New York Complaint
JAMES B. COMEY United States Attorney for the Southern District of New York By: LISA R. ZORNBERG (LZ-1299) RAMON E. REYES, JR. (RR-5545) Assistant United States Attorneys 100 Church Street, 19th Floor New York, New York 10007 Telephone: (718) 422-5706/5677
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : UNITED STATES OF AMERICA, : : Plaintiff, : : COMPLAINT - v. - : : 02 Civ. CITY OF NEW YORK and NEW YORK CITY : DEPARTMENT OF PARKS AND : Jury Trial Demanded RECREATION, : : Defendants. :
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: ---------------------------------------------------------------x

Plaintiff, United States of America (the "United States"), upon information and belief, alleges for its complaint as follows:
NATURE OF THE CASE
1. This is an action brought by the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended ("Title VII").
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter of this action pursuant to 42 U.S.C. § 2000e-6 and 28 U.S.C. §§ 1331 and 1345.
3. Venue is proper in this district under 28 U.S.C. § 1391.
THE PARTIES
4. Defendant, the City of New York (the "City"), is an employer within the meaning of 42 U.S.C. § 2000e(b).
5. Defendant, New York City Department of Parks and Recreation ("Parks"), is an agency of the City, and is an employer, or an agent of an employer, within the meaning of 42 U.S.C. § 2000e(b).
6. Plaintiff, the United States, is authorized to commence suit against an employer pursuant to 42 U.S.C. § 2000e-6 when the Attorney General of the United States has reasonable cause to believe that the employer has violated Title VII by engaging in a pattern or practice of unlawful discrimination.
PATTERN OR PRACTICE OF DISCRIMINATION
7. Parks engages in a pattern or practice of discrimination against its black and Hispanic employees on the basis of their race and/or national origin in making promotion decisions.
A. Failure to Post Vacancy Notices, Solicit Applications, or Conduct Interviews
8. Parks fails to follow any objective, formalized guidelines or procedures for determining which employees to promote to management positions.
9. Parks' stated policy is to post vacancy notices anytime there is a job opening for a managerial position in order to solicit applications for the vacant position.
10. Contrary to its stated policy, however, Parks has repeatedly failed to post vacancy notices announcing job openings for its vacant managerial positions.
11. As a corollary to its pattern and practice of not posting notices for vacant management positions,

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Parks engages in a pattern or practice of not conducting formal interviews for those positions.
12. According to its own Equal Employment Opportunity Policy ("EEOP"), Parks is required to conduct panel interviews and use a prescribed rating system in making its promotional decisions.
13. Contrary to that policy, however, Parks rarely, if ever, conducts panel interviews for vacant management positions.
14. Rather, Parks' pattern or practice with respect to vacant management positions is that its senior managers, including the Parks Commissioner and his executive staff, seek out and promote whites to management positions without conducting any formal interview process and in disregard of Parks' own EEOP.
15. For example, in and around 1995, Lynda Ricciardone, a white employee, was promoted to Center Manager of the Asser Levy Recreation Center ("Asser Levy") despite never having applied for that position. Contrary to its stated policies, including the EEOP, Parks promoted Ricciardone without ever having posted a vacancy notice, solicited applications, or conducted a formal interview process for the position.
16. Ricciardone was later promoted to Deputy Chief of Recreation for Manhattan, and then to Chief of Recreation for Manhattan. Again, Parks promoted Ricciardone to these positions without ever having posted vacancy notices, solicited applications, or conducted a formal interview process.
17. Similarly, Christopher Caropolo, another white employee, who began working at Parks in 1993 in a low-level clerical position at Asser Levy, was promoted to Deputy Center Manager at Asser Levy in 1994, then to Center Manager at the East 54th Street Recreation Center ("East 54th Street") in 1997, and then to Deputy Chief of Recreation for Manhattan in 1998, without ever having to respond to a posting, or submit an application. Again, Parks promoted Carapolo to these positions without ever having posted vacancy notices, solicited applications, or conducted a formal interview process.
18. In addition, Dorothy Lewandowski, a white employee, was promoted to Chief of Operations for the Bronx when then-Parks Commissioner Henry Stern called her and informed her that she was being promoted from Deputy Chief of Operations for Queens. Again, Parks promoted Lewandowski to this position without ever having posted a vacancy notice, solicited applications, or conducted a formal interview process.
19. Further, Parks promoted Keith Kerman, a white employee, to Director of Managed Competition, and then to Citywide Chief of Operations. Again, Parks promoted Kerman to these positions without ever having posted vacancy notices, solicited applications, or conducted a formal interview process.
20. Similarly, Susan Silvestro, a white employee, was promoted to Chief of Administrative Services for Parks' "5-Boro Office." Parks promoted Silvestro to this position without ever having posted a vacancy notice, solicited applications, or conducted a formal interview process.
B. The "Class Of" Program
21. Parks uses its "Class Of" program in furtherance of its pattern or practice of discrimination against black and Hispanic employees, creating a separate promotional track for white Class Of participants whom Parks recruits directly from college.

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22. In comparison to Parks' overall workforce, the composition of the Class Of program is disproportionately white and non-Hispanic.
23. Although many Class Of members leave Parks after two years to pursue other employment or continue their education, those Class Of members who chose to continue their employment with Parks routinely and swiftly have been promoted into high level permanent positions throughout the agency over equally or more qualified black and Hispanic veteran employees.
24. Parks promotes Class Of participants to management positions for which it never posts vacancy notices, seeks applications, or conducts a formal interview process. Indeed, certain management positions are created specifically for Class Of recruits, so that it is impossible for anyone else to apply, interview, and be considered for the positions.
25. For example, within the span of two years, Stacy Leimas, a white Class Of member, was promoted from Parks' Recruitment Coordinator, to Aide to the Senior Advisor to the Commissioner, to Director of Work Experience Program ("WEP") Operations, a newly created position. Parks hand picked Leimas for these positions without affording black and Hispanic employees an opportunity to apply.
26. Parks replaced Leimas as Director of WEP Operations with Janice Felderstein, another white Class Of member who had been working for Parks for only a couple of years. Again, Parks selected Felderstein for this position without affording black and Hispanic employees an opportunity to apply.
27. Parks promoted K.C. Sahl, a white Class Of member, to become the first Manager of Washington Square Park (a job that had not previously existed), to Parks Recreation Manager, and then to Deputy Chief of Operations for Brooklyn. Parks selected Sahl for these positions without affording black and Hispanic employees an opportunity to apply.
28. Parks promoted Chris Clouden, a white Class Of member, who had been working for Parks for only two or three years, to replace Lynda Ricciardone in June 2000 as Chief of Recreation for Manhattan. Parks selected Clouden for this position without affording black and Hispanic employees an opportunity to apply.
29. Parks promoted Chris Trevino, a white Class Of member who had been working for Parks for only one or two years, to Parks Recreation Manager in the Bronx. Parks selected Trevino for this position without affording black and Hispanic employees an opportunity to apply.
C. Individuals Injured by Parks' Discriminatory Promotion Policies
30. Parks' promotion policies discriminate against qualified black and Hispanic employees who have been excluded from seeking promotional opportunities, including, but not limited to, the three individuals discussed below.
Paula Loving
31. For example, Paula Loving is a 37 year-old black woman who was employed full-time at Parks from 1987 through December 1999.
32. Prior to leaving Parks, Loving had been working for approximately seven years as the citywide coordinator for Parks' component of the City's WEP. As such, Loving had been responsible for overseeing the daily operations of Parks' component of WEP in all five boroughs.

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33. In 1997, Parks created and filled the position of Director of WEP Operations, a position which was never posted and for which no interviews were held.
34. Parks selected Stacy Leimas, a white woman and Class Of recruit, to be Director of WEP Operations.
35. Contrary to its own stated policies, Parks promoted Leimas to the position of Director of WEP Operations without posting the position, soliciting applications, or conducting a formal interview process.
36. As Director of WEP Operations, Leimas performed many of the same job duties Loving was already performing or had performed in the past as citywide WEP coordinator.
37. Loving was equally or more qualified than Leimas to be Director of WEP Operations, but Parks never considered Loving for the promotion.
38. Had Parks posted a vacancy notice for the position, Loving would have applied.
39. In the summer of 1998, Parks replaced Leimas as Director of WEP Operations with Janis Felderstein, another white woman and Class Of recruit.
40. Contrary to its own stated policies, Parks promoted Felderstein to the position of Director of WEP Operations without posting the position, soliciting applications, or conducting a formal interview process.
41. Loving was equally or more qualified than Felderstein to be Director of WEP Operations, but Parks never considered Loving for the promotion.
42. Had Parks posted a vacancy notice for the position, Loving would have applied.
Robert Wright
43. Robert Wright is a 46 year-old black man who has been a Parks employee in the Recreation Division since 1979.
44. Wright has vast recreation experience, including coordinating youth recreation programs throughout the City, and managing recreation centers in Queens and Manhattan.
45. Wright is currently working as a Park Recreation Manager at Marcus Garvey Park in Manhattan.
46. In 1995, Mr. Wright sought to transfer from Queens to Manhattan, and spoke with then-Assistant Commissioner of Recreation Rosemarie O'Keefe about the desired transfer.
47. O'Keefe initially offered Wright a choice of recreation centers to manage in Manhattan.
48. Wright chose Asser Levy. At the time, the Center Manager position at Asser Levy was vacant although Parks had not posted a vacancy notice announcing the opening of the position.
49. Asser Levy, located in lower Manhattan, is one of Parks' premier recreation centers. Because of its prominence, the position of Center Manager at Asser Levy often serves as a stepping stone to higher

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promotions.
50. Although O'Keefe initially agreed to transfer Wright to the Asser Levy manager position, a week or two later, she told Wright that the position was not available, and that his choices for transfer were limited to four recreation centers in predominantly black and Hispanic communities.
51. When Wright asked O'Keefe why he had to make another choice, she responded "you just have to." As a result, Wright chose to become the Center Manager for the Hansborough Recreation Center in Harlem.
52. Shortly after O'Keefe rescinded Wright's transfer to Asser Levy, Parks promoted Lynda Ricciardone, a white woman, to Center Manager at Asser Levy.
53. Ricciardone had not even applied for the Asser Levy Center Manager position; rather, Parks offered her the position after she interviewed for a different position in the Operations Division.
54. Wright was equally or more qualified than Ricciardone to be Center Manager at Asser Levy.
55. Since 1995, the Center Manager position at Asser Levy has been vacant on at least two occasions. Contrary to its own stated policies, Parks failed to post vacancy notices, solicit applications, or conduct a formal interview process for the position on either occasion.
56. Had Parks posted vacancy notices announcing the positions, Wright would have applied. Instead, on each occasion, a white employee who did not submit an application for the position was appointed Center Manager of Asser Levy.
Angelo Colon
57. Angelo Colon is a 48 year-old Hispanic man who has been a Parks employee since approximately 1988. Colon currently holds the position of Maintenance and Operations Coordinator.
58. In or around 1996, Colon became the Acting Center Manager at East 54th Street. East 54th Street, located in Manhattan, is one of Parks' premier recreation centers. Because of its prominence, the position of Center Manager at East 54th Street often serves as a stepping stone to higher promotions.
59. In 1997, while Colon was Acting Center Manager at East 54th Street, his supervisor, Deputy Chief of Recreation Ricciardone, rated him "excellent" in every category and commented that "Mr. Colon has always gone above and beyond in any situation. He is currently . . . doing an exceptional job."
60. Nonetheless, in the spring of 1997, Ricciardone transferred Colon to the Center Manager position of the Thomas Jefferson Recreation Center at 112th Street and First Avenue in Harlem - a far less prominent recreation center with significantly fewer resources than East 54th Street.
61. Almost immediately thereafter, Ricciardone promoted Christopher Caropolo, a white employee, to Center Manager of East 54th Street.
62. Colon was equally or more qualified than Caropolo to be Center Manager at East 54th Street.
63. Contrary to its own stated policies, Parks failed to post a vacancy notice, solicit applications, or

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conduct a formal interview process for the East 54th Street Center Manager position.
64. Had Parks posted a vacancy notice announcing the position, Colon would have applied.
65. As a result of Parks' discriminatory pattern or practice with respect to promotion decisions, qualified black and Hispanic employees seeking promotions have been denied the opportunity even to learn of vacancies, let alone apply for them and be considered for promotion.
66. As a result of Parks' discriminatory pattern or practice with respect to promotion decisions, white employees are promoted to management positions to the exclusion of qualified black and Hispanic employees.
Conditions Precedent to Suit
67. All conditions precedent to the filing of this suit have been satisfied.
CLAIM FOR RELIEF
Pattern and Practice of Discrimination
68. Paragraphs 1 through 67 are realleged and incorporated herein by reference.
69. Defendants have engaged in a pattern or practice of employment discrimination in violation of 42 U.S.C. § 2000e-2(a) that has the purpose or effect of excluding qualified blacks and Hispanics from opportunities for promotion within Parks.
Jury Demand
70. The United States hereby demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
WHEREFORE, the United States, prays that this Court enter judgment:
A. awarding compensatory damages to individuals injured by defendants' discriminatory conduct;
B. enjoining defendants from engaging in discriminatory employment practices in violation of Title VII, and requiring that Parks provide a fair, open, and competitive selection process for promotions;
C. directing defendants to take such other affirmative steps as may be necessary to prevent and to remedy employment discrimination and the patterns or practices of discrimination in employment identified above; and
D. granting such further relief as the Court may deem just, together with the United States' costs and disbursements in this action.

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New York Complaint Dated: New York, New York ___________ __, 2002
JOHN D. ASHCROFT Attorney General
By: ____________________________ RALPH F. BOYD, JR. Acting Assistant Attorney General Civil Rights Division
JAMES B. COMEY United States Attorney for the Southern District of New York
By: LISA R. ZORNBERG (LZ-1299) RAMON E. REYES, JR. (RR-5545) Assistant United States Attorneys Telephone: (718) 422-5706/5677
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -x

ROBERT WRIGHT et al.,

:

Plaintiffs, :

- against -

:

HENRY J. STERN et al.,

:

Defendants. :

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

OPINION 01 Civ. 4437 (DC)

APPEARANCES: (see last page)

CHIN, D.J. In this action, plaintiffs allege that the New York
City Department of Parks and Recreation ("Parks") violated federal, state, and city discrimination laws. Plaintiffs, eleven African-American and Hispanic current and former Parks employees, allege that defendants engaged in a pattern and practice of employment discrimination on the basis of race, color, and national origin. They allege also that defendants engaged in a pattern or practice of retaliation against employees who attempted to oppose the discriminatory practices. Plaintiffs sue on their own behalf as well as on behalf of similarly situated individuals.
Before the Court is defendants' motion for summary judgment dismissing certain class claims and certain individual claims. As part of the motion, defendants also seek to exclude the reports and testimony of plaintiffs' expert witnesses, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).

Except to the extent set forth below, defendants' motion is denied, for plaintiffs have presented substantial, concrete evidence to support their claims of discrimination and retaliation. Plaintiffs' statistics, for example, show that in 2000, the year before this lawsuit was filed, 92.9% of the Parks employees earning less than $20,000 per year were AfricanAmerican or Hispanic, while only 14.2% of those earning between $50,000 and $60,000 per year were African-American or Hispanic. Plaintiffs have also presented evidence of discriminatory remarks by high-ranking Parks officials as well as evidence of subjective and ad hoc employment practices that created roadblocks to advancement, including, for example, the filling of vacancies based on personal connections without posting or other public announcement. Plaintiffs have also presented evidence that Parks officials repeatedly retaliated against class members who complained of discrimination. Class members, for example, were denied promotions and raises after they complained. Indeed, two of the named plaintiffs were assigned to work in basements after they complained.
A reasonable jury could find from this and other evidence in the record that Parks engaged in widespread discrimination against African-American and Hispanic employees, in terms of promotions and compensation, and that Parks engaged in widespread retaliation against those who opposed what they believed to be discriminatory practices. I conclude, however, that plaintiffs have not presented sufficient evidence to sustain
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their claims that defendants engaged in a pattern or practice of assigning employees and allocating funds based on race. Likewise, I conclude that plaintiffs have not presented sufficient evidence to support their hostile environment racial harassment claim. Accordingly, defendants' motion for summary judgment is denied in part and granted in part. Defendants' request for preclusion of the testimony of plaintiffs' experts is denied.
BACKGROUND A. The Facts
Construed in the light most favorable to plaintiffs as the parties opposing summary judgment, the facts are as follows:
1. The Parties a. Plaintiffs The named plaintiffs -- Carrie Anderson, Walter Beach,
Jacqueline Brown, Angelo Colon, Paula Loving, Odessa Portlette, David Ray, Elizabeth Rogers, Henry Roman, Kathleen Walker, and Robert Wright -- are current and former Parks employees who are African-American or Hispanic.1

1

As discussed in the decision certifying the class,

plaintiffs inexplicably refer to non-class members as "Caucasian"

even though this group includes Asian Americans, Native

Americans, and others who do not identify themselves as White.

See Wright v. Stern, No. 01 Civ. 4437 (DC), 2003 WL 21543539, at

*1 n.1 (S.D.N.Y. July 9, 2003). In contrast, Stephen Schneider,

plaintiffs' expert, uses "Caucasian" to refer to White employees.

(See, e.g., Schneider Report at 10 n.13). As the class is now

certified, I refer to employees who are not African-American or

Hispanic collectively as "non-class members." Where I use the

(continued...)

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The named plaintiffs are long-time Parks employees, some of whom have been employed at Parks for as many as twentyfive or thirty years. All but one (Beach) were denied promotions because they applied for positions and were rejected or they were unable to apply because the positions were not posted. Eight of the eleven (Brown, Colon, Loving, Portlette, Rogers, Roman, Walker, and Wright) contend they were paid less and/or received fewer discretionary pay raises than comparably situated Caucasian employees. Seven of the eleven (Beach, Brown, Colon, Portlette, Roman, Walker, and Wright) contend that after they complained of discrimination, they were subjected to adverse and retaliatory treatment.
b. Defendants
Parks is an agency of defendant City of New York (the "City"). (Compl.2 ¶ 16). Defendant Henry Stern, who was Executive Director of Parks in 1966, served as Commissioner of Parks during the Koch and Giuliani mayoral administrations, from in or about 1983 until 1989 and from 1995 until February 2002. (Stern Dep. at 38, 43, 49, 61). Defendant Adrian Benepe has been the Parks Commissioner since February 2002. Benepe worked at Parks as a seasonal employee for several years during the 1970s. After joining Parks full-time as an Urban Park Ranger in 1982,

1(...continued) term "Caucasian," I am referring to White employees.

2

References to "Compl." are to the Third Amended

Complaint and Supplemental Class Action Complaint, filed on

August 4, 2005.

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Benepe served in a variety of positions before his appointment as Commissioner by Mayor Bloomberg. (Benepe 12/23/05 Decl. ¶¶ 4-8). Stern and Benepe are sued in both their individual and official capacities.
2. Parks a. Overview Parks is responsible for the care of more than 4,000
City properties, covering almost 29,000 acres of parklands, 7 public beaches, 993 playgrounds, 608 ball fields, 63 swimming pools, 36 recreation areas or senior citizen centers, 17 golf courses and driving ranges, 6 ice skating rinks, 5 major stadia, more than 500 tennis courts, 22 historic house museums, hundreds of statues and monuments, and more than 600,000 street trees. (Id. ¶ 2). Parks' mission is to keep the City's parklands safe and clean, while also providing quality recreational opportunities to the public. (Id. at ¶ 3).
The Commissioner is responsible for the overall operation of the agency. The Commissioner appoints Deputy, Borough, and Assistant Commissioners who are responsible for managing the agency divisions. (Id. ¶ 9). During Stern's term as Commissioner, the third floor of the Arsenal in Central Park served as the main headquarters for central management and highlevel employees ("Arsenal Officials"). (Moss Dep. at 16-17, 20204; Garafola Dep. at 52-53; Spiegel Dep. at 311). In addition, each borough has its own headquarters and a management team, composed of a Borough Commissioner, Chief of Operations, and a
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Deputy Chief of Operations. (Benepe 12/23/05 Decl. ¶¶ 10, 25-26; Stark Decl. ¶ 35; Stern Dep. at 66-67).
b. The Workforce Although the numbers fluctuated over time, Parks employed roughly 3,400 to 5,000 full-time year-round employees at a time during the period in question. Some 2,000 to 4,000 were formal year-round employees and some 1,400 to 1,600 were "seasonal" employees who were paid from the seasonal budget but worked year-round. An additional 3,000 to 7,000 employees worked on a seasonal basis only. (Benepe Decl. ¶ 9; Schneider Report Table C-1; Stark Dep. at 481-82, 486; Stark Dep. at 327-30; Stark Decl. ¶ 22). In addition, there are "seasonal step-up" positions, which involve a year-round employee receiving a temporary, seasonal promotion to a supervisory function. (Stark Decl. ¶ 24). When an employee receives a seasonal step-up, his regular salary is paid out of the full-time budget but the temporary increment is paid out of the seasonal budget. (Id.). Between January 1, 1997, and December 31, 2003, Parks employed 6,295 full-time, year-round employees. Of these, 15 were Native American, 227 were Asian-American, 1,163 were Hispanic, 2,124 were African-American, 2,753 were White, and 13 were unknown. (Schneider Decl. ¶ 13 (class members approximately 52.2%; White 43.7%); cf. Stark Decl. ¶ 3 (48% class members)).
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c. Employment Classifications and Regulations The terms and conditions of employment at Parks are subject to both the civil service structure and the union contracts in place in New York City. (Stark Decl. ¶ 6). As of December 2005, 94.3% of full-time Parks employees were unionized. (Id. ¶ 12). Each union contract sets salaries, including minimum and maximum salaries where applicable, and provides for nondiscretionary salary increments. (Id. ¶ 14). Employees covered by unions work in non-management positions. (Terhune Dep. at 44). For managerial employees, compensation is determined by the "Managerial Pay Plan," which sets minimum and maximum salaries for employees at eight assignment levels. (Stark Decl. at ¶ 16). The Mayor's Personnel Order sets forth revision to those salaries. (Id.). Under the New York State Constitution, all public employees are "civil service" employees. (Id. ¶ 7). There are 220 civil service job titles at Parks, 184 of which are actively held by Parks employees. (Id. ¶ 8; Schneider Decl. ¶ 15). One position, "Commissioner," is "unclassified," and all other positions are "classified." Classified service is divided into four classes -- exempt, non-competitive, labor, and competitive, with "[t]he majority of titles . . . in the competitive class." (Stark Decl. ¶¶ 8-9). Employees in different classes are subject to different terms of employment with exempt and non-competitive classes serving at the will of the appointing officer. (Id. ¶ 10).
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Under civil service law, appointments and promotions of employees in the competitive class are to be made either permanently from a civil service list of employees who have passed an examination or, where no employees are on the civil service list, by provisional appointment. (Stark. Decl. ¶ 10).3 The Parks Working Conditions Agreement, which was in force during the times relevant to this lawsuit, provides that provisional promotions shall be made by seniority. (Pl. Dep. Ex. 42 ¶ 7; Stark Dep. at 337-38).
For most or all of Stern's term as Commissioner, citywide examinations were not given for a number of positions. From at least as early as 1995 until 2000 or 2001, the City did not administer civil service examinations for the title of Park Supervisor, Principal Park Supervisor, Associate Park Service Worker, Urban Park Ranger, Recreation Assistant, and Recreation Supervisor. (Def. Resp. Pl. RFA ## 258-59, 277-78, 280-81).4 As a result, employees in the competitive class frequently served on a provisional basis, which allowed them to advance without

3

Under Department of Citywide Administrative Services

rules, provisional appointments are limited to nine months.

According to David Stark, the Chief Fiscal Officer of Parks, all

city agencies ignore this rule because "if anyone upheld that

rule, twenty-six thousand people would be terminated in the

city." (Stark Dep. at 332-33).

4

After a lawsuit was filed in New York Supreme Court

alleging that Parks unlawfully employed employees in provisional

positions beyond the eleven-month cap, the positions of Principal

Park Supervisors and Park Supervisors were merged into the title

Supervisor of Parks Maintenance and Operations. A Civil Service

test was conducted for this position. The majority of those who

passed the test were non-class members. (Def. Resp. Pl. RFA ##

260-61, 270).

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passing a civil service examination. (Terhune Dep. at 154; Lawless Dep. at 291-92).
In addition to civil service titles, Parks uses "inhouse" titles for its employees. Typically, in-house titles are more descriptive of the employee's actual role and responsibilities at Parks. (Terhune Dep. at 133-35). Though there may sometimes be a correlation between certain in-house titles and civil service titles, there is no Parks document setting forth which in-house titles correspond to which civil service titles. (Id. at 143-48).
3. Evidence of Discrimination In support of their claims of discrimination,
plaintiffs have offered evidence of: (a) statistical imbalances, (b) discriminatory comments purportedly made by Stern and other Parks management officials, (c) displays of nooses, (d) discriminatory practices in awarding wage increases, (e) discriminatory practices in promotions, postings of vacancies, and the interview process, (f) the discriminatory nature of the "Class Of" program, and (g) discriminatory decisions regarding assignments, funding, and staffing.
a. Statistics In terms of salary, plaintiffs' statistics show a significant disparity, as the lower-paid positions are overwhelmingly held by class members while class members hold only a small percentage of the higher paid positions. For
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example, class member composition by income group in 2000 was as

follows:

Salary

Percentage Class Members

Less than $ 20,000

92.9%

$20,000 - $30,000

68.8%

$30,000 - $40,000

54.3%

$40,000 - $50,000

30.2%

$50,000 - $60,000

14.2%

$60,000 - $70,000

20.7%

$70,000 +

13.3%

(Schneider Rebut. App. Table A-6; Ex. ETH-00001; see also Pl. Dep. Exs. 64 & 186).5 Likewise, controlling for job title, class

members were paid between $16.44 and $32.59 less than Caucasian

members on a bi-weekly basis between 1997 and 2003. (Schneider

Rebut. Table 2). Without controlling for job title, class

members were paid from $283.25 to $364.09 less than Caucasians on

a bi-weekly basis over the same time period. (Id.).

With respect to pay growth from a starting salary of

$30,000 in January 1997, the salaries of Caucasians increased, on

average, at a 4% higher rate than class members' salaries.

(Schneider Rebut. Table 4; App. Table A-14). Similarly, Stern

and Benepe recommended salary increases 2.5% greater for non-

class members than for class members. (Schneider Report ¶¶ 72-

73). Moreover, non-class members received significantly higher

5

While the numbers varied slightly from year to year,

the numbers for 2000 -- the year before this suit was filed --

are representative.

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average salaries than class members for each year from 1996 to 2003. For non-managers, the difference in salaries ranged from $6,909 in 1996 to, increasing steadily each year, $9,994 in 2003. (Schneider Rebut. App. Table A-9). For managers, the difference ranged from $5,284 in 1996 to $7,957 in 2001 to $3,407 in 2003. (Schneider Rebut. App. Table A-8).
With respect to promotions, class members suffered statistically significant lower probabilities of receiving "wage promotions"6 than Caucasians, controlling for job title, experience, and tenure. (Pl. Mem. at 25; Schneider Rebut. Table 3 (ranging from 4.2 to 5.23 standard deviations)). From 1996 until 2003, class members made up between 50% and 56% of the non"Class Of" Parks workforce. (Schneider App. Table A-5). Nevertheless, they constituted only some 18 to 23% of the managerial workforce from 1996 to 2001. After the filing of this lawsuit, the number of class members in the managerial workforce increased to around 25% in 2002 and 2003. (Schneider Rebut. Fig. 4, App. Table A-4). A review of the in-house rosters shows that non-class members received 70.9% of the managerial in-house promotions from July 1995 to August 2004 while class members received 29.1% of those promotions. (Schneider Rebut. Fig. 13). Though the parties dispute what constitutes a promotion, defendants' own records show 77% of promotions going to non-class

6

A wage promotion occurs when an employee's salary is

increased by a specified percentage, for example ten percent.

Schneider compared incidents of 5-10% wage increases, at 2.5%

intervals, received by Caucasian employees and non-class members.

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members in 1998 and 82% of promotions going to non-class members in 1999. (Pl. Dep. Ex. 85 (41 out of 53 promotions went to nonclass members in 1998 and 53 out of 65 promotions went to nonclass members in 1999)). As of February 2000, all 27 Principal Parks Supervisors were Caucasian and approximately 72% of Parks Supervisors were Caucasian. (Ex. ETH 0078).
Moreover, plaintiffs' expert Kathleen Lundquist, Ph.D., created a database containing overall panel interview scores for applicants for certain positions between 1995 and January 2004. (Lundquist Report at 12). The race of each applicant was tracked according to the DCAS database or the interview panel summary rating form. Based on her analysis of this database, Lundquist concluded that class members received statistically significant lower interview scores than Caucasians. (Id. at 12-13).
As EEO Officer, Lesley Webster met weekly with Stern and submitted investigation reports and status reports to Stern. Webster testified that she informed Stern that minorities were underutilized in Parks management positions. (Webster Dep. 28086). Indeed, in January 1997, the City Equal Employment Practices Commission ("EEPC") issued a report finding significant underrepresentation of class members in numerous job titles and managerial titles at Park. (Pl. Ex. 67 at 7-9). Parks' reports to the EEPC for the years 1998-1999 contained a section describing the steps Parks would take to address the underutilization of women and minorities in certain positions. (See Pl. Dep. Ex. 89b-h).
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b. Comments
i. Stern Stern's former employees describe him as "eccentric" (e.g., Ricciardone 12/04/02 Dep. at 21) and a "combination of Groucho Marx and Woody Allen" (Benepe DOJ Int. at 57), and there is much in the record to support these characterizations. For example, Stern developed "Parks nicknames" for Parks employees, which were included in the agency-wide manual and by which he referred to employees, even during depositions. (E.g., Def. Vol. II, Ex. 24; Stern Dep. at 35 ("Gorilla" and "Gorilla Gorilla"), 135 ("Zorro"), 258 ("Igor"), 386 ("Home Boy")). Various Parks employees reported that Stern made fun of everyone, regardless of race, including himself. (Benepe DOJ Int. at 57-58; Castro DOJ Int. at 81). Stern prides himself on not being politically correct. (Stern Dep. at 250-54). From the evidence on the record, a reasonable jury could find the following:7 ! Stern said to Tanya Bowers, a former employee of Parks who is Jewish and African-American, "It's wonderful, Tanya. You look black, but when you talk, I know you're Jewish. I can

7

Plaintiffs offer a statement purportedly made by Stern

in 1978 to a friend that African-Americans had "smaller brain

pans" and were therefore intellectually and genetically inferior.

(Newfield Dep. at 9-12). Defendants argue that this statement is

inadmissible. (Def. Reply at 15). Defendants' objection is

sustained. Assuming the statement was made, it is a classic

stray remark unrelated to any employment decision and was made

almost thirty years ago.

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bring you home and know that the silverware will still be there when you leave." (Bowers Dep. at 203).
! Responding to a complaint of discrimination in promotions forwarded from the Mayor's office, Stern asked the complainant, Bernard Lewis, whether he was a drug addict or drank on the job. (Lewis Aff. ¶¶ 7-9).
! Stern attributes the lack of African-Americans in managerial positions to the "smaller number of blacks who are able to perform managerial positions." (Stern Dep. at 150). He further explained that this was because of "background, because they have not in a sense climbed the ladder." (Id. at 150-51).
! Stern believed, as he testified, that class members "racialized" conflicts with non-class member employees. (Id. at 159).
! At a going away party for a Parks employee who was leaving to attend Yale Law School, Stern said that he was "pleased" the departing employee would be attending Yale "where he could meet and rub arms with important people like the DuPonts and the Rockefellers and also he could rub elbows with the quota kids." (Beach 4/3/03 Dep. at 196-97; Stern Dep. at 257-59; Castro Dep. at 152-53 (testifying that he interpreted "quota kids" as referring to African-Americans and Hispanics)).
! While walking with his dog, Boomer, Stern told a group of Chinese children that "they could pet Boomer, but not eat him." (Stern Dep. at 33). Stern described the incident as "warm and affectionate" and "clearly a joke rather than a remark
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denigrating anyone." (Id. at 33, 37). Nevertheless, he apologized when an adult complained about the incident, clarifying that he had not meant to offend anyone. (Id. at 36).
! Stern recommended that "Class Of" employees -- who are recruited primarily from elite colleges through a program described in more detail below -- read The Bell Curve, a book describing purported differences in levels of intelligence among racial groups. (Bowers Dep. at 133-34).
Other Parks officials testified that they had heard that Stern had a reputation for making racial remarks. Castro testified that he occasionally heard Stern use "racial references" in a derogatory manner. (Castro Dep. at 155). Likewise, Moss admitted that Stern had a reputation for making derogatory remarks. (Moss Dep. at 148).
ii. Other Parks Employees Plaintiffs also point to statements and conduct of other Parks employees. For example, ! Robert Garafola, a Deputy Commissioner under Stern, wrote "incompetent people accusing racism" though he admitted that he did not know all of the plaintiffs who had filed lawsuits. (Garafola 9/10/03 Dep. at 122-23). Further, Garafola admitted that there was merit in the statement that minorities had been underrepresented in management and middle management at Parks. (Id. at 30; Garafola Dep. at 12/30/02 at 285). Though Garafola attempted to attribute this underrepresentation to few minorities passing the required tests, he admitted that Parks
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employees were promoted without taking civil service tests. (Garafola 9/10/03 Dep. at 30-33).
! Charlie Cousins, a Caucasian Parks Supervisor in Manhattan, said to class member Jose Cintron, "[Y]ou people are a bunch of animals" in reference to the Puerto Rican Day Parade. (Cintron Dep. at 48-49). He also repeatedly referred to Cintron as a "stupid spic." (Id. at 56). In the presence of Cintron, Cousins also said to class member Richie Laylock, "you are a stupid black Mother Fucker." (Id. at 53-55).
! In March 1999, in a Brooklyn Parks facility, Greg Dawson, Brooklyn's Deputy Chief of Operations, said to Henry Roman, "[W]hat kind of Puerto Rican are you that you don't carry a knife." (Roman Dep. 9/4/02 Dep. at 73; Roman 1/16/03 Dep. at 213-14).
! Patricia Gracia, a Caucasian supervisor, muttered "black bitch" under her breath when class member Arlene Dunbar refused to sign a supervisory conference report dated August 15, 1998. (Dunbar Dep. at 123-24, 139).
! Class member Dennis Moody heard that Phil Rabena, a Caucasian Supervisor on Staten Island, asked an AfricanAmerican WEP worker named Montgomery to pull down his pants to see if black men had larger penises than whites. Moody learned this from three workers who were present at the incident and the WEP worker. Verne Reilly, a Caucasian Parks Supervisor and EEO representative on Staten Island, encouraged the WEP worker to
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report the incident. (Moody Dep. at 30-34; Pl. Dep. Ex. 537).8 Thereafter, Reilly informed Webster that he was concerned Rabena would retaliate against him. (Pl. Dep. Ex. 537; Webster Dep. at 620-22). Indeed, Reilly was transferred shortly thereafter from Staten Island, where he lived, to Harlem, purportedly for disciplinary reasons. (Reilly Dep. at 58).
! In August 2001, Jack Bero, a Caucasian supervisor, made a joke containing the phrase, "It's time to get the niggers out of here." (As Salaam Dep. at 88-89).
! Following a catered special event at the Historic House in the Bronx, Kathleen Walker overheard Commissioner Linn say, "[I]f you give them maybe the bottles that are halfway open,
. . . maybe they won't steal the rest of the bottles." (Walker 9/17/02 Dep. at 106).
iii. Nooses
In 1998, a noose was found hanging from a pipe in the Forestry Office in Staten Island. (Webster Dep. at 315; Moody Dep. at 124-28). A picture of a black man was on the wall behind the pipe so that the head of the man in the picture could be seen through the opening of the noose. (Moody Dep. at 124-28). The noose was removed after a Parks employee complained. Though a complaint was filed, it is unclear whether an investigation was conducted. No one was disciplined for hanging the noose. (Webster Dep. at 315-16).

8

To the extent plaintiffs rely on Moody's testimony

regarding this incident, it is hearsay. At trial, they must

offer evidence of a witness who heard Rabena make this statement.

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In 2000, a noose was hung on a forestry truck in Queens. (Webster Dep. at 319-20, 688-90; Pl. Dep. Ex. 9). Webster testified that she "conducted an investigation[,] . . . found . . . that the noose was taken . . . down, that they were not sure who put the noose up and how long it had been there, and that was it." (Webster Dep. at 320). Again, no one was disciplined. Webster did not refer either allegation to the City's Advocate's Office, and she was unable to specify whether she dealt with the nooses in subsequent trainings. (Id. at 32022, 692).
Each October, between 1995 and 1997 or 1998, Susan Silvestro, a Caucasian supervisor, hung a noose in her office at Five-Boro on Randalls Island, apparently as part of a Halloween display. (Silvestro 4/15/03 Dep. at 180-81, 185; Portlette 8/26/02 Dep. at 89-90; Green Dep. at 124-36). Silvestro continued to display the noose even after an African-American employee complained. (Green Dep. at 125-36).
Stern acknowledged that he was aware that a noose was placed on Parks property in 1998 or 1999 and that McCoy had complained about it, but he did not know if Parks investigated it. (Stern Dep. 159-63). Stern explained that McCoy was of "limited capacity." (Id. at 160). Further, while he understood that nooses could be offensive to African-Americans, Stern did not order any investigation of the nooses on Parks property though he considered them "childish" and "silly." (Id. at 16368). From January 1, 1995, until August 20, 2004, defendants did
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not discipline any Parks employee for displaying a noose on Parks property. (Def. Resp. Pl. RFA #457).
iv. Wage Increases and Promotions When an employee was recommended for a wage increase or promotion, a Planned Action Report form ("PAR") was prepared identifying the candidate and proposing an increase or promotion but leaving a blank for the salary and Stern's signature. (Stark Dep. at 64-65, 69, 259-61, 274-81). David Stark, who oversees the Personnel Department as Chief Fiscal Officer of Parks, would bring these forms to Stern, and together they would review the proposed action. (Id. at 273-74). If Stern approved a request, he would determine a salary and write it on the PAR form. (Id. at 221, 270-78; Terhune Dep. at 56, 65). Generally, Stern did not consult Civil Service law or collective bargaining agreements in determining the salary. (Stark Dep. at 276-78 (observing that Stern filled in salary on PAR forms without consulting any guidelines but also noting that Stern knew the salary structure of the agency)). After Stern approved a planned action and determined a salary, Stark and Terhune would select a civil service title that matched the salary selected by Stern. (Id. at 285-89). Thus, the salary determined the civil service title the employee would receive. (Id.). In some circumstances, employees would have received a change in their in-house titles prior to a PAR being submitted and approved. These individuals, however, would not be
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eligible for a salary promotion until the PAR was approved. (Id. at 264).
In the case of year-round employees paid from the seasonal budget, the PAR would be implemented after Stern signed it. (Id. at 288). In the case of employees paid from the regular Parks budget, Stark and his associates would fill in the "justification" on the PAR after Stern set the salary and signed the form. (Id. at 257-59, 288-89). The completed PARs for these employees would then be sent to City Hall for approval. (Id. at 293).
Stern had ultimate authority to approve or disapprove a job action. (Id. at 270-78; Stern Dep. at 18). In practice, he generally approved the action recommended by his subordinates though sometimes he did not approve salary increases at the level recommended by them. (Stern Dep. at 18; Stark Dep. at 280-85). The level of the raise was almost always determined by the Commissioner. (Stark Dep. 276-68 ("I never knew what [number] he was going to put in there until he did it.")).
Stern said he did not want "to stigmatize" minorities by giving them a plus for diversity, but he nonetheless stated that all things being equal, he would give a slight preference to a minority to help to create diversity. He could not think of an employee to whom he had given that benefit. (Stern Dep. at 31516).
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v. Postings and Interviews
The City of New York Affirmative Employment Plan for 1991 requires that Parks notify employees when job openings occur. (Pl. Dep. Ex. 3 at 5). The City's Personnel Policy, dated June 30, 1998, requires that vacancy notices be posted. (Id. Ex. 45). Likewise, the Citywide Contract, which applied to Parks as of May 24, 1998, and the Parks Working Conditions Agreement require that Parks post notices of job positions, including promotional provisional vacancies, two weeks before the positions are filled. (Def. Resp. RFA ## 60-62; Pl. Dep. Ex. 42 at 2). Since 1994, Stark has maintained a policy that all job vacancies are to be posted. (Stark Dep. at 83-88).
Despite these requirements and policies, Parks did not have an official policy regarding the posting of vacancies and regularly failed to post vacancies prior to the filing of this lawsuit.9 (Terhune Dep. at 180, 405-06; Stark Dep. at 83-88). Indeed, when the personnel department received notice of a vacancy, Terhune would ask whether he had "the go ahead" to post the position. (Terhune Dep. at 406). Between 1995 and March 1999, there were no postings for the following in-house positions: Borough Chief of Operations; Chief of Recreation; Chief/Director of Recreation; Deputy Chief of Operations;

9

As a term of the consent decree in the related action,

discussed below, Parks adopted a new policy for posting and

filling vacancies. Parks increased the number of jobs it posted

after EEOC charges were filed. (Garafola DOJ Int. at 271-72,

287).

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Assistant to the Commissioner; and Chief of Staff. (Def. Resp. Pl. RFA # 74). There were no postings for Principal Parks Supervisor ("PPS") positions during 1995, 1997, or 1999 (Def. Resp. Pl. RFA # 76), and the majority of the PPS positions available during these years went to non-class employees. (Ex. ETH 00078). Terhune counted 34 postings for 1995; 11 for 1996; 32 for 1997; 36 for 1998; 62 for 1999; 97 for 2000; 111 for 2001; and 222 for 2002. (Terhune Dep. at 442, 447, 449, 453, 456, 467; Terhune 1/6/03 Dep. at 146, 165). For at least some of these years, many more promotions occurred than were posted. (Pl. Dep. Ex. 85. (at least 53 promotions in 1998)).
Parks did not have any formal policy for selecting employees for non-posted positions. (Def. Resp. Pl. RFA # 232). Promotions to managerial positions were sometimes made by Arsenal Officials without the knowledge or input of Borough Commissioners. (Spiegel Dep. at 215-17, 237-39). Further, it was not unusual for Stern or other officials to personally choose employees for seasonal step-ups. (Terhune 1/6/03 Dep. at 34-37).
Even when a position was posted, interviews were not always held. During the relevant time period, Parks did not have a written policy regarding when interviews should be used to fill vacant positions or how to determine which applicants should be interviewed. (Def. Resp. Pl. RFA ## 130-31, 144-45). Sometimes an interview would serve only as a formality; an employee previously selected for a position would interview while other employees would not be given the opportunity to interview. For
- 22 -

example, in 1995, Wright approached Assistant Commissioner of Recreation, Rosemary O'Keefe, to request a transfer to the Asser Levy Center, a top facility in Manhattan, which had posted an open position. (Wright 3/26/03 Dep. at 33-35). After making his initial request, Wright was told that Asser Levy was no longer available. In fact, Lynda Ricciardone, a Caucasian, had accepted the position at Asser Levy. In contrast to Wright, however, Ricciardone had not applied for the position or even been aware of or had an interest in the position when the Manhattan Chief of Recreation called her to offer her the position. (Ricciardone Dep. at 91-98).
When interviews were conducted, the interviewers rated the candidates and these ratings were then given to Garafola or Moss, depending on the department in which the promotion fell. (Stark Dep. at 611-12). Parks did not provide interviewers with standard guidelines for conducting interviews, or instructions on how to evaluate and rate answers or how to arrive at an overall rating. (Def. Resp. Pl. RFA ## 194-95, 204). Parks did not have a formal policy establishing what weight the interviewers' scores would be given, and the person selected for promotion was not necessarily the applicant with the highest interview rating. (Id. RFA # 140; Stark Dep. at 614-15). Indeed, on one occasion, a Caucasian applicant with the lowest interview scores was selected over an African-American applicant with the highest score. (Pl. Dep. Ex. 118 at 2).
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In its January 1997 report, the EEPC required that
Parks review "[s]election, evaluation, and promotion
devices/criteria . . . to determine if they have a disparate
impact on protected group members." (Pl. Ex. 67 at 12). Between
the issuance of that report and the initial filing of this
action, Parks did not conduct a disparate impact analysis. (Def.
Resp. Pl. RFA ## 237-38). Between 1995 and August 2004, neither
Parks nor any other city agency has conducted any validity study10 regarding the interview processes used by Parks for
selection of candidates for job vacancies. (Id. RFA ## 173,
181).
The Uniform Federal Guidelines provide that
Where the user has not maintained data on adverse impact as required by the documentation section of applicable guidelines, the Federal enforcement agencies may draw an inference of adverse impact of the selection process from the failure of the user to maintain such data, if the user has an underutilization of a group in the job category, as compared to the group's representation in the relevant labor market, or, in the case of jobs filled from within, the applicable work force.
(Lundquist Report at 6 (quoting Uniform Guidelines, Section 4D,
pp. 38297-98 (1978))). Between 1995 and August 2004, Parks
failed to keep records: (a) of forms indicating ratings given to
interviewees; (b) of the numbers of applicants meeting minimal
10 "The current thinking in the field of Industrial Psychology is that validity is the accumulation of evidence about the appropriateness of the test (or in this case the interview and minimum qualification selection procedures) as a measure of job performance." (Lundquist Report at 8).
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qualifications for vacant positions; (c) identifying the applicants accepted for interviews for posted jobs; and (d) identifying who was hired as part of the "Class Of" program. (Def. Resp. Pl. RFA ## 193, 223-24, 368).
Personnel practices did not change when Benepe became commissioner. (Terhune Dep. at 343; Benepe Dep. at 462). Benepe operated Parks under the same policies and practices as former Commissioner Stern until around June 2005 when Parks entered a consent decree with the United States Department of Justice ("DOJ") in the companion action, discussed below.
vi. The "Class Of" Program In 1994, Stern created the "Class Of" program to "expose recent college graduates to Parks and to city government." (Pl. Dep. Ex. 18 at 2). "Class Of" employees were recruited from colleges across the country, including many Ivy League schools and similar elite, private institutions. (Id. Exs. 27 & 28). The recruitment brochure promised that "[r]ecent graduates who come to Parks work closely with senior officials, learning from them on a daily basis," and "take on a high-level of responsibility within the agency." (Id. Ex. 18 at 2). According to a "Class Of" employee quoted in the brochure, recruits may be "considered for positions normally given to individuals with more experience." (Id. at 8). Beginning in 1995, Parks hired between ten and more than forty recent college graduates to work for the "Class Of" program each year. (Def. Resp. Pl. RFA # 314). Though these employees worked
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full-time on a year-round basis for Parks, Parks paid the majority of them from the seasonal budget and therefore they were not included in Parks' headcount. (Stark Dep. at 234-35; Def. Resp. Pl. RFA ## 316, 321, 324). Until August 2000, "Class Of" employees were promised and received an approximate 20% raise (roughly $5,000) following their first year of employment with Parks. (Pl. Dep. Ex. 24; Def. Resp. Pl. RFA # 326; Kay Dep. at 220-21). Further, "Class Of" employees had first priority for junior manager vacancies. (Terhune 1/6/03 Dep. at 101). Several "Class Of" employees were assigned to work directly with Stern or his deputies on the third floor of the Arsenal; these "Class Of" employees were predominantly or exclusively non-class members. (Stern Dep. at 264).
Though Stern testified that there was a policy to hire all minority applicants who applied to the program, the "Class Of" recruiter testified that she had not been so instructed. (Id. at 388-89; Kay Dep. at 49-50, 55). The racial and national origin composition of "Class Of" employees was approximately: 72.1% Caucasian; 6.3% Hispanic; 11.0% African-American; 0.4% Native American; 7.4% Asian; and 2.8% Unidentified. (Def. Resp. Pl. RFA # 378). Parks never conducted any analysis to determine if Parks' method of recruitment, hiring, or selection of "Class Of" employees had a disparate impact on African-Americans or Hispanics. (Id. RFA ## 369-71).
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vii. Segregation, Underfunding, and Understaffing With the exception of the EEO officer, Webster, and one or two class members who served in secretarial or administrative jobs, all thirty to forty employees on the third floor of the Arsenal were non-class members. (Weizmann Dep. at 67-68; Moss Dep. at 44; Sahl Dep at 191-92). Noting the absence of class member employees working at the Arsenal, Danny Weizmann, a "Class Of" employee, described Parks as being run like it was a "private club" for whites only. (Id. at 69-71). Benepe, as well as other high-level Parks personnel, acknowledged that Parks sometimes assigned employees on the basis of race and/or linguistic abilities to neighborhoods reflecting that language or race because of demands from the neighborhood. (Benepe 7/19/01 Interview at 46 ("It's true that we have placed people by demand from a community, both implied and stated."); see also Spiegel Dep. at 126-28; Ricciardone Dep. at 196-98). As an example of an implied request, Benepe noted that community groups would ask that Parks' employees understand the needs and interests of the community. Beyond these requests, some community groups would "be as bold as to say [someone] who looks like us, who speaks our language, who belongs to our community." (Benepe 7/19/01 Interview Tr. at 46-47). Likewise, the recruiter for the "Class Of" Program acknowledged that the "Class Of" Program, at the request of supervisors, took race into account in making assignments. (Kay Dep. at 49-51). Further, multiple high-level Parks personnel noted that the staff of a facility
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often reflected the racial composition of the area. (Moss Dep. at 40-41; Stern Dep. at 342-67).
Many class members worked in one or more boroughs where they did not reside, and Terhune did not have a policy of assigning people to locations near their homes. (E.g., Wright Aff. ¶¶ 1-3; Lewis Aff. ¶ 2; Clark Aff. ¶ 3; Henry Aff. ¶¶ 1-2, 5; Terhune Dep. at 293). At least some class members indicated that they would not mind moving work locations or working outside the borough in which they lived if it would facilitate their advancement at Parks. (Jacobs-Pittman Dep. at 174-75; Wright 3/26/03 Dep. at 33-35; Brown 1/3/03 Dep. at 216).
All named plaintiffs and additional class members observed that the Parks workforce was geographically segregated by race or national origin. (See Pl. Additional Facts at 29 #1718 (collecting citations)). Throughout the relevant time period, the few African-American and Hispanic Park and Recreation Managers and Center Managers were assigned to predominantly African-American and Hispanic neighborhoods. (Wright Aff. ¶ 12; Henry Aff. ¶ 2; Ex. G00616-620; Ex. G00905-953; Ex. REC00007273). Conversely, Parks' facilities and districts in non-AfricanAmerican or Hispanic neighborhoods were supervised and managed almost exclusively, if not exclusively, by non-class employees. (Wright Aff. ¶ 12; Roman Dep. at 57-58; Ex. G00616-620; Ex. G00905-953; Ex. REC000072-73). Indeed, when Beach recommended certain class members for a Center Manager position at a pool in Williamsburg, Brooklyn, a predominantly Caucasian neighborhood,
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the Borough Commissioner informed Beach that he and Garafola would make the decision, a step the Borough Commissioner had not taken with any other Center Manager promotion Beach had made. (Beach 4/3/03 Dep. at 156-65 (noting that he had unilaterally selected employees for Center Manager positions in the past); 9/29/02 Dep. at 109). Similarly, African-American and Hispanic supervisors have supervised predominantly African-American and Hispanic crews. (Wright 9/12/02 Dep. at 65; Beach 9/29/02 Dep. at 108-09).
Multiple class members testified that many facilities and parks in predominantly African-American and Hispanic neighborhoods were in disrepair and underfunded and understaffed by Parks. (See, e.g., Anderson 9/5/02 Dep. at 80-83; Brown 8/28/02 Dep. at 75-78). Stark testified that there are no documents reflecting the budget allocation or funding of individual centers, and Parks does not conduct a cost analysis for each park. (Stark Dep. at 304, 681).
4. Evidence of Retaliation When Webster, who has served as Parks EEO Officer since
1995, began in the position, no one told her what her functions were. (Webster Dep. at 393-95).
In 1996, the City issued a report card on City agencies' discrimination complaint and investigation practices. (Pl. Dep. Ex. 66). The report noted that Parks'
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EEO officer11 expressed a preference for the "quick solution" approach to resolving complaints of discrimination, which is evidenced in the majority (93%) of the 15 formal complaint files available for review . . . . Complaints involving serious allegations of race discrimination, sexual harassment and retaliation were resolved within one to two days and often did not reflect any components of the Plan's investigation procedures had been performed . . . The file displays an apparent misunderstanding that race discrimination laws may be violated even while civil service laws and rules have been complied with.
(Id. Ex. 66 at 11-12). Commenting on the poor record-keeping at
Parks, the report further observed that the summaries of the
complaints and investigations "appear to have been written up for
purposes of our review." (Id. at 12).
Many class members did not feel comfortable filing
complaints with the EEO Office. (Anderson 9/5/02 Dep. at 106-08;
Brown 8/28/02 Dep. at 102-06; Roman 9/4/02 Dep. at 99-102; Walker
9/17/02 Dep. at 94-100; Wright 9/12/02 Dep. at 107-110).
Anderson explained that "most blacks and Latinos [who] work in
the agency do not go to Leslie Webster, because she wasn't going
to do anything about it." (Anderson 9/5/02 Dep. at 107-08).
Those who did file complaints did not feel that Webster took
those complaints seriously. (Cintron Dep. at 114 (she seemed
incompetent); Beach 4/3/03 Dep. at 118-24 (never responded to his
allegations); Brown 8/28/02 Dep. at 102-05).
11 It is unclear whether the report card refers to Webster or her predecessor. Though the report was issued after Webster had assumed the EEO Officer position, the complaint refers to the Officer as a "he."
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Employees who filed complaints were at least sometimes left in the dark regarding the outcome of those investigations or the basis for the outcome. In a 2001 report, the EEPC observed that notices to parties did not state explanations for the EEO's decision. In a survey conducted by the EEPC, seven of eleven respondents indicated that they did not receive written notification of their complaints. (Pl. Dep. Ex. 78 at 4-5). Webster was not aware of a single case where anything beyond a supervisor's conference was sought. (Webster Dep. at 603-05).
Approximately thirty separate Parks employees filed retaliation complaints with agencies outside of Parks between 1995 and 2003 -- seven named plaintiffs brought individual retaliation claims, and between twenty and twenty-five claims were filed by other Parks employees. (Def. Ex. 37).
Multiple class members, including Brown, Colon, Portlette, Roman, Walker, and Wright, indicated they were denied promotions and/or salary increases after filing complaints. Additionally, Portlette was moved to a basement office after filing her complaint and Wright's pay was cut when he was promoted.
Various class members testified that Parks officials either implicitly or explicitly indicated Parks' disapproval of the filing of discrimination complaints. In 1997, Webster told Brown that complaining was frowned upon by the agency. (Brown 8/28/02 Dep. at 103-05). In 2001 and 2002, Colon's supervisor, Christopher Caropolo, repeatedly conditioned any salary increases
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on the termination of this lawsuit. (Colon 9/9/02 Dep. at 7-8;
Colon 4/17/03 Dep. at 27-35). After filing charges with the
EEOC, Roman was informed that his request for a transfer to
Staten Island would be approved if he withdrew his claims.
(Roman 1/16/03 Dep. at 173-74; Pl. Dep. Ex. 438). Benepe told
Wright that he should not file EEOC charges to avoid "any bad
feelings." (Wright 9/12/02 Dep. at 122-23; Wright 3/26/03 Dep.
at 155-57).
B. Prior Proceedings
Plaintiffs filed charges of discrimination with the
Equal Employment Opportunity Commission (the "EEOC") beginning in
March 1999. The same year, the United States Department of
Justice ("DOJ") commenced its own investigation into plaintiffs'
claims. On January 30, 2001, the EEOC issued a Determination,
amended on March 14, 2001, finding reasonable cause to believe
that Parks engaged in a pattern and practice of racial
discrimination through its promotions and assignments, and
referred its findings to DOJ. Specifically, the EEOC concluded
that:
The evidence of record shows that since 1997 a greater proportion of Caucasians were placed in permanent positions in at least six (6) out of eight (8) categories where permanent positions were offered. In comparison, African American and Hispanic employees filled a higher percentage of provisional, seasonal, non-competitive and labor class positions in twelve (12) out of sixteen (16) job categories.
The record also shows that the promotion ratios for Hispanics and Blacks do not
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correspond with the entire workforce profile ratios. For example, for fiscal years 1998 and 1999, 70% of the employees given promotions were Caucasian while only 50% of Respondent's workforce was Caucasian. In contrast, in 1998 and 1999, respectively[,] Blacks got 17% and 11% of promotions while representing the workforce12 and Hispanics got 1.5% and 11% [of promotions] while comprising 16% of the workforce.
Examination of the evidence further reveals that Respondent's supervisory lines of authority are almost completely segregated by race and color. The investigation has revealed that all of the managers and directors at the Recreation Centers are Caucasian. The investigation also uncovered that almost no Caucasian employees report to minority supervisors.
Based on the above, there is reasonable cause to believe that Respondent has unlawfully discriminated on the basis of race and national origin through promotion and assignment. The investigation also reveals that certain individuals were retaliated against for attempting to protect their rights as employees under Title VII. . . .
(First Am. Compl. Ex. 3).
Plaintiffs commenced their lawsuit on May 24, 2001. On
June 19, 2002, the United States filed an action against the City
and Parks alleging a pattern and practice of racial and national
origin discrimination in promotional decisions. By order of this
Court dated July 15, 2002, the two cases were consolidated.
Following extensive discovery, I certified the class by
memorandum decision dated July 9, 2003. Wright v. Stern, No. 01
Civ. 4437 (DC), 2003 WL 21543539, at *1 n.1 (S.D.N.Y. July 9,
12 The amended determination omits the percentage of the workforce made up by African-Americans.
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2003). On June 8, 2005, DOJ and Parks entered into a consent decree in which Parks agreed to implement certain personnel practices, and the DOJ action was closed.
On August 4, 2005, plaintiffs filed their Third Amended Complaint, in which they assert pattern or practice and individual disparate impact and disparate treatment claims based on alleged failures to promote and compensate, segregation in work assignments, discriminatory allocation of resources, and discouragement of the filing of discrimination claims. Plaintiffs further assert a pattern or practice hostile work environment claim. Finally, plaintiffs assert pattern or practice and individual claims that Parks retaliated against class members who filed complaints.13
This motion followed. DISCUSSION
Defendants move to exclude the reports and testimony of plaintiffs' experts and for summary judgment on the class claims and most of the individual claims. First, I address defendants' Daubert challenges. Second, I discuss defendants' motion for summary judgment dismissing the various class claims. Third, I
13 Plaintiffs also purport to assert "First Amendment" and "Freedom of Speech" claims. (Compl. pp. 66, 69). Plaintiffs do not appear to be pursuing these claims, which, in any event, are more properly treated as retaliation claims. Accordingly, the "First Amendment" and "Freedom of Speech" claims are dismissed, without prejudice to plaintiffs' retaliation claims under the employment statutes.
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discuss defendants' motion for summary judgment dismissing the individual claims. A. Plaintiffs' Expert Witnesses
Plaintiffs rely on the testimony of three expert witnesses, as follows:
Dr. Donald Tomaskovic-Devey, who holds a Ph.D. in Sociology, is a Professor of Sociology at the University of Massachusetts and the former Director of Graduate Programs of Sociology at North Carolina State University. He has served as an expert in numerous employment discrimination cases. Additionally, he served as a consultant to DOJ for cases involving automobile stops. His research focuses primarily on gender and racial workplace inequality and organizational research methodologies. (T-D Report14 at 2; Pl. Mem. at 73). Dr. Stephen Schneider, who holds a Ph.D. in Business and Applied Mathematics, has served as an expert in multiple federal actions, including actions involving employment discrimination and wage and hour dispute cases. (Schneider Report at 1-2). Dr. Kathleen Lundquist, who holds a Ph.D. in Psychology, has extensively researched, designed and conducted statistical analysis, and provided consultation in the areas of job analyses, test validation, performance appraisal, employment testing, and research design. She has served as an expert on testing and
14 References to "T-D Report" and "T-D Rebut." are to the report and rebuttal report of Tomaskovic-Devey.
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validation for both the U.S. Department of Labor and the DOJ. (Lundquist Report at 2-3).15
Defendants move to preclude these experts from testifying, and argue that their reports are so flawed that the Court may not consider them in ruling on defendants' motion for summary judgment. I discuss the law governing the admissibility of expert reports and then apply it to the reports here.
1. Applicable Law
A witness qualified as an expert will be permitted to testify if his or her testimony "'will assist the trier of fact to understand the evidence or to determine a fact in issue.'" United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999) (quoting Fed. R. Evid. 702). To be admissible, expert testimony must be both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
To be reliable, expert testimony must be based on sufficient facts or data, and it must be the product of reliable principles and methods properly applied. Figueroa v. Boston Scientific Corp., 254 F. Supp. 2d 361, 365 (S.D.N.Y. 2003). The trial court's task
15 Defendants offer their own experts. Dr. Catherine S. Cline holds a Ph.D. in Psychology and has worked for twenty-five years in the areas of job analysis and test construction. (Cline Report at 2-3). Dr. Christopher Erath, who holds a Ph.D. in Economics, is Senior Vice President at National Economic Research Associates in Boston, Massachusetts. (Erath Report at 1). Dr. Christopher Winship holds a Ph.D. in Sociology from Harvard University, where he serves as the Norman Tishman and Charles M. Diker Professor of Sociology. (Winship Report at 1-2).
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is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In other words, expert testimony should be excluded if it is "speculative or conjectural," or if it is based on assumptions that are "'so unrealistic and contradictory as to suggest bad faith.'" Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (quoting Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir. 1984)). An expert's opinion is inadmissible if it "is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). The trial court has latitude in deciding how to test an expert's reliability. Daubert listed a number of factors, but this "list of factors was meant to be helpful, not definitive." Kumho Tire, 526 U.S. at 151. Hence, factors that a trial court may consider include, among others: whether a theory or technique relied on by an expert can be and has been tested; whether the theory or technique has been subjected to peer review and publication; whether there is a known or potential rate of error; whether the theory or technique has been generally accepted in the relevant community; whether the discipline itself lacks reliability; where an expert's methodology is experience-based, whether the methodology has produced erroneous results in the past and whether the methodology has been generally accepted in the relevant community; and whether an expert's method is of a
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kind that others in the field would recognize as acceptable. Daubert, 509 U.S. at 593; Kumho Tire, 526 U.S. at 151.
In addition to being reliable, expert testimony must be relevant. An expert opinion is relevant if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702; see Daubert, 509 U.S. at 591 ("This condition goes primarily to relevance."). Ultimately, an expert's role is to assist the trier of fact by providing information and explanations.
The proponent of expert testimony must establish its admissibility by a preponderance of the evidence. See Astra Aktiebolag v. Andrx Pharms., Inc., 222 F. Supp. 2d 423, 487 (S.D.N.Y. 2002) (citing Fed. R. Evid. 104(a) and Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)); Fed. R. Evid. 702 advisory committee's note (2000 Amendments) ("[T]he proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence."). Rejection of expert testimony, however, is still "the exception rather than the rule," Fed. R. Evid. 702 advisory committee's note (2000 Amendments), and "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system." United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996); see also Lippe v. Bairnco Corp., 288 B.R. 678, 685-87 (S.D.N.Y. 2003). Thus, "in a close case the testimony should be allowed for the jury's consideration. In a close case, a court should permit the testimony to be presented
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at trial, where it can be tested by cross-examination and measured against the other evidence in the case." Lippe, 288 B.R. at 700 n.6.
2. Application a. Tomaskovic-Devey In his report, Tomaskovic-Devey summarizes relevant
scientific literature in the field of cognitive bias. In the context of the work environment, Tomaskovic-Devey reports that research has demonstrated that cognitive errors such as stereotyping, in-group bias, and attribution are more likely to arise when evaluation criteria are "vague, ambiguous, and subjective." (T-D Report at 6). Tomaskovic-Devey further reports that employers can "substantially reduce cognitive bias in personnel decisions" if they implement "[a] well designed system for posting job vacancies, for collecting reliable, timely, and job relevant information on candidates for promotion, and for systematically assessing candidates' qualifications relative to valid criteria." (Id. at 7). Applying the scientific literature to the personnel practices of Parks, he concludes that "the policies and practices at [Parks] allow decisions to be made in an arbitrary and racially biased manner. . . . Managerial practice at [Parks] was ideally suited to produce and tolerate racial discrimination in employment, promotion, and job assignment." (Id. at 25-26) (emphasis added).
In response, defendants have offered the expert report of Winship, who attacks Tomaskovic-Devey's report on multiple
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grounds, on the basis of which defendants seek exclusion of Tomaskovic-Devey's report and testimony. Specifically, defendants argue: first, Tomaskovic-Devey failed to review all relevant evidence before forming an opinion; second, TomaskovicDevey summarized the evidence in an argumentative, one-sided manner; third, Tomaskovic-Devey failed to present evidence that is inconsistent with his own; fourth, Tomaskovic-Devey's reliance on stranger-to-stranger interactions was misplaced; and fifth, Tomaskovic-Devey offered his personal evaluation of the testimony.
Though several of these arguments have merit, they do not warrant exclusion of the testimony of Tomaskovic-Devey nor do they preclude the Court from considering the report at summary judgment. Instead, these arguments go to the weight rather than the admissibility of this evidence. Tomaskovic-Devey's conclusions are based on research examining the effect of cognitive errors on personnel decisions. The scientific research relied upon by Tomaskovic-Devey has "been developed through laboratory, field, and survey research . . . [and] has been replicated repeatedly and . . . validated through peer review." (Id. at 3). The proper course of action therefore is to permit Tomaskovic-Devey to testify, subject to "[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof[, which] are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.
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To the extent Tomaskovic-Devey will testify that, based on his understanding of the relevant scientific literature, Parks' personnel practices "allow decisions to be made in an arbitrary and racially biased manner" and that they were "suited to produce and tolerate racial discrimination in employment, promotion, and job assignment" (T-D Report at 25-26), his testimony is both relevant and reliable. Accordingly, defendants' request to exclude the testimony of Tomaskovic-Devey is denied.
b. Schneider
Using the personnel data from the three databases provided by Parks,16 Schneider performed a series of regression analyses -- analyses controlling for variables that might impact the results of the data, such as job title, job tenure, and tenure with the City and employee age (as a proxy for work experience). These regression analyses evaluate full-time, yearround employees -- whether paid out of the seasonal budget or the regular budget -- who were paid for at least six months of the
16 Schneider relied on Department of Citywide Administrative Services ("DCAS") data, Payroll Management System ("PMS") data, and Parks Seasonal Tracking System ("STS") data. PMS and DCAS are both databases maintained by the City; DCAS is the repository of personnel information for City employees, and PMS is the system used by the City to pay its employees. STS is maintained by Parks to track seasonal personnel. Because STS only provides usable data starting in 1996, Schneider's analysis focuses on the period between January 1996 and December 2003. (Schneider Report at 3).
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year.17 (Schneider Report at 4-5). Schneider's report also includes "simple statistics" -- statistics showing the breakdown of Parks personnel without controlling for variables other than race. For example, Schneider compared the salaries of class members and non-class members without controlling for title, tenure with Parks, or any variables other than race.
Based on his analyses, Schneider concludes as follows: (1) class members are systematically underpaid relative to similarly situated non-class members; (2) class members are systematically placed in lower paying job titles, resulting in a significant salary gap; (3) class members are denied their proportionate share of wage promotions, i.e., a one-time increase in salary of a pre-determined amount; (4) class members receive systematically smaller wage increases; and (5) class members have experienced a slower growth in pay rate over time than their similarly-situated Caucasian counterparts. (Id. at 25). In response, defendants offer the expert report of Erath, who criticizes Schneider's report on various grounds. Schneider rebutted Erath's report, responding to the various criticisms and modifying some of his data based on Erath's report.
Defendants seek to exclude Schneider's report, arguing that "his flawed methodology precludes consideration of his
17 Parks Opportunity Program ("POP") workers were excluded from his database. The POP was implemented to provide on the job training to persons on public assistance. POP workers are paid out of the Human Resources Administration budget rather than the Parks budget. Further, POP workers work only temporarily for Parks. (Schneider Report at 5-7).
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opinions." (Def. Mem. at 8; see also Erath Report at 1 (the data set created by Schneider contains "so many errors that the ultimate analyses are rendered meaningless"). The request for preclusion is denied. First, most of the alleged errors cited by defendants -- some of which also existed in Erath's report -result from the nature of the raw data maintained and provided to plaintiffs by Parks. (Schneider Rebut. at 3). For example, some year-round employees are consistently coded as temporary seasonals while some who received seasonal step-ups are not tracked on the Parks Seasonal Tracking System. (Id. at 4). Second, to the extent errors existed in Schneider's initial report, Schneider's rebuttal report adopted Erath's revised database, with minor modifications, and still reaches the same conclusions. Hence, whatever the alleged deficiencies of his report, the rebuttal report is sufficiently reliable. Even Erath concedes that the database in the rebuttal report would permit experts to "perform statistical analysis and obtain meaningful results." (Erath Dep. at 83). As to the remaining criticisms, they go to the weight rather than the admissibility of the evidence.
Defendants argue, for example, that Schneider should have used "applicant flow figures" rather than the "wage promotion" methodology he adopted. (Def. Mem. at 9). But Schneider's wage promotion analysis reflects the hiring practices at Parks -- Parks' routine failure to post vacancies severely limited the applicant pool and its practices with respect to
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changing titles made it difficult to create databases reflecting applications. See, e.g., Malave v. Potter, 320 F.3d 321, 326-27 (2d Cir. 2003) (allowing alternative statistical methodologies where defendants' failure to maintain proper records created impediments to statistical analyses); cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 651 (1989) (noting that alternative statistical proof is permissible where preferred statistical proof would be difficult or impossible to ascertain).
Schneider's conclusions are neither speculative nor conjectural. As with Tomaskovic-Devey's testimony and report, defendants may challenge Schneider's analyses through crossexamination and the admission of the testimony of their own experts. Defendants' request to exclude Schneider's testimony is denied.
c. Lundquist's Report Finally, defendants move to exclude Lundquist's report and testimony for three reasons: (1) Lundquist's statistics are based on a small sample; (2) the sampling was not random; and (3) her conclusions are based on improperly aggregated data. (Def. Mem. at 54-55). These arguments do not require exclusion. Lundquist and defendants' experts dispute whether sufficient data was available to create a database depicting applicant pools. (Compare Lundquist Rebut. at 2-4 (Cline improperly failed to aggregate data) with Cline Report at 20-25 (explaining her analysis of interviews)). According to Lundquist, Parks "failed to provide complete data and
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documentation on the selection procedures as required by Federal guidelines. The Parks Department has not produced records of all vacancies, listings of candidates for all vacancies, and was unable to identify the selected candidates for all the positions filled." (Lundquist Rebut. at 1). Further, both sides contest the appropriate method for evaluating small samples such as the interview data, and I cannot say as a matter of law that only one or the other is permissible. Both sides may challenge the methods employed by the opposing party's experts at trial; however, the conclusions are sufficiently reliable to be admissible.
In short, defendants' motion to exclude the testimony of plaintiffs' expert witnesses is denied, although the written reports themselves will not be received into evidence. Plaintiffs' experts may testify to their conclusions and will be subject to cross-examination and specific objections under the Federal Rules of Evidence. The experts will not allowed to bridge the gap between their conclusions and the ultimate question of whether Parks unlawfully discriminated; they will not be permitted to testify in an argumentative manner; and they will not be permitted to opine on the credibility of fact witnesses. B. Class Claims
Under Title VII, "pattern or practice" claims present a means by which plaintiffs may challenge systemic discrimination in the work place. Plaintiffs have brought pattern or practice disparate treatment, disparate impact, hostile work environment,
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and retaliation claims. Defendants move for summary judgment on these claims.
1. Disparate Treatment a. Applicable Law Pattern or practice disparate treatment claims involve
"allegations of widespread acts of intentional discrimination against individuals." Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 158 (2d Cir. 2001). To prevail on a pattern or practice disparate treatment claim, whether brought individually or on behalf of a class, plaintiffs must demonstrate that intentional discrimination was the employer's "standard operating procedure." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) ("Teamsters"); see also Robinson, 267 F.3d at 158. Proof of random or isolated acts of discrimination will not be enough to make out such a claim. See Teamsters, 431 U.S. at 336. Instead, plaintiffs must present sufficient evidence to meet their prima facie burden of showing that defendants had a policy, pattern, or practice of intentionally discriminating against a protected group. Robinson, 267 F.3d at 158. To meet this burden, plaintiffs typically rely on two types of evidence: "'(1) statistical evidence aimed at establishing the defendant's past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination.'" Id. (quoting 1 Arthur Larson et al., Employment Discrimination § 9.03[1], at 9-18 (2d ed. 2001)); see also 1 Merrick T. Rossein, Employment Discrimination Law and
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Litigation § 2:28, at 2-94 (2006) ("It is important always to present stories of actual discrimination against individuals to make the statistics come alive . . . .").
For statistics to give rise to an inference of discrimination, they must be statistically significant, for disparity among protected and unprotected groups will sometimes result by chance. Ottaviani v. State Univ. of N.Y., 875 F.2d 365, 371 (2d Cir. 1989). Though not dispositive, statistics demonstrating a disparity of two standard deviations outside of the norm are generally considered statistically significant. See, e.g., Smith v. Xerox Corp., 196 F.3d 358, 365-66 (2d Cir. 1999) (disparate impact claim); Ottaviani, 875 F.2d at 371 (disparate treatment claim, collecting cases). "A finding of two standard deviations corresponds approximately to a one in twenty, or five percent, chance that a disparity is merely a random deviation from the norm . . . ." Ottaviani, 875 F.2d at 371. Where plaintiffs demonstrate "gross statistical disparities" between the protected and unprotected groups, statistics "alone may . . . constitute prima facie proof of a pattern or practice of discrimination." Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977) (citing Teamsters, 431 U.S. at 339).
If plaintiffs meet their prima facie burden, "[t]he burden then shifts to the employer to . . . demonstrat[e] that the [plaintiffs'] proof is either inaccurate or insignificant." Teamsters, 431 U.S. at 360; see Robinson, 267 F.3d at 159. For example, a defendant might introduce evidence challenging "the
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source, accuracy, or probative force" of the statistics offered by plaintiffs or counter plaintiffs' statistics with their own statistical evidence. Robinson, 267 F.3d at 159 (quotations and citation omitted). Consequently, the parties in pattern or practice litigation frequently engage in "the well-known phenomenon of 'statistical dueling' between . . . highly-paid experts." McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 1, 6 (D.D.C. 2004).
Though "statistics are not irrefutable," Teamsters, 431 U.S. at 340, errors in statistical evidence do not necessarily render them meaningless. See EEOC v. Joint Apprenticeship Comm. of Joint Indus. Bd. of Elec. Indus., 186 F.3d 110, 116 (2d Cir. 1999) (finding that even though EEOC's statistics were not "flawless," they were sufficient to establish prima facie case of discrimination). Whether plaintiffs' statistical analyses "carry the plaintiffs' ultimate burden will depend . . . on the factual context of each case in light of all the evidence presented by both the plaintiff[s] and the defendant[s]." Bazemore v. Friday, 478 U.S. 385, 400 (1986) (per curiam). Moreover, "statistics come in infinite variety and . . . their usefulness depends on all of the surrounding . . . circumstances." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 n.3 (1988) (citation and quotation omitted).
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b. Application
I apply the law first to plaintiffs' promotion and compensation claims and second to plaintiffs' segregation and underfunding claims.
i. Promotion and Compensation
From the evidence before the Court, a reasonable jury could find that defendants engaged in a pattern or practice of discriminating against African-American and Hispanic employees in promotions and compensation. That evidence includes the following:
First, plaintiffs' statistical evidence shows, as summarized above, that class members were systemically placed in lower-paying jobs, were systemically underpaid relative to similarly situated Caucasians, and experienced slower growth in pay compared to similarly situated Caucasians. For example, between 1996 and 2003, class members held roughly 85% of the positions paying less than $20,000 while holding less than 16% of the positions paying more than $50,000 and barely holding 10% of the positions paying more than $70,000.18 Controlling for job title, class members were paid between $16.44 and $32.59 less
18 Though these figures do not take into account factors other than race, "simple statistics" may be considered in evaluating discrimination claims. See Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869, 877 (2d Cir. 1997). Moreover, plaintiffs' regression analyses -- analyses taking into account factors other than race -- show statistically significant disparities in the wages and promotions received by class members and non-class members. Thus, plaintiffs' statistical evidence taken as a whole demonstrate a pattern or practice of discrimination at Parks.
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than Caucasian members on a bi-weekly basis between 1997 and 2003 -- statistically significant disparities. (Schneider Rebut. Table 2). Salaries of Caucasians increased, on average, at a 4% higher rate than class members' salaries -- again, a statistically significant level.
With respect to promotions, compared to Caucasians, there was a statistically significant lower probability that class members would receive a wage promotion. Although more than 50% of Parks' non-managerial workforce consisted of class members, for the five-year period from 1996 through 2001, class members made up only 18 to 23% of the managerial workforce. Even the EEOC, the EEPC, and DOJ concluded that the statistics showed significant underrepresentation of class members in managerial and higher-paid positions.
Second, plaintiffs offer anecdotal evidence of specific instances of discrimination and retaliation in promotions and compensation. For example, Rogers earned approximately $27,000 per year when she was the Center Manager of the East 54th Street Recreation Center, while Lynda Ricciardone's salary was $35,000 per year one month after securing the Center Manager Position at the Asser Levy facility. (Pl. Dep. Ex. 140). Moreover, Wright's salary was decreased when he received a promotion to Parks Recreation Manager; he therefore earned between $6,000 and $8,000 less than Caucasian Parks Recreation Managers. Even though she had been working as WEP Citywide Coordinator for several years, Loving was denied the chance to even apply for a newly created
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"Director of WEP" position. A Caucasian employee with less experience than she was awarded the position instead.
Third, plaintiffs have offered evidence of numerous statements by Stern and other Parks officials that demonstrate discriminatory and racially hostile attitudes on the part of decision-makers. A reasonable jury could conclude that these comments reflected a discriminatory animus.
Finally, plaintiffs have offered evidence of personnel practices at Parks that would permit discrimination to flourish. Managerial positions were routinely filled without announcement or posting. Stern had unilateral authority to determine salaries, which would then drive the assignment of civil service titles. Moreover, Stern and other senior officials would sometimes personally select employees for promotions, including for low-level positions. Parks did not have policies in place for determining which vacant positions should be posted, who would be given interviews, or how interviewees should be rated; Parks only haphazardly followed the policies and procedures that were in place.
Defendants offer several arguments in response, but defendants fail to demonstrate that no genuine issue of material fact exists for trial. For example, defendants contend that "[t]he mere absence of minority employees in upper-level positions does not suffice to prove a prima facie case of discrimination without a comparison to the relevant labor pool." (Def. Mem. at 8 (quoting Carter v. Ball, 33 F.3d 450, 456-57 (4th
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Cir. 1994))). In this case, however, plaintiffs do not rely solely on the absence of class members in upper-level positions. Rather, they rely on other statistics, personnel practices, and anecdotal evidence as well. Though several of these statistics do not take into account factors other than race, they nevertheless provide support for plaintiffs' regression analyses and weaken defendants' challenges to those analyses. Moreover, again, many of defendants objections -- including their objections to Schneider's wage promotion analysis -- go to weight rather than admissibility, and it will be up to the jury to decide whether to accept these criticisms.
Defendants also argue that there is nothing inherently sinister about subjective or ad hoc employment practices. Such "subjective and ad hoc" employment practices, however, bolster plaintiffs' claim that defendants discriminated against class members. Multiple courts have observed that "'[g]reater possibilities for abuse . . . are inherent in subjective definitions of employment selection and promotion criteria,'" such as those in place at Parks. Davis v. Califano, 613 F.2d 957, 965 (D.C. Cir. 1979) (quoting Rogers v. Int'l Paper Co., 510 F.2d 1340, 1345 (8th Cir. 1975)) (omission in original); accord Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1016 (2d Cir. 1980) (recognizing that subjective hiring practices might mask racial bias). Indeed, plaintiffs argue that the dangers inherent in subjective employment practices are even greater at Parks because Stern was at the helm, citing Stern's alleged "racist
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statements, racially discriminatory acts by him and others, and his indifference to EEO matters, including his racially discriminatory justifications for Parks' failure to promote class members." (Pl. Mem. at 6). Defendants respond that plaintiffs have "embarked on a diatribe against Henry Stern" (Def. Reply at 1) and describe some of his statements as neutral or ambiguous (Def. Mem. at 34). Though Stern's various statements and actions are susceptible to multiple interpretations, a reasonable jury could conclude that he held racial prejudices and that these prejudices influenced his treatment of Parks employees. Though certainly not determinative, evidence of Parks' personnel practices further support plaintiffs' prima facie case.
Defendants have offered meritorious criticisms of many of the statistical analyses offered by plaintiffs. Nevertheless, though plaintiffs' analyses are imperfect, the variety of analyses and the consistency of the results decrease the risk and degree of harm of potential errors. Because material issues of fact exist as to whether Parks' intentionally discriminated in granting promotions and setting wages, defendants' motion for summary judgment with respect to plaintiffs' disparate treatment compensation and promotion claims is denied.
ii. Segregation and Underfunding Defendants also move for summary judgment on plaintiffs' disparate treatment claims based on purported segregation in assignments and underfunding of Parks in predominantly African-American or Hispanic neighborhoods.
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Plaintiffs have raised fair concerns, particularly in light of admissions of Parks management officials that, on occasion, employees were placed in work locations based on race. Work assignments based on race generally run afoul of the Constitution. See Patrolmen's Benevolent Ass'n of N.Y. v. City of N.Y., 310 F.3d 43, 52 (2d Cir. 2002) (upholding jury finding that police department violated Equal Protection Clause in assigning policemen to precinct based on race). Even where clients, in this case New York City residents, request that an assignment be based on race, a government employer does not have "carte blanche to dole out work assignments based on race." Patrolmen's Benevolent Ass'n, 310 F.3d at 52-53. Rather, the employer must demonstrate that the racially-based assignment was "'motivated by a truly powerful and worthy concern and that the racial measure . . . adopted is a plainly apt response to that concern.'" Id. (quoting Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996)). Where an agency assigns employees based on race, even if only occasionally, it gives effect to racial prejudices. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").
Despite these concerns, the motion to dismiss the segregation claim is granted because plaintiffs have failed to present sufficient evidence that it was Parks' standard operating procedure to make assignments based on race. Plaintiffs have relied primarily on anecdotal evidence -- testimony of class
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members who note that in their experience assignments are based on race, and that park crews correspond to the ethnicity of the neighborhoods in which the parks were located. But plaintiffs have not presented sufficient statistical evidence to support their claim, as the only statistics offered in this respect are the flawed statistics of Schneider based on the mistaken belief that employees worked in the zip codes used in his analysis when they did not. Nor have plaintiffs offered any evidence to show that, even assuming there are statistical disparities, the disparities resulted from a practice or policy of assigning employees based on race.
Likewise, plaintiffs' underfunding claim primarily relies on the testimony of class members that parks in AfricanAmerican and Hispanic neighborhoods were in worse condition and received repairs and new equipment less frequently than parks in Caucasian neighborhoods. This conclusory testimony, however, is not supported by concrete particulars, or by any statistical analysis. Plaintiffs have not presented sufficient evidence to demonstrate that Parks had a policy, pattern, or practice of underfunding parks in predominantly African-American or Hispanic neighborhoods. Accordingly, defendants' motion is granted in this respect.
2. Disparate Impact Plaintiffs also allege that Parks' policy regarding the
posting of positions and the application and interview process
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disparately impacted class members. Defendants move for summary judgment as to this claim.
a. Applicable Law Title VII prohibits not only overt and intentional discrimination, but also facially neutral practices that have a disparate impact on protected groups. Malave v. Potter, 320 F.3d 321, 325 (2d Cir. 2003); Smith v. Xerox Corp., 196 F.3d 358, 364 (2d Cir. 1999) ("[D]isparate impact theory targets practices that are fair in form, but discriminatory in operation.") (citation and internal quotation marks omitted). Thus, disparate impact claims offer a means to erase "employment obstacles, not required by business necessity, which create built-in headwinds and freeze out protected groups from job opportunities and advancement." Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 160 (2d Cir. 2001) (quoting EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000)). To meet their prima facie burden in a disparate impact case, plaintiffs must demonstrate that the employer "uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(k)(1)(A)(I). Specifically, plaintiffs "must (1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two." Robinson, 267 F.3d at 160; see also Gulino v. New York State Educ. Dep't, No. 03 Civ. 9062, 2006 WL 2380829, at *17 (2d Cir. Aug. 17, 2006). In identifying a specific employment practice,
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plaintiffs must do more "than rely on bottom line numbers in an employer's workforce." Smith, 196 F.3d at 365. Rather, plaintiffs must demonstrate a statistical disparity "'sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.'" Id. (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)). As in pattern or practice disparate treatment cases, statistics must be statistically significant to give rise to an inference of causation. Id. Statistical results cannot be "persuasive," however, "absent a close fit between the population used to measure disparate impact and the population of those qualified for a benefit." Carpenter v. Boeing Co., 456 F.3d 1183, 1197 (10th Cir. 2006)
In disparate impact cases, parties frequently disagree on the proper populations or markets to be compared in statistical analyses. For cases involving allegations of discriminatory hiring, the relevant comparison is "between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market." Malave, 320 F.3d at 326 (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-51 (1989)) (alterations in original). In contrast, for cases alleging discrimination in promotions, the relevant comparison "is customarily between the composition of candidates seeking to be promoted and the composition of those actually promoted." Id. Despite these principles, the Supreme Court has clarified that alternative
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comparisons may be appropriate where such statistics "will be difficult if not impossible to ascertain." Wards Cove, 490 U.S. at 651.
b. Application i. Plaintiffs' Prima Facie Case
Plaintiffs have identified policies and practices that they contend are discriminatory; they allege that class members have been adversely impacted by Parks' failure to regularly post and interview for vacancies and Parks' interview procedures. Plaintiffs further allege that class members have been adversely impacted by the "Class Of" Program.
Plaintiffs have also presented evidence of statistically significant disparities between class members and non-class members with respect to promotions, compensation, and the "Class Of" Program, as discussed above. The numbers are stark, as there are far lower percentages of class members in the higher-paid positions than there are in the lower-paid positions. Class members received statistically significant lower interview scores than Caucasians. Notably, the level of disparity dramatically increased after the time period in which this lawsuit was filed. (Lundquist Report at 13).
Plaintiffs have also presented evidence of a causal connection between the policies and practices in question and the statistical disparities. First, plaintiffs' statistics are statistically significant and therefore give rise to an inference of causation. See Smith, 196 F.3d at 365.
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Second, Parks failed to examine the validity of its interview process or its minimum requirements for jobs. (Lundquist Report at 16-32). The Uniform Federal Guidelines provide that "an inference of adverse impact of the selection process" may be drawn where an employer fails to maintain data on adverse impact where an employer "has an underutilization of a group in the job category, as compared to the group's representation in . . . the applicable work force." (Id. at 6 (quoting Uniform Guidelines, Section 4D, p. 38298)). Here, Parks repeatedly indicated an awareness of underutilization of class members in certain job categories in its annual reports to the EEPC, and yet failed to maintain data.
Third, as numerous Parks officials acknowledged, Parks did not regularly post available positions. With the exception of Beach, all of the named plaintiffs identified positions for which they would have applied had they been posted. Further, Parks officials conceded that it did not have any policies regarding when interviews should be conducted or how interviewees' scores should be evaluated.
As Tomaskovic-Devey concluded, Parks' subjective personnel practices could "allow decisions to be made in an arbitrary and racially biased manner" and were "ideally suited to produce and tolerate racial discrimination in employment, promotion, and job assignment." (T-D Report at 25-26). A reasonable jury could accept these conclusions and find that plaintiffs have met their prima facie burden of demonstrating
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that Parks' subjective employment practices adversely impacted class members.
ii. Defendants' Contentions Defendants move for summary judgment on this claim because: (1) it was not included in the named plaintiffs' EEOC charges; (2) it is not truly a disparate impact claim; and (3) plaintiffs have failed to make the requisite statistical showing of disparate impact. (Def. Mem. at 49-50). Defendants' first argument fails. Though federal courts generally do not have jurisdiction over claims not alleged in an EEOC charge, it is well settled that there is jurisdiction where a claim is "reasonably related" to the EEOC charges. See Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). Here, the disparate impact claim is clearly reasonably related to the EEOC charges, for Parks' promotion policies "'would fall within the scope of the EEOC investigation . . . of the charge that was made.'" Williams v. N.Y.C. Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam) (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001) (internal quotation marks omitted)). Defendants' next argument -- that the disparate impact claim alleges that defendants acted with discriminatory intent and, therefore, they have not identified a facially neutral policy or practice (Def. Mem. at 52) -- also fails. First, disparate impact and disparate treatment theories are "simply alternative doctrinal premises for a statutory violation,"
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Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 115 (2d Cir. 1992), and "[e]ither theory may . . . be applied to a particular set of facts," Teamsters, 431 U.S. 324, 335 n.15 (1988). There is nothing inconsistent in acting with intent to discriminate while adopting a facially neutral policy that has a disparate impact; the two are not mutually exclusive.
Second, defendants' argument misconstrues the facially neutral practice alleged by plaintiffs. Plaintiffs' disparate impact claim focuses on Parks' subjective promotion practices, the type of practice that the Supreme Court has held can give rise to a disparate impact claim. Watson, 487 U.S. at 990-91. These practices -- failing to post, failing to interview, the interview procedures used by Parks, and the "Class Of" Program -are not discriminatory on their face, for they apply regardless of an employee's race. As these subjective practices were employed, however, plaintiffs allege -- and a reasonable jury could conclude based on the statistical and other evidence -that class members were disparately impacted.
Finally, defendants challenge plaintiffs' disparate impact statistics. For the reasons stated in the discussions of the experts' reports and the disparate treatment claims above, defendants' objections are overruled. This prong of defendants' motion is denied.
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3. Hostile Work Environment a. Applicable Law "[W]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation marks omitted); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 604 (2d Cir. 2006).19 In the context of individual hostile work environment claims, it is well settled that for a plaintiff to recover, her working environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris, 510 U.S. at 21-22. Where plaintiffs allege a pattern or practice of a hostile work environment, however, the legal standards become murkier. Though neither the Supreme Court nor the Second Circuit has clarified the requirements plaintiffs must meet to satisfy their prima facie burden in a pattern or practice
19 The same standards govern hostile work environment claims whether such claims are based on race or sex. Morgan, 536 U.S. at 116 n.10.
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hostile work environment action,20 several district court
opinions provide guidance.
In EEOC v. Mitsubishi Motor Manufacturing of America,
Inc., 990 F. Supp. 1059 (C.D. Ill. 1998), plaintiffs alleged that
defendants engaged in a pattern or practice of sexual harassment.
Defendant moved for summary judgment, arguing that, because
hostile work environment claims require proof that conduct was
subjectively offensive, they are inconsistent with the pattern or
practice framework. The district court rejected defendants'
argument, concluding that it did "not need to make a great leap
of faith to state the obvious: Title VII authorizes a pattern or
practice action for sexual harassment." Id. at 1070.
Next, the court turned to how such a claim should be
proven. Adopting the two-stage liability process used in pattern
or practice disparate treatment and disparate impact claims, the
court found that at the liability stage, plaintiffs must
demonstrate, "by a preponderance of the evidence, that an
objectively reasonable person would find the existence of: (1) a
hostile environment of sexual [or racial] harassment within the
company (a hostile environment pattern or practice) . . . ; and
20 Indeed, as defendants observe, the Supreme Court and Courts of Appeal have not held that hostile work environment claims are consistent with the pattern or practice framework. (Def. Reply at 12 n.8). In the absence of contrary authority, I agree, as held in EEOC v. Mitsubishi Motor Manufacturing of America, Inc., 990 F. Supp. 1059 (C.D. Ill. 1998), and EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001), that, where an employer has a policy or practice of tolerating a hostile work environment, a pattern or practice claim is an appropriate mechanism by which employees may challenge that discriminatory conduct.
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(2) a company policy of tolerating (and therefore condoning and/or fostering) a workforce permeated with severe and pervasive sexual [or racial] harassment." Mitsubishi, 990 F. Supp. at 1073. Multiple district courts have since adopted this twopronged standard in evaluating claims for sexual or racial hostile work environment pattern or practice claims. See, e.g., Employees Committed for Justice v. Eastman Kodak Co., 407 F. Supp. 2d 423, 430 (W.D.N.Y. 2005) ("Rather, the issue under the pattern or practice framework is whether there was a systemic culture of harassment and whether it was 'standard operating procedure' to permit such conduct without consequences or discipline to those responsible."); EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001) (denying summary judgment for defendants on pattern or practice hostile work environment claim, concluding that triable issue of fact existed as to whether a reasonable person would find the working environment at issue severely or pervasively hostile).
As to whether a hostile work environment existed under the first prong, summary judgment will only be appropriate "if it can 'be concluded as a matter of law that no rational juror could view [the alleged conduct] as . . . an intolerable alteration of . . . working conditions.'" Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001). Sporadic or episodic instances of harassment will generally not be sufficient to survive summary judgment on a claim of hostile work environment harassment; "[r]ather, the [employee] must demonstrate either that a single
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incident was extraordinarily severe, or that a series of incidents were 'sufficiently continuous and concerted' to have altered the conditions of [the] . . . working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). Factors to be considered in evaluating whether a work environment is sufficiently hostile include "the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Holtz, 258 F.3d at 75 (quoting Faragher, 524 U.S. at 787-88). Though these standards have been articulated in the context of individual hostile work environment claims, they are equally useful in determining whether a work environment was sufficiently hostile for a pattern or practice claim.
The totality of the circumstances must be considered, for a hostile work environment "occurs over a series of days or perhaps years and . . . a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts." Morgan, 536 U.S. at 115; see also Mitsubishi, 990 F. Supp. at 1073 (trier of fact must consider totality of circumstances); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 885 (D. Minn. 1993) (fact-finder should consider that "each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment . . . created may exceed the sum of the
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individual episodes"). In the context of pattern or practice cases, the focus is on the "the landscape of the total work environment, rather than the subjective experiences of each individual claimant." Mitsubishi, 990 F. Supp. at 1074.21
Even where a hostile work environment exists, plaintiffs must demonstrate a specific basis for imputing liability to the employer. In individual actions, an employer is not liable if it demonstrates that (1) it took reasonable steps to prevent and to promptly remedy harassing conduct, and (2) the harassed employee unreasonably failed to avail herself of any corrective or preventive opportunities made available by the employer. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61 (1998); Faragher, 524 U.S. at 807. In a pattern or practice case, plaintiffs must demonstrate that the company had notice of the hostile work environment and was negligent in its response to the environment. Mitsubishi, 990 F. Supp. at 1074. "When harassing behavior occurs frequently enough and is both common and continuous, a company can reasonably be said to be on 'notice' of a severe and pervasive problem of . . . harassment that constitutes a hostile environment." Id. (citing Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1531 (M.D. Fla. 1991) ("an employer incurs liability when harassing behavior happens frequently enough that the employer can take steps to
21 Although a single "extraordinarily severe" incident may be sufficient to create a hostile environment in an individual case, Cruz, 202 F.3d at 570, it is hard to conceive of any single incident that could support a pattern and practice claim.
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halt it")). To demonstrate negligence, plaintiffs must show that the employer knew or should have known that the work environment was hostile and nevertheless failed to take steps to correct the problem on an agency-wide basis. Id. at 1075.
b. Application
Although plaintiffs have offered evidence of sporadic or episodic incidents of discriminatory conduct, they have not presented evidence from which a reasonable jury could find a systemic culture of harassment or that racial harassment was standard operating procedure at Parks. On the record before the Court, no reasonable jury could find that Parks was permeated with discriminatory conduct of a severe or pervasive nature, sufficient to alter the conditions of employment on a classwide basis.
Parks was spread out over the five boroughs, with employees working in more than 4,000 locations. Though plaintiffs have offered evidence of offensive statements made by Stern and others, this evidence is insufficient to show that racial harassment was standard operating procedure at Parks. The statements were spread out over a period of time and many were made in private. In fact, several of the named plaintiffs denied being subjected to a hostile work environment.22
22 Plaintiffs have also offered admissible evidence of three noose incidents in the late 1990s. These incidents, however, were few in number and remote in time and location. Only a small number of employees observed the nooses. Moreover, one of the noose incidents involved a supervisor displaying a noose in her workplace as part of her annual Halloween
(continued...) - 67 -

It would be mere speculation for a jury to conclude that a significant number of class members were subjected to severe or pervasive conduct or that the conditions of employment for a significant number of class members were altered, both subjectively and objectively.
4. Pattern or Practice Retaliation
a. Applicable Law Title VII prohibits an employer from subjecting an employee to adverse consequences "because he has opposed any practice made an unlawful employment practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Thus, Title VII has two different clauses that each protect a different type of activity; the "opposition clause" protects an employee's opposition to an unlawful employment practice, while the "participation clause" protects participation in a proceeding under Title VII. See Deravin v. Kerik, 335 F.3d 195, 203 n.6 (2d Cir. 2003). Further, "Title VII is violated when 'a retaliatory motive plays a part in adverse . . . actions toward an employee, whether or not it was the sole cause.'" Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003) (internal citations omitted). On a motion for summary judgment, a plaintiff must first demonstrate that "[he] was engaged in protected activity

22(...continued) decorations.

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. . . [and that] the employer was aware of that activity." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998); see also Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). The term "protected activity" refers to action taken to protest or oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3; see also Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134-35 (2d Cir. 1991). Informal as well as formal complaints constitute protected activity. Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Moreover, to establish that his activity is protected, a plaintiff "need not prove the merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed." Id.; see also Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989).
Next, as the Supreme Court recently clarified, a plaintiff must demonstrate that he was subject to an action "that a reasonable employee would have found . . . materially adverse, 'which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2006 WL 1698953, at *10 (June 22, 2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (quotation omitted). Thus, the category of challenged actions that might be considered retaliatory is broader than "adverse employment actions" or "ultimate employment decisions," for the scope of Title VII's "anti-retaliation provision extends beyond [the]
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workplace-related or employment-related retaliatory acts and harm" prohibited by Title VII's anti-discrimination provision. Id.
An adverse action is not defined "solely in terms of job termination or reduced wages and benefits[.] . . . [L]ess flagrant reprisals by employers may indeed be adverse." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). At the same time, however, "'not every unpleasant matter short of [discharge or demotion] creates a cause of action' for retaliat[ion]." Id. (quoting Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)); see also Burlington N. & Santa Fe Ry., 126 S. Ct. 2405, 2006 WL 1698953, at *10 (noting that petty slights and minor annoyances will not suffice). Whether a particular action is considered retaliatory will "often depend on the particular circumstances," for "[c]ontext matters." Burlington N. & Santa Fe Ry., 126 S. Ct. 2405, 2006 WL 1698953, at *11. Courts must examine closely "each case to determine whether the challenged employment action reaches the level of 'adverse,'" Wanamaker, 108 F.3d at 466, for an action that makes little difference to one employee may be materially adverse to another employee, Burlington N. & Santa Fe Ry., 126 S. Ct. 2405, 2006 WL 1698953, at *11.
Finally, a plaintiff must show that "there was a causal connection between the protected activity" and the allegedly retaliatory action. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998). A plaintiff may prove causation either "(1)
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indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or . . . (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000); see also Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). Although the burden that a plaintiff must meet to establish a prima facie case at the summary judgment stage is de minimis, the plaintiff must at least proffer competent evidence of circumstances that would be sufficient to permit a rational finder of fact to infer a retaliatory motive. See Cronin v. Aetna Life Ins., 46 F.3d 196, 203-04 (2d Cir. 1995).
Here, plaintiffs allege that Parks engaged in a pattern or practice of retaliating against employees who engaged in protected activity. Accordingly, plaintiffs must demonstrate that retaliation in response to protected activity was Parks' standard operating procedure. Teamsters, 431 U.S. 324, 336 (1977).
b. Application Plaintiffs have presented evidence from which a reasonable jury could find that Parks engaged in a pattern or practice of retaliating against employees who engaged in protected activity. First, class members engaged in protected activity of which defendants were aware both informally by complaining to supervisors and more formally by filing charges or complaints of
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discrimination with the Parks' EEO office or the EEOC as well as by filing this lawsuit.
Second, a reasonable jury could find that class members were subjected to adverse, material consequences, including, for example, the following:
! Walter Beach, the Chief of Recreation in Brooklyn until May 1999, was asked by the Brooklyn Commissioner to resign after Beach wrote memoranda in August 1998 and March 1999 expressing concern over Parks' treatment of class members and several named plaintiffs filed charges with the EEOC. (Beach 4/3/03 Dep. at 84-89).
! Jacqueline Brown received a negative performance evaluation after she complained to the EEO officer of discriminatory treatment; the evaluation referred to her complaints. (Brown 1/30/03 Dep. at 140-41).
! Angelo Colon received warnings and a downgraded performance evaluation after he filed discrimination charges with the EEOC. (Ex. G00462-63, G00403; Colon 4/17/03 Dep. at 268-70). In 2001 and 2002, Colon's supervisor repeatedly conditioned salary increases on the termination of this lawsuit. (Colon 9/9/02 Dep. at 7-8; Colon 4/17/03 Dep. at 28-35).
! After she complained about being denied a position, Odessa Portlette was assigned to work in the basement for six months. (Portlette 2/12/03 Dep. at 117-19).
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! Kathleen Walker was also moved to a basement office after she filed charges with the EEOC. (Walker Dep. 9/17/02 Dep. at 100-02).
Third, a reasonable jury could also find a causal connection between the adverse actions and the protected activity. Plaintiffs have offered, for example, direct evidence of causation, as some supervisors explicitly offered raises, promotions, or desired transfers in return for the dropping of claims of discrimination. Plaintiffs have offered evidence directly showing retaliatory animus: Jacqueline Brown was told by Webster that complaining was frowned upon by Parks and Benepe asked Wright not to file this lawsuit. Plaintiffs have also offered circumstantial evidence of causation, including, for example, the timing of adverse actions shortly after a class member engaged in protected activity.
Finally, the record also contains evidence that retaliation occurred on an agency-wide basis. Between 1995 and 2003, for example, some thirty Parks employees filed retaliation complaints with outside agencies. Seven of the named plaintiffs have offered specific evidence of retaliation against them. Moreover, the record contains evidence of lack of receptiveness to discrimination complaints, not just from individual Parks supervisors, but an attitude flowing from the top down. The EEPC also found a number of flaws in Parks' EEO complaint processing procedures.
This prong of the motion is denied.
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C. Individual Claims 1. Teamsters Presumption versus McDonnell Douglas Burden Shifting Where a trier of fact concludes that an employer
engaged in a pattern or practice of discrimination, individual class members are entitled to a presumption "that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy." Teamsters, 431 U.S. at 362. A class member therefore need only show that she was subjected to an adverse employment decision. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 159 (2d Cir. 2001). The employer may then rebut this presumption by offering admissible evidence from which a jury could conclude that the employment decision was made for lawful reasons. Id. at 159-60; see also Ghosh v. N.Y. City Dep't of Health, 413 F. Supp. 2d 322, 335-36 (S.D.N.Y. 2006) (holding that defendants did not meet burden of articulating non-discriminatory reason for employment decision where they did not submit admissible evidence to support their articulation) (citing Mandell v. County of Suffolk, 316 F.3d 368, 380 (2d Cir. 2003)).
The Teamsters presumption generally arises in the context of determining the parties' burdens at trial rather than on summary judgment. Nevertheless, defendants have conceded that, for the purposes of summary judgment only, the individual plaintiffs' claims are entitled to the Teamsters presumption should the class claims survive summary judgment. (Def. Opp. to
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Mot. to Bifurcate at 7). Hence, because I have found that material issues of fact exist with respect to the pattern or practice disparate treatment, disparate impact, and retaliation claims, plaintiffs receive the benefit of the Teamsters presumption as to their individual compensation, promotion, and retaliation claims.
2. Compensation Defendants move for summary judgment dismissing the
compensation claims of Jacqueline Brown, Angelo Colon, Paula Loving, Odessa Portlette, Elizabeth Rogers, Henry Roman, Kathleen Walker, and Robert Wright.
To survive a motion for summary judgment on the compensation claims under the Teamsters presumption, each plaintiff must first present evidence from which a reasonable jury could find that she was subjected to an adverse employment decision, i.e., that defendants failed to compensate her equally. Specifically, a plaintiff must demonstrate that she was paid less than a member of a non-protected group for work requiring substantially the same responsibility. See Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999); Wright v. Milton Paper Co., No. 99 Civ. 5724 (SJ), 2002 WL 482536, at *8 (E.D.N.Y. Mar. 26, 2002). A plaintiff need not demonstrate that two positions are identical; rather, it is sufficient to show that the positions are substantially equivalent. Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995).
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If the plaintiff meets this minimal burden, defendants must then offer admissible "evidence that a legitimate nondiscriminatory reason existed" for the employment decision. Robinson, 267 F.3d at 162. The employer's asserted nondiscriminatory reason is "subject to further evidence by the [plaintiff] that the purported reason for . . . [the adverse employment decision] was in fact a pretext for unlawful discrimination." Teamsters, 431 U.S. at 362 n.50 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-06 (1973)).
For most of plaintiffs' compensation claims, the analysis turns on whether plaintiffs have identified an appropriate comparator. Whether positions are "substantially equivalent" is usually a question of fact for the jury. LavinMcEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001) (equal pay claim); see also Tomka, 66 F.3d at 1312 ("A claim of unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an EPA claim.").
Defendants' motion for summary judgment dismissing the individual compensation claims is denied, for each of the individual plaintiffs in question has presented sufficient evidence to raise a genuine issue of material fact for trial. Jacqueline Brown, for example, received only one discretionary pay increase -- a $3,000 raise in 1988 -- in more than twenty years at Parks, while arguably comparably situated Caucasian employees received more discretionary pay increases. (Brown 8/28/02 Dep. at 66; Def. Exs. 41, 79; Pl. Mem. at 118). Angelo
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Colon, a Center Manager, points to at least four Caucasian Center Managers who received higher salaries than he did from May 1977 through October 2000. (See Pl. Mem. at 114; Compl. ¶ 122). A reasonable jury could conclude that Odessa Portlette was similarly situated to Brian Clark and Sarah Horowitz, Caucasian employees who were paid more than Portlette. (Pl. Mem. at 103; Portlette 8/26/02 Dep. at 18-19; Portlette 2/12/03 Dep. at 17-18; I00346-47). Elizabeth Rogers earned $27,148 as Recreation Director of Thomas Jefferson Recreation Center, while non-class member Thomas Medich earned $32,985 as the Recreation Director of the Carmine Street Center. (Def. Ex. 41). Though Rogers has earned $27,962 since 1999, her Caucasian replacement as Recreation Director of the 54th Street Center, Christopher Miller, earned $31,314 shortly after taking over the position. (Id.; Pl. Mem. at 99).
Some of the purported comparators relied on by plaintiffs are not similarly situated, as a matter of law, but I do not take the time now to discuss each purported comparator. Plaintiffs will not be permitted at trial to put into issue an unreasonable number of comparators. The Court will set a limit, and defendants may also move in limine to narrow the number of comparators plaintiffs may put into issue at trial.
3. Promotion Claims With the exception of Robert Wright and Elizabeth
Rogers, defendants move for summary judgment on plaintiffs' promotion claims.
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To survive summary judgment on their failure to promote claims under the Teamsters presumption, each plaintiff must first demonstrate evidence from which a reasonable jury could find that he or she was subjected to an adverse employment decision, i.e., that defendants failed to promote him or her, during the relevant time period. Where a position was posted, the plaintiff must therefore demonstrate that he applied for that position but was rejected. Where a position was not posted, the plaintiff must demonstrate either that he would have applied for the position had he known of its availability or that he did apply through the employer's informal processes and was rejected. See Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004); Mauro v. S. New Eng. Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000) (per curiam). Defendants may then offer evidence demonstrating a legitimate, non-discriminatory reason for the employment decision, which the plaintiffs may argue is pre-textual.
Defendants' motion is also denied to the extent it seeks dismissal of the individual promotion claims. With the backdrop of the statistical, anecdotal, and other evidence that supports the pattern and practice claims, the individual plaintiffs have presented sufficient additional evidence to meet the minimal Teamsters burden. All of the individual plaintiffs have identified positions for which they were qualified, and for which they were rejected or of which they were not aware because of Parks' failure to post them. Issues of fact exist as to
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whether the explanations offered by defendants were pretextual. Some examples are illustrative:
! Carrie Anderson testified that she submitted an application for the position of Parks Recreation Manager to Chief of Operations Dorothy Lewandowski and identified the job posting to which she responded. (Anderson 9/5/02 Dep. at 63-64; Anderson 1/09/03 Dep. at 168-69; Ex. PL-00029). She did not receive this promotion. Likewise, Anderson produced evidence that she applied for a PPS position but was also denied. (Anderson 9/5/02 Dep. at 96-97; D00705-706). Thus, Anderson has demonstrated that she was subject to adverse employment decisions with respect to these positions. Defendants have not offered any non-discriminatory explanation for the failures to promote. Indeed, defendants do not contest that Anderson was qualified, instead arguing that Anderson did not apply for these positions or that these positions did not exist. (Def. Mem. at 79). But these are factual arguments to be made to the jury.
! Jacqueline Brown asserts that she was denied promotions to the posted positions of Queens Deputy Chief of Recreation in 1999 and Deputy Chief of Operations in 2001 and to the unposted or improperly posted positions of Director of Central Recreation, Director of Urban Parks Rangers, Assistant to the Commissioner, Parks Administrator, Chief of Operations, PRM, and Chief of Recreation. Defendants have not addressed Brown's claims as to the unposted or not properly posted positions.
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! Paula Loving's supervisor testified that Loving was smart, ambitious, reliable, a good communicator, and a very good worker. Indeed, he nominated her for and she was awarded the January 1997 employee of the month award, because she had coordinated the WEP Program, which had grown from 250 participants to more than 4,000 participants, supervised the WEP coordinators in all five boroughs, acted as a liaison with HRA, and produced reports documenting the program's growth. (Pl. Dep. Ex. 95A). Loving had worked as Citywide WEP Coordinator for four years when Parks created a Director of WEP Operations position in 1997. Leimas, who had been working on a WEP-related matters for less than one year, was awarded the position. Because the position was not posted, Loving could not even apply for the new position. When Leimas left Parks one year later, Parks appointed Felderstein -- a 1997 college graduate who had worked at Parks for less than one year -- without posting the position. As to both positions, a reasonable jury could certainly conclude that defendants' explanations for these decisions are pretextual, for Loving had significantly more experience performing substantially the same responsibility.
! Robert Wright received a decrease in salary from $55,433 to $49,920 when he received a promotion to Park Recreation Manager. (Def. Resp. Pl. RFA #697). In contrast, similarly situated Caucasians received raises upon their promotions. As a result, Wright was paid between six and eight thousand dollars less annually than Caucasian PRMs. (RW St.
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¶¶ 144-49; compare R10383 and R20011). Defendants have not offered a non-discriminatory explanation for Wright's treatment.
Again, defendants have asserted fair arguments as to a number of the positions put into issue by plaintiffs. I do not take the time to review all the positions now, for plaintiffs will not be permitted to put a limitless number of positions into issue at trial. Rather, each plaintiff will be limited to a reasonable number of positions, drawn from positions that were the subject of discovery, which will have to be identified in advance of trial.
4. Retaliation The legal standards applicable to retaliation claims
are set forth above. The individual plaintiffs asserting retaliation claims have submitted evidence from which a reasonable jury could find all three elements: (1) plaintiffs engaged in protected activity of which defendants were aware; (2) plaintiffs were subjected to materially adverse consequences; and (3) the existence of a causal connection between the protected activity and the allegedly retaliatory action.
Each of the plaintiffs in question engaged in protected activity. For example, Brown sent a letter to Webster complaining of discriminatory treatment by her supervisor. Brown, Colon, Roman, and Walker filed EEOC charges. Portlette complained to Cafaro about a denial of a promotion. Wright wrote letters raising concerns about discrimination.
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Each of the plaintiffs in question was subjected to material adverse employment actions -- or at least a reasonable jury could so find. Some were given negative evaluations. Some were denied promotions or raises or transfers. Some were disciplined. Two were allegedly banished to working in basements. A reasonable jury could find that these actions "'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2006 WL 1698953, at *10 (June 22, 2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
A reasonable jury could also find, with respect to each plaintiff in question, a causal connection between the protected activity and the material adverse actions. The direct and circumstantial evidence in support of such a conclusion is discussed above, and includes, for example: Webster's comments to Brown that complaints were frowned upon; the timing and sequence of events; the conditioning of salary increases or transfers on the dropping of claims; the arguably vindictive nature of some of the actions taken after complaints were made; and the apparent general unreceptiveness of Parks to the filing of discrimination complaints. Again, here plaintiffs are also assisted by the Teamsters presumption.
Defendants' motion is denied in this respect as well.
- 82 -

 
 Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 1 of 59

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF "JEW YORK
-------------------------------------------------------- X
ROBERT WRIGHT, KATHLEEN WALKER, HENRY RO~IAN, ELIZABETH ROGERS. DAVID RAY, ODESSA PORTLETTE, PAULA LOVING, ANGELO COLON JACQUEUNE BROWN, WALTER BEACH, CARRIE ANDERSON, individually and as class representatives,
Plaintiffs,
-against-
HENRY J. STERN, individually and in his onicial capacity as Commissioner of the ]\'cw York City Department of Parks and Recreation, ADRIAN BENEPE, individually and in his ofticial capacity as Commissioner of the New York City Department of Parks and Recreation, and THE CITY OF NEW YORK,
Defendants.
-------------------------------------------------------- X

OJ CV 4437 (DC)
'ROP!U"IIJ STIPULATION AND ORDER

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 2 of 59

I.

PROCEDURAL HISTORY .......................................................................................................... 3

II. DEFINITIONS .............................................................................................................................. .4

IlL JL'RISDICTION, SCOPE OF STIPULATION & ORDER, AND CLASS CERTIFICATION ... 7

IV. lNJU"JCTIVE RELIEF- GENERAL.. ..........................................................................................8

A. Implementation and Tem1 ........................................................................................................ 8

B. Incorporation of Provisions of June 8, 2005 Consent Decree ................................................. 9

C. General Injunctive Relief......................................................................................................... 9

D. Advisory Committee .............................................................................................................. 10

V. INJUNCTIVE RELIEF- PROlvtOTlONS ............................................................................ 11

A Process for Filling Job Vacancies .......................................................................................... 11

I. Training & Guidelines for Panel Interview Process ................................................ ll

2. Diversity of Interview Panels............................................................................ .... ... 13

3. Statistically Close Scores......................................................................................... 14

4. Candidate Lists......................................................................................................... 15

B. City Park Workers .................................................................................................................. I5

C. Review of Practices for Adverse Impact ............................................................................... 15

VI. INJUNCTIVE RELIEF- CAREER DEVELOPMENT & TRAINING ..................................... l7 ·A"'· Tram. m. g program s1.m1'[ar to "Parks 40" ................................................................................ l.7

B. External Training Programs ................................................................................................... 18

C. Ci vii Service Career Ladders ................................................................................................. 18

D. Organizational Charts ............................................................................................................ 18

E. "Recreation Leadership" as qualifying experience for APRM/PRM, Director Regional Joint Interest Parks, Deputy Chief of Operations and Chief of Operations.......................................... 18

F. Career Guidance/Career Counselors ...................................................................................... I9

G. Information about Salary for Parks Jobs................................................................................ 19

VII. INJUNCTIVE RELIEF - COMPENSATION ........................................................................... 19

A. Salary Adjustments for Certain Recreation Jobs................................................................... 19

B. Salary Review ........................................................................................................................ 20

I. Internal Individual complaints of salary disrarili<:s.. ........................................... 20

2. Review of Non- Flat Rate Salaries............................................................................ 21

3. Reports.................................................................................................................... 21

VIII. INJUNCTIVE RELIEF- EEO INVESTIGATIVE PROCESS ................................................ 22

l1

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 3 of 59
A. EEO Pol icy............................................................................................................................ 22
B. EEO Post-complaint Follow-up........................................... .................................. 01 C. EEO Counselors ................................................................................................................. 23
IX. I;>;JCNCTIVE RELIEF FOR CERTAI:-.1 NAMED PLAINTIFFS........... .. .............................. ::-+
X. MONETARY RELIEF ........................................................................................................ ..1-l A. Class Settlement Amount.. ..................................................................................................... 2-l
r----~--
8. Pension Treatment of Awards ................................................................................................ 25 C. Duties of Claims Administrator ............................................................................................. 25 D. Establishment of Class Settlement Fund ................................................................................ 2b E. Withholding of Amounts for Liens ........................................................................................ 28 F. Eligibility Criteria & Allocation Plan.................................................................................... 29 G. Procedures for Distribution of funds ..................................................................................... 33 H. Waiver of Confidentiality & Access to Records of Lawsuits ................................................ 36 I. Records of EEO Filings......................................................................................................... 37 J. Payment by City of Back Pay Amounts ................................................................................ 37 K. Distribution of Compensatory Damages & Interest Awards by Claims Administrator ........ 38 L. Survival of Claims ................................................................................................................. 39 M. Unclaimed Shares/Uncashed Checks..................................................................................... 39 N. Report from Claims Administrator & the City ...................................................................... 40 XL PROCEDURES FOR NOTICE TO THE CLASS OF SETTLEMENT AND FAIRNESS HEARING ................................................................................................................................... AO XU. OPT OUTS................................................................................................................................... 41 A. Opt-Out Procedure ................................................................................................................. 41 B. Rescission of Class Member Opt-Outs .................................................................................. -12 Xlll. CITY OPTION TO VOID AGREEMENT.. ............................................................................. 43 XIV. PROCEDURES FOR FAIRNESS HEARING ..........................................................................44 XV. RELEASES ..................................................................................................................................45 A. Named Plaintiffs .................................................................................................................... 45 B. Class Members ....................................................................................................................... -15 C. Requirem<.:nt and Effect of Releases ..................................................................................... 48 X\'1. - REPORTING & MONITORING .............................................................................................. 43 XVII. MISCELLANEOUS ....................................................................................................................51 XVIII. ATTORNEYS' FEES AND COSTS ....................................................................................... 54
lll

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 4 of 59

UNITED STATES DISTRICT COCRT SOUTHERN DISTRICT OF NEW YORK
·------------------------------------------------------- X
ROBERT WRIGHT, KATHLEEN WALKER, HENRY ROMAN, ELIZABETH ROGERS, DAVID RAY, ODESSA PORTLETTE, PAULA LOVING, ANGELO COLON JACQUELINE BROWN, WALTER BEACH, CARRIE ANDERSON. individually and as class representatives,
Pia inti ffs,
-against-
HENRY J. STERN, individually and in his official capacity as Commissioner of the New York City Department of Parks and Recreation, ADRIAN BENEPE, individually and in his official capacity as Commissioner of the New York City Department of Parks and Recreation, and THE CITY OF NEW YORK,
Defendants.

01 CV 4437 (DC) STIPULATION AND ORDER

-------------------------------------------------------- X

WHEREAS, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, and Carrie Anderson, individually and as class representatives ("plaintiffs"), commenced this action to enforce the provisions of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., as amended ("Title VII"), the Civil Rights Act of 1871, as amended in 1991,24 U.S.C. §§ 1981 and 1983, the New York Constitution, th<: New York Human Rights Law, N. Y. Exec. Law § 296, the New York City Human Rights Law, l New York City Administrative Code, 8-101 and the Sew York City Charl<.:r, Chapter 35;

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 5 of 59

WHEREAS, the plaintiffs allege that the New York City Department of Parks and

Recreation ("Parks" or the "Parks Department"), former Parks Commissioner Henry J.

Stem, and Parks Commissioner Adrian Bcnepe have engaged in a pattern or practice of

discrimination against African American and Hispanic employees with respect to

promotions, recruitment, job classification and assignment, salary and compensation,

resource and funding allocation, racially hostile work environment, the maintenance of a

segregated workforce, and retaliation against employees who assert their civil rights;

WHEREAS, the defendants deny any and all liability arising out of the plaintiffs'

allegations and admit no fault or liability, and specifically deny that defendants engaged

in a pattern or practice of discrimination against African Americans and Hispanics with

respect to promotions, recruitment, job classification and assignment, salary and

compensation, resource and funding allocation, racially hostile work environment, the

maintenance of a segregated workforce, and retaliation against employees who assert

their civil rights; and

WHEREAS, the parties, having the mutual goals of ensuring equal employment

I

opportunity within the Parks Department and of settling this action to avoid additional protracted, expensive and unnecessary litigation, agree to the entry of this Stipulation and

Order to resolve all issues that were or could have been raised in this class action by the

plaintiffs individually or as class representatives.

NOW, THEREFORE, in resolution of this action, and with the agreement of all

parties it is hereby ORDERED, ADJUDGED AND DECREED as follows:

2

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 6 of 59
1. PROCEDURAL HISTORY Beginning in March 1999, plaintif(<; and several other African-American and
Hispanic Parks' employees filed individual and pattern and practice disparate treatment and impact charges of employment discrimination based upon race, color and national origin with the United States Equal Employment Opportunity Commission ("EEOC"). The Department of Justice ("DOJ") subsequently commenced an investigation.
On January 30, 2001, as amended on March 14, 2001, the EEOC issued a Detcnnination finding reasonable cause to believe that Parks engaged in a pattern and practice of racial discrimination through its promotions and assignments. The EEOC also found segregated supervisory lines of authority and retaliation, and referred its findings to DOJ.
This action was commenced on May 24, 2001. On June 19, 2002, the DOJ filed its own action against New York City ("City"). This Court consolidated the two cases on July 14, 2002.
By Order dated July 7, 2003, this Court certified a class consisting of all present and fonner African-American and Hispanic employees employed on a full time basis since May 24, 1997.
On June 8, 2005, the DOJ and the City defendants entered into a consent decree in settlement of DOJ's action.
By motion dated December 29, 2005, defendants moved for summary j udgmcnt on plaintiffs' class claims and some, but not all, of the plaintiffs' individual claims.
By D~cision dat~d September 15, 2006, the Court denied defendants' motion in part and granted it in part. The Court dismissed plaintiffs' class claims of discriminatory
3

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 7 of 59
assignment of employees/allocation of funding and racially hostile work environment. The Court denied defendants' motion with respect to plaintiffs' class claims of promotion and compensation discrimination and retaliation and with respect to plaintiffs' individual claims. The Court subsequently set a trial date for the trial on liability on the class claims for promotion, compensation and retaliation.
In Deccmher 2006, the parties commenced mediation before the Hon. Kathleen A. Roberts (Ret.). The mediation process included more than twenty-live (25) in-person negotiation sessions, many of which lasted a full day. Negotiations under Judge Roberts's supervision continued through November, 2007 when the Hon. Denny Chin assumed oversight of the final stages of the settlement talks. The parties resolved all issues of class relief -- both monetary and injunctive relief -- before conducting negotiations regarding an award of reasonable attorneys' fees and expenses. The negotiation process concluded on January 31,2008. II. DEFINITIONS
As used in this Stipulation and Order, the following terms shall have the following meanings:
"African-American" shall mean persons who identify themselves as Black or Atrican·American.
"Claims Administrator" is Settlement Services, Inc., 2032-D Thomasville Rd., Tallahassee, Florida 32308.
"Class Members" shall mean all African-American and Hispanic full time employees of the Parks Department employed at any time between May 24, 1997 and June 30, 2004, excepting those employees excluded from the class by the Court's Order
4

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 8 of 59
of November 7, 2003 and, fifteen days following the Fairness hearing, also excepting those individuals who exercised their right to opt out in accordance with the procedures set forth in Section XII.
"Class claims" shall mean the claims certified by this Court for class treatment by Order dated July 7, 2003 including claims for compensatory and punitive damages for alleged race, color and national origin discrimination in promotions, recruitment, job classification and assignment, salary and compensation, resource and funding allocation, racially hostile work environment, the maintenance of a segregated workforce, and retaliation against employees who assert their civil rights.
"Class Counsel" shall mean all counsel of record who are signatories to this Stipulation and Order on behalf of the Class.
The "Class Period" is the period between May 24, 1997 and June 30, 2004. "Class Representatives", "Plaintiffs" or "Named Plaintiffs" mean Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, and Carrie Anderson. "Day" or "days" refer to calendar and not business days unless otherwise specified. "Defendants"' shall mean the City of New York, the New York City Department of Parks & Recreation, Former Commissioner Stem and Commissioner Benepe. The "Effective Date" of the terms of this Stipulation and Order shall be the thirtieth day after the entry of this Court's Final Approval of the Stipulation and Order and cithc:r: ( 1) the expiration of the tim;: tor filing an appeal from the Court's approval or the Stipulation and Order without the llling of a notice of appeal; or (2) iran appeal is
5

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 9 of 59
tiled, the final resolution of the appeal (including any requests lor rehearing andior petitions for a writ of certiorari), resulting in final judicial approval of the Stipulation and Order.
"EEO" means equal employment opportunity. "EEO Officer" refers to the individual at Parks designated as such. "Final Approval Date" shall mean the entry date of the Court's Order granting approval of this Stipulation and Order as fair, reasonable and adequate to the Class as a whole after notice to Class Members, the opportunity to opt out as to monetary relief, and a hearing on the fairness of the settlement ("Fairness Hearing"). "Hispanic" shall mean persons who identify themselves as Mexican, Puerto Rican, Cuban, Central American, South American or of other Hispanic, Spanish or Latino culture or origin, regardless of race. An "in-house title" refers to a Parks Department job title, other than a civil service title, that is used by an employee in the ordinary course of business or in interacting with the general public. A "job vacancy" refers to any vacant position within the Parks Department that requires working a full time schedule on a year round basis, either existing or newly created, known either by its civil service or in house title, that the Parks Department has decided to fill, and for which there is no existing civil service list from which the appointment to fill the position must be made. "Personnel Division" refers to the Parks Department's Central Personnel Ofiicc presently located in Arsenal West and headed by the Parks Department's Director of Personnel.
6

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 10 of 59
::
A "posting" refers to any written or electronic notice or advertisement of a job vacancy.
"Preliminary Approval Date" shall mean the entry date of the Court's Order granting preliminary approval of this Stipulation and Order or the date on which the Court authorizes giving notice to the class of the proposed selllement and fairness hearing.
A "promotion" refers to a discretionary appointment to a position of greater rank and responsibility and an accompanying increase in salary within six months atler the change in rank and responsibility.
"Uniform Guidelines" refers to the Uniform Guidelines on Employee Selection Procedures (1978) found at 29 C.F.R. sections 1607.1, et seq.
A "wage promotion" means an increase in base pay of I0.3 percent or greater which lasted for more than 6 months, was net of any collective bargaining increase, was not associated with a competitive civil service promotion and need not have been accompanied by a change in job title, excluding step-ups of more than 6 months if the employee receiving the step-up returned to his/her previous job title at the conclusion of the step-up. III. JURISDICTION, SCOPE OF STIPULATION & ORDER, AND CLASS CERTIFICATION
A. This Court has jurisdiction over the parties and the subject matter of this action. The Court shall retain jurisdiction over the parties to entbrcc and administer the tcnns of this Stipulation and Order during the period it, or any of its provisions, remain in effect.
7

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 11 of 59
B. If this Stipulation and Order is approved by the Court, all persons within the Class as defined herein are subject to its injunctive and its monetary relief provisions.
C. Pursuant to prior Orders of the Court and the agreement of the parties, the class is defined as all African-American and Hispanic full time employees of the Parks Department employed at any time between May 24, 1997 and June 30, 2004, excepting those employees excluded from the class by the Court's Order of November 7, 2003 and those who exercise their right to opt out in accordance with the procedures set forth in Section XII.
IV. I!'JJUNCTIVE RELIEF- GENERAL A. Implementation and Term Unless otherwise provided herein, the provisions of this Stipulation & Order shall
remain in effect until December 31,2009. The following provisions ofthis Stipulation & Order shall remain in effect until three years after its Final Approval Date: Section IV(D) - Advisory Committee; Section V(A)(3) - Statisticatty Close Scores; Section V(C) Review of Practices for Adverse Impact; Section VII (B)- Salary Review; Section XVI (A)(5, 6, 7, I2, & 14) and (B) - Reporting & Monitoring. The City will commence implementation of all provisions of Sections IV through IX and XVI of this Stipulation & Order upon the Final Approval Date. Payments to Class Members pursuant to the tenns of this Stipulation & Order shall not be made until after the Effective Date. In the event the distribution of funds provided for in Sections X nnd XIV of this Stipulation & Order is not completed by December 31, 2009, the parties will consult with the Court regarding the continuation of applicable provisions_
8

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 12 of 59
8. Incorporation of Provisions of June 8, 2005 Consent Decree Sections I, HI through X, XI 34(a), XII through XIV of the Consent Decree between the United States of America and the Defendants entered in this Court on June 8, 2005 in the action captioned United States of America v. City of New York, 02 Civ. 4699 ("Consent Decree"), arc incorporated into this Stipulation and Order, and shall remain in effect until December 31, ::!009, including the Policy tor Posting and Filling Job Vacancies ("VAT process") as modified effective December 7, 2007, and including the further modifications as follows: The City shall not be required to produce documents/data specified in paragraphs 41{a) and (j}; as to paragraph 41(c}, the City shall only be required to produce the VAT tracking database {excluding breakdown} and PMS data as specified below in Section XVI (A) (14); and as to paragraphs 41(1) and (h), the City shall make the documents specified therein available for inspection and will not be required to produce such as part of the periodic reporting process. For purposes of this Stipulation and Order, references in the Consent Decree to the United States shall be deemed to include plaintiffs. The incorporation of these terms is not intended to and does not extend the right of the United States to enforce and administer the terms of the Consent Decree after the Consent Decree's dissolution on or about June 8, 2008. C. General Injunctive Relief I. In addition to the injunctive relief granted in Section Ill.a of the Consent Decree, enjoining the Parks Department, its officials, agents, employees, and successors from engaging in any act or practice that has the purpose or effect of unlawfully discriminating against employees in making promotion decisions based on race. color or national origin including but not limited to adopting or implementing any policy, process or practice for job appointments, promotions, seasonal step-lip appointments or hiring
9

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 13 of 59
that has the purpose or effect or discriminating against any employee, job applicant or prospective job applicant based on race, color or national origin, and creating or implementing any internship or recruitment program that has the purpose or effect of discriminating against any employee, job applicant or prospective job applicant basL'd on race, color or national origin, the Parks Depanmcnt, its officials, agents, employees, and successors arc enjoined from engaging in any act or practice that has the purpose or effect of unlawfully discriminating against any employee based on race, color or national origin with respect to salary, compensation, or in making compensation decisions.
2. The Parks Depanment, its officials, agents, employees, and successors are enjoined from retaliating against any person asserting race, color or national origin claims under federal, state or local law or otherwise opposing practices that discriminate based on race, color or national origin.
D. Advisory Committee l. The Parks Department shall establish a five person Advisory Committee, chaired by its General Counsel, to address employment discrimination and retaliation concerns. In addition to Parks' General Counsel, the Committee members shall include Parks' EEO Officer and three African American and/or Hispanic employees who arc employed full-time by Parks. The Commissioner shall select the initial Committee members representing the Class based on the recommendations of the Named Plaintiffs. The Commissioner shall select all replacement members based on the rccommcndation of the Parks' General Counsel, EEO Officer. and Class Members on the Committee. 2. Committee meetings shall be hdd quarterly or more ll·cqucntly as m:cdcd.
10

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 14 of 59
3. Any commi!lee member may ask the Advisory Committee's Chair to put an item on the agenda or may raise an issue as new business at an Advisory Committee meeting.
4. The Advisory Committee Chair will report back to the Advisory Committee on issues raised with the Advisory Committee provided that a report does not violate any employee's privacy rights. V. INJUSCTIVE RELIEF- PROMOTIONS
A. Process for Filling Job Vacancies l. Training & Guidelines for Panel Interview Process a. Parks will provide training to all panel interviewers who
participate in the interview process, pursuant to the Policy for Posting and Filling Job Vacancies ("VAT process")1 except under unusual or emergency circumstances, such as if the panel is screening candidates for a specialized title that is rarely vacant or if an emergency replacement for a panelist is required; exceptions must be approved by Parks' EEO Officer and Director of PersonneL The training will be similar to that provided for the CPW interview process that occurred in February 2007 ("VAT interview training"). Such training will also be provided to Parks' EEO Officer and advisors/counselors. Such training which started in February 2007 will be substantially completed within one year of the Effective Date of this Stipulation.
b. The VAT interview training will include training, among other things, (i) on how to avoid common scoring errors; (ii) on conferring in advance of any actual interviews regarding anticipated responses to the intcnic\V questions; (iii) on
Within a rcasonabte time: after rhc EtTective Dilte ofthi:; Stipulation & Order, Parks will modify the Policy fOr Posting and Filling Job Va..:um:i~s to int:urporatc chunges provided herem,
l l

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 15 of 59
establishing the criteria for scoring responses in advance, for example, how to distinguish b.:tween question responses that deserve a "2", "3" or "4" rating; (iv) on the value of taking notes during the course of the interview to assist in rating the candidates; and (v) on ways to avoid stereotypical thinking. If upon review of panel ratings by the Personnel Division and the EEO Officer it is detennined that any panelists are in need of retraining, such retraining will be provided.
c. With respect to interviews conducted as part of the VAT process, Parks will provide standardized instructions to the interviewers in advance of the interviews which will incorporate guidelines taught in the training process. To the extent practicable, Parks will attempt to place on the panel at least one employee within the chain of command of the job title for which the interview is conducted, or other persons with actual job experience in the subject position, in an effort to assure that interviews are conducted with the benefit of the participation of persons with background experience in the job.
d. Within one year of the Effective Date of this Stipulation, Parks will adopt a scoring system based upon the system used for the February 2007 CPW interviews for the titles of Recreation Center Manager and above in Recreation, PRM and above in Maintenance and Operations ("M&O"), and Director and above in Administration and Capital, or for a posting used to fill five or more vacancies, specifically including the following features: the competencies being measured and the questions being used will be established in advance of the interview, the rating scales will he established in advance of the interview for each competency being measured and the process for combining scores will be established in advance.
12

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 16 of 59

e.

Panel interviewers will make their own independent

judgment regarding inten·icw scores and arc expected to make notes respecting the

interviewees' responses to questions.

f.

Parks will consider relevant step-up experience of job

applicants who are applying for year-round appointments. An employee '' ith step up

experience who applies for but is not selected for a year-round appointment may obtain

infon11ation from a career counselor as provided in Section VI.

g. Whenever relevant to the job in question as dctcm1incd by

Parks, Parks will consider the tenure at Parks of job applicants who are applying for year-

round appointments.

h. After panel members complete their individual interview

rating sheets for a job applicant, the scores will be averaged and rounded to the nearest

tenth of a decimal point.

i.

The minimum and preferred qualifications for job

vacancies shall be furnished with selection checklists that will be completed by panel

members as part of the screening process for the selection of job applicants for

interviews.

J.

A panelist will recuse himself from the panel interview of

any employee who has filed a written discrimination charge against him within the two

year period preceding the date of the job posting.

2- Oiversitv of Interview Panels

Parks will continue to usc its best efforts to diversify the makeup of the panels lor

job interviews. Through December 31, 2009, Parks agrees to make records identifying

!3

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 17 of 59
the indivitluals on each panel available for review by the Atlvisory Committee antl to Class Counsel upon request
3. Statistical!>· Close Scores
For purposes of ascertaining the names of candidates to be submitted to the selecting official for final selection. persons scoring within 0.3 (three-tenths) points of the highest scorer will be deemed to be tied, or "statistically close" as used in the Parks posting policy, and will be reported to the selecting official as ranking #!. In those instances where there arc no candidates deemed tied with the highest scoring cantlidate, any candidates scoring within 03 (three-tenths) points of the second highest scorer will be deemed tied, or "statistically close," and will be reported to the selecting ofticial as ranking #2. Similarly, so long as there are fewer than three candidates reported to the selecting official, any candidates scoring within 0.3 (three-tenths) points of the third highest scorer will be deemed to be tied, or "statistically close", and will be reported to
the selecting official as ranking #3. For example, if the average scores of the top three
candidates are, respectively, 4.5, 4.4 and 4.0, the candidates scoring 4.5 and 4.4 will be reported as tied at # 1, and the candidate scoring 4.0 will be reported as #3. In the instance of four candidates scoring, respectively, 4.5, 4.4, 4.0 and 3.8, the candidates scoring 4.5 and 4.4 will be reported as tied at #I, and the candidates scoring 4.0 and 3.8 will be reported as tied at #3. All candidates reported for consideration by the sckcling official will be reported by rank only, without scores from the intcrvi.:w process. except in those instances where the tliffercncc in scores is 0.75 (thrcc-c;uartcrs) points or higher. In those instances. Parks may report to the selecting oflic1al the magnitude or the cliffcr.:ncc in the rankings.
14

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 18 of 59
4. Candidate Usts Parks will have the option of treating the candidate list created as a result of a panel interview process as a list from which selections will be made for any vacancies occurring in the subject position for a period of 6 (six) months following the completion of the panel interview process. This option will be applicable only to appointments that are subject to the VAT process or for postings that are used to fill five or more vacancies and ifthcre is no significant expansion of the promotable pool. B. City Park Workers Except as provided herein, Parks will appoint City Park Workers who pass the Associate Park Service Worker ("APSW") examination and obtain a commercial driver's license to the permanent title of Associate Park Service Worker provided that job vacancies exist, and so long as the City Park Worker does not have a record of drug or alcohol test failure, conflict of interest, insubordination, violence or having made threats of violence, or an absence control record with a "sanctions status." If a candidate who passes the APSW examination is not appointed for any other reason, the basis for the non-appointment will be documented and approved by the Deputy Commissioner for the applicable division. C. Review of Practices for Adverse Impact I. Parks will conduct annually an adverse impact study of the selections made for the following job titles: Chiefs, Deputy Chiefs, PRMs, Directors, Team Leaders, Recreation Center Managers and Parks Administrators. Even though Parks docs not agree that it is appropriate under the Cniform Guidelines to aggregate job titks or racial groups in pcrfonning an adverse impact study, Parks will aggregate job titles and racial groups in this annual study to make an overall dctennination of whether or not the
15

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 19 of 59
selection rate for African-American and Hispanic candidates (combined) is less than lour-liflhs (415) (or eighty percent) of the selection rate tor Caucasian candidates.
In each year (if any) in which the aggregate analysis does show a sdcction rate
tor African-American and Hispanic candidates (combined) that is less than eighty percent of the selection rate for Caucasian candidates, Parks will conduct a content validity study of one job title amongst those subject to the adverse impact study. The content validity study will include the elements described in the document titled "Steps in Establishing the Content Validity of Interviews" and attached hereto as Exhibit l. In the event the aggregate analysis shows a selection rate for African-American and Hispanic candidates (combined) that is less than eighty percent of the selection rate for Caucasian candidates in more than one year, the content validity study conducted in subsequent year(s) will be for a different title from those previously studied.
For each annual study, Parks will consider all selections for the applicable job titles occurring within a calendar year. The first study will cover selections occurring within calendar year 2008. In each year, Parks will complete the study by March 15 of the subsequent year. In any year in which a content validity study is required, Parks will complete the content validity study within ninety (90) days after the registration of the contract authorizing retention of the expert retained to perform the content validity study. Parks will make its best eftorts to register the contract no later than June 15. If the aggregate analysis docs not show a selection rate for African-American and Hispanic candidates (combined) that is less than eighty percent of the selection rate tor Caucasian candidates, no action by Parks n.:cd be taken.
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The job titles to be subject to the content validity study described in the preceding paragraph, in order of priority, are as follows: I) PRM; 2) Recreation Center Manager; and 3) Deputy Chief of Operations. VI. INJUNCTIVE RELIEF- CAREER DEVEtOP!\1ENT & TRAINING
A. Training Program similar to "Parks 40" I. Parks will reestablish a training program similar to the "Parks 40" Program for the purpose of attempting to develop future agency managers. The program will be offered annualty to full-time employees of the Parks Department and will be open to employees with one or more years of experience at Parks who are not holding entry level positions as defined in the VAT process and who have received an overall performance rating of very good or above during the previous two years. If a candidate has not had a performance evaluation during the previous two years, a recommendation from a supervisor can be substituted for the performance rating. 2. Each aruiUal program will have openings for approximately forty (40) employees. The existence of the program shall be publicized throughout Parks. Parks will not be required to conduct the program if fewer than twenty {20) employees enroll in it. 3. The selection process shall consist of a written application and personal interview. Selections for the program will be made by the Director of Training. Training shall be designed to prepare employees for management positions in all divisions of Parks, including M & 0. The tentative curriculum for the program is attached hereto as Exhibit 2. Parks will use its best d'forts to select a diverse class for each annual program.
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B. External Training Programs In fom1ation as to available external training programs such as tile Management Academy and Leadership Institute shall be publicized throughout Parks. C. Civil Service Career Ladders Parks has prepared charts that show the lines of progression for civil service titles at Parks. The charts will be posted on Parks' intranet and copies of them will be available in Parks' personnel offices and from its career counselors. Parks has developed a ''feeder chart" relative to recreation and M&O titles describing possible avenues for advancement. The chart will be made available to career counselors to share with employees. D. Organizational Charts Parks' organizational charts will be posted on Parks' intranet. The charts for positions from Commissioner down to Chief positions shall contain names of the persons occupying the titles and will be updated annually. E. "Recreation Leadership" as qualifying experience for APRM/PRM, Director Regional Joint Interest Parks, Deputy Chief of Operations and Chief of Operations Parks will continue to include "recreation leadership" as qualifying experience in postings for the title of APRM/PRM. Parks will treat "recreation leadership'' as qualifying experience for the titles of Director Regional Joint Interest Parks and Deputy Chief of Operations and will include that term in its vacancy notices for those titles. Parks will insert the following statement in each of its postings for Chief of Opcrallons and Deputy Chief of Operations: ''Any Parks employee meeting the minimum qualilications for the position of Chief of Operations and D..:puty Chi<'fofOpcrutions will
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be eligible to apply for such positions without regard to the di\·ision 111 which the employee is employed."
F. Career Guidance/Career Counselors This section supplements the provisions of Part IX ("Career Counselors") of the DOJ Decree as follows: Parks will designate an individual in the Personnel Division to act as central coordinator to provide guidance to and oversight of the career counselors and to review their reports. Career counselors shall be approved by the Director of Personnel and EEO Officer. Parks will make its best efforts to advertise the availability of career counselors through notices in paychecks, newsletter and postings. Job applicants will be encouraged to contact a career counselor after an unsuccessful job application. At the employee's request, the career counselor shall obtain information, including among other information, interview scores to assist such employee in future job applications. G. Information about Salary for Parks Jobs The Director of Personnel or his designee shall continue to make himscl f available to respond to questions from potential job applicants about actual andior likely salaries for posted positions and will include a statement in postings regarding contacting the Personnel Division to resolve questions employees may have regarding the posted vacancy. VII. INJUNCTIVE REIJEF- COMPENSATION A. Salary Adjustments £or Certain Recreation Jobs EIT.:ctive upon the Final Approval Date, Parks will increase the salaries of .:ach of its Chiefs of Recreation to S94,000 (other than the Chief for Staten Island) and Deputy
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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 23 of 59
Chiefs of Recreation to $75,000 as specified in Exhibit J. Effective upon the Final Approval Date, Parks will increase the salaries of those Recreation Center Managers responsible tor large and medium centers to sixty thousand dollars ($60,000) and those responsible for small centers to fitly thousand dollars ($50,000). A list of the recreation centers by size and applicable salary level is attached as Exhibit 4.
B. Salary Review I, Internal Individual complaints of salary disparities
A) During the term of this Stipulation & Order as described in Section IV.A. above, upon the filing of an internal individual complaint of salary disparity by an African American or Hispanic employee, Parks will conduct a study of the alleged disparity. The study will be conducted by Parks' Chief Financial Officer and Director of Personnel. The study will examine the base pay rates of similarly situated employees holding the same in-house title or, where applicable, civil service title. The study will compare pay of employees in the same title with comparable job responsibilities in light of the criteria used by Parks to establish pay upon initial hire or upon entering a job title through transfer or promotion, and criteria used to increase pay for incumbents holding the position. Those criteria may include, among others, the following: a) the tem1s of applicable collective bargaining agreements; b) the salaries of incumbent employees in the same title and with comparable job responsibilities, c) Parks tenure, c) prior work experience, d) prior merit increases, d) longevity increases, and c) other pay-related factors as applicable. The review will include dhnicity data as rdl<.:ctcd in the PMS database in order to ascertain whether any pattern of differential treatment based on cthnic1ty exists.
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If the Chief Financial Officer and Director of Personnel conclude that some or all of a salary disparity is not explained by tbcsc criteria, they will recommend to the Commissioner of Parks that a salary adjustment be made increasing the salary of the al'tcctcd individual to rcmO\·c the disparity, or that ponion of the disparity not attributable to these criteria.
If the Commissioner accepts the recommendation in whole or in pan, then the proposed salary adjustment will be subject to the nom1UI New Yark City budgetary process respecting the implementation of increases in employee salary. Parks will provide the complainant a written statement of the basis for its conclusions reached in the study.
B) Whenever the study conducted for an individual allegation of salary disparity reveals disparities in the pay of other employees that are not explained by application of the criteria set out above, the City will take such remedial actions as arc appropriate consistent with paragraph A above.
2. Review of Non-Flat Rate Salaries A) During the term of this Stipulation & Order as described in Section IV.A. above, the City, through the Parks' Chief Financial Officer and Director of Personnel, shall continue to review the non-tlat rate salaries of Parks employees. Such reviews will take place l) at the time of new hires or promotions into positions, at which time the salaries of incumbent employees in the same position with comparable responsibilities shall be reviewed for unjustified disparities, and 2) as ongoing reviews based on their own obsc:n·mions and feedback from managers. Among the factors to be induded in the review arc a) the terms of applicable bargaining agreements, b) the salaries of incumbent
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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 25 of 59
employees in the same title and with comparable job responsibilities, c) Parks tenure, d) prior work experience, c) prior merit increases, f) longevity increases, and !) other payrelated factors as applicable. The review will include ethnicity data as reflected in the Pr...-!S database in order to ascertain whether any pattern of differential treatment based on cthnicity exists.
B) Whenever the review conducted reveals disparities in pay that are not explained by application of the criteria set out above, the City will take such remedial actions as are appropriate consistent with the standards and procedures outlined in paragraph I above.
3. Reports The City will retain copies of the final reports created as part of the studies conducted pursuant to this part. All Reports for studies conducted during any calendar year subject to this Stipulation & Order will be completed by March 15 of the following year, except that reports for the final year of the Stipulation and Order will be finalized by two months prior to the end of the third year of the Stipulation & Order. VIII. INJUNCTIVE RELIEF- EEO INVESTIGATIVE PROCESS A. EEO Policy Parks agrees that the provisions of the New York City Equal Employment Opportunity Policy arc binding on Parks in all respects and this policy is incorporated herein in its entirety. B. EEO Post-complaint Follow-up Nine (9) to eighteen ( 18) months after the filing of a intcmal EEO complaint of race. color or national origin discrimination, the EEO Officer or his designee shall use his best efforts to contact the complainant to dctcnninc whether the complainant believes that
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he has been retaliatt:d against for having filed the EEO complaint ami if the response is allinnative, the basis for believing that retaliation has occurred. Parks' EEO officer or his designee will investigate all complaints of retaliation. Best efforts in this context shall mean using all available means of contacting the complainant and persuading him to respond voluntarily to all questions concerning any alleged retaliation.
C. EEO Counselors I. EEO Counselors who have other regularly assigned duties shall be selected by the EEO Officer taking into consideration input and recommendations of the Advisory Committee, which may also have input in how the EEO counselors function. Parks will use its best efforts to make the services of EEO counselors more responsive to employees, including insuring that individuals designated as EEO counselors receive training and have sufficient time and availability to provide effective counseling and are evaluated on their performance in this role. 2. EEO counselors will receive training from the central EEO office with regard to their responsibilities, how to document complaints to insure that they are recorded on the central complaint tracking system and how to conduct initial investigations of complaints, how to interact with the central EEO offtce, and how to infonn complainants about the procedures involved in resolving their complaints, and what recourse complainants may have to outside agencies and the statutory time p.:riods involved for filing. 3. EEO counselors shall have no authority to resolve complaints on their own as all resolutions must come from the Central Office.
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IX. INJUNCTIVE RELIEF FOR CERTAIN NAMED PLAINTIFFS
Effective upon the Final Approval Date of this Stipulation & Order, the salaries and/or provisional civil service titles of Kathleen Walker, Angelo Colon, Henry Roman, Odessa Portlette, and Elizabeth Rogers will be adjusted as specitled in Exhibit 5. These salaries and provisional civil service titles shall not preclude promotions and salary increases occurring in the future, including in the period up to and including the Final Approval Date of the Stipulation and Order.
Further, effective upon the Final Approval Date of this Stipulation & Order, David Ray will be transferred from Queens to the Bronx.
X. MONETARY RELIEF A. Class Settlement Amount
The City will pay a total of $11,869,856.25 in settlement of monetary claims of Class Members, exclusive of attorneys' fees and expenses. The funds will be allocated in the following manner:
1. Promotion Fund A total of $4,951,013.88 will be paid in settlement of promotion claims ("Promotion Fund"). Of that total, $2,970, !56.70 will be paid as back pay, $432,084.65 will be paid as prejudgment interest and $!,548,772.53 will be paid as compensatory damages.
2. Pay Fund A total of $5,804,886. 12 will be paid in settlement of pay claims ("Pay Fund"). Of that total, $3,518,242.72 will be paid as back pay, $901,660.20 will he paid as prejudgmllnt interest and $1,384,983.20 w11l be paid as compensatory dmnagcs.
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3. Retaliation Fund A total of $563,956.25 will he paid in settlement of
retaliation claims ("Retaliation Fund"}. This entire amount will be paid as compensatory
damages.
4. Service Awards-Named Plaintiffs $50,000 will be paid to each of the eleven named plaintiffs as awards, for services provided to the class and for any inconvenience, pain, suffering and other non-pecuniary loss experienced as a result of having been a named plaintiff in this action. Each of the named plaintiffs will, in addition, receive any share of the promotion, pay or retaliation funds for which they meet the eligibility requirements set forth below.
B. Pension Treatment of Awards Amounts received by class members as "back pay" pursuant to the Final Award List created under this Stipulation & Order will be treated as pensionable amounts, but compensatory damages, interest and incentive awards will not be. C. Duties of Claims Administrator I. There shall be a Claims Administrator whose duties will consist of administering that portion of the monetary settlement allocated to the Class Settlement Fund as described below, including the following matters, as described more fully below: (I) issuing notice to Class Members describing this Stipulation & Order and the right to object or opt out of the settlement; (2) locating Class Members who arc no longer employed by the City; (3) distributing Releases to, and receiving executed originals of same from Class :Vlcmbers; (4) establishing and administering the Class Settlement Fund and upon conclusion of the process, closing the Fund; (5) paying all federal income taxes owed by the Class S.:ttlemem Fund; (6) dctennining eligibility lor awards on the basis of inlormation provided by counsel lor the parties and the plaintiffs' labor economist: (7)
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supervising the calculation of amounts of awards; (8) writing and mailing checks for the compensatory damages and interest amounts, and issuing and tiling all appropriate tax fom1s and statements; (9) developing procedures and responding to questions from Class Members about this Stipulation & Order and the procedures contained herein including the use of a toll-free number; (I 0) creating a database of Class Members who have !iled timely and valid claims.
2. The City agrees reasonably to facilitate administration of the class settlement fund by, among other things, obtaining and providing to the Claims Administrator, non-privileged information, data, documents and records in the City's possession or otherwise reasonably retrievable by or accessible to the City, which is relevant and appropriate to facilitate the administration of the settlement fund. Within thirty (30) days after Final Approval of the Stipulation and Order, the City shall designate an individual (including telephone and e-mail contact information) to whom inquiries and requests relating to or arising in connection with the administration of the class settlement fund may be referred by the Claims Administrator. The City's determination as to the reasonability, relevance and appropriateness of such requests shall be conclusive. The City shall notify the Claims Administrator regarding any such determination.
D. Establishment of Class Settlement Fund l. Tile Claims Administrator will apply for a tax ID number and take all necessary steps for the timely creation of the class settlement fund account ("CSFA") pnor to the forty-tifth day from the Final Approval Date of this Stipulation and Order. 2. Provided that the Claims Administrator bas given to the City the Employer ldenti!ication Number for the Class Settlement Fund, a completed W-9 Form and bank routing information for the trust li.md account, the City will, within 45 (forty-fiv.;) days of
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the Final Approval of this Stipulation and Order, cause to be deposited in the CSFA tile sum of $4,831 ,456.83, less specific deductions made for Liens (as defined below). The gross amount to be deposited represents the total of prejudgment interest and compensatory damages to be paid pursuant to Part A, above. In the event an appeal is filed from the Order of Final Approval of the Stipulation and Order, payment of the amount to be deposited by the City into the class settlement fund account shall be deterred and, in such event, the City shall deposit the sum in the class settlement fund account within 45 (forty-five) days of the Effective Date as defined herein.
3. Interest accruing to the class settlement fund account from the date of deposit of the funds provided in paragraph 2, above, through a date 10.5 months from the date of such deposit (''the Initial Interest Period") shall be used to pay the costs of and expenses of administration and distribution of funds incurred by the Claims Administrator and the plaintiffs. Costs and expenses shall include all costs and expenses of and incurred by the Claims Administrator, including, but not limited to, federal income taxes payable on the interest earned in the CSFA and costs for the services of plaintiffs' labor economist in assisting the Claims Administrator. If costs of distribution, together with federal income taxes, do not equal or exceed the total amount of CSFA interest accrued during the Initial Interest Period, any excess will be paid to the City Comptroller. Any interest earned beyond the Initial Interest Period will be paid to the City Comptroller.
4. The Claims Administrator will treat federal income taxes as the first priority for payment, and therefore, shall, on a quarterly basis, set aside an amount suflicient to pay all federal income taxes owed by the Trust on interest earned to date.
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The Claims Administrator shall pay all federal income taxes on a quarterly basis. The City Comptroller shall have the right to inspect and copy all tax forms (and worksheets), and the monthly bank statement of the CSFA. The Claims Administrator will provide to Class Counsel ;md the City Comptroller a monthly statement of expenses paid. The City will not be responsible for federal taxes, penalties or interest.
E. Withholding of Amounts for Liens I. Plaintiffs will provide to the City a complete list of Class Members believed by plaintiffs to be eligible to receive any awards under this Stipulation & Order on or before the thirtieth (30th) day preceding the Fairness Hearing. Within sixty (60) days of the receipt of such list, the City will review the list for the purpose of identifying any persons with child support, recoupment liens (i.e., liens for public assistance payments made in error), state and federal tax levies and Higher Education Loan Liens (federal & state), restraining notices or orders and judgment liens ("Liens"). The City will deduct from the total amount paid into the CSFA, for each Class Member who is subject to a Lien and whose name appears on the October 28, 2007 List as eligible for an award of compensatory damages or interest, an amount which equals the amount owing under the Liens, but in no event shall the amount deducted for each Class Member exceed the October 28, 2007 estimate of the total compensatory damages and interest awards for the Class Member subject to a Lien, as supplemented to include all categories of compensatory damages and interest The City will provide a list to the Claims Administrator of the names of Class Members subject to Liens and amounts withheld ("First City Lien List."). 2. Subsequently, after the completion of the process of receiving Releases from eligible Class Members as described below, the Claims Administrator will provide a
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revised list of Class Members for the City to review to identify any additwnal Liens against any persons on the list. ("Preliminary Award List"). The Claims Administrator will, at the same time, provide the City with a breakdown, by year, of each Class Member's back pay amount in the fom1 attached as Exhibit 6.
3. The City will have forty-live (45) days from receipt of the Preliminary Award List to review the list for additional Liens or increases in Lien amounts and pro\·idc a list of names and amounts to be withheld by the Claims Administrator from any award ("Second City Lien List.") to the Claims Administrator. Based upon the information provided in the Second City Lien List, the Claims Administrator shall prepare the Final Award List. The Claims Administrator will pay over to the City the lien amounts identified in Second City Lien List within fifteen (15) days of the its receipt of the Second City Lien List.
4. In the event that the Lien amounts deducted from the CSFA in accordance with paragraph X. E. (1) & (3) are insufficient to satisfy the Liens against a particular Class Member's awards, the City shall have the right, consistent with applicable law, to deduct any remaining Lien balances as of the date of payment of the back pay awards from that Class Member's back pay award.
F. Eligibility Criteria & Allocation Plan 1. Promotion Fund To be eligible to receive a share of the Promotion Fund, it is necessary for a Class Member (i) to have been employed for a minimum of six (6) months <luring the Class Period (May 24. 1997 - June 30, 2004) and (ii) to have completed at least two years of full-time work experience with Parks pnor to June 30, 2004 <md (iii) not to have received two or more Wage Promotions during the Class Period. City records will be conclusive with respect to a Class Member's <lares of
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employment. All Class Members meeting these eligibility requirements will share equally in the Promotion Fund. However, no person other.visc eligible under the terms of this paragraph will be eligible to rcceiYc a share of the Promotion Fund if a state or f~deral court has dismissed or ruled adversely on promotion claims raised by the Class Member, or the Class Member has settled a state or federal coult action raising promotion claims, unless the dismissal was to pcnnit the Class Member to pursue claims in this action. Further, however, if plaintiffs' regression analyses conducted for the plaintiffs in support of their claims in this action, show estimated losses for a time period not covered by the state or federal court action, the Class Member may recover for such time period(s) within the Class Period.
2. Pay Fund To be eligible to receive a share of the Pay Fund, it is necessary for a Class Member to have held a position in a non-flat rate title during the Class Period, and be shown to have experienced a deficiency in pay, when compared to the average pay of Caucasian employees in the same civil service or in-house job titles, as shown by plaintiffs' regression analyses conducted for the plaintiffs in support of their claims in this action, including the analysis conducted for the mediation of this lawsuit. (hereinafter "Estimated Pay Damages.") City records will be conclusive with respect to job positions held by a Class Member. If those regression analyses show that a Class Member has experienced a loss for any year of the Class Period (May 24, 1997- June 30, 2004), the Class Member is eligible for a share of the Pay Fund. Any Class Member \\hose Estimated Damages arc greater than $0 but less than $1,000 will receive a minimum gross award of S I,000 (back. pay and prejudgment interest combin.:d) and proportionate distributions described bdow will be calculated so that no recovery rrom
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this fund (prior to applicable deductions) shall be less than $1,000. Employees receiving more than $1 ,000 will receive a proportionate share of the back pay and interest amounts based upon the proportion of their Estimated Pay Damages to the total Estimated Pay Damages. However. no person other.visc eligible under the terms of this paragraph will be eligible to receive a share of the Pay Fund if a state or federal court has dismissed or ruled adversely on pay claims raised by the Class Member, or the Class Member has settled a state or federal court action raising pay claims, unless the dismissal was to pcm1it the Class Member to pursue claims in this action. Further, however, if plaintiffs' regression analysis shows Estimated Pay Damages for a time period not covered by the state or federal court action, the Class Member may recover for such time period(s) within the Class Period.
The compensatory damage component of the Pay Fund will be distributed on the basis of a formula providing recoveries ranging from $0 to $5,250, factored upon the basis of the amount of Estimated Pay Damages as shown by plaintiffs' regression analyses. That formula is subject to adjustment based upon the total number of eligible claimants at the time the Claims Administrator makes the final calculations of amounts payable to Class Members following the mailing of notices to the class and the opt-out period. The Claims Administrator will adjust each of the formula amounts to adjust for increases or decreases in the number of class members receiving awards.
3, Retaliation Fund To be eligible to receive a share of the Retaliation Fund. it is necessary lbr a Class Member to have filed (i) a charge of discrimination alleging race, color andlor national origin discrimination or (ti) a charge of retaliation arising from the filing of a charge of race, color and/or national origin discrimination or
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(iii) a charge of retaliation ansmg from opposition to practices alleged to b10 discriminatory on the basis of race, color anu:or national origin. Such charge must either ha\'C been filed by the Class ivlcmbcr between May 24, I997 and the Preliminary Approval Date or if !lied prior to May 24. 1997 but not curlier than January I. 1997, the charge must ha\'c remained pending after May 24, 1997. It is sufficient for purposes of digibility under this pawgruph that the charge was filed internally with the Parks Department or externally with the New York City Commission on Human Rights, the New York State Division of Human Rights or the United States Equal Employment Opportunity Commission. Eligibility will be based upon contemporaneous written documentation. However, no person otherwise eligible under the terms of tbis paragraph will be eligible to receive a share of the Retaliation Fund if a state or federal court bas dismissed or ruled adversely on any claims of retaliation that were raised by the Class :V1embcr in the court litigation, unless the dismissal was to permit the Class Member to pursue claims in this action, or unless, subsequent to such court ruling, the Class Member has filed a subsequent charge of discrimination or retaliation meeting the eligibility requirements set out in the first sentence of this paragraph. Further, in order to be eligible to recover a share of the Retaliation Fund, any Class Member whose eligibility is based solely upon a discrimination charge as described in subpart (i) of the first sentence of this paragraph shall be eligible only if he or she files a statement with the Claims Administrator aflirming the Class Member's belief that he/she cxpcriencctl retaliation at the Parks Department after liling the charge of discrimination. "io such ass.ortion is required lor Class \kmbcrs meeting the eligibility criteria established in subparts (ii) and10r (iii) of the first sentence of this paragraph, i.e .. those who tiled retaliation chnrgc·s.
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Each Class Member digible for a share of the Retaliation Fund shall rcct:ive an equal share of the fund.
4. Final Determination of Elieibility The Claims Administrator will make
the final determination as to whether a Class Member meets the criteria for eligibility for an award under each of the funds established herein.
G. Procedures for Distribution of Funds The Claims Administrator shall use his best efforts to deliver requisite notices, including the Class Notice and Releases to all Class Members. Those efforts will include rc-mailing notices and Releases to any Class Member whose mailing is returned as undeliverable. Class Counsel's determination whether the efforts of the Claims Administrator in this regard constitute "best efforts" shall be conclusive.
1. Mailing of Notice of Settlement and Fairness Hearing On the basis of the list of Class Members provided by plaintiffs to the City on October 28,2007, the City will provide to the Claims Administrator the last known addresses of Class Members within fifteen (15) days of the Preliminary Approval of the Stipulation and Order. The initial mailing to Class Members will consist of the Notice to Class Members of Settlement and Fairness Hearing ("Class Notice") (attached hereto as Exhibit 8). The Class Notice will include information regarding eligibility and a preliminary estimate of amounts of awards for each eligible Class Member. The Claims Administrator will mail such notice, first class mail, within twenty-one (21) days of the receipt of Class Member addresses from the City.
Class Members who wish to file an objection to th.: s~ttlcmcnt agr.:cmcnl. or to Opt-out. shall lik such objections or Opt-out notices within forty-Jive (45) days li·om the
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:
mailing of the Class Notice. but in no c\·cnt later than ten (I 0) days prior to the Fairness

Hearing.

2. Mailing of Notice to Eligible Class Members \Vithin twenty-

one (21) days of the Effective Date. the Claims Administrator will mail to eligible Class

:vlembers a Release in the form attached hereto as Exhibit 7. The Claims Administrator

will also provide a self-addressed prepaid envelope for the return of the Release. The

Release shall be returned within forty-five (45) days from the date of postmark of the

mailing of the Release.

3. Claims Administrator Follow-Up The Claims Administrator will have up to one-hundred-twenty ( 120) days from

the due date for return of Eligible Class Member Forms to address any defects in the

Release fom1s (e.g. where there is no signature or incomplete inforn1ation on the fom1)

and to conduct re-mailing & tracing of mail to eligible Class Members that is

undeliverable and to contact eligible Class Members who do not respond to mail

containing the Release Form.

lJpon the completion of all reasonable efforts to contact eligible Class :V1embcrs,

or the passage of one hundred twenty (120) days from the due date for return of Release

Fonns (whichever is sooner), the Claims Administrator shall have an additional thirty

(30) days within which to address defects in the Fonns. At the end of such period, the

Claims Administrator will provide the originals to the City. Class Counsel's

detcnnination whether the cffotts of the Claims Administrator in this regard constitute "reasonable cftotts'' shall be conclusive.

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The Claims Administrator shall have an additional thirty (30) days in whi.:h to complete the process of determining eligibility and calculating individual awards. As necessary, the Claims Administrator will confer with plaintiffs' labor economists and;or Class Counsel to resolve any ambiguities with respect to individual calculations, or, as necessary, to obtain calculations for any Class Member's claims not previously addressed in plaintiffs' regression analyses. As noted above, the Claims Administrator's dctcnnination of eligibility and the amount of awards will be final and not subject to appeaL The City will cooperate with the plaintiffs and the Claims Administrator to assure the broadest possible distribution of funds to eligible Class Members.
The Release shall contain language by which the eligible Class Member affinns that he/she is a Class Member. Moreover, the Claims Administrator will require those eligible for a share of the Retaliation Fund pursuant to Paragraph X(F)(3) above, but who did not file a claim of retaliation, to complete a statement affirming the Class Member's belief that he/she experienced retaliation at the Parks Department after filing his/her charge of discrimination.
Each eligible Class Member's share of the respective funds will be determined once the Claims Administrator and Class Counsel are satisfied !bat all reasonable efforts have been made to locate .eligible Class Members and Release Forms have been received. Each eligible Class Member who has not opted out and has timely submitted a Release pursuant to the procedure set forth above shall receive the amounts calculated according to the distribution formulas set forth above, subject to deductions for Liens as provided lor in Section X above. L:pon completion of those calculations, the Claims Administrator will provide to the City a list of awards by fund (promotion. pay and
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retaliation) which includes (i) Class ;\!ember name, (ii) social security number and (iii) hack pay amount. ("Final Award List") The Claims Administrator will also provide to the City a separate statement of back pay amounts to be paid to each Class Member, with a breakdown by year in the form attached as Exhibit 6.
H. Waiver of Confidentiality & Access to Records of Lawsuits Any Class Member who seeks to recover an award under this Stipulation & Order and who has previously maintained his own lawsuit against defendants alleging race, color or national origin discrimination, or retaliation for having filed a charge of race, color or national origin discrimination, and has settled the lawsuit on confidential terms, will be required, upon request of the Claims Administrator, to provide a copy of any Court Order granting summary judgment or otherwise dismissing the action and/or any settlement agreement if such documents are in the possession of the Class Member and to sign a waiver of confidentiality permitting the City to provide to the Claims Administrator and Class Counsel a copy of any such Settlement Agreement. If the Class Member fails to provide available copies of such Orders or agreements, or fails to sign the applicable waiver, the Claims Administrator may find that the Class Member is ineligible to recover any funds under this Stipulation & Order. However, notwithstanding the foregoing, the Class Member is presumptively entitled to recover nn award for any time period he/she is otherwise eligible under the terms of the distribution formulas set forth above, for any period following the date of entry of any order of dismissal in the Class Member's lawsuit. The City separately waives any claim of confidentiality vvith respect to any such settlement agreements for the limited purpose of providing coptcs to the Claims Administrator and Class Counsel solely tor the purpose of determining the Class
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Member's eligibility (if any) for relief under this Stipulation & Order. Class Counsel and tht: Claims Administrutor will treat the tem1s of any such agreements as confidential and "ill usc the information only for the purpose of calculating awards under this Stipulation & Order. The City will also make its best cffotis to prO\idc copies of any order of dismissal of any lawsuit known by the City to have been filed by a Class Member raising claims of rae.:, color or national origin discrimination during any part of the Class Period, or retaliation related to claims of race, color or national origin discrimination during any part of the Class Period.
I. Records of EEO Filings The City will make its best efforts to provide to the Claims Administrator and Class Counsel written documentation of internal or external EEO charges to assist in the determination of eligibility for awards under the Retaliation Fund. That documentation will be provided as soon as possible, but no later than fifteen (15) days after the Final Approval of this Stipulation & Order. J. Payment by City of Back Pay Amounts 1. The City wilt be responsible for the payment to Class Members of all back pay amounts and service awards less all applicable payroll deductions and Lien deductions, if any. The City will make individual back pay and service award payments to Class ~embers using a supplemental payroll that coincides with a regular pay period for Parks. The payments will be made over two payTolls starting on the third Parks pay date lollowing the receipt of the Final Award List from the Claims Administrator. PaymL:nts \\ill not be made during payroll periods occurring during the months of October and 1\ovcmber. Required employe.: deductions for fcdcral. state, and local taxes, employee retirement account contributions, Medicare taxes and any other routine payroll
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deduction required by law, us dctcnnincd by the City, and Lien amoums, if any, as ddincd herein, shall be dcducleu from back pay and service awards.
1. The City will provide an itemized statement of all deductions m<~dc with each back pay and service award. The City will provide to Class Counsel, within 10 business days of payment to Class Members, a report of all checks issued to Class Members, showing net amounts paid and deductions taken, together with such other information as to enable Class Counsel to understand the amount of the award paid. N..:ither Class Counsel nor the Claims Administrator shall be responsible !or calculating the applicable taxes or withholding or reporting to the government any amount so withheld
K. Distribution of Compensatory Damages & Interest Awards by Claims Administrator The Claims Administrator will be responsible for paying out to Class Members from the CSFA all amounts calculated as prejudgment interest and compensatory damages pursuant to Part A. The Claims Administrator will cause the payment to be made by first class mail within 30 days, or as soon as practicable after completion of the Final Award List The Claims Administrator will provide each recipient a I099 form and a statement identifying the amounts distributed from each fund. Any amounts designated as interest shall not be subject to withholding and shall be reported by the Claims Administrator to the IRS. The amounts paid for compensatory uamages shall not be subject to withholding and shall be! rcpottcd to the IRS. The Claims Administrator will be responsible for liling all appropriate fonns including tax forms relative to the management of the money dcpositcu into the CSFA and the distnbution of tbosc amounts to Class Members.
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L Survival of Claims Rights and claims hereunder shall survive the death of Class Members. If a Class Member who is eligible to receive monetary relief unucr this Consent Decree is deceased at the time of the distribution of awards, the amount payable to such Jcccased Class Member shall be paid to the appropriate representative of his;l1cr estate. If the Claims Administrator determines, after reasonable opportunity has been given, that there is insufficient information or proof regarding the deceased person's estate to pcm1it such payment, the deceased person's share shall be distributed in accordance with the terms provided for the distribution of unclaimed shares or returned checks. M. Unclaimed Shares/Uncashed Checks In the event of opt-outs and unclaimed shares known to the Claims Administrator pnor to the final calculation of amount of awards, the Claims Administrator will distribute any total amounts resulting from such unclaimed shares proportionately amongst the other eligible Class Members receiving awards under the applicable monetary fund. If a Class Member fails to cash an award check within one hundred eighty (180) days following the date of the check, then the Claims Administrator and the City will issue supplemental checks of $250 each to award recipients, in order from lowest to highest in tenns of total awards, until the excess funds are exhausted. The Claims Administrator will detem1ine eligibility for supplemental checks, payable either by the Claims Administrator or the City. In the event the Claims Administrator must choose between Class Members receiving equal total awards, the Class Member with the lower social security number "ill receive priority for the payment of supplcm..:ntal checks.
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For any checks issued by the City and not cashed within 180 days, the City will advise the Claims Administrator of the total of the gross amounts involved, and the Claims Administrator will provide the City with a list of the next mailablc Class Members who, pursuant to the procedure described in the preceding paragraph, would be eligible lor supplemental checks of $250. Only Class Members eligible to receive a back pay award will be eligible for receipt of a supplemental check of$250 from the City.
N. Report from Claims Administrator & the City Within thirty (30) days of the distribution of the monies from the monetary funds established above, the Claims Administrator and the City shall furnish an accounting of all distributions to the Court with copies to counsel for the class plaintiffs and the defendants. The accounting provided by the Claims Administrator at this time will include a breakdown, by year, of each Class Member's back pay amount. XI. PROCEDURES FOR NOTICE TO THE CLASS OF SETTLEMENT AND FAIRNESS HEARING A. On the basis of the list of Class Members provided by plaintiffs to the City on October 28, 2007, within fifteen (15) days of the Preliminary Approval of this Stipulation and Order by the United States District Court, the City will provide to the Class Counsel and the Claims Administrator, the last known addresses of Class Members. The Claims Administrator will make his best efforts as is customary to locate all Class Members based upon lists of names and last known mailing address provided to him by the City. Within twenty-one (21) days of receipt of the Class Members' names and adurcss.::s, the Claims Administrator shall provide notice to the mcmb<:rs or tile Class, m the lonn attached hereto as Exhibit 8 ("Class Notice"). Class Members will be given notic;; of the tcnns of the sctllcmc:nt agreement, their opportunity to obj,:ct to the
40

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 44 of 59
settlement and/or opt-out of the class and the date of the fairness hearing. The notice to Class Members will include a preliminary determination of each Class Member's eligibility to receive a monetary award under any of the funds, and, if a Class :VIember is determined to be eligible, a preliminary estimate of the range of such an award. As set forth in paragraph XIV(C), the parties agree to request that the Court schedule the fairness hearing at the earliest practicable time on or after seventy-five (75) days from the Preliminary Approval of this Stipulation & Order. Class Members will also be given notice of their obligation to notify the Claims Administrator of any changes in their mailing address.
B. The Claims Administrator will provide for publication of a notice of the settlement and the fairness hearing in no fewer than three newspapers. Within twentyone (21) days of the Preliminary Approval Date, the Claims Administrator will complete arrangements for publication of the notice. XII, OPT OUTS
A. Opt-Out Procedure Any Class Member who chooses to opt-out of the class and thereby receive no monetary benefits from this Stipulation and Order may do so only by filing an "Opt-out" Statement in the form described below and mailed to the Claims Administrator, Settlement Services, Inc., 2032-D Thomasville Road, Tallahassee, Florida 32308, postmarked no later than ten (I 0) days before the fairness hearing. To opt out of this lawsuit. a Class Member must submit the following Opt-out Statement containing his/her full name, address, date and signature sworn to before a notary public: "I am a Class Member in the lawsuit of Wright v. Stem. l understand that in choosing to opt out of the class and settlement in this case, l will not be cntitkd to any
41

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 45 of 59
money under the settlement. I also understand that if l tile a separate lawsuit or other legal proceeding:
• I may lose my case and receive nothing; • It may take se,·erul years to obtain any money or other relieC if I receive any
relief at all; • I may have to pay my own attorneys' fees and the costs of litigation; • I may obtain less money than I can get under this settlement; • l also understand that, if the Court approves the settlement, Class Members
who do not opt out may be eligible to receive a monetary payment under the settlement. I still choose to opt out and to be excluded from the settlement. The Claims Administrator shall stamp the date received on the original of any Opt-out Statement and serve copies on Class Counsel and Coun.scl for Defendants no later than five (5) business days prior to the date of the Fairness hearing. The Claims Administrator will also file the date-stamped originals with the Clerk of the Court no later than five (5) business days prior to the date of the Fairness hearing. The Claims Administrator shall retain copies of all Opt-Out Statements until sucb time as the Claims Administrator is relieved of its duties and responsibilities under this Stipulation & Order. B. Rescission of Class Member Opt-Outs The parties recognize that some class members who initially submit Opt-out fonns seeking exclusion may, upon further reflection, wish to withdraw or rescind such Opt-out Statcmo;:nts. The panics agree that Class :Vfcmbcrs shall be permitted to withdraw or rescind their Opt-out Statements by submitting a "Rescission of Opt-out"
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Statement to the Claims Administrator. The Rescission of Opt-out Statement shall include the following language:
"I previously submitted an Opt-out statement seeking exclusion lrom the class monetary settlement. I have reconsidered and wish to withdraw my Opt-out statement. !understand that by rescinding my Opt-out 1may be eligible to receive an award from one or more of the funds and may not bring a separate legal action against the defendants seeking damages. The Claims Administrator shall stamp the date received on the original of any Rescission of Opt-out Statement and serve copies on Class Counsel and Counsel for Defendants no later than two (2) days after receipt thereof. The deadline for filing a Rescission of Opt-Out Statement is fifteen (15) days after the Fairness Hearing. The Claims Administrator shall retain copies of all Rescissions of Opt-Out Statements until such time as the Claims Administrator is relieved of duties and responsibilities under this Stipulation & Order. XIIJ. CITY OPTION TO VOID AGREEMENT The City may unilaterally declare this settlement null and void and shall not be obligated to comply with any of the tem1s of this Stipulation and Order upon the occurrence of either of the events described in Sealed Exhibit 9, filed with the Court under seal conctmently with this Stipulation & Order. The City shall inform Class Counsel prior to the date of the Fairness Hearing whether it believes it is entitled to exercise this clause and whether it is considering doing so and shall exercise this clause. i rat all, not later than thirty (30) day alkr the Faimess Hearing. For purposes of this provision. "Class Member" is ddim:d as those indiviuuals who were identified as Class
43

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\kmbcrs on the list of Class :V1cmbcrs provid~d by plaintiffs to the City on October 28, 2007.
XIV. PROCEDURES FOR FAIRNESS HEARING
A. Subject to approval by the Court, the parties hereby agrc~ to the following procedures and schedule for notice to Class Members and submission of this Stipulation and Order to the Court for approval pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
B. At the time this Stipulation and Order is submitted to the Court, the parties each agree to opine to the Court that it is fair, reasonable, and adequate to the Class as a whole, within the meaning of that phrase contemplated by Rule 23(e) of the Federal Rules of Civil Procedure. Counsel for the parties shall request prompt judicial approval of this Stipulation and Order as written.
C. The parties agree to request that the Court schedule a hearing to detem1ine whether this Stipulation and Order is fair, reasonable, and adequate to the Class as a whole (the "Fairness Hearing"), as required by Rule 23(e) of the Federal Rules of Civil Procedure, at the earliest practicable time on or after seventy-five (75) days following Preliminary Approval of this Stipulation & Order.
D. Any Class Member who wishes to object to the tem1s of this Stipulation & Order, or its implementation, shall be required to submit to the Court, not later than ten (I 0) days before the fairness hearing (the "Cutoff Date"), which will be stated as a "date certain" in the t\otice of Proposed Class Action Settlement and Fairness Hearing mailed to the Class, a written statement of any objections, with copies to counsel for both parties. The statement shall comport with the procedures set forth in the Notice of Proposed Class
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Action Settkmcnt and Fairness Hearing. The statement shall contain the individual's name, address and telephone number, along with a statement of his objcction(s) to tile Stipulation & Order and the rcason(s) for those objection(s), and an express statement of whether th.: Class Member wishes to speak at the Fairness Hearing.
E. Any attorney retained by an individual Class Member at his own expense to submit objections and/or appear at the Fairness Hearing on his behalf must, not later than the Cutoff Date, identify himself in writing to the Court, submit written objections, with copies to counsel for both parties, and state expressly whether he desires to speak at the Fairness Hearing. The statement shall comport with the procedures set forth in the Notice of Proposed Class Action Settlement and Fairness Hearing. Objections raised at the Fairness Hearing shall be limited to those matters addressed in timely written objections. XV. RELEASES
A. Named Plaintiffs The :-lamed Plaintiffs agree that they will not opt-out of the class, will not object to the settlement and will accept the settlement amounts calculated in accordance with the allocation plan described in Section X. B. Release of Claims
1. Release of Claims by Class Members. Except with respect to any persons who have effectively exercised a right to opt out of this Stipulation and Order, upon the Final Approval of this Stipulation and Order, and payment by the City as described in this Stipulation and Order, Dctcndants and their employees, supcrvisors. managers and agents shall be fully released and forever discharged tt·om any and all individual and/or class-wide daims, demands, charges, actions. complaints, rights am!
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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 49 of 59
causes of action, suits, damages, liabilities, assessments, judgments, costs, losses, debts. obligations and expenses, of any and every nature whatsoever, whether seeking monetary and/or equitable relief of any sort, whether or not known, by the Class Representatives, Charging Parties, or Class Members ("Releasors"), and the Rclcasors' representatives, agents, heirs, estates, executors, administrators. successors and assigns, which arise out of conduct from May 24, 1997 through the Preliminary Approval Date relating to race, color or national origin discrimination against African-Americans or Hispanics with respect to promotions, recruitment, job classification and assignment, salary and compensation, resource and funding allocation, racially hostile work environment, the maintenance of a segregated workforce, and retaliation for asserting civil rights or opposing civil rights violations, any terms and conditions of employment that were or could have been raised in this action under any federal, state, city or local law prohibiting race, color or national origin discrimination, whether statutory, regulatory, pursuant to local law or ordinance, or at common law against Defendants. As used in this release, claims "for monetary relief' shall include all claims for economic or non-economic monetary damages of any kind including, without limitation, interest, compensatory and punitive damages. This release shall survive the expiration of the term of this Stipulation and Order. This release does not operate to release any rights, benefits or claims to benefits under New York City's retirement plans, health plans or other benefit plans and fringe benefit programs.
2. Release of Named Plaintiffs' Claims. Upon Final Approval of this Stipulation and Order, and payment by the City as described in this Stipulation and Order, for and in consideration of the mutual promises, tcnns and conditions by and between the Named Plaintiffs and Defendants set forth herein, the sufficiency of which
46

Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 50 of 59
consideration is expressly acknowledged. the "lamed Plaintiffs and each of their representatives, agents. heirs. estates, executors, administrators, successors or assigns. whether seeking monetary and/or equitable relief of any sort, do hereby fully, finally and i'orcvcr release and discharge the Dcfcndm1ts and their employees, supervisors. managers and agents from any and all individual and/or class-wide claims, demands, charges, actions, complaints. rights and causes of action, suits, damages, liabilities, assessments, judgments, costs, losses, debts, obligations and expenses, of any and every nature whatsoever, whether seeking monetary and/or equitable relief of any sort, whether or not known by the Class Representatives, Charging Parties or Class Members, that they have had, now have, or may have from May 24, 1997 to the Preliminary Approval Date, arising in any way out of the alleged facts, circumstances and occurrences underlying those allegations of violations ofTitle VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended ("Title Vll"), the Civil Rights Act of 1981, as amended in 1991, 24 U.S.C. §§ 1981 and 1983, the New York Constitution, the New York Human Rights Law, the :-.lew York City Human Rights Law, and the New York City Charter that were asserted or might have been asserted by or on behalf of the Named Plaintiffs against Defendants either in the class action complaint filed in this action or in the charges filed by the Named Plaintiffs with the Equal Employment Opportunity Commission ("EEOC") or the New York State Human Rights Division or the New York City Commission of. Human Rights. As used in this release, claims "for monetary relief' shall incluJc all claims lor economic or non-economic monetary Jamagcs of any kind including, without limitation, interest, compensatory and punitive damages. This Rckasc shall survive the expiration of the term of this Stipulation and OrJer. This release docs not operate to
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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 51 of 59
release any rights, benefits or claims to benefits under 1\'cw York City's rctir-:mcnt plans. health plans or other bcndit plans and fringe benefit programs.
C. Requirement and Effect of Releases
7'\o individuaL including the :\amcd Plaintiffs, shall be entitled to any distribution from the Settlement Fund unless and until he has executed and submitted a Release in the fonn attached as Exhibits 7 and 10. All claims of Class Members eligible to rcc<.:in: a monetary award under this Stipulation & Order are released and discharged as of the date of the delivery to the City of the Final Award List, whether or not the Class Member has signed a Release. In the event the City and/or the Claims Administrator has withheld amounts from the award to an eligible Class Member who does not sign a Release, the amounts withheld will be paid by the City toward the satisfaction of the Liens. XVI. REPORTING & MONITORING
A. The City will provide to plaintiffs' counsel the following documents and information evidencing its performance of the terms of this Stipulation & Order:
I) Training materials used in the training ("VAT training") provided panel interviewers wbo participate in the VAT process for titles of Recreation Center Manager and above in Recreation, PR:\1 and above in M&O, and Director and above in Administration and Capital, Parks' EEO Officer and advisors/counselors; [Section V]. The City will provide such materials upon their initial usc and subsequently only if substantive changes arc made in the training materials;
2) :\ames of persons who received VAT training; J) Standard instructions providcu to interviewers 111 advance of the interviews; [Section V-A] The City will provide such instructions upon their initial usc and subs.:quently only if changes arc made in tile standard instructions;
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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 52 of 59

4) Scoring system adopted lor VAT titles of Recreation Center tvlanagcr and

above in Recreation, PRM and abo\·e in :V1&0, and Director and above in Administration and Capital; [Section V-A] For the titles of Recreation Center Manager and abov~ in

Recreation, PRM and above in M&O, and titles above director in Administration and

Capital, the City will provide scoring systems upon their initial use and subsequently only

if changes are made in the scoring system. For director titles. the City will provide the

scoring systems upon request of Class Counsel;

5) Scoring infonnation reported to the selecting official after a panel

interview process; [Section V-A]

6) Summary memorandum reflecting the results of the City's annual adverse

impact study including data on job titles, names of applicants, ethnicity of applicants, and

names of persons selected; [Section V-C]

7) Summary report of any content validity study conducted by Parks;

[Section V-C]

8) An outline of training materials used in the training program similar to Parks 40; [Section VI-A]

9) Copies of announcements used to publicize the opportunity to apply for such training program; [Section VI-A]

10) Names of applicants for the "Parks 40" training program; [Section VI-A]

II)
Vl-A]

Names of persons sdcctcd for the "Parks 40" training program; [Section

12) Final n:ports conc<:ming all pay stuuies; [Section VII-B)

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13) Summary Memo or Chart rct1ccting EEO post-complaint follow-up; [Section VIII] This Summary :VIcmo or Chart shall be provided to Class Counsel as part of the annual reporting cycle.
14) PMS data for Parks in the format provided to the experts in this litigation. The City "ill provide this data annually on Marcil 31. Two months prior to the expiration of the tcm1 of this Stipulation & Order, the City will provide a final update of the PMS data. If the PMS data is not retrievable as such due to systems changes, modif!cations, or replacements, the City will provide the same data, to the extent available, in the City's successor format.
B. For the tem1 of this Stipulation & Order, the City will retain all poslings and
"Job Appointment Packets" created pursuant to the Parks Department's Policy for Posting and Filling Job Vacancies and will make such available to plaintiffs' counsel for inspection and copying upon request.
C. The City will produce all reports and other materials required to be produced by the terms of this Stipulation & Order annually on March 31, or such other date as mutually agreed upon by the parties within thirty days of the Final Approval Date. The City will produce the reports and other materials for the final 12 months of the three-year period referred to in Section IV (A) two months prior to the end of that period, or such other date as mutually agreed upon by the parties within thirty days of the Final Approval Date. Notwithstanding the toregoing, any content validity study produced in the third year of this Stipulation and Order will be produced within 30 days of its completion.
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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 54 of 59
XVII. :\IISCELLANEOUS
A. Before any payment is made to an individual Class \1cmber, the Class Member shall execute and deliYer to the Claims Administrator all documents deemed necessary by counsel for the parties, including without limitation, executed releases and stipulations of dismissal with prejudice in pending individual actions, all in a form that is sa tis factory to counsel.
B. The City agrees not to assert any liens, other than Liens as defined above, which the City itself may have respecting a Class Member and/or the Class Member's award(s) from the funds established under this Stipulation & Order.
C Counsel for the parties agree that they will take all reasonable steps to ensure that this settlement is approved by the Court and becomes effective.
D. If any collateral challenge to this settlement or Stipulation and Order arises in a court, the parties are obligated to inform one another of such a challenge and defend each and every term.
E. The Named Plaintiffs, Class Counsel and the Defendants and the Office of the Corporation Counsel each agree that they shall use their best efforts to defend this settlement and Stipulation and Order from any legal challenge, whether by objection, appeal or collateral attack.
F. Any amendments or modifications to this Stipulation and Order shall be in writing and signed by Defendants' Counsel and Class Counsel on behalf of their respective cli..:nts.
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G. Only Class Counsel may bring a motion to enforce any provision of this

Stipulation and Order, including a motion alleging a 'iolation of the Stipulation and

Order or for contempt.

H. The parties shalt attempt to resolve infonnally any dispute, concerns. or

pcrccivct! violations that may arise under this Stipulation and Order. To that end, Class

Counsel will notify Defendants' Counsel in writing of any perceived instances of non-

compliance by the Parks Department with the Stipulation and Order's terms. The parties

also agree to meet and confer in good faith to discuss such matters and try to resolve

them prior to any party seeking court intervention.

L

If Class Counsel has reason to believe that Defendants have violated the

terms of this Stipulation and Order, it shall notify counsel for Defendants, in writing,

thirty (30) days prior to bringing any motion to enforce the Stipulation and Order,

including a motion for contempt, provided however, it may give less notice if it

demonstrates to the Court that an emergency need prevented it from giving the thirty (30)

days notice and that the amount of notice it did give was warranted under the

circumstances.

J.

Any application to the Court in connection with this Stipulation and Order

shall be on notice to Defendants and Named Plaintiffs.

K. Nothing contained herein shall be deemed to be an admission by

Defendants that they have in any manner or way violated the rights of any person or

entity, as defined in the constitutions, statutes. ordinances, rules or regulations of the

L'nitcd States, the State of Nc:w York. or the City of New York or any other rules.

regulations or by-laws of any dt:partmcnt or subdivision of the City of New York.

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L The parties agree that this Stipulation and Order is subject to Rule -1.08 of
the Federal Rules of Evidence. It is therefore the partic:s' understanding llull the
Stipulation and Order is not admissibk to prove Defendants' liability lor any of the
individual or Class Claims that allege that Defendants engaged in a pattern or practice of
discrimination against African American and Hispanic employees on the basis of their
race, color or national origin with respect to promotions, recruitment, job classit1cation and assignment, salary and compensation, resource and funding allocation, racially hostile work environment, in maintaining a segregated workforce, and by retaliating
against employees who assert their civil rights.
M. The terms and conditions contained herein do not constitute an oft1cial
policy or practice of the City of New York for purposes other than enforcement of this Stipulation and Order.
N. Copies of all notices, correspondence, reports or documents required to be
provided by one party to the other under this Stipulation and Order shall be mailed to:
Cynthia Rollings Beldock Levine & Hoffman LLP 99 Park Ave. New York, NY 10016-!503 Lewis M. Steel, Esq. 3 Park Ave., 29th Floor New York, NY l0016 Robert H. Stroup, Esq. NAACP Legal Defense and Education Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 The City of New York Law Dcpmtmcnt I00 Church Street New York, NY 10007-2601 Attn: Chid of Labor and Employment Law Division
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0. Each party acknowledges that it has not relied upon any representations. warranties or statements of any nature whatsoever, whether written or oral, made by any person, except as spccitically set forth herein and that this Stipulation and Onkr represents the entire agreement of the parties. No prior agreements, oral representations or statements shall be considered a part of this Stipulation and Order. XVIII. ATTOR:~EYS' FEES AND COSTS
The City will pay plaintiffs' attorneys' fees in the following amounts: NAACP Legal Defense and Educational Fund, Inc., -- $1 ,500,000; Beldock Levine & Hoffinan, LLP-- $3,440,000, Lewis M. Steel (and associated firms)-- $3,040,000, and Steve Goldman -- $20,000. These amounts were agreed upon afler negotiations between the parties and were based upon the plaintiffs' counsels' contemporaneous time records, and consideration of what would constitute a reasonable fee given the history of this litigation and applicable legal precedent.
The City will also pay plaintiffs' expenses of litigation in an amount totaling $999,999.79. This amount, too, was agreed upon afler negotiations between the parties and is based upon actual costs incurred by the plaintiffs' counseL This total includes, among others, the plaintiffs' expert witness fees.
The City will issue one check to the NAACP Legal Defense & Educational Fund, Inc., for plaintiffs' attorneys' fees and expenses oflitigation, and LDF will be responsible for disbursements of those an1ounts in accord with the agreement of plaintiffs' counsel as to their allocation.
The City will pay the amounts agreed upon tor fees and costs within 45 days or the Final Approval Date of this Stipulation & Order, or, if an app.;al is filed from lh<:
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Order of Final Approval, within 45 days of the Effective Date of this Stipulation &

Order. Each of plaintiffs' counsel will provide a release relating to their professional

services in this action in a form agreed upon by the parties, no later than 45 days prior to

the date provided herein for payment of attorneys' fees and expenses.

/Yl.:;._J , IT IS SO ORDERED, this /5-:fl;jay of

2008.

~·-~-- --

United States District Judge

AGREED TO:
For~. Plainti~s:
0·1Ai!L ~\Lp
CYNTHIA ROLLINGS . Beldoek Levine & Hoffman LLP 99 Park Ave.
NewYor NY 10016-1503 .,

LE

~R~~
NAACP Legal Defense and Education Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 rstroup@naacpldf.org

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Case 1:01-cv-04437-DC-MHD Document 207 Filed 05/15/08 Page 59 of 59

For the Defendants:
MICHAEL A. CARDOZO Corporation Counsel of the City of New York

KATH EEN M. OMFREY. E q.

SHERR! R. ROSDIBERG, Es \

100 Church Street

)

New York, N.Y. 10007-2601 L·

kcomfrey@law.nyc.gov

shrosenb@law.nyc.gov

56

 
 Case 1:01-cv-04437-DC-MHD Document 209 Filed 05/15/08 Page 1 of 24

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-X
ROBERT WRIGHT et al., Plaintiffs,
against HENRY J. STERN et al.,
Defendants.
- - -X

OPINION 01 Civ. 4437 (DC)

APPEARANCES: (See last page)

CHIN, District Judge
In this class action, plaintiffs allege that the New York City Department of Parks and Recreation ("Parks") engaged in a pattern and practice of discrimination against African-American and Hispanic employees and a pattern and practice of retaliation against employees who attempted to oppose the discriminatory practices. Plaintiffs -- eleven African-American and Hispanic current and former employees of Parks -- sue on their own behalf as well as on behalf of similarly situated individuals.
Following nearly seven years of litigation in this Court -- and some ten years of litigation dating back to the investigation that led to the filing of administrative charges with the United States Equal Employment Opportunity Commission in March 1999 -- the parties entered into a settlement agreement (the "Agreement"), subject to approval by the Court. The parties now seek approval of the Agreement, as required by Rule 23(e) of the Federal Rules of Civil Procedure.

Case 1:01-cv-04437-DC-MHD Document 209 Filed 05/15/08 Page 2 of 24
Out of some 3,500 class members, a small number -thirteen -- have objected to the Agreement, and an even smaller number -- three -- have opted out so that they may pursue their own remedies. I have carefully considered the objections, but ultimately I am convinced that the proposed settlement is fair, reasonable, and adequate. A settlement is a compromise; it achieves a measure of success for both sides, and it eliminates the risks that accompany continued litigation, including the risk that a trial would result in no recovery at all. The City of New York (the "City") has defended this case passionately, and it would continue to do so if the settlement were not approved. The Agreement will result in extensive and concrete equitable relief and it also provides for the payment of some $11.869 million to eligible class members. There is simply no assurance that more years of litigation would result in any greater recovery. The Agreement is hereby approved.
BACKGROUND A. Summary of the Facts
The facts are set forth in detail in the Court's decision granting plaintiff's motion to certify this case as a class action, see Wright v. Stern, No. 01 Civ. 4437 (DC), 2003 WL 21543539 (S.D.N.Y. July 9, 2003) ("Wright I"), and in the Court's opinion granting in part and denying in part the City's motion for summary judgment, see Wright v. Stern, 450 F. Supp. 2d 335 (S.D.N.Y. 2006) ("Wright II"). For purposes of the instant motion, the facts may be summarized as follows:
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Parks is responsible for the care of more than 4,000 City properties, including parklands, playgrounds, public beaches, ball fields, swimming pools, recreational areas, senior citizen centers, golf courses, ice skating rinks, tennis courts, and more than 600,000 street trees. Wright II, 450 F. Supp. 2d at 345. During the relevant time period, at any given time, Parks employed approximately 3,400 to 5,000 full-time, year-round employees, and an additional 3,000 to 7,000 employees who worked on a seasonal basis only. Id. Between January 1, 1997, and December 31, 2003, Parks employed a total of 6,295 full-time, year-round employees, of whom approximately 2,124 (33.7%) were African-American and 1,163 (18.5%) were Hispanic. Id. at 346. Parks employees were subject to both the civil service structure and the union contracts in place at the time. Id.
As summarized in Wright II, plaintiffs have presented substantial evidence of discrimination against African-American and Hispanic Parks employees in promotions and pay, including statistical evidence, anecdotal evidence, comments betraying a discriminatory animus, and evidence of disparate treatment. See id. at 347-55. For example, the statistics show that in 2000, 92.9% of Parks employees earning an annual salary of less than $20,000 were African-American or Hispanic, while only 20.7% of Parks employees earning an annual salary of between $60,000 and $70,000 were African-American or Hispanic. Indeed, only 13.3% of Parks employees earning more than $70,000 annually were AfricanAmerican or Hispanic. Id. at 347. In addition, the statistics
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show that, controlling for job title, class members were paid between $16.44 and $32.59 less than Caucasian employees on a biweekly basis between 1997 and 2003. Id. Without controlling for job title, the disparity was much greater: class members were paid between $283.25 and $364.09 less than Caucasians on a biweekly basis over the same time period. Id. Plaintiffs also presented substantial evidence that class members suffered retaliation when they complained of discrimination. See id. at 355-57.
The City has steadfastly denied that it engaged in any discrimination or retaliation against African-American and Hispanic Parks employees. B. Prior Proceedings
Plaintiffs commenced this lawsuit almost precisely seven years ago, on May 24, 2001. On June 19, 2002, the United States filed an action against the City as well, alleging a pattern and practice of racial and national origin discrimination by Parks in promotions.
On July 9, 2003, I certified the instant case as a class action. See Wright I.
On June 8, 2005, the United States and the City entered into a consent decree, whereby the City agreed to implement certain personnel practices.
Plaintiffs and the City engaged in extensive discovery, under the supervision of Magistrate Judge Michael Dolinger. The parties exchanged tens of thousands of documents and took
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approximately 100 depositions. (Jt. Mem. at 4).1 Plaintiffs engaged three expert witnesses, who conducted statistical and other analyses and produced substantial reports.
The City filed a motion for summary judgment, one prong of which sought to strike plaintiffs' expert reports and to preclude their experts' testimony. The motion papers were voluminous. In Wright II, I denied the application to preclude the expert reports and testimony, 450 F. Supp. 2d at 358-63, and I granted in part and denied in part the motion for summary judgment, id. at 363-79. I dismissed plaintiffs' claims of (i) discrimination in the assignment of employees and the allocation of funding and (ii) a racial hostile work environment. I denied the motion for summary judgment as to plaintiffs' promotion, pay, and retaliation claims. See id. at 378.
Following my ruling on the summary judgment motion, I had discussions with the parties about trial. The parties disagreed in some respects on how the trial should be conducted, but they agreed that there should be at least two stages. One side suggested that the trial be divided into three stages: (1) an initial liability phase on the class pattern and practice and

1

"Jt. Mem." refers to the Joint Memorandum submitted by

both plaintiffs and the City in support of their motion for

preliminary approval of the Agreement. "Jt. Decl." refers to the

Joint Declaration dated May 8, 2008 submitted by Cynthia

Rollings, Lewis M. Steel, and Robert H. Stroup in support of

plaintiffs' request for approval of the Agreement. "Comfrey

Decl." refers to the declaration of Kathleen M. Comfrey in

support of the City's request for approval of the Agreement.

"Tr." refers to the transcript of the fairness hearing held on

May 12, 2008.

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disparate impact claims; (2) the individual claims of the eleven names plaintiffs; and (3) the claims of the remaining class members. The parties were estimating as much as one year for the trial of the first stage alone. I scheduled trial of the first stage to commence on November 5, 2007. (See Jt. Decl. ¶ 47; Jt. Mem. at 4). C. The Settlement Negotiations
The settlement negotiations began in December of 2006, when the parties agreed to mediation before former Magistrate Judge Kathleen A. Roberts. (See Jt. Mem. at 2). Over the course of the next twelve months, the parties met with Judge Roberts some twenty-five times. (Id.). With Judge Roberts's able assistance, the parties were able to agree on most of the issues, including monetary relief. (Jt. Decl. ¶ 6).
In November 2007, the parties reported that they still had not been able to agree on several issues relating to injunctive relief. In light of the progress the parties had made in settlement discussions, however, I adjourned the trial and met with the parties myself several times to mediate the open items. By the end of November 2007, the parties essentially reached agreement on all remaining items -- with the exception of attorneys' fees. (Id. ¶¶ 6-7).
From the outset of settlement discussions, the parties had agreed to refrain from discussing attorneys' fees and costs until after they had settled in principle all claims for injunctive and monetary relief. (Id. ¶¶ 7, 79; Comfrey Decl. ¶
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2). The City reviewed plaintiffs' counsel's time and disbursements records, and I met with the parties several more times to mediate the fees and costs. (Jt. Decl. ¶ 8; Comfrey Decl. ¶ 3). The parties reached an agreement in principle on attorneys' fees and costs in late January 2008. (Jt. Decl. ¶ 8).
The parties agreed on the final language of the Agreement on February 25, 2008. (Id. ¶ 8). D. The Agreement
I preliminarily approved the Agreement on February 26, 2008, and scheduled the fairness hearing for May 12, 2008, with objections and opt-outs to be submitted by May 2, 2008. (Id. ¶ 10).
The Agreement contains both injunctive and monetary relief. For example, in terms of equitable relief, it enjoins Parks and its agents and employees from "unlawfully discriminating against any employee based on race, color or national origin with respect to salary, compensation, or in making compensation decisions." (Agreement § IV(C)(1)). It enjoins Parks and its agents and employees "from retaliating against any person" for asserting claims of race, color, or national origin discrimination or opposing such discriminatory practices. (Id. § IV(C)(2)). It requires Parks to establish a five-person advisory committee to address discrimination and retaliation concerns; three of the five members must be full-time African-American and/or Hispanic Parks employees. (Id. § IV(D)(1)).
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The Agreement requires Parks to provide training to employees who conduct interviews to fill job vacancies, and it requires Parks to adopt certain procedures intended to make the promotion process more objective. (Id. § V(A)). It requires Parks to conduct an annual "adverse impact study" of the selections for certain job titles to ascertain the selection rates for African-American and Hispanic candidates versus Caucasian candidates. (Id. § V(C)(1)). It requires Parks to establish a training program to develop future managers. (Id. § VI(A)). It requires Parks to adjust the salaries for certain jobs in the recreation area, where plaintiffs believed discrimination against class members was particularly prevalent. (Id. § VII; see Tr. 6). It requires Parks to adopt a postcomplaint follow-up procedure to determine whether employees complaining of discrimination have been subjected to retaliation. (Agreement § VIII(B)).
In terms of monetary relief, the Agreement provides for the City to pay $11,869,856.25 in settlement of all monetary claims. The bulk of the funds will be divided among three funds: a "promotion fund" ($4,951,013.88); a "pay fund" ($5,804,886.12); and a "retaliation fund" ($563,956.25). (Id. § X(A)). Plaintiffs' counsel estimates that these amounts will result in payments of approximately 50 cents on the dollar for the estimated damages on the promotion and retaliation claims and roughly 40 cents on the dollar on the pay claims. (Tr. 7). The remainder of the settlement funds will be paid as "service
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awards" of $50,000 each to the eleven named plaintiffs, as compensation for the services they provided to the class and the inconvenience, pain, and suffering they suffered as a consequence of having been a named plaintiff in the case. (Agreement § X(A)(4)). The named plaintiffs will also share in any of the three funds for which they are eligible (id.), and five of the named plaintiffs will also receive salary adjustments (id. § IX).
Eligible class members who have a valid promotion, pay, and/or retaliation claim will share in the corresponding fund or funds. (Id. § X(F)). For the promotion and retaliation funds, all eligible class members will share equally, and if all eligible class members participate (id. § X(F)(1), (3)), each class member eligible for the promotion fund will receive approximately $1,900 and each class member eligible for the retaliation fund will receive approximately $5,500. (Tr. 31). Payments from the pay fund will be based on calculations using the regression analyses performed by the labor economists, and eligible class members with a pay claim will receive an amount ranging from a minimum of $1,000 to as much as approximately $65,000. (Agreement § X(F)(2); Tr. 8, 31).
The Agreement also provides that the City will pay to plaintiffs' counsel attorneys' fees of $8 million and litigation expenses (including expert witness fees) of $999,999.79. (Id. § XVIII). When the parties started their discussion of attorneys' fees and costs, plaintiffs requested fees of $11.2 million, based on their lodestar calculations (number of hours x hourly rates),
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and $1.2 million in disbursements. (Tr. 12; Jt. Decl. ¶ 76).2 The City disputed the reasonableness of these amounts, and the negotiations described above resulted in a substantial compromise. In addition, these amounts do not include an additional approximately 2,000 hours plaintiffs' counsel expended in the settlement process, as they had agreed at the outset of mediation not to seek fees for their time spent in settlement negotiations. (Tr. 12-13; Jt. Decl. ¶ 80).
Finally, it should be noted that the statistical patterns of disparity that existed prior to 2004 -- that plaintiffs contend were the result of discrimination -- no longer existed after 2004, and anecdotally more class members seemed to be getting promotions in recent years. (Tr. 14, 36). No doubt this lawsuit helped bring about these changes. E. Notice to the Class and the Fairness Hearing
Notice of the proposed settlement, the fairness hearing, and the process for objecting and opting-out were mailed to the approximately 3,500 members of the class. (Jt. Decl. ¶¶ 11, 12). In addition, notice was published in four newspapers; the NAACP Legal Defense Fund held a press conference on February 27, 2008 (which generated newspaper articles in the New York major newspapers as well as The Chief and the District Council 37 ("DC37") newspaper); class counsel met with the DC37 local unions

2

Each of the three sets of lawyers has submitted a

declaration with attachments setting forth their credentials and

experience and showing the hours they expended and the services

they provided. (See Jt. Decl. ¶ 78 & accompanying declarations).

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to explain the settlement; and class counsel held four meetings directly with class members to explain the settlement. (Id.). Accordingly, adequate notice of the Agreement, the fairness hearing, and the procedures for objecting and opting out were given to the class. (See id.).
Thirteen objections and three opt-outs were filed. These are discussed below.
The fairness hearing was held on May 12, 2008. A number of class members, including objectors and at least one opt-out, appeared. They were given a chance to be heard. I inquired of the parties whether they objected to my giving the objectors an opportunity to opt-out if I overruled the objections and approved the settlement. Class counsel had no objection. Defense counsel did not believe the City would have an objection, but asked for some time to confirm. (Tr. 32-33). At the conclusion of the hearing, I reserved decision on the motion to approve the Agreement. By letter dated May 13, 2008, the City advised that it would not object to giving the thirteen objectors a limited extension of time to opt-out.
DISCUSSION A. Applicable Law
Under Rule 23(e) of the Federal Rules of Civil Procedure, a settlement of a class action requires approval of the court. Fed. R. Civ. P. 23(e). The court may approve a settlement that is binding on the class only if it determines that the settlement is "fair, adequate, and reasonable" and not a
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"product of collusion." Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000); see Fed. R. Civ. P. 23(e)(2). This evaluation requires the court to consider both "the settlement's terms and the negotiating process leading to settlement." Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005) (citation omitted), cert. denied, 125 S. Ct. 2277 (2005). "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.'" Id. (quoting Manual for Complex Litigation, Third § 30.42 (1995)).
Rule 23(e) does not set forth the factors a court is to consider in determining whether an agreement is fair, reasonable, and adequate. In this circuit, courts traditionally have considered the following factors, commonly referred to as the Grinnell factors: (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 a class action through trial; (7) the ability of defendants to withstand greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on
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other grounds, Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); see also Wal-Mart Stores, 396 F.3d at 117-19 (applying Grinnell factors to determine that settlement agreement was fair). The weight given to any particular factor will vary based on the facts and circumstances of the case. Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, 7B Federal Practice and Procedure: Civil § 1797.1, at 77 (3d ed. 2005).
Public policy, of course, favors settlement. Wal-Mart, 396 F.3d at 116-17; accord Williams v. First Nat'l Bank, 216 U.S. 582, 595 (1910) ("Compromises of disputed claims are favored by the courts."); TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 461 (2d Cir. 1982) (noting "the paramount policy of encouraging settlements"). Consequently, when evaluating a settlement agreement, the court is not to substitute its judgment for that of the parties, nor is it to turn consideration of the adequacy of the settlement "into a trial or a rehearsal of the trial." Grinnell Corp., 495 F.2d at 462. "Rather, the Court's responsibility is to reach an intelligent and objective opinion of the probabilities of ultimate success should the claims be litigated and to form an educated estimate of the complexity, expense and likely duration of such litigation and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise." In re Met. Life Derivative Litig., 935 F. Supp. 286, 292 (S.D.N.Y. 1996) (quoting Lewis v. Newman, 59 F.R.D. 525, 527-28 (S.D.N.Y. 1973)) (internal quotation marks and ellipses omitted).
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B. Application I consider the "settlement's terms" and the
"negotiating process" in the context of discussing the Grinnell factors. As the Second Circuit did in Wal-Mart Stores, I combine certain of the factors and discuss them together. See 396 F.3d at 118 (combining fourth, fifth, and sixth factors), 119 (combining eighth and ninth factors). I then consider the reasonableness of the Agreement's provisions for attorneys' fees and costs.
1. The Grinnell Factors a. Complexity, Expense, and Likely Duration of Litigation The claims in this case present difficult and complex
legal and factual questions. The parties have compiled a massive body of evidence and the parties had estimated that the first stage would take as many as twelve months to try, even though the first stage would have addressed only the class pattern and practice and disparate impact claims. The individual claims of the eleven named plaintiffs and the claims of thousands of other class members as well would have remained. And assuming plaintiffs prevailed on liability, the remedial phase would have been complex and protracted as well. Accordingly, this factor strongly favors settlement. See Wal-Mart, 396 F.3d at 118 (likelihood of three-month trial involving complex antitrust claims favored settlement); Marisol A., 185 F.R.D. at 162-63
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(likelihood of five-month trial involving more than one hundred fact witnesses and twelve experts favored settlement).
b. Reaction of the Class
Of some 3,500 class members, only thirteen filed objections and only three opted out. The thirteen objections were filed by:
Saifulllah As-Salaam Walter R. Boyd Diane Cleveland-Goins Arnyce Foster Porfirio E. Lantigua R. Robert McClain Dennis Moody Leon Negron Dyanne Norris Al Peterson Edwin Rosario George Scott Ruben Vargas I carefully reviewed all of the written objections, and I listened to those who spoke at the hearing. Substantially for the reasons set forth in plaintiffs' joint declaration, the objections are overruled. While I am sympathetic to some of the concerns raised, the objections simply do not undermine "the wisdom of the proposed compromise." For example: ! Two objectors complained that they had not been selected to be among the named plaintiffs. Class counsel could not, of course, include every class member who wanted to be a named plaintiff, and the law imposes no obligation on them to do so. Eleven named plaintiffs was certainly sufficient. ! Some objectors objected to the payment of service awards to the named plaintiffs. Such payments, however, are
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permitted by the case law. The amount here -- $50,000 -- was reasonable in light of the burdens imposed by participating as a named party in litigation that spanned some ten years. See, e.g., Ingram v. Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (approving service awards to two named plaintiffs of $300,000 each in two-year lawsuit); Beck v. Boeing Co., No. 00CV-301P, at 4 (W.D. Wa. Oct. 8, 2004) (order approving award of $100,000 each to twelve named plaintiffs in four-year lawsuit); Roberts v. Texaco, Inc., 979 F. Supp. 185, 188-89 (S.D.N.Y. 1997) (approving awards of $85,000 and $50,000 to named plaintiffs in three-year lawsuit).
! Some objectors complained that the City and individual administrators are not being held accountable, and that the Agreement contains no admission of liability. Of course, defendants rarely -- if ever -- admit liability or wrongdoing when they settle a case. Moreover, with the exception of former Commissioner Henry J. Stern and current Commissioner Adrian Benepe, other administrators and supervisors are not named as defendants in the case. Finally, the fact that the City has agreed, after some ten years of litigation, to significant injunctive relief and the payment of more than $20 million is surely an acknowledgment that there was exposure and that it was in the best interest of the City to compromise plaintiffs' claims of discrimination and retaliation. The statistical and anecdotal evidence shows that this lawsuit has already had a significant effect on the disparities that led to its filing.
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! Several objectors complained that the amounts being paid out of the settlement funds were inadequate to compensate for the discrimination encountered over many years (23 years in one case, 24 years in another case, 30 years in another) of employment. These complaints are understandable, but the fact is that the law provides only a limited remedy for this kind of historical discrimination. (See Tr. 8-11). As plaintiffs' counsel acknowledges, "given the statute of limitations, it is not possible to compensate persons for injustices dating prior to May 24, 1997." (Jt. Decl. ¶ 20). But this lawsuit and the Agreement will go a long way toward addressing discrimination and retaliation in the future. Moreover, any class member who believed he or she has a strong case and is likely to recover greater damages had the right to opt out.
! Some objectors complained that for the promotion and retaliation funds all eligible class members were to receive the same amount and suggested that the amounts should have been based on seniority. In view of the statute of limitations, the number of eligible class members, and the difficulties in making individual determinations, the decision to allocate the funds equally among all eligible class members was reasonable. (Jt. Decl. ¶¶ 20-21).
The fact that the vast majority of class members neither objected nor opted out is a strong indication that the proposed settlement is fair, reasonable, and adequate.
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c. Stage of Proceedings and Discovery Completed Discovery has been completed; defendants filed their summary judgment motion (which included a request under Daubert to strike plaintiffs' expert testimony); the Court has ruled on the motion in a lengthy decision; and a trial date had been set. Hence, both the Court and the parties have a substantial basis for evaluating the strengths and weaknesses of plaintiffs' claims and defendants' defenses. "[F]ew unknowns" remained. Wal-Mart, 396 F.3d at 118. The extensive discovery included the exchange of tens of thousands of documents and the taking of some 100 depositions. The litigation was hard-fought and the settlement negotiations, as discussed above, were extended and were supervised by an experienced private mediator (and former magistrate judge) as well as by the Court. See Wal-Mart, 396 F.3d at 117 (noting that district court held that "'there could not be any better evidence of procedural integrity' than the aggressive litigation spanning nearly a decade and the impassioned settlement negotiations that produced an agreement on the brink of trial"). There was no collusion. To the contrary, the litigation was passionately contested, and the Agreement was the result of extensive arm's-length negotiations between experienced, capable counsel after meaningful discovery. The lawyers for both sides are to be highly commended. Class counsel, led by Robert H. Stroup of the NAACP Legal Defense Fund (who joined the case in 2003), Cynthia Rollings of Beldock
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Levine & Hoffman LLP, and Lewis M. Steel, are highly respected and experienced members of the civil rights bar. The City was more than capably represented by Kathleen M. Comfrey and other members of the Corporation Counsel's office as well as by Sherri Rosenberg of the Parks legal department. With these dedicated advocates involved, I have no doubt that both sides were represented zealously and effectively and I have no hesitation as to the procedural integrity of the settlement process. This factor strongly favors approval of the Agreement.
d. Risks of Establishing Liability and Damages and Maintaining the Class
While plaintiffs had amassed a substantial body of evidence to prove their claims, establishing liability was by no means certain. Notably, some of the objecting class members had lost when they pursued individual claims of discrimination. Recently, the Supreme Court granted certiorari in Crawford v. Metropolitan Government of Nashville and Davidson County, 128 S. Ct. 1118 (2008), a case that raises questions regarding the scope of Title VII's protections against retaliation for filing an internal claim of discrimination. (Jt. Decl. ¶ 46; Tr. 11). A decision by the Supreme Court in Crawford holding that Title VII's anti-retaliation provisions did not reach internal complaints would surely have an adverse impact on some of the class members' retaliation claims in this case.
Even assuming plaintiffs were to establish liability at trial, substantial risks would have existed as to the scope of
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any relief. The City argued that the Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), altered the legal standard for pay claims. (Jt. Decl. ¶ 46; Tr. 10-11).
There was also a substantial risk that the case would not have been maintained as a class action through trial. I certified this case as a class action in 2003. See Wright I. Since then, however, the law in this Circuit on class certification has changed. In In re Initial Public Offering Securities Litigation (In re IPO Sec. Litig.), 471 F.3d 24, 40-42 (2d Cir. 2006), the Second Circuit overruled the holding in Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999), which had permitted courts to certify a class based merely on "some showing" of compliance with the Rule 23 requirements. Instead, in the IPO case, the Second Circuit held that "a district court may not grant class certification without making a determination that all of the Rule 23 requirements are met." 471 F.3d at 40. District courts may no longer "accept plaintiffs' [class] allegations as true and refrain from conducting an examination of the merits when determining the propriety of class certification," as I did here. See Wright I, 2003 WL 21543539, at *4-5. Rather, district courts are now required to make such factual determinations as are necessary to deciding whether all of Rule 23's requirements have been met, even if that means making factual determinations on Rule 23 issues that overlap with the merits. IPO Sec. Litig., 471 F.3d at 41-42.
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In light of the change in the law, there was a substantial risk that, absent a settlement, the City would have moved to de-certify the class. During the course of the litigation, the City had suggested they might move to de-certify or re-define the class. (Jt. Decl. ¶ 46). There was certainly some risk that, under the new Rule 23 standards, I would have been persuaded to grant a de-certification motion if one were made. See, e.g., McCracken v. Best Buy Stores L.P., 248 F.R.D. 162 (S.D.N.Y. 2008) (Chin, J.) (denying class certification motion).
These factors strongly favor approval of the settlement.
e. Defendants' Ability To Withstand Greater Judgment This factor does not favor settlement, as the City has the ability to withstand a greater judgment. f. Reasonableness of Settlement in
Light of Best Possible Recovery and Attendant Risks of Litigation Plaintiffs' counsel estimates that the recoveries on the promotion and retaliation funds will be roughly 50% of the damages that could have been recovered (in terms of economic losses) and that the recoveries on the pay fund would be roughly 40% of the damages that could have been recovered had the case proceeded to trial and plaintiffs prevailed. Recovery of these percentages, then, is more than reasonable in light of the attendant risks of litigation and the burdens and delay of
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proceeding to trial, as discussed above. While some class members will be recovering only small amounts, this is largely a result of the limitations of the law, the nature of promotion and pay claims (which often do not result in substantial recoveries for the types of jobs in question), and the absence of a continuing violation claim in the case. (See Tr. 9). Moreover, in view of the difficulty in getting the City to reach this point, there is little reason to believe that further settlement negotiations would result in any additional settlement funds. See Wal-Mart, 396 F.3d at 119.
These factors strongly favor approval. In short, the Grinnell factors overwhelmingly support approval of the Agreement. 2. Attorneys' Fees and Costs The Agreement provides for the payment to counsel of $8 million in fees and the reimbursement of $999,999.79 in costs (including expert fees). These amounts are fair and reasonable. They cover some ten years of time and expenses. These negotiated amounts reflect a substantial reduction from counsel's initial demands, and do not include the 2,000 hours spent negotiating the settlement and drafting the Agreement. Moreover, in view of quality of the representation provided by class counsel and the depth of their commitment, the fees and costs are well-deserved.
CONCLUSION For the reasons set forth above, the Agreement is approved as fair, reasonable, and adequate. The objections to
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the Agreement are overruled. The Court will sign the Agreement

forthwith.

The thirteen individuals who submitted written

objections prior to the fairness hearing (and only these thirteen

individuals) are hereby granted an extension of time, until June

2, 2008, to opt out of this case. If they wish to opt out, they

must submit a separate piece of paper in accordance with the opt-

out procedures set forth in the notice to the class. The opt-out

request must be in writing and it must be signed and dated; it

must contain the statement set forth in the class notice; and it

must be mailed to the Claims Administrator at the address set

forth in the class notice, no later than June 2, 2008. Any of

the thirteen who does not submit an opt-out request by June 2,

2008 will not be permitted to opt out.

Dated:

May 15, 2008 New York, New York

District Judge

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For Plaintiffs:

APPEARANCES

BELDOCK LEVINE & HOFFMAN LLP By: Cynthia Rollings, Esq. Jody L. Yetzer, Esq. Myron Beldock, Esq.
99 Park Avenue New York, NY 10016

- and -

LEWIS M. STEEL, Esq. 3 Park Avenue, 29th Floor New York, NY 10016

- and -

NAACP LEGAL DEFENSE & EDUCATION FUND, INC. By: Robert H. Stroup, Esq. Melissa S. Woods, Esq.
99 Hudson Street, Suite 1600 New York, NY 10013

For Defendants:
MICHAEL A. CARDOZO, ESQ. Corporation Counsel of
the City of New York By: Kathleen M. Comfrey, Esq.
100 Church Street New York, NY 10007
- and -
SHERRI R. ROSENBERG, Esq. ALESSANDRO G. OLIVIERI, Esq. NYC Department of Parks & Recreation 830 Fifth Avenue New York, NY 10065

-24-

 
 Wright v. Stern, Not Reported in F.Supp.2d (2003)
2003 WL 21543539 United States District Court,
S.D. New York.
Robert WRIGHT et al., Plaintiffs, v.
Henry J. STERN et al., Defendants. UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF NEW YORK and New York City Department of Parks and Recreation, Defendants.
No. 01 Civ. 4437(DC), 02 Civ. 4699(DC). | July 9, 2003.
In consolidated actions, employees and the United States alleged that a city department of parks and recreation, and certain of its officers and employees, violated federal, state, and city discrimination laws. On the plaintiffs’ motion for class certification, the District Court, Chin, J., held that certification was warranted for proposed class of present and former African-American and Hispanic full-time employees of the department.
Motion granted.
Attorneys and Law Firms
Beldock, Levine & Hoffman LLP, By: Myron Beldock, Cynthia Rollings, Jody Yetzer, New York, NY, and Steel, Bellman, Ritz & Clark, P.C., By: Lewis M. Steel, New York, NY, and Goldman & Goldman, By: Steven F. Goldman, New York, NY, for Plaintiffs.
James B. Comey, United States Attorney for the Southern District of New York, By: Lisa R. Zornberg, Ramon E. Reyes, Judd C. Lawler, Assistant United States Attorneys, New York, NY, for the United States.
Michael A. Cardozo, Corporation Counsel of the City of New York, By: Barbara Butler, Kit Wong, New York, NY, for Defendants.
Opinion
MEMORANDUM DECISION
CHIN, J.
*1 In these consolidated actions, plaintiffs in the first case (“plaintiffs”) and the United States in the second case allege that the New York City Department of Parks and

Recreation (“DPR”) and certain of its officers and employees violated federal, state, and city discrimination laws. Plaintiffs, eleven African-American and Hispanic current and former DPR employees, and the United States allege that defendants have engaged in a pattern and practice of employment discrimination on the basis of race, color, and national origin.
Plaintiffs move pursuant to Fed.R.Civ.P. 23 for an order certifying a class of present and former African-American and Hispanic full-time employees of DPR who have worked at DPR since May 24, 1998. For the reasons set forth below, plaintiffs’ motion is granted.

STATEMENT OF THE CASE

A. The Facts DPR is a municipal agency responsible for the security and maintenance of some 28,300 acres of parkland and approximately 1,700 parks, playgrounds, malls, squares, and public spaces. (Benepe Decl. ¶ 2). DPR also operates thirty recreation or community development centers throughout New York City, which offer cultural, athletic, and social activities to neighborhood residents. (Id.).
DPR has 3,381 year-round employees, all of whom are civil service employees. (Stark Decl. ¶ 4). “Caucasians”1 constitute 46% of the DPR workforce; African-Americans and Hispanics comprise 54% of the workforce. (Runyan Aff. ¶ 7).

1

Plaintiffs use the term “Caucasian” to describe

employees who are not African-American or Hispanic.

They include as “Caucasian” not only Whites, but also

Asian-Americans, Native Americans, and those whose

race is “unidentified” according to DPR data. (Runyan

Aff. ¶ 5, n. 1). Between 1995 and 1999, according to

plaintiffs, the percentage of White employees at DPR

was 41.14%, the percentage of Asian-American

employees was 3.73%, the percentage of Native

American employees was 0.50%, and the percentage of

employees whose race was “unidentified” was 1.02%.

(Id. ¶ 6). Plaintiffs state that much of the DPR data they

used to calculate statistics did not indicate the number

of Asian-American or Native American employees, but

that approximately 4% of employees fit this discription.

(Id. ¶ 5, n. 1). Although I do not believe that it is

correct to include Asian-Americans, Native Americans,

and those whose race is unidentified in the category

“Caucasian,” plaintiffs’ statistics have been compiled in

this fashion, and thus I must use plaintiffs’

nomenclature.

1

Wright v. Stern, Not Reported in F.Supp.2d (2003)
1. DPR Employment Classifications There are 220 civil service job titles at DPR. (Stark Decl. ¶ 6). One position, “Commissioner,” is “unclassified,” and all other positions are “classified.” Classified service is divided into four classes-exempt, non-competitive, labor, and competitive, with “the majority of titles ... in the competitive class.” (Id. at ¶ 6). Employees in different classes are subject to different terms of employment. (Id. at ¶ 8). In addition, DPR employees are represented by seven unions. Each union contract sets minimum salaries and non-discretionary salary increments. (Id. at ¶¶ 9, 10). The compensation of managerial employees is determined by the “Managerial Pay Plan,” which sets minimum and maximum salaries for employees at eight assignment levels. (Id. at ¶ 11).
Appointments and promotions of employees in the competitive class are to be made either permanently from a civil service list of employees who have passed an examination or by provisional appointment. (DeMarco Decl. ¶¶ 18, 20). Provisional appointments can be made only when there is no civil service list of qualified employees for the position. (Stark Decl. ¶ 8). Under the citywide contract between the City and District Council 37, and the “Working Conditions Agreement,” available positions must be posted. (Pl. Exs. 3 at 38 & 4 at ¶ 7). DPR utilizes, in addition to civil service titles, “in-house titles” that, plaintiffs allege, do not correspond to employees’ civil service titles. (2d Am.Compl.¶ 28(a)(v)).
2. The “Class Of” Program *2 In 1994, then-Commissioner Henry Stern created the “Class Of” program to “expose recent college graduates to [DPR] and to city government.” (Pl.Ex. 7). “Class Of” employees are recruited from colleges across the country. The recruitment brochure promises that “[r]ecent graduates who come to [DPR] work closely with senior officials, learning from them on a daily basis,” and “take on a high level of responsibility within the agency.” (Id.). According to a “Class Of” employee quoted in the brochure, recruits “may be considered for positions normally given to individuals with more experience.” (Id. at 8). Plaintiffs allege that “Class Of” employees are predominantly Caucasian. (Runyan Aff. ¶ 18).
B. Plaintiffs’ Claims For the purposes of this motion, I accept plaintiffs’2 allegations as true. See Weigmann v. Glorious Food, Inc., 169 F.R.D. 280, 284 (S.D.N.Y.1996). Plaintiffs also offer statistical evidence to support their contention that class certification is warranted.

2

The named plaintiffs are Robert Wright, Kathleen

Walker, Henry Roman, Elizabeth Rogers, David Ray,

Odessa Portlette, Paula Loving, Angelo Colon,

Jacqueline Brown, Walter Beach III, and Carrie

Anderson.

Plaintiffs seek to certify a class with respect to the following claims:

1. Discrimination in Promotion and Compensation Plaintiffs allege that DPR engages in disparate treatment by denying African-American and Hispanic employees advancement opportunities and salary increases comparable to similarly situated “Caucasian” employees. They allege that DPR engages in discriminatory practices, causing a significant racial disparity in compensation, promotions, and the composition of managerial and higher level staff.
As to compensation, plaintiffs allege that they receive lower salaries than their “Caucasian” counterparts. (2d Am. Compl. ¶¶ 132 (Portlette), 207 (Wright)). They allege that “Class Of” recruits receive higher raises than African-American and Hispanic personnel, and that Caucasian employees receive raises exceeding those prescribed by the collective bargaining agreements, whereas African-American and Hispanic employees do not. (Id. at ¶ 184 (Walker)).
As to promotions, plaintiffs allege that DPR maintains a “dual-track” system of advancement by: (1) failing to post job openings and conduct regular interviews for available positions that are later filled by “Caucasian” employees (id. at ¶¶ 199-206 (Wright), 134, 136 (Portlette), 125-26 (Loving (unposted job filled by less experienced “Class Of” employee)), 119 (Colon), 68 (Anderson)); (2) failing to conduct annual performance evaluations (id. at ¶¶ 88 (Brown), 104 (Colon), 123 (Loving), 152(Ray), 169 (Roman), 198 (Wright), 180 (Walker)); and (3) creating “in-house titles” that confer greater authority on “Caucasian” employees with less experience than their African-American and Hispanic colleagues. (Id. at ¶ 28(a)(v); Brown Dep. at 48; Loving Dep. at 33-34).
Plaintiffs further allege that DPR prevents the advancement of African-American and Hispanic employees by elevating them to supervisory positions on a seasonal basis, and then returning them to non-supervisory positions rather than awarding them provisional or permanent promotions for which they are qualified. (2d Am.Compl.¶ 28(b); Ray Dep. at 49, 55; Rogers Dep. at 63-64).
*3 Finally, plaintiffs allege that “Class Of” recruits have greater access to higher-ranking personnel, thus affording
2

Wright v. Stern, Not Reported in F.Supp.2d (2003)
them professional contacts and recognition that facilitate their advancement. (Loving Dep. at 33-34; Kay Dep. at 220 (“[“Class Ofs”] had an opportunity to spend time with [Stern].”)). They allege that DPR’s use of “in-house titles” and the “Class Of” program contributes to the significant racial disparity at the managerial level.
Plaintiffs offer statistical evidence that from 1995 until 2001, African-Americans and Hispanic employees were paid between 5.8% and 12% less than “Caucasian” employees in the same occupations with equivalent experience, a differential of at least 6.12 standard deviations. (Pl. Expert Rpt. at 16). Plaintiffs’ statistics also show that although “Caucasians” made up only 46% of the workforce between 1995 and 1999, 77% of DPR promotions went to “Caucasian” employees during the same period; and that from 1995 to 2001, 80% of all managerial positions were held by “Caucasians.” (Runyan Aff. ¶¶ 9, 14). In addition, plaintiffs present statistics that show that between 1996 and 2001, 79% of those with the “in-house” titles of “Deputy Commissioner, Borough Commissioner, Chief of Recreation, Deputy Chief of Recreation, Chief of Operations, and Deputy Chief of Operations” were “Caucasian.” (Id. at ¶ 16).
2. Segregation in Work Locations and Resources Plaintiffs allege that DPR engages in disparate treatment by concentrating African-American and Hispanic employees at facilities in neighborhoods with a predominantly minority population. Plaintiffs claim to have been offered assignments only at DPR locations in minority populated areas and denied assignments in, or transfers to, predominantly “Caucasian” areas. (2d Am. Compl. ¶ 173; Roman Dep. at 20-22). In addition, plaintiffs allege that racial segregation exists within administrative offices, such that “Caucasian” employees occupy perimeter offices while African-American and Hispanic employees are clustered at work stations in the middle of the floorspace. (2d Am.Compl.¶¶ 145-49).
Plaintiffs further allege that facilities located in predominantly minority-populated areas had fewer resources and were in worse repair than those in predominantly “Caucasian” neighborhoods. (2d Am. Compl. ¶ 117 (Colon)).
Plaintiffs offer statistical evidence that 29.6% of African-American and Hispanic employees work at recreational centers in predominantly African-American and Hispanic neighborhoods, while only 16% of African-American and Hispanic employees work in predominantly “Caucasian” neighborhoods, a differential of 7.9 standard deviations. (Pl. Expert Report at 18, Table 2). Plaintiffs’ statistics also show that the percentage of African-American and Hispanic employees decreases as the concentration of “Caucasians” in the surrounding

neighborhoods increases. (Id. at Table 2).
3. Hostile Work Environment *4 Plaintiffs offer testimonial evidence of a racially hostile environment at DPR. (2d Am. Compl. ¶¶ 193 (Walker), 174 (Roman), 141-43 (Portlette)). They allege that Stern and other employees routinely made racially derogatory remarks. Plaintiffs also allege that nooses were displayed at DPR facilities in Staten Island and Queens, and that the Chief of Administrative Services, Susan Silvestro, hung a noose in her office window on Randall’s Island during Halloween despite complaints from her staff.
4. Retaliation and Deterrence Plaintiffs allege that they suffered retaliation after complaining of discrimination at DPR. They allege that they received warnings not to proceed with discrimination complaints, were subject to internal investigations by the DPR Advocate’s Office, and suffered harassment after meeting with the EEO Officer or filing discrimination complaints. (2d Am. Comp. ¶¶ 81-82 (Beach); Brown Dep. at 103-05; Colon I Dep. at 8; Colon II Dep. at 66-67; Walker Dep at 100-02; Portlette Dep. at 102-03).
Plaintiffs allege that retaliation is widely known at DPR and has deterred other African-American and Hispanic employees from complaining of discrimination. (Ray Dep. at 63-64; Roman Dep. at 100-01).
C. Prior Proceedings Plaintiffs have exhausted their administrative remedies. Plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission (the “EEOC”) beginning in March 1999. The same year, the United States Department of Justice (“DOJ”) commenced its own investigation into plaintiffs’ claims. On January 30, 2001, the EEOC issued a Determination finding reasonable cause to believe that DPR engaged in a pattern and practice of racial discrimination through its promotions and assignments, and referred its findings to DOJ.
Plaintiffs commenced their lawsuit on May 24, 2001. On June 19, 2002, the United States filed the second of these actions against the City and DPR alleging a pattern and practice of racial and national origin discrimination in promotional decisions. By order of this Court dated July 15, 2002, the two cases were consolidated.
This motion to certify the class followed.
3

Wright v. Stern, Not Reported in F.Supp.2d (2003)
DISCUSSION
A. Class Certification In seeking class certification, plaintiffs must first demonstrate that all of the requirements of Fed.R.Civ.P. 23(a) have been satisfied. See In re VISA Check/Mastermoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir.2001); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). Second, plaintiffs must show that the putative class falls within one of the three categories set forth in Rule 23(b). In re VISA Check/Mastermoney, 280 F.3d at 133. Plaintiffs here seek certification under Rule 23(b)(2) and (3).
Although a court must conduct a rigorous inquiry in determining whether the requirements of Rule 23 have been satisfied, see Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), it must accept plaintiffs’ allegations as true and refrain from conducting an examination of the merits when determining the propriety of class certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 58 (2d Cir.2000). Furthermore, because courts are given discretion to tailor the scope of the class later in the litigation, liberal consideration of the requirements for class certification is permitted in the early stages of litigation. See Woe ex rel. Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir.), cert. denied, 469 U.S. 936, 105 S.Ct. 339, 83 L.Ed.2d 274 (1984); Doe I v. Karadzic, 192 F.R.D. 133, 136 (S.D.N.Y.2000) (citing cases); see also Weigmann v. Glorious Food, Inc., 169 F.R.D. 280, 284 (S.D.N.Y.1996).
B. Rule 23(a) *5 Rule 23(a) provides that:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).

1. Numerosity Under Rule 23(a)(1), the class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1); see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 607 n. 8, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997) (per curiam). In determining whether the numerosity requirement has been satisfied, a court should consider the circumstances surrounding the case to determine if joinder is impracticable, and not just look at the numbers. See Town of New Castle v. Yonkers Contracting Co., 131 F.R.D. 38, 40 (S.D.N.Y.1990); see also Marisol A., 126 F.3d at 376.
Defendants do not challenge class certification on numerosity grounds. Here, where the proposed class members are all past and present full time African-American and Hispanic employees at DPR from May 1998 to the present, it is clear that joinder is impracticable and the numerosity requirement is satisfied.
2. Commonality [1] Under Rule 23(a)(2), there must be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2); see Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir.2001) (“ ‘The commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact.” ’ (quoting Marisol A., 126 F.3d at 376)).
At this stage in the proceedings, I do not consider whether statistical evidence offered by the plaintiffs would be admissible at trial or is ultimately persuasive. See Caridad, 191 F.3d at 292-93 (“Plaintiffs need not demonstrate at this stage that they will prevail on the merits.... ‘[S]tatistical dueling’ is not relevant to the certification determination.”); Latino Officers Assoc. of N.Y. v. City of New York, 209 F.R.D. 79, 89 (S.D.N.Y.2002). Rather, I consider only whether the statistical evidence demonstrates a class-wide basis for plaintiffs’ claims. See In re VISA Check/Mastermoney, 280 F.3d at 135.
Defendants contend that commonality is lacking because the terms and conditions of the proposed class members’ employment vary widely according to civil service classification, location, and collective bargaining agreement. Hence, they argue, the claims of putative class members require individualized determinations not susceptible to class-wide relief. Moreover, defendants contend that the statistical evidence submitted by plaintiffs misrepresents the racial disparity in various job categories. For the following reasons, defendants’ contentions are rejected.
*6 First, plaintiffs’ claims do not depend on the terms of employment of individual class members. The gravamen of plaintiffs’ claims is that DPR circumvented the civil
4

Wright v. Stern, Not Reported in F.Supp.2d (2003)
service and collective bargaining processes by engaging in discriminatory promotion and compensation practices. Hence, their allegations of a “dual-track” system of compensation and promotion, segregated work force, hostile environment, and retaliation are common to all members of the proposed class regardless of civil service rank, title, provisional status, or collective bargaining agreement.
Second, plaintiffs’ statistical evidence supports their class allegations. The proffered evidence shows racial disparities in promotion, location, and compensation of DPR employees, including racial disparities within different salary ranges. Plaintiffs also show low numbers of African-Americans and Hispanics at the managerial level or higher compared with their proportion of DPR employees as a whole. Hence, plaintiffs’ statistics demonstrate common questions of fact because they tend to show that being African-American or Hispanic has an effect on an employee’s promotion, compensation, and geographic assignment.
Third, plaintiffs’ hostile environment and retaliation allegations sufficiently target centralized personnel to support a finding of commonality. Plaintiffs allege that Stern’s racially derogatory remarks have fostered a hostile environment throughout DPR. Plaintiffs also allege that the Advocate’s Office and EEO Officer Webster engaged in retaliation and deterrence. Here, “class members need not allege that they all suffered the same injury to show commonality; demonstrating that all class members are subject to the same harm will suffice.” Gulino v. Bd. of Educ. of N.Y., 201 F.R.D. 326, 331 (S.D.N.Y.2001) (internal quotation omitted) (emphasis in original).
Finally, the fact that the United States has filed suit asserting a pattern and practice of racial discrimination supports the conclusion that common issues of fact and law exist.
3. Typicality [2] Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). See Amchem, 521 U.S. at 607 n. 11. Typicality “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Robinson, 267 F.3d at 155 (internal quotation omitted). The purpose of Rule 23(a)(3) “is to ensure that ‘maintenance of a class action is economical and that the named plaintiff’s claims and the class claims are so interrelated [that] the interests of the class members will be fairly and adequately protected in their absence.” ’ Cromer Finance Ltd. v. Berger, 205 F.R.D. 113, 122 (S.D.N.Y.2001) (quoting Falcon, 457 U.S. at 158 n. 13);

see Marisol A. v. Giuliani, 929 F.Supp. 662, 691 (S.D.N.Y.1996) (citing Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir.1994)), aff’d, 126 F.3d 372 (2d Cir.1997) (per curiam).
*7 There is no requirement that “the factual background of each named plaintiff’s claim be identical to that of all class members.” Caridad, 191 F.3d at 293; see Cromer, 205 F.R.D. at 122. Rather, typicality “requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff’s claim as to that of other members of the proposed class.” Caridad, 191 F.3d at 293 (internal quotations omitted).
In this case, the named plaintiffs assert claims typical of the other members of the proposed class. Class representatives are African-American and Hispanic DPR employees who allege they have suffered discrimination in compensation, promotion, and geographic assignment, are subject to a hostile environment, and are retaliated against for asserting claims of discrimination. They include supervisory, non-supervisory, field office, and administrative employees. While the factual circumstances of their claims may differ, their allegations of disparate treatment are typical of the class.
4. Adequacy of Representation To determine whether the requirement of adequacy has been satisfied, courts must look to whether “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). To establish adequacy of representation, plaintiffs must show that (1) plaintiffs’ counsel are competent to handle the case and (2) there are no conflicts of interest among class members. Cromer, 205 F.R.D. at 123. Defendants do not challenge the competency of counsel or the adequacy of the named plaintiffs.
Accordingly, I hold that plaintiffs have satisfied the requirements of Rule 23(a).
D. Rule 23(b) I now consider whether the class falls within one of the categories set forth in Rule 23(b). For the reasons set forth below, I hold that plaintiffs’ proposed class qualifies under Rule 23(b)(2).
1. Rule 23(b)(2) [3] Plaintiffs assert that their class should be certified under Rule 23(b)(2), which provides for certification if:
the party opposing the class has
5

Wright v. Stern, Not Reported in F.Supp.2d (2003)
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).
Rule 23(b)(2) was intended to assist litigants seeking wide-spread institutional reform through injunctive and/or declaratory relief. See Marisol A., 929 F.Supp. at 692 (citing Baby Neal, 43 F.3d at 58-59). In fact, several courts have found that Rule 23(b)(2) will generally be satisfied in cases where injunctive relief is sought and would benefit the entire class. See e.g., Brown v. Guiliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994); Non-Traditional Employment for Women v. Tishman Realty and Const. Corp., 1989 WL 101940, at *4 (“Since defendants have allegedly acted ‘on grounds generally applicable to the class’ and the court finds injunctive relief appropriate should plaintiffs prevail on their claims, plaintiffs have satisfied Rule 23(b)(2).”); Jane B. v. N.Y.C. Dep’t of Soc. Servs., 117 F.R.D. 64, 71 (S.D.N.Y.1987). Civil rights actions are “illustrative” of this type of class action. See Advisory Committee Note to 1966 Amendment, Fed.R.Civ.P. 23(b)(2).
*8 Where plaintiffs seek monetary damages along with injunctive or declaratory relief, certification is appropriate when the equitable relief sought predominates over the claims for monetary relief. See Parker v. Time Warner Entm’t Co., 331 F.3d 13, 20 (2d Cir.2003) (citing Robinson, 267 F.3d at 164). To evaluate whether injunctive relief predominates, courts in this circuit conduct an ad-hoc determination. Robinson, 267 F.3d at 164. Before certifying the class under 23(b)(2), the court “should, at a minimum, satisfy itself [that] (1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id.

The instant case presents precisely the situation contemplated by Rule 23(b)(2). Plaintiffs, if successful on the merits, would be entitled to injunctive relief to ensure that the alleged race and national origin-based discrimination ceases, and this relief would advance the interests of the entire class “even if not every member actually felt the brunt of the actions.” Latino Officers, 209 F.R.D. at 93. Hence, injunctive relief against defendants would be appropriate should plaintiffs prevail. The fact that plaintiffs also seek monetary damages for the class does not preclude certification under 23(b)(2).
Defendants argue that as to damages, too many individualized determinations are necessary for the class to be certified under Rule 23(b)(2). This is not a concern at the liability stage. Should a need for individualized relief arise at the remedial stage of the proceedings, “it would be appropriate for the Court to afford notice and opt-out rights to absent class members.” Latino Officers, 209 F.R.D. at 93. See Robinson, 267 F.3d at 166. At this stage, however, the rights of absent class members are adequately protected.
Accordingly, certification of the proposed class under Rule 23(b)(2) is appropriate.
CONCLUSION
I hold that plaintiffs satisfy the criteria for class certification under Rule 23 and hence their motion for class certification is granted. Plaintiffs shall submit a proposed order on notice within five business days hereof.
SO ORDERED.
Parallel Citations
92 Fair Empl.Prac.Cas. (BNA) 697
	  

6

 
 Wright v. Stern, Not Reported in F.Supp.2d (2003)
2003 WL 136090 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Robert WRIGHT et al., Plaintiffs, v.
Henry J. STERN et al., Defendants. UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF NEW YORK et al., Defendants.
Nos. 01 Civ.4437 DC MHD, 02 Civ.4699 DC MHD. | Jan. 14, 2003.
Plaintiffs filed class action alleging that hiring policies of city parks department were racially discriminatory. On plaintiffs’ motion for order directing production of documents, the District Court, Dolinger, United States Magistrate Judge, held that: (1) personnel files maintained by department’s deputy commissioner were subject to disclosure, and (2) deputy commissioner’s business calendars and notebooks were subject to disclosure.
Motion granted.
Opinion
MEMORANDUM & ORDER
DOLINGER, Magistrate J.
*1 Plaintiffs in these two consolidated cases have applied by letter for an order directing production of seven categories of documents that defendants have insisted on withholding from discovery. Plaintiffs also ask that defendants be required to provide a list of one category of employees hired since 1995 by the New York City Parks Department. (Letters to the court from Assistant United States Attorney Lisa R. Zornberg dated Dec. 27, 2002 and Jan. 7, 2003). Defendants oppose all of these requests. (Letter to the court from Assistant Corporation Counsel Kit T. Wong dated Jan. 3, 2003). Plaintiffs’ application is granted.
The document requests are identified as Garafalo requests 1, 4, 9, 10 and 11 and Stark requests 1 and 7. The remaining request, in the nature of an interrogatory, is labeled as Stark request 9. We first address the document demands, and do so in the order in which they are discussed by counsel.

[1] Garofalo request 4 is for a file labeled “personnel”, which Deputy Commissioner Robert Garofalo maintains in or near his office and which he described at two sessions of his deposition. Based on his testimony, there is no question that it contains materials “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P, 26(b)(1). As such it is producible.
In opposing this conclusion, defendants press two arguments, both plainly meritless. First, they assert in conclusory fashion that “personnel” matters may cover issues that are not relevant to the claims and defenses in this case. That is certainly true, but defendants offer no indication of what matters, if any, are in fact contained in the file that are beyond the scope of relevance, and they offer no factual basis for inferring that it is preferable for defendants to sift through the file to weed out irrelevant documents. Indeed, they do not offer to undertake this task, and we see no occasion here to invite them to do so, particularly in the absence of any suggestion that possibly irrelevant items found in that file are so sensitive as to justify such treatment.
Second, defendants argue that plaintiffs have had ample opportunity to obtain this discovery before, and thus that the court should deny access on the basis of Fed.R.Civ.P. 26(b)(2)(ii). The factual premise for this argument is a complete mystery; indeed, plaintiffs apparently only learned of the existence of this file at a November 14, 2002 deposition, and then asked for it with reasonable promptitude. There is simply no reason to deny them access to it.
The next two requests, identified as Garofalo requests 9 and 11, seek, respectively, business calendars and notebooks maintained for a pertinent time period by Mr. Garofalo. Defendants object to these demands as overbroad.1

1

To the extent that defendants also object to these and

other requests as untimely, we reject their argument

again. Plaintiffs have acted expeditiously to request

specific documents are their existence is disclosed in

discovery, and defendants make no showing of undue

prejudice.

[2] The deposition testimony by Mr. Garofalo indicates that both categories of documents contain pertinent information, including, for example, which individuals he interviewed for open slots. The defendants’ objection turns on their contention that some portions of these documents may contain information that is not relevant to the case. This objection is groundless.

1

Wright v. Stern, Not Reported in F.Supp.2d (2003)
*2 When a document contains both pertinent and irrelevant information, the document should generally be produced in its entirety unless it includes privileged or otherwise sensitive information. Defendants do not offer any basis for such an inference in this case, and also do not suggest that any specific portion of the notebooks and calendars should be redacted. Rather, they simply object to the request.
The defendants’ objection is rejected. They are to produce the calendars and notebooks.
The next two sets of documents in dispute are labeled Garofalo request 10 and Stark request 7. These seek the minutes and agendas of the so-called Commissioner and Cicada meetings held by former Commissioner Henry Stern. Defendants object on the ground of overbreadth.
Again, there is absolutely no reason to doubt that these documents contain information that is relevant to the claims and defenses in this case. To the extent that defendants object to production because those documents may also contain segments that do not relate to the issues in this case, their objection is rejected for the reason previously stated.
The following two requests, denominated Garofalo request 1 and Stark request 1, seek copies of transcripts containing prior testimony by Mr. Garofalo and Mr. Stark in their official capacities in proceedings involving issues or factual questions that may relate either directly or indirectly to some of the issues in this case. Again, we infer from the circumstances of their testimony in those proceedings that some of what these two officials said will prove pertinent to at least some of the issues or factual questions in this case. Accordingly, the transcripts are to be produced.
The final dispute concerns a request by plaintiffs for a list of so-called “Year–Round Seasonals” hired by the Parks Department since 1995. There is no dispute that this information is quite relevant to the case. Defendants simply object on the alternative grounds that they should not be compelled to create a new document and that the information requested is discernible from documents previously produced by the City.

The first objection misconstrues the nature of the request. Plaintiffs are seeking, in substance, an answer to an interrogatory requesting the names and other identifying information concerning these hires. If that information is reasonably available to the defendants from the records maintained by the Department of Parks or otherwise, they may be required to obtain and provide it.
In this case Mr. Stark testified that the list could be obtained from computerized records maintained by the Department, and defendants do not suggest that deriving this data would be unduly burdensome. Thus, there is an adequate basis for granting the relief sought by plaintiffs.
In seeking to resist this conclusion, defendants argue that they have provided documents from which such information can be derived, and in support of this contention they refer in general terms to several thousand pages of documents turned over to plaintiffs earlier in discovery. The problem with this approach is that such a generalized reference makes it plain that defendants cannot satisfy the standards for invoking Fed.R.Civ.P. 33(d), under which a producing party may specify documents produced that contain a complete answer to an interrogatory if “the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served.” Plaintiffs would be required to undertake an extensive document analysis to derive a list that apparently can be provided far more readily by defendants from their own computer files. Defendants are required to do so.
CONCLUSION
*3 For the reasons noted, plaintiffs’ application to compel further discovery response from defendants is granted in its entirety. Supplemental production of the requested documents and information is to be completed in two weeks.
	  

2

 
 U.S. District Court United States District Court for the Southern District of New York (Foley
Square) CIVIL DOCKET FOR CASE #: 1:02-cv-04699-DC-MHD

U.S.A. v. City of New York, et al Assigned to: Judge Denny Chin Referred to: Magistrate Judge Michael H. Dolinger Demand: $0 Lead case: 1:01-cv-04437-DC-MHD Member case: (View Member Case) Cause: 42:1981 Job Discrimination (Race)

Date Filed: 06/19/2002 Date Terminated: 06/09/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff United States Of America

represented by Lisa R. Zornberg U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637-2800 Fax: (212) 637-2730 Email: lisa.zornberg@usdoj.gov LEAD ATTORNEY

Ramon E. Reyes, Jr U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212 637-2200 Fax: 212 637 2717 Email: Ramon.Reyes2@usdoj.gov LEAD ATTORNEY

Russell Marc Yankwitt United States Department of Justice 33 Whitehall Street 8th Floor New York, NY 10004 (718) 422-5700 Fax: (212) 637-2730 Email: Russell.Yankwitt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of New York
Defendant New York City Department of Parks and Recreation
Intervenor Defendant City of New York
Intervenor Defendant New York City Department of Parks and Recreation
Intervenor Plaintiff Carrie Anderson
Intervenor Plaintiff Walter Beach
Intervenor Plaintiff Jacqueline Brown
Intervenor Plaintiff Angelo Colon
Intervenor Plaintiff Paula Loving
Intervenor Plaintiff Odessa Portlette

Intervenor Plaintiff David Ray
Intervenor Plaintiff Elizabeth Rogers
Intervenor Plaintiff Henry Roman
Intervenor Plaintiff Kathleen Walker
Intervenor Plaintiff Robert R Wright

represented by Lewis M. Steel Outten & Golden LLP 3 Park Avenue 29th Floor New York, NY 10016 (212) 245-1000 LEAD ATTORNEY

Date Filed 06/18/2002 06/18/2002 06/24/2002
07/08/2002
07/12/2002 07/12/2002

#

Docket Text

1 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). (rmo) (Entered: 06/21/2002)

CASE REFERRED TO Judge Denny Chin as possibly related to 1:01cv4437. (rmo) (Entered: 06/21/2002)

2 RETURN OF SERVICE of summons and complaint executed as to City of New York by Shaniqua Carr on 6/21/02 . Answer due on 7/11/02 for City of New York . (dle) (Entered: 06/26/2002)

5 Notice of Case Assignment to Judge Denny Chin . Copy of notice and judge's rules mailed to Attorney(s) of record: Ramon E. Reyes Jr., Lisa Zornberg . (rmo) Modified on 07/17/2002 (Entered: 07/17/2002)

Case accepted as related to 01cv4437. Notice of assignment to follow. (rmo) Modified on 07/22/2002 (Entered: 07/17/2002)

Magistrate Judge Kevin N. Fox is so designated. (rmo) (Entered:

07/15/2002
07/15/2002 07/15/2002 07/15/2002 07/16/2002 07/17/2002
07/23/2002
07/26/2002 07/26/2002

07/17/2002)
3 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial/After Initial Case Management Conference held by District Judge. Referred to Magistrate Judge Michael H. Dolinger . ( signed by Judge Denny Chin ) (jp) (Entered: 07/16/2002)
STIPULATION and ORDER; that this action is consolidated with action #02 cv 4437(DC) for all purposes, including discovery and trial . ( signed by Judge Denny Chin ) Original document filed under case number 02 cv 4437, document number 24. (jp) (Entered: 07/16/2002)
Consolidated Member Case. Lead Case Number: 1:02cv4437 . (jp) (Entered: 07/16/2002)
**Remove referral flag. Case no longer referred. (jp) (Entered: 07/16/2002)
4 ORDER, regarding procedures to be followed that shall govern the handling of confidential material . ( signed by Judge Denny Chin ); Copies mailed. (jp) (Entered: 07/16/2002)
6 ORDER, that a pretrial conference has been scheduled in this action for 10:00 a.m. on Tueasday, 8/13/02, at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, NY 100071312 . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (tp) (Entered: 07/18/2002)
7 Memo-Endorsement on letter addressed to Judge Chin from Stuart I. Parker, dated 7/17/02. Counsel for defendants writes to request permission to respond to the complaint by July 31, 2002. Approved. . ( signed by Judge Denny Chin ); Copies mailed. (sb) (Entered: 07/23/2002)
ORDER, plntfs in 01 cv 4437, having requested permission to intervene in 02 cv 4699, the application is hereby granted and plntfs are granted leave to intervene ( signed by Judge Denny Chin ); Copies mailed; orig docketed in 01 cv 4437, doc #30 (cd) (Entered: 07/29/2002)
SECOND AMENDED COMPLAINT by Carrie Anderson, Walter Beach, Jacqueline Brown, Angelo Colon, Paula Loving, Odessa Portlette, David Ray, Elizabeth Rogers, Henry Roman, Kathleen Walker, Robert R Wright (Answer due 8/5/02 for New York City Dept., for City of New York ) (Government Answer due 8/5/02 for New York City Dept., for City of New York ) amending [1-1] complaint . Summons issued. Original document # 31 filed in 01cv4437. (sb) (Entered: 07/31/2002)

08/02/2002
08/02/2002
10/28/2002 11/13/2002 12/06/2002 02/03/2003 03/03/2003 03/10/2003 05/27/2003 06/10/2003
11/05/2003 12/30/2003

AFFIDAVIT OF SERVICE of intervenor's complaint as to U.S.A., City of New York, New York City Dept. by U.S. Mail on 7/30/02 . Original document filed in case # 01cv4437, document #34. (dle) (Entered: 08/12/2002)
INTERVENOR'S COMPLAINT by Robert Wright, Kathleen Walker, Henry Roman, Elizabethe Rogers, david Lee Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, and Carrie L. Anderson against City of New York, New York City Dept.. Original document filed in case #01cv4437, document #33. Summons issued. (dle) (Entered: 08/12/2002)
8 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 8/13/02. (cd) (Entered: 10/31/2002)
9 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 8/13/02. (dt) (Entered: 11/13/2002)
10 Memorandum to Docket Clerk:, for a conference held before Magistrate Judge Dolinger on 12/6/02 . (dle) (Entered: 12/12/2002)
Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 12/6/02. (Original Doc. # 58 Filed In 01 Civ. 4437). (dt) (Entered: 02/03/2003)
Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of January 23, 2003. (Original Doc. # 60 Filed In 01 Civ. 4473). (dt) (Entered: 03/03/2003)
11 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of March 3, 2003. (djc) (Entered: 03/12/2003)
12 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of March 3, 2003. (dt) (Entered: 05/27/2003)
13 Memo-Endorsement on letter addressed to Mag. Judge Dolinger from Ramon E. Reyes, Jr., dated 06/06/03; Re: counsel requests a further extension of discovery until 11/12/03; With the understanding that the parties will continue to pursue discovery while settlement discussions are ongoing, this application is granted. The deadline for fact discovery is extended to 11/12/03 ; ( signed by Magistrate Judge Michael H. Dolinger ); Copies faxed by Chambers; (djc) (Entered: 06/11/2003)
14 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 9/24/03. (df) (Entered: 11/05/2003)
ENDORSED LETTER addressed to Magistrate Judge Dolinger from Sherri R. Rosenberg dated 12/22/03 re: Counsel requests that defendants have until 12/29/03 to respond to the letter dated 12/18/03 from counsel for Wright plaintiffs regarding discovery issues requiring

12/30/2003
01/29/2004 03/22/2004 03/25/2004 03/29/2004 03/29/2004

court intervention. Application granted. (Signed by Judge Michael H. Dolinger on 12/22/03) (sb, ) (Entered: 01/15/2004)
MEMORANDUM & ORDER; The Court directs that plaintiffs' counsel advise defendants' attorneys in writing of the names and positions (if known) of any current employees of the Department whom they may wish to interview, as further set forth on this order. The Court directs taht plaintiffs' counsel refrain from seeking to elicit from any present or former Department employee any attorney-client communications, and (2) that defendants refrain from any suggestion or instruction to a Department employee who is to be interviewed by plaintiffs' representatives that the employee should not do so. Plaintiffs' counsel is to advise the employee that he or she is free to decline. (Signed by Judge Michael H. Dolinger on 12/24/03) Copies Mailed By Chambers.(sb, ) Original document # 85 filed in 1:01-cv-4437 Modified on 1/15/2004 (sb, ). Original document # 84 filed in 1:01-cv4437. (Entered: 01/15/2004)
TRANSCRIPT of proceedings held on 1/7/04 before Judge Michael H. Dolinger.ORIGINAL DOCUMENT # 86 FILED IN 01CV-4437.(pr, ) (Entered: 01/29/2004)
15 ENDORSED LETTER addressed to Judge Dolinger from Russell Yankwitt dated 3/16/04, re parties agreed upon schedule with respect to Requests to Admit. (Signed by Judge Michael H. Dolinger on 3/16/04) copies sent by chambers.(cd, ) (Entered: 03/25/2004)
TRANSCRIPT of proceedings held on 1/7/04 before Judge Michael H. Dolinger.(See original transcipt in case number 01civ4437, document #88.)(tr, ) (Entered: 03/25/2004)
ORDER the application by plaintiffs for further examination of David Stark on topics other than those specified in theendorsed order dated 3/24/04 is denied. So Ordered. (Signed by Judge Michael H. Dolinger on 3/25/04) Original filed in case 01cv4437, doc #89.(jco, ) (Entered: 03/30/2004)
16 ENDORSED LETTER addressed to Judge Michael H. Dolinger from Kathleen M. Confrey dated 3/24/04 re: Counsel for defendants request the Court's approval of a two-week extension of all of the deadlines for requests for admission, expert discovery and the plaintiffs' motion for sanctions. Plaintiffs have consented to these modifications. Defendants also wish to correct a factual representation made by defendants in a letter to the Court dated 3/20/04 and at the February 24th conference. Application for amendment of the pretrial schedule is granted. The proposed schedule is adopted. (Signed by Judge Michael H. Dolinger on 3/25/04) (jco, ) (Entered: 03/31/2004)

05/04/2004 05/10/2004 05/10/2004 05/10/2004 05/10/2004 05/12/2004
06/23/2004 07/07/2004 09/03/2004
09/03/2004 09/15/2004

17 ENDORSED LETTER addressed to Judge Dolinger from Russell Yankwitt dated 5/3/04: granting plntf's request for a two day extension of time to serve sanctions' motions. (Signed by Judge Michael H. Dolinger on 5/3/04) (cd, ) (Entered: 05/05/2004)
18 NOTICE OF MOTION for Sanctions.against defts...answering papers be served by 6/7/04..reply by 6/21/04. (nite dep. box) Document filed by United States Of America. (pa, ) (Entered: 05/11/2004)
19 MEMORANDUM OF LAW in Support re: [18] MOTION for Sanctions..(nite dep. box) Document filed by United States Of America. (pa, ) (Entered: 05/11/2004)
20 DECLARATION of Lisa Zornberg in Support re: [18] MOTION for Sanctions.. Document filed by United States Of America. (cd, ) (Entered: 05/11/2004)
21 DECLARATION of Allan Ingraham in Support re: [18] MOTION for Sanctions. Document filed by United States Of America. (cd, ) (Entered: 05/11/2004)
ORDER; upon the declaration of Lewis M. Steel and the consent of the parties it is Ordered that Lewis M. Steel is substituted for the law firm of Steel Bellman Ritz and Clark, P.C. as one of the attorneys for the plaintiffs and the class they represent. (Signed by Judge Denny Chin on 5/11/04) copies faxed by chambers.(djc, ) (Entered: 05/14/2004 (Signed by Judge Denny Chin on 5/11/04); (orig. docmt dktd in case no. 01 cv 4437, docmt #98) copies faxed by chambers. (Entered: 05/14/2004)
TRANSCRIPT of proceedings held on 6/8/04 before Judge Michael H. Dolinger. Original filed in 01-CV-4437 doc. # 99.(dfe, ) (Entered: 06/23/2004)
TRANSCRIPT of proceedings held on 6/8/04 at 4:00 p.m. before Judge Michael H. Dolinger. (Refer to 01-cv-4437, document #100). (ph, ) (Entered: 07/23/2004)
ORDER: the government and class plaintiffs to serve letter/briefs by 9/10/04; defendants to serve responses by 9/24/04; defendants response to motion for sanctions due 10/1/04; movants reply due 10/15/04. Original document filed in 01cv4437 (DC), document # 101. (Signed by Judge Michael H. Dolinger on 9/1/04) Copies Mailed by Chambers.(db, ) (Entered: 09/08/2004)
Set/Reset Deadlines as to [18] MOTION for Sanctions.. Responses due by 10/1/2004 Replies due by 10/15/2004. (db, ) (Entered: 09/08/2004)
22 ENDORSED LETTER addressed to Magistrate Judge Dolinger from Lisa R. Zornberg dated 9/10/2004 re: The Government and plaintiff's

09/15/2004 09/30/2004 11/05/2004 11/05/2004 11/23/2004
12/08/2004 12/17/2004 12/27/2004
12/29/2004

submission to be filed by no later then 9/17/2004. Defendant's response is due by 10/15/2005. So Ordered (Signed by Judge Michael H. Dolinger on 9/10/2004) (jsa, ) (Entered: 09/17/2004)
Set Deadlines/Hearings: Brief due by 9/17/2004. Responses due by 10/15/2004 (jsa, ) (Entered: 09/17/2004)
ORDER; Conference set for 10/15/2004 10:00 AM before Magistrate Judge Michael H. Dolinger. (Signed by Judge Michael H. Dolinger on 9/29/2004) Original document filed under case number 01-cv-4437, document number 103.(jp, ) (Entered: 10/01/2004)
23 REPLY MEMORANDUM OF LAW in Support re: [18] MOTION for Sanctions.. Document filed by United States Of America. (pa, ) (Entered: 11/08/2004)
NOTICE of Change of Address by Lewis M. Steel on behalf of Robert R Wright. New Address: Outten & Golden LLP, 3 Park Avenue, 29th Floor, New York, New York, 10016, (212) 245-1000. (orig. document docketed in 01cv4437 as document #114). (pl, ) (Entered: 11/10/2004)
LETTER addressed to Judge Dolinger from Russell Yankwit dated 11/10/2004 re: a response to defts letter brief challenging nine categories of the Governments response to certain requests for admissions. Document filed by United States Of America. Original document filed under case number 01-cv-4437, document number 118.(jp, ) (Entered: 11/23/2004)
24 TRANSCRIPT of proceedings held on 11/12/04 before Judge Michael H. Dolinger.(Gonzalez, Jose) (Entered: 12/08/2004)
25 LETTER addressed to Judge Dolinger from Kathleen Comfrey dated 12/15/2004 Document filed by City of New York, New York City Department of Parks and Recreation.(jp, ) (Entered: 12/23/2004)
ENDORSED LETTER addressed to Magistrate Judge Dolinger from Russell M. Yankwitt dated 12/22/2004 re: the government will submit their revised responses to defendants by 1/7/2005 and if defendants still wish to challenge the responses, defendants will submit a letter brief to the Court by 1/21/2005. signed by Magistrate Judge Michael H. Dolinger 12/122/2004 copies mailed to counsel by chambersOriginal filed on 01 cv 4437 (Entered: 12/29/2004)
Memorandum and Order The class plaintiffs seek an order compelling defendants to respond to their contention interrogatories 22 and 23. (Dec. 13, 2004 letter to the Court from Lewis M. Steel.Esq.). The application is granted. Copies mailed by chambers. Original filed on 01 cv 4437 (Signed by Judge Michael H. Dolinger on 12/23/2004) (Entered: 01/03/2005)

02/03/2005
02/03/2005 02/03/2005
02/03/2005 06/08/2005 06/13/2005

ENDORSED LETTER addressed to Magistrate Judge Dolinger from Kathleen M. Comfrey re: application granted. Defendant's have an extension until 2/11/2005 to supplement their responses to the class plaintiffs' and the federal government's request for admissions which are not subject to the pending appeal ("RFAs") Original filed on 01cv4437 (Signed by Judge Michael H. Dolinger on 1/28/2005) (jsa, ) Modified on 2/7/2005 (jsa, ). copies mailed to counsel by chambers. (Entered: 02/07/2005)
Set/Reset Deadlines: Defendants Supplemental Responses due by 2/11/2005 (jsa, ) (Entered: 02/07/2005)
ENDORSED LETTER addressed to ENDORSED LETTER addressed to Magistrate Judge Dolinger from Lewis M. Steel dated 1/28/2005 re: application granted. The Wright plaintiff's may have until 2/11/2005 to supplement their responses to certain of the defendant's request to admit. Original filed in 01cv4437Copies mailed to counsel by chambers. (Signed by Judge Michael H. Dolinger on 1/28/2005) (jsa, ) (Entered: 02/07/2005)
Set/Reset Deadlines: Wright plaintiffs supplemental Responses due by 2/11/2005 (jsa, ) (Entered: 02/07/2005)
26 CONSENT DECREE AND JUDGMENT in favor of United States of America against City of New York and New York City Department of Parks and Recreation settling this action. (Signed by Judge Denny Chin on 6/8/05) (ml, ) (Entered: 06/09/2005)
Mailed notice of Right to Appeal re: [26] Consent Judgment and to Attorney(s) of Record: Ramon E. Reyes, Jr, Lewis M. Steel, Russell Marc Yankwitt, Lisa R. Zornberg. (lma, ) (Entered: 06/14/2005)

 
 Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 1 of 26
CLOSED, LEAD
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:01−cv−04437−DC−MHD

Wright, et al v. Stern, et al Assigned to: Judge Denny Chin Referred to: Magistrate Judge Michael H. Dolinger Demand: $0 Member case: (View Member Case) Cause: 42:1981 Equal Rights Under the Law
Plaintiff

Date Filed: 05/24/2001 Date Terminated: 05/15/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Robert Wright

represented by Cynthia Rollings Beldock, Levine &Hoffman, L.L.P. 99 Park Avenue New York, NY 10016−1503 (212) 490−0400 LEAD ATTORNEY

Jody Lynn Yetzer Beldock, Levine &Hoffman, L.L.P. 99 Park Avenue New York, NY 10016 (212) 490−0400 LEAD ATTORNEY

Lewis M. Steel Outten &Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (646) 825−9835 Fax: (212) 245−4005 Email: ls@outtengolden.com LEAD ATTORNEY

Melissa S. Woods Meyer, Suozzi, English &Klein, P.C(NYC) 1350 Broadway, Suite 501 New York, NY 10018 (212)−239−4999 Fax: (212)−239−1311 Email: mwoods@msek.com TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock Beldock Levine &Hoffman LLP 99 Park Ave (16 Fl.) New York, NY 10016 212−490−0400 Fax: 212−557−0565 Email: mbeldock@blhny.com LEAD ATTORNEY

Robert H. Stroup Levy Ratner, P.C. 80 Eighth Avenue, Floor 8 New York, NY 10011 (212) 627−8100 Fax: (212) 627−8182 Email: rstroup@lrbpc.com LEAD ATTORNEY

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 2 of 26

Plaintiff Kathleen Walker
Plaintiff Henry Roman

Steven H. Goldman Steven Goldman Attorney At Law 190 East 161 Street Bronx, NY 10451 (718)−538−5743 Fax: (718)−410−0590 Email: criminallawyers@optonline.net LEAD ATTORNEY
Matthew Colangelo NAACP Legal Defense &Educational Fund, Inc. 99 Hudson St., 16th floor New York,, NY 10013 212 965 2268 Fax: 212 226 7592 Email: mcolangelo@naacpldf.org ATTORNEY TO BE NOTICED
represented by Cynthia Rollings (See above for address) LEAD ATTORNEY
Jody Lynn Yetzer (See above for address) LEAD ATTORNEY
Lewis M. Steel (See above for address) LEAD ATTORNEY
Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY
Myron Beldock (See above for address) LEAD ATTORNEY
Robert H. Stroup (See above for address) LEAD ATTORNEY
Steven H. Goldman (See above for address) LEAD ATTORNEY
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Cynthia Rollings (See above for address) LEAD ATTORNEY
Jody Lynn Yetzer (See above for address) LEAD ATTORNEY
Lewis M. Steel

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 3 of 26

(See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elizabeth Rogers

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Ray

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 4 of 26

(See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Odessa Portlette

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Paula Loving

represented by

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 5 of 26

Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Angelo Colon

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 6 of 26

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jacqueline Brown

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Walter Beach

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 7 of 26

(See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Carrie Anderson Individually and as Class Representatives

represented by Cynthia Rollings (See above for address) LEAD ATTORNEY

Jody Lynn Yetzer (See above for address) LEAD ATTORNEY

Lewis M. Steel (See above for address) LEAD ATTORNEY

Melissa S. Woods (See above for address) TERMINATED: 06/11/2007 LEAD ATTORNEY

Myron Beldock (See above for address) LEAD ATTORNEY

Robert H. Stroup (See above for address) LEAD ATTORNEY

Steven H. Goldman (See above for address) LEAD ATTORNEY

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Henry J. Stern individually and in his official capacity as Commissioner of teh New York City Department of Parks and Recreation

represented by Barbara B Butler New York City Law Department 100 Church Street New York, NY 10007 (212) 788−0868 Fax: (212) 788−0367 Email: bbutler@law.nyc.gov LEAD ATTORNEY
Kathleen Marie Comfrey NYC Law Department, Office of the Corporation Counsel(NYC) 100 Church Street New York, NY 10007 212−848−4178 Fax: 646−848−4178 Email: kcomfrey@law.nyc.gov ATTORNEY TO BE NOTICED

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 8 of 26

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Defendant
New York City Department of Parks and Recreation TERMINATED: 08/06/2001

Defendant The City of New York

represented by Barbara B Butler (See above for address) LEAD ATTORNEY

Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED

Defendant
Adrian Benepe individually and in his official capacity as Commissioner of the NYC Department of Parks and Recreation

represented by Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

V. Consolidated Defendant New York City Department of Parks and Recreation
Intervenor Defendant The City of New York
Intervenor Defendant New York City Department of Parks and Recreation

represented by Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara B Butler (See above for address) LEAD ATTORNEY
Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/24/2001
05/24/2001 05/25/2001

# Docket Text
1 CLASS ACTION COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 406970. (jco) (Entered: 05/25/2001)
Magistrate Judge Michael H. Dolinger is so designated. (jco) (Entered: 05/25/2001)
2 AFFIDAVIT OF SERVICE of summons and complaint as to The City of N.Y. c/o of the Corporation Counsel of the City of New York on 5/24/01. Answer due on 6/13/01 for The City of N.Y. (kw) (Entered: 05/30/2001)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 9 of 26

05/25/2001 06/14/2001 06/29/2001 07/03/2001 08/06/2001 08/06/2001 08/14/2001
08/15/2001 01/08/2002 01/14/2002 01/23/2002
01/25/2002 02/06/2002

3 AFFIDAVIT OF SERVICE of summons and complaint as to Henry J. Stern, and N.Y.C. Department by Dianne Caraballo on 5/24/01. Answer due on 6/13/01 for Henry J. Stern, for N.Y.C. Department. (kw) (Entered: 05/30/2001)
4 Memo−Endorsement on letter addressed to Judge Chin from Barbara B. Butler, dated 6/13/01; the defts' time to answer or move is extended to a date to be set at the conference. ( signed by Judge Denny Chin ); Copies mailed. (sac) (Entered: 06/15/2001)
5 AMENDED ANSWER to Complaint by The City of N.Y. (kw) (Entered: 07/02/2001)
6 ANSWER to Complaint by The City of N.Y. (Attorney Barbara B. Butler from the Firm: Michael D. Hess, Corp. Counsel). (sac) (Entered: 07/09/2001)
7 AMENDED COMPLAINT by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, and Carrie Anderson (Answer due 8/20/01 for The City of N.Y. and for Henry J. Stern ) amending [1−1] complaint. Jury trial demanded. (kw) Modified on 08/14/2001 (Entered: 08/14/2001)
7 DEMAND for jury trial by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, and Carrie Anderson. (kw) (Entered: 08/14/2001)
8 STIPULATION and ORDER; tht dft. The City of New York represents and agrees that it is the legal entity responsible for implementing and will implement any legal or equitable relief which may be order by the Court in this aciton, including without limitation any injunctive relief such as requested by plaintiffs in the complaint, in light of the stipulation in parargaph 1 above, The N.Y.C. Dept. of Parks and Recreation shall be dropped as a separate party defendant and removed as a party defendant from the caption of this action ; plaintiffs agree to serve and file an amended complaint with the new caption and defendants agree that this technical and procedural amendment shall not constitute plaintiffs' amendment as of course pursuant to Federal Rule 15(a) . ( signed by Judge Denny Chin ) (pl) (Entered: 08/15/2001)
9 ANSWER TO THE FIRST AMENDED COMPLAINT by Henry J. Stern, The City of N.Y. (Attorney Barbara B. Butler from the Firm: Michael D. Hess). (djc) (Entered: 08/16/2001)
10 ORDER, regarding the Court's decision on three discovery issues: (1) plaintiffs' request for the City's computerized databases for Parks Department employees; (2) the time frame for the production of documents and computer data; and (3) the terms of a confidentiality stipulation . ( signed by Judge Denny Chin ); Copies mailed. (kw) (Entered: 01/14/2002)
11 STIPULATION and PROTECTIVE ORDER; regarding procedures that will govern the handling of "Confidential Materials" . ( signed by Judge Denny Chin ) (sn) (Entered: 01/15/2002)
12 Memo−Endorsement on letter addressed to Judge Chin from Amy F. Melican, dated 1/18/02; counsel writes to request that defendants' time to object to plaintiffs' request for fields from the Citywide Personnel System and DPR Seasonal System be extended to 2/15/02. The date for objections is extended until 2/7/02; the date for producing the data is extended until 30 calendar days after resolution of the objections . ( signed by Judge Denny Chin ); Copies mailed. (kkc) (Entered: 01/23/2002)
13 Memo−Endorsement on letter addressed to Judge Chin from Cynthia Rollings, dated 1/22/02. Re: plaintiffs write in response to defendants' 1/18/02 letter. My 1/22/02 Order stands. The new deadlines apply only to the Computer data in question. Document discovery shall otherwise proceed as scheduled . ( signed by Judge Denny Chin ); Copies mailed. (kw) (Entered: 01/30/2002)
15 Memo−Endorsement on letter addressed to Judge Chin from Amy F. Melican, dated 2/5/02; approving counsel for defts' request that defts' time to object to pltffs' request for fields from the Citywide Personnel System and DPR Seasonal Tracking

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 10 of 26

02/07/2002 02/28/2002 03/26/2002
03/27/2002 04/10/2002
05/14/2002
05/22/2002
06/07/2002 06/25/2002 07/15/2002 07/15/2002 07/15/2002

System be extended to 2/11/02 ; and both parties' time to serve their responses and objections to interrogatories and document requests be extended to 2/21/02 . ( signed by Judge Denny Chin ); Copies mailed. (sn) (Entered: 02/08/2002)
14 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement; Referred to Magistrate Judge Michael H. Dolinger. ( signed by Judge Denny Chin ) (pl) (Entered: 02/08/2002)
16 ORDER; reset settlement conference for 2:30 p.m. on 3/7/02, in Courtroom 17D, 500 Pearl Street, NY, NY ; ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (djc) (Entered: 03/04/2002)
17 ORDER, plntfs are to identify to defts the computer fields for which they require more specific descriptions of the field's contents. This is to be done at the conclusion of the conference on 3/21/02. Defts are to provide the requested information by 3/26/02, as further set forth in this document ; set oral argument for 9:00 4/15/02, on those issues ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (cd) (Entered: 03/27/2002)
18 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge Dolinger for Gen. Pretrial/After Initial Case Management Conference held by District Judge. ( signed by Judge Denny Chin ) (kg) (Entered: 03/28/2002)
19 Memo−Endorsement on letter addressed to Magistrate Judge Dolinger from Barbara B. Butler, dated 4/9/02. Re: Counsel for defendants write to request an extension of time within which to respond to plaintiffs' letter motion regarding discovery and to respond to plaintiffs' 2nd Set of Interrogatories and Document Demands. Application granted . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (tp) Modified on 04/15/2002 (Entered: 04/15/2002)
20 Memo−Endorsement on letter addressed to Mag. Judge Dolinger from Jody L. Yetzer, dated 05/13/02; Application for extension of discovery matters granted. The schedules for briefing remaining deposition concerning document production and interrogatories is adjourned to the dates requested in this letter application; ( Plaintiffs to May 29; and defendants response to June 11 ; ( signed by Magistrate Judge Michael H. Dolinger ); mailed. (djc) (Entered: 05/17/2002)
21 ORDER, that the next day of defendant Henry J. Stern's deposition is to be conducted on 5/28/02. Defendants are to advise plaintiffs by 5/21/02 which of the following dates Lesley Webster will be made available for deposition: June 11, 18, 19, 20 or 21, 2002 ; Defendants are to serve their answers to plaintiffs' Third Set of Interrogatories by 5/22/02 ; All documents are to be produced by 5/23/02 ; The schedule for briefing any remaining document disputes remains as set by the 5/13/02 endorsed order . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (tp) (Entered: 05/24/2002)
22 Memo−Endorsement on letter addressed to Judge Dolinger from Kit T. Wong, dated 6/4/02, granting deft's request for an extension of time to 6/11/02 for defts to respond to plntfs' 5/29/02 letter brief raising outstanding discovery issues. Plntfs' time to reply to defts' 6/11/02 submissions enlarged to 6/18/02 ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (cd) (Entered: 06/11/2002)
23 ORDER; reset oral argument with respect to counsels' unresolved discovery disputes has been scheduled in this action on 7/9/02 at 2:30 p.m., in Courtroom 17D . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (pl) (Entered: 06/26/2002)
24 STIPULATION and ORDER; that this action is consolidated with action #02 cv 4699(DC) for all purposes, including discovery and trial . ( signed by Judge Denny Chin ) (jp) (Entered: 07/16/2002)
Consolidated Lead Case. (jp) (Entered: 07/16/2002)
25 ORDER; case nos. 01 cv 4437 and 02 cv 4699 have been consolidated for all purposes. Pltffs in 01 cv 4437 shall file an amended complaint to add Title VII claims by 7/18/02. Their class certification motion is due on 9/20/02. Defts shall file their opposition papers by 10/18/02, and pltff shall file their reply papers, if any, by 11/1/02. All discovery shall be completed by 12/6/02, and a pretrial

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 11 of 26

07/16/2002
07/18/2002 07/23/2002 07/25/2002 07/26/2002 07/26/2002
07/31/2002 08/02/2002 08/02/2002 08/21/2002 08/30/2002 09/17/2002 09/17/2002

conference will be held that day at 10:00 AM . ( signed by Judge Denny Chin ); Copies mailed. (sn) (Entered: 07/17/2002)
26 Memo−Endorsement on letter addressed to Magistrate Judge Dolinger from Jody Yetzer, dated 7/12/02; Granting counsel for the parties request for the Court to modify its prior orders with regard to filing papers relating to disputes within 40 hours to allow that 48 hour period to begin to run from the close of business on Tuesday. If any issues remain requiring Court intervention, pltffs will then, within 48 hours, submit a letter brief to the Court addressing those issues . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (jp) (Entered: 07/19/2002)
27 AFFIDAVIT OF SERVICE of Second Amended Class Action Complaint by hand delivery on 7/16/02 on behalf of defendants to Barbara Butler and/or Kit Wong, Assistant Corporation Counsel. (tp) (Entered: 07/22/2002)
28 ORDER, that a pre−trial conference has been scheduled in the above−captioned action on Tuesday, August 13, 2002 at 10:00 a.m., in Courtroom 17D, 500 Pearl Street . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (dle) (Entered: 07/26/2002)
29 Memo−Endorsement on letter addressed to Magistrate Judge Dolinger from Jody L. Yetzer, dated 7/233/02: Granting plaintiffs request for extension of time until 7/24/02 to reply to defendants' submission . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (tp) (Entered: 07/26/2002)
30 ORDER, plntfs having requested permission to intervene in 02 cv 4699, the application is hereby granted ( signed by Judge Denny Chin ); Copies mailed; also docketed in 01 cv 4699 (cd) (Entered: 07/29/2002)
31 SECOND AMENDED COMPLAINT by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson (Answer due 8/5/02 for NYC Dept. Parks, for The City of N.Y., for N.Y.C. Department, for Henry J. Stern ) (Government Answer due 8/5/02 for NYC Dept. Parks, for The City of N.Y., for N.Y.C. Department, for Henry J. Stern ) amending [1−1] complaint . Summons issued. (sb) (Entered: 07/31/2002)
32 Memo−Endorsement on letter addressed to Magistrate Judge Dolinger from Barbara Butler, dated 7/30/02. Re: defendants write regarding a discovery dispute. If the parties are unable to resolve this matter amongst themselves, it will be dealt with at the 8/13/02 scheduled conference . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed. (kw) Modified on 08/07/2002 (Entered: 08/07/2002)
33 INTERVENOR'S COMPLAINT by Robert Wright, Kathleen Walder, Henry Roman, Elezabeth Rogers, David Lee Ray, Odessa Portlette, Paula Loving, angelo Colon, Jacqueline Brown, and Carrie L. Anderson against The City of N.Y., NYC Dept. Parks . Summons issued. (dle) (Entered: 08/08/2002)
34 AFFIDAVIT OF SERVICE of intervenors complaint as to The City of N.Y., NYC Dept. Parks by U.S.Postal Service on 7/30/02 . Answer due on 8/19/02 for The City of N.Y., for NYC Dept. Parks . (dle) (Entered: 08/08/2002)
35 ANSWER by Henry J. Stern, The City of N.Y. to [33−1] intervenor complaint Firm of: Corporation Counsel by attorney Barbara B. Butler for intervenor−defendant The of N.Y. (db) (Entered: 08/26/2002)
36 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of July 9, 2002. (jw) (Entered: 08/30/2002)
37 Memo−Endorsement on letter addressed to Judge Chin from Jody Yetzer/Lewis M. Steel, dated 9/10/02, Deadline for filing of plntfs' class certification motion by 11/1/02, response due by 12/6/02, reply due by 12/23/02; Fact Discovery cutoff 1/17/03 ( signed by Judge Denny Chin ); Copies mailed. (cd) Modified on 09/19/2002 (Entered: 09/18/2002)
Deadline(s) updated: Response to motion deadline 12/6/02 ; Reply to response to motion deadline 12/23/02 (cd) (Entered: 09/19/2002)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 12 of 26

10/30/2002 11/06/2002 11/18/2002 11/27/2002 11/27/2002 11/27/2002
11/27/2002
11/27/2002 12/06/2002 12/06/2002
12/06/2002 12/30/2002
01/06/2003

38 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 10/15/02. (yv) (Entered: 11/01/2002)
39 Memo−Endorsement on letter addressed to Mag. Judge Dolinger from Judy L. Yetzer, dated 11/04/02; Plaintiffs' class certification motion due 11/27/02; Defendants' Response to motion deadline due 1/10/03; Plaintiffs' Reply to response to motion deadline due 1/27/03 ; (signed by Magistrate Judge Michael H. Dolinger ); Copies faxed by Chambers; (djc) (Entered: 11/07/2002)
40 Memo−Endorsement on letter addressed to Judge Chin from Jody Yetzer and Lewis M. Steel, dated 11/6/02. Re: parties request an enlargement of the page limitation for the memorandum of law from 25 pages to 75 pages. Application granted but only to the extend as follows: Pl. br. − 50 pages.; def. br. − 50 pages; Reply br. − 25 pages . ( signed by Judge Denny Chin ); (kw) (Entered: 11/19/2002)
41 SEALED DOCUMENT placed in vault. (js) (Entered: 12/03/2002)
42 NOTICE OF MOTION by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson for an order for class certification . No Return Date. (sb) (Entered: 12/04/2002)
43 MEMORANDUM OF LAW by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson in support of [42−1] motion for an order for class certification. Volume I of Deposition Testimony and Interview Statements and Volume II of Documentary Evidence attached. (sb) Modified on 12/04/2002 (Entered: 12/04/2002)
44 JOINT AFFIDAVIT of Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson in support of [42−1] motion for an order for class certification and supporting affidavits of present and former parks employees and union representative of parks employees. (sb) Modified on 12/04/2002 (Entered: 12/04/2002)
45 DECLARATION OF COUNSEL of Cynthia Rollings and Lewis M. by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson in support of [42−1] motion for an order for class certification . (sb) (Entered: 12/04/2002)
46 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 10/15/02. (dt) (Entered: 12/06/2002)
47 Memo−Endorsement on letter addressed to Judge Chin from A.U.S.A., dated 12/3/02. The plaintiffs request that the 12/6/02 pretrial conference be rescheduled for sometime in February 2003. The pretrial conference scheduled for 12/6/02 is adjourned until 2/21/03 at 11:00 a.m. If any party believes a conference before then to discuss settlement would be helpful, the court will schedule one. ( signed by Judge Denny Chin ) (sb) (Entered: 12/10/2002)
48 Memorandum to Docket Clerk:, for a conference held before Magistrate Judge Dolinger on 12/6/02 . (dle) (Entered: 12/12/2002)
49 Memo−Endorsement on letter addressed to Judge Chin from Barbara R. Butler, dated 12/19/02; Re: defendants respectfully sumti this letter appealing so much of Mag. Judge Dolinger's orders at the conference on 12/6/02 as set forth in this letter; upon renew of this letter, the Government's response dated 12/20/02, and the exhibits attached to both letters. Judge Dolinger's orders are affirmed in all respects . ( signed by Judge Denny Chin ); (pl) (Entered: 01/06/2003)
50 Memo−Endorsement on letter addressed to Magistrate Judge Dolinger from Kit T. Wong, dated 12/30/02; granting defts until Friday, 1/3/03 to respond to the letter to Your Honor dated 12/27/02. ( signed by Magistrate Judge Michael H. Dolinger ); (sac) (Entered: 01/09/2003)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 13 of 26

01/13/2003
01/13/2003
01/14/2003 01/24/2003 01/24/2003
01/24/2003 01/24/2003 02/03/2003 02/07/2003 02/28/2003 02/28/2003 03/03/2003 03/10/2003

51 Memo−Endorsement on letter addressed to Judge Chin from Kit T. Wong, dated 01/09/03; the time for defendants' service of their opposition to Wright plaintiffs' motion for class certification is extended from January 10, 2003 to February 7, 2003; Wright plaintiffs' time for service of their reply to defendants' opposition is extended from January 27, 2003 to February 28, 2003. Final . ( signed by Judge Denny Chin ); (djc) (Entered: 01/15/2003)
52 MEMORANDUM AND ORDER; at a telephone conference conducted today, counsel for the class plaintiffs applied to the court for an order precluding the participation in this lawsuit on defendants' behalf of attorneys from the law firm Clifford Chance unless that firm, or at least its individual attorneys, filed a notice of appearance. The request is denied ; ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by Chambers; (djc) Modified on 01/16/2003 (Entered: 01/15/2003)
53 MEMORANDUM &ORDER, Plaintiffs' application to compel further discovery response from defendants is granted in its entirety. Supplemental production of the requested documents and information is to be completed in two weeks. ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by Chambers. (sb) (Entered: 01/16/2003)
54 Letter filed by Henry J. Stern, The City of N.Y., NYC Dept. Parks, The City of N.Y., NYC Dept. Parks addressed to Magistrate Judge Dolinger from Kit T. Wong, dated 1/23/03, re: Counsel for defendants request a conference call between the Court and counsel for all parties. (tp) (Entered: 01/28/2003)
55 Letter filed by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Carrie Anderson, Jacqueline Brown, Walter Beach addressed to Magistrate Judge Dolinger from Jody L. Yetzer, dated 1/23/03, re: Counsel for plaintiffs' request that the City's objection to the deposition of Mr. Newfield be overruled. (tp) (Entered: 01/28/2003)
56 Letter filed by Henry J. Stern, The City of N.Y., NYC Dept. Parks, The City of N.Y., NYC Dept. Parks addressed to Magistrate Judge Dolinger from Kit. T. Wong, dated 1/23/03, re: That counsel for the defendants forward to the Court and all counsel a copy of Virgin Enters. v. American Longevity, 2001 U.S. Dist LEXIS 2315 (S.D.N.Y. 2001). (tp) (Entered: 01/28/2003)
57 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 7/9/02. (yv) (Entered: 01/30/2003)
58 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 12/6/02. (dt) (Entered: 02/03/2003)
59 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 1/23/03. (jco) (Entered: 02/13/2003)
61 REPLY MEMORANDUM by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson re: [42−1] motion for an order for class certification . (cd) (Entered: 03/04/2003)
62 DECLARATION in further support, of Jody Lynn Yetzer by Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson in support Re: [42−1] motion for an order for class certification . (cd) (Entered: 03/04/2003)
60 Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of January 23, 2003. (dt) (Entered: 03/03/2003)
63 ORDER, Defendants appeal from Mag. Judge Dolinger's order dated 1/13/03. Judge Chin has reviewed the parties' letters. Judge Dolinger's order is affirmed in all respects. ( signed by Judge Denny Chin ); Copies faxed by Chambers. (sb) (Entered: 03/11/2003)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 14 of 26

03/27/2003 04/01/2003
04/01/2003 04/09/2003 04/24/2003
06/30/2003 06/30/2003 07/09/2003 07/25/2003 07/29/2003 08/29/2003

64 Memo−Endorsement on letter addressed to Judge Dolinger from Lewis M. Steel, Esq., dated 3/21/03. Set fact discovery due for 9/12/03 . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by chambers. (kw) (Entered: 03/28/2003)
65 Memo−Endorsement on letter addressed to Mag. Judge Dolinger from Russell M. Yankwitt, dated 3/26/03. The Government requests that the Court order that the Government be allowed to schedule the seven hours of Commissioner Benepe's deposition for a date that is agreeable to all parties. Since the class plaintiffs will be deposing Mr. Benepe on 3/28/03, the U.S. may pursue its questioning of the witness at a later date, to be agreed to by the parties. ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by Chambers. (sb) Modified on 04/02/2003 (Entered: 04/02/2003)
66 Memo−Endorsement on letter addressed to Judge Dolinger from Ramon E. Reyes, Jr., dated 3/27/03. Granting US's request for an extension until 4/4/03 to file reply to his motion to compel the production of documents listed on defendants' privilege logs . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by chambers. (kw) (Entered: 04/02/2003)
67 ORDER; that upon plaintiffs' application, the deadline for serving their reply papers in support of their motion to compel is extended to 4/25/03 . ( signed by Magistrate Judge Michael H. Dolinger ); copies mailed by chambers (pl) (Entered: 04/11/2003)
68 Memo−Endorsement on letter addressed to Judge Dolinger from Ramon E. Reyes, Jr., dated 4/23/03. counsel for the Government requests an indefinite extension to reply to defendants' 3/24/03 submission in opposition to the Government's motion to compel the production of non−privileged documents. Appliction for an "indefinite" extension denied. The parties are to pursue their efforts to resolve the privilege issues, and will be required, by 5/15/03 either to (a) complete their briefing or (b) report to the Court in writing the status of their efforts to resolve these issues, if those efforts are still ongoing . ( signed by Magistrate Judge Michael H. Dolinger ); (yv) (Entered: 04/25/2003)
69 ORDER, that if defendants intend to oppose the plaintiffs' revised application to compel production, which is embodied in a letter to the Court dated 5/30/03, they are to serve and file papers, including, where appropriate, affidavits, by no later than 7/3/03 . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by Chambers. (tp) (Entered: 07/02/2003)
70 SUPPLEMENTAL STIPULATION and PROTECTIVE ORDER, regarding procedures to be followed that shall govern the handling of confidential materials . ( signed by Magistrate Judge Michael H. Dolinger ). Copies mailed by Chambers. (tp) (Entered: 07/02/2003)
71 ORDER; granting [42−1] motion for an order for class certification. Judge Chin holds that plaintiffs satisfy the criteria for class certification under Rule 23 and hence their motion for class certification is granted. Plaintiffs shall submit a proposed order on notice within 5 business days hereof. ( signed by Judge Denny Chin ); Copies picked up by Counsel of Record. (sb) (Entered: 07/09/2003)
72 ORDER; this action is certified as a class action pursuant to Rule 23(b)(2) of the F.R.C.P.; the class shall consist of all former and present African−American and Hispanic full−time employees of the Dept. of Parks and Recreation of the City of New York employed at any time since 5/24/98 . ( signed by Judge Denny Chin ); (pl) (Entered: 07/28/2003)
73 ORDER; that we direct that defendants produce the remaining documents at issue within seven days if they have not already been produced . ( signed by Magistrate Judge Michael H. Dolinger ); copies mailed by chambers (pl) Modified on 07/30/2003 (Entered: 07/30/2003)
74 Memo−Endorsement on letter addressed to Judge Dolinger from Barbara B. Butler, dated 8/19/03. Granting defendants' request for an extension until 8/28/03 to respond to the Court's letter dated 8/8/03. No further extension. Plaintiffs will have one week to reply . ( signed by Magistrate Judge Michael H. Dolinger ); (kw) (Entered: 09/03/2003)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 15 of 26

08/29/2003
09/02/2003 10/20/2003
10/20/2003 11/03/2003 11/03/2003 11/05/2003 11/10/2003
11/18/2003 12/18/2003 12/30/2003 12/30/2003

76 Memo−Endorsement on letter addressed to Mag. Judge Dolinger from Kit T. Wong, dated 8/19/03; Re:defendants request that the defendants have until Monday, 8/25/03 to respond to the letter to Your Honor dated 8/8/03 from counsel for Wright plaintiffs regarding discovery issues; application granted: defendants are also expected to respond to plaintiffs' 8/20/03 letter regarding document coping. This is to be due by 8/27/03 . ( signed by Magistrate Judge Michael H. Dolinger ); (pl) (Entered: 09/04/2003)
75 Memo−Endorsement on letter addressed to Mag. Judge Doligner from Sherri R. Rosenberg; granting requests for extension of time to respond to Wright Plaintiffs' 8/25/03 Letter re: Attorney Client Privilege and Attorney Work Product Protections . ( signed by Magistrate Judge Michael H. Dolinger ); (pl) (Entered: 09/03/2003)
77 ORDER, in the absence of any justification for precluding the depositions of Messrs. Riley, Friedenberg, Ms. Daniels, and Ms. O'Keefe, the parties are to schedule and take them. If any of these witnesses is not subject to a notice of deposition without subpoena, the deposing party is to promptly arrange for service of a subpoena . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by Chambers on 10/20/03. (yv) (Entered: 10/22/2003)
78 Memo−Endorsement on letter addressed to Judge Chin from Myron Beldock and Lewis M. Steel, dated 10/10/03. Granting plaintiffs' request that the NAACP Legal Defense and Educational Fund, Inc. become co−counsel of record for the plaintiff class . signed by Judge Denny Chin ); Copies faxed by chambers. (kw) (Entered: 10/23/2003)
79 NOTICE of attorney appearance for Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson by Robert H. Stroup. (moc) (Entered: 11/05/2003)
80 NOTICE of attorney appearance for Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown, Walter Beach, Carrie Anderson by Melissa S. Woods. (moc) (Entered: 11/05/2003)
Transcript of record of proceedings before Magistrate Judge Michael H. Dolinger for the date(s) of 9/24/03.Original Filed in case#02cv4699, Doc.#14. (df) (Entered: 11/05/2003)
81 ORDER; By letter dated October 23, 2003, defendant requests that the Court redefine the class to exclude class members noticed to be deposed by plaintiffs who have decided they do not want to be included in the class. Plaintiffs oppose the request. The request for redefinition of the clss is denied with the caveats as stated in this Order ; ( signed by Judge Denny Chin ); Copies faxed by Chambers; (djc) (Entered: 11/12/2003)
82 ORDER, that a pretrial conference has been scheduled in this action on Friday 11/21/03 at 12:00 noon, at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, NY 10007 . ( signed by Magistrate Judge Michael H. Dolinger ); Copies mailed by Chambers. (tp) (Entered: 11/20/2003)
83 TRANSCRIPT of proceedings held on 10/21/03 before Judge Michael H. Dolinger.(jf, ) (Entered: 12/18/2003)
84 ENDORSED LETTER addressed to Magistrate Judge Dolinger from Sherri R. Rosenberg dated 12/22/03 re: Counsel requests that defendants have until 12/29/03 to respond to the letter dated 12/18/03 from counsel for Wright plaintiffs regarding discovery issues requiring court intervention. Application granted. (Signed by Judge Michael H. Dolinger on 12/22/03) (sb, ) (Entered: 01/15/2004)
85 MEMORANDUM &ORDER; The Court directs that plaintiffs' counsel advise defendants' attorneys in writing of the names and positions (if known) of any current employees of the Department whom they may wish to interview, as further set forth on this order. The Court directs taht plaintiffs' counsel refrain from seeking to elicit from any present or former Department employee any attorney−client communications, and (2) that defendants refrain from any suggestion or instruction to a Department employee who is to be interviewed by

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 16 of 26

01/29/2004 03/04/2004 03/25/2004 03/29/2004 03/29/2004
03/30/2004
04/02/2004 04/02/2004 04/27/2004
05/04/2004 05/07/2004 05/07/2004 05/12/2004

plaintiffs' representatives that the employee should not do so. Plaintiffs' counsel is to advise the employee that he or she is free to decline. (Signed by Judge Michael H. Dolinger on 12/24/03) Copies Mailed By Chambers.(sb, ) (Entered: 01/15/2004)
86 TRANSCRIPT of proceedings held on 1/7/04 before Judge Michael H. Dolinger.(pr, ) (Entered: 01/29/2004)
87 TRANSCRIPT of proceedings held on 2/24/04 before Judge Michael H. Dolinger.(cd, ) (Entered: 03/09/2004)
88 TRANSCRIPT of proceedings held on 1/7/04 before Judge Michael H. Dolinger.(tr, ) (Entered: 03/25/2004)
89 ORDER the application by plaintiffs for further examination of David Stark on topics other than those specified in the endorsed order dated 3/24/04 is denied. So Ordered. (Signed by Judge Michael H. Dolinger on 3/25/04) "Copies Mailed By Chambers".(jco, ) (Entered: 03/30/2004)
90 ENDORSED LETTER addressed to Judge Michael H. Dolinger from Kathleen M. Comfrey dated 3/24/04 re: Counsel for defendants writes in response to the U.S. 3/23/04 letter request to the Court for permission to continue the deposition of David Starks, a Parks Department employee, for a third day. Plaintiffs and the Government may take the depositions of Mr. Stark for one hour and Mr. Wong for two hours in the subject of the "Mangerial Posters". The court will not otherwise limit the subject−matter of these brief depositions. The parties are to schedule them promptly. (Signed by Judge Michael H. Dolinger on 3/24/04) "Copies Faxed By Chambers"(jco, ) (Entered: 03/31/2004)
91 ENDORSED LETTER addressed to Magistrate Judge Michael H. Dolinger from Kathleen M. Comfrey dated 3/25/04 re: defendant requests the Court's permission to serve a set of contention interrogatories that may exceed the limit of 25 permitted by Rule 33(a) of the FRCP. Defendants may serve contention interrogatories on the same schedule as requested &Order. The Court declines to approve in advance the use of an unspecified number of interrogatories in excess of twenty five. (Signed by Judge Michael H. Dolinger on 3/29/04) (kw, ) Modified on 4/5/2004 (kg, ). (Entered: 04/02/2004)
92 TRANSCRIPT of proceedings held on 2/24/04 before Judge Michael H. Dolinger.(dfe, ) (Entered: 04/02/2004)
93 TRANSCRIPT of proceedings held on 2/24/04 before Judge Michael H. Dolinger.(dfe, ) (Entered: 04/02/2004)
94 ENDORSED LETTER addressed to Judge Michael H. Dolinger from Kathleen M. Comfrey dated 4/21/04 re: Counsel on behalf of all parties write to request that the Court approve certain modifications to the schedule for the sanction motions, responses to requests for admissions and contention interrogatories, and expert discovery as further set forth in this letter. The proposed modified pretrial schedule is adopted. (Signed by Judge Michael H. Dolinger on 4/22/04) Filed In Associated Cases: 1:01−cv−04437−DC−MHD,1:02−cv−04699−DC−MHD(jco, ) (Entered: 04/28/2004)
95 ENDORSED LETTER addressed to Mag. Judge Dolinger from Kathleen M. Comfrey dated 5/3/04 re: granting dft requests for a two day extension of time to serve their sanctions' motion. (Signed by Judge Michael H. Dolinger on 5/3/04) Copies mailed by chambers.(pl, ) (Entered: 05/05/2004)
96 MOTION for Sanctions. Document filed by Carrie Anderson, Walter Beach, Jacqueline Brown, Angelo Colon, Paula Loving, Odessa Portlette, David Ray, Elizabeth Rogers, Henry Roman, Kathleen Walker, Robert Wright. Affidavit of Vekker and Declaration of Yetzer attached. (jco, ) (Entered: 05/10/2004)
97 MEMORANDUM OF LAW in Support re: 96 MOTION for Sanctions. (jco, ) Appendix to class plaintiffs' motion sanctions attached. (Entered: 05/10/2004)
98 ORDER; upon the declaration of Lewis M. Steel and the consent of the parties it is Ordered that Lewis M. Steel is substituted for the law firm of Sttel Bellman Ritz and Clark, P.C. as one of the attorneys for the plaintiffs and the class they

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 17 of 26

06/23/2004 07/07/2004 09/03/2004
09/03/2004 09/09/2004
09/15/2004
09/30/2004
10/05/2004 10/05/2004 10/05/2004 10/05/2004 10/05/2004 10/05/2004 10/20/2004
10/29/2004
11/04/2004

represent. (Signed by Judge Denny Chin on 5/11/04) copies faxed by chambers.(djc, ) (Entered: 05/14/2004 (copies faxed by chambers. (Entered: 05/14/2004)
99 TRANSCRIPT of proceedings held on 6/8/04 before Judge Michael H. Dolinger.(dfe, ) (Entered: 06/23/2004)
100 TRANSCRIPT of proceedings held on 6/8/04 at 4:00 p.m. before Judge Michael H. Dolinger.(ph, ) (Entered: 07/23/2004)
101 ORDER: the government and class plaintiffs to serve letter/briefs by 9/10/04; defendants to serve responses by 9/24/04; defendants response to motion for sanctions due 10/1/04; movants reply due 10/15/04. (Signed by Judge Michael H. Dolinger on 9/1/04) Copies Mailed by Chambers.(db, ) (Entered: 09/08/2004)
Set/Reset Deadlines as to 96 MOTION for Sanctions.. Responses due by 10/1/2004 Replies due by 10/15/2004. (db, ) (Entered: 09/08/2004)
102 ENDORSED LETTER addressed to Judge Dolinger from Melissa Woods dated 9/8/04; this letter accurately summarizes the terms agreed to at the 9/1/04 telephone conference. The written order issued that date is deemed amended to conform to those terms. (Signed by Judge Michael H. Dolinger on 9/8/04) (cd, ) (Entered: 09/13/2004)
ENDORSED LETTER addressed to Magistrate Judge Dolinger from Lisa R. Zornberg dated 9/10/2004 re: The Government and plaintiff's submission to be filed by no later then 9/17/2004. Defendant's response is due by 10/15/2005. So Ordered Original filed on 02cv4699. (Signed by Judge Michael H. Dolinger on 9/10/2004) (jsa, ) (Entered: 09/17/2004)
103 ORDER Pretrial Conference set for 10/15/2004 10:00 AM before Magistrate Judge Michael H. Dolinger. (Signed by Judge Michael H. Dolinger on 9/29/2004) Filed In Associated Cases: 1:01−cv−04437−DC−MHD,1:02−cv−04699−DC−MHD(jp, ) (Entered: 10/01/2004)
104 MEMORANDUM OF LAW in Opposition re: 96 MOTION for Sanctions. Document filed by New York City Department of Parks and Recreation, The City of New York. (djc, ) (Entered: 10/07/2004)
105 DECLARATION of Barbara B. Butler in Support of Defendants' Response to the United States' Sanctions Motion. Document filed by New York City Department of Parks and Recreation, The City of New York. (djc, ) (Entered: 10/07/2004)
106 MEMORANDUM OF LAW in Opposition re: 96 MOTION for Sanctions. Document filed by New York City Department of Parks and Recreation, Henry J. Stern, The City of New York. (jco, ) (Entered: 10/08/2004)
107 DECLARATION of Barbara B. Butler. (jco, ) (Entered: 10/08/2004)
108 DECLARATION of Thomas Giannattasio. (jco, ) (Entered: 10/08/2004)
109 DECLARATION of Kathleen M. Comfrey. (jco, ) (Entered: 10/08/2004)
110 MEMORANDUM AND ORDER;... Clarification of an order issued on Decemer 24, 2003, which limited the access of counsel for plaintiffs to employees of the Parks Dept in connection with this litigation... (Signed by Judge Michael H. Dolinger on 10/18/04) (djc, ) (Entered: 10/22/2004)
111 REPLY MEMORANDUM OF LAW in Support re: 96 MOTION for Sanctions. Document filed by Carrie Anderson, Walter Beach, Jacqueline Brown, Angelo Colon, Paula Loving, Odessa Portlette, David Ray, Elizabeth Rogers, Henry Roman, Kathleen Walker, Robert Wright.(db, ) (Entered: 11/01/2004)
112 ENDORSED LETTER addressed to Magistrate Judge Dolinger from Lisa R. Zornberg ated 10/28/2004 re: the time to submit a reply brief in support of the Government's motion for sanctions is extended to 11/5/2004. (Signed by Judge Michael H. Dolinger on 10/28/2004) (jsa, ) (Entered: 11/05/2004)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 18 of 26

11/04/2004 11/05/2004 11/05/2004 11/12/2004
11/15/2004 11/15/2004 11/23/2004 12/27/2004
12/29/2004
01/03/2005
01/04/2005 01/06/2005 02/03/2005
02/03/2005

Set Deadlines/Hearings: Replies due by 11/5/2004. (jsa, ) (Entered: 11/05/2004)
113 AMENDED DECLARATION of Lisa Zornberg re: amending declaration in support of the U.S.' motion for sanctions against defendants. (pl, ) (Entered: 11/09/2004)
114 NOTICE of Change of Address by Lewis M. Steel on behalf of Robert Wright. New Address: Outten &Golden LLP, 3 Park Avenue, 29th Floor, New York, New York, 10016, (212) 245−1000. (pl, ) (Entered: 11/10/2004)
115 ENDORSED LETTER addressed to Judge Dolinger from Kathleen Comfrey dated 11/8/04: if defts feel compeled to address the govt's argument about the 12/6/02 order, they may do so by serving and filing sur reply papers addressd only to that issue by 11/12/04. (Signed by Judge Michael H. Dolinger on 11/8/0(cd, ) (Entered: 11/15/2004)
116 MEMORANDUM OF LAW in Opposition re: 96 MOTION for Sanctions. Document filed by New York City Department of Parks and Recreation, Henry J. Stern, The City of New York. (kw, ) (Entered: 11/18/2004)
117 DECLARATION of Kathleen M. Comfrey in Support re: 116 Memorandum of Law in Oppisition to Motion. Document filed by New York City Department of Parks and Recreation, Henry J. Stern, The City of New York. (kw, ) (Entered: 11/18/2004)
118 LETTER addressed to Judge Dolinger from Russell Yankwit dated 11/10/2004 re: a response to defts letter brief challenging nine categories of the Governments response to certain requests for admissions. (jp, ) (Entered: 11/23/2004)
119 ENDORSED LETTER addressed to Magistrate Judge Dolinger from Russell M. Yankwitt dated 12/22/2004 re: the government will submit their revised responses to defendants by 1/7/2005 and if defendants still wish to challenge the responses, defendants will submit a letter brief to the Court by 1/21/2005. (Signed by Judge Michael H. Dolinger on 12/22/2004) (jsa, ) Modified on 12/29/2004 (jsa, ). copies mailed by chambers (Entered: 12/29/2004)
120 Memorandum and Order The class plaintiffs seek an order compelling defendants to respond to their contention interrogatories 22 and 23. (Dec. 13, 2004 letter to the Court from Lewis M. Steel.Esq.). The application is granted. Copies mailed by chambers. (Signed by Judge Michael H. Dolinger on 12/23/2004) (Entered: 01/03/2005)
122 LETTER addressed to Magistrate Judge Michael H. Dolinger from Kathleen M. Comfrey dated 12/30/04 re: defendants' reply to class plaintiffs' 12/22/04 letter. Document filed by Henry J. Stern, The City of New York, New York City Department of Parks and Recreation, The City of New York, New York City Department of Parks and Recreation.(sac, ) (Entered: 01/06/2005)
Minute Entry for proceedings held before Judge Michael H. Dolinger : Interim Pretrial Conference held on 1/4/2005. (jeh, ) (Entered: 01/19/2005)
121 TRANSCRIPT of proceedings held on 01/04/05 before Mag. Judge Michael H. Dolinger (es, ) (Entered: 01/06/2005)
125 ENDORSED LETTER addressed to Magistrate Judge Dolinger from Kathleen M. Comfrey re: application granted. Defendant's have an extension until 2/11/2005 to supplement their responses to the class plaintiffs' and the federal government's request for admissions which are not subject to the pending appeal ("RFAs") (Signed by Judge Michael H. Dolinger on 1/28/2005) (jsa, ) copies mailed to counsel by chambers Modified on 2/7/2005 (jsa, ). (Entered: 02/07/2005)
126 ENDORSED LETTER addressed to Magistrate Judge Dolinger from Lewis M. Steel dated 1/28/2005 re: application granted. The Wright plaintiff's may have until 2/11/2005 to supplement their responses to certain of the defendant's request to admit. (Signed by Judge Michael H. Dolinger on 1/28/2005) copies mailed to counsel by chambers.(jsa, ) (Entered: 02/07/2005)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 19 of 26

02/03/2005 02/03/2005 02/05/2005 02/05/2005 02/05/2005 02/07/2005 02/10/2005
02/15/2005 02/15/2005 02/17/2005
03/30/2005
04/20/2005
05/02/2005

Set/Reset Deadlines: Defendants Supplemental Responses due by 2/11/2005 (jsa, ) (Entered: 02/07/2005)
Set/Reset Deadlines: Wright Plaintiffs supplemental Responses due by 2/11/2005 (jsa, ) (Entered: 02/07/2005)
123 TRANSCRIPT of proceedings held on 1/4/2005 @ 2:45 pm before Judge Michael H. Dolinger. (mbe, ) (Entered: 02/05/2005)
124 TRANSCRIPT of proceedings held on 1/31/05 before Judge Denny Chin. (kj, ) (Entered: 02/05/2005)
127 LETTER addressed to Judge Dolinger from Kathleen Comfrey dated 1/24/05: that the govt be ordered to answer the interrogatory fully. Document filed by Robert Wright.(cd, ) (Entered: 02/10/2005)
130 LETTER addressed to Mag. Michael H. Dolinger from Russell M. Yank Witt dated 2/7/05 re: The Federal Government has already twice supplemental their repsonse to address dfts' concerns. (pl, ) (Entered: 02/16/2005)
128 STIPULATION AND ORDER that no party will raise any issue as to the appropriateness of Judge Chin trying either or both 01cv4437 and 02cv4699 if the mediation fails to result in a complete resolution of the issued raised in either of these consolidated actions as a result of his role in mediating these cases; this stipulation is binding on all parties to this case, as well as any person substituted as a party in these cases and their counsel or any future counsel. (Signed by Judge Denny Chin on 2/10/05) (dle, ) (Entered: 02/14/2005)
129 TRANSCRIPT of proceedings held on 2/4/05 before Judge Michael H. Dolinger. (Martin, Leslie) (Entered: 02/15/2005)
131 ENDORSED LETTER addressed to Judge Dolinger from Sherri Rosenberg dated 2/11/05: granting defts a one week extension to produce one category of documents covered in the 2/4/05 order. (Signed by Judge Michael H. Dolinger on 2/11/05) (cd, ) (Entered: 02/17/2005)
132 ENDORSED LETTER addressed to Mag. Judge Dolinger from Russell M. Yankwitt dated 2/14/05 re: granting counsel's request for a two−day extension from February 14, 2005 to Feb. 16, 2005 to submit the civil service title information to defendants that is necessary for the parties to finalize their Stipulation. Defendants consent to this request upon the condition that (i) the deadline for finalizing a stipulation be extended from Feb. 28, 2005 to March 2, 2005 and the Federal Government wil not seek an extension to serve its expert report as a result of this extension. (Signed by Judge Michael H. Dolinger on 2/14/05) Filed In Associated Cases: 1:01−cv−04437−DC−MHD,1:02−cv−04699−DC−MHD(djc, ) (Entered: 02/23/2005)
133 ORDER that on consent of all parties the motions for sanctions (doc #96 and doc #18 in 02−4699 are hereby withdrawn without prejudice. If any party wishes to renew its motion, it may do so by letter renewing a previously fld motion or by filing a new motion and submitting new papers. (Signed by Judge Denny Chin on 3/28/05) (cd, ) (Entered: 04/01/2005)
134 ENDORSED LETTER addressed to Judge Denny Chin from Lisa R. Zornberg dated 4/15/05 re: Application GRANTED. Parties have until 4/22/05 to resolved settlement issues and a settlement conference will occur during the week of 4/25−29/05. (Signed by Judge Denny Chin on 4/19/05) (db, ) (Entered: 04/22/2005)
135 ENDORSED LETTER addressed to Judge Denny Chin from Barbara B. Butler dated 4/2/05 re: Counsel for defendants writes to object to the U.S. request for a sixty day extension. The Court has reviewed the US's letter of 4/26/05, plaintiffs' letter of 4/26/05, the City's letter dated 4/27/05. It would be highly unfair to grant the US a 60−day extension while requiring the City to comply with the May 31st deadline. Under the circumstances, the dates for all further submissions, including expert reports and summary judgment papers, are extended 30 days. So Ordered. (Signed by Judge Denny Chin on 4/28/05) (jco, ) (Entered: 05/04/2005)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 20 of 26

05/19/2005 08/04/2005 08/04/2005 08/04/2005 08/04/2005 08/10/2005
08/16/2005 08/16/2005 08/18/2005 09/23/2005 10/03/2005

136 ENDORSED LETTER addressed to Judge Denny Chin from Russell M. Yankwitt dated 5/17/05 re: requesting a one−week extension from 5/31/05 to 6/6/05 to serve the Government's expert report. Application granted. All deadlines are extended one week. (Signed by Judge Denny Chin on 5/19/05) (kw, ) (Entered: 05/20/2005)
137 MOTION to Bifurcate. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (djc, ) (Entered: 08/05/2005)
138 MEMORANDUM OF LAW in Support re: 137 MOTION to Bifurcate.. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (djc, ) (Entered: 08/05/2005)
139 THIRD AMENDED AND SUPPLEMENTAL CLASS ACTION COMPLAINT amending 1 Complaint against Adrian Benepe, Henry J. Stern, The City of New York.Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. Related document: 1 Complaint.(yv, ) (Entered: 08/10/2005)
Set Answer Due Date purs. to 139 Amended Complaint, as to Henry J. Stern answer due on 8/18/2005; The City of New York answer due on 8/18/2005. (yv, ) (Entered: 08/10/2005)
140 STIPULATION AND ORDER; Purs to Rule 15, FRCP plaintiffs are permitted to amend and supplement their complaint as provided in Plaintiffs' Third Amended and Suupplemental Complaint, which is hereby allowed to be filed and served; In light of the Supreme Court's decision in Jones v. R.R.Donnelley &Sons, 541 U.S. 369 (2004), the class is redefined to include as class members for the section 1981 claims all former and present African−American and Hispanic full time employees of the Dept. of Parks and Recreation of the City of NY employed at any time since May 24, 1007, excepting those employees excluded from the class by the Court's order of Novembr 7, 2004. (Signed by Judge Denny Chin on 8/10/05) Filed In Associated Cases: 1:01−cv−04437−DC−MHD,1:02−cv−04699−DC−MHD(djc, ) (Entered: 08/12/2005)
141 ENDORSED LETTER addressed to Judge Denny Chin from Kathleen M. Comfrey dated 8/12/05 re: Counsel for defendants submit this letter to request a two week extension of the deadline for submitting their responsive expert from 8/19/05 until 9/2/05 and propose the following schedule: 12/9/05− Summary Judgment motion; 1/6/06 response ;1/20/06 reply. Approved. So Ordered. (Signed by Judge Denny Chin on 8/15/05) (jco, ) (Entered: 08/22/2005)
Set Deadlines/Hearings: Motions due by 12/9/2005. Replies due by 1/20/2006. Responses due by 1/6/2005 (jco, ) (Entered: 08/22/2005)
142 ENDORSED LETTER addressed to Judge Denny Chin from Kathleen M. Comfrey dated 8/16/2005 re: request for and extension of the deadlines for submitting responsive and reply papers in connection with Plaintiffs' Set Deadlines/Hearing as to 137 MOTION to Bifurcate. Responses due by 9/23/2005 Replies due by 10/10/2005. ENDORSEMENT: Approved (Signed by Judge Denny Chin on 8/12/2005) (jmi, ) (Entered: 08/23/2005)
143 MEMORANDUM OF LAW in Opposition re: 137 MOTION to Bifurcate.. Document filed by Henry J. Stern, New York City Department of Parks and Recreation, The City of New York. Filed In Associated Cases: 1:01−cv−04437−DC−MHD,1:02−cv−04699−DC−MHD(jmi, ) (Entered: 09/27/2005)
144 ENDORSED LETTER addressed to Judge Chin from Melissa Woods dated 9/28/05: re rebuttal expert reports are currently due on 10/3/05 and request to extend to 10/31: application granted, but only to the extent all existing deadlines are extended by two weeks each. (Signed by Judge Denny Chin on 9/30/05) (cd, ) (Entered: 10/05/2005)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 21 of 26

10/11/2005 10/19/2005
11/01/2005
12/05/2005
12/09/2005 12/12/2005 12/22/2005 12/30/2005 12/30/2005 01/18/2006 01/24/2006
02/15/2006 02/28/2006

145 PLAINTIFFS' REPLY MEMORANDUM in response to defendants' brief in opposition to plaintiffs' re: 137 MOTION to Bifurcate.. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (jmi, ) (Entered: 10/12/2005)
146 ENDORSED LETTER addressed to Judge Denny Chin from Melissa S. Woods dated 10/17/05 re: Application DENIED. Except that plaintiff's are given until close of business on 10/20/05 to produce the rebuttal report of Dr. Schneider. If the City has failed to meet its discovery obligations, that failure will be addressed seperately. (Signed by Judge Denny Chin on 10/17/05) (db, ) (Entered: 10/20/2005)
147 ORDER: It is hereby ordered as follows: with respect to recently identified witnesses, plaintiffs may identify 2 additional witnesses who will be permitted to testify at trial; defendants shall have an opportunity to depose these witnesses: fact discovery is reopened to this extent only; Defendants need not file an amended answer; all other rulings are set forth in this order. (Signed by Judge Denny Chin on 10/28/2005) (lb, ) (Entered: 11/01/2005)
148 ENDORSED LETTER addressed to Judge Denny Chin from Sherri R. Rosenberg dated 12/1/05. ENDORSEMENT: Mr. Croft's deposition is adjourned, without date. Plaintiffs may not, in opposing summary judgment, rely on or use in any fashion any statements of or information related to or garnered from Mr. Croft or NYC Parks Advocates. So Ordered. (Signed by Judge Denny Chin on 12/2/05) (js, ) (Entered: 12/06/2005)
149 TRANSCRIPT of proceedings held on 11/3/2005 before Judge Denny Chin. (jar, ) (Entered: 12/09/2005)
150 TRANSCRIPT of proceedings held on 11/3/05 before Judge Denny Chin. (jbe, ) (Entered: 12/12/2005)
151 ENDORSED LETTER addressed to Judge Denny Chin from Kathleen M. Comfrey dated 12/21/05 re: a request that the deadline for the brief be extended until 4 days after the end of the strike. ENDORSEMENT: Approved. The other dates are extended by the corresponding number of days. SO ORDERED. (Signed by Judge Denny Chin on 12/21/05) (kco, ) (Entered: 12/23/2005)
152 MOTION for Summary Judgment. Document filed by Henry J. Stern et al. (cd, ) (Entered: 01/03/2006)
153 MEMORANDUM OF LAW in Support (accompanied with 6 volumes of exhibits) re: 152 MOTION for Summary Judgment. Document filed by Henry J. Stern et al. (cd, ) (Entered: 01/03/2006)
154 TRANSCRIPT of proceedings held on 11/3/05 before Judge Denny Chin. (lma, ) (Entered: 01/18/2006)
155 ENDORSED LETTER addressed to Judge Denny Chin from Lweis M. Steel dated 1/19/2006 re: to request a 45 day extension for the filing of our opposition to The City of New Yor's motion for summary judgment on all plaintiffs' class claims and many of plaintiffs' individual claims and for an order precluding the testimony of plaintiffs' expert witnesses. Our opposition papers are currently due on January 26th. Responses due by 2/27/2006 Replies due by 3/13/2006. ENDORSEMENT: This application is granted only to the extent the date for opposition is extended 30 days, to 2/27/06. Reply papers shall be severed and file 3/13/06. So Ordered. (Signed by Judge Denny Chin on 1/20/2006) (jmi, ) (Entered: 01/25/2006)
156 ENDORSED LETTER addressed to Judge Denny Chin from Lewis M. Steel dated 2/9/2006 re: writing to request the Court's permission to handle appendix issues as described in this letter and to file a brief of 125 pages. ENDORSEMENT: Approved. Both sides are receiving a total of 125 pages. So Ordered. (Signed by Judge Denny Chin on 2/10/2006) (lb, ) (Entered: 02/15/2006)
157 MEMORANDUM OF LAW in Opposition re: 152 MOTION for Summary Judgment. Document filed by Robert Wright. (cd, ) (Entered: 03/02/2006)

Case: 1:01-cv-4437 As of: 10/11/2010 12:14 AM EDT 22 of 26

02/28/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 02/28/2006 03/02/2006 03/14/2006
03/14/2006 04/03/2006
04/03/2006
04/10/2006 04/21/2006
06/14/2006

158 COUNTER STATEMENT TO re Local Rule 56.1. Document filed by Robert Wright. (cd, ) (Entered: 03/02/2006)
159 RESPONSES to Defts' Local Rule 56.1 Statement. Document filed by Robert Wright. (cd, ) (Entered: 03/02/2006)
160 DECLARATIONS of Cynthia Rollins et al in Opposition re: 152 MOTION for Summary Judgment. Document filed by Robert Wright. (Vol I) (cd, ) (Entered: 03/02/2006)
161 DEPOSITON EXHIBITS 3−98. Document filed by Robert Wright. (Vol II−A)(cd, ) (Entered: 03/02/2006)
162 DEPOSITION EXHIBITS 102−537. Document filed by Robert Wright. (Vol 11−B)(cd, ) (Entered: 03/02/2006)
163 EXHIBITS IN OPPOSITION to defts' Motion for Summary Judgment. Document filed by Robert Wright. (Vol III−A)(cd, ) (Entered: 03/02/2006)
164 Other Documentary Evidence. Document filed by Robert Wright. (Vol III−B) (cd, ) (Entered: 03/02/2006)
165 Deposition Testimony. Document filed by Robert Wright. (Vol IV) (cd, ) (Entered: 03/02/2006)
166 EXHIBIT (copies of previously fld documents). Document filed by Robert Wright. (Vol V)(cd, ) (Entered: 03/02/2006)
167 CD−Rom of depo transcripts. Document filed by Robert Wright. (Vol VI) (cd, ) (Entered: 03/02/2006)
168 Supplemental Appendix re deposition tesitmony in Opposition to defts' motion for summary judgment. Document filed by Robert Wright. (cd, ) (Entered: 03/02/2006)
169 ENDORSED LETTER addressed to Judge Denny Chin from Barbara B. Butler dated 3/6/06 re: a request for a forty five day extension for filing a reply. ENDORSEMENT: Application granted, but only to the extent that defendants are granted an additional three weeks, to 4/3/2006. The Court does not expect defendants to respond individually to 1,603 asserted uncontested facts. (Signed by Judge Denny Chin on 3/7/06) (kco, ) (Entered: 03/14/2006)
Set Deadlines: Replies due by 4/3/2006. (kco, ) (Entered: 03/14/2006)
170 OPPOSITION re: 152 MOTION for Summary Judgment. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. Revised Supplemental Appendix (DEPOSITION TESTIMONY)... Received in the night deposit box on 4/3/06 at 7:21 p.m.. (sac, ) (Entered: 04/05/2006)
171 OPPOSITION re: 152 MOTION for Summary Judgment. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. Revised Volume IV (DEPOSITION TESTIMONY)... Received in the night deposit box on 4/3/06 at 7:21 p.m.. (sac, ) (Entered: 04/05/2006)
172 REPLY MEMORANDUM OF LAW in Support re: 152 MOTION for Summary Judgment. Document filed by Henry J. Stern, The City of New York. (cd, ) (Entered: 04/12/2006)
173 Defendant's Supplemental Index. Document filed by Henry J. Stern, The City of New York, New York City Department of Parks and Recreation, The City of New York, New York City Department of Parks and Recreation, Adrian Benepe. (dle, ) (Entered: 04/28/2006)
174 ENDORSED LETTER addressed to Judge Denny Chin from Kathleen M. Comfrey dated 6/8/06 re: a request that the following items be placed under seal: Volumes II, III, IV and VI in support of Defendant's summary judgment, Volumes III−A and III−B in opposition to defendant's summary judgment, Volumes VII and VIII of the

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07/25/2006 07/25/2006 07/25/2006 07/25/2006 07/25/2006 07/25/2006 07/26/2006 09/06/2006 09/06/2006 09/15/2006
09/18/2006 09/22/2006 09/26/2006 12/28/2006
12/28/2006

reply materials in support of defendant's summary judgment. ENDORSEMENT: SO ORDERED. (Signed by Judge Denny Chin on 6/13/06) (kco, ) (Entered: 06/14/2006)
181 Joint Documentary Evidence Vol II. (cd, ). (Entered: 07/26/2006)
182 Joint Documentary Evidence Vol III. (cd, ) (Entered: 07/26/2006)
183 Joint Documentary Evidence Vol IV. (cd, ) (Entered: 07/26/2006)
184 Joint Declarations (Vol VI). (cd, ) (Entered: 07/26/2006)
185 Joint Documentary Evidence (Vol VII). (cd, ) (Entered: 07/26/2006)
186 Joint Documentary Evidence (Vol VIII). (cd, ) (Entered: 07/26/2006)
187 SEALED MATERIALS RETRIEVED: Document(s) 175,176,177,178,179 &180 were retrieved. Law Firm retrieving records: The City Of New York Law Department. Person retrieving records: Madeline Ado on 7/26/06.(kj, ) (Entered: 07/26/2006)
188 SEALED MATERIALS RETRIEVED: Document(s) 163 and 164 were retrieved. Law Firm retrieving records: The Law Office of Lewis M. Steel. Person retrieving records: Marwan Sehwail on 9/6/2006. (Redacted copies to be filed by firm).(kj, ) (Entered: 09/06/2006)
189 MEMORANDUM OF LAW in Opposition re: 152 MOTION for Summary Judgment. Document filed by Robert Wright et al. (Vol III A−B) (cd, ) (Entered: 09/07/2006)
190 OPINION #93699; For the foregoing reasons, defednants' motion for summary judgment is granted in part and denied in part. Plaintiffs' claims of (i) discriminatory assignament of employees and allocation of funding and (ii) a racial hostile work enviroment are dismissed; their remaininf claims survive. The request to preclude plaintiffs' experts from testifying is denied, to extent set forth above. A pretrial conference will be held on October 13, 2006, at 2:00 p.m. So Ordered. (Signed by Judge Denny Chin on 9/15/2006) (jmi, ) Modified on 9/21/2006 (lma, ). (Entered: 09/18/2006)
191 ENDORSED LETTER addressed to Judge Denny Chin from Lewis M. Steel dated 9/8/06 re: a request to submit redacted volumes to be placed under seal pursuant to the 6/13/06 order. ENDORSEMENT: Application granted. SO ORDERED. (Signed by Judge Denny Chin on 9/15/06) (kco, ) (Entered: 09/18/2006)
MEMO ENDORSEMENT: 152 MOTION for Summary Judgment is GRANTED IN PART AND DENIED IN PART per opinion dated 9/15/06. (Signed by Judge Denny Chin on 9/20/06) (db, ) (Entered: 09/22/2006)
192 ENDORSED LETTER addressed to Judge Denny Chin from Jody Yetzer dated 9/22/06 re: Counsel writes to regarding footnote 1 of this Court's 9/15/06 decision and request the Court to modify it. Application Denied. So Ordered. (Signed by Judge Denny Chin on 9/26/06) (jco, ) (Entered: 09/27/2006)
193 ENDORSED LETTER addressed to Judge Denny Chin from Kathleen M. Comfrey dated 12/22/06 re: counsel for parties request the modifications incorporated in the pretrial schedule as follows: 2/20/07 plaintiffs' witness list and exhibit list due to dfts; 3/22/07 dfts' witness list and exhibit list due to plaintiffs; plaintiff will specify deposition designations on 2/13/07 and 2/27/07; dfts will specify cross designations and objections after plaitniffs' designations and dfts' deposition designations on 3/15/07 and 3/29/07; plaintiff cross designations and objections to dfts' depositiondesignations will be specified on 4/9/07; 4/9/07 exchange of exhibit lists ; 4/16/07 proposed joint pretrial order; 5/21/07 proposed voir dire and deadline for in limine motions; responses to in limine motions due 20 days after service of motion. Application granted. (Signed by Judge Denny Chin on 12/22/06) (dle, ) (Entered: 12/29/2006)
Set/Reset Deadlines: Motions due by 5/21/2007. Pretrial Order due by 4/16/2007. (dle, ) (Entered: 12/29/2006)

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03/29/2007 03/29/2007 06/11/2007
01/25/2008 02/27/2008 02/28/2008 02/28/2008 03/12/2008 03/12/2008 05/08/2008
05/08/2008 05/08/2008 05/08/2008

194 ENDORSED LETTER addressed to Judge Denny Chin from Kathleen M. Comfrey dated 2/22/07 re: Approved. The Court will hald a conference on 3/23/07 at 2:00 p.m., for a report on the status of settlement discussions. (See attachment for deadline modifications) (Signed by Judge Denny Chin on 2/27/07) Copies Faxed by Chambers.(db) (Entered: 03/30/2007)
Set/Reset Hearings: Settlement Conference set for 3/23/2007 02:00 PM before Judge Denny Chin. (db) (Entered: 03/30/2007)
195 NOTICE OF WITHDRAWAL: The NAACP Legal Defense and Education Fund, Inc., respectfully requests that the Clerk enter Melissa S. Woods' withdrawal as counsel in this action. The Plaintiffs will continue to be respresented by other counsel from the NAACP Legal Defense and Educational Fund, Inc., as well as counsel from Beldock, Levine &Hoffman and Outten and Golden. SO ORDERED. (Signed by Judge Denny Chin on 6/6/2007) (jmi) (Entered: 06/12/2007)
196 ORDER the following attorneys are permitted to bring their cell phones, blackberries, and other electronic devices into the courthouse: Robert Stroup, Cynthia Rollings, Lewis Steel, Kathleen Comfrey, Sherri Rosenberg, Ricki Miller. This order shall expire on 2/1/08, unless further extended by the Court. So Ordered. (Signed by Judge Denny Chin on 1/25/08) (jco) (Entered: 01/28/2008)
197 ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT AND ORDERING NOTICE TO THE CLASS: that the Court will hold a hearing at 10AM on Friday, May 12, 2008 to consider the fairness, reasonableness and adequacy of the proposed settlement. (Signed by Judge Denny Chin on 2/26/08) (tro) (Entered: 02/27/2008)
198 NOTICE OF APPEARANCE by Kathleen Marie Comfrey on behalf of Henry J. Stern, The City of New York, New York City Department of Parks and Recreation, Adrian Benepe (pl) (Entered: 03/03/2008)
199 JOINT MEMORANDUM OF LAW parties in support of motion for preliminary &Final Approval of Settlement Agreement. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (pl) (Entered: 03/03/2008)
200 CONSENT ORDER: that the accompanying envelope, containing Exhibit 9 to the Proposed Stipulation &Order, be filed in the Clerk's Office and remain under seal until further Order of the Court. (Signed by Judge Denny Chin on 3/11/08) (tro) (Entered: 03/12/2008)
Transmission to Sealed Records Clerk. Transmitted re: 200 Consent Order, to the Sealed Records Clerk for the sealing or unsealing of document or case. (tro) (Entered: 03/12/2008)
201 ORDER: The Court had observed that its February 26,2008 order, granting preliminary approval of the settlement agreement and ordering notice to the class, incorrectly stated that the Court would hold a fairness hearing on Friday, May 12, 2008. May 12,2008, is a Monday. The Court will proceed with the fairness hearing on Monday, May 12,2008. (Signed by Judge Denny Chin on 5/8/08) (tve) (Entered: 05/08/2008)
202 SUPPLEMENTAL DECLARATION of Lewis M. Steel in Support Of Plaintiff's Motion For Court Approval Of Attorneys Fees and Costs. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (pl) (Entered: 05/09/2008)
203 DECLARATION of Robert H. Stroup in Support Of Plaintiff's Motion For Court Approval Of Attorneys Fees and Costs. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (pl) (Entered: 05/09/2008)
204 JOINT DECLARATION of Cynthia Rollings, Lewis M. Steel and Robert H. Stroup in Support For Court Approval Of The Proposed Stipulation And Order

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05/08/2008 05/12/2008 05/15/2008
05/15/2008 05/15/2008
05/19/2008 05/28/2008

Including Attorneys Fees and Costs. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (pl) (Entered: 05/09/2008)
205 DECLARATION of Cynthia Rollings in Support Of Plaintiff's Motion For Court Approval Of Attorneys Fees and Costs. Document filed by Walter Beach, Carrie Anderson, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown. (pl) (Entered: 05/09/2008)
206 DECLARATION of Kathleen M. Comfrey in Support of Motion Court Approval of the Proposed Stipulation and Order Including Attorneys' Fees. Document filed by Henry J. Stern, The City of New York, Adrian Benepe. (db) (Entered: 05/12/2008)
207 STIPULATION AND ORDER; regarding resolution and settlement of this class action with the agreement of all the parties as set forth in this Stipulation and Order; Unless otherwise provided herein, the provisions of this Stipulation and Order shall remain in effect until 12/31/09; The City will pay a total of $11,869,856.25 in settlement of monetary claims of Class Members, exclusive of attorneys' fees and expenses. The funds will be allocated in the manner set forth in this Stipulation and Order; The City will pay plaintiffs' attorneys fees in the following amounts: NAACP Legal Defense and Educational Fund, Inc., −− $1,500,000; Beldock Levine &Hoffman, LLP −− $3,440,000, Lewis M. Steel (and associate firms) −− $3,040,000, and Steven Goldman −− $20,000; The City will also pay plaintiffs' expenses of litigation in an amount totaling $999,999.79; The City will pay the amounts agreed upon for fees and costs w/in 45 days of the Final Approval Date of this Stipulation and Order, or, if any appeal is filed from the Order of Final Approval, w/in 45 days of the Effective Date of this Stipulation and Order. Each of plaintiffs' counsel will provide a release relating to their professional services in this action in a form agreed upon by the parties, no later than 45 days prior to the date provided herein for payment of attorneys' fees and expenses. (Signed by Judge Denny Chin on 5/15/08) Filed In Associated Cases: 1:01−cv−04437−DC−MHD, 1:02−cv−04699−DC−MHD(ae) (Entered: 05/15/2008)
208 AMENDMENT TO STIPULATION AND ORDER; Upon agreement of the parties, the amendment to the Stipulation and Order is made to correct an error in drafting as set forth in this Amendment to Stipulation and Order. (Signed by Judge Denny Chin on 5/15/08) Filed In Associated Cases: 1:01−cv−04437−DC−MHD, 1:02−cv−04699−DC−MHD(ae) (Entered: 05/15/2008)
209 OPINION #96068; For the reasons set forth in this Opinion, the Agreement is approved as fair, reasonable, and adequate. The objections to the Agreement are overruled. The Court will sign the Agreement forthwith. The thirteen individuals who submitted written objections prior to the fairness hearing (and only these thirteen individuals) are hereby granted an extension of time, until 6/2/08, to opt out of this case. If they wish to opt out, they must submit a separate piece of paper in accordance with the opt−out procedures set forth in the notice to the class. The opt−out request must be in writing and it must be signed and dated; it must contain the statement set forth in the class notice; and it must be mailed to the Claims Administrator at the address set forth in the class notice, no later than 6/2/08. Any of the thirteen who does not submit an opt−out request by 6/2/2008 will not be permitted to opt out. (Signed by Judge Denny Chin on 5/15/08) Filed In Associated Cases: 1:01−cv−04437−DC−MHD, 1:02−cv−04699−DC−MHD(ae) Modified on 5/21/2008 (ae). (Entered: 05/15/2008)
210 TRANSCRIPT of proceedings held on 5/12/2008 before Judge Denny Chin. (ama) (Entered: 05/19/2008)
211 NOTICE OF APPEARANCE by Matthew Colangelo on behalf of Walter Beach, Carrie Anderson, Henry J. Stern, Robert Wright, Kathleen Walker, Henry Roman, Elizabeth Rogers, David Ray, Adrian Benepe, Odessa Portlette, Paula Loving, Angelo Colon, Jacqueline Brown (dle) (Entered: 05/29/2008)

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07/28/2009 10/07/2009

212 ORDER: By letter dated July 6, 2009, Jasmine Burnett advises the Court that the Wright v. Stern Claims Administrator has not properly handled her claim to a portion of the settlement funds in this case. Apparently, Ms. Burnett's claim has been denied, and she is, in essence, appealing the denial. First, Ms. Burnett is directed to submit to the Court, by August 14, 2009, with copies to the Claims Administrator, copies of all of her relevant paperwork and any correspondence she received from the Claims Administrator, as well as an affidavit attesting to when she submitted her claim and by what method (e.g. first−class mail, Federal Express, etc.). Second, the Wright v. Stern Claims Administrator is hereby ordered to respond (in writing) by August 28, 2009. (Signed by Judge Denny Chin on 7/28/2009) (jpo) (Entered: 07/28/2009)
213 ORDER: Nonetheless, I will give Burnett the benefit of the doubt. The Claims Administrator is directed to accept Burnett's claims form, and the deadline is waived for her. If sufficient settlement funds remain, and if Burnett otherwise qualifies for a monetary award from the settlement, the Claims Administrator is authorized to grant her claim. So Ordered. (Signed by Judge Denny Chin on 10/7/09) (js) (Entered: 10/07/2009)