Grant v. N.Y. Times Co.
| Decision Date | 08 November 2018 |
| Docket Number | 16-cv-3175 (PKC) |
| Parties | ERNESTINE GRANT and STEPHEN WALKER, as administrator of the estate of MARJORIE WALKER, on behalf of themselves individually and on behalf of all similarly situated persons, Plaintiffs, v. THE NEW YORK TIMES COMPANY, MARK THOMPSON, in his individual and professional capacities, and MEREDITH LEVIEN, in her individual and professional capacities, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Stephen Walker, as administrator of the estate of Marjorie Walker, and Ernestine Grant, on behalf of themselves and all similarly situated persons, assert that defendants The New York Times Company ("the Times"), and two executives at the Times, Mark Thompson and Meredith Levien, discriminated against them on the basis of race, age, and, in Ms. Walker's case, disability, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1981 ("Section 1981"), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., and the New York State Human Rights Law, N.Y. EXEC. L. § 290 et seq.1
Defendants have moved to strike the race- and age-based class claims brought under Title VII, Section 1981, and the corresponding state and city law claims in the Second Amended Complaint ("SAC") pursuant to Rule 12(f), Fed. R. Civ. P. Defendants claim that plaintiffs cannot meet the numerosity requirement to certify a class pursuant to Rule 23(a)(1), Fed. R. Civ. P. Defendants do not seek to strike the disability claims or any claims brought on behalf of the individually-named plaintiffs. For reasons that will be developed, defendants' requested relief will be granted under Rule 23(d)(1)(D), Fed. R. Civ. P.2
A description of plaintiffs' claims has been set out in detail in the Court's Memorandum and Order of September 14, 2017, and the Court assumes familiarity with these claims. See Grant, 2017 WL 4119279, at *1-3. Relevant here, plaintiffs seek to certify a class of "Black employees who have been, are now or will be employed by the [Times] in its Business division as Account Managers," ("Race Class") (SAC ¶224), and a class of "older employees who have been, are now or will be employed by the [Times] in its Business division as Account Managers" and who are over the age of forty ("Age Class"). (SAC ¶248; see SAC ¶¶23, 88). For the proposed Race Class, plaintiffs allege there have been "patterns, practices, and/or policies" of "disparate treatment and discrimination." (SAC ¶226). For the proposed Age Class, plaintiffs allege there have been "patterns, practice, and/or policies" that result in "discrimination or disparate impact discrimination." (SAC ¶253). For example, plaintiffs allege that they were denied promotion commensurate with their experience and were passed over for "younger, white individuals instead." (SAC ¶¶161, 206). Mr. Walker, on behalf of Ms. Walker, alleges that shewas demoted to a position on the "Help Wanted" advertising team from her position on the Fashion & Jewelry Team after telling her supervisor that she found her supervisor's comment describing Ms. Walker as a "tough girl" offensive and racially charged. (SAC ¶¶184-93). Both plaintiffs were offered a buyout, and Ms. Walker alleges that she and another older black employee were told that at the end of the ongoing restructuring, "only one of the two of them" would have a position. (SAC ¶¶216-17). Neither plaintiff accepted the buyout, nor alleges that any adverse consequences resulted from declining the buyout.
On September 14, 2017, before discovery began, the Court denied defendants' first motion to strike certain class allegations pursuant to Rules 23(b)(1) and 23(b)(2), Fed. R. Civ. P., "without prejudice to the defendants' ability to oppose certification on these same grounds." Grant, 2017 WL 4119279, at *9. Defendants subsequently produced to plaintiffs documents with identifying information for all current or past potential members of the proposed race and age classes, including employees who had signed documents releasing potential claims against the Times, within the applicable statutory time frame. (Declaration of Larissa R. Boz ("Boz Decl.") dated Aug. 17, 2018 at ¶3; Doc 112.) Defendants represent that there were ten Black individuals employed as Account Managers in the Advertising Department within the relevant period, including plaintiffs. Of that ten, four have signed a release relinquishing claims against the Times as part of their separation from employment. (Id.) Some of these releases were in the context of a voluntary buyout. (Id.) There were fifty-nine Account Managers who were forty or older during their employment in the Advertising Department within the relevant period, including plaintiffs. (Id.) Of that fifty-nine, thirty-five have signed releases relinquishing claims against the Times as part of their separation from employment. (Id.) Some of these releases were in the context of a voluntary buyout. (Id.)Defendants also represent that all potential class members earn in excess of $90,000 and were tasked with selling advertising to large clients such as financial institutions, real estate brokers, and luxury good retailers. (Id. at 2).
The Federal Rules of Civil Procedure vest district courts with broad discretion to prevent actions from becoming protracted and to discourage wasteful practices. See, e.g., Rules 1 & 16(a), Fed. R. Civ. P. Rule 23(c) provides that "[a]t an early practical time after a person sues . . . as class representative, the court must determine by order whether to certify the action as a class action." The Rule does not set forth the means by which the issue of class certification may be brought before the Court for adjudication or the party who may do so, although it is commonly done by motion for class certification by the party seeking to proceed on a class-wide basis. This is the relatively rare case that class certification can be denied based upon limited discovery and without briefing of a full class certification motion.
Rule 23(a)(1) identifies as a prerequisite for class certification that "the class is so numerous that joinder of all members is impracticable. . . ." As will be discussed, lack of numerosity, alone, may doom class certification, but satisfaction of Rule 23(a)(1) may also turn on impracticability. The Times sought to raise the plaintiffs' inability to satisfy Rule 23 at the motion to dismiss stage. This Court, as noted, rejected the attempt.
The Court lifted a stay on discovery upon deciding the motion to dismiss. A subsequent Order set the close of fact discovery as January 12, 2018. (Order of Sept. 21, 2017; Doc 72.) The discovery deadline was extended to June 11, 2018, and ultimately September 10, 2018. (Orders of Nov. 28, 2017 and Feb. 23, 2018; Docs 76, 86.) After defendants had providedover 4,000 documents to plaintiffs, a dispute arose as the scope of electronic discovery with the defendant arguing that plaintiffs were seeking voluminous class-wide discovery in a case doomed for class certification because of lack of numerosity. It sought permission to file a motion to strike the class claims limited solely to Rule 23(a)(1) considerations. (Ltrs. of June 25, 2018, June 28, 2018; Docs 92, 94.) The Court stayed discovery and set a schedule for the parties to submit their evidence on numerosity. (Order of July 2, 2018; Doc 98.) The motion to strike was fully briefed and argued.
Rule 23(d)(1)(D) vests the Court with the power to "require that the pleadings be amended to eliminate allegations about representation of absent persons . . . ." The provision is not merely an opportunity to tidy-up pleadings, but has a substantive component because it further provides that the order may provide that "the action proceed accordingly," i.e. as an individual action. Id. Determinations on class certification are "more properly deferred" from a decision on the pleadings so that "a more complete factual record can aid the Court in making this determination." Mazzola v. Roomster Corp., 849 F.Supp. 2d 395, 410 (S.D.N.Y.2012); see Winfield v. Citibank, N.A., 842 F. Supp. 2d 560, 573 (S.D.N.Y. 2012). Once enough discovery has proceeded to allow the Court to reach a legal conclusion, a determination on a claim involving class certification may be reached. See 5 J. Moore et al., Moore's Federal Practice § 23.145 (3d ed. 2010) ().
"[W]hen a claim cannot succeed as a matter of law, the Court should not certify a class on the issue." Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 117 (S.D.N.Y. 2012) (quoting McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 228 (2d Cir. 2008)). "For example, if there is doubt about numerosity, discovery limited to that issue could result in an earlydetermination of the viability of class claims." Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 301 n.2 (S.D.N.Y. 2012); see Hidalgo v. Johnson & Johnson Consumer Cos., 148 F. Supp. 3d 285, 292 (S.D.N.Y. 2015) ( that class certification may be denied if defendant can demonstrate an "impossib[ility]" of certifying the class "regardless of the facts laintiffs may be able to obtain during discovery") (alterations in original) (quoting Mayfield v. Asta Funding, Inc., 95 F. Supp. 3d 685, 696 (S.D.N.Y. 2015)). But see Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 464 (S.D.N.Y. 2013) ...
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