Livingston v. Long Island Univ.

• Decision Date: 08 November 2018
• Docket Number: Index No.: 500960/2018
• Citation: 2018 NY Slip Op 32887 (U)
• Parties: SELVIN LIVINGSTON, JOAN MOBLEY, CARLISLE BAPTISTE, JOYCELYN SMALL, JOAN MARRIOTT and JOSE RODRIGUEZ, Plaintiffs, v. LONG ISLAND UNIVERSITY, Defendant.
• Court: New York Supreme Court

2018 NY Slip Op 32887(U)

SELVIN LIVINGSTON, JOAN MOBLEY,
CARLISLE BAPTISTE, JOYCELYN SMALL,
JOAN MARRIOTT and JOSE RODRIGUEZ, Plaintiffs,
v.
LONG ISLAND UNIVERSITY, Defendant.

Index No.: 500960/2018

New York Supreme Court

FILED: November 14, 2018
RECEIVED: November 15, 2018
November 8, 2018

NYSCEF DOC. NO. 34

At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 8th day of November 2018.

PRESENT: HON. LARA J. GENOVESI, J.S.C.

DECISION & ORDER

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

	NYSCEF Doc. No.:
Notice of Motion/Cross Motion/Order to Show Cause and; Affidavits (Affirmations) Annexed	13-15, 17-19, 24
Opposing Affidavits (Affirmations)	31-32
Reply Affidavits (Affirmations)	33

Introduction

Plaintiffs move by notice of motion, sequence number two, pursuant to CPLR §§ 901 and 902 for an order certifying a class action and allowing the case to proceed as a class action. Defendant, Long Island University, opposes this application.

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Procedural History

Plaintiffs commenced a prior action against Long Island University ("LIU"), Kimberly R. Cline, Brad Cohen, Allied Barton Security Services and Michael Siciliano on April 17, 2015, index number 4902/2015 (see Affirmation of Stefanie Munsky, Esq., NYSCEF doc. # 32, Exhibit A, 2015 Summons and Verified Complaint) ("2015 Complaint"). Plaintiffs moved, in that action, to amend the complaint to add a cause of action, inter alia, against LIU for disparate pay based on gender, age and/or race in violation of the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL). Plaintiffs' motion was denied by the Hon. Theresa Ciccotto on October 2, 2017. They subsequently moved to renew and reargue that order; plaintiffs' motion was denied on November 27, 2017.

Thereafter, plaintiffs commenced the instant action on January 16, 2018 (see Affirmation of Stefanie Munsky, Esq., NYSCEF doc. # 32, Exhibit B) ("2018 Complaint"). Plaintiffs pleaded one cause of action alleging disparate treatment under NYCHRL. Each plaintiff seeks $500,000.00 in compensatory damages and attorney's fees, including costs and disbursements, as well as $6,000,000.00 in punitive damages.

Plaintiffs allege that LIU utilized discriminatory practices based on race, age and gender, and as a result, plaintiffs employed in security positions at LIU Brooklyn campus were paid 20% less than similarly situated security employees at the LIU C.W. Post campus. Additionally, plaintiffs allege,

LIU's compensation, assignment and promotion policies, practices and/or procedures incorporate the following discriminatory practices: (a) failing to compensate older. Black and/or female employees the same as similarly situated younger, white and/or male employees; (b) failing to promote older, Black

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and/or female employees at the same rate and on the same terms and conditions as similarly situated younger white and/or male employees; (c) relying on subjective judgments, procedures and criteria which permit and encourage the incorporation of racial-, age- and/or gender-based stereotypes and bias by LIU's predominantly white managerial and supervisory staff in making compensation, assignment, promotion and termination decisions; (d) generally refusing to provide equal terms and conditions of employment for older. Black, and/or female employees; and (e) selecting and accepting older, Black and/or female employees for "buyouts" as part of privatization of security when it hired the private security firm Allied Barton in January 2015.

(2018 Complaint at ¶ 19).¹

Defendant then moved to dismiss the complaint on the basis that the pay discrimination claims were barred by the statute of limitations under NYCHRL, plaintiff failed to state a cause of action and the complaint was duplicative of plaintiffs' discrimination claims in the 2015 action. This Court, by a decision and order dated May 21, 2018, granted defendant's branch of the motion to dismiss with respect to all claims prior to January 16, 2015, which were time-barred based on the three-year statute of limitations (see Affirmation of Stefanie Munsky, Esq., NYSCEF doc. # 32, Exhibit C). The branch of defendant's motion to dismiss for failure to adequately state a cause of action was denied, as plaintiffs' claims were not substantially the same as that pleaded in the 2015 complaint (id.).

Plaintiffs now move for an order, pursuant to CPLR §§ 901 and 902, "declaring plaintiffs herein representative parties on behalf of all...LIU/Brooklyn Public Safety Officers

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since the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable" (Notice of Motion, NYSCEF doc. #24 at ¶ 1).

Background

Plaintiffs were employed as Public Safety Officers at LIU, at the campus located in Brooklyn, New York. Plaintiffs allege that they "received disparate treatment and less pay" (2018 Complaint at ¶¶ 9, 12, 14, 16, 18; see also id. at ¶ 5). Plaintiffs maintain that they were paid approximately 20% less than similarly situated public safety officers employed by LIU at the C.W. Post campus, located on Long Island, in Brookville, New York. Plaintiffs allege that

LIU, several years ago became dissatisfied with private security it hired and brouh security services in house and created the LIU Public Safety Department and hired security personnel that were LIU employees. Unfortunately, LIYU has ateempted to match student and security demographics to match the surrounding area. This would not be undesirerable in itself, howver , LIU has systematically and consistently pais LIU Post campus security, faculrty and staff twenty percent less than campus security , faculty and staff at LIU Broooklyn, LIU has also maintaint a most mowhite higher paaid secirity staff at LIU Post and has been engaging in in deplorab e disparate pay discrimination that has remained largely off the record.The ideal security officer and supervisor at LIU Post was(young, white, and resided on Long Island The ideal LIU Brooklyn security staffer lived in Brooklyn, was black or hispanic and paid 20% less than their LIU Post counterpartts. LIU, in effect, created an aoparthied security system whth mostly minority security satff and students in Brooklyn, and mostly white security and staff at LIU Post The two security staffs created a workplace rife with disparities. The PIU Post security has a union the LIU Brooklyn security staff does not The LIU Post security officer received a higher starting hourly wage and supervisors received a higher salary at LIU Post than those at LIU Brooklyn..

(2018 Complaint at ¶ 2).

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Plaintiff Selvin Livingston, a "black male", was employed by LIU at the Brooklyn campus from September 1997 to January 14, 2015. Over the years, he was employed in numerous security positions at the LIU Brooklyn campus, including security guard, sergeant, captain, assistant director of public safety, acting director and director of public safety (see 2018 Complaint at ¶¶ 4-5). The complaint states that "[w]hen Livingston was hired he was told he would receive a an [sic] hourly rate of $15.00 per hour at CW Post Hoebrver [sic] beciuase [sic] of his race ghe [sic] was offered a security position at the LIU Brooklyn campus and received approximately $11.00 per our [sic] as a LIU Brooklyn security guard (id. at ¶ 4). After termination, plaintiff was offered, but did not accept, a two-month severance package (see 2015 Complaint at ¶ 11).

Plaintiff Joan Mobley was employed by LIU at the Brooklyn campus from 1990 to January 14, 2015. Over the years, she was employed in numerous security positions at the LIU Brooklyn campus, including security officer, sergeant, and captain (see 2018 Complaint at ¶ 8). The complaint indicates that from the beginning of her employment until her termination, Mobley received less pay and other disparate treatment solely based on her race (id. at ¶ 11).

Plaintiff Carlisle Baptiste, was employed at the LIU Brooklyn campus from 1997 until January 14, 2015. He was employed as a security officer and was later promoted to sergeant (see 2018 Complaint at ¶ 10). The complaint asserts that plaintiff "was 54" (id.). Assuming this is a reference to his age, it is unclear whether he was 54 years of age at the time he was terminated from his position or something else.

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Plaintiff Joycelyn Small, was employed at the LIU Brooklyn campus from 1987 to January 14, 2015. She was employed in various positions at the university. She worked in the cafeteria before becoming a security guard. "Small became a security officer employed by LIU after LIU terminated a contact [sic] with HSC Security to provide security services" (2018 Complaint at ¶ 13). The complaint indicates that plaintiff is "67 years of age" but it is unclear whether this was her age at the time she was terminated from her position, at the commencement of this action or something else (id.).

Plaintiff Joan Marriot, was employed at the LIU Brooklyn campus as a safety officer and a lieutenant of campus security until January 14, 2015 (see 2018 Complaint at ¶ 15). The complaint indicates that plaintiff is 54 years of age, but it is unclear if this was her age at the time she was terminated from her position (id.).

Plaintiff Jose Rodriguez, was employed at the LIU Brooklyn campus until January 14, 2015. He worked in various positions at the university, including security officer, sergeant and lieutenant (see 2018 Complaint at ¶ 17). The complaint asserts that plaintiff is 42 years of age, but again, it is unclear whether this was his age at the time he was terminated from his position or something else (id.).

On December 29, 2014, the employees were informed that LIU contracted Allied Barton Security Services to take over security services at the university (see 2015...