.S. 324, 372 (1977) (internal quotation marks and citations omitted). A court should generally limit relief “only to those class members who would have filled vacancies had there been no discrimination.” Ingram v. Madison Square Garden Center, Inc., 709 F.2d 807, 812-13 (2d Cir. 1983). However, when “the number of
11

qualified class members exceeds the number of openings lost to the class through discrimination, and identification of the individuals entitled to relief would drag the court into a quagmire of hypothetical judgments,” class-wide calculation and pro rata distribution of back pay is appropriate. Robinson, 267 F.3d at 161 n.6 (quoting Catlett v. Mo. Highway and Transp. Comm’n, 828 F.2d 1260, 1267 (8th Cir. 1987)). See also United States v. City of New York, 2011 U.S. Dist. LEXIS 73660, at *17 (“Because it is impossible to determine exactly which non-hire victims would have received job offers . . . the court must first determine the aggregate amount of individual relief to which the subclasses are entitled and then distribute that relief pro rata to eligible claimants.”).
In the present case, the court finds that it would be impossible to determine exactly which class members would have received job offers from the DOC if a 1.5 mile run had not been part of the physical fitness test. First of all, “the challenged test is administered in the early stages of the selection process.” Mot. to Decertify Class at 13. Perhaps DOC could establish at an individual hearing whether a particular candidate would have passed the subsequent medical screening and criminal background check (though defense counsel acknowledged at oral argument that DOC’s method of evaluating applicants’ criminal histories was somewhat subjective). It is harder to believe that DOC could convincingly demonstrate how a candidate would have performed in a hypothetical interview. Second, as the DOC itself acknowledges, not every candidate who successfully completes the evaluation process ultimately receives a job. Id. Instead, he or she is placed on a list of “certified” applicants from which COs are hired when positions become available. Id. How, then, could the court determine whether and when a particular plaintiff would have been selected from the list of
12

certified applicants? Rather than resort to “mere guesswork,” Robinson, 267 F.3d at 161 n.6, the court
will make an aggregate calculation of the back pay to which the class is entitled.5 This sum can then be distributed to eligible class members on a pro rata basis. The court notes that this method of assessing monetary relief “is a consequence of substantive Title VII law, and not a creative method of proof intended to accommodate the logistical demands of class proceedings.” City of New York, 2011 U.S. Dist. LEXIS 73660, at *18 (citing Dougherty v. Barry, 869 F.2d 605, 614-15 (D.C. Cir. 1989)). As such, its use does not compromise any substantive “interests of members of the class in individually controlling the prosecution of separate actions,” Fed. R. Civ. P. 23(b)(3)(A); see also Ingram, 709 F.2d 807 at 812-13 (“The fairer procedure [is] to compute a gross award for all the injured class members and divide it among them on a pro rata basis.”).
In addition to a back-pay award, the plaintiff also requests particularized injunctive relief. See Compl. ¶ 41 (requesting an “order restoring Plaintiff and Class members to their rightful positions at Department of Correction, as applicants or employees, or in lieu of reinstatements, an order for front pay and benefits). Just as it would be impossible to determine exactly which class members would have been hired in the absence of discrimination, it would be impossible to determine exactly which applicants are entitled to instatement. Accordingly, if the court were to find it appropriate to grant any injunctive relief beyond a class-wide injunction barring use of
5 The court notes that there is a strong presumption in favor of granting back-pay awards to plaintiffs who have established that they were victims of unlawful discrimination. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (“[B]ackpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purpose of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.”); E.E.O.C. v. Joint Apprenticeship Committee of Joint Industry Bd., 186 F.3d 110, 122 (“[B]ack pay is the rule rather than the exception under Title VII.”).
13

the 1.5 mile run, such relief would also need to be fashioned in the aggregate. For instance, in other Title VII cases, courts have made a limited number of
“priority hiring” slots available to class members who can show that they are currently qualified for a position. See, e.g., United States v. City of New York, 681 F. Supp. 2d 274, 287 (E.D.N.Y. 2010) (citing Franks v. Bowman Transportation Company, 424 U.S. 747, 772-73 n.31 (1976)). If this court were to adopt such a remedy, the number of priority slots awarded would, like the back-pay award, depend on a class-wide assessment of how many additional CO positions female applicants would have secured in the absence of discrimination. Calculation of a front-pay award, which the plaintiff requests as an alternative to injunctive relief, would similarly mirror the back-pay calculation methodology. Finally, the very question of which, if either, of these forwardlooking remedies should be made available is one that must be resolved for the class as a whole.
In summary, the court has identified the following issues in this case that are (or were) subject to generalized proof: (1) whether the 1.5 mile run component of the DOC’s physical fitness test had a disparate impact on female applicants; (2) whether that impact was justified by business necessity; (3) the total amount of back pay that should be awarded to the class (a figure which itself depends upon a number of common issues, including the number of additional CO positions that would have been filled by women in the absence of a discriminatory test,6 the rate at which those women would have been paid, the value of the benefits they would have received in addition to
6 At oral argument, the plaintiff’s counsel suggested that this number would be determined, essentially, by comparing the passage and placement rates of female applicants between 2004 and 2007, when the 1.5 mile run test was still in use, with the passage and placement rates of female applicants between 2007 and the present. The court, however, will require additional briefing on this issue before adopting a particular methodology.
14

salary, and time period for they should receive back pay); (4) the total number of priority

hiring slots that should be awarded, if any; and (5) the total amount of front pay that

should be awarded, if any.

Each individual claimant will still need to establish her status as a member of the

class in order to receive a pro rata share of the back-pay award. Additionally, to share

in any forward-looking relief, such as priority hiring or front pay, each claimant would

need to establish that she is currently qualified for a CO position (i.e., has completed the

new, non-discriminatory application process). Finally, the court will still need to consider

individual mitigation issues, such as a claimant’s interim earnings or failure to mitigate.

However, the court finds that these individual questions are less substantial than the

issues that will be subject to generalized proof. See City of New York, 2011 U.S. Dist.

LEXIS 73660, at *81 (finding that resolution of individual questions of eligibility and

mitigation are “of relatively minimal significance to the litigation as a whole”).

Accordingly, the court finds that the Rule 23(b)(3) requirement of predominance is

satisfied.

2.

Superiority

The court further finds that certification of the plaintiff’s claims for monetary

individualized injunctive relief would satisfy Rule 23(b)(3)’s superiority requirement.

First of all, because substantive Title VII law suggests that aggregate assessment and

pro rata distribution is a fairer method of affording individual relief in this case, it is

clearly desirable to “concentrate[e] the litigation of the claims” in this forum. See Rule

23(b)(3)(C). It would be absurd to have more than a hundred class members separately

litigate the issue of aggregate back pay, just as it would be absurd to have them

15

separately litigate the question of class-wide liability.7 Second, because the liability issue at the core of each class member’s claim has already been determined by this court, both the court and the class counsel are already familiar with much of the statistical evidence on which an aggregate assessment of back pay, front pay, or priority hiring relief will depend. See Rule 23(b)(3)(B) (instructing courts to consider “the extent and nature of any litigation concerning the controversy already begun by or against class members”). Finally, the court finds that any difficulties likely to arise in managing this class action, see Rule 23(b)(3)(D), are far less daunting than the difficulties involved in litigating over a hundred separately captioned actions. See City of New York, 2011 U.S. Dist. LEXIS 73660, at *81 (“In deciding whether class certification will achieve substantial efficiencies, the proper comparison is not between class litigation and no litigation at all, but between class litigation and actions conducted separately by individual class members.”).
By determining this case’s common remedial questions on a class-wide basis, the court will “significantly reduce[] the burden on any individual victim of discrimination to obtain relief,” Id. The class action device also provides the court with useful tools, such as the appointment of a special master, for managing the purely individual elements of class member’s claims in an efficient manner. See In Re: Nassau County Strip Search Cases, 461 F.3d 219, 231 (2d Cir. 2006). Thus, certification of the claims for individualized relief would “achieve economies of time, effort, and expense” for all parties to this litigation, Amchem Products, 521 U.S. at 615.
7 In her opposition brief, the plaintiff claims there are 177 potential class members, Pl.’s Mem. in Opp. at 1, while the defendant maintains there are a maximum of 125, Def.’s Reply at 8. At oral argument, the defendant’s counsel suggested that the discrepancy likely results from double-counting of some applicants who took the physical fitness test more than once.
16

The court finds that the plaintiff’s claims for individualized relief satisfy both the predominance and superiority requirements of Rule 23(b)(3). Accordingly, it modifies its earlier certification order to certify these claims under Rule 23(b)(3). V. CONCLUSION
For the foregoing reasons, the defendant’s Motion to Decertify Class (Doc. No. 142) is denied. The court, however, modifies its earlier certification order as follows: the plaintiff’s claims for class-wide declaratory and injunctive relief are certified under Rule 23(b)(2), while the plaintiff’s claims for monetary and individualized injunctive relief are certified under Rule 23(b)(3). For both sets of claims, the members of the class include:
All female applicants for the position of Correction Officer (“CO”) at the State of Connecticut Department of Correction (“DOC”) who participated in the CO selection proc ess and failed only the 1.5 mi le run portion of the physical fitness test at any time f rom June 28, 2004 and continuing to the date of final judgment in this matter.8 With regard to the Rule 23(b)(3) claims, the plaintiff is permitted to send notice and consent documents to members of this class. The parties shall confer regarding the proper form of the notice to be sent in light of this Ruling and shall submit to the court their agreed-upon notice or, if no agreement, their respective proposed forms of notice, within fourteen (14) days of this Ruling. SO ORDERED Dated at Bridgeport, Connecticut, this 22nd day of November, 2011.

Janet United

/s/ Janet C. Hall C. Hall States District Judge

8 The court notes that, as a practical matter, given the defendant’s abandonment of the 1.5 mile test at issue in 2007, the last day on which the test was used is effectively the end date for the class.
17

 
 783 F.Supp.2d 323 (2011)
Cherie EASTERLING, Plaintiff, v.
STATE OF CONNECTICUT, Department of Correction, Defendant.
Civil Action No. 3:08-CV-0826 (JCH).
United States District Court, D. Connecticut.
May 5, 2011.
325*325 Adam T. Klein, Samuel Miller, Outten & Golden, New York, NY, Michael T. Kirkpatrick, Public Citizen Litigation Group, Washington, DC, Seth M. Marnin, Outten & Golden, Westport, CT, for Plaintiff.
Margaret Q. Chapple, Maria C. Rodriguez, Attorney General's Office Employment Rights, Hartford, CT, for Defendant.
RULING RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 106) AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 113)
JANET C. HALL, District Judge.
I. INTRODUCTION
In 2004, the plaintiff, Cherie Easterling, applied to work as a Correction Officer ("CO") with the defendant, State of Connecticut Department of Correction (the "DOC"). Easterling brings this action on behalf of herself and a class of similarly situated applicants against the DOC, asserting that the DOC violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), by using an employment practice — a discriminatory physical fitness test — that caused a disparate impact on the basis of sex, and that was neither job related nor consistent with business necessity.
On January 4, 2010, the court certified this suit as a class action. See Ruling Re: Class Cert. (Doc. No. 75). Easterling has moved for summary judgment on the issue of liability (Doc. No. 106), and the DOC 326*326 filed a cross-motion for summary judgment (Doc. No. 113).
II. FACTUAL BACKGROUND[1]

The DOC operates eighteen correctional facilities throughout Connecticut. SeeFacilities Page, Mot. for Class Cert., Doc. No. 57, Ex. 5. The DOC employs COs who are responsible for the confinement, safety, control, and monitoring of inmates in these correctional facilities, and for the security of the facilities. Defendant's Local Rule 56(a)(1) Statement ("Def.'s 56(a)(1)"), ¶ 2. In order to obtain a position as a CO within one of these DOC facilities, a candidate must possess a high school diploma or G.E.D., be at least twenty-one years of age, be in good health, have a good educational or work record, and be free from felony convictions. Plaintiff's Corrected Local Rule 56(a)(1) Statement ("Pl.'s 56(a)(1)"), Ex. 1 (2004 correction officer job posting), Ex. 2 (2006 correction officer job posting). Applicants who meet these criteria first take a written examination. Pl.'s 56(a)(1), ¶ 2. If an applicant passes the written exam, the applicant then takes a physical fitness test ("PFT"). Pl.'s 56(a)(1), ¶ 4. Only if an applicant passes both the written and physical examinations is his or her application turned over to the DOC for interviews, background checks, and medical examinations. Pl.'s 56(a)(1), ¶ 8, Exs. 1, 2.

The physical fitness test consists of four parts. Def.'s 56(a)(1), ¶ 23. Failing any single part causes the candidate to fail the entire test. Id. In 2004 and 2006, the physical fitness test included: (1) a sit and reach test; (2) a one-minute sit-up test; (3) a one-minute push-up test; and (4) a timed 1.5 mile run. Id. The minimum standards for candidates varied by gender and age. For example, a female candidate in the 21-29 age group was required to complete 1.5 mile run in 14 minutes, 49 seconds. Pl.'s 56(a)(1), Ex. 4 (physical fitness score sheet). The corresponding standard for a male candidate in the 20-29 age group was 12 minutes, 25 seconds. Id. These standards are set to the 40th percentile of performance for each age/gender cohort, as calculated by the Cooper Institute. Pl.'s 56(a)(1), ¶¶ 17, 19. The passing time for each age and gender combination was:

Gender/Age Male Female

21-29 12:25 14:49

30-39 12:51 15:25

40-49 13:46 16:12

50 + 14:54 17:14

Pl.'s 56(a)(1), Physical Fitness Score Sheet, Ex. 4.

The 1.5 mile timed run was administered as part of the PFT in October 2004 and June 2006; a make-up exam with a 1.5 mile timed run was also administered in October 2006. Pl.'s 56(a)(1), ¶ 13; Defendant's Local Rule 56(a)(2) Statement (in Response to Plaintiff's Corrected Local Rule 56(a)(1) Statement) ("Def.'s 56(a)(2)"), ¶ 13; Def.'s 56(a)(1), ¶¶ 34-35. For the October 2006 administration of the 1.5 mile run, applicants were either individuals who failed the June 2006 administration or individuals who opted to train for several months before attempting the timed run. Def.'s 56(a)(1), ¶¶ 34-35. For each of these tests, the DOC used the Cooper Institute 40th percentile marks as minimum standards. Pl.'s 56(a)(1), ¶¶ 17-19.

In mid-2004, Cherie Easterling, a resident of Bloomfield, Connecticut, applied for employment as a Correction Officer with the DOC. Pl.'s 56(a)(1), ¶ 1. Easterling took and passed the written exam on August 25, 2004. Pl.'s 56(a)(1), ¶ 3. In October 2004, Easterling took the physical fitness test. Pl.'s 56(a)(1), ¶¶ 5-6. Although Easterling passed the `sit and 327*327 reach test,' the `one-minute sit-up test,' and the `one-minute push-up test,' she

failed the 1.5 mile run portion of the test. Id. As a result of failing the 1.5 mile run test, Easterling was precluded from advancing in the DOC selection process. Pl.'s 56(a)(1), ¶ 7.
A. Statistical Evidence Related to Disparate Impact
1. Gender Disparity in Percentage of CO Applicants Passing the 1.5 Mile Test
On each of these three occasions that the 1.5 mile test was administered, women passed the test at a substantially lower percentage than men.
In 2004, 148 women were eligible to participate in the 1.5 mile run portion of the PFT. Pl.'s 56(a)(1), ¶ 36, Ex. 7. Ninety-three (93) of those women, or 62.8%, passed the 1.5 mile run component of the PFT. Id. Seven hundred forty (740) men completed the 1.5 mile run, and 607 passed, for a passage rate of 82.0%. Id. The ratio of the female passage rate to the male passage rate was 76.6%.
In June 2006, 172 women took the 1.5 mile run portion of the PFT. Pl.'s 56(a)(1), ¶ 38, Ex. 8. One hundred one (101) of those women, or 58.7%, passed the 1.5 mile run component of the PFT. Id. Eight hundred twenty-six (826) men completed the 1.5 mile run, and 690 passed, for a passage rate of 83.5%. Id. The ratio of the female passage rate to the male passage rate was 70.3%.
In October 2006, the DOC offered a make-up administration of the PFT for applicants who had failed the June 2006 PFT and applicants who opted to train for additional time before attempting the PFT. Pl.'s 56(a)(1), ¶ 40, Ex. 9. That month, seventy-eight (78) women took the 1.5 mile run portion of the PFT. Twenty-seven (27) of those women, or 34.6%, passed the 1.5 mile run component of the PFT. Id.Two hundred fifty-eight (258) men completed the 1.5 mile run, and 137 passed, for a passage rate of 53.1 %. Id. The ratio of the female passage rate to the male passage rate was 65.2%.
Over the three administrations of the PFT at issue in this lawsuit, 398 women participated in the 1.5 mile run portion of the PFT, and 221 women passed, for a passage rate of 55.5%. For the same three administrations, 1,824 men participated in the 1.5 mile run portion of the PFT, and 1,434 men passed, for a passage rate of 78.6%. Overall, the ratio of the female passage rate to the male passage rate was 70.6%.
The plaintiff's statistical expert, Dr. Alexander Vekker, opined that the 2004, June 2006, and September 2006 administrations of the 1.5 mile run component of the PFT each yielded statistically significant gender disparities in outcomes. Pl.'s 56(a)(1), Ex. 24, at 1. Using the statistical method known as "Fisher's Exact Test,"[2] Dr. Vekker estimated that the probability of the gender difference observed for the 2004 administration of the 1.5 mile run occurring by chance was less than one in 1.5 million, or 4.9 standard deviations. Id. Dr. Vekker estimated that the probability of the gender difference observed for the June 2006 administration occurring by chance was less than one in 145 billion, or 328*328 6 standard deviations. Id. Finally, Dr. Vekker estimated that the probability of the gender difference

observed for the September 2006 administration occurring by chance was less than one in 64,000, or 4.2 standard deviations. Id. Dr. Vekker estimated that 71 additional women would have passed the 1.5 mile run over the three administrations of the PFT, if the run had been gender neutral. Id.
The DOC admits that female CO applicants failed the 1.5 mile run component of the PFT at a higher rate than male CO applicants. Def.'s 56(a)(2), ¶ 42. In its Local Rule 56(a)(2) Statement, the DOC argues that the disparity "did not always rise to [the] level of adverse impact." Id. However, the DOC does not offer any evidence in support of this argument. The defendant's sole expert on statistical disparities, Dr. Harold Brull, concluded that the 1.5 mile run event had an adverse impact on female CO applicants. Pl.'s 56(a)(1), Deposition of Harold Brull, Ex. 19, at 63.[3] In his expert report, Dr. Brull concluded that "it is obvious, upon even the most cursory review of the applicant test data, that female applicants for the position of Correction Officer have a slightly more difficult time completing the event than their male counterparts." Pl.'s 56(a)(1), Report of Harold P. Brull, Ex. 26, at 3. Dr. Brull also "checked the math" in Dr. Vekker's report and concluded that Dr. Vekker's calculations of the probability of the observed disparity occurring by chance were accurate. Pl.'s 56(a)(1), Deposition of Harold Brull, Ex. 19, at 63-64.
2. Gender Disparity When Positions Other than CO Are Considered
DOC has presented evidence that when the results of the 1.5 mile run are pooled for the positions of State Trooper Trainee, Public Safety Trainee, and CO, the observed disparity between men and women declines. Specifically, in 2004, women applying for these three positions passed the 1.5 mile run at a rate of 75.5%. Men passed at a rate of 86.5%. The ratio of women to men passing the test was 87.3%. Def.'s 56(a)(1), ¶ 24. In 2006, 72.6% of women applying for these positions passed the 1.5 mile run, while 91.0% of men passed. The ratio of women to men passing the test was 79.8%. Def.'s 56(a)(1), ¶ 26.[4]
3. Why Female Applicants Disproportionately Failed 1.5 Mile Run
A genuine dispute exists over why female CO applicants failed the timed run at a higher rate than male CO applicants. The use of normed cut scores should yield comparable pass rates for each age and gender cohort. The plaintiff has presented expert testimony that the Cooper percentile rankings used by the DOC were based on measurements from a sample of women who possessed a higher level of fitness than the overall female population. See Pl.'s 56(a)(1), ¶ 31. Ex. 15, at 13-14; Ex. 22, at 7-8.[5]
The DOC argues instead that its efforts to recruit racial minorities, who tend to have lower levels of cardiovascular fitness, produced a female applicant pool that was less likely to pass the 1.5 mile run than the 329*329 overall pool of qualified workers. Def.'s Mem. in Opp., at 13-15. The DOC has not offered any evidence that its recruitment efforts in the Hispanic and African-American communities were specifically targeted at women in those communities. See, e.g., Def.'s Supplemental 56(a)(1), ¶ 52 (stating that the DOC "did quite

a bit of outreach to the Hispanic community"). In addition, the DOC has not presented statistical evidence that minority women are significantly less likely to pass the 1.5 mile run than minority men. Without such a showing, no reasonably jury could conclude that an effort to recruit minority applicants of both genders would alter the applicant pool in a manner that creates a disparity in outcomes by gender. The DOC has thus failed to present evidence that its own recruitment efforts caused men and women to pass the timed run at different rates.
B. Evidence Regarding "Business Necessity" and "Job-Relatedness"
The parties agree that the 1.5 mile run is a test that measures an individual's aerobic capacity. Def.'s 56(a)(1), ¶ 12; Pl.'s 56(a)(2), ¶ 12. The defendant has presented no evidence showing the timed 1.5 mile run to be predictive of who can perform the essential physical functions of the job of a CO. All three of the defendant's experts admit that they have not empirically demonstrated that the cut scores used by DOC for the 1.5 mile run reliably predict an individual's performance on particular job tasks as a CO.
Dr. Pamela Libby is the Director of Statewide Human Resources Management in the Department of Administrative Services and one of the defendant's experts on the issue of the job relatedness of the 1.5 mile run. Def.'s Designation of Expert Concerning Business Necessity and Job Relatedness, Doc. No. 91; Pl.'s 56(a)(1), Ex. 27, at 5. Dr. Libby testified at her deposition on July 15, 2010, that she could not correlate the 40th percentile cut scores that were used on the 1.5 mile run test with the minimum level of aerobic capacity necessary to perform the CO position. Pl.'s 56(a)(1), Ex. 25, at 116.
The DOC also designated Dr. Harold Brull as an expert on Business Necessity and Job Relatedness. See Def.'s Designation of Expert Concerning Business Necessity and Job Relatedness, Doc. No. 90. At his deposition, Dr. Brull stated that he had not attempted to determine the minimum level of aerobic capacity necessary to successfully perform the CO position "with any level of exactness through a statistical test or empirical validation." Pl.'s 56(a)(1), ¶ 21, Ex. 19, at 87. Dr. Brull also testified that he had not observed any statistically significant correlation between aerobic capacity and CO performance. Pl.'s 56(a)(1), ¶ 23, Ex. 19, at 125. Instead, Dr. Brull opined that he believed cut scores set at the 40th percentile "seems a reasonable standard and not an excessive one." Pl.'s 56(a)(1), ¶ 21, Ex. 19, at 87. Dr. Brull concluded that "it's reasonable to assume [that] higher levels of fitness correlate with more positive outcomes and fewer negative outcomes," but did not provide any evidence in support of that assumption. SeePl.'s 56(a)(1), ¶ 24, Ex. 19, at 116.
The DOC's third expert on the issue of job-relatedness concurred. The DOC designated Dr. Martin Anderson, Commissioner of Connecticut's Department of Administrative Services, as an expert on business necessity and job relatedness. See Def.'s Designation of Expert Concerning Business Necessity and Job Relatedness, Doc. No. 91. At his deposition, Dr. Anderson testified that DAS had not "measured the specific cardiovascular capacity required" for the tasks performed by a CO that involve "endurance" and 330*330 "cardiovascular capacity." Pl.'s 56(a)(1), ¶ 22, Ex. 14, at 13-14.

The defendant states that it selected cut times at the 40th percentile because the Cooper Institute labels performance at that level as "fair" rather than "poor." SeeDef.'s 56(a)(1), ¶¶ 10, 13. However, the Cooper Institute warns its consumers not to use the thresholds at a given percentile as a hiring standard. Pl.'s 56(a)(1), ¶ 29, Ex. 20, at 3. The Cooper Institute states that "[u]sing percentile rankings of the Cooper norms for standards is not defensible" because the "percentile rankings do not predict the ability to do the job and do not demonstrate criterion validity."[6] Id.The Cooper Institute also states that "percentile scores (whether age and gender norms or single norms) have no validity data for predicting who can and who cannot do the job." Pl.'s 56(a)(1), ¶ 30, Ex. 21, at 9.
C. DOC's Subsequent Replacement of the Timed 1.5 Mile Run
In 2007, the DOC modified the physical fitness component of its selection process. Instead of a timed 1.5 mile run, the DOC is now piloting a 300-meter run test. Def.'s 56(a)(1), ¶ 38. In order to graduate from the training academy, cadets must pass a 300 meter run test at the 40th percentile for their age and gender group. Pl.'s 56(a)(1), ¶ 54.
III. STANDARD OF REVIEW
A motion for summary judgment "may properly be granted ... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Id.In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. SeeFed R. Civ. P. 56(c); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009).
"[T]he moving party bears the burden of showing that he or she is entitled to summary judgment." United Transp. Union v. National R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). Once the moving party has satisfied that burden, in order to defeat the motion, "the party opposing summary judgment ... must set forth `specific facts' demonstrating that there is `a genuine issue for trial.'" Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)). "A dispute about a `genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008) (stating that a non-moving party must point to more than a mere "`scintilla'" of evidence in order to defeat a motion for summary judgment) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In this case, there are no genuine issues of material fact to be tried, and the court is able to 331*331 adjudicate the Motions for Summary Judgment as a matter of law.

IV. DISCUSSION
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, as amended, prohibits intentional discrimination on the basis of race, color, religion, sex, or national origin, as well as employment practices "that are not intended to discriminate but in fact have a disproportionately adverse impact on minorities (known as `disparate impact')." Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2672, 174 L.Ed.2d 490 (2009). The Civil Rights Act of 1964 did not expressly prohibit policies yielding a "disparate impact," but the Supreme Court interpreted the Act in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), to "proscribe[] not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id. at 431, 91 S.Ct. 849. The Griggs Court explained that "good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups and are unrelated to measuring job capability." Id.at 432, 91 S.Ct. 849. "The touchstone is business necessity. If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited." Id. at 431, 91 S.Ct. 849. In 1991, Congress codified the prohibition on disparate impact discrimination that was established in Griggs. See Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1992) (codified in scattered sections of 2 U.S.C., 29 U.S.C., and 42 U.S.C.).
Under the disparate impact statute, courts conduct "a three-part analysis involving shifting evidentiary burdens." Gulino v. New York State Education Dep't, 460 F.3d 361, 382 (2d Cir.2006). First, "a plaintiff establishes a prima facie violation by showing that an employer uses `a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.'" Ricci,129 S.Ct. at 2673 (citing 42 U.S.C. § 2000e2(k)(1)(A)(i)). Second, "the defendant has two avenues of rebuttal" after "the plaintiff establishes a prima facie case of disparate impact discrimination." Gulino, 460 F.3d at 382. The employer "may directly attack plaintiff's statistical proof by pointing out deficiencies in the data or fallacies in the analysis." Id. The employer may also overturn the plaintiff's prima facie showing by proving that "the employment practice that causes a disparate impact ... is job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). Third, if the employer is successful in rebutting the plaintiff's prima facie case, the "plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs." Ricci,129 S.Ct. at 2673 (citing 42 U.S.C. § 2000e2(k)(1)(A)(ii)).
A. Plaintiff's Prima Facie Case of Disparate Impact
1. The Employment Practice Causing the Disparity
"To make out a prima facie case of disparate impact, a plaintiff must `(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.'" Malave v. Potter, 320 F.3d 321, 325 (2d Cir. 2003) (quoting Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir.2001)). "[T]he plaintiff must first identify the employment practice allegedly responsible for the disparities." Gulino, 460 F.3d

at 382 (citing 42 U.S.C. § 2000e-2(k)(1)(B)(i)). 332*332 In this case, the plaintiff has identified the timed 1.5 mile run segment of the PFT as the employment practice causing the disparate impact. Specifically, the plaintiff alleges that female CO applicants disproportionately fail the 1.5 mile run test, leaving an inadequate percentage of women in the remaining candidate pool.
2. Plaintiff's Statistical Evidence of Disparity
A plaintiff may not "rely on bottom line numbers in an employer's workforce" to establish a prima facie case of disparate impact. Smith v. Xerox Corp., 196 F.3d 358, 365 (2d Cir.1999) (citation omitted) (overruled on other grounds by Meacham v. Knolls Atomic Laboratory, 461 F.3d 134 (2d Cir.2006)). Instead, the plaintiff must produce statistical evidence showing that the identified employment practice "causes a disparate impact." Gulino, 460 F.3d at 382. Here, the plaintiff has presented evidence that women passed the 1.5 mile timed run at a lower rate than men, and this has resulted in a pool of candidates for the CO position that is disproportionately male. Over the three administrations of the PFT at issue in this lawsuit, 55.5% of women passed the 1.5 mile run, whereas 78.6% of men passed the 1.5 mile run. The ratio of the female passage rate to the male passage rate was 70.6%.
To establish a causal relationship between the employment practice and this observed disparity, the plaintiff's statistical evidence must reveal a disparity that is "sufficiently substantial to raise an inference of causation." Xerox Corp., 196 F.3d at 365 (citations omitted); Waisome v. Port Authority of New York and New Jersey,948 F.2d 1370, 1375 (2d Cir.1991). Courts in the Second Circuit have embraced two principal methods for determining whether a plaintiff has presented statistical data sufficient to raise an inference of causation. See Xerox Corp., 196 F.3d at 365. The first method is the "four-fifths rule" found in the U.S. Equal Employment Opportunity Commission (EEOC) Uniform Guidelines on Employment Selection Procedures:
A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than fourfifths rate will generally not be regarded... as evidence of adverse impact. Smaller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms.... Greater differences in selection rate may not constitute adverse impact where the differences are based on small numbers and are not statistically significant, or where special recruiting or other programs cause the pool of minority or female candidates to be atypical of the normal pool of applicants from that group.
29 C.F.R. § 1607.4(D) (2011). The four-fifths rule "is not binding on courts, and is merely a `rule of thumb' to be considered in appropriate circumstances." EEOC v. Joint Apprenticeship Committee of the Joint Industry Bd. of the Electrical Industry,186 F.3d 110, 118 (2d Cir.1999). Keeping in mind that a selection rate below the four-fifths standard does not automatically establish a causal relationship, the plaintiff has demonstrated that female performance on the 1.5 mile run fell below the four-fifths threshold.

The second method for determining whether a plaintiff has presented statistical data sufficient to raise an inference of causation is a statistical test that 333*333measures the probability that observed differences in outcomes between two groups are attributable to random variation. Xerox Corp., 196 F.3d at 366. The Second Circuit generally classifies a disparity as statistically significant if the observed disparity exceeds two standard deviations. See Malave v. Potter, 320 F.3d 321, 327 (2d Cir.2003). "If an obtained result varies from the expected result by two standard deviations, there is only about a 5% probability that the variance is due to chance." Xerox Corp., 196 F.3d at 366. Although a result exceeding two standard deviations is sufficient to raise an inference of causation, "[t]here is no minimum statistical threshold requiring a mandatory finding that a plaintiff has demonstrated a violation of Title VII. Courts should take a `case-by-case approach' in judging the significance or substantiality of disparities, one that considers not only statistics but also all the surrounding facts and circumstances." Waisome v. Port Authority of New York & New Jersey, 948 F.2d 1370, 1376 (2d Cir.1991).
Here, the plaintiff's statistical expert, Dr. Alexander Vekker, opined that each administration of the 1.5 mile run component of the PFT yielded statistically significant gender disparities in outcomes. Dr. Vekker estimated that the applicants' performance varied from a gender neutral result by more than four standard deviations in each of the three administrations of the 1.5 mile run. The defendant's sole expert on the issue of statistical disparity, Dr. Harold Brull, reviewed Dr. Vekker's statistical analysis and concluded that Dr. Vekker's calculations were accurate. Thus, the undisputed statistical evidence in the record supports the inference that the 1.5 mile run component of the PFT caused a disparate impact on female applicants.
3. Selecting the Relevant Groups for Comparison
Nevertheless, the DOC contends that the plaintiffs have "failed to prove a prima facie case because they did not choose the correct population for statistical analysis." Def.'s Opp. to Pl.'s Mot. for Summ. J. & Def.'s Mot. for Summ. J., Doc. No. 113-1, at 11. The DOC argues that the plaintiff must demonstrate that the timed 1.5 mile run had an adverse impact "on all women who took the test, not just female CO applicants." Id. at 12. In particular, the DOC seeks to pool data on the 1.5 mile run performance of individuals applying to be State Police Trooper Trainees and Protective Services Trainees. Id. at 11.
In general, the proper population for statistical analysis of disparate impact is the pool of applicants for a particular position or the eligible labor pool. See Malave v. Potter, 320 F.3d 321, 326 (2d Cir.2003); Smith v. Xerox, 196 F.3d 358, 368 (2d Cir.1999); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir. 1983). The eligible labor pool may be used where the employment practice at issue is likely to have dissuaded otherwise qualified applicants from applying for the position in question. See EEOC v. Joint Apprenticeship Comm., 186 F.3d 110, 119 (2d Cir.1999) (holding that "general population data" and "potential applicant pool data" is permissible to avoid the effect of selection bias in actual applicant pool); Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 53 L.Ed.2d 786 (noting that the "application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory").[7] The eligible labor pool 334*334 may also be used in lieu of the

actual applicant pool if "lack of information as to an applicant pool" would "render[] it impossible to establish a prima facie disparate impact." Malave, 320 F.3d at 327. Here, ample data exists on the nature of the applicant pool for the CO position, and the applicant pool is large enough to determine that the gender disparity in passage rates is not attributable to chance. Therefore, the applicant pool for the CO position is the appropriate reference group for disparate impact analysis.
The DOC argues that, because applicants for the position of State Police Trooper Trainee and Protective Services Trainee were subject to the same 1.5 mile run, the plaintiff must establish that the 1.5 mile run imposes a disparate impact on the combined applicant pool for all three positions: CO, State Police Trooper Trainee, and Protective Services Trainee. The DOC cites Xerox for the proposition that "it is only reasonable to infer a disparate impact" from an employment practice "if all persons who were subject to the process are included in the analysis." 196 F.3d at 370. In Xerox, the Second Circuit held that all employees at the Xerox Corporation who were subject to termination by the same "decision-making process" should be included in a determination of disparate impact. Id. at 362, 368. To establish disparate impact, the plaintiffs in Xerox had to demonstrate that, among all of the employees subject to the same "decision-making process" regarding termination, the retention rate for individuals in the "protected group" was significantly different than the retention rate for all other employees. Id. at 368.
The case at bar differs from the situation in Xerox in a critical respect. Xeroxinvolved a pool of employees drawn from a single corporation, and the corporation used the "same decision-making process" throughout the company to determine which employees to retain. 196 F.3d at 362. By contrast, the DOC seeks to pool testing data for applicants to two other agencies, both of which conduct their hiring separately from the DOC. Although the DOC, the State Police, and the Department of Public Safety are all part of the Connecticut state government, each agency is responsible for its own hiring and fairly characterized as a separate "employer" and "respondent," as those terms are defined in Title VII. See 42 U.S.C. § 2000e(b), (n). The DOC lacks the ability to decide whether the State Police or the Department of Public Safety utilize a timed 1.5 mile run as part of their screening process for applicants. Indeed, in response to the instant litigation, the DOC elected in 2007 to pilot a 300 meter run in lieu of the 1.5 mile run, whereas the State Police and the Department of Public Safety have exercised their prerogative to retain the 1.5 mile run. Def.'s 56(a)(1), ¶ 38, Ex. 36, 37.
None of the cases the DOC cites in support of aggregation involved the aggregation of applicants across employers. See Stagi v. Amtrak, 391 Fed.Appx. 133, 145-147 (3d Cir.2010) (aggregation limited to Amtrak employees); Paige v. California, 291 F.3d 1141, 1148 (9th Cir.2002) (permitting aggregation of data on different promotional exams within the California Highway Patrol and permitting aggregation 335*335 of data on all non-white officers within the California Highway Patrol); Pietras v. Board of Fire Comm'rs of Farmingville, 180 F.3d 468, 474 (2d Cir. 1999) (permitting inclusion of results of full female firefighter on physical agility test with results of probationary female firefighters within the same fire department); Eldredge v. Carpenters 46 N. California Counties Joint Apprenticeship and Training Comm., 833 F.2d 1334, 1339 (9th Cir.1987)(aggregating admission rates to a single apprenticeship program over nine years of applications); Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 336 n. 17 (4th Cir.1983) (finding it preferable to

aggregate data across years to increase statistical power and detect an ongoing "pattern or practice"); Eison v. City of Knoxville, 570 F.Supp. 11, 13 (E.D.Tenn. 1983) (pooling multiple administrations of a physical fitness test by a single police department). The court rejects the DOC's contention that aggregation is appropriate where the same screening mechanism happens to be used by multiple employers hiring for different jobs.
B. DOC's Failure to Demonstrate That Test is Job Related and Consistent with Business Necessity
Once the plaintiff meets its initial burden of establishing a prima facie violation, the burden shifts to the defendant. The defendant may rebut the plaintiff's prima facie showing by "pointing out deficiencies in data or fallacies in the [plaintiff's statistical] analysis." Gulino, 460 F.3d at 361. As discussed above, the DOC has conceded that, when the applicant pool for the CO position is viewed without reference to the applicant pool for the State Police Trooper Trainee and the Protective Services Trainee positions, a disparate impact exists.
The defendant may also overcome a plaintiff's prima facie showing of disparate impact by demonstrating that the challenged practice "is job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). Over the past four decades, the courts and Congress have wrangled over the meaning of the terms "job related" and "business necessity."[8] Under one line of interpretation, a hiring practice is job related if it measures the minimum qualifications necessary to be capable of performing the job (hereafter the "Minimum Qualifications Standard"). See Lanning v. Southeastern Pennsylvania Transportation Authority, 181 F.3d 478, 481 (3d Cir.1999) ("Lanning I") ("a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance of the job in question in order to survive a disparate impact challenge"); Green v. Town of Hamden, 73 F.Supp.2d 192, 199 (D.Conn.1999)("the remaining issue is whether the passing score of 60% on this test reasonably measured the minimum entry skill level necessary for an applicant to be a competent fire fighter"). Under a second line of interpretation, a hiring practice is job related if the practice is significantly correlated with elements of work behavior that are relevant to the job (hereafter "Significantly Correlated Standard"). See Gulino v. New York State Educ. Dep't, 460 F.3d 361, 383 (2d Cir.2006).
The court finds the Significantly Correlated Standard governs whether a cutoff score on a physical fitness examination is job related. The court concludes 336*336that the DOC has not presented any evidence from which a reasonable jury could conclude that passing the 1.5 mile run is significantly correlated with elements of work behavior relevant to the job of a CO. Given the paucity of case law in the Second Circuit, and the lack of clear guidance from the Supreme Court, the court also considers whether the 1.5 mile run measures the minimum qualifications necessary for successful performance as a CO. Here, the court finds that the DOC is unable to present evidence that this 1.5 mile run test meets the Minimum Qualifications Standard because the DOC's cutoff times varied by age and gender.

1. Interpretation of the Terms "Job Related" and "Business Necessity"
a. Case Law Prior to the Civil Rights Act of 1991
Proper interpretation of the terms "job related" and "business necessity" requires a review of the complex legal history of disparate impact litigation that followed the Supreme Court's adoption of disparate impact liability in Griggs. 401 U.S. 424, 91 S.Ct. 849.[9] In Griggs, the court found that requiring applicants for certain positions with Duke Power Company to obtain a high school education and pass a general intelligence test as conditions of employment operated "to disqualify [African-Americans] at a substantially higher rate than white employees," without being "significantly related to job performance." Id. at 425-26, 91 S.Ct. 849. In finding the employer liable, the Court wrote:
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.
Id. at 431, 91 S.Ct. 849. The Court continued: "The touchstone is business necessity. If an employment practice which operates to exclude [African-Americans] cannot be shown to be related to job performance, the practice is prohibited." Id. The Court clarified that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups and are unrelated to measuring job capability." Id. at 432, 91 S.Ct. 849. Finally, the court observed that the original proponents of Title VII of the Civil Rights Act of 1964 assured their critics that the Act would not affect the ability of employers to use job related tests that measured whether a "prospective applicant ... [met] the applicable job qualifications." Id. at 434, 91 S.Ct. 849 (emphasis omitted). Beyond this, the Court did not clarify how an employer could establish that an employment practice 337*337 met the "touchstone" of "business necessity."
In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Court purported to directly answer the question: "What must an employer show to establish that pre-employment tests ... discriminatory in effect, though not in intent, are sufficiently `job-related' to survive challenge under Title VII?" Id. at 408, 95 S.Ct. 2362. The Court embraced the EEOC Guidelines which require that tests be "shown, by professionally acceptable methods, to be `predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" Id. at 431, 95 S.Ct. 2362 (quoting 29 C.F.R. § 1607.4(C)). Under this standard, the Court concluded that the Albemarle Paper Company had failed to properly validate two tests it used to decide whether an individual was promoted to a more skilled line of work. Id. 410-11, 95 S.Ct. 2362.
The Court next addressed the issue of business necessity in Dothard v. Rawlinson,433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). See Lanning I, 181 F.3d at 486. In Dothard, the Court rejected the application of minimum height and weight requirements for prison guards because they caused a disparate impact on women that was not justified by jobrelatedness. Id. at 331-32, 97 S.Ct. 2720. The court observed that the employer "produced

no evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance. Indeed, they failed to offer evidence of any kind in specific justification of the ... standards." Id. at 331, 97 S.Ct. 2720. Moreover, if a certain level of strength was required to fulfill the tasks of a prison guard, that strength could be measured directly. Id. at 332, 97 S.Ct. 2720. In general, the Dotharddecision was consistent with the Significant Correlation Standard articulated in Albemarle. In a footnote, the Court included language implicating the Minimum Qualifications Standard, explaining that an employer could establish business necessity by showing that the practice was "necessary to safe and efficient job performance." Id. at 331, n. 14, 97 S.Ct. 2720 (emphasis added).
A turning point in the "business necessity" jurisprudence came in 1989, with the Court's decision Wards Cove Packing Company, Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). The Court held that the plaintiffs had not made out a prima facie case of disparate impact. Because the Court remanded the case for further proceedings, the Court elected to provide guidance on the issue of business necessity. Id. at 655, 658, 109 S.Ct. 2115. The Court refined the concept of business necessity, observing that "there is no requirement that the challenged practice be `essential' or indispensable' to the employer's business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils." Id. at 659, 109 S.Ct. 2115. Rather, "the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer."[10] Id. The language in Wards Covecan only be understood to reject the Minimum Qualifications Standard as too onerous for employers.
338*338 b. The Civil Rights Act of 1991
Congress responded to the Wards Cove decision by attempting to codify the disparate impact concept as it had been articulated in the Court's jurisprudence prior to Wards Cove. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 3 (codified at 42 U.S.C. § 1981 (note)). Congress passed the Civil Rights Act of 1991, under which an employer may only overcome a prima facie showing of disparate impact by "demonstrat[ing] that [a] challenged practice is job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A) (emphasis added). Section 3 of the Act expressly declares that one of its purposes was "to codify the concepts of `business necessity' and `job related' enunciated by the Supreme Court in Griggs ... and in other Supreme Court decisions prior to Wards Cove." Pub.L. No. 102-166, § 3.
The Act also designated a three paragraph "interpretive memorandum" as the exclusive "legislative history" of the Act when "construing or applying, any provision of this Act that relates to Wards Cove—Business necessity / cumulation / alternative business practice." Pub.L. No. 102-166, § 105(b) (codified as 42 U.S.C. § 1981 (note)). That interpretive memorandum stated, in pertinent part: "The terms `business necessity' and `job related' are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 [91 S.Ct. 849, 28 L.Ed.2d 158] (1971), and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 [109 S.Ct. 2115, 104 L.Ed.2d 733] (1989)." 137 Cong. Rec. S15273-01 (Oct. 25, 1991). Section 3 of the statute, along with the designated interpretive memorandum, make clear that Congress viewed the "business necessity" language in Wards Cove as a departure from the earlier "business

necessity" doctrine articulated in the Griggs line of cases. Because Wards Cove rejected any "requirement that the challenged [hiring] practice be `essential' or indispensable' to the employer's business," 490 U.S. at 659, 109 S.Ct. 2115, it follows that Congress sought to require hiring practices that cause disparate impact to measure the minimum qualifications necessary to be capable of performing the job in question. See Lanning I, 181 F.3d at 481.
On the other hand, the Civil Rights Act of 1991 was adopted to restore the Supreme Court's pre-Wards Cove jurisprudence, but language embracing the Minimum Qualification Standard is generally absent from the cases leading up to Wards Cove. The statutory history of the Civil Rights Act of 1991 also points toward an interpretation of the phrase "consistent with business necessity" as requiring the Significant Correlation Standard. In his dissenting opinion in Lanning I, Judge Weis recounts:
Some members of Congress were displeased with the results in Wards Cove and argued for a stricter standard of business justification based on their reading of pre-Wards Cove cases. After two years of legislative struggle, Congress and the President agreed upon a compromise bill.... The 1990 bill, which had been vetoed by the President, had used the phrase "required by business necessity," rather than "consistent withbusiness necessity," as used in the 1991 Act. The substitution of the word consistent was considered to indicate a standard less stringent than would "required."
Lanning I (Weis, J., dissenting), 181 F.3d at 496-97. Viewed through the lens of statutory history, the selection of the phrase "consistent with business necessity" rather than "required by business necessity" implies that Congress and the 339*339President codified the "business necessity" concept such that a hiring practice would be characterized as "job related" if that hiring practice was "significantly correlated with elements of work behavior that were relevant to the job." See Albemarle Paper Co., 422 U.S. at 431, 95 S.Ct. 2362; 29 C.F.R. § 1607.4(C).
c. Case Law Following the Civil Rights Act of 1991
Subsequent case law points toward this less stringent standard for establishing that a practice is consistent with business necessity. The Supreme Court indirectly addressed the issue of "business necessity" in the context of Title VII in Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).[11] In Ricci, the Court decided whether the City of New Haven could refuse to certify promotional testing results for the New Haven Fire Department on the grounds that certifying the results could expose the City to liability for disparate impact. Id. at 2664-65. The Court held that the City of New Haven lacked a "substantial basis in evidence" that certifying the results would expose the City to disparate impact liability. Id. at 2676, 2678. In Ricci, the parties agreed that a prima facie case of disparate impact could be established. Id. at 2677. However, the Court concluded that the prima facie case would be overcome because the tests were job related and consistent with business necessity. Id. at 2678 ("There is no genuine dispute that the examinations were job related and consistent with business necessity. The City's assertions to the contrary are `blatantly contradicted by the record'") (citation omitted). Although the Court did not discuss its view of the proper interpretation of "business necessity," the Court appears to have reached its conclusion on the basis of evidence in the record that questions on the

firefighter's written and oral exams were "relevant" to the duties of the positions in question. Id. at 2678-79.
In cases following the Civil Rights Act of 1991, the Second Circuit has generally embraced the Significantly Correlated Standard for business necessity that the Supreme Court implicitly endorsed in Ricci. See Gulino v. New York State Educ. Dep't, 460 F.3d 361, 383 (2d Cir.2006). In Gulino, the Court of Appeals vacated a district court's decision that a general knowledge test component of New York State's public school teacher certification program was job related. Id. at 383-88. The Gulino court adopted the Significantly Correlated Standard first articulated in Albemarle Paper Co., stating that "`discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" 460 F.3d at 383 (quoting Albemarle Paper, 422 U.S. at 431, 95 S.Ct. 2362). The court then found that the district court below had articulated the wrong legal standard for validating the employment test. The court also emphasized that Guardians Assoc. of NYC Police Dep't, Inc. v. Civil Service Comm'n of City of NY, 630 F.2d 79 (2d Cir.1980), 340*340 "is still the law in this Circuit," Gulino, 460 F.3d at 385.
The Guardians decision, however, could reasonably be interpreted as endorsing the Minimum Qualifications Standard. In Guardians, the Second Circuit held that an entrance exam for the New York City Police Academy violated Title VII's disparate impact provisions. The New York City Police Department required a pool of 12,000 eligible candidates, so the Department selected the passing score for the entrance exam by "simply set[ting] the passing score at the score achieved by the 12,000th highest scoring candidate." Id. at 85. The court stated that "[a] cutoff score unrelated to job performance may well lead to the rejection of applicants who were fully capable of performing the job. When a cutoff score unrelated to job performance produces disparate racial results, Title VII is violated." Id. at 105. Here, the Guardians court seemed concerned that a cutoff score set higher than absolutely necessary could exclude otherwise qualified applicants. The court also endorsed the EEOC's recommendation that cutoff scores "normally be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force." Id. (quoting 29 CFR § 1607.5(H)). The term "acceptable proficiency" connotes a set of minimum qualifications for a position. Finally, the Guardians court urged that there be "some independent basis for choosing the cutoff" by "using a professional estimate of the requisite ability levels, or, at the very least, by analyzing the test results to locate a logical `break-point' in the distribution of scores." Id. at 105. Again, reference to "requisite ability levels" implies the application of the Minimum Qualifications Standard. This interpretation is perhaps undermined, however, by the court's willingness to forgo a "professional estimate of the requisite ability levels" and proceed with a cutoff score set to a natural "break-point" in the distribution of scores. See id.
The Second Circuit has only tangentially addressed the selection of cutoff scores for tests of physical ability. See Pietras v. Board of Fire Commissioners of the Farmingville Fire District, 180 F.3d 468, 472 n. 5 (2d Cir.1999). In Pietras, a town fire department selected a four minute cutoff time for the completion of a physical agility test for probationary firefighters. Id. at 471. That cutoff time was selected by "taking the average of all the test scores and then arbitrarily adding some extra time." Id. at 472, n. 5. The court observed that

the defendant bore the burden of showing that the test was job related, but the defendant had presented "no evidence at all to indicate that the time chosen for the test reflected the needs of the job." Id. Thus, the Second Circuit found that — even assuming the town was challenging the district court's finding that the cutoff score was not job related — the challenge was "without merit." Id.
The dicta in Pietras does not directly answer whether a cutoff score for a physical exam must be set to measure the minimum qualifications necessary for the position in question or whether passing an exam with a particular cutoff score must merely be significantly correlated with an applicant's performance as an employee. The language requiring the chosen cutoff time to "reflect[] the needs of the job" points toward a Minimum Qualifications Standard, but the discussion in Pietras is too brief and too ancillary to the decision to glean the requisite degree of specificity.
The Pietras case is factually analogous to the instant matter in that it involved a test of physical ability. The Pietras case, however, can also be distinguished. The physical test in Pietras involved simulations 341*341 of activities a firefighter might actually be required to perform, whereas the parties in this case agree that the 1.5 mile run test was only meant to measure aerobic capacity. Aerobic capacity is a prerequisite to a number of activities a CO might have to perform. Running itself is not a close approximation to the typical duties of a CO. The Second Circuit's discussion of business necessity in Pietras is also too oblique to be usefully applied to the present circumstances.
The court concludes that the Significantly Correlated Standard articulated by the Second Circuit in Gulino applies to this case. 460 F.3d at 383. The statutory text of the Civil Rights Act of 1991 does not define the terms "job related" and "consistent with business necessity." The statutory text and the legislative history of the Civil Rights Act of 1991 both indicate that the Act was intended to restore the meaning of these terms to their status prior to Wards Cove. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 3; Interpretive Memorandum, 137 Cong. Rec. S15273-01 (Oct. 25, 1991). Wards Cove clearly prohibited a Minimum Qualifications Standard. 490 U.S. at 659, 109 S.Ct. 2115. However, a fair reading of Griggs, Albemarle Paper Co., and Dothard suggests that the Supreme Court had never embraced a Minimum Qualifications Standard. Indeed, Albemarle Paper Co. explicitly introduced the Significant Correlation Standard. 422 U.S. at 431, 95 S.Ct. 2362. In Gulino, the Second Circuit properly discerned that "the basic rule has always been that `discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job.'" 460 F.3d at 383. For that reason, the court applies the Significant Correlation Standard to this case.
A second viable interpretation of the foregoing precedent is that determining whether a hiring practice is "job related and consistent with business necessity" is a two-step inquiry. Under this interpretation, any test used to select employees must first be "valid," as that term is defined in the EEOC Guidelines. For example, in the context of a criterion-related validity study, "[e]vidence of the validity of a test or other selection procedure ... should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance." 29 C.F.R. § 1607.5(B). Second, if the selection test is valid, and the employer refuses to hire any applicant scoring

below a certain cutoff, then that cutoff score must measure the minimum qualifications necessary for success in the position.[12] 29 C.F.R. § 1607.5(H) ("Where cutoff scores are used, they should normally be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force.") Thus, better performance on the test must be significantly correlated with better performance as an employee, and any cutoff score must measure the minimum qualifications necessary to competently perform the job.
For example, in Albemarle Paper Co., the Supreme Court focused on whether two "general ability tests" administered by an employer were "predictive of or significantly correlated with important elements of work behavior." 422 U.S. at 427, 431, 95 S.Ct. 2362 (citing 29 C.F.R. 342*342 § 1607.5(B)). The Court observed that the validation study undertaken by the Albemarle Paper Co. showed significant correlation for less than half of the lines of employment and was unreliable due to an "odd patchwork of results" and a performance measurement that was "extremely vague and fatally open to divergent interpretations." Id. at 431-33, 95 S.Ct. 2362. The Court concluded that "the District Court erred in concluding that Albemarle had proved the job relatedness of its testing program." Id. at 435-36, 95 S.Ct. 2362. Because the Court concluded that the selection mechanism itself was invalid, the Court never addressed whether the cutoff scores on these tests were appropriate.
Contrast this with the Lanning cases, where running significant distances constituted an essential job task of a transit police officer. See Lanning II, 308 F.3d 286, 290 (3d Cir.2002) ("a SEPTA transit police officer must be ready and able to apprehend not just the numerous sedentary, petty criminals, but also the fleet-footed few who, from time to time, wreak serious harm on the people of Philadelphia"). An applicant's performance on a 1.5 mile timed run was undoubtedly correlated with whether that applicant could later run a similar distance in the course of her potential work as a transit police officer. Although the Third Circuit articulated a Minimum Qualifications standard, it did so in the context of a cutoff score: the requirement that all applicants successful run 1.5 miles in less than 12 minutes. Lanning I, 181 F.3d 478, 481, 487 (3d Cir.1999) ("a discriminatory cutoff score... must be shown to measure the minimum qualifications necessary for successful performance," and "a discriminatory cutoff score is impermissible").
Fortunately, harmonization of the case law is not required for the proper disposition of these Motions. The 1.5 mile run times imposed by DOC during the 2004 and 2006 physical fitness examinations cannot be characterized as "job related for the position in question and consistent with business necessity" under the Significant Correlation Standard or the Minimum Qualification Standard.
2. Whether the DOC Has Shown That the Cut Times in the 1.5 Mile Run Represent a Minimum Qualification Necessary to Perform the CO Position
Under the Third Circuit's interpretation in Lanning I, a "discriminatory cutoff score is impermissible unless shown to measure the minimum qualifications necessary for successful performance of the job in question." 181 F.3d at 481. The parties agree that the 1.5 mile run is a test that measures an individual's aerobic capacity. Def.'s 56(a)(1), ¶ 12;

Pl.'s 56(a)(2), ¶ 12. The DOC cannot plausibly argue that a time of 12:25 for 21-29 year-old men is a valid predictor of the aerobic capacity minimally necessary for successful completion of the tasks of a Correction Officer, if the DOC also permitted 21-29 year-old women to complete the 1.5 mile run in 14:49, and 50 year-old women to complete the 1.5 mile run in 17:14. By definition, cutoff times that vary by gender and age cannot represent a measure of the minimum aerobic capacity necessary for successful performance as a CO. Only a single cutoff time could meet this standard.[13]
343*343 The defendant purports to rely on the Cooper Institute's labeling of performance at the 40th percentile as "fair" rather than "poor." See Def.'s 56(a)(1), ¶¶ 10, 13. However, the Cooper Institute specifically warns its consumers not to use percentile rankings as hiring standards. Pl.'s 56(a)(1), ¶ 29, Ex. 20, at 3. The Cooper Institute states that "percentile scores (whether age and gender norms or single norms) have no validity data for predicting who can and who cannot do the job." Pl.'s 56(a)(1), ¶ 30, Ex. 21, at 9.[14] Moreover, the EEOC Uniform Guidelines on Employee Selection Procedures "specifically rule[s] out" assumptions of validity based on "descriptive labels" — here, the arbitrary designation of the 40th percentile as "fair" by the Cooper Institute. See 29 C.F.R. § 1607.9.
3. Whether the DOC Has Shown That the Cut Times in the 1.5 Mile Run Are Significantly Correlated with Elements of Work Behavior Relevant to the Job.
Under the Second Circuit's decision in Gulino, "discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." 460 F.3d at 383 (citation omitted). Here, the DOC "produced no evidence correlating" linking successful completion of the timed 1.5 mile run test "with the requisite amount of" aerobic capacity "thought essential to good job performance. Indeed, they failed to offer evidence of any kind in specific justification of the ... standards." Dothard, 433 U.S. at 331, 97 S.Ct. 2720.
All three of the defendant's experts on the issue of business necessity admit that they have not empirically demonstrated that a CO applicant's passage of the 1.5 mile run is correlated with that applicant's performance on particular job tasks as a CO. Dr. Brull testified that he had not observed any statistically significant correlation between aerobic capacity and CO performance. Pl.'s 56(a)(1), ¶ 23, Ex. 19, at 125. Dr. Brull stated that "it's reasonable to assume [that] higher levels of fitness correlate with more positive outcomes and fewer negative outcomes," but did not provide any evidence linking successful completion of the 1.5 mile run with objective measurements of performance as a CO. See Pl.'s 56(a)(1), ¶ 24, Ex. 19, at 116.
The DOC bears the burden of establishing business necessity. DOC has not made any attempt to demonstrate that passing the 1.5 mile run is "`predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" Albemarle Paper Co., 422 U.S. at 431, 95 S.Ct. 2362 (quoting 29 C.F.R. § 1607.4(C)). On the record before the court, no

reasonable jury could conclude that the cut times used by the DOC for the 1.5 mile run were job 344*344 related for the position in question and consistent with business necessity.
C. Alternative Employment Practices
If the DOC had met its burden "of showing that the challenged practice is job related, the plaintiff [could] only prevail by showing that `other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in efficient and trustworthy workmanship,'" Gulino,460 F.3d at 382, and the DOC "refuses to adopt such alternative employment practice." 42 U.S.C. § 2000e-2(k)(1)(A)(ii). Because the DOC has not shown the 1.5 mile run to be job related and consistent with business necessity, the court does not reach the issue of whether the DOC refused to adopt an alternative employment practice that would serve the employer's legitimate needs.
V. CONCLUSION
For the foregoing reasons, the Plaintiff's Motion for Summary Judgment [Doc. No. 106] is GRANTED, and the Defendant's Motion for Summary Judgment [Doc. No. 113] is DENIED. The court will schedule a status conference to discuss the damages phase of this case.
SO ORDERED.
[1] Unless otherwise noted, no genuine dispute exists over the following facts.
[2] Fisher's Exact Test is "a statistical method commonly used in employment discrimination cases." Schanzer v. United Technologies Corp., 120 F.Supp.2d 200, 204 (D.Conn.2000) (citing Victory v. Hewlett-Packard Co., 34 F.Supp.2d 809 (E.D.N.Y.1999)). This method can be used to test the hypothesis that whether an applicant passes the 1.5 mile run is statistically independent of his or her sex. See Michael O. Finkelstein & Bruce A. Levin, STATISTICS FOR LAWYERS 154-57 (2001).
[3] The DOC designated Dr. Harold Brull as its expert on statistical disparities in the 1.5 mile timed run. See Def.'s Designation of Expert Concerning Statistical Disparities, Doc. No. 82. DOC also designated Dr. Brull as an expert on Business Necessity and Job Relatedness. See Def.'s Designation of Expert Concerning Business Necessity and Job Relatedness, Doc. No. 90.
[4] The court infers that the DOC combined the data for the June 2006 and October 2006 administrations of the run exam.
[5] The defendant denies this conclusion on the grounds that the expert's opinion is not based on admissible evidence. Def.'s 56(a)(2), ¶ 31.
[6] Criterion validity is demonstrated by identifying criteria that indicate successful job performance and then correlating test scores with those identified criteria. See Guardians Assoc. of New York City Police Dep't, Inc. v. Civil Service Commission of the City of New York, 633 F.2d 232, 242, n. 16 (2d Cir.1980).
[7] If the 1.5 mile run disproportionately eliminates women from consideration for the CO position, and men and women are equally aware of their ability to run 1.5 miles within the allotted time, then the administration of a 1.5 mile run test likely decreases the percentage of women in the applicant pool, and the actual disparate impact was potentially larger than the observed disparate impact. For this reason, the court would have permitted the plaintiff to introduce evidence regarding the eligible labor pool. However, the plaintiff was certainly not required to do so.

[8] "Though the terms `business necessity' and `job related' appear to have semantic differences, they have been used interchangeably by the courts." Gulino v. New York State Educ. Dep't, 460 F.3d 361 (2d Cir.2006).
[9] In one of the leading cases assessing disparate impact in the context of a physical fitness test, the Third Circuit has carefully analyzed that history. See Lanning v. Southeastern Pennsylvania Transportation Authority, 181 F.3d 478 (3d Cir.1999) ("Lanning I"). In Lanning I, female applicants for the position of transit police officer in the Philadelphia metropolitan rail system brought suit alleging disparate impact arising from a physical fitness test that required all applicants to run 1.5 miles in 12 minutes. Id. at 481-82. The Lanning I court adopted a stringent standard: "under the Civil Rights Act of 1991, a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance of the job in question in order to survive a disparate impact challenge." Id. at 481. The abbreviated historical overview that follows borrows from the Third Circuit's helpful timeline in Lanning I. The applicable line of cases has also been usefully summarized through the year 2000 in David E. Hollar, Comment, Physical Ability Tests and Title VII, 67 U. Chi. L.Rev. 777 (2000).
[10] The Court in Wards Cove also modified the burdens of proof in disparate impact claims, stating that the employer bore only the burden of production at the business necessity stage, with the burden of persuasion remaining with the plaintiff. Id. at 659, 109 S.Ct. 2115; see also Lanning I, 181 F.3d at 487.
[11] Other than the decision in Ricci, the Supreme Court has been virtually silent since the Civil Rights Act of 1991 as to the interpretation of the term "consistent with business necessity." The Court briefly referenced the term "business necessity" in Smith v. City of Jackson, Miss., 544 U.S. 228, 243, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) ("Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry [under the ADEA] includes no such requirement.").
[12] Employers do not always impose cutoff scores for their selection tests. An employer might use test performance as one of several factors in an overall hiring decision, rather than barring all applicants scoring below a certain threshold.
[13] If the DOC had used a single cutoff time for the 1.5 mile run, such a showing might have been possible. For example, in Lanning v. Southeastern Pennsylvania Transportation Authority, 308 F.3d 286 (3d Cir.2002) ("Lanning II"), the Third Circuit credited a study that "found that individuals who passed the run test had a success rate on" critical policing tasks that ranged from 70% to 90%, whereas individuals who failed the run test had a success rate between 5% and 20%. Id. at 291. "The District Court found that such a low rate of success was unacceptable for employees who are regularly called upon to protect the public. In so doing, the District Court implicitly defined `minimum qualifications necessary' as meaning `likely to be able to do the job.'" Id.
[14] The Cooper Institute also warns against using percentile rankings for the purpose of meeting the Significantly Correlated Standard. The Cooper Institute states that "[u]sing percentile rankings of the Cooper norms for standards is not defensible" because the "percentile rankings do not predict the ability to do the job and do not demonstrate criterion validity." Pl.'s 56(a)(1), ¶ 29, Ex. 20, at 3. Criterion validity is demonstrated by identifying criteria that indicate successful job performance and then correlating test scores with those identified criteria. Guardians, 633 F.2d at 242, n. 16.

 
 Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 1 of 22
CLOSED,EFILE,HBF,REFCNF
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:08−cv−00826−JCH

Easterling v. State of CT Dept of Corr Assigned to: Judge Janet C. Hall Referred to: Judge Holly B. Fitzsimmons (Settlement) Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/30/2008 Date Terminated: 09/12/2013 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Cherie Easterling o/b/o all others similarly situated

represented by Adam T. Klein Outten &Golden−NY 3 Park Ave., 29th Fl. New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: atk@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Cyrus E. Dugger Outten &Golden−NY 3 Park Ave., 29th Fl. New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: cdugger@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Deborah L. McKenna Emmett &Glander 45 Franklin St. Stamford, CT 06901 203−324−7744 Fax: 203−969−1319 Email: dmckenna@emmettandglander.com TERMINATED: 07/02/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Kirkpatrick Public Citizen Litigation Group−DC 1600 20th Street, NW Washington, DC 20009−1001 202−588−1000 Fax: 202−588−7795 Email: mkirkpatrick@citizen.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel R. Miller Outten &Golden−NY 3 Park Ave., 29th Fl. New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: smiller@outtengolden.com

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 2 of 22
TERMINATED: 03/08/2012 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth M. Marnin Outten &Golden−CT 191 Post Road West Westport, CT 06880 203−363−7888 Fax: 203−363−0333 Email: smm@outtengolden.com TERMINATED: 03/08/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tammy Marzigliano Outten &Golden−NY 3 Park Ave., 29th Fl. New York, NY 10016 212−245−1000 Fax: 212−977−4005 Email: tm@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant State of CT Dept of Corr

represented by Margaret Q. Chapple Attorney General's Office Employment Rights 55 Elm St., PO Box 120 Hartford, CT 06141−0120 860−808−5315 Fax: 860−808−5383 Email: margaret.chapple@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria C. Rodriguez State of Connecticut, Office of the Attorney General 55 Elm Street PO Box 120 Hartford, CT 06141 860−808−5050 Fax: 860−808−5340 Email: mariac.rodriguez@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maura Murphy−Osborne Attorney General's Office −Elm Htfd 55 Elm Street Hartford, CT 06141 860−808−5020 Fax: 860−808−5347 Email: maura.murphyosborne@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth M. Marnin (See above for address)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 3 of 22
TERMINATED: 03/08/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/30/2008 05/30/2008 05/30/2008 05/30/2008 06/03/2008 06/04/2008 06/19/2008
06/19/2008 06/24/2008 06/24/2008 06/24/2008 06/24/2008 06/25/2008
06/25/2008 06/25/2008 06/26/2008 07/23/2008

# Docket Text
1 COMPLAINT against State of CT Dept of Corr ( Filing fee $ 350 receipt number B016019), filed by Cherie Easterling.(Sanders, C.) (Entered: 06/02/2008)
2 Order on Pretrial Deadlines: Motions to Dismiss due on 8/30/2008. Amended Pleadings due by 7/29/2008 Discovery due by 11/29/2008 Dispositive Motions due by 12/29/2008. Signed by Clerk on 5/30/2008. (Sanders, C.) (Entered: 06/03/2008)
3 Standing Protective ORDER. Signed by Judge Janet C. Hall on 5/30/2008. (Sanders, C.) (Entered: 06/03/2008)
4 ELECTRONIC FILING ORDER − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Janet C. Hall on 5/30/2008. (Sanders, C.) (Entered: 06/03/2008)
Summons Issued as to State of CT Dept of Corr. (Sanders, C.) (Entered: 06/03/2008)
5 NOTICE of Appearance by Stephanie M. Marnin on behalf of Cherie Easterling and all others similarly situated (Marnin, Stephanie) (Entered: 06/04/2008)
6 ENTERED IN ERROR − Order on Pretrial Deadlines: Motions to Dismiss due on 9/17/08. Amended Pleadings due by 8/18/2008 Discovery due by 12/19/2008 Dispositive Motions due by 1/18/2009. Signed by Clerk on 6/19/08. (Simpson, T.) Modified on 6/19/2008 (Simpson, T.). (Entered: 06/19/2008)
Docket Entry Correction re 6 Order on Pretrial Deadlines MODIFIED TO NOTE ENTERED IN ERROR ON WRONG CASE (Simpson, T.) (Entered: 06/19/2008)
7 NOTICE of Appearance by Maria C. Rodriguez on behalf of State of CT Dept of Corr (Rodriguez, Maria) (Entered: 06/24/2008)
8 NOTICE of Appearance by Margaret Q. Chapple on behalf of State of CT Dept of Corr in addition to the appearance of Maria C. Rodriguez, Assistant Attorney General already on file (Chapple, Margaret) (Entered: 06/24/2008)
9 MOTION for Security for Costs by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 06/24/2008)
10 MOTION for Extension of Time until July 26, 2008 to file Responsive Pleading 1 Complaint by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 06/24/2008)
11 ORDER granting 9 Motion for Security for Costs. The defendant(s) having made application to the Clerk of Court for an order requiring the plaintiff(s) to deposit or file a bond with sufficient surety in the sum of $500.00 pursuant to Local Rule 83.3(a) of the Rules of Civil Procedure for the United States District of Connecticut, it is ORDERED that the plaintiff(s) herein file a bond as security for costs in this action within thirty (30) days from this date. Signed by Clerk on 6/25/08. (Simpson, T.) (Entered: 06/25/2008)
12 ORDER granting 10 Motion for Extension of Time until 7/26/08 to file Responsive Pleading to the 1 Complaint. Signed by Clerk on 6/25/08. (Simpson, T.) (Entered: 06/25/2008)
Answer deadline updated for State of CT Dept of Corr to 7/26/2008. (Simpson, T.) (Entered: 06/25/2008)
13 DISCLOSURE NOTICE. Signed by Judge Janet C. Hall on 6/26/08. (Simpson, T.) (Entered: 06/26/2008)
14 ORDER REFERRING CASE to Magistrate Judge Holly B. Fitzsimmons for a Settlement Conference. Signed by Judge Janet C. Hall on 7/23/08. (Simpson, T.) (Entered: 07/23/2008)

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07/25/2008 07/28/2008 07/29/2008
07/30/2008 07/30/2008 08/06/2008 08/11/2008 08/22/2008
08/25/2008 08/26/2008 08/26/2008 08/27/2008 08/28/2008

18 Security for Costs in the amount of $500.00 posted by Cherie Easterling. Receipt Number B016294. (Fazekas, J.) (Entered: 08/06/2008)
15 Second MOTION for Extension of Time until August 9, 2008 to file responsive pleading 1 Complaint by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 07/28/2008)
16 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Pre−Settlement Conference set for 9/3/2008 02:20 PM before Judge Holly B. Fitzsimmons. Counsel for the plaintiff shall initiate this call. Once all parties are on the line, please contact Chambers at (203)579−5640. A date for the settlement conference will be set during the telephone call. As the Court requires parties or their representatives with settlement authority to attend the settlement conference, counsel should obtain dates of unavailability from their clients over the next 90 days and have their own calendars available to aid in the scheduling. During the telephone call, counsel should be prepared to discuss what information needs to be exchanged and anything else that needs to be accomplished prior to the settlement conference for the discussions to be productive. This telephone conference will not be rescheduled based on requests from counsel. If counsel is not available at the scheduled time, please arrange for coverage by another lawyer who will have the necessary background knowledge to participate. (Larsen, M.) (Entered: 07/29/2008)
17 ORDER granting 15 Motion for Extension of Time until August 9, 2008 to file responsive pleading 1 Complaint. SO ORDERED. Signed by Judge Janet C. Hall on 7/30/2008. (Sanders, C.) (Entered: 07/30/2008)
Answer deadline updated for State of CT Dept of Corr to 8/9/2008. (Sanders, C.) (Entered: 07/30/2008)
19 Joint REPORT of Rule 26(f) Planning Meeting. (Marnin, Stephanie) (Entered: 08/06/2008)
20 MOTION to Dismiss by State of CT Dept of Corr.Responses due by 9/1/2008 (Attachments: # 1 Memorandum in Support of Motion to Dismiss, # 2 Exhibit 1 − Anker Affidavit with attachments, # 3 Exhibit 2 − Callahan Affidavit)(Rodriguez, Maria) (Entered: 08/11/2008)
21 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 8/28/2008 02:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 08/22/2008)
22 MOTION for Extension of Time until October 1, 2008 Plaintiff's Opposition to Defendant's 20 Motion to Dismiss by Cherie Easterling. (McKenna, Deborah) Modified on 8/27/2008 (Simpson, T.). (Entered: 08/25/2008)
23 ORDER granting 22 MOTION for Extension of Time until October 1, 2008 Plaintiff's Opposition to Defendant's Motion to Dismiss by Cherie Easterling. SO ORDERED by Judge Janet C. Hall on 8/26/08. (DeRubeis, B.) (Entered: 08/26/2008)
24 Set/Reset Deadlines as to 20 MOTION to Dismiss. Responses due by 10/1/2008 (DeRubeis, B.) (Entered: 08/26/2008)
Docket Entry Correction re 22 MOTION for Extension of Time until October 1, 2008 Plaintiff's Opposition to Defendant's Motion to Dismiss MODIFIED TO CREATE DOCKET ENTRY RELATIONSHIP TO DOC #20 (Simpson, T.) (Entered: 08/27/2008)
25 Minute Entry for proceedings held before Judge Janet C. Hall: Telephonic Status Conference held on 8/28/2008. A separate scheduling order will issue. Motion for Extension of Time (Doc. No. 22) previously granted. 10 minutes. (Court Reporter

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09/02/2008 09/03/2008
09/03/2008 09/09/2008 09/09/2008 09/10/2008 09/29/2008 09/29/2008
09/30/2008 10/10/2008 10/14/2008 10/17/2008
10/20/2008

T. Fidanza)(Joseloff, B.) (Entered: 08/28/2008)
26 SCHEDULING ORDER: 19 Report of Parties' Planning. Discovery due by 3/31/2009, Joint Status Report due by 11/29/2008. Signed by Judge Janet C. Hall on 8/29/2008. (Heard, J.) (Entered: 09/02/2008)
27 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 10/28/2008 2:00 PM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. Please read and comply with the attached instructions. (Milligan, C.) (Entered: 09/03/2008)
28 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Status Conference held on 9/3/2008. 3 minutes (Milligan, C.) (Entered: 09/03/2008)
29 MOTION for Leave to Appear Pro Hac Vice Attorney Adam T. Klein. Filing Fee $25.00. Receipt Number B016571. by Cherie Easterling. (Simpson, T.) (Entered: 09/10/2008)
30 MOTION for Leave to Appear Pro Hac Vice Attorney Michael T. Kirkpatrick. Filing Fee $25.00. Receipt Number B016571. by Cherie Easterling. (Simpson, T.) (Entered: 09/10/2008)
31 ORDER granting 29 Motion for Attorney Adam T. Klein to Appear Pro Hac Vice; granting 30 Motion for Attorney Michael T. Kirkpatrick to Appear Pro Hac Vice. Signed by Clerk on 9/10/08. (Simpson, T.) (Entered: 09/10/2008)
32 Memorandum in Opposition re 20 MOTION to Dismiss filed by Cherie Easterling. (Attachments: # 1 Memorandum in Support Plaintiff's Opposition to Defendant's Motion to Dismiss, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Marnin, Stephanie) (Entered: 09/29/2008)
33 MOTION to Amend/Correct 1 Initial Complaint and Relate Back the Claim by Cherie Easterling.Responses due by 10/20/2008 (Attachments: # 1 Memorandum in Support Plaintiff's Motion to Amend Initial Complaint and Relate Back the Claim, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Marnin, Stephanie) Modified on 9/30/2008 (Simpson, T.). (Entered: 09/29/2008)
Docket Entry Correction re 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim MODIFIED TO CREATE DOCKET ENTRY RELATIONSHIP TO DOC #1 (Simpson, T.) (Entered: 09/30/2008)
34 MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Dismiss until October 27, 2008 by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 10/10/2008)
35 ORDER granting 34 Motion for Extension of Time to File Response/Reply re 20 MOTION to Dismiss. Responses due by 10/27/2008. SO ORDERED by Judge Janet C. Hall on 10/14/08. (Simpson, T.) (Entered: 10/14/2008)
36 REMINDER: A settlement conference is scheduled for Tuesday, October 28, 2008, at 2PM. Pursuant to the Court's Settlement Conference Order, not later than 14 days before the conference, plaintiff's counsel shall contact defendant's counsel to initiate settlement discussions, if they are not already on−going. At least 5 days before the conference, each party shall provide to the Court, in confidence, a concise statement, no longer than 3 pages in length, of the evidence the party expects to produce at trial. The statements shall outline the settlement negotiations to date, and identify where possible the obstacles or impediments which have so far prevented settlement of the matter. (Esposito, A.) (Entered: 10/17/2008)
37 MOTION for Extension of Time to File Response/Reply as to 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim until November 19, 2008 by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 10/20/2008)

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10/22/2008
10/27/2008 10/28/2008 10/28/2008 11/07/2008 11/07/2008 11/10/2008
12/05/2008 12/09/2008 12/11/2008
01/12/2009 01/20/2009 02/03/2009
02/09/2009 02/27/2009 03/23/2009 03/24/2009

38 ORDER granting 37 Motion for Extension of Time to File Response/Reply re 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim. Responses due by 11/19/2008. SO ORDERED by Judge Janet C. Hall on 10/21/08. (DeRubeis, B.) (Entered: 10/22/2008)
39 Second MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Dismiss until November 10, 2008 by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 10/27/2008)
40 ORDER granting 39 Motion for Extension of Time to File Reply as to 20 Motion to Dismiss until November 10, 2008. SO ORDERED by Judge Janet C. Hall on 10/28/08. (DeRubeis, B.) (Entered: 10/28/2008)
Reset Deadlines as to 20 MOTION to Dismiss. Responses due by 11/10/2008 (Simpson, T.) (Entered: 10/30/2008)
41 Third MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Dismiss until January 10, 2009 by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 11/07/2008)
42 Second MOTION for Extension of Time to File Response/Reply as to 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim until January 19, 2009 by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 11/07/2008)
43 ORDER granting 41 Motion for Extension of Time to File Response/Reply re 20 MOTION to Dismiss. This is the final extension. Responses due by 1/10/2009. Granting 42 Motion for Extension of Time to File Response/Reply re 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim. This is the final extension. Responses due by 1/19/2009. SO ORDERED by Judge Janet C. Hall on 11/8/2008. (DeRubeis, B.) (Entered: 11/10/2008)
44 Joint STATUS REPORT by Cherie Easterling, State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 12/05/2008)
45 MOTION for Extension of Time until January 16, 2009 to File Objections and/or Responses to Plaintiff's Requests for Production by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 12/09/2008)
46 ORDER granting 45 Motion for Extension of Time, on the condition that it will not in any way impact upon the 1/10/2009 deadline set by the court. See Order (Doc. No. 43). SO ORDERED by Judge Janet C. Hall on 12/11/2008. (Joseloff, B.) (Entered: 12/11/2008)
47 REPLY to Response to 20 MOTION to Dismiss filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit Rodriguez Affidavit with attachments A through E)(Rodriguez, Maria) (Entered: 01/12/2009)
48 Memorandum in Opposition re 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit Affidavit with Attachments)(Rodriguez, Maria) (Entered: 01/20/2009)
49 REPLY to Response to 33 MOTION to Amend/Correct Initial Complaint and Relate Back the Claim Plaintiffs; Reply to Defendant's Opposition to Amend and Relate Back the Claims filed by Cherie Easterling. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marnin, Stephanie) (Entered: 02/03/2009)
50 RULING denying 20 Motion to Dismiss; denying 33 Motion to Amend/Correct. Signed by Judge Janet C. Hall on 2/9/09. (Simpson, T.) (Entered: 02/09/2009)
51 Joint STATUS REPORT by Cherie Easterling, State of CT Dept of Corr. (Marnin, Stephanie) (Entered: 02/27/2009)
52 Joint MOTION for Extension of Time until June 29, 2009 Revised Discovery Schedule by Cherie Easterling, State of CT Dept of Corr. (Marnin, Stephanie) (Entered: 03/23/2009)
53 ORDER granting 52 Motion for Extension of Time. The Motion is granted. However, the parties should understand that these deadlines will not be moved. Further, any additional time after ruling on the Motion for Class Certification for

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05/28/2009 07/27/2009 07/27/2009 07/27/2009 08/06/2009 08/17/2009 08/19/2009 08/21/2009 08/26/2009 08/28/2009 08/28/2009 08/28/2009 08/31/2009 08/31/2009 09/01/2009 09/18/2009 09/18/2009
09/21/2009

discovery and motions will be limited. SO ORDERED by Judge Janet C. Hall on 3/24/2009. (Joseloff, B.) (Entered: 03/24/2009)
54 Joint STATUS REPORT by Cherie Easterling, State of CT Dept of Corr. (Chapple, Margaret) (Entered: 05/28/2009)
55 MOTION for Leave to Appear Pro Hac Vice Attorney Samuel Miller. Filing Fee $25.00. Receipt Number B018246. by Cherie Easterling. (Simpson, T.) (Entered: 07/27/2009)
56 ORDER granting 55 Motion for Attorney Samuel Miller to Appear Pro Hac Vice. Signed by Clerk on 7/27/09. (Simpson, T.) (Entered: 07/27/2009)
57 MOTION to Certify Class by Cherie Easterling.Responses due by 8/17/2009 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1−14, # 3 Exhibit 15−27)(Marnin, Stephanie) (Entered: 07/27/2009)
58 NOTICE of Appearance by Samuel Miller on behalf of Cherie Easterling (Miller, Samuel) (Entered: 08/06/2009)
59 MOTION for Extension of Time to File Response/Reply as to 57 MOTION to Certify Class until August 21, 2009 by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 08/17/2009)
60 ORDER granting 59 Motion for Extension of Time to File Response/Reply re 57 MOTION to Certify Class Responses due by 8/21/2009. SO ORDERED by Judge Janet C. Hall on 8/18/2009. (DeRubeis, B.) (Entered: 08/19/2009)
61 Memorandum in Opposition re 57 MOTION to Certify Class filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit 1 − Affidavit with attachments, # 2 Exhibit 2 and 3)(Rodriguez, Maria) (Entered: 08/21/2009)
62 STATUS REPORT by Cherie Easterling. (Marnin, Stephanie) (Entered: 08/26/2009)
63 MOTION for Leave to File Partial Summary Judgment by Cherie Easterling. (Attachments: # 1 Exhibit 1−2)(Marnin, Stephanie) (Entered: 08/28/2009)
64 Statement of Material Facts re 63 MOTION for Leave to File Partial Summary Judgment filed by Cherie Easterling. (Attachments: # 1 Exhibit 1−10, # 2 Exhibit 11−28)(Marnin, Stephanie) (Entered: 08/28/2009)
65 Memorandum in Support re 63 MOTION for Leave to File Partial Summary Judgment filed by Cherie Easterling. (Marnin, Stephanie) (Entered: 08/28/2009)
66 MOTION for Summary Judgment Partial by Cherie Easterling.Responses due by 9/21/2009 (Marnin, Stephanie) (Entered: 08/31/2009)
67 REPLY to Response to 57 MOTION to Certify Class filed by Cherie Easterling. (Attachments: # 1 Exhibit 1−4)(Marnin, Stephanie) (Entered: 08/31/2009)
68 STATUS REPORT of the Defendant by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 09/01/2009)
69 Memorandum in Opposition re 63 MOTION for Leave to File Partial Summary Judgment filed by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 09/18/2009)
70 MOTION for Extension of Time to File Response/Reply as to 66 MOTION for Summary Judgment Partial until Thirty Days after the Court issues a ruling on the Pending Plaintiff's Request for Leave to file Motion for Partial Summary Judgment (Doc. # 63), if necessary by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 09/18/2009)
71 ORDER granting 70 MOTION for Extension of Time to File Response/Reply as to 66 MOTION for Summary Judgment Partial until Thirty Days after the Court issues a ruling on the Pending Plaintiff's Request for Leave to file Motion for Partial Summary Judgment (Doc. # 63), if necessary by State of CT Dept of Corr. SO ORDERED by Judge Janet C. Hall on 9/19/2009. (DeRubeis, B.) (Entered:

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09/29/2009 09/29/2009 09/30/2009 09/30/2009
01/04/2010 01/14/2010
01/19/2010 01/25/2010
03/11/2010
03/11/2010 04/05/2010 04/08/2010 04/30/2010

09/21/2009)
72 REPLY to Response to 63 MOTION for Leave to File Partial Summary Judgment filed by Cherie Easterling. (Marnin, Seth) Modified on 9/30/2009 (Simpson, T.). (Entered: 09/29/2009)
73 EXHIBIT 1 by Cherie Easterling re 72 Reply to Response to Motion. (Marnin, Seth) (Entered: 09/29/2009)
Docket Entry Correction re 72 Reply to Response to Motion MODIFIED TO CREATE DOCKET ENTRY RELATIONSHIP TO DOC #63 AND REMOVE RELATIONSHIP FROM DOC #66(Simpson, T.) (Entered: 09/30/2009)
74 ORDER denying 63 MOTION for Leave to File Partial Summary Judgment by Cherie Easterling. The Motion for Partial Summary Judgment that was docketed should be terminated. The plaintiff may reclaim that motion in accordance with the schedule approved after the ruling on the Motion for Class Certification. SO ORDERED by Judge Janet C. Hall on 9/30/2009. (DeRubeis, B.) (Entered: 10/01/2009)
75 RULING granting 57 Motion to Certify Class. Signed by Judge Janet C. Hall on 1/4/2010. (Simpson, T.) (Entered: 01/05/2010)
76 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 1/26/2010 12:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 01/14/2010)
77 PROPOSED ORDER Merit Discovery Schedule by Cherie Easterling, State of CT Dept of Corr. (Marnin, Seth) (Entered: 01/19/2010)
78 NOTICE OF AMENDED E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference has been changed to 3/11/2010 02:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 01/25/2010)
79 Minute Entry for proceedings held before Judge Janet C. Hall: Status Conference held on 3/11/10. Plaintiff's dispositive motion deadline set for 7/15/10. Defendant's deadline for opposition set for 8/9/10. Plaintiff's reply deadline set for 8/30/10. With respect to defendant's dispositive motions, defendant's motion deadline set for 8/9/10. Plaintiff's opposition deadline set for 8/30/10. Defendant's reply deadline set for 9/13/10. The parties shall file a Revised Proposed Discovery Schedule in accordance with these deadlines as stated on the record. 40 minutes (Court Reporter T. Fidanza.) (Volek, J.) (Entered: 03/11/2010)
Set Deadlines/Hearings: Dispositive Motions due by 7/15/2010 (DeRubeis, B.) (Entered: 03/11/2010)
80 PROPOSED ORDER re 77 Proposed Order Revised Discovery Schedule by Cherie Easterling, State of CT Dept of Corr. (Marnin, Seth) (Entered: 04/05/2010)
81 ORDER re 80 Proposed Order filed by State of CT Dept of Corr, Cherie Easterling, ( Discovery due by 6/15/2010, Dispositive Motions due by 7/15/2010 &8/9/2010, Trial Brief due by 7/15/2010 or 30 days after ruling on dispositive motions). SO ORDERED by Judge Janet C. Hall on 4/8/2010. (DeRubeis, B.) (Entered: 04/08/2010)
82 NOTICE by State of CT Dept of Corr of Designation of Expert Concerning Statistical Disparities (Attachments: # 1 Exhibit)(Rodriguez, Maria) (Entered: 04/30/2010)

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05/04/2010
05/07/2010 05/12/2010 05/13/2010 05/17/2010 05/18/2010
05/21/2010 05/28/2010 05/28/2010 06/04/2010 06/04/2010
06/07/2010 06/07/2010

83 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 5/7/2010 02:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 05/04/2010)
84 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Conference held on 5/7/2010. Production of discovery materials is ordered as stated on the record. 15 minutes. (Court Reporter T. Fidanza.) (Volek, J.) (Entered: 05/07/2010)
85 Second MOTION for Extension of Time until June 4, 2010 to Designate Trial Experts and Provide Expert(s) Report(s) by State of CT Dept of Corr. (Chapple, Margaret) (Entered: 05/12/2010)
86 OBJECTION re 85 Second MOTION for Extension of Time until June 4, 2010 to Designate Trial Experts and Provide Expert(s) Report(s) filed by Cherie Easterling. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Marnin, Seth) (Entered: 05/13/2010)
87 Supplemental OBJECTION re 86 Objection, 85 Second MOTION for Extension of Time until June 4, 2010 to Designate Trial Experts and Provide Expert(s) Report(s) filed by Cherie Easterling. (Marnin, Seth) (Entered: 05/17/2010)
88 ORDER granting in part 85 Second MOTION for Extension of Time until June 4, 2010 to Designate Trial Experts and Provide Expert(s) Report(s) by State of CT Dept of Corr. Motion is granted in part only because defense counsel has left the court little choice, filing on the day of the deadline. Counsel is advised that, if this occurs again in any case in which counsel appears, the court will deny the motion to extend. Defendant's deadline is extended until 5/28/2010 only. Plaintiff is to propose a modified schedule for approval by the court within 5 days. SO ORDERED by Judge Janet C. Hall on 5/18/2010. (DeRubeis, B.) (Entered: 05/18/2010)
89 PROPOSED ORDER re 88 Order on Motion for Extension of Time,, Modified Merits Discovery Schedule by Cherie Easterling. (Marnin, Seth) (Entered: 05/21/2010)
90 NOTICE by State of CT Dept of Corr of Designation of Expert Concerning Business Necessity and Job Relatedness (Attachments: # 1 Exhibit)(Rodriguez, Maria) (Entered: 05/28/2010)
91 NOTICE by State of CT Dept of Corr Defendant's Designation of Expert Concerning Business Necessity and Job Relatedness (Libby and Anderson) (Attachments: # 1 Exhibit Addendums A − C)(Rodriguez, Maria) (Entered: 05/28/2010)
92 MOTION to Expedite Resolution of Dispute by Cherie Easterling. (Marnin, Seth) (Entered: 06/04/2010)
93 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION., Conference re: 92 MOTION to Expedite Resolution of Dispute set for 6/7/2010 12:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Volek, J.) (Entered: 06/04/2010)
94 ORDER granting 92 Motion to Expedite. SO ORDERED by Judge Janet C. Hall on 6/7/10. (Volek, J.) (Entered: 06/07/2010)
95 Minute Entry for proceedings held before Judge Janet C. Hall: Discovery Hearing held on 6/7/2010. Discovery schedule revised as stated on the record and as will be articulated in forthcoming order. 50 minutes(Court Reporter Fidanza, Terri.) (Jaiman, R.) (Entered: 06/08/2010)

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06/08/2010 06/10/2010 06/18/2010 07/01/2010 07/02/2010 08/03/2010
08/04/2010 08/09/2010 08/10/2010 09/02/2010 09/03/2010 09/07/2010
09/07/2010 10/14/2010 10/14/2010
10/15/2010 11/02/2010

96 PROPOSED ORDER Revised Proposed Merits Discovery Schedule by Cherie Easterling. (Marnin, Seth) (Entered: 06/08/2010)
97 ORDER re: 96 Proposed Discovery Schedule. (Merits Discovery due by 6/11/2010, Dispositive Motions due by 9/2/2010, Trial Brief due by 9/2/2010). SO ORDERED by Judge Janet C. Hall on 6/10/2010. (DeRubeis, B.) (Entered: 06/10/2010)
98 NOTICE by State of CT Dept of Corr of Designation of Expert Concerning Less Discriminatory Alternative (Attachments: # 1 Exhibit)(Chapple, Margaret) (Entered: 06/18/2010)
99 MOTION for Deborah McKenna to Withdraw as Attorney by Cherie Easterling. (McKenna, Deborah) (Entered: 07/01/2010)
100 ORDER granting 99 Motion to Withdraw as Attorney. Attorney Deborah L. McKenna terminated. SO ORDERED by Judge Janet C. Hall on 7/2/10. (Volek, J.) (Entered: 07/02/2010)
101 ENTERED IN ERROR − NOTICE by Cherie Easterling of Designation of Experts Concerning Business Necessity and Job Relatedness, and Less Discriminatory Alternatives (Marnin, Seth) Modified on 8/4/2010 (Simpson, T.). (Entered: 08/03/2010)
Docket Entry Correction re 101 Notice (Other) − MODIFIED TO NOTE DOCUMENT ENTERED IN ERROR − PER THE LOCAL RULES, DISCOVERY IS NOT TO BE FILED (Simpson, T.) (Entered: 08/04/2010)
102 MOTION for Extension of Time until three weeks regarding scheduling order 97 Order, Set Deadlines/Hearings by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 08/09/2010)
103 ORDER granting 102 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 8/10/10. (Volek, J.) (Entered: 08/10/2010)
Set Deadlines/Hearings: Dispositive Motions due by 9/23/2010 (DeRubeis, B.) (Entered: 09/02/2010)
104 MOTION for Extension of Time until three weeks from current deadlines regarding the Scheduling Order by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 09/03/2010)
105 ORDER granting 104 MOTION for Extension of Time until three weeks from current deadlines regarding the Scheduling Order by State of CT Dept of Corr. Counsel should not expect any further extensions. SO ORDERED by Judge Janet C. Hall on 9/5/2010. (DeRubeis, B.) (Entered: 09/07/2010)
Set Deadlines/Hearings: Dispositive Motions due by 10/14/2010 (DeRubeis, B.) (Entered: 09/07/2010)
106 MOTION for Summary Judgment by Cherie Easterling.Responses due by 11/4/2010 (Marnin, Seth) (Entered: 10/14/2010)
107 Statement of Material Facts re 106 MOTION for Summary Judgment filed by Cherie Easterling. (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, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34)(Marnin, Seth) (Entered: 10/15/2010)
108 Memorandum in Support re 106 MOTION for Summary Judgment filed by Cherie Easterling. (Marnin, Seth) (Entered: 10/15/2010)
109 ANSWER to 1 Complaint with Affirmative Defenses by State of CT Dept of Corr.(Rodriguez, Maria) (Entered: 11/02/2010)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 11 of 22

11/02/2010
11/03/2010
11/05/2010 11/05/2010
11/05/2010 11/09/2010 11/23/2010 11/23/2010 11/24/2010 11/24/2010 11/24/2010 11/24/2010

110 MOTION for Extension of Time to File Response/Reply as to 106 MOTION for Summary Judgment until November 15, 2010; and to December 20, 2010 for the plaintiff's reply and opposition to defendant's cross motion for summary judgment; and to January 18, 2011 for the defendant's reply brief to plaintiff's objection to defendant's cross motion for summary judgment by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 11/02/2010)
111 ORDER denying 110 MOTION for Extension of Time to File Response/Reply as to 106 MOTION for Summary Judgment until November 15, 2010; and to December 20, 2010 for the plaintiff's reply and opposition to defendant's cross motion for summary judgment; and to January 18, 2011 for the defendant's reply brief to plaintiff's objection to defendant's cross motion for summary judgment by State of CT Dept of Corr. SO ORDERED by Judge Janet C. Hall on 11/3/2010. (DeRubeis, B.) (Entered: 11/03/2010)
112 Memorandum in Opposition re 106 MOTION for Summary Judgment filed by State of CT Dept of Corr. (Attachments: # 1 Memorandum in Support)(Rodriguez, Maria) (Entered: 11/05/2010)
113 MOTION for Summary Judgment by State of CT Dept of Corr.Responses due by 11/26/2010 (Attachments: # 1 Memorandum in Support of Motion for Summary Judgment, # 2 Statement of Material Facts, # 3 Exhibit Index of Exhibits, # 4 Exhibit Affidavit, # 5 Exhibit Attachments, # 6 Exhibit A−C, # 7 Exhibit D−1, Part 1, # 8 Exhibit D−2 Part 2, # 9 Exhibit E−M, # 10 Exhibit 2, # 11 Exhibit 3, Part 1, # 12 Exhibit 3, Part 2, # 13 Exhibit 4, Part 1, # 14 Exhibit 4, Part 2, # 15 Exhibit 4, Part 3, # 16 Exhibit 5, Part 1, # 17 Exhibit 5, Part 2, # 18 Exhibit 6, Part 1, # 19 Exhibit 6, Part 2, # 20 Exhibit 7, Part 1, # 21 Exhibit 7, Part 2, # 22 Exhibit 8, # 23 Exhibit 9, # 24 Exhibit 10)(Rodriguez, Maria) (Entered: 11/05/2010)
114 MOTION for Extension of Time to File Response/Reply as to 106 MOTION for Summary Judgment until November 5, 2010 by State of CT Dept of Corr. (Chapple, Margaret) (Entered: 11/05/2010)
115 ORDER granting 114 Motion for Extension of Time to File Response/Reply re 106 MOTION for Summary Judgment Responses due by 11/5/2010. SO ORDERED by Judge Janet C. Hall on 11/8/2010. (DeRubeis, B.) (Entered: 11/09/2010)
116 MOTION to Strike 109 Answer to Complaint Motion to Strike Affirmative Defenses by Cherie Easterling.Responses due by 12/14/2010 (Marnin, Seth) (Entered: 11/23/2010)
117 Memorandum in Support re 116 MOTION to Strike 109 Answer to Complaint Motion to Strike Affirmative Defenses filed by Cherie Easterling. (Marnin, Seth) (Entered: 11/23/2010)
118 REPLY to Response to 106 MOTION for Summary Judgment filed by Cherie Easterling. (Marnin, Seth) (Entered: 11/24/2010)
119 Memorandum in Opposition re 113 MOTION for Summary Judgment filed by Cherie Easterling. (Marnin, Seth) (Entered: 11/24/2010)
120 Statement of Material Facts re 113 MOTION for Summary Judgment filed by Cherie Easterling. (Marnin, Seth) (Entered: 11/24/2010)
121 Statement of Material Facts re 106 MOTION for Summary Judgment CORRECTED filed by Cherie Easterling. (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, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14 CORRECTED, # 15 Exhibit 15, # 16 Exhibit 16 CORRECTED, # 17 Exhibit 17, # 18 Exhibit 18 CORRECTED, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34 CORRECTED, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42)(Marnin, Seth) (Entered: 11/24/2010)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 12 of 22

12/16/2010 12/16/2010
12/16/2010 12/22/2010 12/22/2010 12/22/2010 12/23/2010 01/13/2011 04/15/2011
04/18/2011 04/18/2011 05/05/2011 05/05/2011 05/10/2011
05/17/2011

122 Statement of Material Facts re 106 MOTION for Summary Judgment Defendant's Local Rule 56(a)2 Statement in Response to Planitiff's Corrected Local Rule 56(a)1 Statement filed by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 12/16/2010)
123 MOTION for Permission to File Supplemental 56(a)1 Statement of Facts re 113 MOTION for Summary Judgment by State of CT Dept of Corr.Responses due by 1/6/2011 (Attachments: # 1 Exhibit Proposed Supplemental 56(a) Statement of Facts, # 2 Exhibit Exhibits for Supplemental Statement)(Rodriguez, Maria) (Entered: 12/16/2010)
124 MOTION for Leave to File Excess Pages regarding Reply Brief in Support of Motion for Summary Judgment by State of CT Dept of Corr. (Attachments: # 1 Exhibit Proposed Relief Brief)(Rodriguez, Maria) (Entered: 12/16/2010)
125 Memorandum in Opposition re 116 MOTION to Strike 109 Answer to Complaint Motion to Strike Affirmative Defenses filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit E−mails)(Rodriguez, Maria) (Entered: 12/22/2010)
126 First MOTION for Extension of Time to File Response/Reply as to 116 MOTION to Strike 109 Answer to Complaint Motion to Strike Affirmative Defenses until January 13, 2011 by Cherie Easterling. (Marnin, Seth) (Entered: 12/22/2010)
Set/Reset Deadlines as to 116 MOTION to Strike 109 Answer to Complaint Motion to Strike Affirmative Defenses. Responses due by 1/13/2011 (Lewis, D) (Entered: 12/23/2010)
127 ORDER granting 126 Motion for Extension of Time to File Response/Reply. SO ORDERED by Judge Janet C. Hall on 12/23/10. (Hobbs, J.) (Entered: 12/23/2010)
128 REPLY to Response to 116 MOTION to Strike 109 Answer to Complaint Motion to Strike Affirmative Defenses filed by Cherie Easterling. (Marnin, Seth) (Entered: 01/13/2011)
129 ORDER granting 123 Motion for Permission to File Supplemental 56(a)(1) Statement of Facts; granting 124 Motion for Leave to File Oversized Reply Brief. Defendant is directed to file its proposed Supplemental 56(a)(1) Statement of Facts and to file its proposed Reply. So ordered by Judge Janet C. Hall on 04/15/2011. (Tebbs, J.) (Entered: 04/15/2011)
130 Supplemental Statement of Material Facts re 113 MOTION for Summary Judgment filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit)(Rodriguez, Maria) (Entered: 04/18/2011)
131 REPLY to Response to 113 MOTION for Summary Judgment filed by State of CT Dept of Corr. (Rodriguez, Maria) (Entered: 04/18/2011)
132 RULING granting in part and denying in part 116 Motion to Strike. Signed by Judge Janet C. Hall on 5/5/2011. (Simpson, T.) (Entered: 05/05/2011)
133 RULING granting 106 Motion for Summary Judgment; denying 113 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 5/5/2011. (Simpson, T.) (Entered: 05/05/2011)
134 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 5/24/2011 10:00 AM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Tebbs, J.) (Entered: 05/10/2011)
135 NOTICE OF AMENDED E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 5/24/2011 has been changed to 10:30 AM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Amended calendar as to time change only. (DeRubeis, B.) (Entered: 05/17/2011)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 13 of 22

05/23/2011 05/23/2011 05/24/2011 05/24/2011
05/26/2011 05/27/2011 07/14/2011 07/14/2011
07/18/2011

136 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 5/24/2011 has been changed to 03:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Amended calendar as to time change only. (Tebbs, J.) (Entered: 05/23/2011)
137 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 5/24/2011 has been changed to 04:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Amended calendar as to time change only. (Tebbs, J.) (Entered: 05/23/2011)
138 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 5/24/2011. 20 minutes. (Court Reporter T. Fidanza) (Tebbs, J.) (Entered: 05/24/2011)
139 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 5/26/2011 04:30 PM before Judge Holly B. Fitzsimmons. This case has been referred to Judge Fitzsimmons for a settlement conference. She will hold a pre−conference telephone call with counsel on 5/26/2011 at 4:30PM. A date for the settlement conference will be set during the telephone call. As the Court requires parties or their representatives with settlement authority to attend the settlement conference, counsel should obtain dates of unavailability from their clients over the next 90 days and have their own calendars available to aid in the scheduling. During the telephone call, counsel should be prepared to discuss what information needs to be exchanged and anything else that needs to be accomplished prior to the settlement conference for the discussions to be productive.. This telephone conference will not be rescheduled based on requests from counsel. If counsel is not available at the scheduled time, please arrange for coverage by another lawyer, who will have the necessary background knowledge to participate. Counsel for the plaintiff is requested to initiate this call. Once all the parties are on the line, please contact chambers at (203) 579−5640. (Esposito, A.) (Entered: 05/24/2011)
141 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Pre−Settlement Telephone Conference held on 5/26/2011. Total Time: 1 hours (Jaiman, R.) (Entered: 05/27/2011)
140 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 7/18/2011 at 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. PLEASE READ AND COMPLY WITH THE ATTACHED SETTLEMENT CONFERENCE INSTRUCTIONS. (Jaiman, R.) (Entered: 05/27/2011)
142 MOTION to Decertify Class re 75 Order on Motion to Certify Class by State of CT Dept of Corr.Responses due by 8/4/2011 (Attachments: # 1 Memorandum in Support)(Chapple, Margaret) (Entered: 07/14/2011)
143 REMINDER: A settlement conference is scheduled for Monday July 18, 2011 at 10:30AM. Pursuant to the Court's Settlement Conference Order, not later than 14 days before the conference, plaintiff's counsel shall contact defendant's counsel to initiate settlement discussions, if they are not already on−going. At least 5 days before the conference, each party shall provide to the Court, in confidence, a concise statement, no longer than 3 pages in length, of the evidence the party expects to produce at trial. The statements shall outline the settlement negotiations to date, and identify where possible the obstacles or impediments which have so far prevented settlement of the matter. (Esposito, A.) (Entered: 07/14/2011)
144 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Settlement Conference held on 7/18/2011. 30 minutes. The parties may contact the Court to schedule a settlement conference at any time. (Esposito, A.) (Entered:

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 14 of 22

08/04/2011 08/17/2011
08/22/2011 08/29/2011 09/27/2011
10/04/2011 10/07/2011 10/07/2011 10/20/2011 10/31/2011 11/04/2011
11/22/2011 11/28/2011
12/06/2011

07/18/2011)
145 Memorandum in Opposition re 142 MOTION to Decertify Class re 75 Order on Motion to Certify Class filed by Cherie Easterling. (Marnin, Seth) (Entered: 08/04/2011)
146 MOTION for Extension of Time until August 29, 2011 to File Reply/Response to Plaintiffs' Response to Defendant's 142 Motion to Decertify Class, MOTION for Leave to File Excess Pages by State of CT Dept of Corr. (Chapple, Margaret) Modified on 8/18/2011 TO LINK TO DOC #142 (Oliver, T.). (Entered: 08/17/2011)
147 ORDER granting 146 Motion for Extension of Time ; granting 146 Motion for Leave to File Excess Pages. SO ORDERED by Judge Janet C. Hall on 8/22/2011. (DeRubeis, B.) (Entered: 08/22/2011)
148 REPLY to Response to 142 MOTION to Decertify Class re 75 Order on Motion to Certify Class filed by State of CT Dept of Corr. (Attachments: # 1 Unreported Cases)(Chapple, Margaret) (Entered: 08/29/2011)
149 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re: 142 Motion to Decertify Class set for 11/4/2011 11:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Lienke, J) (Entered: 09/27/2011)
150 NOTICE of Appearance by Tammy Marzigliano on behalf of Cherie Easterling and all others similarly situated (Marzigliano, Tammy) (Entered: 10/04/2011)
151 MOTION for Attorney(s) Cyrus E. Dugger to be Admitted Pro Hac Vice (paid $25 PHV fee; receipt number 0205−2264618) by Cherie Easterling. (Marzigliano, Tammy) (Entered: 10/07/2011)
152 ORDER granting 151 Motion for Attorney Cyrus E. Dugger to Appear Pro Hac Vice. Signed by Clerk on 10/7/2011. (Oliver, T.) (Entered: 10/07/2011)
153 NOTICE of Appearance by Cyrus E. Dugger on behalf of Cherie Easterling and all others similarly situated (Dugger, Cyrus) (Entered: 10/20/2011)
154 Notice of Additional Authority re 142 MOTION to Decertify Class re 75 Order on Motion to Certify Class filed by Cherie Easterling. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Marnin, Seth) (Entered: 10/31/2011)
155 Minute Entry. Proceedings held before Judge Janet C. Hall: Motion Hearing held on 11/4/2011 taking under advisement 142 MOTION to Decertify Class re 75 Order on Motion to Certify Class filed by State of CT Dept of Corr. Total Time: 1 hours and 10 minutes(Court Reporter Terri Fidanza.) (DeRubeis, B.) (Entered: 11/04/2011)
156 RULING denying 142 Motion to Decertify Class. The court, however, modifies its earlier certification order. (SEE RULING FOR FURTHER INFORMATION) Signed by Judge Janet C. Hall on 11/22/2011. (Oliver, T.) (Entered: 11/22/2011)
157 ORDER. The parties shall confer and submit to the court a proposed scheduling order for the remedial phase of this case, or, if they cannot agree upon a proposed schedule, their respective proposals, within fourteen (14) days of this Order. SO ORDERED by Judge Janet C. Hall on 11/28/2011. (Lienke, J) (Entered: 11/28/2011)
158 Joint MOTION for Extension of Time until December 23, 2011 to submit a joint proposed scheduling order, or if that is not possible, to submit separate proposed scheduling orders. Plaintiffs and Defendant, through counsel, also respectfully request an extension of time to and including December 14, 2011, for the parties to submit a joint proposed class notice, or if that is not possible, to submit separate proposed notices. 157 Order, 156 Order on Motion for Miscellaneous Relief by Cherie Easterling, State of CT Dept of Corr. (Marzigliano, Tammy) Modified on 12/7/2011 (Oliver, T.). (Entered: 12/06/2011)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 15 of 22

12/06/2011 12/07/2011 12/14/2011 12/14/2011 12/23/2011 12/23/2011 12/28/2011 12/30/2011 01/03/2012 01/03/2012 01/04/2012
01/13/2012
01/17/2012 01/18/2012 01/19/2012

159 ORDER granting 158 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 12/6/2011. (Lienke, J). (Entered: 12/06/2011)
Docket Entry Correction re 158 Joint MOTION for Extension of Time MODIFIED TO ADD DEFENDANT AS A FILER TO THE DOCKET ENTRY (Oliver, T.) (Entered: 12/07/2011)
160 Proposed NOTICE by State of CT Dept of Corr of Class Action (Chapple, Margaret) (Entered: 12/14/2011)
161 Proposed NOTICE by Cherie Easterling of Class Action (Attachments: # 1 Exhibit A)(Marzigliano, Tammy) (Entered: 12/14/2011)
162 MOTION for Extension of Time until December 30, 2011 to file Proposed Scheduling Order and/or response to Plaintiffs' Proposed Scheduling Order 157 Order, by State of CT Dept of Corr. (Chapple, Margaret) (Entered: 12/23/2011)
163 PROPOSED ORDER re Docket Annotation, 157 Order, 159 Order on Motion for Extension of Time by Cherie Easterling. (Attachments: # 1 Exhibit A)(Marzigliano, Tammy) (Entered: 12/23/2011)
164 ORDER granting 162 MOTION for Extension of Time until December 30, 2011 to file Proposed Scheduling Order and/or response to Plaintiffs' Proposed Scheduling Order 157 Order, by State of CT Dept of Corr. SO ORDERED by Judge Janet C. Hall on 12/27/2011. (DeRubeis, B.) (Entered: 12/28/2011)
165 PROPOSED ORDER re 157 Order, by State of CT Dept of Corr. (Chapple, Margaret) (Entered: 12/30/2011)
166 ORDER re: Class Notice Form re 161 Notice (Other) filed by Cherie Easterling, 160 Notice (Other) filed by State of CT Dept of Corr. Signed by Judge Janet C. Hall on 1/3/2012. (Oliver, T.) (Entered: 01/03/2012)
167 NOTICE by Cherie Easterling re 166 Order (Marzigliano, Tammy) (Entered: 01/03/2012)
168 ORDER re 167 Notice (Other) filed by Cherie Easterling. The court amends the class Notice attached it its 166 Order of January 3, 2012. The first full paragraph on page four of the Notice is amended to read: "4. If you DO NOT wish to be included in the class action, you MUST file a notice that you elect to be excluded BY NO LATER THAN February __, 2012. You may do this by signing and mailing a letter to the Court, by first class mail postmarked no later than the above date. Do not call the Court. In the letter, identify yourself and state that you desire to be excluded from the class action. Address the letter to: Office of the Clerk, Brien McMahon Federal Building, United States Courthouse, 915 Lafayette Boulevard, Bridgeport, CT 06604." The amended Notice is attached to this Order. SO ORDERED by Judge Janet C. Hall on 1/4/2012. (Lienke, J) (Entered: 01/04/2012)
169 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 1/18/2012 02:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203)579−5554. (Lienke, J) (Entered: 01/13/2012)
170 NOTICE by Cherie Easterling re 166 Order, 168 Order,,, Regarding Amended Notice of Class Action (Attachments: # 1 Exhibit A)(Marzigliano, Tammy) (Entered: 01/17/2012)
171 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Status Conference re: Proposed Scheduling Orders held on 1/18/2012. 20 minutes (Court Reporter T. Fidanza.) (Lienke, J) (Entered: 01/18/2012)
172 SCHEDULING ORDER FOR REMEDIAL PHASE OF CLASS ACTION PROCEEDINGS. Signed by Judge Janet C. Hall on 1/19/2012. (Oliver, T.) (Entered: 01/19/2012)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 16 of 22

01/26/2012 02/03/2012
02/08/2012 02/21/2012 02/22/2012 02/22/2012
02/28/2012
02/28/2012 03/01/2012 03/01/2012 03/06/2012

173 OPT OUT NOTICE by Virginia C. Brennan (Oliver, T.) (Entered: 01/26/2012)
174 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 2/8/2012 at 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. PLEASE READ AND COMPLY WITH THE ATTACHED SETTLEMENT CONFERENCE INSTRUCTIONS. (Jaiman, R.) (Entered: 02/03/2012)
175 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 2/8/2012. Case not settled. Total Time: 3 hours and 30 minutes (Jaiman, R.) (Entered: 02/13/2012)
176 Joint MOTION for Telephonic Conference, Joint MOTION for Extension of Time until February 28, 2012 to Stipulate to Facts 172 Scheduling Order by Cherie Easterling, State of CT Dept of Corr. (Marzigliano, Tammy) (Entered: 02/21/2012)
177 ORDER granting 176 Motion for Conference; granting 176 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 2/22/2012. (Lienke, J) (Entered: 02/22/2012)
178 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 3/1/2012 02:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Lienke, J) (Entered: 02/22/2012)
179 TRANSCRIPT of Proceedings: Type of Hearing: Oral Argument. Held on November 11, 2011 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The 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. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction Request due 3/20/2012. Redacted Transcript Deadline set for 3/30/2012. Release of Transcript Restriction set for 5/28/2012. (Fidanza, T.) (Entered: 02/28/2012)
180 Joint MOTION for Extension of Time until March 6, 2012 to Stipulate to Facts 172 Scheduling Order, 177 Order on Motion for Conference, Order on Motion for Extension of Time by Cherie Easterling, State of CT Dept of Corr. (Marzigliano, Tammy) (Entered: 02/28/2012)
181 NOTICE of Appearance by Maura Murphy−Osborne on behalf of State of CT Dept of Corr (Murphy−Osborne, Maura) (Entered: 03/01/2012)
182 Minute Entry. Proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 3/1/2012. Granting 180 Motion for Extension of Time. Stipulations due 3/6/2012. Defendant to move for summary judgment re: shortfall analysis and class−wide mitigation issue by 4/2/2012. Response due 5/1/2012. Reply due 5/11/2012. 15 minutes. (Court Reporter T. Fidanza.) (Lienke, J) (Entered: 03/02/2012)
183 Joint STIPULATION re 172 Scheduling Order, 177 Order on Motion for Conference, Order on Motion for Extension of Time, 182 Order on Motion for Extension of Time, Status Conference,, by Cherie Easterling, State of CT Dept of Corr. (Marzigliano, Tammy) (Entered: 03/06/2012)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 17 of 22

03/07/2012 03/07/2012 03/08/2012 03/27/2012 03/28/2012
04/02/2012 04/09/2012 04/11/2012 04/11/2012 04/13/2012 04/16/2012
04/16/2012
04/18/2012 05/08/2012 05/17/2012

184 MOTION for Seth M. Marnin to Withdraw as Attorney by Cherie Easterling. (Marzigliano, Tammy) (Entered: 03/07/2012)
185 MOTION for Samuel Miller to Withdraw as Attorney by Cherie Easterling. (Marzigliano, Tammy) (Entered: 03/07/2012)
186 ORDER granting 184 Motion to Withdraw as Attorney, granting 185 Motion to Withdraw as Attorney. AttorneyS Seth M. Marnin and Samuel R. Miller terminated. SO ORDERED by Judge Janet C. Hall on 3/8/2012. (DeRubeis, B.) (Entered: 03/08/2012)
187 Joint STIPULATION re 172 Scheduling Order, 177 Order on Motion for Conference, Order on Motion for Extension of Time, 182 Order on Motion for Extension of Time, Status Conference,, by Cherie Easterling, State of CT Dept of Corr. (Marzigliano, Tammy) (Entered: 03/27/2012)
188 ORDER: 187 Joint STIPULATION re 172 Scheduling Order, 177 Order on Motion for Conference, Order on Motion for Extension of Time, 182 Order on Motion for Extension of Time, Status Conference,, by Cherie Easterling, State of CT Dept of Corr. SO ORDERED by Judge Janet C. Hall on 3/28/2012. (DeRubeis, B.) Modified on 3/28/2012 to add text(DeRubeis, B.). (Entered: 03/28/2012)
189 MOTION for Ruling by State of CT Dept of Corr. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − 4)(Chapple, Margaret) (Entered: 04/02/2012)
190 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Status Conference re: Discovery held on 4/9/2012. 30 minutes (Jaiman, R.) (Entered: 04/09/2012)
191 Letter MOTION to Compel by Cherie Easterling.Responses due by 5/2/2012 (Esposito, A.) (Entered: 04/11/2012)
192 ORDER finding as moot 191 Motion to Compel by agreement of the parties. Signed by Judge Holly B. Fitzsimmons on 4/11/12. (Esposito, A.) (Entered: 04/11/2012)
193 ORDER granting oral motion to extend the deadline thirty days for disclosure of plaintiffs' expert(s). No other filing deadlines are affected by the granting of this motion. Signed by Judge Holly B. Fitzsimmons on 4/13/12. (Esposito, A.) (Entered: 04/13/2012)
194 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 4/18/2012 11:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Lienke, J) (Entered: 04/16/2012)
195 MOTION for Extension of Time until 05/08/2012 192 Order on Motion to Compel, 182 Order on Motion for Extension of Time, Status Conference,,, MOTION re 192 Order on Motion to Compel, 182 Order on Motion for Extension of Time, Status Conference,, (Responses due by 5/7/2012, ) by Cherie Easterling. (Marzigliano, Tammy) (Entered: 04/16/2012)
196 Minute Entry. Proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 4/18/2012. Granting 195 Motion for Extension of Time. 15 minutes (Court Reporter T. Fidanza.) (Lienke, J) (Entered: 04/18/2012)
197 RESPONSE re 189 MOTION for Ruling filed by Cherie Easterling. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Marzigliano, Tammy) (Entered: 05/08/2012)
198 First MOTION for Extension of Time until May 30, 2012 to File Reply Brief by State of CT Dept of Corr. (Murphy−Osborne, Maura) (Entered: 05/17/2012)

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05/21/2012
05/23/2012 05/24/2012 05/24/2012 05/29/2012
05/30/2012 05/30/2012 05/31/2012 05/31/2012
05/31/2012 06/01/2012
06/01/2012 06/13/2012

199 ORDER granting 198 First MOTION for Extension of Time until May 30, 2012 to File Reply Brief by State of CT Dept of Corr. The parties should not expect any further extensions in this case absent extremely good cause. This matter is being dragged out unnecessarily. All deadlines will be observed in the future. SO ORDERED by Judge Janet C. Hall on 5/21/2012. (DeRubeis, B.) (Entered: 05/21/2012)
200 MOTION for Leave to File Excess Pages by State of CT Dept of Corr. (Murphy−Osborne, Maura) (Entered: 05/23/2012)
201 ORDER granting in part to 15 pages 200 Motion for Leave to File Excess Pages. SO ORDERED by Judge Janet C. Hall on 5/24/2012. (DeRubeis, B.) (Entered: 05/24/2012)
202 MOTION to Compel full and complete responses to Defendant's interrogatories and requests for production, dated April 12, 2012 by State of CT Dept of Corr.Responses due by 6/14/2012 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Certificate of Good Faith)(Chapple, Margaret) (Entered: 05/24/2012)
203 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re: 202 Motion to Compel set for 6/1/2012 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Lienke, J) (Entered: 05/29/2012)
204 Joint MOTION for stay of discovery and referral to mediation with Judge Fitzsimmons re 172 Scheduling Order, 193 Order by Cherie Easterling, State of CT Dept of Corr.Responses due by 6/20/2012 (Marzigliano, Tammy) Modified on 5/31/2012 TO CORRECT MOTION RELIEF (Oliver, T.). (Entered: 05/30/2012)
205 Memorandum in Support re 189 MOTION for Ruling filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit A)(Chapple, Margaret) (Entered: 05/30/2012)
206 ORDER. The in−court hearing on defendant's 202 Motion to Compel is canceled. The court will instead hold a telephone conference re: the 204 Joint Motion for Stay of Discovery. A separate calender will issue. SO ORDERED by Judge Janet C. Hall on 5/31/2012. (Lienke, J) (Entered: 05/31/2012)
207 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 6/1/2012 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Lienke, J) (Entered: 05/31/2012)
208 REPLY to Response to 189 MOTION for Ruling filed by State of CT Dept of Corr. (Attachments: # 1 Exhibit A)(Chapple, Margaret) (Entered: 05/31/2012)
209 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 6/28/2012 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. The parties will submit an exparte settlement letter to the Court three days prior to the conference pursuant to the Court's settlement conference instructions. (Esposito, A.) (Entered: 06/01/2012)
210 Minute Entry. Proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 6/1/2012; granting 204 Motion to Stay Discovery. Discovery stayed until 7/1/2012. 20 minutes. (Court Reporter T. Fidanza.) (Lienke, J) (Entered: 06/01/2012)
211 ORDER. In light of the current stay of discovery, the 202 Defendant's Motion to Compel is terminated, without prejudice to refiling. SO ORDERED by Judge Janet

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 19 of 22

06/26/2012 06/27/2012 06/28/2012 07/27/2012
07/30/2012 07/30/2012
08/06/2012 08/30/2012 08/31/2012 08/31/2012
08/31/2012
09/12/2012

C. Hall on 6/13/2012. (Lienke, J) (Entered: 06/13/2012)
212 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 6/26/2012. Case not settled. Total Time: 2 hours. (Jaiman, R.) (Entered: 06/27/2012)
213 RULING granting in part and denying in part defendant's 189 Motion for Ruling. Signed by Judge Janet C. Hall on 6/27/2012. (Lewis, D) (Entered: 06/27/2012)
214 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 6/28/2012. The parties are to report back in 30 days. Total Time: 2 hours. (Jaiman, R.) (Entered: 06/28/2012)
215 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 7/30/2012 10:15 AM before Judge Holly B. Fitzsimmons. The parties will report back on the status of their settlement discussions. Please contact chambers when all the parties are on the line at (203) 579−5640. (Esposito, A.) (Entered: 07/27/2012)
216 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Status Conference held on 7/30/2012. 5 minutes. (Esposito, A.) (Entered: 07/30/2012)
217 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 8/6/2012 10:15 AM regarding on going settlement discussions before Judge Holly B. Fitzsimmons. One the parties are on the line, please call chambers at (203) 579−5640. (Esposito, A.) (Entered: 07/30/2012)
218 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Status Conference held on 8/6/2012 and 5 minutes. Parties to report back to the Court on August 31, 2012. (Garcia, M.) (Entered: 08/06/2012)
219 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Status/Settlement Conference set for 8/31/2012 10:15 AM before Judge Holly B. Fitzsimmons. Once the parties are on the line, please contact chambers at (203) 579−5640. (Esposito, A.) (Entered: 08/30/2012)
220 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Status Conference held on 8/31/2012. and 20 minutes (Garcia, M.) (Entered: 08/31/2012)
221 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Status Conference set for 9/19/2012 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. (Garcia, M.) (Entered: 08/31/2012)
222 ORDER: Following the August 31 telephone status conference it is hereby ordered that, defendants provide plaintiff with all data production by September 7, 2012; defendants provide plaintiff with a comprehensive written response to plaintiff's July 16th proposal by September 14, 2012; plaintiff may submit a response prior to the September 19th status conference. The parties shall provide the Court with courtesy copies of the proposal, response and reply in advance of the September 19th status conference. Signed by Judge Holly B. Fitzsimmons on 8/31/2012. (Garcia, M.) (Entered: 08/31/2012)
223 NOTICE TO COUNSEL/PRO SE LITIGANTS: COUNSEL AND PRO SE LITIGANTS ARE HEREBY ADVISED THAT EFFECTIVE SEPTEMBER 19, 2012, ALL COURT PROCEEDINGS BEFORE JUDGE JANET C. HALL PREVIOUSLY SCHEDULED IN BRIDGEPORT CONNECTICUT, WILL BE HELD IN COURTROOM 1, 141 CHURCH STREET, NEW HAVEN, CONNECTICUT. PARTIES REQUESTED TO PARTICIPATE IN TELEPHONIC CONFERENCES ON OR AFTER SEPTEMBER 19, 2012, SHOULD TELEPHONE CHAMBERS AT (203) 773−2427. THIS IS THE ONLY

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 20 of 22

09/13/2012
09/19/2012 09/19/2012
10/12/2012 10/25/2012
10/25/2012 11/09/2012 12/07/2012 12/14/2012 01/14/2013
01/25/2013 01/30/2013

NOTICE PARTIES WILL RECEIVE. Signed by Clerk on 9/12/12. (Pesta, J.) (Entered: 09/12/2012)
224 REMINDER: A settlement conference is scheduled for Wednesday, September 19, 2012 at 10:00AM. Pursuant to the Court's Settlement Conference Order, not later than 14 days before the conference, plaintiff's counsel shall contact defendant's counsel to initiate settlement discussions, if they are not already on−going. At least 5 days before the conference, each party shall provide to the Court, in confidence, a concise statement, no longer than 3 pages in length, of the evidence the party expects to produce at trial. The statements shall outline the settlement negotiations to date, and identify where possible the obstacles or impediments which have so far prevented settlement of the matter. (Esposito, A.) (Entered: 09/13/2012)
225 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 9/19/2012. 45 minutes. Plaintiffs will supplement production by 9/21/12. Defendant's response is due on 9/28/12, with plaintiffs response due by 10/5/12. A settlement conference is scheduled for 10/12/12 at 10:00AM. (Esposito, A.) (Entered: 09/19/2012)
226 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 10/12/2012 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons (Esposito, A.) (Entered: 09/19/2012)
227 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 10/12/2012. Parties to report back on October 25, 2012. Total Time: 6 hours (Jaiman, R.) (Entered: 10/15/2012)
228 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 11/9/2012 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons (Esposito, A.) (Entered: 10/25/2012)
229 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 10/25/2012. 10 minutes (Esposito, A.) (Entered: 10/25/2012)
231 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 11/9/2012. Parties to report back on 12/7/2012. Total Time: 2 hours (Jaiman, R.) (Entered: 12/13/2012)
230 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Status Conference held on 12/7/2012. 5 minutes (Katz, Samantha) (Entered: 12/07/2012)
232 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 12/14/2012 on the status of the proposed settlement. The parties will report back no later than January 14, 2013. 10 minutes (Esposito, A.) (Entered: 12/14/2012)
233 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 1/25/2013 at 10:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. PLEASE READ AND COMPLY WITH THE ATTACHED SETTLEMENT CONFERENCE ORDER (Katz, Samantha) (Entered: 01/14/2013)
235 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 1/25/2013. Total Time: 2 hours (Jaiman, R.) (Entered: 02/14/2013)
236 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Conference re:Settlement held on 1/30/2013. 15 minutes (Jaiman, R.) (Entered: 02/14/2013)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 21 of 22

02/07/2013 02/25/2013 03/05/2013 03/13/2013 03/19/2013
03/22/2013 07/23/2013 07/24/2013 07/24/2013 07/29/2013 07/30/2013
08/20/2013
08/22/2013 09/06/2013 09/07/2013

234 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 2/7/2013. 30 minutes (Esposito, A.) (Entered: 02/07/2013)
237 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Settlement Conference follow up with defendants held on 2/25/2013. 15 minutes (Esposito, A.) (Entered: 02/25/2013)
238 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Settlement Conference follow−up with plaintiffs held on 3/5/2013. 40 minutes (Katz, Samantha) (Entered: 03/05/2013)
239 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Telephone Conference held on 3/13/2013. 30 minutes (Jaiman, R.) (Entered: 03/14/2013)
240 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Status Conference re: Settlement set for 3/22/2013 12:30 PM before Judge Holly B. Fitzsimmons. Counsel for the plaintiff shall initiate this call. Once all parties are on the line, please contact Chambers at (203)579−5640. (Jaiman, R.) (Entered: 03/19/2013)
241 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Status Conference held on 3/22/2013, Settlement Conference held on 3/22/2013. 10 minutes (Esposito, A.) (Entered: 03/22/2013)
242 MOTION for Settlement Preliminary Approval by Cherie Easterling. (Klein, Adam) (Entered: 07/24/2013)
243 Memorandum in Support re 242 MOTION for Settlement Preliminary Approval filed by Cherie Easterling. (Klein, Adam) (Entered: 07/24/2013)
244 AFFIDAVIT re 242 MOTION for Settlement Preliminary Approval Signed By Cyrus E. Dugger filed by Cherie Easterling. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Klein, Adam) (Entered: 07/24/2013)
245 ORDER granting 242 Plaintiff's Motion for Preliminary Approval of Settlement and Approval of the Proposed Notice of Settlement and Class Action Settlement Procedure. Signed by Judge Janet C. Hall on 7/26/13. (Torrenti, R.) (Entered: 07/29/2013)
246 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Fairness Hearing set for 9/10/2013 02:00 PM in Courtroom One, 141 Church St., New Haven, CT before Judge Janet C. Hall. (DeRubeis, B.) (Entered: 07/30/2013)
247 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Conference set for 8/22/2013 4:00 PM in Chambers Room 107, 141 Church St., New Haven, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 773−2428. (DeRubeis, B.) (Entered: 08/20/2013)
248 Minute Entry for proceedings held before Judge Janet C. Hall: Status Conference held on 8/22/2013. 10 minutes (Court Reporter Terri Fidanza.) (Lamb, K.) Modified on 8/29/2013 (Lewis, D). Modified on 8/29/2013 (Lewis, D). (Entered: 08/27/2013)
249 MOTION for Settlement and Approval of Attorney's Fees and Costs, Service Award, and Notice of Final Approval by Cherie Easterling. (Klein, Adam) (Entered: 09/06/2013)
250 Memorandum in Support re 249 MOTION for Settlement and Approval of Attorney's Fees and Costs, Service Award, and Notice of Final Approval filed by Cherie Easterling. (Klein, Adam) (Entered: 09/07/2013)

Case: 3:08-cv-00826-JCH As of: 10/01/2013 03:21 PM EDT 22 of 22

09/07/2013 09/10/2013
09/10/2013 09/12/2013

251 AFFIDAVIT re 249 MOTION for Settlement and Approval of Attorney's Fees and Costs, Service Award, and Notice of Final Approval Signed By Cyrus E. Dugger filed by Cherie Easterling. (Attachments: # 1 Exhibit H, # 2 Exhibit I, # 3 Exhibit J, # 4 Exhibit K, # 5 Exhibit L, # 6 Exhibit M, # 7 Exhibit N)(Klein, Adam) (Entered: 09/07/2013)
252 Minute Entry. Proceedings held before Judge Janet C. Hall: Motion Hearing held on 9/10/2013; granting as stated on the record 249 Motion for Settlement and Approval of Attorney's Fees and Costs, Service Award, and Notice of Final Approval filed by Cherie Easterling. Service Award granted to Ms. Easterling in the amount of $10,000. Attorney's fees/costs approved in the amounts stated in the motion. 38 minutes(Court Reporter Terri Fidanza.) (Lewis, D) (Entered: 09/10/2013)
253 ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR APPROVAL OF SETTLEMENT, ATTORNEY'S FEES AND COSTS, SERVICE AWARD, AND FINAL APPROVAL NOTICE. Signed by Judge Janet C. Hall on 9/10/2013.(Lewis, D) (Entered: 09/10/2013)
254 JUDGMENT entered in accordance with the Settlement Agreement and the courts Order of September 10, 2013.

09/12/2013

For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms/all−forms/appeals_forms Signed by Clerk on 9/12/2013.(Lewis, D) (Entered: 09/12/2013)
JUDICIAL PROCEEDINGS SURVEY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link:

https://ecf.ctd.uscourts.gov/cgi−bin/Dispatch.pl?survey (Lewis, D) (Entered: 09/12/2013)