UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
____________________________x

HELEN EBBERT, PAMELA EDWARDS, ISABELLA MINNECI, WENDY MURO, FRANCES KAMERER, LORI CONKLIN and all others similarly situated

-against-

Plaintiffs,

NASSAU COUNTY, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE COMMISSION; THOMAS R. SUOZZI, in his official capacity,
Defendants.
___________________________x

AMENDED COMPLAINT CLASS ACTION CV-os S44S(FB)(AKT)
JURY TRIAL REQUESTED

NATURE OF ACTION 1. This is an action to secure injunctive and monetary relief from discrimination because of sex in employment and rates of pay. More specifically, plaintiffs allege that defendants have intentionally discriminated against them and members of the class that they represent by paying them wages substantially lower than the wages paid to men for the performance of
substantially equal work in violation of the Equal Pay Act, 29 U.S.c. §§ 206(d) et seq.; the New York State Equal Pay Act, N.Y. Labor Law §§ 194 et seq.; and 42
U.s.c. § 1983.

JURISDICTION 2. The jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§ 1343(3) and 1343(4) conferring original jurisdiction upon this Court of any civil action to recover damages or secure equitable or other relief under any Act of Congress providing for the protection of civil rights; the Equal Pay Act of 1963,
29 U.s.c. § 206(d) et seq.; and 42 U.S.c. § 1983. The Court's supplemental
jurisdiction is invoked pursuant to 28 U.S.c. § 1367 on the ground that the acts challenged herein are also in violation of the laws of the State of New York,
Labor Law §§ 194 et seq.
PLAINTIFFS 3. Plaintiff Helen Ebbert is a resident of Nassau County and has been employed by Nassau County as a Police Communication Operator since December 1, 1989. At all times relevant she has been an employee as defined by the Equal Pay Act ("EPA") and the New York State Labor Law.
4. Plaintiff Pamela R. Edwards is a resident of Nassau County and has been employed as a Police Communication Operator since November, 1998. At all times relevant she has been an employee as defined by the Equal Pay Act ("EPA") and the New York State Labor Law.
5. Plaintiff Isabella Minneci is a resident of Nassau County and has been employed as a Police Communication Operator since September 1991. At
2

all times relevant she has been an employee as defined by the Equal Pay Act C'EPA/') and the New York State Labor Law.

6. Plaintiff Wendy Muro is a resident of Nassau County and has been employed as a Police Communications Officer since December 1994. At all times relevant she has been an employee as defined by the Equal Pay Act C'EPAII) and the New York State Labor Law.

7. Plaintiff Frances Kamerer is a resident of Nassau County and was hired as a Police Communication Officer in April 1996 and promoted to a Police Communication Operator Supervisor in January 2004. At all times relevant she has been an employee as defined by the Equal Pay Act ("EPAII) and the New York State Labor Law.

8.

Plaintiff Lori Conklin is a resident of Nassau County and was hired

as a Police Communications Officer in February 1986 and promoted to a

Supervising Police Communication Officer in December 2000. At all times

relevant she has been an employee as defined by the Equal Pay Act ("EPA/') and

the New York State Labor Law.

3

DEFENDANTS 9. Defendant County of Nassau is a municipal corporation duly incorporated under the laws of the State of New York.
10. Defendant Nassau County Police Department is the Agency of the County of Nassau to which Police Communications Officers ("PCOs") and Police Communication Operator Supervisors ("PCOSs") are assigned.
11. Defendant Civil Service Commission is an agency of the County of Nassau and is responsible for the classification of county positions and establishment of compensation for county employees.
12. Defendant Thomas R. Suozzi is the Nassau County Executive.
COLLECTIVE ACTION
13. With respect to their Equal Pay Act claim, plaintiffs bring this action
pursuant to 29 U.S.c. §§ 206(d) et seq. on behalf of themselves and all other
women similarly situated. The members of the class are all other women employed by the Nassau County Police Department as PCOs and/or PCOSs on or any time after three years prior to the commencement of this action.
4

Cu\SSAmON 14. With respect to claims raised pursuant to 42 U.s.c. § 1983 and
New York Labor Law §§ 194 et seq., plaintiffs bring this action pursuant to Rule
23(a) and (b)(2) of the Federal Rules of Civil Procedure on behalf of all women similarly situated. The class is comprised of all women employed by the Nassau County Police Department as PCGs and/or PCGSs on or any time after six years prior to the commencement of this action.
15. The requirements of Rule 23 are met: (a) The members of the class are those PCGs who respond to 911 calls
and dispatch accordingly and the PCGs who train and supervise PCGs in those functions. (b) The members of the class, which is approximately 170, are too numerous to be joined. (c) Plaintiffs, all of whom are presently employed as PCGs and PCGSs, raise claims typical of the claims of the classes that they seek to represent. (d) Material questions of law and fact are common to the members of the class and a common relief is sought for all members of the class. (e) Plaintiffs will fairly and adequately represent and protect the interests of the classes. Plaintiffs' lawyers are experienced in the
5

litigation of civil rights matters and will vigorously prosecute this action on behalf of the class. (f) Defendants have acted on grounds generally applicable to the class and appropriate injunctive and declaratory relief would apply to and benefit the class as a whole.
16. Plaintiffs Ebbert, Edwards, Minnici and Muro work for defendant, Nassau County, specifically for the Nassau County Police Department, as pcas. Their duties include receiving telephone calls placed on the Nassau County 911 emergency system, deciding on the appropriate response to each call, and dispatching appropriate aid.
17. Plaintiffs Kamerer and Conklin work for defendant Nassau County, specifically for the Nassau County Police Department as PCOSs. pcas duties include supervising the work of the pcas and evaluating their performance.
18. There are approximately 172 pcas and pcass of which over 90% are female.
19. Defendant Nassau County employs Fire Communication Technicians ("FCTs") and Fire Communication Technician Supervisors ("FCTSs"). FCTs are employed in the Nassau County Fire Department and are responsible for
6

receiving telephone calls placed on the Nassau County fire emergency system, deciding on the appropriate response to each call, and dispatching appropriate aid. FCTSs supervise the work of the FCTs and evaluate performance.
20. There are approximately 32 FCTs and FCTSs. One hundred percent of the FCTSs and FCTs are male. No woman has ever been employed as an FCT or FCTS.
21. PCOs, FCTs and their supervisors work in the same job location under substantially similar conditions and perform jobs substantially similar in terms of skill effort and responsibility. Some examples are:
a. PCOs, PCOSs, FCTs and FCTSs work twelve-hour shifts. b. PCOs and FCTs use a Computer Aided Dispatch C'CAD'') system to process incoming calls. c. In addition to the CAD systems, both PCOs and FCTs also use a radio/telephone dispatch system. PCOs use the radio/telephone dispatch system in accordance with the regulations established by the FCC and procedures established by the Nassau County Police department. FCTs use a radio/telephone dispatch system in accordance with the regulations established by the FCC and procedures established by the Fire Marshal. d. Both PCOs and FCTs handle calls in substantially the same way. Both PCOs and FCTs receive calls from people requesting help on various topics.
7

Both PCOs and FCTs ask the same questions, such as questions regarding the nature and location of the emergency. Both must use independent judgment to decide on the type and priority of the call they are receiving. Both must decide what equipment is needed to deal with the specific emergency and both dispatch the equipment.
e. Both PCOs and FCTs may be called upon to dispatch ambulances.
f. PCOSs and FCTSs perform supervisory jobs requiring equivalent skill effort and responsibility.
g. Many of the calls handled by PCOs and FCTs are shared between the two.
22. On information and belief, the pay scales for PCOs, FCTs, PCOSs and FCTSs are determined by Nassau County's civil service grade ranking system.
23. On information and belief, within each grade there are steps which correlate seniority and compensation.
24. Prior to October 2001, PCOs were ranked at a salary grade 7 and PCOSs at salary grade 10 under the Nassau County Civil Service system.
8

25. In October 2001, PCOs were elevated to salary grade 9 and PCOSs to salary grade 11.
26. When PCOs and PCOSs were upgraded, they were not upgraded to their respective seniority step or in other words they were not given "vertical upgrades." Individuals thus lost seniority credit and concomitant pay increases that they would have received had they retained their seniority level with the grade increase.
27. Specifically: Plaintiff Ebbert went from grade 7, seniority step 11 to grade 9 seniority step 8; Plaintiff Edwards went from grade 7, seniority step 4 to grade 9 seniority step 1; Plaintiff Minneci went from grade 7, seniority step 11 to grade 9 seniority step 8; Plaintiff Muro went from grade 7, seniority step 8 to grade 9 seniority step 3; Plaintiff Kamerer went from grade 7, seniority step 6 to grade 9 seniority step 1. In January 2004 she was promoted to supervisor and went to grade 11 seniority step 1; Plaintiff Conklin went from grade 10 seniority step 6 to grade 11 seniority step 5. Previously, when she was promoted in December 2000 she went from Grade 7 step 11 to Grade 10 step 6.
9

28. At all times relevant, FCTs and FCTSs were ranked at salary grades 10 and 12 respectively.
29. On May 11, 2005, the Nassau County Legislature approved elevating the PCOs and PCOSs to grades 10 and 12 respectively, thereby equalizing them in grade with the FCTs and FCTSs.
30. The PCOs and PCOSs continue to be paid less than FCTs and FCTSs of equal seniority as a consequence of the fact that they were not given vertical upgrades in 2001.
31. At all times relevant to this complaint, on information and belief defendants paid PCOs and PCOSs between $1,500 and $10,000 less than FCTs and FCTSs of equal seniority for performing jobs of equivalent skill, effort, and responsibility.
FIRST CAUSE OF ACTION
32. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 30 as though set forth in their entirety above.
33. The acts, practices and policies of defendants Nassau County, Nassau County Police Department, and Nassau County Civil Service Commission,
10

as set forth above, constitute ongoing discrimination against the individual plaintiffs and plaintiff class in violation of the Equal Pay Act, 29 U.s.c. §§ 206(d)
et seq.
SECOND CAUSE OF ACTION
34. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 32 as though set forth in their entirety above.
35. The acts, practices and policies of defendants Nassau County, Nassau County Police Department, and Nassau County Civil Service Commission, as set forth above, constitute ongoing discrimination against the individual plaintiffs and plaintiff class in violation of the New York State Equal Pay Act, N.Y.
Labor Law §§ 194 et seq.
THIRD CAUSE OF ACTION
36. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 34 as though set forth in their entirety above.
11

37. The acts, practices and policies of defendant Thomas R. Suozzi constitute ongoing intentional discrimination against the individual plaintiffs and plaintiff class in violation of 42 U.s.c. § 1983.
DEMAND FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court grants the following relief: A. Designate this action as a collective action; B. Designate this action as a class action;
C. Find that defendants discriminated against plaintiffs in violation of
the Equal Pay Act, 29 U.s.c. §§ 206(d) et seq.;
D. Find that defendants discriminated against plaintiffs in violation of
New York State Equal Pay Act, N.Y. Labor Law §§ 194 et seq.;
E. Find that defendant Thomas R. Suozzi, in his official capacity, discriminated against plaintiffs in violation of 42 U.S.c. § 1983;
F. Enter a permanent injunction enjoining defendants from violating the Equal Pay Act, the New York State Equal Pay Act, and 42 U.s.c. § 1983 by paying women at rates lower than they pay men;
G. Award plaintiffs back pay together with all other benefits to which plaintiffs are entitled, with prejudgment interest;
H. Elevate plaintiffs to the seniority step equal to male FCTs and FCTSs of equal seniority;
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I. Award plaintiffs liquidated damages due to defendants' willful and intentional conduct directed at plaintiffs in violation of rights
protected by N.Y. Labor Law §§ 194 et seq.;
J. Award compensative and punitive damages, in an amount to be determined at trial, due to defendants' willful and intentional acts directed at plaintiffs in violation of 42 U.s.c. § 1983;
K. Award Plaintiff's reasonable attorneys' fees, expenses and costs of this proceeding;
L. Such other and further relief as this Court deems just and proper.

Dated: May 29, 2007 New York, New York

Respectfully submitted,

-+------tr=~~------>o.....-#E )

J . e Goo an (0487)

"/

Offices of Janice Goodman 275 7th Avenue, Suite 2300

New York, NY 10001

(212) 869-1940

Herbert Eisen (8796) Eisenberg & Schne I 377 Broadway, 9th Floor New York, NY 10013 (212) 966-8900
L3

 
 2007 WL 2295581

2007 WL 2295581 United States District Court,
E.D. New York.
Helen EBBERT, Pamela Edwards, Isabella Minneci, Wendy Muro, Frances Kamerer, Lori
Conklin and all others similarly situated, Plaintiffs, v.
NASSAU COUNTY, Nassau County Police Department, Nassau County Civil Service Commission and Thomas R. Suozzi, in his official
capacity, Defendants.
No. 05-CV-5445 (FB)(AKT). | Aug. 9, 2007.
Attorneys and Law Firms
Herbert Eisenberg, Esq., Eisenberg & Schnell, LLP, Janice Goodman, Esq., Law Offices of Janice Goodman, New York, NY, for the Plaintiffs.
Lorna B. Goodman, Esq., Nassau County Attorney, by: Carl S. Sandel, Esq., Mineola, NY, for the Defendants.
Opinion
MEMORANDUM AND ORDER
BLOCK, Senior District Judge.
*1 Plaintiffs, both individually and as representatives of a proposed class, sue defendants Nassau County (“the County”), the Nassau County Police Department (“NCPD”) and the Nassau County Civil Service Commission (“NCCSC”), alleging violations of the Equal Pay Act, 29 U.S.C. §§ 206(d), and New York State Equal Pay Act, N.Y. Lab. Law §§ 194 et seq.; they also sue defendant Thomas R. Suozzi in his official capacity as the Nassau County Executive, alleging intentional discrimination in violation of 42 U.S.C. § 1983. By stipulation and order dated August 3, 2006, the action was bifurcated to separate the issue of liability from damages. See Docket Entry # 20. Plaintiffs move (1) to proceed as a collective action for violations of the federal Equal Pay Act pursuant to 29 U.S.C. § 216(b); and (2) to certify their suit as a class action for violations of the New York State Equal Pay Act and 42 U.S.C. § 1983 pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2). For the reasons stated below, plaintiffs’ motion is granted.

I.
The following facts are taken from the parties’ submissions. Unless otherwise noted, they are undisputed.
Plaintiffs Helen Ebbert, Pamela Edwards, Isabella Minneci and Wendy Muro are four women employed by the County as Police Communication Officers (“PCOs”). Frances Conklin and Lori Kamerer, also women, were initially employed as PCOs; they were promoted to the position of Police Communication Officer Supervisors (“PCOSs”) in December 2000 and January 2004, respectively. The County currently employs approximately 172 PCOs and PCOSs; over 90% are female.
Plaintiffs allege that defendants discriminated against them and the class they seek to represent by paying them wages lower than the wages paid to men for the performance of substantially equal work: Specifically, plaintiffs compare their salaries to those of the all-male force of approximately 32 Fire Communication Technicians (“FCTs”) and Fire Communication Technician Supervisors (“FCTSs”); according to plaintiffs, no woman has ever been employed as an FCT or FCTS.
The pay scales for all four positions are determined by Nassau County’s civil service grade ranking system; within each grade, there are steps which correlate to seniority and compensation. At all times relevant to this action, FCTs and FCTSs were ranked at salary grades 10 and 12, respectively. Prior to October 2001, PCOs were ranked at salary grade 7 and PCOSs at grade 10. In October 2001, PCOs were elevated to grade 9 and PCOSs to grade 11; they did not, however, receive “vertical upgrades” to maintain them at their pre-elevation steps. For example, Ebbert went from grade 7, step 11, to grade 9, step 8; Edwards went from grade 7, step 4, to grade nine, step 1. On May 11, 2005, the Nassau County Legislature elevated the PCOs and PCOSs to grades 10 and 12, respectively, thereby equalizing them in grade with the FCTs and FCTSs, but not in step.
*2 Plaintiffs claim that they have been paid between $1,500 and $10,000 per year less than FTCs and FCTSs of equal seniority, and that they continue to be paid less because they were not given vertical upgrades in October 2001.
Despite the current parity in pay grade, defendants maintain that the positions of PCO and PCOS are not substantially similar to those of FCT and FCTS.

2007 WL 2295581

Furthermore, they contend that plaintiffs were not entitled to vertical upgrades because under the collective bargaining agreement between the County and the Civil Service Employees Association, Inc., “[i]f an employee is promoted or otherwise moves to a higher grade ... the employee will move to the step on the higher grade which provides a salary no less thanthe employee’s original salary plus $1,000.” Aff. of Karl Kampe (Executive Dir. of NCCSC) ¶ 6.
II.
Section 216(b) of the Fair Labor Standards Act (“FLSA”) permits employees to sue “for and in behalf of ... themselves and other employees similarly situated” for violations of the Equal Pay Act. 29 U.S.C. § 216(b). Although the phrase “similarly situated” is not defined in FLSA or its implementing regulations, “courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997) (collecting cases). A collective action under § 216(b) is a substitute for a traditional class action under Rule 23: “[T]he prevailing view among federal courts, including courts in this Circuit, is that § 216(b) collective actions are not subject to Rule 23’s strict requirements” for class certification. Id. at 263 (collecting cases); see also Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005) (“The requirements of Fed.R.Civ.P. 23 do not apply to the approval of a collective action and thus no showing of numerosity, typicality, commonality and representativeness need be made.” (internal quotation marks and citation omitted)).
Section 216(b) further provides, however, that “[n]o employee shall be a party plaintiff to any [collective] action unless he gives his consent in writing to become such a party.” 29 U.S.C. § 216(b). “Thus, under [ ] FLSA, potential plaintiffs must ‘opt in’ to a collective action to be bound by the judgment (and to benefit from it).” Hoffmann, 982 F.Supp. at 260.
The Supreme Court, acknowledging that collective actions under § 216(b) “allow[ ] ... discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources,” and benefit the judicial system “by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity,” also noted that “[t]hese benefits ... depend on employees receiving accurate and timely notice concerning the pendency of the

collective action, so that they can make informed decisions about whether to participate.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). Accordingly, the Court reasoned, “[s]ection 216(b)’s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure,” id. (citing Fed.R.Civ.P. 83); this procedural authority includes the “discretion, in appropriate cases, to implement [§ 216(b) ] ... by facilitating notice to potential plaintiffs,” id. at 169.
*3 Here, plaintiffs have met their burden “by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law,” Hoffman, 982 F.Supp. at 261, namely, that as a result of a common pay scale, they were paid wages lower than the wages paid to men for the performance of substantially equal work.1 Since the willfulness of the alleged FLSA violations is disputed, the class of potential plaintiffs shall be defined as all women employed by the County as PCOs and/or PCOSs on or after November 18, 2002, three years prior to the commencement of this action. See Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 369 (S.D.N.Y.2007) (“FLSA has a two-year statute of limitations except in the case of willful violations, for which the statute of limitations is three years. Where wilfulness is disputed, the court applies the three-year statute of limitations for purposes of certifying a representative action.” (internal citation omitted)).
Plaintiffs have already begun the process of securing the requisite consents of their fellow employees; the Court approves and accepts the opt-in forms executed by individual PCOs and PCOSs, attached as exhibits to the September 22, 2006 affidavit of Janice Goodman, Esq., and deems those individuals members of the collective action. Plaintiffs now seek an order directing them to serve notice of the collective action and opportunity to opt in on the remaining potential plaintiffs. Pursuant to its authority under Hoffman-La Roche, the Court directs plaintiffs to submit a proposed notice and opt-in form within ten days of this Memorandum and Order.
III.
In order for their claims under the New York State Equal Pay Act and § 1983 to proceed as a class action under Rule 23, plaintiffs must satisfy the four prerequisites of

2007 WL 2295581

Rule 23(a)-numerosity, commonality, typicality and adequacy of representation. Defendants concede that plaintiffs have met each of these four prerequisites.
Plaintiffs must also satisfy one of the three conditions set forth in Rule 23(b); in that regard, they assert that class certification is appropriate under Rule 23(b)(2) because “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). Interpreting this language, the Second Circuit held in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir.2001), that:
when presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must consider the evidence presented at a class certification hearing and the arguments of counsel, and then assess whether (b)(2) certification is appropriate in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case. The district court may allow (b)(2) certification if it finds in its informed, sound judicial discretion that (1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy.
*4 Id. at 164 (internal quotation marks and citations omitted). The court further held:
Although the assessment of whether injunctive or declaratory relief predominates will require an ad hoc balancing that will vary from case to case, before allowing (b)(2) certification a district court should, at a minimum, satisfy itself of the following: (1) even in the absence of a possible monetary recovery, reasonable plaintiffs

would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits. Insignificant or sham requests for injunctive relief should not provide cover for (b)(2) certification of claims that are brought essentially for monetary recovery.
Id. (citation omitted).
The parties do not dispute that “class treatment would be efficient and manageable.” Robinson, 267 F.3d at 164. As to whether “the injunctive ... relief sought is predominant even though compensatory ... damages are also claimed,” id., defendants contend that “the wages paid to PCO[s] and [PCOSs] are equal to that of [FCTs] and [FCTSs] and were equalized more than 18 months before this Complaint was filed”; therefore, “it is obvious that the injunctive relief sought is already in effect and not necessary or appropriate.” Def.’s Mem. of Law in Opp’n at 6. In response, plaintiffs argue: “Absent the equitable relief sought by Plaintiffs, nothing stops Defendants from deciding tomorrow to pay [FCTs] and [FCTSs] more than PCOs and PCOSs. Plaintiffs’ claims for injunctive and declaratory relief predominate precisely because defendants continue to contend that these jobs are not substantially similar under the law.” Pl.’s Reply Br. in Supp. at 4.
Applying the Second Circuit’s holding in Robinson, the Court can, “at a minimum, satisfy itself” that (1) “even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive ... relief sought” since a dispute still exists as to plaintiffs’ entitlement to vertical upgrades; and (2) “the injunctive ... relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits,” 267 F.3d at 164, since defendants insist, despite the leveling in pay grade, that the positions of PCO and PCOS are not substantially similar to those of FCT and FCTS, and could, as plaintiffs argue, decide to elevate the latter in pay grade without giving a commensurate grade elevation to the former.
Accordingly, plaintiffs’ motion to certify their claims under the New York State Equal Pay Act and § 1983 as a class action pursuant to Rules 23(a) and 23(b)(2) is also granted. With respect to the claims under the New York State Equal Pay Act, the class shall be comprised of all women employed by the County as PCOs and/or PCOSs on or after November 18, 1999, six years prior to the

2007 WL 2295581

commencement of this action. See Patrowich v. Chemical Bank, 470 N.Y.S.2d 599, 604 (1st Dep’t 1984) (applying six-year statute of limitations to New York State Equal Pay Act claim). With respect to the claims under 42 U.S.C. § 1983, the class shall be similarly defined except for the time frame: The class shall be comprised of all women employed by the County as PCOs and/or PCOSs on or after November 18, 2002, three years prior to the commencement of this action. See Patterson v. County of Oneida, 375 F3d 206, 225 (2d Cir.2004) (“[T]he statute of limitations applicable to claims brought under § 1983 in New York is three years.”).
IV.
*5 When a claim for injunctive relief is certified as a class action pursuant to Rule 23(b)(2), notice to the class is discretionary. Compare Fed.R.Civ.P. 23(c)(2)(A) (“For any class certified under 23(b)(1) or (2), the court may direct appropriate notice to the class.” (emphasis added)), with Larsen v. JBC Legal Group, P.C., 235 F.R.D. 191, 196 (E.D.N.Y.2006) ( “Rule 23(b)(2) does not require notice or permit class members the opportunity to optout.”). A claim for injunctive relief coupled with a claim for damages, however, “poses a due process risk because [Rule 23(b)(2) ] does not expressly afford the procedural protections of notice and opt out.” Robinson, 267 F .3d at 166. In Robinson, the Second Circuit explained how a district court should exercise its discretion to eliminate this risk:

[A]ny due process risk posed by (b)(2) class certification of a claim for non-incidental damages can be eliminated by the district court simply affording notice and opt out rights to absent class members for those portions of the proceedings where the presumption of class cohesion falters-i.e., the damages phase of the proceedings.
Id.
Robinson ‘s guidance applies here: The claims for injunctive and monetary relief both present a common legal issue, namely, whether PCOs and PCOSs perform work substantially equal to that of FCTs and FCTSs. If that issue is resolved in favor of the class, class members will be entitled to injunctive relief and damages; if not, they will not be entitled to either form of relief. Until that issue is decided, class members’ interests are adequately protected and no notice is required. Cf. id. at 166 n. 10 (“For those stages of this case where the interests of the class members are essentially identical (i.e., the liability phase of the pattern-or-practice suit ... ), the due process rights of absent class members are ensured by adequate class representation alone.”). If the class succeeds at the liability phase, the Court will revisit the issue of what notice should be given to class members before proceeding to the damages phase.
SO ORDERED.

 
 Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 1 of 32 PageID #: 940

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ______________________________x
HELEN EBBERT, PAMELA EDWARDS, ISABELLA MINNECI, WENDY MURO, FRANCES KAMERER, AND LORI CONKLIN and all others similarly situated,
Plaintiffs,
-against-
NASSAU COUNTY. NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE COMMISSION, THOMAS R. SUOZZI, in his official capacity,
Defendants.
_______________________________x

05-CV5445(FB)(AKT)

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Janice Goodman (0487) Law Offices of Janice Goodman 275 7th Avenue, Suite 2300 New York, NY 10001 (212) 869-1940
Herbert Eisenberg (8796) Eisenberg & Schnell, LLP 377 Broadway, 9th Floor New York, NY 10013 (212) 966-8900

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 2 of 32 PageID #: 941
TABLE OF CONTENTS
TABLE OF CASES ..................................................................................iii PRELIMINARY STATE}v'fENT... .............................................. ,.................... 1 STATENfENT OF FACTS...........................................................................2 SUMAlARY JUDGMENT STANDARDS......... .................................................4 POINT I: STARE DECISIS IS NO BAR TO PLAINTIFFS CLAIMS.... .......................5
POINT II: THE DISPUTED J\1ATERIAL QUESTIONS OF FACT REGARDING THE SUBSTANTIAL SINfILARITY BETWEEN THE PCO AND FCT JOBS PRECLUDE A GRANT OF SUAfA1ARY JUDG1\1ENT............ ......................9
A. EQUAL PAr ACT STANDARDS... ................................................................9 B. PCO AND FCT JOBS ARE SUBSTANTIALLY SIMILAR....................................... 10 C. PCOs AND FCTs PERFORM EQUAL WORK................................................. 11 D. PCOs AND FCTs UTILIZE SUBS7:4A'TIALLY SIMILAR SKILL. ............................... 12 E. PCO AND FCT JOBS REQUIR£ SUBSTANTIALLr SIMILAR EFFORT........................ 15 F. PCO AND FCT J08S ENCOMPASS SUBSTAA'TIALLY SIMILAR RESPONSII3IUTY............ 16 G. CONCLUSIONS OF PLAINTIFFS' EXPERT WITlvESS.......................................... 16
POINT III: AS A CLASS PCOs AND PCOSs ARE PAIDLESS THAN FCTs AiVD FCTSs ............ ..................................................................... 17
A. DEFENDANTS' ANALrSIS RISED ON TOTAL COMPENS:4T10N DISTORTS THE ME·INING AND PURPOSE OF THE EQWL PArACT ................................................... 19
B. FAILURE TO NAME A SPECIFIC Ni-ILE COMPARATOR Is NOT FITAL IN TIllS CLASS ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
POINT IV: WHETHER DEFENDANTS' CONDUCT CONSTITUTES WILFUL VIOLATION OF THE EPA IS A JURY QUESTION..................................22
POINT V: WHICH MEMBERS OF THE PUTATIVE CLASS FALL WITl-flN THE STATUTE OF LIMITATIONS IS A QUESTION THAT THE COURT NEED NOT AND SHOULD NOT ADDRESS ON THIS SUMMARYJUDGMENT MC)TION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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POINT VI: PLAINTIFFS CLAIMS ARISING UNDER -12 u.s.c. §1983 ALLEGING
VIOLATIONS OF THEIR CONSTITUTIONAL RIGHTS UNDER THE EQUAL PROTECTION CLA USE OF THE FOURTEENTH AA;fENDMENT OF THE UNITED STATES CONSTITUTION CANNOT BE RESOLVED BY SUMMARY JUDGA1EJllT................................................................................25 C()NCLUSION......................................................................................27
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TABLE OF CASES Adiekes v. S.H Kress & Co., 398 U.S. 144 (1970) ...............................................4 AFSCME v. Nassau County. 799 f. Supp 1370 (E.D.N.Y. 1992)........................... 5-8 Aldrich v. Randolph Central School District, 963 F.2d 520 (2d Cir. 1992)............ 10, 13 Belfi v.Pendergast. 191 f. 3d 129 (2d Cir. 1999)............................................... 19 Bence v. Detroit Health Corp., 712 F. 2d 1024 (6th Cir. 1983)..........................20.21 Burnet v. Coronado Oil & Gas Co.. 285 U.S. 393 (1932) ......................................6 City ofCanton v. Harris, 489 U.S. 378 (1989)..................................................26 City ofCleburne v. Cleburne Living Or.. Inc.. 473 U.S. 432 (1985) ........................ 26 Corning Glass Works v. Brennan. 417 U.S. 188 (1974) ....................................... 19 County (~rWashington v. Gunther. 623 F.2d 1303 (9th Cir. 1979). afTd 452 US 161. ..... 11 DrIl1J' v. Waterji'ont Media, 2007 U.S. Lexis 18435 (S.D.N.Y. 2007) ...................... 11 Giano v. Senkowski, 54 F.3d 1050 (2d Cir. 1995)..............................................26 Harrah Indep. Sell. Dist. v. A1artin, 440 U. S. 194 (1979) .................................... 26 Holcomb v. lana College. 2008 U.S. App. LEXIS 6897 (2d Cir. 2008) ......................5 Hudson v Universal Pictures Corp.. 2004 WL 1205762 (E.D.N.Y. April 29. 2004) .......5 John R. Sand & Gravel Co. v. United Stales, 128 S.Ct. 750, 76 USLW 4033 (2008) .......6 Kallrv. Royal Arcadia Palace. Inc.. 2007 WL 4591250 (E.D.N.Y. Dec. 27. 2007) ...... 23 Lao'ieste Restaurant v. Village ofPort Chester. 188 F.3d 65 (2d Cir. 1999)...............26 Lavin-McEleney v. Marist College. 239 F.3d 476 (2d Cir. 2001) ................9, 15,21. 23 lvfarshall v. Building Maint. Corp., 587 F.2d 567 (2d Cir. 1978)............................ 11 Marting v. Crcll1:!ord, 203 F Supp. 2d 958 (N.D. Ill. 2002) ...................................21 Massaci1usells Bd. (~r Retirement v. Murgia, 427 U. S. 307 (1976) ..........................26
111

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 5 of 32 PageID #: 944 AlcLaughlin v Richmond Shoes Co., 486 U.S. 128 (1988) .................................... 22 Alonell v. Dep 'f o.fSocia/ Servs. ofCity ofNJ.~ 436 U.S. 658 (1978) ........................ 26 NYC Transit A11th. v. Beazer. 440 U. S. 568 (1979) ............................................26 Osborn v. /-lome Depot U.S.A., Inc.. 518 F. Supp. 2d 377 (D. Conn. 2007) .................5 Pollis v. The New School. 132 F 3d 115 (2d Cif. 1997)....................................... 23 R.B. Venture, LId. V. Shane 112 F3d 54 (2d Cif. 1997)........................................5 Rodriguez v. City ofNew }'ork. 72 F.3d 1051 (2d Cif. 1995)................................ .4 Rossini.\'. Ogilvy & A/ather. Inc.. 597 F. Supp. 1120 (S.D.N.Y. 1984)...................... 11 Tomka l'. Seiler COl1).. 66 F.3d 1295 (2d Cir. 1995)........................................9. 15 Waterman v. New York Tel. Co., 1984 U.S. Dist. LEXIS 19093, No. 82 Civ. 1512, 1984 WL 1482 (S.D.N.Y. 1984)............................................................ 9.12 Wheatley v. l'Vicomico County. 390 r.3d 328 (4th Cir. 2004) ............................21. 22
IV

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PRELlA,UNA RY STATEIWENT
This Memorandum of Law is submitted in opposition to defendants' motion for summary judgment pursuant to Rule 56 of the Fed. R. Civ. P. Plaintiffs filed their class action Equal Pay Act and Civil Rights complaint on November 8, 2005. Defendants answered on June 22, 2006. Plaintiffs filed an amended complaint on May 29, 2007, which defendants answered on June 7. 2007. Discovery in this case included document production. depositions of four Fire Communications Technicians ("FCTs")l; one Fire
Communications Technicians Supervisor ("FCTS"); the six pca and pcas plaintiffs2;
Nassau County Civil Service Commission personnel (Pierre Schlemel. Classification Unit Head and Gregory Stoeber, Personnel Specialist). and the N.Y.S. Dept. Civil Service Testing Services Chief Personnel Examiner (Marcia Dudden).
Plaintiffs retained an expert, Dr. Kathleen Lundquist. who conducted two job site visits, conducted detailed review of documents and deposition transcripts and interviewed plaintiiTs. Dr. Lundquist submitted an expert report3, a rebuttal report4 and was deposed. Defendants retained an expert Dr. Gerald Barrett, who also made a site visit, submitted expert reports and was deposed. The expert witnesses arrived at contrary conclusions as
to the substantial similarity of the pca and FCT jobs and the pcas and the FCTS jobs.
The experts' conflicting analyses alone demonstrate that there are substantial material facts in dispute.
Defendants' arguments in support of their summary judgment motion are each unavailing and in tandem border on frivolous. Defendants erroneously rely upon the procedural argument of stare decisis, \vhich is not applicable here. Also. without merit are Defendants' arguments that the jobs are not substantially similar: that there is no pay
I FCTs: Thomas Simek, Victor Sowinski, Gregg Spaulding, Paul Weigand. FCTS: Charles Albers 2 PCOs: Helen Ebbert; Pamela Edwards: Isabella Minneci: Wendy Muro. PCOSs: Frances Kamerer; Lori Conklin 3 Dr, Lundquist's expert report is annexed to Eisenberg Affirmation as Exhibit "A", 4 Dr. Lundquist's rcbullal report is annexed to Eisenberg Affim1ation as Exhibit "8".

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 7 of 32 PageID #: 946
disparity; acts complained of are not wilfull; that members of the classes are precluded because of the statute of limitations and that there is no pattern or practice of discrimination. For the reasons stated below, summary judgment should not be granted.
STATEMENT OF FACTS Plaintiffs are female Police Communication Operators ("PCOs") who receive
calls and dispatch appropriate emergency police and medical personnel and Police Communication Operator Supervisors (PCOSs) who supervise the PCOs. For most of plaintiffs' careers. PCO wages were graded in a civil service grade that was lower than their respective comparators (Muros 44-46). The comparators are the all-male FCTs who receive calls and dispatch emergency fire and medical personnel and the all-male FCTSs (Weigand 42: Simek 41). Both PCOs and FCTs serve as the first to respond to emergency situations in Nassau County. They fulfill a vital governmental function by enabling and facilitating police, fire and medical assistance to provide for public safety.
PCOs and PCOSs and FCTs and FCTSs all work in an office environment in the same Nassau County underground facility (Schlemel 42). PCOs receive and answer incoming 911 calls placed to the Nassau County' s 91 1 emergency system (Minneci 74). Utilizing coded protocols, PCOs decide on the appropriate response to each call and dispatch appropriate aid (Conklin 198; Minneci 74). FCTs similarly receive and answer incoming phone calls placed directly to the Nassau County fire emergency system and answer incoming calls from Nassau County's 911 system transferred to them by PCOs (Simek 28-29; Weigand 39; Conklin 67.132). Utilizing coded protocols, FCTs also
5 Citations to deposition transcript sections will be identified by the deponent's name and page referred to. Albers deposition transcript is Def. Exh. O. Conklin deposition transcript is Def. Exh. I. Ebbert deposition transcript is Ocr. Exh. N. Edwards deposition transcript is Oef. Exh. GG. Kamerer deposition transcript is Oef. Exh. E. Minneci deposition transcript is Oef. HH. Muro deposition transcript is Oef. Exh. G. Sch\eme\ deposition transcript is Oef. Exh. Q. Simek deposition transcript is Def. Exh. EE. Sowinski deposition transcript is Eisenberg Aff. Exh. F. Spaulding' deposition transcript is Def. Exh. M. Weigand deposition transcript is Oef. Exh. FF.
2

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facilitate the appropriate response to each call and dispatch appropriate aid (Schlemel 73; Spaulding 24, 57; Weigand 22-27).
PCOs and FCTs utilize computer aided dispatch systems ("CAD") to process incoming calls (Muro 55, Milmeci 68,74, Schlemel60, Ed\vards 65). They communicate by radio with respective police and fire emergency personnel. In parallel fashion. these jobs require the call answerer to gather information from people requesting help. often in stressful, emergency situations. Each employee must be able to receive, monitor and dispatch calls to the appropriate emergency persOImel. PCOs and FCTs dispatch emergency responders such as police and fire personnel, as well as ambulances, jaws of life, marine and air assistance (Conklin 129-130; Simek 59-60; Spaulding 41-44; Weigand 65-66.) Eachjob requires contact with other public service and private agencies e.g.. Long Island Power Authority, New York State Police, Metro North Police, New York City Police and New York City Fire Department. among others (Weigand 67-68; Conklin 186; Minneci, 80).
PCOs follow their dispatched incidents through to conclusion as do FCTs (Ebbert 50). They each follow the directions of the uniformed police or fire person in charge once that person arrives on-site (Simek 51: Weigand 68; Albers 128-129; Minneci 81: Muro 57-58; Ebbert 51-53). The dispatching PCO and dispatching FCT must be aware of the location of multiple units when dispatching equipment and personnel to the scene of various emergencies (Minneci 81-82; Spaulding 30-32). The PCO or the FCT remain in contact with the officers who arrive at the scene of an incident and they are called upon to dispatch additional assistance as needed by the officers until the completion of the call (Conklin 186.202: Spaulding 57-58; Edwards 72-73: Weigand 72-75). When multiple calls have been dispatched, the PCO must remain in contact with all officers dispatched on the different calls (Ebbert 51). Given the high volwne of calls dispatched by the
peos, handling multiple calls at the same time is quite frequent (Conklin, 202).
3

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pcas and FCTs all work twelve-hour shifts (Conklin 193; Minneci 51; Simek 3133; Spaulding 35-37; Weigand 42-47). While FCTs take breaks at the discretion of the FCTS and eat their meals while working at their consoles (Weigand 42-47), peas are required to take breaks during the course of their twelve-hour shift. In order to make up for the time off on these break periods, pcas are required to work an extra twelve-hour shift once every seven weeks. (Muro 48)
For both pca and FCT jobs, the consequence of error is the same: unnecessary injury and/or death could result. These jobs deal with life and death circumstances. Although both jobs follow defined procedures and protocols and have little or no discretion to alter these procedures. some level of independent decision-making is employed in deciding on the type and priority of the calls received (Conklin 129-130: Ebbert 40-43; Minneci 80; Simek 50). pcas and FCTs are closely supervised by their first line supervisor, pcas or FCTS respectively, who have the ability to listen in on their calls and override their decisions, if necessary (Weigand. 70-71; Kammerer 47).
Both pcass and FCTSs monitor and supervise the performance of their subordinates (Conklin 109-110; Spaulding 50-52). Both pcass and FCTSs provide guidance on the handling of more complex calls and exercise some level of independent judgment in resolving questions from their subordinates. They are assigned to perform administrative duties. such as updating the information in the CAD systems and completing performance evaluations. maintaining records and training new and retraining incumbent employees (Spaulding 35; Weigand 41-42; Kamerer 43,55).
SUM~RYJUDGMENTSTANDARDS
A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish its right to jUdgment as a matter oflaw. Rodriguez v. City o/New York, 72 F.3d 1051, 1060-1061
(2d Cir. 1995), citing Adickes v. s.H. Kress & Co., 398 U.S. 144. 157 (1970). "The duty
4

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of the court is to determine whether there are issues to be tried; in making that determination. the court is to draw all factual inferences in favor of the party against whom summary judgment is sought, viewing the factual assertions in materials such as affidavits. exhibits and depositions in the light most favorable to the party opposing the motion." Id. (citations omitted) "If reasonable minds could differ as to the import ofthe evidence in the record from any source from which a reasonable inference in the nonmoving party's favor may be dra\\TI. the moving party simply CalIDOt obtain [ ] summary judgment." R. B. Venture, Ltd. V. Shane 112 F3d 54, 59 (2d Cir. 1997) (internal citations, alterations and quotations omitted). Osborn v. Home Depot US.A., Inc., 518 F. Supp. 2d 377 (D. Conn. 2007). "Summary Judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Hudson \' Universal Pictures COlp. 2004 WL 1205762 (E.D.N.Y. April 29. 2004). See. Holcomb v. 1011(1 College. 2008 U.S. App. LEXIS 6897 (2d Cir. 2008).
POINT I STARE DECISIS IS NO BAR
TO PLAINTIFFS CLAIMS Defendants seek to rely on the case ofAFSCME v. Nass(lu County, 799 F. Supp
1370 (E.D.N.Y. 1992) to bar adjudication of plaintiffs claims on the basis of stare
decisis6. Defendants misunderstand the doctrine of stare decisis. which requires the
same underlying factual posture and is applicable where a legal principle has been handed
down addressing the legal issue in question. The facts in this case are entirely different
6 Black's Law Dictionary definessfare decisis as: Lat. To abide by, or adhere to. decided cases. Policy of courts to stand by precedent and not to disturb settled point. (cite omitted) Doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases. where facts are substantially the same. (cite omitted) Under doctrine a deliberate or solemn decision of court made after argument on question of law fairly arising in the case. and necessary to its determination. is an authority. or binding precedent in the same court. or in other courts of equal or lower rank in subsequcnt cases where the very point is again in controversy (cite omitted) Doctrine is one of policy, grounded on thcory that security and certainty require the accepted and estlblished legal principle.
5

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than the 1992 case. Furthermore. that case did not pronounce any legal principle, but rather simply analyzed the facts as they existed 16 years ago. Defendants conspicuously omit mention of the fact that the AFSCME decision did not even address the Police Communication Operator Supervisor title. Yet they seek preclusive effect of the 1992 decision hoping to close the courthouse doors to both plaintiff classes here. Surely, a decision that does not involve similar issues or parties cannot have any preclusive effect
As Justice Ginsburg recently stated in dissent: Stare decisis is an important. but not an inflexible, doctrine in our law. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393. 405, (1932) (Brandeis. 1., dissenting)("Stare decisis is not ... a universal, inexorable command."). The policies underlying the doctrine -- stability and predictability -- are at their strongest when the Court is asked to change its mind. though nothing else of significance has changed. John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750, 76 USLW 4033 (2008)(Ginsburg dissenting),
The 1992 AFSCA1E case was primarily a broad comparable worth challenge level against the entire civil service process and challenged most every position in Nassau County. This case is an Equal Pay Act and Civil Rights case brought by discrete classes of individual plaintiffs who answer 911 emergency calls and dispatch accordingly as well as their supervisors who work as PCOSs.
Over the past sixteen years, retooling, computerization and automation have entirely altered the job functions, duties and tasks for the employees working as PCGs and PCOSs. Since 1992 the PCO job is different in many ways including:
• PCOs now work 12 hour shifts as do FCTs. in 1992 PCOs worked 8 hour rotating shifts while FCTS worked 12 hour shifts. (Affidavit of Helen Ebbert)
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* PCOs and FCTs are now listed as Civil Service Grade 10 based on Thomas
Suozzi's statement regarding equality ofwork7. In 1992, PCOs were Grade 7 while FCTs were Grade 9 (Affidavit of Helen Ebbert; 799 F. Supp. at 1407)
* In 1992, calls were answered manually, information was wTitten down by a
PCO and then attached to a conveyor belt to transfer the information to the PCO dispatchers. Now, PCOs utilize an automated CAD emergency response system which requires the call answerer to input information regarding location and nature of emergency. (Affidavit of Helen Ebbert)
* In 1992, the two PCO supervisors were uniformed police officers; today there
are civilian PCOSs who supervise the PCOs. (Affidavit of Helen Ebbert)
* In 1992 PCOs did not make decisions as to how to prioritize calls, today PCOs
can make those decisions. (Affidavit of Helen Ebbert)
* In 1992, police highway units and emergency services were dispatched by the
uniformed officers at Highway Base. Now PCOs dispatch highway units and emergency services units. (Affidavit of Helen Ebbert)
* Today PCOs check that equipment is operating properly including performing
tests between HQ and officers on the street. This was not previously performed by the PCO. (Affidavit of Helen Ebbert)
* Qualification to be a PCO was two years with telephone or radio
communications experience. Today graduation from High School plus two years of general work experience or two years or college in lieu of experience. (Affidavit of Helen Ebbelt)
* County Executive Suozzi has acknowledged that the jobs are equal when he
authorized the upgrade of PCOs to the same grade level as FCTs. (Eisenberg Affil111ation Exhibit C)
In the 1992 AFSCME decision the Court found it significant that FCTs followed
calls through and coordinated with responding units in the field. The court distinguished
this from PCOs work finding they "simply process requests from the field." The Court
7 Suozzi Press Releases annexed to Eisenberg Affinnation as Exhibit 'e".
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found that the PCOs functioned as "mere dispatchers and transmitters of information..." AFSCME, 799 F. Supp. at 1408 (EDNY 1992))
Neither FCTs nor PCOs function as "mere dispatchers and transmitters of information" now. Through their respective CAD systems, a call answerer (PCO or FCT) inputs the nature of the emergency and the system provides an automated assessment of how particular emergencies (all of which are coded) are responded to which are then dispatched according.ly. (Sowinski 27-28; Spaulding 41: Simek 43; Weigand 85-86; Conklin 56; Minneci 69) PCO's maintain radio cornnmnication with police officers through their emergencies. They must ascertain from where and how to draw additional emergency response personnel if necessary. They must coordinate emergency response and activities with other police departments such as the New York State Police, the local police in certain Nassau County jurisdictions, the New Yark City Police Department, MTA police, the United States Coast Guard and the local volunteer ambulance corps. (Weigand 67-68; Conklin 73-74; MiImeci 88-89)
In light of these many factual changes and the many others detailed in plaintiffs' Rule 56.1 statement and affidavits submitted herewith, stare decisis does not prohibit or in any way limit the ability of this case to go forward.
The 1992 AFSCME case does not even address the PCOS supervisory job title and duties and accordingly cmmot plausibly have any preclusive effect.s
8 If defendants intended instead to assert res judicata to preclude a merits-based adjudication of this case, res judicata is also inapplicable here. Among other reasons because ofthe same reasons stare decisis is inapplicable. The parties, the facts and the issues here are entirely distinct {i'om the 1992 case defendants seek to rely upon.
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POINT II THE DISPUTED MATERIAL QUESTIONS OF FACT
REGARDING THE SUBSTANTIAL SIMILARITY BETWEEN THE PCO AND FCT JOBS PRECLUDE
A GRANT OF SUlWMARY JUDG!vIENT A. EQUAL PA}, ACTSTANDARDS
The Equal Pay Act prohibits an employer from paying male employees a rate of pay higher than that paid to female employees performing equal work. 29 U.S.c. §206(d)(I). To prove liability under the Equal Pay Act. "plaintiff must shO\v that (i) the employer pays different wages to employees of the opposite sex: (ii) the employees perform equal work on jobs requiring equal skill. effort, and responsibility; and (iii) the jobs are performed under similar working conditions." Lavin-1vfcEleney v. Marist College. 239 F.3d 476. 480 (2d Cir. 2001) (internal quotations and citations omitted). Plaintiffs need not demonstrate that their jobs are identical to the higher paid male position, but only must show that the 1\\'0 positions are substantially equal in skill. effort and responsibility. Tomka v. Seiler Corp.. 66 F.3d 1295, 1310 (2d Cir. 1995), LavinJ\;/cEleney v. Marist College, 239 F.3d at 480.
"Whether two positions are 'substantially equivalent' for Equal Pay Act purposes is a question for the jury." See. Tomka. 66 F.3d at 1311 "It is for the trier of fact to decide if [there] is a significant enough difference in responsibility to make the jobs unequal. (cite omitted)"' Lavi!1-J\;[cEleney, 239 F.3d at 480. In assessing the substantial equality of two positions, one must not focus rigidly on titles or job description; it is the content of the job that controls. Tomka at 1310 'This determination is. by its nature. necessarily a particularized one not amenable to the application of broad job classifications or reliance onjob title nomenclature:' Waterman v. New York Tel. Co., 1984 U.S. Dist. LEXIS 19093, No. 82 Civ. 1512.1984 WL 1482, *2 (S.D.N.Y. 1984).
There are statutory affil111ative defenses expressly pernlitted to an employer under the Equal Pay Act. An employer is permitted to pay different wages to male and female employees when the wage differentials are the product of "(i) a merit system: (ii) a
9

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seniority system; (iii) a system which measures earnings by quantity or quality of production; (iv) a differential based on any other factor other than sex:' 29 U.S.c. § 206(d). With respect to the fourth affirmative defense -a differential based on any other factor other than sex, the employer must prove that it has a legitimate business purpose and the differential is not a mere pretext for discrimination. See, Aldrich v. Randolph Central School District. 963 F.2d 520.526-27 (2d Cir. 1992).
B. PCO AND FCT JOBS ARE SUBSTANTIALLY SHIlLAR The evidence demonstrates that PCO and FCT jobs are substantially similar.
PCOs and FCTs each perform a vital governmental function. They each answer emergency calls and dispatch emergency personnel. These employees work in the same facility. albeit in different rooms (Schlemel 42). These employees each sit at computer consoles and utilize CAD systems (Muro 55, Minneci 68, 74. Simek, 26, 60. Edwards 65). They each take information from callers as to the location and nature of emergency. They enter this information into the computer, utilizing the many codes learned in their training regimen (Minneci 69, Simek 19-21, Weigand 16-19). The CAD systems then identify the appropriate protocol in response (Conklin 56, Simek 17-19. 23-26). PCOs and FCTs dispatch emergency police and fire personnel respectively. They both dispatch ambulances to aid those in medical need. They maintain radio communication with the respective emergency personnel on the scene and assist in coordination of additional emergency responders (Ebbert 50).
PCOs and FCTs must also interface with other public and private safety officials such as New York City Police and Fire Departments. Long Island Power Authority, the MTA Police. the New York State Police and the United States Coast Guard.
Plaintiffs have shown that their PCO positions are substantially equal in skill, effort and responsibility. The Equal Pay Act's implementing regulations, which provide that "(s)kill includes consideration of such factors as experience. training, education and
10

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ability." 29 CFR §1620.15(a); "[e]ffort is concerned with the measurement of the physical or mental exertion needed for the performance of a job," 29 CFR§ 1620.16(a); and "[r]esponsibility is concerned with the degree of accountability required in the performance of the job, with emphasis on the impOltance ofthe job obligation." 29 CFR §1620.17(a), Drwy v. rVaterfront }.1edia, 2007 U.S. Lexis 18435 (S.D.N.Y. 2007).
C. PCDs AND FCTs PERFORM EQUAL WORK In conclusory fashion, defendants argue that PCas and FCTs are not performing
equal work. They state, "[A]lthough plaintiffs focus only on the 911 call taking and dispatching aspects of the PCO position the job encompasses other clerical, administrative and staff duties which are entirely dissimilar to the duties performed by the FCTs. Beside 911 call taking and dispatching, Plaintiffs have not provided any
competent and reliable evidence to support their position that the FCT and pca jobs are
similar at all." Def. briefp. 16. This argument summarizes defendants' effort to confuse and obfuscate the truth. Each of the named PCO plaintiffs work at computer consoles answering emergency calls alarms or work at computer consoles dispatching Nassau County emergency police, ambulance and related services. The "other clerical, administrative and staff duties" allegedly performed by plaintiffs do not appear in the PCO job description9 and are not detailed, enumerated or specified anywhere in their brief. As such, we cannot respond.
Plaintiffs are, and can only be, class representatives for those who do the same jobs as they do- those who are similarly situated to them. The standard of comparison is actual job content not job titles or descriptions. Coul1ly ofT-Vashington v. Gunther, 623 F.2d 1303, 1309 (9th Cir. 1979), aff"d 452 US 161; Marshall v. Building Maint. Corp., 587 F.2d 567, 571 (2d Cir. 1978); Rossini v. Ogilvy & 1\1afher, lnc., 597 F. Supp. 1120,
9 peo job description annexed to Eisenberg Affilmation as Exhibit"D".
11

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1154 (S.D.N.Y. 1984). (internal quotations and citations omitted), Waterman v. Ne'w York Tel. Co., 1984 U.S. Dist. LEXIS 19093, No. 82 Civ. 1512, 1984 WL 1482, *2 (S.D.N.Y. 1984).
To suggest that the female PCDs performing substantially similar work to the male FCTs should be paid less because there may be other PCDs doing out of title work is absurd.
D. PCOs AND FCTs UTILIZE SUBSTANTIALLY SHIILAR SKILL Defendants argue that because FCT employees are required to have five years of
experience as a volunteer firefighter in Nassau County, peos and FCTs are not doing substantially similar work. Nassau County's five-year volunteer firefighting experience requirement bears little or no relationship to the actual FCT job. Prior volunteer firefighting experience does not assist the FCT in performing his duties. Each fire department has its own protocols. (Spaulding 25-28; Sowinski 16-21; Weigand 22: Simek 24; Albers 28). Experience in one department does not help in knowing the protocol of the other 54 departments. (Sowinski 20; Weigand 22; Simek 21: Albers 31). Moreover, the computer generates the protocol for responding to any given incident. Individual determinations are not made by the FCf. (Weigand 26-27. 31).
Additionally, no eff0l1 was ever made to validate the FCT job duties and the applicability and efficacy of this volunteer firefighting experience requirement (Schlemel 113). This requirement which was never validated probably precluded many women from even applying for the position and raises serious issue with its job relatedness. In a case on point, the Second Circuit held that passage of the civil service exam was not a factor other than sex so as to justify paying "custodians" more than "cleaners" absent
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evidence that the exam was job-related. Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d
520. 526-29 (2d Cir. 1992). Given the comprehensive 26-week training program for new
FCTs (Nassau County Fire Communications Training Manual for 2006, Bates # 000203-
000436), the code-driven computerized protocols used by the FCTs in dispatching and the
differences in protocols across the 38 volunteer Fire Departments served by the Fire
Conununications office, it is unlikely that five years of volunteer fire experience could
legitimately be validated as a job-related requirement. (Lundquist Expert Rebuttal
Report. Eisenberg Aff. Exh...B" pp 9-12.)
Further evidence of the lack ofjob relevancy ofvolunteer firefighting experience
can be found in the testimony of FCT Spaulding who, in trying to explain its import, said:
"It's difficult to explain. It's just the knowledge of what they are going into and the stress they are about to undertake if there is a fire. I have experienced it and it's very stressful and you are mnning into what people are mnning out of so I know what they are responding to, I know what they are dealing with and there is stress involved and if they are not able to answer me on the radio, I know from being in an engine company and being in the fire department that they are probably busy trying to save somebody's life and I might need to tum to a supervisor to get additional information or an apparatus there or start something that. you know, something else in the process, but yeah, it's very difficult to explain, but there's - I don't know how to explain it. (Spaulding 23)
Defendants also argue that the PCO and FCT jobs do not require equal skill because FCTs provide medical assistance to callers. Deposition testimony of the FCTs indicates that providing assistance in medical emergencies beyond asking and coding responses to questions was a relatively low frequency occurrence (Spaulding 63-65; Simek 63-64; Weigand 89-90; Sowinski 53-57). Both PCOs and rCTs gather information about medical emergencies from callers sufficient to dispatch ambulances
13

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 19 of 32 PageID #: 958
when needed (Spaulding 65; Sowinski 33; Weigand 69; Ebbert 51). FCTs, however, have been trained to gather and code specific information related to the medical emergency, which is transmitted to the Emergency Medical Teclmicians (EMTs) prior to their arrival on-scene (Schlemel 133; Albers 75-76). In contrast, PCDs are instructed to transfer such calls to Police Department Ambulance Medical Technicians (AMTs) who are trained to gather such information from callers.
The FCT Emergency Medical Dispatch function is extremely limited in scope. FCTs utilize a set of cards or identical computer pages (both are used) that specify questions to ask of a caller with a medical problem.
Q. You referred to cards and the computer screen that reflects these cards that you were given as, I believe, as Exhibit 2. Are you permitted to administer aid without these cards? A. No. Q. What is the reason for that? A. Liability, mine and the County. You must read directly what's on the card which is the sanle as the computer. It must be line by line. You cannot make anything up. (Albers 131) While PCOs do not read medical cards to callers, they perform a number of tasks that could be considered analogous. For example, peDs advise callers who may be in the midst of a burglary, domestic violence dispute or kidnapping. They counsel callers on how best to handle their emergency situation. They remain on the line with the caller awaiting arrival of the police. (Muro 57) Finally, defendants make the fallacious argument that because they have not been trained in performing the FCT job, PCOs do not have equal skill as the FCTs. If female PCOs and male fCTs perfoml exactly the same job duties and functions but utilize different CAD software, defendants' argument would justify differing pay scales for these employees. That is similar to arguing that male word processors using an IBM computer system should be paid more than female word processors using an Apple computer
14

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 20 of 32 PageID #: 959

system. The Equal Pay Act does not countenance such unlawful pay disparity, contrary to defendants' assertion.
The standard for comparison under the Equal Pay Act is that the jobs in question be substantially similar, not that they be identical. Tomka v. Seiler Corp.. 66 F.3d at 1310. It is for the jury to determine whether the five year volunteer firefighting service requirement, the use of the emergency medical dispatch cards and the use of a different CAD software program renders the jobs in question such that they do not require substantially similar skill for the purposes of the Equal Pay Act. Lavin-AkEleney v. A1arist College. 239 F.3d at 480.

peo E.

AND FCT JOBS REQUIRE SUBSTANT1ALL}, SIMIL4R EFFORT

The actual effort required to perform the PCO job is substantially similar to the

actual effort required for the FCT job. Bothjobs require responding to callers in

emergency life and death situations. Focus, accuracy and attention to detail are

imperatives for each of these jobs.

While each employee works a twelve-hour shift, to support their argument that the

PCO and FCT positions do not require equal effort, defendants assert that FCTs do not

receive a mandatory lunch or dilmer break. FCTs eat at their consoles and are provided

with one 45-minute break at the discretion of their supervisor. In contrast, PCOs have

mandatory breaks. which consist of four 30-minute breaks and one hour-long meal break.

Defendants omit mention of the fact that that PCOs are required to work an extra twelve

hour shift once every seven weeks in order to make up for the additional unpaid time off

on these mandatory breaks (Muro 48). Further, the need for more breaks is dictated by

the significantly higher volume of calls received by the peos. It is estimated that the

peos receive about 2000 calls a day while the FeTs handle 185 such calls. (Lundquist

Expert Report, Eisenberg Aff. Exh "A" p.7). The mandatory break time serves to offset

the extra effort required of the peos because of the sheer volume.

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Defendants suggest that the use of the Field Communications Vehicle ("FieldCom") is also significant distinguishing factor between these jobs. In fact, FieldCom is rarely used. FCrs rarely (if ever) drive to the scene of an emergency to perform FieldCom work. Some FCr or FCTS have never worked a FieldCom assignment. (Sowinsky 58). According to the County's own data, FieldCom was used a total of 10 times in the two-year period for which they agreed to provide information. Half of those instances was for funerals or other ceremonial events. (See, Albers Deposition, Eisenberg Aff. Exh. G) FieldCom is not a substantial job component for the Fcr force.
F. PCO AND FCT JOBS ENCOMPASS SUBSTANTIALLY SHULAR RESPONSIBILITY
Both PCO and FCr jobs directly implicate life and death situations. Dispatching police, ambulance, fire, hazardous material teams, medical helicopters. and other emergency personnel and equipment is difficult, stressful and if not done properly can result in catastrophe. Defendants argue that the PCO job requires less responsibility than . the FCr job and therefore is not similar. As each of these jobs fulfills clearly analogous vital governmental public safety functions, it is insulting and inappropriate that Nassau County should posture in this litigation by seeking to undermine and undervalue the importance of the PCO job.
G. CONCLUSIONSOFPLAINTlFFS' EXPERT WITNESS. Defendants conspicuously omit mention of the fact that the parties have each
retained expert witnesses who have reached opposite conclusions after review of the facts here. Surely. this divergence of opinion. at a minimum, highlights that there are disputed material facts here. 10
10 Pending before this Court are outstanding motions in limine seeking preclusion of the experts in this case. Plaintiffs filed their motion in limine because Defendants' expert report, prepared by a law school trained expert. reads more like a legal brief rife with legal argument than an expert report. The factual analysis
16

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Plaintiffs' expert witness Kathleen K. Lundquist. PhD. concluded that the jobs in question are substantially similar. lIer findings were informed by her review of the entire discovery document production, review of the deposition transcripts, and two site visits. In her expert report. Dr. Lundquist included several tables, each of which is illuminating. These tables indicate that the job description as well as the job duties and tasks are substantially similar for the PCO and FCT jobs: She also concluded that the skills, effort, responsibility and working conditions rendered these jobs substantially similar.
Looking at the facts in the light most favorable to plaintiffs. as set forth in plaintiffs' 56.1 statement as well as in the expert report of Kathleen K. Lundquist. PhD.. the jobs in question are substantially similar and summary judgment is wholly inappropriate.
POINT III AS A CLASS PCOs AND PCOSs ARE PAID
LESS THAN FCTs AND FCTSs
There is no merit to defendants' claim that plaintiffs failed to establish a prima facie claim of pay disparity between PCOs and FCTs and PCOSs and FCTSs. During the relevant period, the FCTs and FCTSs were paid at a wage rate significantly higher than the PCOs and PCO supervisors.
Under the civil service system. each job is classified at a grade level: the higher the grade, the higher the salary schedule. Within each grade there are steps from OA to 11. Each step is representative of seniority. OA is the entrance leveL which is increased after
a year of service to step 1 and so forth until the 1i h year of employment \:vhen the
employee reached Step 11, which is the top salary step. (Muro 30; Def. Exh. W). Until October of 2001. PCOs were at a grade 7, with a starting salary of $20,707 and rising to a
therein is unduly tainted by the expert's legal advocacy. Following oral argument on this motion. defendants filed a preclusion motion on the primary basis that plaintiff's expet with reached conclusions that are wrong.
17

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salary 0[$39,904 in the 12th year. At that same time the FCTs were at a grade 10. with a starting salary 0[$25,162, and in the 12th year of service, a salary of $49,413. For each year in between there were similar disparities which kept growing (Def. Exh. W). Similarly for the supervisors, while PCOSs were at Grade 9. the FCTSs were at Grade 11 with similar pay discrepancies. Id.
In 2001, there was an upgrade for peos to Grade 9 and supervisors to Grade 11, while FCTs and their supervisors remained at Grade 10 and 12 respectively. But the upgrade was not vertical. In other words, Ebbert went from a PCO Grade 7 step 11 to a Grade 9 step 8. (DefExh. W. Bates #s 5518 and 5522) She lost three steps of pay, which means that it took her an extra three (3) years to reach the top salary step for her grade. Had she been upgraded vertically she would have gone to Grade 9 step 11, to accurately reflect her seniority. Even had she been promoted vertically she would have been paid less than her male colleagues because they were still at Grade 10. If she was raised vertically she would have received an annual salary of $45,650, but in fact. she only received $37.469. In the meantime, men who were at a step 11 in the higher salary Grade 10 earned $49,413. (DefExh. W at Bates 5535,5549,5550,5567).
In October 2005, the PCOs and PCOSs were again upgraded, but this time to the same salary grade as the FCTs and FCTSs and the upgrades were vertical. Both PCOs and FCTs are Grade 10 and their supervisors are Grade 12. But the pay disparity continued to a greater or lesser degree because there was a carry over from the failure to vertically upgrade in 2001. For example, in 2000, plaintiff Wendy Muro was a Grade 7 Step 7 earning $33,861 as compared to FCT Mark Bodnar who was Grade 10 Step 1 earning $36,348. At this point Ms. Muro had 6 years more seniority than Mr. Bodnar but earned significantly less. In 2001, Ms. Muro with the rest of the PCOs was upgraded to a Grade 9, but she was demoted to step 3, thus losing 4 years of seniority. The result is that she had to work 15 years, rather them 11 years to reach the top salary step in her grade. Thus in 2005, when she finally equalized in grade with the men. she was back where she
18

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 24 of 32 PageID #: 963
started at Step 7 earning $49,755 rather than being at Grade 10 Step 11 and earning $58,031. In 2008, after about 18 years of service she still has not reached to top salary step. (Def. Exh. Wat Bates 5619, 5624. 5542.)
Another example is class member Maureen Borchick. In 2000, she was a Grade 7 step 3 earning $31,224. In the 2001 upgrade, she too was promoted to Grade 9, but demoted to Step 1. Had it been a vertical upgrade. by 2005 she would have been Grade 10. Step 11 earning $58,031. But the carry over from the 2001 non-vertical upgrade left her at Grade 10, Step 5 earning only $47,681. (Der. Exh. W at Batcs 5517, 5522, 5539) A survey of defendants' Exhibit W will reflect that the experience of Muro and Borchick are reflective of what happened to most of the PCOs and PCOSs by the non-vertical upgrade.
A. DEFENDANTS' ANALYSIS BASED ON TOTAL COMPENSATION DISTORTS THE MEANING
AND PURPOSE OF TilE EQUAL PA}, ACT
Defendants seek to tum the Equal Pay Act on its head by arguing that there is no pay disparity between plaintiffs and the FCT employees because in some years some plaintiffs' total annual compensation, which included overtime, was \vell above their base salary. In other words, defendants are trying to foist upon this Court the proposition that an employer can avoid liability under the EPA by making female employees work twice as many hours as a male employee to earn the same amount of money. That is an absurd result and such an interpretation would undermine the entire purpose of the EPA. which is to "legislate out of existence a long-held, but outmoded soc ictal view that a man should be paid more than a \vomen for the same work." Belji v.Pendergast, 191 F. 3d 129. 133 (2d Cir. 1999). The EPA must be construed in a manner to assure that it serves its broad remedial purpose. Corning Glass WOl:ks v. Brennan, 417 U.S. 188. 208 (1974). This
19

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 25 of 32 PageID #: 964
Court should not sanction a practice which "would frustrate. not serve. congress' ends:'
Id. The Equal Pay Act requires that men and women must be paid at an equal "rate"
of pay for performing equal work. Section 206 (d)( 1). Section 1620.12 of the CFR defines wage "rate" as:
(a) The term wage "rate:' as used in the EPA, refers to the standard or measure by which an employee's wage is determined and is considered to encompass all rates of wages whether calculated on a time, commission. piece, job incentive, profit sharing, bonus, or other basis. The tern1 includes the rate at which overtime compensation or other special remuneration is paid as well as the rate at which straight time compensation for ordinary work is paid. It further includes the rate at which a draw, advance. or guarantee is paid against a commission settlement. (Emphasis added) Defendants totally ignore this section of the law. Rather, to reach their absurd conclusion they look only at Section 1620.10 which defmes wages. However, when the two sections are read in conjunction. it is evident that what the law provides is that not only should base pay be analyzed when determining whether there is an EPA violation. Rather, all components of wages must be analyzed to assure that all are paid at an equal rate. In other words. an employer would violate the law if it paid the same base wage. but then paid the men a higher bonus. See: EEOC Compliance Manual, Chapter 10 C: Definition of Wages and Wage Rate. (Eisenberg Aff., Exh. E) That in no way, however, can be read to say that women must work twice as many hours as men to earn their compensation. A case directly on point is Bence v. Detroit Health C017), 712 F. 2d 1024 (6th Cif. 1983) where female employees sold health spa membership to women and men sold
20

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 26 of 32 PageID #: 965
membership to men. They all worked for commissions, but the women's commission rate \vas lower than that of the men. There was no dispute as to the equality of the jobs. but the defendant claimed the basis [or the disparity was that the gross sales to women were alv.·ays higher. As a result the saleswomen made more sales than the men resulting in their earning substantially equal wages, and sometimes more than the men. The Sixth Circuit rejected the total remuneration argument put forth by the employer, stating that "Comparison of pay rates entails measuring the amount of pay against a common denominator, typically a given period..... ld at 1027. A prima facie violation is established where the commission rate was different, even if the total compensation earned by both men and women was the same.
The case relied upon by defendants is not relevant to the instant action. In Marting v. Crm1iford, 203 F Supp. 2d 958. 966 (N.D. Ill. 2002) the COllrt primarily found that the female employee provided no evidence to demonstrate that her salary was lower than the male comparator and thus she could not survive summary judgment. There is dicta about inclusion of fringe benefits as part of \vages, but that in no way speaks about overtime. where the female employee is paid at a lower "rate" and has to work more hours to earn the same amount of money. Lavin -McEleney v. j\1arist College. 239 F. 3d 476. 482 (2d Cir. 2001).
B. FAILURE TO NAiHE A SPECIFIC MALE COMPARATOR Is NOT F-tTAL IlV TJIIS CLASS
ACTION
The Equal Pay Act does not require female plaintiffs to identify one specific individual who constitutes the perfect male comparator. Wheatley \'. Wicomico County,
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Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 27 of 32 PageID #: 966
390 F.3d 328, 334 (41h Cir. 2004) "The text of the EPA may not be brushed with such a demanding gloss. However. in choosing a proper comparator position. plaintiffs cannot indiscriminately aim at all department supervisors collectively, and then expect to meet
with the EPA standard of "substantial equality [inJ skill. effort land] responsibility:' In this case, there is no indiscriminate comparison of positions. The pay policies
are unifomlly applied on a class wide basis. The Nassau County Civil Service's grade ranking systems determine the compensation of PCOs. FCTs, PCOSs and FCTSs. In 2005 when the positions were "equalized" the County Executive. Thomas Suozzi. specifically stated the basis of the upgrade to equal positions was the determination that the jobs were equal and women were underpaid. In an effort to end historic pay inequity for 911 Operators. he said, "[t]oday we are calling for equal pay for equal work." (See Exhibit C annexed to Eisenberg Affirmation) Moreover, in the past, the Civil Service Commission did compare the two jobs at one point to determine \vhether they should be paid the rate. Although plaintiffs disagree with its outcome, the fact that the Commission thought the similarities sufficient to both comparing is indicative of the propriety of comparing the positions on a class wide basis, as has been done by the parties respective expert witnesses.
POINT IV WI/ETHER DEFENDANTS' CONDUCT CONSTITUTES WILFUL VIOLATION
OF THE EPA ISA JURY QUESTION An employer violates the Equal Pay Act when it knows or shows reckless disregard for whether its conduct was prohibited under the statute. McLaughlin v Richmond Shoes Co.. 486 U.S. 128 (1988). To prove wilfulness a Plaintiff"need not
22

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 28 of 32 PageID #: 967
show that an employer acted with intent to discriminate." Pollis v. The New School. 132 F 3d 115, 119 (2d Cir. 1997); Lavin -McEleney v. Marisl College, 239 F. 3d 476, 482 (2d Cir. 2001). The determination of wilfulness is a quintessential jury question. Indeed, in one of the cases cited by defendants here the Court held: "\\'hether defendants acted wilfully in violation of the FLSA is a question of fact for the jury." Kalil' v. Royal Arcadia Palace, fnc.. 2007 WL 4591250 * 14.2007 U.S. Dist. Lexis 94556 *42 (E.D.N.Y. December 27, 2007)
In this case there is at least one substantial fact indicating that the County was aware that its actions were in violation of the law. In 2005 County Executive, Thomas Suozzi. acknowledged that the female "911 Operators [who] have historically been paid less than their male counterparts in fire communications..... (Eisenberg Affim1ation Exhibit C)
Moreover. Defendants only argument regarding wilfulness is that if plaintiffs are allowed to proceed on that issue they would benetit from a three-year statute of limitations, rather than two years. See Def. Bf. P. 10-11. However, that is of no consequence. since the equal pay claim is also tiled under the State EPA and the court has designated a class under that law. Under the State EPA there is a six-year statute of limitations. In any case. that third year is captured.
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POINT V WHICH MEiHBERS OF THE PUTATIVE CLASS FALL WITHIN THE STATUTE OF LIMITATIONS IS A QUESTION
THAT THE COURT NEED NOT AND SHOULD NOT ADDRESS ON THIS SUMMARY JUDGJI,IENT MOTION Defendants argue that those class members who opted in after November I. 2006 are precluded from this action under the EPA two-year statute of limitations. The Court does not have to reach that issue on this motion for several reasons. First, as discussed. whether the acts of the defendants were wilful and therefore the three (3) year limitations period applies, is an issue for the jury to determine. It \vould be premature to disqualifY class members at this juncture. Second, since these employees will be covered by the class action under the State EPA. where the statute oflimitations is six (6) years. the date of the opt-in is irrelevant for the statute or limitations period. Third. whether there is a two (2) year or three (3) year limitation period will only affect the issue of damages. If a jury finds that defendants' acts were wilful. then those who timely opt in will be entitled to liquidated damages under the Federal law. in addition to their back pay. The parties, however. have agreed to bifurcate the issue of damages. The Court has the inherent power to modifY the class at any time. There is no need to make a determination at this juncture. The determination of damages owed to each individual plaintiff will be established in the damage phase of this action. Defendants' argument that opt-ins filed after August 9, 2006 because the form used does not confornl to the Court Order is also invalid. The question of the precise definition and parameters of the Class remains in dispute. and plaintiffs' request to detlne the class is slIbjlldice. But again. precisely who is entitled to receive relief should
24

Case 1:05-cv-05445-AKT Document 98 Filed 07/25/08 Page 30 of 32 PageID #: 969
plaintiffs prevail is not an issue for summary judgment. For the same reasons as stated above, the Court should not address this issue on a motion for summary judgment.
POINT VI PLAINTIFFS CLAIJ"'/S ARISING UNDER
42 U.S.c. §1983 ALLEGING VIOLATIONS OF THEIR CONSTITUTIONAL RIGHTS
UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION CANNOT BE RESOLVED BY SUft-H-fARY JUDG1UENT
Although plaintiffs hereby withdraw their claims against defendants Nassau County Police Depattment. Nassau County Civil Service Commission and Thomas R. SuozzL in his official capacity. Nassau County adopted a custom, policy and practice of providing salary grade increases as detailed in Point III of this memo. where plaintiffs were treated differently than male employees in violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution. Nassau County knowingly maintained a gender-based discriminatory wage disparity between the all-male FCTs and the predominantly female PCOs and their respective supervisors who are all female for the PCOS job and all male for the FCTS job. Nassau County knowingly had female PCOs and PCOSs perfonn equal \\lork to their male Fire Department counterparts and knowingly paid plaintiffs lower wages than these men in violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution. Plaintiffs claim under 42 U.S.c. §1983 continues. Additionally, when upgraded in pay. women PCOs and PCOSs lost steps so as to lessen their pay increase whereas male FCTs and FCTSs were upgraded and did not lose any step thereby heightening their pay increases. Accordingly, plaintiffs' claims under 42 U.S.c. §1983 against Nassau County must go forward.
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Municipal Liability {j\;fonell Claim!;~ (T)he Equal Protection Clause is implicated when the government makes class-
based decisions in the employment context, treating distinct groups of individuals categorically differently. See. e.g., NYC Tral1sit Aulh. v. Beazer. 440 U. S. 568, 593 (1979) (upholding city' s exclusion of methadone users from employment under rationalbasis review); J-Jarrah 1l1dep. Sch. Disl. v. Martin, 440 U. S. 194. 199-20 I (1979) (classification between teachers who had complied with a continuing-education requirement and those who had not is rational and does not violate the Equal Protection Clause); Afassachusetts Ed. ofRetirement v. ]vfurgia, 427 U. S. 307, 314-317 (1976) (upholding a mandatory retirement age-a classification based on age-under rationalbasis review).
A municipal entity may only be held liable if the alleged offending conduct was undertaken pursuant to "a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by [the municipal] officers[,] * * * lor] governmental 'custom'
even though such a custom has not received formal approval through the [municipality's] oftlcial decisionmaking [sic] channels." Monell v. Dep't ofSocial Servs. ofCity ofN}~ 436 U.S. 658, 690 (1978). Here there is clearly a "direct causal link between a municipal policy or custom, and the alleged constitutional deprivation." City ofCanton v. Harris, 489 U.S. 378. 385 (1989).
The Equal Protection Clause of the Fourteenth Amendment is "essentially a direction that all persons similarly situated be treated alike." Latrieste Restaurant v. Village ofPort Chester, 188 f.3d 65. 69 (2d Cir. 1999) (quoting City o.lCleburne v. Cleburne Living Or., Inc.. 473 U.S. 432, 439 (1985».
To establish an equal protection violation, a plaintiff must show purposeful discrimination by the defendants directed at an identifiable or suspect class. See. GiallO \'. Senkowski, 54 F.3d 1050. 1057 (2d Cir. 1995). As detailed in Suozzi's press release:
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"Today we are calling for equal pay for equal work~ it's the right thing to do," (Eisenberg Aff., Exh, C) Surely, defendants were aware that women 'were being paid less than men for equal work for a long time. That this did not get remedied demonstrates defendants' discriminatory policies and animus. In light of these facts, plaintiffs' §1983 claim must proceed and summary judgment is inappropriate.

CONCLUSION Based upon the foregoing, defendants ' mot ion for summary judgment should be denied in its entirety.
Dated: New York, New York June 20, 2008

To: Loma B. Goodman Nassau County Attorney Jennean Rogers Lauren Chanan Peter J. famighetti Anorneys for Defendants One West Street Mineola, NY 11501 (516) 571-6081

•
erbe " nberg 8796) Eisenberg & Schn 11, LLP 377 Broadway, 9th loor New York, NY 10013 (212) 966 -8~

1. ~ .

Janice Goodman (0487)
Law Offices of Janice Goodman
275 i h Avenue, Suite 2300
New York. N Y 1000 I (212) 869-1940

27

 
 Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 1 of 11 PageID #: 3635

UNITED STATES DISTRJCT COURT EASTERN DISTRJCT OF NEW YORJ( __________________________________x
HELEN EBBERT, PAMELA EDWARDS, ISABELLA MINNECI, WENDY MURO, AND PRANCES KAMERER, LORI CONKLIN md all others similarly situated
Plaintiffs,

-against-

05-CV5445 (FB)(AKT)

NASSAU COUNTY, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE COMMISSION; THOMAS R. SUOZZI, in his official capacity,

Defendants.
-----------------------------------X

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT
Subject to Couri approval, the parties have settled the class action resolving all claims
Plaintiffs raised against Defendants, or which could have been raised, in this Equal Pay Act case alleging unlawful pay disparity between the female dominated job of PCO/PCOS and the all male FCT/FCTS work force. The Stipulation of Settlement and Release ("Settlement i\.greement") provides, in its most significant part, a Settlement Fund of Seven Million ($7 ,000,000) Dollars which is sufficient to assure that each class member will be made whole for lhe loss of base salary that she should have earned if she were paid equally with her comparable Illale FCT/FCTS colleagues.

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Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 2 of 11 PageID #: 3636
Plaintiffs respectfully request that the Court: (1) grant preliminary approval of the Settlement Agreement (attached to Goodman Affirmation as Exh. A); (2) approve the form of the Notice to the Class agreed to by the parties (attached to Goodman Affim1ation as Exh. B); and (3) set a date for the Faimess Hearing which is at least seventy (70) days from the date of Preliminary Approval.
BACKGROUND
On November 18, 2005, Plaintiffs Ebbert, Edwards, Minneci, Muro and Kamerer filed this collective and class action pursuant to the Equal Pay Act, 29 U.S.C. §§206 (d) et seq ("EPA"), the New York State Equal Pay Act, N.Y. Labor Law§§ 194 el seq ("NYEPA"), and 42 U.S. C.§ 1983. The named Plaintiffs are female Police Communications Officers ("PCO") and Police Communications Officer Supervisors ("PCOS") who claim, on behalf of themselves and those similarly situated, that they are paid less than the Fire Communication Technicians ("FCT") and their supervisors ("FCTS"), all of whom are male, for work that is substantially equal. On June 22, 2006, Nassau County, Nassau County Police Department, The Nassau County Civil Service Commission and Thomas R. Suozzi, County Executive ("referred to collectively as "Defendants") answered disputing all of the material allegations of the Complaint and denying any liability to plaintiffs or the members of their classes. Defendants asserted, among other things, that the claims were res judicata, that the Defendants had partial immunity, and that the claims were barred by the statute of limitations. (See Goodman Aff. for all factual statements).
On July 27,2006, at the joint request ofthe parties, the Court bifurcated the action separating the issue of liability from damages.
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Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 3 of 11 PageID #: 3637
On April 20, 2007 Plaintiffs moved to Amend their Complaint to add PCOS Lori Conklin as a Named Plaintiff, which motion was opposed by Defendants. Plaintiffs motion being granted, they served their Amended Complaint on May 29, 2007. Defendants answered the Amended Complaint on June 8, 2007.
On August 9, 2007 the Court granted Plaintiffs' Motion for Class Certification under the NYEPA and 42 U.S.C. §1983 pursuant to Federal Rule 23 (a) and (b)(2) designating and defining the Class as:
All women employed by the County as PCOs and/or PCOSs on or after November 18, 1999. The Court also certified the class of Opt-ins pursuant to 29 U.S.C. §§206 (d) el seq., and approved Eisenberg & Sclmell, LLP, and the Law Offices of Janice Goodman as Class Counsel. Thereafter, counsel for the Named Plaintiffs, Opt-in Plaintiffs and the members of the classes conducted extensive investigation of the claims; including taking of depositions; interviewing plaintiffs and putative class members; defending depositions taken of all plaintiffs; reviewing and analyzing massive documentary evidence, including thousands of pages of documents provided by Defendants in discovery; site visits to the work facilities; retention of an Expert Witness and defending her deposition as well as talcing the deposition of Defendants Expert; engaging in discovery motion practice, responding to Defendants' Motion of Summary Judgment, and preparing a PTO. There was significant motion practice relating to the Defendants' Experts' Report. Plaintiffs were ultimately successful in precluding substantial sections of these Reports which were detem1ined to be improper.
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On April 16, 2008, Defendants moved for summary judgment, asserting that Plaintiffs' claims are barred by stare decisis; that the undisputed material facts entitle Defendants to judgment as a matter of law; and that the §1983 claims against the County Executive were insufficient to hold him liable. On April 3, 2009, the Court denied Defendants' Motion for Summary Judgment, except to the extent that it dismissed all claims under §1983 and dismissed the action against County Executive Suozzi.
By Order dated June 17, 2010, the Court adopted a pre-trial scheduling order directing the exchange of Stipulated Facts by June 18, 2010; designation of deposition cites by June 29, 201 0; the filing of a proposed Pre-trial Order by July 9, 2010 and the setting of a pre-trial conference on July 14,2010. Simultaneously the Court set a Settlement Conference for July 17, 2010.
Thereafter, extensive settlement discussions, leading to this Settlement Agreement, were conducted under the supervision of Magistrate Judge, Hon. A. Kathleen Tomlinson. In order to evaluate settlement positions, Class Counsel requested of Defendants substantial payroll information which was provided. Thereafter, the Court ordered the retention of an expert, APT Metrics, Inc., to be paid by Defendants, to provide the necessary analysis of the data to detem1ine the loss each class member sustained as a consequence of the alleged discriminatory treatment. Tllis information informed class counsel of the adequacy of the settlement proposal.
Counsel for the parties recognize the risks and costs of prosecuting this action through trial and believe that it is in the interest of all parties to resolve finally and completely the claims of the class members against the County. Therefore, the parties entered the Settlement Agreement for which Plaintiffs request preliminary approval.
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Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 5 of 11 PageID #: 3639
SUMMARY OF SETTLEMENT TERMS A. Class Member Awards
TI1e Settlement Agreement created a fund of Seven Million ($7,000, 000) Dollars for the class to settle this action ("the Fund"). The Fund covers class members' awards, service awards to tl1e named Plaintiffs; administrative fees and costs for settling any disputes arising out of miscalculations of awards and a cy pres award of any unused sums from the Fund.
Specifically, each class member, as defined by the Court, shall be made whole by receiving a back pay amount calculated by a Court designated expert, based on data supplied by the County, measuring damages by tl1e difference between the base pay tl1at the class member should have received had she been at the same grade and step level of a similarly situated FCT and/or FCTS, with tl1e same seniority and what she actually earned during the period November 18, 1999 and June 30, 2011 or the date of termination from employment, whichever first occurred. The individual awards for tl1e class members range from t11e lowest of about $2,000 to the highest of over $80,000 with most class members receiving an award of between $35,000 and $60,000.
The named Plaintiffs shall each receive a service award of $20,000 for the work, effort and risks that tl1ey undertook in pursuing tl1is litigation.
A total of$50,000 has been set aside for the costs of a Settlement Administrator who is charged with hearing any objections raised by a class member who claims that she is a member of the class, but has not received a back pay award, or tl1e back pay award has been miscalculated or is based on incorrect data.
The remainder of the Fund has been set aside to cover any additional payments to tl10se who successfully challenge their award.
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Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 6 of 11 PageID #: 3640
Any money remaining in the Fund, after distribution to all class members and all administrative costs have been allocated, shall be equally divided between the two selected nonprofit charities: The Employees Rights Advocacy Institute for Law & Policy, Community Legal Assistance Corp. of Hofstra University Law School. B. Attomeys' Fees and Litigation
If the court approves, in addition to the above Fund, Defendants have agreed to pay the following amounts to class counsel:
Eisenberg & Schnell, LLP, attorney fees in the amount of$355,000 and costs of $1,846.69. Law Offices of Janice Goodman, attorney fees in the amount of $415,000 and costs of$128,789. In agreeing to these sums class counsel submitted to Defendants time records reflecting work performed and an itemized statement oflitigation costs. C. Settlement Procedure The parties are following the usual class action settlement procedure which includes (1) tllis request for preliminary approval; (2) dissemination of a mailed notice to each class member inforn1ing tl1em of tl1e settlement together with a summary of the terms; and (3) a Fairness Hearing requesting final approval of the Settlement Agreement at which time the parties will present argument concerning the fairness, adequacy and reasonableness of tl1e settlement and at wllich any class member may raise objection to the Settlement Agreement, if they first submit in writing a request to be heard. T11e approval procedure, in this instance, is somewhat complicated because tl1e Defendant is Nassau County. The County Legislature has approved tl1e Settlement Agreement and the County Executive has signed tl1e legislative approval. In addition, on January 26, 2011 the
6

Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 7 of 11 PageID #: 3641
Nassau County Interim Finance Authority ("NIFA") instituted a control period, pursuant to New York Public Authorities Law Section 3650 et seq. which requires NIFA's approval ofthis Settlement Agreement. In order to advance the process expeditiously, the County is simultaneously submitting the Agreement to NIFA for approval. The parties urge the Court to grant preliminary approval without awaiting NIFA's action.
If these prior approvals are obtained, and the Court issues a Final Order approving the Settlement Agreement, the County shall issue the back pay awards within thirty (30) days of the Court's Order. Class members shall have Fifteen (15) days from receipt of their award to file a
Notice of Challenge, iftl1ey believe tlmt the settlement award allocated is incorrect. The class member does not lose her award as determined by the original calculation, if her challenge is denied.
TI1e Court retains jurisdiction over the parties and the subject matter ofthis action for Two (2) Years from the Etiective Date of the Settlement Agreement for tl1e sole purpose of entering all orders and judgments that may be necessary to implement and enforce the relief provided in the Settlement Agreement.
ARGUMENT A. Preliminary Approval is Appropriate
There is a "strong judicial policy in favor of settlements, particularly in the class action context. Wal-Mart Stores, Inc. v Visa USA. Inc., 396 F 3d 96, 116 (2d Cir. 2005) (internal quotations omitted). Preliminary approval requires only an initial evaluation of the fairness of the Agreement which only indicates that the Court found sufficient grounds to submit the proposed settlement to the class members for a full hearing on fairness. In re Traffic Executive Ass 'n, 627
7

Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 8 of 11 PageID #: 3642
F. 2d 631, 633 (2d Cir.1980). It only permits notice to issue to the class and to give members a chance to object or opt out. "A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in ann's length negotiations between experienced, capable counsel after meaningful discovery." Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F. 3d 96, 116 (2nd Cir. 2005).
The Settlement Agreement entered here was agreed upon only after five (5) years of contested litigation, extensive discovery, including the exchange of expert witness reports and the taking of depositions of the experts, and the denial of Defendants' Motion for Summary Judgment Motion. All negotiations were arms length, under the supervision of Magistrate Judge A. Kathleen Tomlinson, and conducted by attorneys with great experience. B. The Settlement is Fair, Reasonable and Adequate
The Second Circuit generally considers the facts it laid out in City ofDetroit v. Grinnell Cmp., 495 F. 2d 448 (2d Cir. 1974) in determining the adequacy of the Settlement. As pertinent to this case, those factors include: (I) expense and complexity oflitigation; (2) the stage of the proceedings and the discovery completed; (3) the risks of establishing liability; (4) the risk of establishing damages; (5) the range of reasonableness of the settlement fund in light of the best possible recovery; and (5) the range of reasonableness of the fund to possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F. 2d at 463.
As described above, the parties were on the brink of trial, and had begun preparing a Pretrial Order when court supervised settlement discussions began in earnest. All discovery was completed, which left the parties in a perfect position to calculate the risks attendant in continuing to trial and ascertain the reasonableness of this Settlement. The trial would have been lengthy and complicated since PlaintitTs bore the burden of demonstrating that the positions of
8

Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 9 of 11 PageID #: 3643
the PCO/PCOS were substantially equal in terms of skill, effort and responsibility, to the FCT/FCTS. This would require extensive testimony explaining the details of the four (4) jobs being compared respectively. Preparing and putting on evidence would consume a tremendous amount of time and resources, and although Plaintiffs are confident that the merits of their claim warrant a favorable finding, every litigation involves risk.
Most consequentially, at the request of the parties, the case was bifurcated, which meant that discovery on damages would not proceed unless and until liability was determined. Therefore, even assuming Plaintiffs' prevail at trial, there would have been a further significant delay in ascertaining damages, thus delaying monetary relief to class members should they prevail.
In light of the attendant risks, the Settlement is more than reasonable and fair. Indeed, Plaintiffs submit it is an outstanding achievement for every class member. Each class member is receiving dollar for dollar the amount of base pay that she lost as a result of the pay disparity between the respective PCO/PCOS and the FCT/FCTS. She would not have received more in base pay had this case been litigated through judgment. Moreover, there is no cost to the class member for attorneys' fees or litigation costs, since those moneys are not being taken from a common fund. Counsel negotiated their fees totally separate from the negotiations for the Class. The only compromise made by Plaintiffs to obtain this outstanding result is forgoing interest payment on the sums awarded, and foregoing payment on the differential on overtime, both of which would have been available had this matter been pursued to successful judgment. However, Plaintiffs submit that is a small sacrifice in exchange for avoiding the potential of several years of risky litigation to achieve that result.
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Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 10 of 11 PageID #: 3644
ll1e special Service Award of Twenty Thousand ($20,000) Dollars each to the six (6) named Plaintiffs is also fair and reasonable. The named Plaintiffs, Helen Ebbert, Pamela Edwards, Isabella Minneci, Wendy Mnro, Frances Kamerer and Lori Conklin are responsible for bringing on this action. They participated in the preparation of the complaint; each was subjected to having her deposition taken; they produced documents as required in discovery; and in general took on the responsibility for prosecuting and pnrsuing the action on behalf of the class. Service awards of this type are commonly awarded. Damassia v Duane Reade, Inc., 2009 WL5841128 (S.D.N.Y. July 27, 2009); Roberts v Texaco, 979 F. Supp. 185,200-01 (S.D.N.Y. 1997); Yap v Sumitomo Corp., 1991 WL29112 (S.D.N.Y; Feb, 21, 1991).
Finally, although the Court does not now have to address the issue of attorney's fees, which counsel will brief for the final hearing, on its face the request is fair and reasonable. The attorneys' fees were negotiated totally separate from and only after agreement was reached as to the Settlement Fund for the Class. Although the amount requested is not being taken from the common fund, it is worth noting that the amount agreed to is a mere II% of the Settlement achieved for the Class. It is not unusual for awards in the range of30%-38% of a common fund to be awarded. See: Stefaniak v. HSBC Bank USA, N.A., 2008 WL7630102, *3(W.D.N.Y. June 28, 2008 (holding that a fee award of33% of the settlement fund istypical in class action settlements in the Second Circuit") (collecting cases); Gilliam v. Addicts Rehab Ctr. Fund, 2008 WL782596*5 (S.D.N.Y. Mar. 24,2008 ([C]lass counsel is entitled to one-third of the common fund ...which is consistent with the norms of class litigation in this circuit.")
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Case 1:05-cv-05445-AKT Document 148-3 Filed 06/09/11 Page 11 of 11 PageID #: 3645 CONCLUSION
For the above stated reasons, Plaintiffs' request preliminary approval of the Settlement Agreement; approval of the Notice to the Class and setting of a date for the Fairness Hearing. Dated: New York, New York
June 9, 2011 Herbert Eisenberg (8796)
1\ttorney for Plaintiffs and t e Eisenberg & Schnell 233 Broadway, Suite 2704 New York, New York 10279 212-966-8900
11

 
 Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

2011 WL 6826121 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Helen EBBERT, Pamela Edwards, Isabella Minneci, Wendy Muro, Frances Kamerer, Lori
Conklin, and all others similarly situated, Plaintiffs, v.
NASSAU COUNTY, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Suozzi, in his official
capacity, Defendants.
No. CV 05–5445(AKT). | Dec. 22, 2011.
Attorneys and Law Firms
Herbert Eisenberg, Janice Goodman, Law Offices of Janice Goodman, New York, NY, for Plaintiffs.
Carl S. Sandel, Barbara E. Van Riper, Jennean R. Rogers, Lauren Seides Chartan, Mineola, NY, for Defendants.
Opinion
FINAL ORDER AND JUDGMENT GRANTING PLAINTIFFS’ MOTION FOR CERTIFICATION OF SETTLEMENT CLASS, FINAL APPROVAL OF A CLASS ACTION SETTLEMENT, AND AN AWARD
OF ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES AND SERVICE AWARDS
A. KATHLEEN TOMLINSON, United States Magistrate Judge.
*1 Plaintiffs, as individuals and representatives of a class, commenced this action in 2005 against Defendants Nassau County, the Nassau County Police Department, and the Nassau County Civil Service Commission alleging violations of the Equal Pay Act, 29 U.S.C. §§ 206(d), et seq. and the New York State Equal Pay Act, N.Y. Lab. Law §§ 194, et seq. Plaintiffs also sued Defendant Thomas R. Suozzi, in his official capacity as County Executive, based upon alleged gender discrimination in violation of 42 U.S.C. § 1983. After the

close of discovery and after Judge Block’s decision denying summary judgment on most of the claims asserted, the parties entered into arm’s length settlement discussions, under the supervision of this Court, and ultimately reached a Settlement Agreement.
At a conference held on June 15, 2011 [DE 150], this Court preliminarily approved the entire Amended Stipulation of Settlement and Release as fair, adequate and reasonable. The Court also scheduled a Final Fairness Hearing for August 30, 2011 on the question of whether the proposed Settlement should be finally approved as fair, adequate and reasonable as to the Settlement Class Members. On June 21, 2011, the Court approved and “so ordered” the form and content of the “Notice of a Proposed Class Action Settlement” and Claim Form materials, directed the mailing of these materials, and certified the Settlement Class. See DE 153.
Plaintiffs now move for: (1) final certification of the Settlement Class pursuant to Rule 23 of the Federal Rules of Civil Procedure; and (2) final approval of the Settlement, including the award of (a) service awards for the six named Plaintiffs, all of whom significantly contributed to the success of this action; and (b) attorneys’ fees and expenses as detailed below. For the reasons that follow, the motion is GRANTED in its entirety.
I. FACTUAL BACKGROUND Plaintiffs Helen Ebbert, Pamela Edwards, Isabella Minneci and Wendy Muro are four women who are or were employed by Nassau County as Police Communication Officers (“PCOs”). Two of the other named Plaintiffs, Frances Kamerer and Lori Conklin, were initially employed as PCOs. Kamerer and Conklin were promoted to the position of Police Communication Officer Supervisors (“PCOSs”). Over 90% of the PCOs and PCOSs in Nassau County are female.
In bringing this suit, the Plaintiffs alleged that the Defendants discriminated against them and the class they represent by paying them wages lower than the wages paid to men for the performance of work that is substantially equal in skill, effort and responsibility. Specifically, the Plaintiffs compare their salaries to those of the work force of approximately 32 Fire Communication Technicians (“FCTs”) and Fire Communication Technician Supervisors (“FCTSs”), all of
1

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

whom are male. According to the Plaintiffs, no woman has ever been employed in the position of FCT or FCTS.
The pay scales for all four positions are determined by the Nassau County Civil Service Commission’s civil service grade ranking system. At all times relevant to this litigation, FCTs and FCTSs were ranked at salary grades 10 and 12, respectively. Prior to October 2001, PCOs were ranked at salary grade 7 and PCOSs at grade 10. As of October 2001, PCOs were elevated to grade 9 and PCOSs to grade 11. The PCOs and PCOSs, however, did not receive “vertical upgrades” to maintain them at their pre-elevation steps. On May 25, 2005, the Nassau County Legislature elevated the PCOs and PCOSs to grades 10 and 12, thereby placing them in equal grade with the FCTs and FCTSs, but not in equal step.
*2 The Plaintiffs claim that they had been paid between $1,500 and $10,000 per year less than the FCTs and FCTSs of equal seniority, and that they continued to be paid less because they were not given vertical upgrades in October 2001. Notwithstanding the current parity in pay grade, the Defendants maintain that the positions of PCO and PCOS are not substantially similar to those of FCT and FCTS. Moreover, the Defendants assert that the Plaintiffs are not entitled to vertical upgrades because under the collective bargaining agreement between Nassau County and the Civil Service Employees Association, Inc., “[i]f an employee is promoted or otherwise moves to a higher grade ... the employee will move to the step on the higher grade which provides a salary no less than the employee’s original salary plus $1,000.” Affidavit of Karl Kampe, Executive Director of the Nassau County Civil Service Commission, in opposition to Plaintiffs’ Motion to Proceed as a Collective Action and for Class Certification, annexed to Defendants’ Memorandum of Law in Opposition [DE 23], ¶ 6. The Defendants have further argued during the litigation that the claims asserted by the Plaintiffs are res judicata, that the Defendants have partial immunity and that the claims are barred by the statute of limitations.
II. PROCEDURAL HISTORY Plaintiffs Ebbert, Edwards, Minneci, Kamerer, Edwards, and Muro represented by Eisenberg & Schnell, LLP and the Law Offices of Janice Goodman (hereafter “Class Counsel”), commenced this class action on November 18, 2005. See DE 1. The parties proceeded through contentious phases of the litigation, including a lengthy class certification and merits discovery process,

depositions of the six named Plaintiffs and nine other witnesses, substantial motion practice, and extensive as well as problematic expert discovery. The action as a whole was vigorously contested.
Early on in the discovery process, the parties agreed to bifurcate this matter and to handle the liability and damages phases separately. The motion to bifurcate was filed before Judge Block on July 20, 2006 [DE 19] and was granted on August 3, 2006 [DE 20]. As discovery was progressing, the parties became engaged in a dispute concerning Plaintiffs’ request for certain city and state public service examinations to which the Defendants objected. New York State Civil Service Commissioner Wall moved to quash a subpoena served upon the agency by Plaintiffs for materials and for a deposition of Commissioner Wall. Counsel for the Commissioner also moved for a protective order [DE 28] which the Plaintiffs opposed. In a March 2, 2007 Memorandum and Order, this Court granted the motion, in part, by precluding the deposition of Commissioner Wall, but otherwise denying the protective order as to production of the civil service examinations and related materials. See DE 32.
Subsequently, Plaintiffs formally moved to amend the complaint and the Defendants opposed. That motion was granted by this Court. See May 24, 2007 Memorandum and Order, DE 45. Plaintiffs filed their Amended Complaint, adding Lori Conklin as a plaintiff, on May 29, 2007. See DE 46.
*3 In the interim, Plaintiffs’ counsel had also filed on November 21, 2006 Plaintiffs’ motion to proceed as a collective action under the New York Equal Pay Act and to proceed as a class action for violations of 42 U.S.C. § 1983 and state law, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. See DE 22. The Defendants opposed the motion [DE 23]. Judge Block heard oral argument on August 9, 2007 [DE 68] and thereafter entered a Memorandum & Order on August 13, 2007 granting the motion for class certification [DE 67]. In that decision, Judge Block ruled as follows:
[a]ccordingly, Plaintiffs’ motion to certify their claims under the New York State Equal Pay Act and § 1983 as a class action pursuant to Rules 23(a) and 23(b)(2) is also granted. With respect to the claims under the New York State Equal Pay Act, the class shall be comprised of all women employed by the County as PCOs and/or PCOSs on or after November 18, 1999, six years prior to the commencement of this action. See Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, 604
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

(1st Dep’t 1984) (applying six-year statute of limitations to New York State Equal Pay Act claim). With respect to the claims under 42 U.S.C. § 1983, the class shall be similarly defined except for the time frame: The class shall be comprised of all women employed by the County as PCOs and/or PCOSs on or after November 18, 2002, three years prior to the commencement of this action. See Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (“[T]he statute of limitations applicable to claims brought under § 1983 in New York is three years.”).
DE 67 at 9. Judge Block also certified the class of opt-ins pursuant to 29 U.S.C. §§ 216(b), et seq., id. at 6.
Expert discovery spawned another round of issues for which the Court was ultimately called upon to intervene. On July 6, 2007, the Court issued an Order [DE 61] directing that the inspection of the work site by both sides’ experts was to be conducted on July 13, 2007. In addition, Plaintiffs notified the Court that they intended to make a Dauber t motion and the Court “so-ordered” the briefing schedule agreed upon by all counsel. See Electronic Order of August 23, 2007. Plaintiffs moved to preclude the testimony of Defendants’ expert and to have the expert’s report and rebuttal stricken. See DE 75. Defendants opposed the motion [DE 76] and later filed their own Daubert motion challenging the qualifications and methodology of Plaintiffs’ expert and seeking to preclude her testimony. See DE 91. In a September 26, 2008 Memorandum and Order [DE 103], this Court granted the Plaintiffs’ motion, in part, striking certain inadmissible portions of the Defendants’ expert report and also striking the newly added portions of the rebuttal report that should have been disclosed in the initial report. Three days later, on September 29, 2008, the Court issued a second Memorandum and Order [DE 104], denying the Defendants’ motion to strike with regard to the qualifications of Plaintiffs’ expert, but granting the motion to strike certain inadmissible portions of the expert’s report. Both experts were directed to amend their reports to conform with the directives given in those two decisions.
*4 The Defendants filed a motion for summary judgment on July 25, 2008, seeking to have the complaint dismissed in its entirety. See DE 100. Defendants argued, among other things, that the action was precluded by stare decisis and that the Plaintiffs’ Equal Pay Act claims failed as a matter of law. The Plaintiffs opposed the motion and on April 3, 2009, Judge Block issued a Memorandum and Order [DE 105] denying the motion as to the federal and

state equal pay act claims, but granting it to the extent of dismissing the § 1983 claim and the action itself as against Nassau County Executive Suozzi.
In June 2009, Plaintiffs moved to have Defendants’ expert held in contempt for his failure to comply with the Court’s Orders concerning amendment of the expert report [DE 106]. Defendants opposed and counsel were permitted supplemental submissions to deal with certain issues before the Court. See DE 108, 109, 110, 111, 112, 113. Upon review, the Court concluded that the so-called revisions in Defendants’ Revised Expert Report and Revised Rebuttal Report failed to comply in large part with the Court’s prior Order. Twelve days after Plaintiffs filed the motion for contempt, Defendants provided the Plaintiffs with further revised versions of the expert’s reports. The Court found that some substantial revisions had been made, but that the reports were still not in compliance with the previous Orders. See DE 119. Defendants were given three weeks to achieve a final attempt at compliance or be precluded from using the expert reports and from having the expert testify. In addition, the Court imposed a sanction in the form of costs incurred by the Plaintiffs for the second round of motion practice and directed Plaintiffs’ counsel to submit a fee application. Id.
Thereafter, in mid-June, 2010, Plaintiffs’ requested an extension of time within which to file their fee application [DE 120] and Defendants requested an extension of time within which to exchange stipulated facts [DE 121] and other materials being prepared for the proposed Joint Pre–Trial Order. Both applications were granted in contemplation of the settlement conference then set for June 28, 2010.
III. THE SETTLEMENT At a status conference on May 20, 2010, after discussion with counsel, the Court set forth the tasks to be completed to bring the pre-trial phase of the case to a conclusion and the deadlines for doing so. See DE 118. Counsel jointly advised the Court at that time that they wished to schedule a settlement conference and, on June 28, 2010, the parties, along with the Court, began the first in a series of extensive settlement negotiations. See Electronic Order of June 17, 2010. The submission of the Joint Pre–Trial Order and the scheduling of the Pre–Trial Conference were held in abeyance pending the ongoing settlement discussions. See DE 122. Over the course of the next six months, in addition to their individual negotiations,
3

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

counsel met with the Court fourteen times in person and by telephone for continuing settlement discussions. During those discussions, it became clear that an outside expert would be needed to analyze the payroll data produced in discovery. The Court ordered that an expert acceptable to both sides be retained to review the voluminous payroll materials involved and to prepare appropriate calculations to determine the loss each class member had sustained—taking into account, among other things, starting salaries, grades and steps, dates of changes in position, name changes effected by some Plaintiffs through marriage, retirement of certain Plaintiffs, etc.
*5 The parties executed a settlement agreement on March 7, 2011 (hereafter, the “Settlement”), subject to approval by the Nassau County Legislature and the Nassau County Executive. See June 9, 2011 Affirmation of Janice Goodman, Esq. [DE 148–2] (“Goodman Aff. I”), Ex. A. On June 9, 2011, the Plaintiffs filed a Motion for Preliminary Approval of Class Settlement seeking an order (1) granting preliminary approval of the Settlement; (2) approving the Proposed Notice of Settlement of the Class Action Lawsuit to be mailed to all class members in the form attached; and (3) setting a date for a Fairness Hearing no earlier than seventy (70) calendar days from the date of the grant of Preliminary Approval of the Settlement. See DE 148. Judge Block referred the motion to the undersigned on June 10, 2011 to hold a fairness hearing with proposed class members and to issue a Report and Recommendation as to the proposed class settlement. See Electronic Order of June 10, 2011. Several days later, the parties filed a Consent to Jurisdiction by a United States Magistrate Judge [DE 149, 151] which Judge Block then executed and which directed the reassignment of the case [DE 154].
During a June 15, 2011 conference with counsel, the Court was advised that the Nassau County Legislature had approved the terms of the Settlement. See DE 150. This Court then granted preliminary approval of the Settlement during the conference and issued an order to that effect on June 15, 2011. Id. In that approval, the Court certified a “Settlement Class” defined as:
All women employed by the County as PCOs and/or PCOSs on or after November 18, 1999.
Goodman Aff. I, Ex. A, Sec. 1E. The Court also certified the class of Opt–Ins pursuant to 29 U.S.C. §§ 216(b), et seq. In addition, the Court confirmed, among other things,

(1) the total settlement amount to Class Members; (2) the designation of a Settlement Administrator and a cap on fees for the Administrator’s services; (3) Service Award payments to each of the named Plaintiffs; and (4) attorneys’ fees to Plaintiffs’ counsel Id. at Sec. 3.1–3.3. The Court found that the proposed Settlement, as set forth in the Parties’ Stipulation, appeared to be thorough, complete, satisfactory, fair and reasonable, and in the best interests of the Class. DE 150. The Court also approved the proposed class notice and proposed manner of delivering that notice to the class. Having made those findings, the Court set the Fairness Hearing down for August 30, 2011 at 11 a.m. Id.
On June 20, 2011, the Plaintiffs filed a Motion for Leave to File Notice of a Proposed Class Action Settlement outlining the terms of the Settlement and further providing an Opt–Out Form as well as an Objection to Settlement and Request to be Heard Form [DE 152]. The Court granted the motion on June 21, 2011 [DE 153]. Notice to the Class in the form approved by the Court was mailed on July 7, 2011 to the addresses provided by Defendant Nassau County. See August 23, 2011 Affirmation of Janice Goodman, Esq., ¶ 25 [DE 160–1] (“Goodman Aff. II”).
*6 The Plaintiffs filed an Amended Stipulation of Settlement and Release [DE 159] on August 16, 2011, reflecting some minor changes to which the parties had agreed. Under the terms of the agreement, Class Members had the opportunity to inform the Court of any objections to the Settlement or to opt-out of the Settlement by August 23, 2011. Goodman Aff. II, ¶ 26. As of the filing of Plaintiffs’ Motion for Final Approval of the Amended Stipulation of Settlement and Release [DE 160] on August 23, 2011, no one had filed any objections and no opt-outs had been received. Id. Class Counsel had also filed their respective affirmations in support of an award of attorneys’ fees. See DE 160–1, 161.
IV. THE FAIRNESS HEARING The Court held a Fairness Hearing regarding the Settlement on August 30, 2011. At the Fairness Hearing, the parties requested that the Court: (1) approve the Settlement and Agreement as fair, reasonable, adequate and binding on all Class Members who have not timely opted out of the Settlement; (2) order Defendants to distribute the settlement amounts as provided in Point 3.1 of the Settlement Agreement (3) order the Defendants to pay the attorneys’ fees and costs to Class Counsel in the
4

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

amounts set forth in the Settlement Agreement; (4) order the dismissal of the claims of all Class Members who did not opt-out; and (5) retain jurisdiction for two years from the date of entry of the Final Order approving the settlement to preside over implementation of the Settlement provisions. See Amended Stipulation of Settlement and Release, Section 6E(a) [DE 159].
Counsel for the Plaintiffs and Defendants were present at the Fairness Hearing, as were at least four of the named Plaintiffs. Plaintiffs’ counsel noted that there are approximately 230–250 Class Members. See Transcript of the August 30, 2011 Fairness Hearing1 [DE 162] at 5. A final number had not yet been confirmed because people had emerged of whom counsel were not previously aware. Plaintiffs’ attorney, Janice Goodman, stated that the amounts paid in settlement range from $2,000 per Class Member to as high as $80,000 for some Class Members depending on step and seniority. Hr’g Tr. at 5.

1

Subsequent references to the record of the Fairness

Hearing are designated “Hr’g Tr. at ____.”

Under the Settlement, the parties have agreed that Nassau County will pay a gross Settlement amount of seven million ($7,000,000) dollars, exclusive of attorneys’ fees. The fund is to be distributed as follows:
A. Each Class Member will be made whole by receiving a back pay settlement, calculated by an expert, representing the difference between what she would have earned has she been paid the same as the similarly situated FCT/FCTS, and what she earned as a PCO/PCOS for the period running from November 18, 1999 through June 30, 2011, or her date of termination, whichever occurred first. Goodman Aff. II, Ex. A, ¶ 3. 1(A).
B. Each named Plaintiff will receive a Service Award of $20,000 for initiating and prosecuting this litigation. Id., Ex. A, ¶ 3. 1(B)(b); Hr’g Tr. at 5.
*7 C. The sum of $50,000 shall be set aside for payment of the Settlement Claims Administrator appointed by the Court to complete the final calculations and, if necessary, to resolve any disputes concerning actual damages for those Class Members with successful challenges to the calculations. Ex. A, ¶ 3.1(B)(c) and (d). The Settlement Administrator shall notify the County of her determination of any

challenge. Goodman Aff. II, Ex. A, ¶ 3.6(c). At the conclusion of the matter, the Settlement Administrator shall provide the Court with a full statement of work performed and payments billed and made. Id., Ex. A, ¶ 3.3(d); Hr’g Tr. at 6.
D. Any sums remaining from the Items B and C above as well as any uncashed Settlement Check shall be divided equally as cy pres awards to the two designated Charities set forth in the Settlement Agreement. Goodman Aff. II, Ex. A, ¶ 3.1(B)(e); Hr’g Tr. at 5–6.
The Settlement also provides that any PCO or PCOS not presently in her proper grade 10 step, based on years of service, shall be upgraded immediately. Nassau County also commits to use its best efforts to maintain equality between the PCO/PCOS and the FCT/FCTS in the future. Goodman Aff. II, Ex. A, ¶ 3.4(a) and (b). Likewise, the agreement provides that the Settlement Funds shall be distributed within thirty (30) days after entry of the Court’s Order of Final Approval. Id. ¶ 3. 1(B); Hr’g Tr. at 18. The parties further agreed that the Court will retain jurisdiction over the parties and this action for two years from the effective date of the Agreement for the purpose of entering any order or judgment that may be necessary to implement and enforce the relief provided. Ex. A, ¶ 6; Hr’g Tr. at 17–18.
At the Fairness Hearing, no objectors appeared. Counsel reported that no objections had been filed. Hr’g Tr. at 7.
IV. DISCUSSION For the reasons set forth below, the Court grants Plaintiffs’ motion for final approval of the Settlement and for Plaintiffs’ requested attorneys’ fees and expenses and Service Awards.
A. The Applicable Standard A court may approve a class settlement, pursuant to the provisions of Rule 23(e), only after holding a hearing and finding that the settlement is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(c)(2). To determine the fairness of a settlement, a District Court must examine” the negotiating process leading up to the settlement as well as the settlement’s substantive terms.” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.2001); Dupler v. Costco Wholesale Corp., 705 F.Supp.2d 231, 238
5

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

(E.D.N.Y.2010). The Court must therefore “consider both the procedural fairness of the settlement negotiations, as well as the substantive fairness of the settlement itself.” Dupler, 705 F.Supp.2d at 238.
“With respect to procedural fairness, we have stated that a District Court reviewing a proposed settlement ‘must pay close attention to the negotiating process, to ensure that the settlement resulted from arm’s length negotiations and that plaintiffs’ counsel ... possessed the [necessary] experience and ability, and have engaged in the discovery necessary to effective representation of the class’s interests.’ ” McReynolds v. Richards–Cantave, 588 F.3d 790, 804 (2d Cir.2009) (quoting D’Amato v. Deutsche Bank, 236 F.3d at 85) (alterations in original). A “presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Manual for Complex Litigation, Third, § 30.42 (1995) (quoted in Wal–Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir.2005)). Moreover, there is a “strong judicial policy in favor of settlements, particularly in the class action context.” In re Paine Webber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir.1998).
*8 In reviewing the substantive fairness of a settlement, the Court must consider the criteria set forth in Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), often referred to as the “Grinnell factors.” See, e.g., Wal–Mart Stores, Inc., 396 F.3d at 117; Velez v. Novartis Pharm. Corp., No. 04 Civ. 09194, 2010 WL 4877852, at *12 (S.D.N.Y. Nov. 30, 2010); Dupler, 705 F.Supp.2d at 238. These factors include: (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 the best possible recovery; (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. In order to arrive at a fairness determination, the Court must give “comprehensive consideration to all relevant factors and yet the settlement hearing must not be turned into a trial or a rehearsal of the trial.” Id. As noted in Grinnell, such a procedure “would emasculate the very purpose for which settlements are made.” Id. At the same time, the Court must refrain from “any rubber stamp approval” and

instead pursue an independent evaluation. Id. The Court now turns to the Settlement in the instant case with these factors in mind.
B. Fairness Evaluation
1. Procedural Fairness Settlement discussions in this case did not begin until after the close of both fact and expert discovery, after the class had been certified, and after Judge Block’s decision on defendants’ summary judgment motion. In fact, the skeleton for the proposed Joint Pre–Trial Order was in place when the first settlement conference was scheduled. See Goodman Aff. II, ¶ 13. The settlement was reached after arm’s length negotiations by counsel for both plaintiffs and defendants. Those negotiations were conducted under this Court’s supervision; in fact, the Court met with counsel for the parties some 14 times, in person and by phone, facilitating this process. See DE 122, 129, 130, 131, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142. The negotiations continued over six months. Goodman Aff. II, ¶ 14. Hence, the Settlement was reached after Plaintiffs had conducted a thorough investigation, evaluated the claims and engaged in extensive negotiations. The Plaintiffs also obtained, reviewed and analyzed thousands of pages of documents, including compensation and payroll records, human resources data and other materials. Id. ¶ 7. During discovery, counsel engaged in numerous discovery disputes which required Court intervention. Id., ¶¶ 7–10.
*9 Plaintiffs’ co-counsel, the law firm of Eisenberg & Schnell, LLP and the Law Offices of Janice Goodman, are experienced counsel who are well-known in employment law and employment discrimination litigation. Once an agreement in principle was reached, counsel exchanged several drafts to ensure that the precise wording was accurate and complete. The Court concludes, therefore, that the Settlement is procedurally fair and is entitled to a presumption of being fair, reasonable and adequate and not a product of collusion. See Joel A. v. Giuliani, 218 F.3d 132, 138–39 (2d Cir.2000); Wal–Mart Stores, 396 F.3d at 116; Dupler, 705 F.Supp.2d at 239.
2. Substantive Fairness “Courts examine substantive fairness in light of the “ ‘strong judicial policy favoring settlements’ of class
6

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

action suits.” Clark v. Ecolab Inc., No. 07 Civ. 8623, 2010 WL 1948198, at *4, (S.D.N.Y. May 11, 2010) (quoting Wal–Mart Stores, 396 F.3d at 116). This Settlement is substantively fair. The Grinnell factors which provide the analytical framework for evaluating substantive fairness of the class action settlement weigh in favor of final approval here.
a. Complexity, Expense, and Likely Duration of the Litigation As an initial premise, class actions are generally complex. Velez, 2010 WL 4877852, at * 12. This case was on the brink of trial when negotiations commenced. All discovery had been completed which left the parties in an optimum position to calculate the risks attendant in continuing to trial vis-a-vis the reasonableness of this Settlement. See Pls.’ Mem. of Law in Support of Their Motion for Approval of Class Settlement (“Pls.Mem.”), annexed as Exhibit 2 to the Notice of Motion for Final Approval of Class Settlement [DE 160], at 10. Further litigation at trial would also require resolution of several complex issues since Plaintiffs bear the burden of demonstrating that the positions of the PCO/PCOS were substantially equal in terms of skill, effort and responsibility, to the FCT/FCTS. This process would require extensive testimony explaining the details of the four jobs being compared. Id. Preparing and putting on evidence to support plaintiffs’ position would consume tremendous time and financial resources, including extensive expert testimony. See id.
It is also significant to note that this case was bifurcated at the request of the parties. Consequently, discovery on damages would not proceed unless and until liability was determined. Even assuming that Plaintiffs prevailed at trial, there would have been a further significant delay in ascertaining damages, thus delaying monetary relief to the class members if they were successful. Without this Settlement, there would likely be a lengthy appeals process that would further delay any payout to the Class Members, which is a further element the Court takes into account. See Maley v. Del Global Techs. Corp., 186 F.Supp.2d 358, 362 (S.D.N.Y.2002). Settlement at this point results in a “substantial and tangible present recovery, without the attendant risk and delay of trial.” Id. The Court finds, therefore, that the foregoing factor weighs in favor of the proposed Settlement.

b. Reaction of the Class to the Settlement *10 “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 fact, the lack of objections may well evidence the fairness of the [s]ettlement.” Id. (citing In re American Bank Note Holographics, 127 F.Supp.2d 418, 425 (S.D.N.Y.2001). In this instance, no objections were filed to the Settlement, no one opted-out and no one appeared at the Fairness Hearing to voice any objections. This complete lack of objection indicates an overwhelmingly positive reaction from the class. See, e.g., Velez, 2010 WL 4877852 at * 13 (six requests for exclusion and no objections by any member among class of 5600 female sales force employees in gender discrimination action constitutes strong favorable reaction regarding settlement’s fairness); Dupler, 705 F.Supp.2d at 239 (“such a small number of class members seeking exclusion or objecting [24 objections and 127 opt-outs of 11,800,514 class members] indicates an overwhelmingly positive response”); Wal–Mart Stores, 396 F.3d at 118 (where only 18 out of 5,000,000 class members objected, evidence established that the class was “overwhelmingly in favor” of the settlement).
c. Stage of the Proceedings and the Amount of Discovery Completed Settlement is especially favored when “the litigation is at an ‘advanced stage’ and an ‘extensive amount of discovery [has been] completed.’ ” Velez, 2010 WL 4877852 at * 13 (quoting In re Marsh & McLennan Companies, Inc. Secs. Litig., No. 04 Civ. 8144, 2009 WL 5178546, at *6 (S.D.N.Y. Dec. 23, 2009)) (alteration in original). “This factor relates to whether the plaintiffs had sufficient information on the merits of the case to enter into a settlement....” Parker v. Time Warner Entm’t Co., L.P., 631 F.Supp.2d 242, 259 (E.D.N.Y.2009); Frank v. Eastman Kodak Co., 228 F.R.D. 174, 185 (W.D.N.Y.2005) (settlement at a late stage affords the court an opportunity to “intelligently make ... an appraisal of the Settlement”) (internal quotations omitted). As described above, the parties here were on the brink of trial. Plaintiffs’ counsel conducted an extensive investigation regarding the claims, including interviewing the Plaintiffs and other putative class members, taking nine depositions and defending depositions of the six named Plaintiffs and reviewing massive documentation. Goodman Aff. II, ¶ 7. All fact and expert discovery had been completed, class certification had been granted, and a decision on summary judgment had been rendered. The
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

parties had begun preparing the proposed Joint Pre–Trial Order when Court supervised settlement discussions began in earnest. Id., ¶ 13. Class Counsel, along with the named Plaintiffs, were well able to assess their position, having had sufficient time to realistically evaluate the strengths and weaknesses of their claims and the fairness of the proposed Settlement. See In re Marsh & McClennan, 2009 WL 5178546, at *20. Based on the foregoing information, the Plaintiffs here had sufficient information to enter into the agreement and this factor weighs in favor of approving the Settlement.
d. Risks of Establishing Liability *11 “Litigation inherently involves risks.” In re Painewebber Ltd. P’ships Litig., 171 F.R.D. 104, 126 (S.D.N.Y.1997). One of the purposes of a settlement is to avoid the uncertainty of a trial on the merits. Clark, 2010 WL 1948198, at *6; Velez, 2010 WL 4877852, at *14. The trial in the current action would have been lengthy and complicated since Plaintiffs bear the burden of establishing that the positions of the PCO/PCOS are substantially equal in terms of skill, effort and responsibility to the FCT/FCTS. The pay scales for these positions are determined by the Nassau County Civil Service Commission’s grade ranking system and Defendants maintained that the positions are not substantially similar. Defendants further argued that the Plaintiffs were not entitled to vertical upgrades based upon certain provisions of the collective bargaining agreement between Nassau County and the Civil Service Employees Association, Inc. See August 13, 2007 Memorandum & Order of Judge Block, at 3. A trial would have required the Plaintiffs to put on extensive testimony, both fact and expert, explaining the details of these positions. In the absence of a settlement, the Plaintiffs could face a long road to an ultimate determination, including trial, post-trial motions, the adjudication of Class Members’ individual claims and the inevitable appeal. The fourth Grinnell factor therefore weighs in favor of final approval because the Settlement “resolves this significant and cumulative uncertainty in a manner favorable for all.” Velez, 2010 WL 4877852, at *14.
e. Risks of Establishing Damages Under the Settlement, each of the Class Members will receive an award that is indisputably reasonable given the risks and time attendant upon a trial and appeals process. “The determination of a reasonable settlement is not

susceptible of a mathematical calculation yielding a particular sum, but turns on whether the settlement falls within a range of reasonableness. This range of reasonableness recognizes the uncertainties ... in any particular case....” In re MetLife Demutualilzation Litig., 689 F.Supp.2d 297, 340 (E.D.N.Y.2010) (internal quotations omitted). One purpose of a settlement is to avoid the uncertainty of a trial on the merits. Clark, 2010 WL 1948198, at *6. In the instant case, the Plaintiffs have to surmount the liability issues before even getting to damages. Given the bifurcation of this case, Plaintiffs moving into the damages phase would have required significant expenditure of attorneys’ and experts’ time. The only damages not included in the Settlement consist of compensation for the overtime differential and interest. Pls. Mem. at 11; Hr’g Tr. at 10. Based on the method of Defendants’ historic record keeping regarding compensation (through no fault of the Defendants), proving the amount of overtime would have been problematic since “[o]vertime pay was lumped in a general undifferentiated pay category.” Pls. Mem. at 11.
*12 On liability and damages, this case likely would have ended up in a classic “battle of the experts.” With that comes the inherent risk that a jury could be swayed by an expert for the Defendants who could minimize the amount of the Plaintiffs’ losses. In re Marsh & McClennan, 2009 WL 5178546, at *6; Maley, 186 F.Supp.2d at 365. Moreover, the risk that the named Plaintiffs would be unable to establish damages exceeding the $7 million that the Settlement Fund provides to the Class supports the Settlement. Notwithstanding any success that the Plaintiffs might achieve in establishing liability, they have “avoided substantial risks in proving damages by virtue of” this proposed Settlement. In re Marsh & McClennan, 2009 WL 5178546, at *6.
f. The Risks of Maintaining the Class Action Through The Trial The parties here have already litigated the class action certification motion and Defendants’ motion for summary judgment. The class certification motion was strongly contested. Judge Block certified the class on August 13, 2007. The Court notes that earlier this year, the Supreme Court rendered its decision in Wal–Mart v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Like other class actions in the wake of the Wal–Mart case, it would not be unusual for the Defendants to move for de-certification, particularly given the ongoing dispute during discovery regarding the appropriate parameters of
8

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

the class. Pls. Mem. at 11. The Settlement eliminates that risk as well as the expense and delay inherent in such process and, to that extent, this factor weighs in favor of final approval.
g. Ability of Defendants to Withstand a Greater Judgment The Court acknowledges that the Defendants may be able to withstand a higher judgment. The fact that the Defendants are a municipal entity and several of its agencies makes that assessment a bit less black and white, particularly in light of the current fiscal environment and the fact that Nassau County’s finances have been taken over the by the Nassau County Investment Finance Authority (“NIFA”). Based on the circumstances of this specific case, however, and the fact that virtually all of the Grinnell factors weigh in favor of the Settlement, this factor is not determinative and standing alone “does not suggest that the Settlement is unfair.” D’Amato, 236 F.3d at 86; Dupler, 705 F.Supp.2d at 241; Clark, 2010 WL 1948198, at *6.
h. Range of Reasonableness of Settlement Fund in Light of Best Possible Recovery Under the terms of the Settlement, every single Class Member will receive a direct and immediate economic benefit. Each class member will receive dollar-for-dollar the amount of base pay that she lost as a result of the pay disparity between PCO/PCOS and FCT/FCTS as calculated by the Court-appointed expert based on data supplied by Nassau County. Pls. Mem. at 12. What is significant is that each Class Member would not have received more in base pay had this case been litigated through judgment. Id.; Hr’g Tr. at 5. The only compromise made by the Plaintiffs to obtain this result is the foregoing of interest payments on the sums awarded and foregoing payment on the differential on overtime, both of which would have been available had this case been pursued to a successful judgment. Pls. Mem. at 12. The Plaintiffs themselves submit that this is a small sacrifice in exchange for avoiding the potential of several years of risky litigation to achieve that result. Id.; Hr’g Tr. at 10. “Because settlement can provide certain and immediate recovery, courts often approve settlements even where the benefits obtained are less than those originally sought.” Velez, 2010 WL 4877852 at * 14 (collecting cases).

*13 It should be noted that the Plaintiffs have obtained significant and long-lasting relief in that every individual carrying the title of PCO and PCOS going forward benefits from this Settlement. In addition, the named Plaintiffs are each receiving a Service Award of $20,000 for the work, effort and risks that they undertook in pursuing this litigation. The Defendants have also agreed to upgrade immediately any PCO or PCOS not presently in her grade 10 step based on years of service. Goodman Aff. II, Ex. A, ¶ 3.4(a). For all of these reasons, the Settlement is reasonable in light of the maximum possible recovery.
i. Range of Reasonableness of Settlement Fund to a Possible Recovery in Light of All Attendant Risks of Litigation The Court concludes that the Settlement is particularly reasonable for the Class Members in light of the risks of continued litigation discussed above. The Settlement provides complete make whole relief to all Class Members for their loss in base salary. Hr’g Tr. at 5. No Class Member would receive more in back pay for lost base pay had this case been litigated through to a successful judgment. The risk exists, as it would in any litigation, that the Plaintiffs could obtain back pay in amounts less than the Settlement provides. It is also possible that the Plaintiffs could walk away with nothing at all if a jury found that the jobs being compared are not substantially equal in terms of skill, effort and responsibility. Significantly, there is no cost to the Class Members for attorneys’ fees or litigation expenses since those monies are not being taken from the Settlement Fund.
After careful consideration of the Settlement in light of the Grinnell factors, the Court concludes that the Settlement is both procedurally and substantively fair, reasonable and adequate under Rule 23.
C. Attorneys’ Fees and Costs After six years of vigorously contested litigation, the parties to this class action have negotiated a fair and reasonable Settlement. The only remaining issue that the Court must address before approving the Settlement is the motion by the law firm of Eisenberg & Schnell LLP, the Law Offices of Janice Goodman and the Plaintiffs for reasonable attorneys’ fees and costs.
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

1. Attorneys’ Fees “ ‘[W]here an attorney succeeds in creating a common fund from which members of a class are compensated for a common injury inflicted on the class,’ the attorneys whose considerable effort created the fund are entitled to a reasonable fee set by the Court.” Steinberg v. Nationwide Mut. Ins. Co., 612 F.Supp.2d 219, 222 (E.D.N.Y.2009) (quoting Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 47 (2d Cir.2000)). In class actions when determining appropriate counsel fees, courts have used either the lodestar method or awarded fees based on a percentage of the settlement fund. Goldberger, 209 F.3d at 47.
The Court notes that it was only after all of the financial terms of the Settlement were established for the Class Members that the attorneys engaged in negotiations regarding their fees. Goodman Aff. II, ¶ 27. Plaintiffs’ counsel provided the Defendants with a summary of all hours spent on this matter and the nature of the work performed, together with a statement of their usual hourly fees. Id. In addition, contemporaneous time records and expense records were provided to Defendants’ counsel and submitted to the Court. Goodman Aff. II, Exs. C, E; August 23, 2011 Affirmation of Herbert Eisenberg, Esq., in Support of Application for Attorney Fees (“Eisenberg Aff.”) [DE 161], Ex. A.
*14 Class Counsel seek approval of an award of attorney’s fees in the amount of $355,000 for Eisenberg & Schnell LLP and $415,000 for the Law Offices of Janice Goodman, for a total of $770,000. The Defendants have agreed to pay this amount pursuant to the terms of the Settlement. Therefore, at the outset, the Court notes that the requested attorneys’ fees in this case will not be drawn from a common fund, but rather will be paid directly by the Defendants. Consequently, whatever attorneys’ fees are awarded will not reduce or diminish the benefit to the class under the terms of the Settlement, which the Court has already found to be fair, reasonable and adequate. Dupler, 705 F.Supp.2d at 243. Where the attorneys’ fees are to be paid directly by the Defendants and, therefore, “money paid to the attorneys is entirely independent of money awarded to the class, the Court’s fiduciary role in overseeing the award is greatly reduced, because there is no conflict of interest between attorneys and class members.” McBean v. City of N.Y., 233 F.R.D. 377, 392 (S.D.N.Y.2006); Dupler, 705 F.Supp.2d at 243. Plaintiffs seek an additional amount of approximately $1,500 in fees and costs incurred subsequent to the settlement

negotiations in executing the notice of settlement, finalizing the settlement, and for other items set forth in Point IV(C)(2) below. The Defendants consented to paying these additional fees and expenses. See Hr’g Tr. at 15–16.
“In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed.R.Civ.P. 23(h). Notwithstanding the Defendants’ consent to the award of fees, the Court must assess the reasonableness of the award when considering whether the settlement is fair. See Ersler v. Toshiba Am., Inc., No. CV–07–2304, 2009 WL 454354, at *7 (E.D.N.Y. Feb.24, 2009); Dupler, 705 F.Supp.2d at 244. The two methods for determining the reasonableness of a fee request in a settlement are: (1) the lodestar method which multiples the hours reasonably expended on the case by a reasonable hourly rate, and (2) the common fund method in which the amount is calculated as a percentage of the award to the class. See McDaniel v. County of Schenectady, 595 F.3d 411, 417–422 (2d Cir.2010). “The trend in this Circuit is toward the percentage method, which directly aligns the interests of the class and its counsel and provides a powerful incentive for the efficient prosecution and early resolution of litigation.” Wal–Mart Stores, 396 F.3d at 121 (internal quotation omitted). By contrast, the lodestar method as characterized by the Second Circuit “creates an unanticipated disincentive to early settlements, tempts lawyers to run up their hours, and compels district courts to engage in a gimlet-eyed review of line item fee audits.” Id. (internal quotation and brackets omitted). In the instant matter, the Court finds that the requested attorneys’ fees are reasonable under both the percentage method and the lodestar method for the following reasons.
a. Common Fund/Percentage Fee *15 As noted above, the Second Circuit favors awarding fees according to the “percentage of the fund” method in common fund cases. Keeping in mind that this is not a common fund case, Plaintiffs nonetheless submit that if the agreed upon fees were viewed as a percentage of the Settlement, Plaintiffs’ fee award would fall well within the range of reasonable fees approved by the courts in this Circuit. See, e.g., McBean, 233 F.R.D. at 393 (“In common fund cases, awards in the range of 25% are common ... and while this is not a common fund case, the fact that the award here is lower than many awards actually taken from a common fund, at the expense of
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

absent class members, is further evidence of its reasonableness.”); Odom v. Hazen Transport, Inc., No. 10–CV–6304T, 275 F.R.D. 400, 412 (W.D.N.Y.2011) (attorneys’ fees representing 32.6% of the total settlement fund held to be reasonable); Ersler, 2009 WL 454354, at *7 (the award of fees of approximately 25% of the settlement found to be still within the range of reasonableness); Stefaniak v. HSBC Bank, USA, NA, No. 1–05–CV–7205, 2008 WL 7630102, at *3 (W.D.N.Y., June 28, 2008) (finding that fee awards of 33% of the settlement fund is typical of class action settlements in the Second Circuit) (collecting cases); Maley, 186 F.Supp.2d at 369 (approving attorneys’ fees of 33.3% of $11.5 million settlement fund).
As one court in this Circuit has observed
A recent study surveying the award of attorneys’ fees in class action settlements reviewed data on cases nationwide and found that the mean fee award for employment class action settlements is 27 percent of the recovery, and the median is 25 percent of the recovery ... The study notes, however, that those percentages do not account for an important indicator of the fee award—risk. Fee awards for class action in cases that are “low/medium” risk average 26.2 percent of total recovery, and in cases that are “high” risk average 35.1 percent of total recovery.
Velez, 2010 WL 4877852, at *21 (citing Theodore Eisenberg and Geoffrey P. Miller, Attorneys Fees and Expenses in Class Action Settlements: 1993–2008, NYU Center for Law, Economics and Organization, Working Paper No. 09–50 (November 2009) at Table 8). In the instant action, the requested fee award of $770,000 represents, at most, 11% of the $7 million Settlement fund obtained for the Class Members. Class Counsel undertook this case on a contingency fee basis, committed substantial resources to its prosecution, and risked time and effort with no ultimate guarantee that they would be compensated for those efforts. This Court, given its substantial knowledge of this case and its involvement in the full measure of settlement negotiations, places this case right in the middle of the continuum between low/medium risk and high risk. Significantly, looking at

the mean fee award of 27% in this context, the 11% which the attorneys’ fee award represents here is well less than half of that mean.
*16 The fact that the fees requested here are comparable to fees that courts have found reasonable even when taken out of a common fund—and comparatively speaking are significantly less than the percentages awarded in such cases—weighs in favor of the fees’ reasonableness. See Dupler, 705 F.Supp.2d at 244. Likewise, the fact that counsel did not negotiate the issue of attorneys’ fees until after resolving the appropriate settlement fund for the class also weighs in favor of the reasonableness of the fees. Id. All of the factors set forth in Goldberger v. Integrated Res. Inc., 209 F.3d 43, 51 (2d Cir.2000), therefore, weigh in favor of this very reasonable fee award of 11% of the settlement fund.

a. Lodestar Method The Court also finds that the fees requested are reasonable under the lodestar method. Courts have referred to the lodestar comparison as a “cross-check” on the issue of reasonableness. See Velez, 2010 WL 4877852, at *22; Ersler, 2009 WL 454354, at *7. According to the undisputed billing records, Class Counsel have collectively expended more than 1,275 hours2 on this litigation over the course of six years. Plaintiffs’ counsel, Janice Goodman, Esq., spent over 600 hours litigating this action. Goodman Aff. II, ¶ 40. Plaintiffs’ co-counsel, Eisenberg & Schnell LLP, expended over 675 hours of attorney and paralegal time in prosecuting this matter. Eisenberg Aff., ¶ 2. Counsels’ hourly billing rates are $700 and $650 respectively. Goodman Aff. II, ¶ 37; Eisenberg Aff., ¶ 11.

2

Attorneys Goodman and Eisenberg set forth in their

respective affirmations various tasks undertaken in this

case that are well in excess of the 600 and 675 billing

hours they assert for payment, for which they have

agreed not to seek fees.

The remaining hourly rates of Eisenberg & Schnell LLP range from $75 for paralegals to $450 for a senior attorney. Eisenberg Aff., ¶¶ 10, 11. By multiplying the hours reasonably expended by Attorney Goodman (600 hours @ $700 per hour), the Court arrives at a lodestar figure of $420,000. The Settlement document calls for a payment of $415,000 to Attorney Goodman—less than the lodestar figure.3 See Amended Stipulation of
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

Settlement and Release [DE 159], § 3.2(a)(ii). Likewise, the Settlement document also calls for a payment of $355,000 for attorneys’ fees to Eisenberg & Schnell LLP, an amount which the Court approximates to be less than the lodestar figure calculated for the firm.

3

In Arbor Hill Concerned Citizens v. County of Albany,

522 F.3d 182 (2d Cir.2008), the Second Circuit

determined that “[t]he meaning of the term ‘lodestar’

has shifted over time, and its value as a metaphor has

deteriorated to the point of unhelpfulness.” Arbor Hill,

522 F.3d at 190. Further, the Second Circuit reasoned

that “[w]hat the district courts in this circuit produce is

in effect not a lodestar as originally conceived but

rather a ‘presumptively reasonable fee.’ ” Id. at 189.

Regarding the reasonable hourly rate portion of the

presumptively reasonable fee standard, the Second

Circuit has suggested that the district court consider

“what a reasonable, paying client would be willing to

pay” when setting a reasonable hourly rate. Arbor Hill,

522 F.3d at 184.

Although the Defendants have proffered no objection to the proposed hourly rates, the Court believes they are at the very high end of what courts in the Eastern District of New York typically awarded in complex cases.4 Yet, courts have approved, in class actions where the defendants have agreed to pay the specific attorneys’ fees, a lodestar based on billable rates of between $405 and $790 for partners and $270 to $500 for associates. See Steinberg, 612 F.Supp.2d at 224; Ersler, 2009 WL 454354, at *7. As in the instant action, the attorneys’ fees in Steinberg and Ersler were not drawn from the settlement fund but rather were separate and apart from the settlement payments to class members and were consented to by the defendants in those cases. The Court also notes that Class Counsel here have not asked for a lodestar multiplier at all.

4

See, e.g., Unilever Supply Chain, inc. v. I & I

Wholesale Food Inc., No. 10–CV1077, 2011 WL

1113491, at *8 (E.D.N.Y. Feb. 17, 2011), adopted by

2011 WL 1099841 (E.D.N.Y. Mar.24, 2011) (awarding

$440 for partners and $160 to $200 for associates);

Century 21 Real Estate LLC, 666 F.Supp.2d at 299

(awarding $320 for partners and $230 for associates);

Amerisource Corp. v. RxUSA Int’l Inc., No.

02–cv–2514, 2010 WL 2160017, at *11 (E.D.N.Y. May

26, 2010) (awarding between $350 and $400 for

partners and $250 for associates); Luca v. Cty. of

Nassau, 698 F.Supp.2d 296, 303–306 (E.D.N.Y.2010)

(finding $400 to be reasonable rate for experienced

attorney’s services).
*17 As a consideration, the Court also looks to the quality of the representation on behalf of the PCO/PCOS Class Members. To make that determination, courts review, among other things, the backgrounds of the lawyers involved in the lawsuit and the recovery obtained. See Steinberg, 612 F.Supp.2d at 223 (citing Taft v. Ackermans, No. 02 Civ. 7951, 2007 WL 414493, at *10 (S.D.N.Y. Jan 31, 2007)). The quality of the representation in this litigation is evident from the extensive record. Class counsel are well known and well regarded class action employment lawyers who have extensive experience prosecuting and settling employment discrimination and equal pay claims. Attorney Goodman has been in practice for nearly 40 years and her primary area of specialization is employment discrimination litigation, in which she has prosecuted both class actions and individual claims. Goodman Aff. II, ¶ 31–32. She also serves as General Editor of a three volume practitioners’ manual entitled Employee Rights Litigation: Pleadings and Practice, published by Matthew Bender and has taught employment discrimination law at Cardozo Law School, New York Law School and Rutgers Law School. Id., ¶ 34. Both Attorney Goodman and Attorney Eisenberg are Fellows of the College of Labor and Employment Lawyers. Id., ¶ 35; Eisenberg Aff., ¶ 8. Since his admission to the practice of law some 27 years ago, Attorney Eisenberg’s area of specialization has been employment law and employment discrimination litigation, with primary work in actions involving equal pay, sexual harassment, employment contracts and pension benefits. Id., ¶ 4–5. He is a frequent author and lecturer on employment discrimination law topics and has authored multiple amicus briefs on behalf of the National Employment Lawyers Association to the Second Circuit and the New York State Court of Appeals. Id., ¶ 7. The substantial Settlement here reflects the excellent result both counsel have achieved for their clients.
Notwithstanding that result, the Court is mindful of this Circuit’s adherence to the forum rule which states that a district court should generally use the prevailing hourly rates in the district where it sits. See Polk v. N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d Cir.1983). The Second Circuit has since clarified that district courts “may use an out-of-district hourly rate—or some rate in between the out-of-district rate sought and the rates charged by local attorneys—in calculating the
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

presumptively reasonable fee if it is clear that a reasonable, paying client would have paid those higher rates.” Arbor Hill, 522 F.3d at 191. The Second Circuit cautioned that “[w]e presume, however, that a reasonable, paying client would in most cases hire counsel from within his district, or at least counsel whose rates are consistent with those charged locally.” Id. Nevertheless, “[t]his presumption may be rebutted—albeit only in the unusual case—if the party wishing the district court to use a higher rate demonstrates that his or her retention of an out-of-district attorney was reasonable under the circumstances.” Id; Simmons v. New York City Transit Auth., 575 F.3d 170, 175 (2d Cir.2009).
*18 The Court concludes that Class Counsel here has successfully rebutted the presumption. In this regard, Class Counsel state that it is appropriate to recognize their New York County billing rates in this settlement for several reasons. First, Attorney Goodman points out that the Plaintiffs sought her out because she brings special expertise to this case. Goodman Aff. II, ¶ 3 8. Significantly, Attorney Goodman previously represented Police Communications Technicians in New York City in the same type of Equal Pay Act litigation alleging disparity of pay with the New York City Fire Dispatchers. Id.; see Scotti v. The City of New York, 84 Civ. 5462, 1991 U.S. Dist. Lexis 15256 (S.D.N.Y. June 21, 1991). In addition, Plaintiffs’ union representatives, although supportive of Plaintiffs’ position, would not undertake litigation on behalf of the class. Id., ¶ 38. Moreover, Plaintiffs were unable to find competent class action counsel in the area who would undertake the class litigation on a contingency fee basis. Id. Attorney Eisenberg was brought on as co-counsel because of his extensive litigation experience in employment discrimination cases. Pls.’ Mem. at 15. Looking to the totality of the circumstances here, the Court finds that even using counsels’ above average hourly rates, the “presumptively reasonable fee” is nevertheless fair in this context. Here, although there were no guarantees that any fee would be achieved or awarded when Plaintiffs’ counsel took on this action, counsel seek no multiplier above and beyond the presumptively reasonable fee amount which is their current billing rate times the number of hours expended. See Ersler, 2009 WL 454354, at *7.
The Court has also reviewed the contemporaneous time records of each counsel. See Goodman Aff. II, Ex. C; Eisenberg Aff., Ex. A. The Court takes into account as well the sworn statements of counsel that they were “scrupulous to ensure that there was no unnecessary

duplication of work” and that “every effort was made to divide work to avoid overlap.” Goodman Aff. II, ¶ 41. Based upon this Court’s close supervision of this matter, as well as the Court’s review of the billing records, the Court is satisfied that the work done here was necessary and proper, particularly in light of the vigorous defense proffered, as evident in the continuous stream of motion practice. For all of these reasons, Class Counsels’ request for final approval of the negotiated attorneys’ fees in the amount of $770,000 is reasonable and approved.
2. Costs The Court also awards Class Counsel reimbursement of their litigation expenses, including their expert witness fees and transcript costs. Originally, Plaintiffs set forth in the Amended Stipulation of Settlement and Release [DE 159] costs in the amount of $1,846.69 payable to Eisenberg & Schnell, LLP and $128,789.00 payable to the Law Offices of Janice Goodman for costs associated with this matter. The Court has reviewed the detailed statement of costs attached to the affirmations of Plaintiffs’ counsel and finds the costs to be reasonable and necessary to the successful prosecution of this litigation.
*19 At the Fairness Hearing, Plaintiffs’ counsel moved to amend the previously stated costs and to increase the amount slightly based upon the additional costs (i.e., mailing costs, establishing a website for class members to access information in the case, additional court conferences, etc.) which accrued between the time the parties initially agreed to settle and the actual final settlement. See Hr’g Tr. at 15. The total increase was approximately $1,500. Defendants’ counsel consented to the increase at the Fairness Hearing. Id. at 15–16. The Court therefore awards costs in the following amounts which the Court deems to be reasonable: (1) $2,170.66 to Eisenberg & Schnell, LLP and (2) $130,080.98 to the Law Offices of Janice Goodman. “Courts typically allow counsel to recover their reasonable out-of-pocket expenses.” Clark, 2010 WL 1948198, at *9 (citing In re Indep. Energy Holdings PLC Sec. Litig., 302 F.Supp.2d 180, 183 n. 3 (S.D.N.Y.2003)). As noted previously, the Defendants are paying these costs and they shall not be taken from the Settlement Fund.
D. The Settlement Administrator As part of the Settlement, Nassau County is setting aside $50,000 for the Settlement Claims Administrator who
13

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011)

shall process and resolve any challenge filed by a class member who disputes the amount of her award. Amended Stipulation of Settlement and Release [DE 159], §§ 2.16, 3.1(B)(c). These amounts shall be paid from the Settlement Fund. The Court hereby confirms Abigail Pessen as the Settlement Claims Administrator. She shall be paid at a rate of $425 per hour, plus disbursements, with a total maximum of $35,000 for all services rendered. If necessary to conclude calculations, the Settlement Claims Administrator may engage the services of APTMetrics, Inc., up to a maximum of $15,000 for any assistance needed. Id., § 3.3(c). At the conclusion of this matter, the Settlement Claims Administrator shall provde the Court with a full statement of work performed and payments billed and made. Id., § 3.3(d).
E. The Service Awards The Settlement also provides that each named Plaintiff shall be awarded a gross payment of $20,000 as a Service Award for initiating and prosecuting this litigation. See Amended Stipulation of Settlement and Release, Section 3.1(b). Service awards are common in class-action cases. They are “important to compensate plaintiffs for the time and effort expended in assisting the prosecution of the litigation, the risks incurred by becoming and continuing as a litigant, and any other burdens sustained by plaintiff.” Khait v. Whirlpool Corp., No. 06 Civ. 6381, 2010 WL 2025106, at *9 (E.D.N.Y. Jan. 20, 2010) (awarding $15,000 service awards each to five named plaintiffs and $10,000 service awards each to ten other named plaintiffs); Dupler, 705 F.Supp.2d at 245–46 (finding enhancement awards of $25,000 to one plaintiff and $5,000 to a second plaintiff reasonably based on the participation of the two individuals in the action to date); Willix v. Healthfirst, Inc., No. 07 Civ. 1143, 2011 WL 754862, at *7 (E.D.N.Y. Feb. 18, 2011) (finding service awards of $30,000, $15,000 and $7,500 to various plaintiss to be reasonable); Clark, 2010 WL 1948198, at *9 (awarding $10,000 service awards each to seven class representatives). These awards, along with the rest of the Settlement, were negotiated under this Court’s supervision, which carries a presumption that the amounts are reasonable and the result of arm’s-length negotiations. The Court further finds that the Service Awards here “when compared to incentive awards given generally to named plaintiffs across a variety of class actions ... fall solidly in the middle of the range.” McBean, 233 F.R.D. at 391–92 (citing Fears v. Wilhelmina Model Agency,

Inc., No. 02 Civ. 4911, 2005 WL 1041134, at *3 (S.D.N.Y. May 5, 2005 (collecting cases illustrating a range of incentive awards and approving an awards of $25,000). These amounts shall be paid from the Settlement Fund.
V. CONCLUSION *20 For all of the reasons set forth in this Final Order and Judgment (“Final Order”), the Court hereby grants Final Approval of the Amended Stipulation of Settlement and Release (“Settlement Agreement) and directs the following:
1. Within thirty (30) days of this Final Order, Defendants shall make back pay payments to each class member in the amount calculated by the Court-appointed expert.
2. Within thirty (30) days of the entry of this Final Order, Defendants shall pay to each individually named plaintiff twenty thousand ($20,000) dollars.
3. Within thirty (30) days of the entry of this Final Order, Defendants shall set aside fifty thousand ($50,000) dollars to cover the costs of administration of the Settlement Agreement.
4. Within thirty (30) days of the entry of this Final Order, Defendants shall pay class counsel fees as follows: to Eisenberg & Schnell LLP, $355,000; to the Law Offices of Janice Goodman, $415,000.
5. Within thirty (30) days of the entry of this Final Order, Defendants shall reimburse Class Counsel costs as follows: to Eisenberg & Schnell LLP, $2,170.66; to the Law Offices of Janice Goodman, $130,080.98.
6. All claims asserted in the litigation and the claims of all class members who did not opt out are hereby dismissed.
7. This Court shall retain jurisdiction for two (2) years from the date of entry of this Final Order to preside over implementation of any settlement provisions.
SO ORDERED.

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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2011) 15

 
 Ebbert v. Nassau County, Not Reported in F.Supp.2d (2009)

2009 WL 935812 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Helen EBBERT, Pamela Edwards, Isabella Minneci, Wendy Muro, Frances Kamerer, Lori
Conklin and all others similarly situated, Plaintiffs, v.
NASSAU COUNTY, Nassau County Police Department, Nassau County Civil Service Commission and Thomas R. Suozzi, in his official
capacity, Defendants.
No. 05–CV–5445 (FB)(AKT). | March 31, 2009.
Attorneys and Law Firms
Herbert Eisenberg, Esq., Eisenberg & Schnell, LLP, Janice Goodman, Esq., Law Offices of Janice Goodman, New York, NY, for the Plaintiffs.
Lorna B. Goodman, Esq., Nassau County Attorney, by: Lauren Chartan, Esq., Jeannean Rogers, Esq., Ryan Singer, Esq., Deputy County Attorneys, Mineola, NY, for the Defendants.
Opinion

MEMORANDUM AND ORDER

BLOCK, Senior District Judge.
*1 Plaintiffs sue Nassau County (“the County”), alleging violations of the federal Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), the New York State Equal Pay Act (“NYEPA”), N.Y. Lab. Law § 194, and 42 U.S.C. § 1983.1 They allege, in essence, that the County’s Police Communications Officers (“PCOs”) and Police Communications Officer Supervisors (“PCOSs”) are paid less than its Fire Communications Technicians (“FCTs”) and Fire Communications Technician Supervisors (“FCTSs”) for substantially equal work. Over 90% of PCOs and PCOSs are women; 100% of FCTs and FCTSs are men.

1

Plaintiffs have withdrawn their claims against the

Nassau County Police Department, the Nassau County

Civil Service Commission, and Thomas R. Suozzi, in

his official capacity as Nassau County Executive. See

Pls.’ Mem. of Law at 25.

The County now moves for summary judgment. For the following reasons, the motion is granted in part and denied in part.
I. Background
County employees are paid according to a grade-step matrix common to many civil-service systems. For each position, the County’s Civil Service Commission establishes a pay grade. Within each grade are twelve steps roughly corresponding to seniority; generally speaking, an employee moves up one step within his or her pay grade after each year of service until he or she reaches the top of the pay scale after approximately 12 years.
Since at least 1999, FCTs have been classified as Grade 10, and FCTSs as Grade 12. Prior to 2001, PCOs and PCOSs were classified as Grade 7 and Grade 10, respectively. In 2001, PCOs were upgraded to Grade 9 and PCOSs to Grade 11; at the same time, however, PCOs and PCOSs lost several steps in the new pay grades. The reasons for this “downstep” are not clear from the record, but it was obviously contrary to the general rule of a one-step increase per year, which continued for FCTs and FCTSs. Thus, for example, PCO Pamela Edwards went from Grade 7–Step 3 to Grade 9–Step 1, while FCT Joseph Balletta, went from Grade 10–Step 3 to Grade 10–Step 4.
In 2005, PCOs and PCOSs were once again upgraded, to grades 10 and 12, respectively. Although the upgrade brought PCOs and PCOSs to the same pay grade as FCTs and FCTSs, some pay disparities persisted due to the 2001 “downstep”: In 2005, PCO Edwards’s base pay was $47,681 (Grade 10–Step 5), while that of FCT Balletta, her erstwhile contemporary, was $50,782 (Grade 10–Step 8).
In sum, the pay disparities between PCOs and PCOSs, on the one hand, and FCTs and FCTSs, on the other, fall into three categories: Between 1999 and 2001, the disparities were due to the three-level difference in pay grade between PCOs and FCTs and the two-level difference between PCOSs and FCTSs. Between 2001 and 2005, the disparities were due to a one-level difference in pay grade plus the step reduction for PCOs and PCOSs. Since 2005, the disparities have been due solely to the continuing effects of the 2001 step reduction.
In their complaint, dated November 19, 2005, plaintiffs allege that the past and continuing pay disparities violate the EPA and NYEPA because PCOs/PCOSs and
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Ebbert v. Nassau County, Not Reported in F.Supp.2d (2009)

FCTs/FCTSs perform substantially equal work. They seek unpaid wages and liquidated damages from 1999, as well as prospective injunctive relief requiring the County to elevate them to the salary steps occupied by FCTs/FCTSs of equal seniority. Plaintiffs also assert a claim for compensatory and punitive damages under § 1983, on the ground that the disparities amount to intentional sex discrimination.
*2 On August 9, 2007, the Court granted plaintiffs’ motion to have the case proceed as a collective action pursuant to 29 U.S.C. § 216(b) with respect to the EPA claim, and as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) with respect to the NYEPA and § 1983 claims. See Ebbert v. Nassau County, 2007 WL 2295581, at *1 (E.D.N.Y. Aug.9, 2007).
II. EPA/NYEPA
The EPA provides that no employer may
[pay] wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex[.]
29 U.S.C. § 206(d)(1). The NYEPA imposes an identical prohibition. See N.Y. Lab. L. § 194.
Both the EPA and the NYEPA authorize recovery of unpaid wages, attorney’s fees and costs. See 29 U.S.C. § 216(b); N.Y. Lab. L § 198. Both statutes also allow for liquidated damages: The EPA requires liquidated damages in an amount equal to unpaid wages, see 29 U.S.C. § 216(b), unless “the employer shows to the satisfaction of the court that the act or omission giving rise to the action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [EPA].” Id. § 260. The NYEPA requires liquidated damages “equal to twenty-five percent of the total amount of wages found to be due” upon a finding that “the employer’s failure to pay the wage ... was willful.” N.Y. Lab. L. § 198.

To prevail on a claim under the EPA, the plaintiff must prove that “[1] the employer pays different wages to employees of the opposite sex; [2] the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and [3] the jobs are performed under similar working conditions.” Lavin–McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir.2001) (internal quotation marks and citation omitted). The NYEPA requires an identical showing. See, e.g., Hart v. Dresdner Kleinwort Wasserstein Sec., LLC, 2006 WL 2356157, at *5 (S.D.N.Y. Aug.9, 2006). The County argues that plaintiffs have failed to establish the first two elements.
A. “Different Wages to Employees of the Opposite Sex” It is undisputed that, until 2005, the pay scale for PCOs was less than that for FCTs, while the pay scale for PCOSs was less than that for FCTSs. It is also undisputed that because of the 2001 “downstep,” disparities in base pay persist despite the 2005 equalization of the pay scales. The County nevertheless argues that plaintiffs have failed to establish that PCOs and PCOSs were paid less than FCTs and FCTSs.
In support of its contention, the County cites evidence that if overtime and holiday pay are included, certain plaintiffs received total remuneration in excess of certain FCTs. But the EPA and NYEPA speak in terms of rate of pay, not total remuneration. See 29 U.S.C. § 206(d)(1); N.Y. Lab. L. § 194. Thus, while it is true that “wages” includes, inter alia, “premium payments for work on Saturdays, Sundays, holidays, regular days of rest or other days or hours in excess or outside of the employee’s regular days or hours of work,” 29 C.F.R. § 1620.10, it is only the rate at which such payments are made that matters. See id. § 1620.12 (“The term [‘wage rate’] includes the rate at which overtime compensation or other special remuneration is paid as well as the rate at which straight time compensation for ordinary work is paid.”).
*3 As a matter of common sense, total remuneration cannot be the proper point of comparison. If it were, an employer who pays a woman $10 per hour and a man $20 per hour would not violate the EPA or the NYEPA as long as the woman negated the obvious disparity by working twice as many hours. Neither Congress nor the New York Legislature could have intended such an absurd result.
B. “Equal Work on Jobs Requiring Equal Skill, Effort, and Responsibility” With regard to the second element, “the identification of a comparator employed by the same employer and of the
2

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2009)

opposite gender is an indispensable requirement for a plaintiff bringing an Equal Pay Act Claim.” Morris v. Fordham Univ., 2004 WL 906248, at *4 (S.D.N.Y. Apr.28, 2004). However, “a plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are substantially equal in skill, effort, and responsibility.” Levin–McEleney, 239 F.3d at 480 (citation, internal quotation marks and alterations omitted). The focus is on “job content and not job title or description.” Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The Second Circuit has repeatedly admonished that “[w]hether two positions are ‘substantially equivalent’ for Equal Pay Act purposes is a question for the jury.” Lavin–McEleney, 239 F.3d at 480; see also Tomka, 66 F.3d at 1311 (“[I]t is for the trier of fact to decide if [there] is a significant enough difference in responsibility to make the jobs unequal.”).
As an initial matter, the County argues that plaintiffs cannot identify any appropriate male comparators because PCOs/PCOSs and FCTs/FCTSs “work in entirely different divisions” and are, therefore, supervised by different commanding officers. Defs.’ Mem. of Law. at 25. While different work units and supervisors can make comparisons inapt, that is only true when the differences bear on the nature of the work performed. See Lavin–McEleney, 239 F.3d at 480 (distinguishing cases “in which courts found that the plaintiff had offered insufficient evidence that jobs in different departments were substantially equal”). No case stands for the proposition that a woman performing the same job as a man cannot make a valid comparison simply because she works in a different department.
The County next argues that a prior decision of this Court forecloses, as a matter of stare decisis, plaintiffs’ claim that PCOs perform substantially equal work as FCTs. In AFSCME v. County of Nassau, 799 F.Supp. 1370 (E.D.N.Y.1992), Judge Glasser concluded that “the differences in responsibilities and in independent judgment required for these two positions—as well as the differences in training and in experience—establish that the job titles of police communications operator and of fire communications technician are not substantially similar.” Id. at 1408. Importantly, however, Judge Glasser’s determination was a finding of fact made after a bench trial. See id. at 1373. “The doctrine of stare decisis does not apply to the determination of the facts of a case.” 18 James Wm. Moore et al., Moore’s Federal Practice ¶ 134.05[3] (3d ed.1999).
*4 The Court must, therefore, reach the crux of the parties’ dispute—whether PCOs/PCOSs and FCTs/FCTSs perform substantially equal work. Plaintiffs have offered ample evidence that PCOs and PCOSs perform essentially

the same functions and tasks as FCTs and FCTSs: Both answer emergency calls, take information regarding the nature of the emergency and enter the information into a computer system, which identifies the appropriate response protocol. Both then dispatch emergency personnel, if appropriate.
In response, the County points out several differences between PCOs and PCOSs, on the one hand, and FCTs and FCTSs, on the other:
• FCTs and FCTSs are required to have five years’ experience as a volunteer fire fighter, while PCOs and PCOSs must have only two years’ experience in radio or telephone communications.
• PCOs and PCOSs receive mandatory breaks, including one hour-long lunch break, four 30–minute breaks and one 15–minute “floating break,” while FCTs and FCTSs receive only one 45–minute break at the discretion of their supervisor.
• FCTs and FCTSs are always on call, while PCOs and PCOSs are required to work only their scheduled shifts.
• FCTs and FCTSs are qualified to provide medical assistance to callers, while PCOs and PCOSs must forward requests for medical assistance to another unit.
• FCTs and FCTSs operate a “Field Communications Vehicle,” which is used as a remote communications center at emergency sites.
These differences may certainly be presented to a jury as grounds for a finding that PCOs/PCOSs and FCTs/FCTSs do not perform substantially equal work. They are not determinative, however, because there is evidence in the record that tends to counterbalance them. For example, it is far from clear that the requirement of five years’ service as a volunteer firefighter has a significant bearing on actual job performance apart from the amorphous “knowledge of what [the on-site emergency personnel] are going into and the stress they are about to undertake if there is a fire.” Spaulding Dep. at 23. The increased availability of breaks for PCOs and PCOSs is arguably offset by (a) the much greater call volume that PCOs and PCOSs handle, and (b) a requirement that they work an extra 12–hour shift every seven weeks to make up that time. With respect to the differences in job responsibilities, the Field Communications Vehicle is rarely used, and some FCTs/FCTSs have never been called upon to operate it. The medical assistance provided by FCTs and FCTSs is largely limited to reading a computer-generated response based on information taken from the caller, see Albers Dep. at 131 (“You must read directly what’s on the card, which is the same as the
3

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2009)

computer. It must be line by line. You cannot make anything up.”); moreover, while PCOs and PCOSs do not perform that identical task, they provide non-medical assistance to callers in equally high-stress situations.
The Court also finds relevant that in connection with the 2005 upgrade, County Executive Thomas Suozzi issued a press release recognizing that “female 911 operators ... have historically been paid less than their male counterparts in fire communication,” Eisenberg Affirmation, Ex. C; the press release further stated: “Today we are calling for equal pay for equal work—it’s the right thing to do.” Id. This is at least some evidence that the County thought that PCOs/PCOSs and FCTs/FCTSs were performing substantially equal work. See Fed.R.Evid. 801(d)(2)(D) (“A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship”); Zaken v. Boerer, 964 F.2d 1319, 1323 (2d Cir.1992) (holding that statement by company’s vice president “that [an employee] was fired because of her pregnancy was admissible against [the company] under Rule 801(d)(2)(D)”). While the County’s voluntary action is to be commended, the effects of the disparities still remain. In addition, a jury could reasonably find that the pay scales should have been equalized sooner.
*5 The Court is well aware that in some cases “two positions may be so different ... that no reasonable juror could conclude that they are ‘substantially equal.’ “ Drury v. Waterfront Media, Inc. ., 2007 WL 737486, at *3 (S.D.N.Y. Mar.8, 2007); see also Guglielmo v. Marchon Eyewear, Inc., 2006 WL 398617, at *8 (E.D.N.Y. Feb.16, 2006) (“[N]o reasonable juror faced with the record in this action could conclude that Plaintiff and Squillace performed equal work at Marchon.”). Based on the record in this case, however, the Court cannot say that the differences are sufficiently great to decide the issue as a matter of law.
C. The County’s Affirmative Defenses
1. “Factor Other Than Sex” Defense Once a plaintiff makes out a prima facie violation of the EPA, “the burden of persuasion shifts to the defendant to show that the wage disparity is justified by one of the affirmative defenses provided under the Act: ‘(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.’ “ Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir.1999) (quoting 29 U.S.C. § 206(d)(1)). “[T]o establish the ‘factor other than sex’ defense, an employer must also demonstrate that it had a legitimate business reason for

implementing the gender-neutral factor that brought about the wage differential.” Id. “[T]he plaintiff may counter the employer’s affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination.” Id.
The County argues that the pay disparity between PCOs/PCOSs and FCTs/FTCSs results from the requirement, noted above, that FCTs and FTCSs have five years’ experience in a volunteer fire department. Because FCTs and FTCSs have that additional training and experience, the argument goes, they are able to command a higher wage in the workforce.
Because the County bears the burden of proving its affirmative defense, see Belfi, 191 F.3d at 136, it “cannot attain summary judgment unless the evidence ... on that issue is conclusive.” Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir.1998); accord Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (“[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” (alteration omitted)). The record does not conclusively establish either that the pay disparities were due to the experience requirement for FCTs and FCTSs, or that the experience requirement was instituted for a valid business reason, and not as a pretext for sex discrimination.
2. Statute of Limitations A claim under the EPA “shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a). To demonstrate willfulness and avail themselves of the extended statute of limitations, plaintiffs must prove “that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988).
*6 The parties dispute whether there is sufficient evidence of willfulness. The County argues that it maintained disparate pay scales in reasonable reliance on Judge Glasser’s 1992 finding that the disparity did not violate the EPA. Plaintiffs respond that Suozzi’s 2005 demonstrate that the County was aware that the disparate pay scales were unlawful.
Whether plaintiffs’ EPA claims are subject to a two-year or a three-year statute of limitations, their NYEPA claims will reach back six years. See N.Y. Lab. Law § 198
4

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2009)

(“[A]n action to recover upon a liability imposed by this article must be commenced within six years.”). Accordingly, plaintiffs will be allowed to present evidence of pay disparities going back six years prior to the filing of the complaint—that is, to 1999—regardless of whether the disparities were the result of willful violations of the law.
At some point, of course, the willfulness issue will need to be resolved because it will affect (1) whether double damages under the EPA will be based on total unpaid wages going back to 2003 or 2002, and (2) whether 25% damages for the remainder of the period since 1999 will be available under the NYEPA. As the County recognizes, however, its statute of limitations defense affects only the amount of damages each plaintiff may recover. Since the parties have agreed to bifurcate this action into liability and damages phases, the Court will wait until the end of the liability phase to determine whether there is sufficient evidence of wilfullness to submit the issue to the jury.
III. § 1983 Under the EPA and NYEPA, “proof of the employer’s discriminatory intent is not necessary for the plaintiff to prevail on her claim.” Belfi, 191 F.3d at 136. By contrast, plaintiffs’ § 1983 claim alleges that “[t]he acts, practices and policies of [the County] constitute ongoing intentional discrimination against the individual plaintiffs and the plaintiff class in violation of 42 U.S.C. § 1983.” Compl. ¶ 37. While this allegation is not a model of clarify, its reference to “intentional discrimination” suggests that plaintiffs rely on the Equal Protection Clause of the Fourteenth Amendment.
Employment discrimination claims under the Equal Protection Clause are evaluated under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004). The Second Circuit recently described that framework as follows:
[T]he plaintiff bears the initial burden of establishing a prima facie case of discrimination.... If the plaintiff does so, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its action .... If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer’s determination was in fact the result of ... discrimination.

*7 Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir.2008) (citations and internal quotation marks omitted). “Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ “ Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). “[I]n attempting to satisfy this burden, the plaintiff ... must be afforded the ‘opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ “ Id. (quoting Burdine, 450 U.S. at 253).
To make out a prima facie case of unlawful discrimination, plaintiffs must show: “(1) that [they] belonged to a protected class; (2) that [they were] qualified for the position[s they] held; (3) that [they] suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Holcomb, 521 F.3d at 138. This burden is “not onerous.” Burdine, 450 U.S. at 253.
Plaintiffs devote only two pages of their memorandum of law to defending their § 1983 claim. The only specific piece of evidence they point to is—once again—Suozzi’s 2005 statements. As set forth above, the Court agrees that those statements are some evidence that the County considers PCOs/PCOSs and FCTs/FCTSs to be performing substantially equal work and, arguably, also shows awareness that the disparity in pay scales violated the EPA. They do not, however, suggest that the County established or maintained those pay scales based on discriminatory animus towards women, particularly since the scales are set, not by Suozzi, but by the County’s Civil Service Commission. The Court concludes, therefore, that the statements are not sufficient to establish the fourth element of a prima facie case of intentional discrimination under the Equal Protection Clause.
IV. Conclusion
The County’s motion for summary judgment is granted with respect to plaintiffs’ § 1983 claim, which is, accordingly, dismissed. As to plaintiffs’ EPA and NYEPA claims, the County’s motion is denied.
SO ORDERED.
	  
5

Ebbert v. Nassau County, Not Reported in F.Supp.2d (2009) 6

 
 Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

This docket is current through 08/27/2014

Current Date: 2/9/2019

Source:

U.S. District Court, Eastern District of New York (Brooklyn)

Court:

U.S. District Court, Eastern District of New York (Brooklyn)

Case Title:

Ebbert et al v. Nassau County et al

Case:

1:05-CV-05445

Judge:

Magistrate Judge A. Kathleen Tomlinson

Date Filed:

11/18/2005

Date Closed/Terminated:

01/13/2012

Case Status:

CLOSED

CASE INFORMATION
Case Number: Jury Demand: Nature of Suit: Key Nature of Suit: Key Nature of Suit: Jurisdiction: Cause:

1:05CV05445 None Civil Rights: Other Civil Rights (440) Civil Rights; Other Federal Civil Rights (110.45) Class Action (115) Federal Question 29 USC 206 Collect Unpaid Wages

PARTICIPANT INFORMATION

New York State Department of Civil Service

Type: Attorney: Status: Firm Name: Attorney Address:

Movant
Katherine E. Timon
LEAD ATTORNEY; ATTORNEY TO BE NOTICED
Office of the Attorney General State of Florida
Division of Economic Crimes 135 West Central Boulevard Suite 1000 Orlando, FL 32801

1

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Attorney Phone: Attorney Fax: Email Address:

407-245-0833 407-245-0365 Katherine.Timon@myfloridalegal.com

Helen Ebbert
Type: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

Plaintiff Herbert Eisenberg LEAD ATTORNEY; ATTORNEY TO BE NOTICED Eisenberg & Schnell, LLP 233 Broadway Suite 2704 New York, NY 10279 212-966-8900 212-966-2505 Herbeisen@aol.com Janice Goodman LEAD ATTORNEY; ATTORNEY TO BE NOTICED Law Offices of Janice Goodman 350 Seventh Avenue Suite 1800 New York, NY 10001 212-869-1940 212-419-1510 jg@janicegoodmanlaw.com

Pamela Edwards
Type: Attorney: Status: Firm Name: Attorney Address:
2

Plaintiff Herbert Eisenberg LEAD ATTORNEY; ATTORNEY TO BE NOTICED Eisenberg & Schnell, LLP 233 Broadway Suite 2704

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

New York, NY 10279 212-966-8900 212-966-2505 Herbeisen@aol.com Janice Goodman LEAD ATTORNEY; ATTORNEY TO BE NOTICED Law Offices of Janice Goodman 350 Seventh Avenue Suite 1800 New York, NY 10001 212-869-1940 212-419-1510 jg@janicegoodmanlaw.com

Isabella Minneci
Type: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax:
3

Plaintiff Herbert Eisenberg LEAD ATTORNEY; ATTORNEY TO BE NOTICED Eisenberg & Schnell, LLP 233 Broadway Suite 2704 New York, NY 10279 212-966-8900 212-966-2505 Herbeisen@aol.com Janice Goodman LEAD ATTORNEY; ATTORNEY TO BE NOTICED Law Offices of Janice Goodman 350 Seventh Avenue Suite 1800 New York, NY 10001 212-869-1940 212-419-1510

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Email Address:

jg@janicegoodmanlaw.com

Wendy Muro
Type: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

Plaintiff Herbert Eisenberg LEAD ATTORNEY; ATTORNEY TO BE NOTICED Eisenberg & Schnell, LLP 233 Broadway Suite 2704 New York, NY 10279 212-966-8900 212-966-2505 Herbeisen@aol.com Janice Goodman LEAD ATTORNEY; ATTORNEY TO BE NOTICED Law Offices of Janice Goodman 350 Seventh Avenue Suite 1800 New York, NY 10001 212-869-1940 212-419-1510 jg@janicegoodmanlaw.com

Frances Kamerer
Type: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone:
4

Plaintiff
Herbert Eisenberg
LEAD ATTORNEY; ATTORNEY TO BE NOTICED
Eisenberg & Schnell, LLP
233 Broadway Suite 2704 New York, NY 10279
212-966-8900

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Attorney Fax: Email Address: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

212-966-2505 Herbeisen@aol.com Janice Goodman LEAD ATTORNEY; ATTORNEY TO BE NOTICED Law Offices of Janice Goodman 350 Seventh Avenue Suite 1800 New York, NY 10001 212-869-1940 212-419-1510 jg@janicegoodmanlaw.com

Lori Conklin
Party Description:
Type: Attorney: Status: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

and all others similarly situated
Plaintiff Herbert Eisenberg LEAD ATTORNEY; ATTORNEY TO BE NOTICED Eisenberg & Schnell, LLP 233 Broadway Suite 2704 New York, NY 10279 212-966-8900 212-966-2505 Herbeisen@aol.com

Nassau County
Type: Attorney: Status: Attorney Address:
5

Defendant Carl S. Sandel
LEAD ATTORNEY; ATTORNEY TO BE NOTICED Office of the Nassau County Attorney One West Street

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Attorney Terminated: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:
6

Mineola, NY 11501
516-571-3013
516-571-3058
Barbara E. Van Riper
ATTORNEY TO BE NOTICED
Office of the Nassau County Attorney One West Street Mineola, NY 11501
516-571-3032
516-571-6604
bvanriper@nassaucountyny.gov
Jennean R. Rogers
ATTORNEY TO BE NOTICED
Office of the County Attorney, County of Nassau Ralph G. Caso Executive and Legislative Building One West Street Mineola, NY 11501-4820
516-571-3933
516-571-3058
Lauren Seides Chartan
ATTORNEY TO BE NOTICED
Nassau County Attorney One West Street Mineola, NY 11501
516-571-6083
516-571-3058
Peter J. Famighetti
TERMINATED: 07/20/2010
Borelli and Associates, PLLC
1010 Northern Blvd. Ste. 328 Great Neck, NY 11021
516-248-5550
516-248-6027
pjf@employmentlawyernewyork.com

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Nassau County Police Department

Type: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Attorney Terminated:
7

Defendant
Carl S. Sandel
LEAD ATTORNEY; ATTORNEY TO BE NOTICED
Office of the Nassau County Attorney One West Street Mineola, NY 11501
516-571-3013
516-571-3058
Barbara E. Van Riper
ATTORNEY TO BE NOTICED
Office of the Nassau County Attorney One West Street Mineola, NY 11501
516-571-3032
516-571-6604
bvanriper@nassaucountyny.gov
Jennean R. Rogers
ATTORNEY TO BE NOTICED
Office of the County Attorney, County of Nassau Ralph G. Caso Executive and Legislative Building One West Street Mineola, NY 11501-4820
516-571-3933
516-571-3058
Lauren Seides Chartan
ATTORNEY TO BE NOTICED
Nassau County Attorney One West Street Mineola, NY 11501
516-571-6083
516-571-3058
Peter J. Famighetti
TERMINATED: 07/20/2010

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

Borelli and Associates, PLLC
1010 Northern Blvd. Ste. 328 Great Neck, NY 11021
516-248-5550
516-248-6027
pjf@employmentlawyernewyork.com

Nassau County Civil Service Commission

Type: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Email Address: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney:

Defendant
Carl S. Sandel
LEAD ATTORNEY; ATTORNEY TO BE NOTICED
Office of the Nassau County Attorney One West Street Mineola, NY 11501
516-571-3013
516-571-3058
Barbara E. Van Riper
ATTORNEY TO BE NOTICED
Office of the Nassau County Attorney One West Street Mineola, NY 11501
516-571-3032
516-571-6604
bvanriper@nassaucountyny.gov
Jennean R. Rogers
ATTORNEY TO BE NOTICED
Office of the County Attorney, County of Nassau Ralph G. Caso Executive and Legislative Building One West Street Mineola, NY 11501-4820
516-571-3933
516-571-3058
Lauren Seides Chartan

8

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Attorney Terminated: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

ATTORNEY TO BE NOTICED
Nassau County Attorney One West Street Mineola, NY 11501
516-571-6083
516-571-3058
Peter J. Famighetti
TERMINATED: 07/20/2010
Borelli and Associates, PLLC
1010 Northern Blvd. Ste. 328 Great Neck, NY 11021
516-248-5550
516-248-6027
pjf@employmentlawyernewyork.com

Thomas R. Souzzi
Party Description:
Type: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax:
9

in his official capacity
Defendant Carl S. Sandel LEAD ATTORNEY; ATTORNEY TO BE NOTICED Office of the Nassau County Attorney One West Street Mineola, NY 11501 516-571-3013 516-571-3058 Barbara E. Van Riper ATTORNEY TO BE NOTICED Office of the Nassau County Attorney One West Street Mineola, NY 11501 516-571-3032 516-571-6604

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

Email Address: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Status: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Attorney Terminated: Firm Name: Attorney Address:
Attorney Phone: Attorney Fax: Email Address:

bvanriper@nassaucountyny.gov
Jennean R. Rogers
ATTORNEY TO BE NOTICED
Office of the County Attorney, County of Nassau Ralph G. Caso Executive and Legislative Building One West Street Mineola, NY 11501-4820
516-571-3933
516-571-3058
Lauren Seides Chartan
ATTORNEY TO BE NOTICED
Nassau County Attorney One West Street Mineola, NY 11501
516-571-6083
516-571-3058
Peter J. Famighetti
TERMINATED: 07/20/2010
Borelli and Associates, PLLC
1010 Northern Blvd. Ste. 328 Great Neck, NY 11021
516-248-5550
516-248-6027
pjf@employmentlawyernewyork.com

CALENDAR INFORMATION
View Calendar Information

DOCKET PROCEEDINGS (215)

Entry #:

Date:

174

07/19/2012

10

Description:
Minute Entry for proceedings held ViewBatch Download before Magistrate Judge A. Kathleen Tomlinson: Show Cause Hearing held on 7/19/2012. The Court’s

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

173
172 171 170 169 168
11

07/11/2012
07/11/2012 06/15/2012 03/23/2012 03/22/2012 03/16/2012

findings and rulings are set forth in the ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 7/19/12. (Tomlinson, A.) (Entered: 07/19/2012)

ORDER TO SHOW CAUSE Show

ViewBatch Download

Cause Hearing set for 7/19/2012 in

Courtroom 910 before Magistrate

Judge A. Kathleen Tomlinson. SEE

ATTACHED ORDER. Ordered by

Magistrate Judge A. Kathleen

Tomlinson on 7/11/2012. (Sofio,

Lisa) (Entered: 07/11/2012)

Letter by Helen Ebbert (Goodman, ViewBatch Download Janice) (Entered: 07/11/2012)

ORDER re Settlement. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/15/2012. (Sofio, Lisa) (Entered: 06/15/2012)

ViewBatch Download

AMENDMENT TO STIPULATION OF SETTLEMENT. (So Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/23/12). (Montero, Edher) (Entered: 03/23/2012)

ViewBatch Download

STIPULATION of Settlement Amendment by Helen Ebbert (Eisenberg, Herbert) (Entered: 03/22/2012)

ViewBatch Download

Minute Entry for proceedings held ViewBatch Download before Magistrate Judge A. Kathleen Tomlinson: Status Conference held on 3/15/2012. SEE ATTACHED ORDER. (Sofio, Lisa) (Entered: 03/16/2012)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

167
166 165 164
12

03/05/2012
02/27/2012 02/24/2012 02/10/2012 01/13/2012

Minute Entry for proceedings held ViewBatch Download before Magistrate Judge A. Kathleen Tomlinson: Court-ordered Conference held on 3/5/2012 regarding compliance with Settlement. SCHEDULING: The next conference will be held by telephone on March 15, 2012 at 2 p.m. Plaintiffs’ counsel is requested to initiate the call to Chambers. The lengthy rulings issued at today’s conference are set forth in the ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 3/5/12. (Tomlinson, A.) (Entered: 03/05/2012)

SCHEDULING ORDER: The Court has received Plaintiffs’ February 24, 2012 letter. In light of the issues raised therein, the Court is setting an in-person conference for Monday, March 5, 2012 at 11:00 a.m. Ordered by Magistrate Judge A. Kathleen Tomlinson on 2/27/2012. (Sofio, Lisa) (Entered: 02/27/2012)

Letter by Helen Ebbert (Goodman, ViewBatch Download Janice) (Entered: 02/24/2012)

Letter by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi (Van Riper, Barbara) (Entered: 02/10/2012)

ViewBatch Download

CLERK’S JUDGMENT in favor of Frances Kamerer, Helen Ebbert, Isabella Minneci, Lori Conklin, Pamela Edwards, Wendy Muro

ViewBatch Download

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

163 162
13

12/22/2011 09/14/2011

against Nassau County, Nassau County Civil Service Commission, Nassau County Police Department(Signed by Cathy Vukovich, Deputy Clerk on 1/13/2012). (Montero, Edher) (Entered: 01/18/2012)

FINAL ORDER granting 148 Plaintiffs’ ViewBatch Download Motion For Certification of Settlement Class, Final Approval of A Class Action Settlement, and an Award of Attorneys’ Fees, Reimbursement of Expenses and Service Awards. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 12/22/2011. (Tomlinson, A.) (Main Document 163 replaced on 12/27/2011) (Montero, Edher). Modified on 1/18/2012 (Montero, Edher). (Entered: 12/22/2011)

NOTICE OF FILING OF OFFICIAL

ViewBatch Download

TRANSCRIPT of Proceedings held on

AUGUST 30, 2011,CIVIL CAUSE FOR

STATUS CONFERENCE HELD before

MAG. JUDGE A. KATHLEEN

TOMLINSON. Court

Reporter/Transcriber LEWIS

PARHAM @ WRITER’S CRAMP, INC.

6 NORTON ROAD MONMOUTH Jct.,

NJ 08852, Telephone number LEWIS

PARHAM (732) 329-0191. Tape

Number: FTR/DRIVE/TIME: 11:23-.

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

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

161 160 159 158
14

08/23/2011 08/23/2011
08/16/2011 08/12/2011 08/12/2011

obtained through PACER. Redaction Request due 10/5/2011. Redacted Transcript Deadline set for 10/17/2011. Release of Transcript Restriction set for 12/13/2011.KEITH ANGELO JONES. (Jones, Keith) (Entered: 09/14/2011)

NOTICE of Settlement for Final Approval Affirmation in support by Helen Ebbert (Eisenberg, Herbert) (Entered: 08/23/2011)

ViewBatch Download

NOTICE of Settlement for Final Approval by Helen Ebbert (Attachments: # 1 Affidavit in Support, # 2 Memorandum in Support) (Goodman, Janice) (Entered: 08/23/2011)

ViewBatch Download

STIPULATION --Amended Stipulation ViewBatch Download of Settlement and Release by Helen Ebbert (Eisenberg, Herbert) (Entered: 08/16/2011)

Letter by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department (Van Riper, Barbara) (Entered: 08/12/2011)

ViewBatch Download

SCHEDULING ORDER: Telephone Conference set for 8/12/2011 at 3:00 p.m. Counsel for Plaintiffs is directed to get all parties on the line and initiate the call to Chambers. Ordered by Magistrate Judge A. Kathleen Tomlinson on 8/12/2011. (Reifman, Marli) (Entered: 08/12/2011)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

157
156
155 154 153
15

08/11/2011 08/05/2011
08/04/2011 08/02/2011
07/28/2011 06/22/2011 06/21/2011

Letter by Helen Ebbert (Eisenberg, ViewBatch Download Herbert) (Entered: 08/11/2011)

ORDER re 155 Letter filed by Helen Ebbert, 156 Letter filed by Nassau County. The Court trusts that the letter from Deputy County Attorney Van Riper [DE 156] resolves the immediate issues raised by Plaintiffs. Ordered by Magistrate Judge A. Kathleen Tomlinson on 8/5/2011. (Reifman, Marli) (Entered: 08/05/2011)

Letter by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department (Van Riper, Barbara) (Entered: 08/04/2011)

ViewBatch Download

ORDER re 155 Letter filed by Helen Ebbert. Counsel for Defendants is directed to respond via ECF to the issues raised in Plaintiff’s recent letter [DE 155] on or before August 4, 2011. Ordered by Magistrate Judge A. Kathleen Tomlinson on 8/2/2011. (Reifman, Marli) (Entered: 08/02/2011)

Letter by Helen Ebbert (Eisenberg, ViewBatch Download Herbert) (Entered: 07/28/2011)

CONSENT to Jurisdiction by US Magistrate Judge. Case reassigned to Magistrate Magistrate Judge A. Kathleen Tomlinson. (Chee, Alvin) (Entered: 06/22/2011)

ViewBatch Download

ORDER granting 152 Motion for

ViewBatch Download

Leave to File (Ordered by Magistrate

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

152 151 150 149
16

06/20/2011 06/20/2011 06/15/2011
06/15/2011 06/13/2011

Judge A. Kathleen Tomlinson on 6/21/11). (Montero, Edher) (Entered: 06/21/2011)

MOTION for Leave to File Notice to ViewBatch Download Class by Helen Ebbert. (Goodman, Janice) (Entered: 06/20/2011)

CONSENT to Jurisdiction by US

ViewBatch Download

Magistrate Judge by Nassau County,

Nassau County Civil Service

Commission, Nassau County Police

Department. (Van Riper, Barbara)

(Entered: 06/20/2011)

Minute Entry for proceedings held ViewBatch Download before Magistrate Judge A. Kathleen Tomlinson:Telephone Conference held on 6/15/2011. SCHEDULING: The Fairness Hearing regarding the settlement of this matter is now set for August 30, 2011. SEE ATTACHED ORDER FOR FURTHER INFORMATION. (Reifman, Marli) (Entered: 06/15/2011)

CONSENT to Jurisdiction by US Magistrate Judge by Helen Ebbert. (Eisenberg, Herbert) (Entered: 06/15/2011)

ViewBatch Download

SCHEDULING ORDER: Telephone Conference set for 6/15/2011 at 4:00 PM before Magistrate Judge A. Kathleen Tomlinson. Counsel for Plaintiffs is directed to provide the Court with a call-in number prior to the conference. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/13/2011. (Reifman, Marli) (Entered: 06/13/2011)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

148 147 146
17

06/10/2011
06/09/2011 06/09/2011 05/16/2011 05/13/2011

ELECTRONIC ORDER REFERRING: Plaintiff’s motion 148 for approval of their classs settlement to MJ Tomlinson to hold a fairness hearing with proposed class memebers as to the settlement and issue a report and recommendation as to the proposed class settlement. There will be no formal order mailed to counsel. Ordered by Senior Judge Frederic Block on 6/10/2011. Motions referred to A. Kathleen Tomlinson. (Innelli, Michael) (Entered: 06/10/2011)

MOTION for Settlement Preliminary ViewBatch Download Approval of Agreement by Helen Ebbert. (Attachments: # 1 Affidavit, # 2 Memorandum in Support) (Goodman, Janice) (Entered: 06/09/2011)

NOTICE of Settlement Motion for Preliminary Approval of Class Settlement by Helen Ebbert (Goodman, Janice) (Entered: 06/09/2011)

ViewBatch Download

Minute Entry for proceedings held ViewBatch Download before Magistrate Judge A. Kathleen Tomlinson:Telephone Conference held on 5/16/2011. SCHEDULING: After hearing from counsel for both sides today, I am setting another conference by telephone for May 20, 2011. SEE ATTACHED ORDER (Reifman, Marli) (Entered: 05/16/2011)

ORDER: For the moment, I am

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

145 144 143 142
18

05/12/2011 05/12/2011 05/04/2011
03/07/2011

converting the May 16, 2011 in-person conference to a telephone conference. It is my understanding that Mr. Ciampoli is not available. However, I will speak with all other counsel at that time. Ordered by Magistrate Judge A. Kathleen Tomlinson on 5/13/2011. (Reifman, Marli) (Entered: 05/13/2011)
Letter by Helen Ebbert (Goodman, ViewBatch Download Janice) (Entered: 05/12/2011)
Letter from Nassau County Attorney ViewBatch Download John Ciampoli by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi (Van Riper, Barbara) (Entered: 05/12/2011)
ORDER. Counsel for all parties are ViewBatch Download directed to appear for a conference on May 16, 2011 at 1:00 p.m. SEE ATTACHED ORDER for further directives. Ordered by Magistrate Judge A. Kathleen Tomlinson on 5/4/2011. (Reifman, Marli) (Entered: 05/04/2011)
Minute Entry for proceedings held ViewBatch Download before Magistrate Judge A. Kathleen Tomlinson:Telephone Conference held on 3/7/2011. Counsel for the parties reported on their progress today. It was agreed that counsel will contact me at intervals to update me on their status. SEE ATTACHED ORDER. (Reifman, Marli) (Entered: 03/07/2011)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

141

03/03/2011

Minute Entry for proceedings held ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Telephone Conference

held on 3/2/2011. SCHEDULING:A

telephone conference is set for

March 7, 2011. THE FOLLOWING

RULINGS WERE MADE:Counsel for

the parties contacted Chambers

today regarding one item from the

terms of the settlement agreement

that needed further resolution. It is

the Court’s belief that this issue is

capable of resolution in the very

short term. I will speak with counsel

again on March 7 with the

expectation that such resolution has

been accomplished. SEE ATTACHED

ORDER. (Reifman, Marli) (Entered:

03/03/2011)

03/02/2011

SCHEDULING ORDER: Telephone Conference set for 3/2/2011 at 04:30 PM before Magistrate Judge A. Kathleen Tomlinson. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/2/2011. (Reifman, Marli) (Entered: 03/02/2011)

140

02/28/2011

Minute Entry for proceedings held ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Telephone Conference

held on 2/28/2011. Counsel for the

parties reported today that the

settlement agreement has now

been finalized. SEE ATTACHED

ORDER. (Reifman, Marli) (Entered:

02/28/2011)

19

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

139 02/25/2011 138 02/09/2011 137 01/27/2011
20

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Telephone Conference held

on 2/25/2011. SCHEDULING: The next

conference will be held by telephone on

Monday, February 28, 2011; THE

FOLLOWING RULINGS WERE MADE:

Counsel advised today that there is one

final item of business to be resolved and

that will occur today. We will reconvene

by telephone on Monday morning, at

which time the Court expects that

Defendants’ counsel will be prepared to

confirm that all items are now resolved.

(Reifman, Marli) (Entered: 02/25/2011)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Settlement Conference held

on 2/8/2011. SCHEDULING: A telephone

status conference is now scheduled for

February 25, 2011. THE FOLLOWING

RULINGS WERE MADE: The final pieces

of the settlement agreement were

worked out during today’s conference.

We have set a control date of February

25 for a conference to ensure that the

process is moving forward. (Reifman,

Marli) (Entered: 02/09/2011)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson: Counsel for all sides present.

Settlement Status Conference (by

telephone) held on 1/27/2011 at 11:30

a.m. (Settlement Conference (in person)

set for 2/8/2011 at 2:00 PM in

Courtroom 910 before Magistrate Judge

A. Kathleen Tomlinson.) Directives given

to counsel today are set forth in the

attachment which is being FILED WITH

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

136 01/19/2011
134 11/17/2010 133 10/27/2010
21

RESTRICTED VIEWING ACCESS (case participants) based on the nature of its contents. (Mahon, Cinthia) (Additional attachment(s) added on 1/28/2011: # 1 Civil Conference Minute Order FILED WITH RESTRICTED VIEWING ACCESS (Case Participants)) (Mahon, Cinthia). (Entered: 01/28/2011)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson: Counsel for all sides present.

Settlement Status Conference (by

telephone) held on 1/19/2011 at 11

a.m. ( Settlement Conference (by

telephone) set for 1/27/2011 at 11:30

AM before Magistrate Judge A. Kathleen

Tomlinson. Counsel will provide the

call-in information to the Court.)

Directives given to counsel today are set

forth in the attachment which is being

FILED WITH RESTRICTED VIEWING

ACCESS (case participants) based on the

nature of its contents. (Mahon, Cinthia)

(Additional attachment(s) added on

1/20/2011: # 1 Civil Conference Minute

Order) (Mahon, Cinthia). Modified on

1/26/2011 (Mahon, Cinthia). Modified

on 1/26/2011 (Mahon, Cinthia).

(Entered: 01/20/2011)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Telephone Conference held

on 11/17/2010. SCHEDULING: The next

conference will be held at the

Courthouse on November 29, 2010. SEE

ATTACHED ORDER. (Reifman, Marli)

(Entered: 11/17/2010)

Minute Entry for proceedings held

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before Magistrate Judge A. Kathleen

Tomlinson: Status Conference held on

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

131 10/07/2010
129 09/29/2010
130 09/13/2010 08/13/2010
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10/27/2010. SCHEDULING: The next conference will be held by telephone on November 17, 2010 at 2 p.m. SEE ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 10/27/10. (Tomlinson, A.) (Entered: 10/27/2010)

Minute Entry for proceedings held

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before Magistrate Judge A. Kathleen

Tomlinson:Continued Settlement

Conference held on October 6, 2010.

SCHEDULING: The next conference will

be held by telephone on October 27,

2010 at 4 p.m. Counsel are requested to

provide the Court with the call-in

number in advance. SEE ATTACHED

ORDER for additional information.

(Tobin, Ellen) (Entered: 10/07/2010)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson: Continued Settlement

Conference held on September 29,

2010. SCHEDULING: A telephone

conference is scheduled for October 6,

2010 at 4:00 p.m. for the parties to

update the Court regarding their

progress. Plaintiffs’ counsel is requested

to initiate the call to Chambers. SEE

ATTACHED ORDER. (Tobin, Ellen)

(Entered: 09/29/2010)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Settlement Conference held

on 9/13/2010. Continuation of

settlement conference scheduled for

9/29/10. (Montero, Edher) (Entered:

10/07/2010)

ORDER granting 128 Motion for Extension of Time to File. Defendants’ submission of data to Plaintiffs’ counsel

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

128 08/12/2010 127 07/28/2010 126 07/23/2010
125 07/21/2010
124 07/09/2010
23

in connection with settlement discussions is now due on August 13, 2010. Ordered by Magistrate Judge A. Kathleen Tomlinson on 8/13/2010. (Spatola, Richard) (Entered: 08/13/2010)

Letter MOTION for Extension of Time to ViewBatch Download File exchange information by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi. (Van Riper, Barbara) (Entered: 08/12/2010)

REPLY in Support filed by Helen Ebbert. ViewBatch Download (Goodman, Janice) (Entered: 07/28/2010)

RESPONSE in Opposition re 106 MOTION ViewBatch Download for Contempt of Order objections to fee application filed by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi. (Attachments: # 1 Exhibit) (Van Riper, Barbara) (Entered: 07/23/2010)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Settlement Conference held

on July 21, 2010. SCHEDULING: The

continuing settlement conference will

be held again on September 13, 2010.

SEE ATTACHED ORDER for a summary of

the rulings from today’s conference.

(Tobin, Ellen) (Entered: 07/21/2010)

AFFIDAVIT/DECLARATION in Support re ViewBatch Download 106 MOTION for Contempt of Order for attorney fees as per Order, docket entry 119 filed by Lori Conklin, Helen Ebbert, Pamela Edwards, Frances Kamerer, Isabella Minneci, Wendy Muro.

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

123 07/08/2010 122 06/28/2010
06/20/2010 121 06/18/2010 120 06/18/2010
06/17/2010
24

(Eisenberg, Herbert) (Entered: 07/09/2010)

AFFIDAVIT/AFFIRMATION by Helen Ebbert (Goodman, Janice) (Entered: 07/08/2010)

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Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson: Settlement Conference held

on June 28, 2010. A continued

settlement conference will be held on

July 21, 2010 at 9:30 a.m. The deadline

for submission of the proposed joint

pretrial order and the July 14, 2010

pretrial conference are ADJOURNED.

New dates will be set on July 21 if the

parties are unable to resolve this case.

SEE ATTACHED ORDER. (Tobin, Ellen)

(Entered: 06/28/2010)

ORDER granting 120 Motion for Extension of Time to File fee application; granting 121 Motion for Extension of Time for stipulated facts. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/20/2010. (Tomlinson, A.) (Entered: 06/20/2010)

Letter MOTION for Extension of Time to ViewBatch Download File by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi. (Van Riper, Barbara) (Entered: 06/18/2010)

MOTION for Extension of Time to File by ViewBatch Download Helen Ebbert. (Goodman, Janice) (Entered: 06/18/2010)

SCHEDULING ORDER: Due to a change in the Court’s calendar, the June 17, 2010 Settlement Conference is rescheduled

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

06/02/2010
119 05/28/2010 118 05/20/2010
25

for June 28, 2010 at 2:30 p.m. before Magistrate Judge A. Kathleen Tomlinson in Courtroom 910. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/17/2010. (Tobin, Ellen) (Entered: 06/17/2010)

ELECTRONIC ORDER. Pursuant to the Court’s May 28, 2010 119 Order, copies of the reports with the stricken passages noted have been sent to counsel for both sides by First Class, Certified Mail. See DE 119 at 7. Defendants will have 21 days from receipt of the documents to file a final Expert Report and Rebuttal Report in compliance with these directives. See DE 119 for further information. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/2/2010. (Tobin, Ellen) (Entered: 06/02/2010)

DECISION AND ORDER re 106 striking ViewBatch Download certain portions of expert reports. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 5/21/2010. (Tomlinson, A.) (Entered: 05/28/2010)

Minute Entry for proceedings held

ViewBatch Download

before Magistrate Judge A. Kathleen

Tomlinson:Telephone Status Conference

held on May 20, 2010. SCHEDULING: A

settlement conference is scheduled for

June 17, 2010 at 1:30 p.m. The Pretrial

Conference (if necessary) will be held on

July 14, 2010 at 2:00 p.m. SEE

ATTACHED ORDER for a summary of the

rulings issued at today’s conference and

the schedule for the completion of the

pre-trial phase of this case. (Tobin,

Ellen) (Entered: 05/20/2010)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

117 05/20/2010 04/29/2010
116 04/28/2010 115 03/31/2010 114 08/21/2009 113 07/24/2009
26

NOTICE of Appearance by Barbara E. ViewBatch Download Van Riper on behalf of Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi (aty to be noticed) (Van Riper, Barbara) (Entered: 05/20/2010)
SCHEDULING ORDER: Pursuant to Plaintiffs’ 116 request, a Telephone Conference is set for May 20, 2010 at 1:45 p.m. to discuss the schedule for the completion of the pretrial phase of this case. Plaintiffs’ counsel is directed to initiate the call to Chambers, with all counsel on the line, at (631) 712-5760. If counsel would prefer to appear for the conference in person, then they should contact my Chambers accordingly. Ordered by Magistrate Judge A. Kathleen Tomlinson on 4/29/2010. (Tobin, Ellen) (Entered: 04/29/2010)
Letter requesting conference by Helen ViewBatch Download Ebbert (Eisenberg, Herbert) (Entered: 04/28/2010)
ORDER granting in part and denying in ViewBatch Download part 106 Motion for Contempt. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/31/2010. (Montero, Edher) (Entered: 04/06/2010)
NOTICE of Change of Attorney’s Office ViewBatch Download Address by Janice Goodman (Goodman, Janice) (Entered: 08/21/2009)
REPLY in Opposition to Plainitiff’s Reply ViewBatch Download re motion for contempt filed by Nassau County, Nassau County Civil Service Commission, Nassau County Police Department, Thomas R. Souzzi. (Rogers, Jennean) (Entered: 07/24/2009)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

112 07/17/2009 07/02/2009
111 07/01/2009 110 07/01/2009 109 07/01/2009
27

REPLY to Response to Motion re 106 ViewBatch Download MOTION for Contempt of Order filed by Lori Conklin, Helen Ebbert, Pamela Edwards, Frances Kamerer, Isabella Minneci, Wendy Muro. (Eisenberg, Herbert) (Entered: 07/17/2009)

ORDER granting 110 Plaintiffs Motion to submit a reply in further support of their motion to hold Defendants in contempt. Plaintiffs shall file their reply letter by July 17, 2009. Because I am giving Plaintiffs the opportunity to submit a reply, Defendants shall also be permitted to submit a supplemental letter. Defendants shall submit their response no later than July 24, 2009. No further submissions shall be made on this motion. Ordered by Magistrate Judge A. Kathleen Tomlinson on 7/2/2009. (Tobin, Ellen) (Entered: 07/02/2009)

Letter objecting to plaintiffs’ 7.01.09 request by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi (Chartan, Lauren) (Entered: 07/01/2009)

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First MOTION to

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Amend/Correct/Supplement 109 First

MOTION for Leave to File Reply to

Defendants Response to Motion for

Contempt (now printed on appropriate

letterhead) by Helen Ebbert. (Eisenberg,

Herbert) (Entered: 07/01/2009)

First MOTION for Leave to File Reply to ViewBatch Download Defendants Response to Motion for Contempt by Helen Ebbert. (Eisenberg, Herbert) (Entered: 07/01/2009)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

108 06/29/2009 06/15/2009
107 06/12/2009 106 06/10/2009 105 04/03/2009
28

RESPONSE to Motion re 106 MOTION for ViewBatch Download Contempt of Order filed by all defendants. (Attachments: # 1 Exhibit #1, # 2 Exhibit #2, # 3 Exhibit #3, # 4 Exhibit #4, # 5 Exhibit #5) (Chartan, Lauren) (Entered: 06/29/2009)

ORDER granting 107 Defendant’s Motion for Extension of Time for to File Opposition to Plaintiff’s 106 MOTION for Contempt. Defendant Nassau County shall file and serve its Opposition papers by June 29, 2009. Ordered by Magistrate Judge A. Kathleen Tomlinson on 6/15/2009. (Tobin, Ellen) (Entered: 06/15/2009)

MOTION for Extension of Time to File Response/Reply as to 106 MOTION for Contempt of Order by Nassau County. (Rogers, Jennean) (Entered: 06/12/2009)

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MOTION for Contempt of Order by

ViewBatch Download

Helen Ebbert. (Attachments: # 1 Exhibit,

# 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5

Exhibit, # 6 Exhibit Exh. C, # 7 Exhibit

Exh. D) (Goodman, Janice) (Entered:

06/10/2009)

MEMORANDUM AND OPINION: The ViewBatch Download Countys motion for summary judgment is granted with respect to plaintiffs § 1983 claim, which is, accordingly, dismissed. As to plaintiffs EPA and NYEPA claims, the Countys motion is denied. There will be no formal memorandum and order mailed to counsel. Ordered by Senior Judge Frederic Block on 4/3/2009. (Innelli, Michael) (Entered: 04/03/2009)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

104 09/29/2008 103 09/26/2008 102 07/25/2008 101 07/25/2008 100 07/25/2008
29

ORDER granting in part and denying in ViewBatch Download part 91 Motion to Strike. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 09/29/08. (Monaco, Laura) (Entered: 09/29/2008)
ORDER granting in part and denying in ViewBatch Download part 75 Motion in Limine. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 09/26/08. (Monaco, Laura) (Entered: 09/26/2008)
REPLY in Support re 100 MOTION for ViewBatch Download Summary Judgment filed by all defendants. (Attachments: # 1 Certificate of Service) (Rogers, Jennean) (Entered: 07/25/2008)
AFFIDAVIT/DECLARATION in Opposition ViewBatch Download re 100 MOTION for Summary Judgment filed by all plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Affidavit of Helen Ebbert, # 9 Rule 56.1 Statement, # 10 Memorandum in Opposition) (Rogers, Jennean) (Entered: 07/25/2008)
MOTION for Summary Judgment by ViewBatch Download Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Attachments: # 1 Declaration in Support of Motion for Summary Judgment, # 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 Part, # 11 Exhibit I (Part 2), # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

99 07/25/2008 98 07/25/2008 97 07/10/2008
96 05/22/2008 04/23/2008
03/31/2008
30

W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit Z (Part 2), # 30 Exhibit AA, # 31 Exhibit BB, # 32 Exhibit CC, # 33 Exhibit DD, # 34 Exhibit EE, # 35 Exhibit FF, # 36 Exhibit GG, # 37 Exhibit HH, # 38 Rule 56.1 Statement, # 39 Memorandum in Support, # 40 Certificate of Service) (Rogers, Jennean) (Entered: 07/25/2008)

NOTICE of Change of Change of Address ViewBatch Download for Herbert Eisenberg by Herbert Eisenberg (Eisenberg, Herbert) (Entered: 07/25/2008)

MEMORANDUM in Opposition to Defendants’ motion for summary judgment filed by all plaintiffs. (Eisenberg, Herbert) (Entered: 07/25/2008)

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Letter apprising Court of amended

ViewBatch Download

Summary Judgment schedule by Nassau

County, Nassau County Police

Department, Nassau County Civil

Service Commission, Thomas R. Souzzi

(Chartan, Lauren) (Entered: 07/10/2008)

Letter by Helen Ebbert (Goodman, Janice) (Entered: 05/22/2008)

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Motions terminated: 89 Letter MOTION to Adjourn Conference on Consent filed by Nassau County Civil Service Commission, Thomas R. Souzzi, Nassau County Police Department, Nassau County. (Innelli, Michael) (Entered: 04/23/2008)

ELECTRONIC ORDER: Defendant’s letter application dated 3/28/08 is GRANTED as to both parties. Counsel may have a total of 35 pages comprising their

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

95 03/27/2008 02/05/2008
94 02/05/2008 93 01/18/2008
31

memoranda of law in this instant motion. There will be no formal order mailed to counsel. Ordered by Senior Judge Frederic Block on 3/31/08. (Innelli, Michael) (Entered: 03/31/2008)

First MOTION for Leave to File Excess Pages and notification as to revised briefing schedule by New York State Department of Civil Service, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Chartan, Lauren) (Entered: 03/27/2008)

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ELECTRONIC NOTICE: Defendant’s letter dated 2/5/08 as to the parties motion schedule does not require Court approval. Counsel shall refer to J. Block’s motion rules. Counsel shall work out their own motion schedule and any modifications, neither need Court approval. Counsel are required to send a letter outlining their dates and any time they are modified. There will be no formal notice mailed to counsel. (Innelli, Michael) (Entered: 02/05/2008)

Letter regarding summary motion schedule by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi (Chartan, Lauren) (Entered: 02/05/2008)

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Minute Entry for proceedings held

ViewBatch Download

before Senior Judge Frederic Block:Pre

Motion Conference held on 1/18/2008.

Counsel for plaintiff present. Counsel for

defendants participates by telephone.

Counsel’s motion discussed. Counsel to

file their motions according to Judge

Block’s Rules. (Lee, Tiffeny) (Entered:

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

92 12/07/2007 91 12/07/2007 90 12/07/2007

01/22/2008)

REPLY to Response to Motion re 91 MOTION to Strike Plaintiff’s Expert Report and Rebuttal Report and to Preclude Dr. Lunquist’s Testimony at Trial filed by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Rogers, Jennean) (Entered: 12/07/2007)

ViewBatch Download

MOTION to Strike Plaintiff’s Expert

ViewBatch Download

Report and Rebuttal Report and to

Preclude Dr. Lunquist’s Testimony at

Trial by Nassau County, Nassau County

Police Department, Nassau County Civil

Service Commission, Thomas R. Souzzi.

(Attachments: # 1 Declaration in

Support of Motion, # 2 Exhibit A, # 3

Exhibit B, # 4 Exhibit C, Pages 1-35, # 5

Exhibit C, Pages 136-240, # 6 Table of

Content & Table of Authorities, # 7

Memorandum of Law in Support of

Motion) (Rogers, Jennean) (Entered:

12/07/2007)

MEMORANDUM in Opposition by Helen ViewBatch Download Ebbert. (Attachments: # 1 Affidavit) (Goodman, Janice) (Entered: 12/07/2007)

32

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

12/04/2007
89 12/03/2007 88 11/19/2007
87 11/01/2007 10/31/2007
33

ELECTRONIC NOTICE: Defendant’s letter application dated 12/3/07, with the consent of plaintiff’s counsel is GRANTED. The pre-motion conference scheduled for January 4, 2008 is adjourned to Janaury 18, 2008 at 11:00 A.M. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the new date of this conference. (Innelli, Michael) (Entered: 12/04/2007)

Letter MOTION to Adjourn Conference on Consent by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Chartan, Lauren) (Entered: 12/03/2007)

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ELECTRONIC NOTICE: A pre motion

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conference is schedule for January 4,

2008 @ 11AM. There will be no formal

notice mailed to counsel. Upon receipt

of this email counsel shall confirm with

each other the date and time of this

conference. If this date presents a

conflict counsel shall first obtain the

consent from all the parties to adjourn

this conference, and then notify the

Court which conducts these conference

on Fridays at 11AM. (Innelli, Michael)

(Entered: 11/19/2007)

Letter reflecting briefing schedule for ViewBatch Download defendants’ Daubert motion by Nassau County (Chartan, Lauren) (Entered: 11/01/2007)

NOTICE. The Amended Case Management and Scheduling Order DE 44 directed the parties to submit the

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

86 10/30/2007 85 10/29/2007
84 10/22/2007
34

joint pretrial order no later than November 30, 2007 and set the pretrial conference for December 13, 2007. As discussed at the October 29, 2007 hearing, both are hereby adjourned without date pending further notice by the Court. Approved by Judge A. Kathleen Tomlinson on 10/31/07. (Cass, Luke) (Entered: 10/31/2007)

Letter by Helen Ebbert (Attachments: # 1ViewBatch Download # 2 ) (Goodman, Janice) (Entered: 10/30/2007)

Minute Entry for proceedings held

ViewBatch Download

before A. Kathleen Tomlinson: Motion

Hearing held on 10/29/2007 re 75 First

MOTION in Limine to Preclude Expert

Evidence filed by Helen Ebbert, Wendy

Muro, Frances Kamerer, Pamela

Edwards, Lori Conklin, Isabella Minneci.

THE FOLLOWING RULINGS WERE MADE:

Today, I heard oral argument on

Plaintiffs’ motion to preclude the

testimony of Defendants’ expert

witness, Dr. Gerald Barrett. Decision is

RESERVED. Defense counsel states that

she plans to file a Daubert motion

challenging the qualifications of

Plaintiffs’ expert, Professor Lundquist. I

advised the parties that such a motion

must be fully briefed and filed with the

Court no later than December 7, 2007.

SEE ATTACHED ORDER. Ordered by

Judge A. Kathleen Tomlinson on

10/29/07. (Cass, Luke) (Entered:

10/29/2007)

Letter re: summary judgement conference sought by defendants by Helen Ebbert (Eisenberg, Herbert) (Entered: 10/22/2007)

ViewBatch Download

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

10/17/2007
10/17/2007
83 10/15/2007 82 10/15/2007
10/02/2007
35

ELECTRONIC ORDER re: 36 Motion for Extension of Time to Complete Discovery and 39 Motion for Extension of Time to Complete Discovery. The issues raised in the parties’ submissions DE 36 , 39 were addressed during a telephone status conference with the parties as discussed in the Court’s May 2, 2007 Civil Conference Minute Order DE 43 . Ordered by Judge A. Kathleen Tomlinson on 10/17/07. (Cass, Luke) (Entered: 10/17/2007)

ELECTRONIC ORDER terminating 77 Motion in Limine. Plaintiffs’ Memorandum of Law in Support of their motion to preclude DE 77 was improperly and separately filed as “Motion.” Accordingly, I am terminating the designation of this submission as a “Motion” for administrative purposes. Plaintiff’s motion to preclude DE 75 remains sub judice. Ordered by Judge A. Kathleen Tomlinson on 10/17/07. (Cass, Luke) (Entered: 10/17/2007)

CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 10/15/2007)

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Letter requesting pre-motion conferenceViewBatch Download by New York State Department of Civil Service, Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi (Chartan, Lauren) (Entered: 10/15/2007)

ELECTRONIC ORDER Setting Hearing on Motion 75 First MOTION in Limine to Preclude Expert Evidence. Oral argument regarding Plaintiff’s motion to preclude the testimony of Dr. Gerald Barrett will be heard on October 29,

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

81 10/01/2007
80 10/01/2007 79 10/01/2007 78 10/01/2007 77 10/01/2007 76 10/01/2007 75 10/01/2007
36

2007 at 3 p.m. in Courtroom 910. Ordered by Judge A. Kathleen Tomlinson on 10/2/07. (Cass, Luke) (Entered: 10/02/2007)

EXHIBITS 1-2 by Frances Kamerer, Lori Conklin, Helen Ebbert, Pamela Edwards, Isabella Minneci, Wendy Muro. Filed in hard copy. Related document: 78 Affidavit in Support of Motion filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards, Lori Conklin, Isabella Minneci. (Brucella, Michelle) (Entered: 10/02/2007)

AFFIDAVIT in Support re 75 First MOTIONViewBatch Download in Limine to Preclude Expert Evidence filed by all plaintiffs. (Eisenberg, Herbert) (Entered: 10/01/2007)

REPLY to Response to Motion re 75 First ViewBatch Download MOTION in Limine to Preclude Expert Evidence filed by all plaintiffs. (Eisenberg, Herbert) (Entered: 10/01/2007)

AFFIDAVIT in Support re 75 First MOTIONViewBatch Download in Limine to Preclude Expert Evidence filed by all plaintiffs. (Eisenberg, Herbert) (Entered: 10/01/2007)

MOTION in Limine by all plaintiffs. (Eisenberg, Herbert) (Entered: 10/01/2007)

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RESPONSE in Opposition re 75 First MOTION in Limine to Preclude Expert Evidence filed by all defendants. (Famighetti, Peter) (Entered: 10/01/2007)

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First MOTION in Limine to Preclude Expert Evidence by all plaintiffs.

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Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

74 09/10/2007 73 08/31/2007 72 08/30/2007 71 08/28/2007
70 08/24/2007 08/23/2007
37

(Eisenberg, Herbert) (Entered: 10/01/2007)

CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 09/10/2007)

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Letter regarding plaintiff’s August

ViewBatch Download

30,2007 communication with the court

by New York State Department of Civil

Service, Nassau County, Nassau County

Police Department, Nassau County Civil

Service Commission, Thomas R. Souzzi

(Chartan, Lauren) (Entered: 08/31/2007)

Letter in reply re: Plaintiffs’ Notice of Collective Action by Helen Ebbert (Eisenberg, Herbert) (Entered: 08/30/2007)

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Letter in Opposition to Plaintiffs’ Notice ViewBatch Download of Collective Action and Proposed Order by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Proposed Notice# 5 PCO Opt-in Form# 6 PCOS Opt-in Form) (Rogers, Jennean) (Entered: 08/28/2007)

Letter by Helen Ebbert (Attachments: # 1ViewBatch Download # 2 # 3 # 4 ) (Goodman, Janice) (Entered: 08/24/2007)

ENDORSED ORDER re 69 Letter filed by Helen Ebbert. The briefing schedule contained in the parties’ August 16, 2007 letter DE 69 concerning Plaintiffs’ forthcoming Daubert motion is hereby “So Ordered.” The parties are directed to take notice of my “Bundle Rule,” Individual Practice Rule III(C)(1)(a), which prohibits the filing of all motion

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

69 08/16/2007 67 08/13/2007 68 08/09/2007
66 08/06/2007 07/23/2007
38

papers until the motion has been fully briefed. Therefore, no motion papers should be filed via ECF before October 1, 2007. Ordered by Judge A. Kathleen Tomlinson on 8/23/07. (Cass, Luke) (Entered: 08/23/2007)

Letter by Helen Ebbert (Goodman, Janice) (Entered: 08/16/2007)

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MEMORANDUM & ORDER: Plaintiff’s 22 ViewBatch Download Motion to Certify Class is granted. See document for complete ruling and further details. Ordered by Judge Frederic Block on 8/9/2007. (c/m-chambers) (Lee, Tiffeny) (Entered: 08/13/2007)

Minute Entry for proceedings held

ViewBatch Download

before Hon. Frederic Block: Oral

argument held on 8/9/2007. Counsel for

parties present. Case called. All counsel

present. Motion argued. Decision placed

on the record. Written Order will follow.

(Court Reporter Victoria Torres-Butler)

(Abdallah, Fida) (Entered: 08/14/2007)

CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 08/06/2007)

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ELECTRONIC NOTICE: Plaintiff’s letter application dated 7/23/07, with the consent of defense counsel is GRANTED. The oral argument scheduled for August 2, 2007 is adjourned to August 9, 2007 at 4:30 P.M. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the date and time of this argument. (Innelli, Michael) (Entered: 07/23/2007)

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Letter by Helen Ebbert (Goodman, Janice) (Entered: 07/23/2007)

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ELECTRONIC NOTICE: The Court is

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scheduling oral argument on August 2,

2007 at 4:30 P.M. There will be no

formal notice mailed to counsel. Upon

receipt of this email counsel shall

confirm with each other the date and

time of this oral argument. Counsel

should notify the Court no less then 48

hours in advance of the oral argument if

it presents any conflicts. (Innelli,

Michael) (Entered: 07/16/2007)

CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 07/10/2007)

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CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 07/10/2007)

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Minute Entry for proceedings held

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before A. Kathleen Tomlinson : Status

Conference held on 7/6/2007. THE

FOLLOWING RULINGS WERE MADE: 1.

The inspection of the work premises by

experts for both sides will take place on

July 13, 2007 beginning at 2 p.m. 2. The

deposition of Lori Conklin will be held on

July 13 beginning promptly at 9 a.m. and

will conclude prior to the scheduled 2

p.m. inspection. 3. The expert reports

will be exchanged between the parties

by e-mail or fax on or before the close of

business on July 31, 2007. SEE

ATTACHED ORDER FOR ADDITIONAL

RULINGS AND INFORMATION. Ordered

by Judge A. Kathleen Tomlinson on

7/6/07. (Tomlinson, A.) (Entered:

07/06/2007)

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TRANSCRIPT of Status Conference held ViewBatch Download on 6/12/07 before Judge A. Kathleen Tomlinson. Court Transcriber: Ruth Ann Hager, Typewrite Word Processing Service. (Puma, Christine) (Entered: 07/06/2007)

Minute Entry for proceedings held

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before A. Kathleen Tomlinson :

Telephone Status Conference held on

7/2/2007. SCHEDULING: A telephone

conference will be held on Friday, July 6,

2007 at 12 p.m. Plaintiffs’ counsel is to

initiate the call. THE FOLLOWING

RULINGS WERE MADE: This conference

was scheduled to discuss the issue of the

actual exchange of expert reports and

rebuttal reports, among other things,

based upon my June 25, 2007 Order.

After discussions with the parties, I have

issued a number of directives which are

contained in the attached Order.

Ordered by Judge A. Kathleen Tomlinson

on 7/3/07. (Tomlinson, A.) (Entered:

07/02/2007)

NOTICE. Based on scheduling conflicts by both counsel for Plaintiffs and Defendants, the June 29, 2007 telephone status conference is rescheduled to July 2, 2007 at 3 p.m. Plaintiff’s counsel is directed to initiate the call to chambers. Approved by Judge A. Kathleen Tomlinson on 6/26/07. (Cass, Luke) (Entered: 06/26/2007)

ORDER denying 53 Defendants’ Motion ViewBatch Download for Extension of Time to Exchange Expert Reports and setting telephone status conference for June 29, 2007 at 11:45 a.m. SEE ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 6/25/07. (Tomlinson, A.) (Entered:

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06/25/2007)

Minute Entry for proceedings held

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before A. Kathleen Tomlinson : Status

Conference held on 6/12/2007. THE

FOLLOWING RULINGS WERE MADE:I met

with the parties today for a discovery

status conference to determine any

outstanding issues regarding the

progress of discovery, including those

raised in Plaintiffs’ status report of June

1, 2007 [DE 47] and Defendants’ status

report dated June 1, 2007 [DE 48]. After

lengthy discussion with the parties, I

directed certain actions with regard to

the outstanding discovery. Those

directives are contained in the attached

ORDER. Ordered by Judge A. Kathleen

Tomlinson on 6/12/07. (Tomlinson, A.)

(Entered: 06/25/2007)

RESPONSE in Opposition re 53 Letter MOTION for Extension of Time to File Expert Report Amended Letter filed by all plaintiffs. (Goodman, Janice) (Entered: 06/25/2007)

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CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 06/22/2007)

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RESPONSE in Opposition re 53 Letter MOTION for Extension of Time to File Expert Report filed by all plaintiffs. (Goodman, Janice) (Entered: 06/22/2007)

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Letter MOTION for Extension of Time to ViewBatch Download File Expert Report by all defendants. (Chartan, Lauren) (Entered: 06/21/2007)

Letter re Withdrawal of Objection by ViewBatch Download Nassau County, Nassau County Police

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Department, Nassau County Civil Service Commission, Thomas R. Souzzi (Rogers, Jennean) (Entered: 06/20/2007)

CONSENT to become party in a class action. by Helen Ebbert (Goodman, Janice) (Entered: 06/12/2007)

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STATUS REPORT by Frances Kamerer, ViewBatch Download Lori Conklin, Helen Ebbert, Pamela Edwards, Isabella Minneci, Wendy Muro (Attachments: # 1 # 2 # 3 # 4 ) (Goodman, Janice) (Entered: 06/11/2007)

ANSWER to Amended Complaint by all ViewBatch Download defendants. (Rogers, Jennean) (Entered: 06/08/2007)

ELECTRONIC ORDER re 48 Status Report filed by Nassau County Civil Service Commission, Thomas R. Souzzi, Nassau County Police Department, Nassau County and 47 Status Report filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards, Lori Conklin, Isabella Minneci. Based on my review of the parties’ aforementioned submissions, the June 6, 2007 telephone status conference is cancelled. The parties are directed to appear for an in-person status conference on June 12, 2007 at 3 p.m. Ordered by Judge A. Kathleen Tomlinson on 6/4/07. (Cass, Luke) (Entered: 06/04/2007)

STATUS REPORT and Request for

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Adjournment of Status Conference by

Nassau County, Nassau County Police

Department, Nassau County Civil Service

Commission, Thomas R. Souzzi (Rogers,

Jennean) (Entered: 06/01/2007)

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STATUS REPORT by Frances Kamerer, ViewBatch Download Lori Conklin, Helen Ebbert, Pamela Edwards, Isabella Minneci, Wendy Muro (Goodman, Janice) (Entered: 06/01/2007)
Incorrect Document/Entry Information: Plaintiffs’ counsel is reminded that it solely counsel’s responsibility to add any newly appearing parties to the docket when filing an amended complaint. The Clerk has corrected this filing in this instance. Please see the Court’s website for information regarding training if necessary. (Lee, Tiffeny) (Entered: 05/30/2007)
AMENDED COMPLAINT adding Plaintiff ViewBatch Download Lori Conklin against all defendants, filed by all plaintiffs. (Eisenberg, Herbert) (Entered: 05/29/2007)
MEMORANDUM AND ORDER granting 37ViewBatch Download Plaintiffs’ Motion to Amend/Correct the Complaint. SEE ATTACHED DECISION. Ordered by Judge A. Kathleen Tomlinson on 5/24/07. (Tomlinson, A.) (Entered: 05/24/2007)
AMENDED CASE MANAGEMENT AND ViewBatch Download SCHEDULING ORDER: DEADLINES AND COURT APPEARANCES Interim Telephone Status Conference will be held June 6, 2007 at 11 a.m.; All Fact Depositions and any remaining Document production to be concluded by May 31, 2007; Expert reports and all accompanying materials required by Rule 26 to be exchanged by July 15, 2007; Expert rebuttal reports, if any, due by August 15, 2007; Depositions of experts to be completed by September 17, 2007; Dispositive motion process

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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started by October 15, 2007; Joint pretrial order due by November 30, 2007; Pretrial Conference will be held on December 13, 2007, at 11 a.m. SEE ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 5/2/07. (Tomlinson, A.) (Entered: 05/03/2007)

Minute Entry for proceedings held

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before A. Kathleen Tomlinson : Motion

Hearing held on 5/2/2007 (1) re 36

Letter MOTION for Extension of Time to

Complete Discovery filed by Nassau

County Civil Service Commission,

Thomas R. Souzzi, Nassau County Police

Department, Nassau County, (2) 38

MOTION for Extension of Time to

Complete Discovery filed by Helen

Ebbert, Wendy Muro, Frances Kamerer,

Pamela Edwards, Isabella Minneci, (3) 39

MOTION for Extension of Time to

Complete Discovery -- Amended Filing of

Modification scheduling order filed by

Plaintiffs and (4) 37 First MOTION to

Amend/Correct Complaint filed by

Plaintiffs. Ruling on Motion to Amend

DEFERRED. SEE ATTACHED ORDER FOR

EXTENDED DISCUSSION AND RULINGS.

Ordered by Judge A. Kathleen Tomlinson

on 5/2/07. (Tomlinson, A.) (Entered:

05/02/2007)

RESPONSE in Opposition re 37 First

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MOTION to Amend/Correct Complaint

filed by all defendants. (Attachments: # 1

Exhibit A) (Rogers, Jennean) (Entered:

04/26/2007)

NOTICE of Appearance by Jennean R. Rogers on behalf of all defendants (aty to be noticed) (Rogers, Jennean) (Entered: 04/26/2007)

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Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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04/23/2007 40 04/23/2007
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ELECTRONIC ORDER re 36 Letter MOTION for Extension of Time to Complete Discovery and additional matters filed by Nassau County Civil Service Commission, Thomas R. Souzzi, Nassau County Police Department, Nassau County, 38 MOTION for Extension of Time to Complete Discovery, Modification of scheduling order filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards, Isabella Minneci, 39 MOTION for Extension of Time to Complete Discovery Amended Filing of Modification scheduling order filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards, Isabella Minneci, 37 First MOTION to Amend/Correct Complaint filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards, Isabella Minneci. A telephone status conference will be held on May 2, 2007 at 10:30 a.m. to discuss the issues raised in the aforementioned motions. Plaintiffs’ counsel is directed to initiate the call to chambers. Ordered by Judge A. Kathleen Tomlinson on 4/23/07. (Cass, Luke) (Entered: 04/23/2007)

ENDORSED ORDER re 35 Stipulation filed by New York State Department of Civil Service. The Stipulation and Order Regarding Confidential Information dated March 28, 2007 is hereby “So Ordered.” Ordered by Judge A. Kathleen Tomlinson on 4/23/07. (Cass, Luke) (Entered: 04/23/2007)

ORDER REFERRING MOTION: 37 First MOTION to Amend/Correct Complaint filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards,

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Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

04/20/2007
39 04/20/2007 38 04/20/2007 37 04/20/2007 36 04/19/2007 35 04/19/2007
46

Isabella Minneci for Decision. Ordered by Judge Frederic Block on 4/20/2007. Motions referred to A. Kathleen Tomlinson. (Lee, Tiffeny) (Entered: 04/23/2007)

Motions terminated, docketed incorrectly: 38 MOTION for Extension of Time to Complete Discovery Modification of scheduling order filed by Helen Ebbert, Wendy Muro, Frances Kamerer, Pamela Edwards, Isabella Minneci. Motion refiled as document #39, which remains pending before the Court. (Lee, Tiffeny) (Entered: 04/23/2007)

MOTION for Extension of Time to Complete Discovery Amended Filing of Modification scheduling order by all plaintiffs. (Goodman, Janice) (Entered: 04/20/2007)

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MOTION for Extension of Time to Complete Discovery Modification of scheduling order by all plaintiffs. (Goodman, Janice) (Entered: 04/20/2007)

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First MOTION to Amend/Correct

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Complaint by all plaintiffs. (Attachments:

# 1 Proposed Amended Complaint)

(Eisenberg, Herbert) (Entered:

04/20/2007)

Letter MOTION for Extension of Time to ViewBatch Download Complete Discovery and additional matters by all defendants. (Chartan, Lauren) (Entered: 04/19/2007)

STIPULATION by New York State Department of Civil Service (Connell, Monica) (Entered: 04/19/2007)

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Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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ENDORSED ORDER re 34 . The Stipulation and Order Regarding Confidential Information dated April 6, 2007 is hereby “So Ordered.” Ordered by Judge A. Kathleen Tomlinson on 4/10/07. (Cass, Luke) (Entered: 04/10/2007)

Letter by Nassau County, Nassau County ViewBatch Download Police Department, Thomas R. Souzzi (Attachments: # 1 Stipulation and Order) (Chartan, Lauren) (Entered: 04/09/2007)

NOTICE of Appearance by Lauren Seides ViewBatch Download Chartan on behalf of all defendants (aty to be noticed) (Chartan, Lauren) (Entered: 03/19/2007)

MEMORANDUM AND ORDER granting in ViewBatch Download part 28 non-party NYSCS’ Motion to Quash the subpoena served upon it for the deposition of Commissioner Wall and precluding the deposition; denying motion for protective order precluding production of civil service examinations and related materials; denying Defendants’ 26 Motion for Protective Order. SEE ATTACHED DECISION AND ORDER. Ordered by Judge A. Kathleen Tomlinson on 3/02/07. (Jacobwitz, Beth) (Entered: 03/05/2007)

Letter production of documents by

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Frances Kamerer, Helen Ebbert, Pamela

Edwards, Isabella Minneci, Wendy Muro

(Goodman, Janice) (Entered:

02/13/2007)

Letter Supplemental Letter Brief re Class ViewBatch Download Certification by Frances Kamerer, Helen Ebbert, Pamela Edwards, Isabella Minneci, Wendy Muro (Goodman, Janice) (Entered: 01/18/2007)

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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RESPONSE in Opposition re 28 MOTION ViewBatch Download for Protective Order prohibiting the deposition of Commissioner Wall and prohibiting the release of civil service examinations MOTION to Quash subpoena of plaintiffs for deposition of Commissioner Wall and for production of civil service examinations and related materials MOTION to Quash subpoena of plaintiffs for deposition of Commissioner Wall and for production of civil service examinations and related materials filed by all plaintiffs. (Goodman, Janice) (Entered: 12/11/2006)
MOTION for Protective Order prohibitingViewBatch Download the deposition of Commissioner Wall and prohibiting the release of civil service examinations, MOTION to Quash subpoena of plaintiffs for deposition of Commissioner Wall and for production of civil service examinations and related materials by New York State Department of Civil Service. (Timon, Katherine) (Entered: 12/07/2006)

48

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RESPONSE in Opposition re 26 First MOTION for Protective Order that the disclosure of civil service examinations not be had filed by all plaintiffs. (Attachments: # 1 # 2 # 3 )(Goodman, Janice) (Entered: 12/06/2006)

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First MOTION for Protective Order that ViewBatch Download the disclosure of civil service examinations not be had by all defendants. (Famighetti, Peter) (Entered: 12/01/2006)

REPLY to Response to Motion re 22 First ViewBatch Download MOTION to Certify Class filed by all plaintiffs. (Eisenberg, Herbert) (Entered: 11/21/2006)

Letter Submission letter re:Motion for Class Certification by Helen Ebbert. (Eisenberg, Herbert) (Entered: 11/21/2006)

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RESPONSE in Opposition re 22 First MOTION to Certify Class filed by all defendants. (Eisenberg, Herbert) (Entered: 11/21/2006)

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First MOTION to Certify Class by all

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plaintiffs. (Eisenberg, Herbert) (Entered:

11/21/2006)

Minute Entry for proceedings held

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before A. Kathleen Tomlinson:

Telephone Status Conference held on

11/16/2006. SCHEDULING: A pretrial

conference will be held on July 10, 2007.

THE FOLLOWING RULINGS WERE MADE:

With the exception of one issue

concerning Plaintiffs’ requests for

certain public service examinations, the

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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parties agree that discovery is proceeding according to dates set forth in the Case Management and Scheduling Order. Defendants object to providing certain New York City and New York State civil service exam information based upon N.Y. Public Service Law section 87(2)(h), which permits a state agency to deny access to records that “are examination questions or answers which are requested prior to the final administration of such questions.” Plaintiffs’ counsel has offered to enter into a Stipulation and Order of Confidentiality designating the examination information as attorneys’ and experts’ eyes only; however, such designation is unacceptable to Defendants. Therefore, since Defendants have the burden here, Defendants’ counsel will move by letter motion for a protective order under Fed. R. Civ. P. 26(c), which motion will be made during the week of November 27, 2006. Plaintiffs will then have three business days to file their opposition. Replies are not permitted on letter motions. SEE ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 11/16/06. (Cass, Luke) (Entered: 11/16/2006)
Motions terminated: Ruled on by J. block. 19 MOTION to Bifurcate filed by Helen Ebbert,, Pamela Edwards,, Isabella Minneci,, Wendy Muro,, Frances Kamerer,.(Innelli, Michael) (Entered: 10/02/2006)
ORDER: the request that the court order ViewBatch Download bifurcation is granted. Ordered by Judge Frederic Block on 7/27/2006. (Endorsed on letter dated 7/20/2006 from Janice

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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Goodman and Herbert Eisenberg to USDJ Block) Copies mailed by Chambers.(Barrett, C.) (Entered: 08/03/2006)

MOTION to Bifurcate by all plaintiffs. (Goodman, Janice) (Entered: 07/20/2006)

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SCHEDULING ORDER: Deadline for

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completion of initial disclosures required

by Rule 26(a): July 7, 2006; First request

for production of documents and first

request for interrogatories due by:

August 1, 2006; Disclosure of all possible

class members from Defendants due by:

August 8, 2006; Deadline for joinder of

additional parties, amendment of

pleadings and class certification:

October 6, 2006; Status Conference:

November 16, 2006; All discovery,

including production of all expert

reports, if any, to be completed by: May

1, 2007; Dispositive motion process

started by: May 15, 2007; Joint pretrial

order due by: June 25, 2007; Pretrial

Conference: July 10, 2007. SEE

ATTACHED ORDER. Ordered by Judge A.

Kathleen Tomlinson on 7/7/06. (Cass,

Luke) (Entered: 07/08/2006)

Minute Entry for proceedings held

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before A. Kathleen Tomlinson: Initial

Conference Hearing held on 7/7/2006.

SCHEDULING: 1. A status conference will

be held on November 16, 2006. THE

FOLLOWING RULINGS WERE MADE: 1.

The parties met for a Rule 26(f)

conference and I am adopting the case

management plan submitted by them

with certain changes. Due to the nature

and potential size of this class action

suit, the parties requested an extension

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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of the standard discovery schedule. Since this is a class action with several different class types, that request is GRANTED. A Case Management and Scheduling Order will be entered separately. Initial disclosures have been exchanged. 2. The parties represented that they have agreed to bifurcate this matter into “liability” and “damages” phases. I informed them that although I had no objections to the bifurcation as far as discovery is concerned, they would have to make an application to Judge Block directly. SEE ADDITIONAL RULINGS IN ATTACHED ORDER. Ordered by Judge A. Kathleen Tomlinson on 7/7/06. (Cass, Luke) (Entered: 07/08/2006)

ANSWER to Complaint by all

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defendants.(Famighetti, Peter) (Entered:

06/22/2006)

NOTICE canceling the June 16,,2006 pre-motion conference: Since defendant’s have decided to file an answer, and not move to dismiss, the June 16, 2006 conference before J. block is canceled, and counsel shall contact the assigned Magistrate Judge to schedule a Rule 16 conference, if it has not already been scheduled. (Innelli, Michael) (Entered: 06/14/2006)

Letter requesting cancellation of

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pre-motion conference by Nassau

County, Nassau County Police

Department, Nassau County Civil Service

Commission, Thomas R. Souzzi.

(Famighetti, Peter) (Entered:

06/14/2006)

ORDER granting 12 Motion to Adjourn

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Conference. The initial conference scheduled for June 27, 2006 is rescheduled to July 7, 2006 at 11:00 a.m. Ordered by Judge A. Kathleen Tomlinson on 5/30/06. (Cass, Luke) Modified on 5/30/2006 (Montero, Edher). (Entered: 05/30/2006)

Letter dtd 5/16/06 by Janice

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Goodman,Esq.to Judge Block, written in

support of plaintiff’s request for an

order to begin discovery and in reply to

the County’s opposition to the same.

(Williams-Jackson, Sandy) (Entered:

05/25/2006)

Proposed Scheduling Order by Helen Ebbert. (Eisenberg, Herbert) (Entered: 05/25/2006)

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First MOTION to Adjourn Conference by ViewBatch Download all plaintiffs. (Eisenberg, Herbert) (Entered: 05/25/2006)

SCHEDULING ORDER: Initial Conference ViewBatch Download set for June 27, 2006. SEE ATTACHED ORDER.Ordered by Judge A. Kathleen Tomlinson on 5/18/06. (Cass, Luke) (Entered: 05/18/2006)

Letter by Helen Ebbert. (Goodman, Janice) (Entered: 05/16/2006)

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Letter in response to Plaintiffs’ 5/12/06 ViewBatch Download letter seeking a proposed order for immediate commencement of discovery by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Famighetti, Peter) (Entered: 05/16/2006)

Letter re: conference, discovery by

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Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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03/09/2006
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Helen Ebbert. (Eisenberg, Herbert) (Entered: 05/12/2006)
ELECTRONIC NOTICE ADJOURNING the pre-motion conference by the Court from May 12, 2006 to June 16, 2006 @ 11AM. There will not be a formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the new date and time of this conference. If this date presents a conflict counsel shall first obtain the consent from all the parties to adjourn this conference, and then notify the Court which conducts these conference on Fridays at 11AM. (Innelli, Michael) (Entered: 05/10/2006)
Mag. Judge A. Kathleen Tomlinson added. Mag. Judge James Orenstein no longer assigned to case. (Tzou, Ilene) (Entered: 04/04/2006)
Email Notification Test - DO NOT REPLY. (Lee, Tiffeny) (Entered: 03/28/2006)
Email Notification Test - DO NOT REPLY (Lee, Tiffeny) (Entered: 03/28/2006)
Motions terminated, ruled on by MJ Orenstein. 2 Letter MOTION for Extension of Time to File Answer to Complaint filed by Nassau County Civil Service Commission,, Nassau County,, Nassau County Police Department,, Thomas R. Souzzi,. (Innelli, Michael) (Entered: 03/28/2006)
ELECTRONIC NOTICE ADJOURNING the pre-motion conference by the Court from March 10, 2006 to May 12, 2006 @ 11AM. There will not be a formal notice mailed to counsel. Upon receipt of this

Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

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email counsel shall confirm with each other the new date and time of this conference. If this date presents a conflict counsel shall first obtain the consent from all the parties to adjourn this conference, and then notify the Court which conducts these conference on Fridays at 11AM. (Innelli, Michael) (Entered: 03/09/2006)

Letter from Herbert Eisenberg,Esq. written to request that the Court schedule a confernce at its earliest convenience.(Williams-Jackson, Sandy) (Entered: 02/02/2006)

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NOTICE of a pre-motion conference: A ViewBatch Download pre motion conference is schedule in this case on March 10, 2006 @ 11AM. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the date and time of this conference. If this date presents a conflict counsel shall first obtain the consent from all the parties to adjourn this conference, and then notify the Court which conducts these conference on Fridays at 11AM. (Innelli, Michael) (Entered: 01/31/2006)

Letter In response to Defendants request for premotion conference by Helen Ebbert. (Eisenberg, Herbert) (Entered: 01/17/2006)

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Letter brief requesting Pre-motion Conference by Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Famighetti, Peter) (Entered: 01/09/2006)

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NOTICE of Appearance by Peter J.

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Ebbert et al v. Nassau County et al, 1:05CV05445 (2005)

12/09/2005
2 12/08/2005 11/18/2005
1 11/18/2005

Famighetti on behalf of all defendants (Famighetti, Peter) (Entered: 12/12/2005)
ORDER re 2 Letter MOTION for Extension of Time to File Answer to Complaint filed by Nassau County Civil Service Commission,, Nassau County,, Nassau County Police Department,, Thomas R. Souzzi -- The motion is granted and the stipulation is SO ORDERED. Approved by Judge James Orenstein on 12/09/05. (Sunshine, Jason) (Entered: 12/09/2005)
Letter MOTION for Extension of Time to ViewBatch Download File Answer to Complaint by all defendants. (Attachments: # 1 Stipulation)(Sandel, Carl) (Entered: 12/08/2005)
Summons Issued as to Nassau County, Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi. (Villanueva, William) (Entered: 11/28/2005)
COMPLAINT against Nassau County, ViewBatch Download Nassau County Police Department, Nassau County Civil Service Commission, Thomas R. Souzzi $ 250, filed by Frances Kamerer, Helen Ebbert, Pamela Edwards, Isabella Minneci, Wendy Muro. (Attachments: # 1 Civil Cover Sheet)(Villanueva, William) (Entered: 11/28/2005)

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