Opposition Brief — Metro-North Commuter Railroad v. Norris

@ ) Supreme Court, U.S.

FILED

No. 99-1084

APR 1-2 oo90

In The RK

Uaited Sutee—

Supreme Court of the |

: ;

METRO-NORTH COMMUTER RAILROAD COMPANY,

Petitioner,

Vv.

RAYMOND NORRIS, et al.,

Respondents.

a

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

_ ALAN L. FUCHSBERG

Counsel of Record

Mary A. (Mo tty) HuNTER

THE Jacos D. FucHssBerG LAw Firm

P 500 Fifth Avenue

New York, NY 10110

(212) 869-3500

and

JOHN R. QuINN

85 Fourth Avenue

New York, NY 10003

(212) 260-3948

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a Second Circuit decision finding the

requirements of Fed. R. Civ. P. 23(a) satisfied warrants

review by this Court where (i) the Petition for the Writ of

Certiorari is premature because it addresses decisions of

only three other circuits, (ii) the decisions of the four

circuits are in harmony, (iii) the Second Circuit decision

quotes and follows this Court’s Rule 23 decisions, and

(iv) the petition is currently moot because, since the

Second Circuit’s decision on Rule 23(a), the district court

has refused to certify the class on 23(b) grounds. )

2. Whether a circuit court of appeals, when review-

ing a district court’s determination of whether plaintiffs

have satisfied the commonality requirement of Fed. R.

Civ. P. 23(a), may engage in a rigorous analysis of the

statistical evidence presented by the parties, while stop-

ping short of resolving the ultimate questions of liability,

and overrule the district court’s erroneous conclusions

based on its less rigorous analysis of the same statistical

evidence.

3. Whether an employer can immunize itself from

class-based redress of the discriminatory actions engen-

dered by centrally developed and administered company-

wide-promotion and disciplinary practices, based solely

on the delegation of authority to make subjective deci-

sions.

LIST OF PARTIES

The plaintiff-respondents (“the Class Plaintiffs”) are

members of the proposed class and seek to represent the

class; they are named plaintiffs in two related actions |

consolidated by the district court: Raymond Norris, Mar-

vin Edwards, Eric Jones, Daniel Canada, Charles Robin-

son, Sharon Mack, James Oliver, Joan Woodbury, James K.

Hunt, Darryl F. Simpson, Elaine Ester, Donald Hines,

James Jackson, Cynthia King, Anthony Ellis, Prince Til-

lery, Helen Perez, Lord Taylor, Dorthea Richardson and

Joseph Kimbro.,

The defendant-petitioner is Metro-North Commuter

Railroad Company (“Metro-North” or “the railroad” or

“the company”).

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TABLE OF CONTENTS

Page

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pareemmeeees GF E8te CASE... ice ee ecesaccess 1

_REASONS FOR DENYING THE WRIT............. 14

CE ecbkchesscakvecstauekesketvisvst deen 16

I. THE SECOND CIRCUIT’S RIGOROUS ANALYSIS

OF THE STATISTICAL EVIDENCE AND ITS USE

OF THAT ANALYSIS IN DETERMINING

WHETHER PLAINTIFFS SATISFIED RULE 23(a)

COMMONALITY AND OVERRULING THE DIS-

TRICT COURT ARE IN ACCORD WITH RULINGS

ots, Be mi tee 2: 4). eRe 16

A. The Second Circuit’s Rigorous Analysis Of

The Statistics Sets An Appropriate Example

For District Courts To Follow............. 16

B. The Second Circuit’s Ruling Is In Accord

With Rulings By Other Circuit Courts..... 18

II. THE SECOND CIRCUIT’S HOLDING THAT

COMPANY-WIDE PRACTICES WHICH

INCLUDE DELEGATION OF SUBJECTIVE DECI-

SION MAKING DO NOT PRECLUDE CLASS

CERTIFICATION IS IN ACCORD WITH THE

RULINGS OF OTHER CIRCUIT COURTS....... 22

sinned

ai

TABLE OF CONTENTS - Continued

Page

A. The Second Circuit’s Ruling On Disparate

Treatment Is In Accord With Rulings Of

a ee a re eas a 23

B. The Second Circuit’s Ruling On Disparate

Impact Is In Accord With Rulings Of Other

SE. bus 5 ye he ee ed a ew ae eke

Ill. THE PETITION IS PREMATURE AND MOOT... 29

RR ree rete Per rere Orr rE rer re ver 30

Vv

TABLE OF AUTHORITIES ,

Page

CASES:

Anderson v. Douglas & Lomason Co.,

26 F.3d 1277 (5th Cir. 1994), cert. denied,

Bae Sia BAe OEE «vies ck hae Rhea 22, 23, 28

Appleton v. Deloitte & Touche,

168 F.R.D. 221 (M.D. Tenn. 1996)... ......6..44 25, 29

Barefield v. Chevron, U.S.A., Inc.,

44 Fair Empl. Prac. Cas. (BNA) 1885

oe Ge Fae A Re i mm eaprge 28

Bazemore v. Friday,

Ce SE ee CE iv iv ces ck dees dencuecnuwnee ence 17

Bradford v. Sears Roebuck and Co., .

re. ae. Fee Ga, Ss hk ek cekndncnceannnans 24

Brooks v. Circuit City Stores Inc.,

71 Fair Empl. Prac. Cas. (BNA) 102

Bak: SE SI a Sie au wees nu Clee eee eee 26

Capaci v. Katz & Besthoff, Inc.,

7ER Wee Wer Ee We, Ss 5 6 kis Cokes eine 21

Chaffin v. Rheem Manufacturing Co.,

904 F.2d 1269 (8th Cir. 1990)..... Se ens 18, 19

Churchill v. Int’l Business Machines, Inc.,

799 F. Sapp. WORF (ead. WPT)... 6. onc cc cceccaccc. 17

Coser v. Moore,

Jae Can Pee Gon Cae FR icici ica ee 24

Coser v. Moore,

wos F. Supp. S72 (E.DN.Y WGGB) icc ceca eck cans 25

Danielson v. Fletcher,

132 F.R.D. 489 (N-D. Ohio 1990) .................. 21

De La Fuente v. Chicago Tribune Co.,

No. 84 C 4596, 1985 U.S. Dist. LEXUS 17512

CREDA TE FURY DR, Fis anna eecan saan vueuscecace 26

vi

TABLE OF AUTHORITIES - Continued

Page

E.E.O.C. v. Sheet Metal Workers’ Int’!,

869 F. Supp. 642 G.D.N.Y, 1995} <2... cscavecnsssns 22

General Telephone Co. v. Falcon,

S57 UB. OG CUR) <8 caeceasaasekoueee 10, 14, 16, 27

Gonzalez v. Brady,

136 FE. Se CORR... BOGE). 5c kes veene5iasauee 21

Harris v. Marsh,

100 E.R.D. SIS CRNA. 9G s+ ciskaveviaceeee 21

Harrison v. Simon,

FR.D. 425 GERD. Pa BR kis dccaes successes 26

Hazelwood Sch. Dist. v. United States,

435 U.S. 209 CO00F 7 ois 6od6sasbesiboaess eee 21

International Brotherhood of Teamsters v.

United States,

431 US. SOG GROUT E ccc vds viasucavieeenkaeeee 10, 21

Larkin v. Pullman Standard Div., Pullman Inc.,-

S56 F2a 2560 CER Ga Wi aoa uckewkcces seeweas 28

Lowe v. Commack Union Free Sch. Dist.,

S06 F.2d 1366 Coe Ge; Te iu xd hoe sec echeavcanees 28

McCree v. Sam’s Club,

199 RD. S72 CHESS. A: Fc des cas eesceseae ee 29

Price v. Cannon Mills,

115 REED. G6 Ce Bes See bet uke becceesees 21

Ray v. Phelps Dodge Brass Co.,

35 Fair Empl. Prac. Cas. (BNA) 1004

(ND. Aim. TOGR) « ccnscsaccansvauaveebeln cies 21

Roberts v. Marine Midland Bank,

22 Fair Empl. Prac. Cas (BNA) 326

G.DBLY TO7G) «<cssksnaneck ees ave 25

Vii

TABLE OF AUTHORITIES - Continued

Page

Ross v. Nikko Secs. Co.,

53 Fair Empl. Prac. Cas. 1121

(S.D.N.Y. 1990) (Ross I) ............ Phi cee eane wen 21

Ross v. Nikko Secs. Co.,

133 F.R.D. 96 (S.D.N.Y. 1990) (Ross II)............. 21

Rossini v. Ogilvy & Mather, Inc.,

Te See Pe CE AE BO hase hd awnanss dewsneend 27

Shipes v. Trinity Indus.,

987 F.2d 311 (5th Cir.), cert. denied,

ee errr rr +:

Sobel v. Yeshiva University,

ee ee We Oe Ge I i ob oso den tacts ssewieaeke 17

Stambaugh v. Kansas Dep’t of Corrections,

Boe Weer. GOS (ED. HOW. TIGE) occa se sn cksccnsnnns 29

Stastny v. Southern Bell Tel. & Tel. Co.,

628 F.2d 267 (4th Cir. 1980)..... 19, 20, 22, 23, 24, 29

Watson v. Fort Worth Bank & Trust,

ee Bie SEe CN 65 ok sae baesdbecacckacs 14, 27, 28

Wells v. General Electric Co., ;

78 F.R.D. 433, REE cba eet ys tue okaus 26

Williams v. New Orleans Pub. Serv., Inc.,

30 Fair Empl. Prac Cas. (BNA) 1127

es i EE woe dada eile ee bake e a aaeoweekoeues 26

RULEs:

rea. & Clu. FE 23....... beeen eae aes baw passim

OPINIONS BELOW

Subsequent to the Second Circuit Court of Appeals’

decision of July 29, 1999 remanding this case to the Dis-

trict Court and subsequent to defendant-petitioner’s sub-

mission of its Petition for Writ of Certiorari to this Court,

the District Court telephonically advised the parties, on

February 18, 2000, that the Motion for Class Certification

was denied. The District Court’s written opinion is pend-

ing.

STATEMENT OF THE CASE

Metro-North is a local commuter railroad operated

out of its headquarters in New York’s Grand Central

Station. It has a centralized, hierarchical structure with a

tradition of top-down decision making. The Class Plain-

tiffs seek reform in Metro-North’s company-wide promo-

tion and disciplinary practices to eliminate racial bias.

Following extensive discovery, Class Plaintiffs moved

for class certification pursuant to Rule 23. In support of

their motion, they submitted a report prepared by Dr.

Harriet Zellner (based on multiple regression analyses

performed on data files provided by Metro-North), the

testimony of Metro-North’s own officers, the testimony of

a sociologist, and anecdotal evidence. (Pet. App. A-3-4)

Focused primarily on the statistical evidence, the Dis-

trict Court held that Class Plaintiffs had not satisfied the

commonality and typicality requirements of Rule 23. The

specific issue before the Second Circuit was “whether the

[commonality and typicality] requirements of Rule 23(a)

can be met in a Title VII-action where the members of the

proposed class challenge the subjective components of

company-wide policies and procedures governing

employee discipline and promotion.” (Id. A-2) The Sec-

ond Circuit held that Class Plaintiffs’ evidence was suffi-

cient to demonstrate common questions of fact regarding

Metro-North’s company-wide practices for both promo-

tion and discipline. (Id. A-15)

Metro-North’s Company-wide Promotion Practices

(See, generally, Pet. App. A-5-6)

Metro-North’s policy for filling management posi-

tions is to promote from within rather than recruit exter-

nally, and between 60% and 80% of management

positions are filled in this manner. Metro-North’s

declared promotion procedure requires the posting of all

open management positions. The Personnel Department

is the sole watchdog for the posting process. It oversees

posting, receives and reviews applications, and maintains

the Job Title Guidelines and Grade Structure. The Person-

nel Department assembles a list of qualified candidates,

but the manager of the department filling the vacancy

makes the final decision. The manager is directed to “hire

the most qualified candidate;” no other instructions are

given.!

1 The Assistant Director of Employment admits that Metro-

North managers are not held accountable for failure to apply

criteria in a systematic and unbiased manner in their personnel

decisions, and that she (the Assistant Director) is under no duty |

to report such violations. In addition, the Personnel Director

described the official job requirements on job postings as

“overblown” and “overstated,” and believes that reassessment

Saniadnennitindiehendiehiaa indienne

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For some vacancies at Metro-North, it is understood

in advance that a favored candidate will receive a partic-

ular job, even though it is posted. In some instances, the

identities of the individuals to be promoted are made

known before the positions are posted.? Thirty percent of

the positions that should be posted are not, which

accounts in part for racial bias in promotions. A single

Metro-North official, the Personnel Director, must

approve the filling of positions without posting.

Also, about 200 union positions at Metro-North are

not governed by the formal promotion practices. Called

“partially excepted positions” and “agreement super-

visors,” union workers regard these jobs as desirable

positions that may facilitate progress into management.

Promotion decisions for these jobs are, as a matter of

company-wide policy, left entirely to the individual man-

ager’s discretion. An example is the experience of named

class representative Joseph Kimbro, an African-American

Crew Dispatcher. Kimbro applied for and was denied

of those requirements would promote racial and gender

diversity at Metro-North, a view shared by the Executive Vice

President.

2 The Metropolitan Transit Authority Inspector General, in

a 1993 report, found that Metro-North failed to adhere to its

posting requirements. The report detailed numerous incidents

of pre-selection, favoritism and disregard for the posting

requirements, including a “pattern” of favoritism and a

“willful” violation of company rules by Vice President

Firnhaber, the second highest-ranking executive at Metro-North

and supervisor of the Personnel Director. Firnhaber told the

Investigator that “she wasn’t concerned with Metro-North

regulations and procedures regarding job postings, background

requirements, or interview procedures.”

promotion to the “partially excepted position” of Chief

Crew Dispatcher. Metro-North promoted four Caucasians

that Mr. Kimbro trained, all with less experience than Mr.

Kimbro, to Chief Crew Dispatcher positions in early 1996.

A Metro-North executive testified that the railroad

“historically has been male and white.” Internally pro-

duced reports that Metro-North submits to the Federal

Transit Administration show vast underutilization of ©

African-Americans in five of the eight EEO job categories

applicable to Metro-North.? In the skilled-craft category,

based on Metro-North’s availability analysis, African-

Americans would be expected to fill 58.8% of the 3,356

jobs, but they held only 15%.

The company’s data show that African Americans

continue to be under-represented in management posi-

tions and in the railroad’s workforce from which most

promotions to management are made. Of the 324

employees in the EEO ‘A’ level job group, only 21 are

African-American. Workforce Diversity Director Mitchell

believes African Americans are underutilized in manage-

ment, and a senior Metro-North recruiter complained to

Mitchell that “there were no or hardly any black fore-

”

men.

3 Metro-North performs an “availability analysis,” which is

“a comparison of the participation rates of minorities and

women at various levels in the work force with their availability

in relevant labor markets.” Metro-North’s availability analysis

reports weight the census figures for the job categories of skilled

craft, protective service, para-professionals and service/

maintenance for the availability of qualified transit workers in

the New York City area.

Metro-North’s Company-wide Disciplinary Practices

(See, generally, Pet. App. A-4-5)

Metro-North’s progressive disciplinary system (“the

Progressive Disciplinary System” or “PDS”) applies to all

of its approximately 5,000 union employees wherever

they work at the railroad. All of the collective bargaining

agreements in effect at the company use this company-

wide PDS; the agreements contain the same basic provi-

sions for the filing of disciplinary charges, the holding of

disciplinary hearings and the assessment of punishment,

if any. In the words of the railroad’s primary Trial and

Appeal Officer, “[t]hey’re all held the same. The only

difference in the different contracts is basically notifica-

tion and time limits . . .. The manner in which the actual

hearing is conducted is identical for the sixteen unions.”

All management personnel deposed acknowledged

that disciplinary decisions are made under the railroad’s

one, standardized, company-wide set of procedures,

developed and overseen by the centralized Labor Rela-

tions department. Two Metro-North employees hold the

title Trial and Appeal Officer, although at times other

managers function as hearing officers. The railroad cen-

trally trains its hearing officers in sessions that Labor

Relations coordinates and the Director personally

attends. All trainees receive the Metro-North Commuter

Railroad Hearing Officers’ Manual. One officer alone

holds the hearings for the three departments that employ

most of the railroad’s union employees. The Vice Presi-

dent of Administration acknowledged that a non-white

hearing officer was “probably something [Metro-North]

6

should have,” and the Personnel Director suggested des-

ignating one, but the company undertook no effort to do

SO.

According to the PDS, “charges” against employees

are initiated by the supervisor; the assigned hearing offi-

cer then reviews the matter with the Labor Relations

Department and formulates the charge, which must be

approved by the employee’s department head. At the

hearings, the hearing officer selects the witnesses and

conducts the examination. The transcript goes back to the

employee’s department head who determines punish-

ment, if any. All appeals go to Labor Relations.

At least since 1993, Metro-North’s internal quarterly

reports have consistently shown enormous racial dis-

parities produced by the PDS. Workforce Diversity Direc-

tor Mitchell, in a memorandum he sent to the Vice

President of Human Resources in 1994, “expressed con-

cern about the ratio of disciplinary cases involving people

of color, particularly African-American.” Mitchell

expressed this concern on other occasions to Labor Rela-

tions Director Burney and railroad President Nelson.

Burney admits that he was aware of Mitchell’s concern

that racism was affecting discipline decisions and that the

hearing officers needed additional training on that issue.

Mitchell’s department never distributed to hearing

officers literature addressing equal treatment in

discipline. Furthermore, the degree to which other

employees charged with the same offense have been dis-

ciplined is not examined. Burney’s department never con-

sidered adopting policies concerning equal treatment in

the PDS.

The Parties’ Statistical Evidence

The Circuit Court opinion outlined “The Experts’

Reports.” (Pet. App. A-6 to A-9) Among other findings,

the Appellate Court observed that:

1. Class Plaintiffs’ expert, Dr. Zellner, analyzed the

computer files provided by Metro-North using numerous

multiple regression analyses, controlling for relevant fac-

tors, and consistently finding that being Black had highly

statistically significant adverse effects on promotion rates

and discipline rates. (Id. A-6 to A-7)

2. Dr. Zellner’s regression analyses showed that

being Black reduced an employee’s likelihood of promo-

tion by approximately 33 percent. With respect to disci-

plinary charges, Blacks on average faced 3'/2 times the

number of charges compared to Whites. (emphasis

added) (Id. A-7)

3. The Appellate Court found that “Significantly,

[Metro-North’s expert, Dr.] Evans did not perform any

regression analyses in reaching his conclusions; instead,

he simply tallied numbers of disciplinary actions and

made some basic comparisons.” (emphasis added) (Id.

A-8)

4. The Court noted that Evans’ primary criticism of

Zellner’s report was that she did not perform her review

department-by-department or position-by-position. (Jd.

A-7) However, unlike the District Court below, which

overlooked Zellner’s response in a supplemental report

and affidavit, the Appellate Court observed that Zellner

“prepared a department-by-department comparison of

the number of job titles in which Blacks and Whites,

respectively, had higher discipline rates” and “performed

department-by-department regression analyses to esti-

mate the effect of being Black on the number of disciplin-

ary charges within each department.” (Id. A-9) These

analyses showed, inter alia, that “Blacks had higher disci-

pline rates in 48 positions,” the positions where most of

the relevant (union) employees worked. (emphasis

added) (Id. A-9)4

Class Plaintiffs’ brief to the Second Circuit, sup-

ported by the record, made the following additional rele-

vant observations:

1. Typical of Evans’ misleading statements, he

“pointed out that of 37 particular departments at Metro-

Nerth, no disciplinary action was taken in 25 of

them ... ” (Id. A-8.) and on that basis claimed that

company-wide discrimination could not exist. However, a

staggering 98.5% of the workforce subject to the rail-

road’s disciplinary practice (the unionized employees)

worked in the 12 large departments where disciplines

occurred, and the 25 small departments with no disci-

plines employed only 1.5% of the relevant workers.

2. Regarding promotion, Evans found a highly sta-

tistically significant, negative correlation between being

4 Incredibly, Metro-North claims that Zellner “did not

endeavor to perform any statistical analyses for particular

departments or other subgroups of Metro-North.” (Pet. 7)

Zellner’s comparisons of discipline by job titles within

departments and department-by-department regression

analyses were provided to Metro-North and the District Court

in affidavit form and to the Circuit Court as part of the Record

on Appeal. The Circuit Court discusses these analyses in its

decision. (Id. A-9, A-15 to A-16)

Black and being promoted at the railroad — before he

excluded “non-promotable positions.” (See Id. A-8 defini-

tion of “non-promotable”: positions for which the rate of

promotion was less than one percent.) Because Evans’

assessment of non-promotable positions was based on a

faulty analysis, he excluded positions for which the

actual promotion rate was more than one percent; these

excluded positions skewed his results because they

included positions where African Americans were pro-

moted at a much lower rate than Whites.

3. Regarding discipline, Evans reported that differ-

ent Metro-North positions have materially different rates

of discipline, but he included in his analysis 12 manage-

ment positions, such as Director, Assistant Director, and

Manager, that are not subject to Metro-North’s disciplin-

ary practice.° Of course, the rate of discipline for these 12

positions was zero. Besides obvious errors like these,

Evans did not take into account in any statistical analysis

the differences that he claimed to have found. Instead, he

simply pointed to these alleged differences and asserted

in conclusory fashion that, therefore, no statistically sig-

nificant racial disparities could be established.

4. Zellner’s analyses were focused on whether the

alleged disparities in promotion and discipline: (i) mani-

fested themselves when relevant factors were controlled;

(ii) if so, whether the disparities occurred on a class-wide

basis; and (iii) whether the disparities pervaded all areas

of the railroad. In addition to the supplemental report

° Zellner, on the other hand, analyzed discipline among

union employees only, which is the correct approach.

10

and affidavit in which Zellner examined employees by

job title within department and performed 10 separate

regressions on each of the 10 major departments at the

railroad, she had “controlled for” department in her orig-

inal company-wide regressions.

The Decision of the Court of Appeals for the Second

Circuit

A. Regarding the Statistical Evidence

Petitioner has misrepresented, or at the very least

grossly misinterpreted, the contents of the Circuit Court’s

decision. Contrary to petitioner’s assertions in its state-

ment of the case and in its argument point II, the Circuit

Court did not conclude that the District Court could not

evaluate the statistical evidence at the class certification

stage.

To the contrary, the Circuit Court: (i) quoted and

followed this Court’s requirement from General Telephone

v. Falcon, 457 U.S. 147, 161 (1982), that courts perform a

“rigorous analysis” to determine whether Rule 23’s

requirements are satisfied; (ii) followed this Court’s

directives concerning the proper function of statistics in

class-wide discrimination claims;® and (iii) in fact,

¢ For example, adhering to the principles announced by

this Court in International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 340 n.20 (1977), the Second Circuit observed

that “[w]here the decision-making process is difficult to review

because of the role of subjective assessment, significant

statistical disparities are relevant to determining whether the

challenged employment practice has a class-wide impact.” (Pet.

App. A-15)

——————————— ===

11

performed its own analysis of the statistical evidence that

was much more accurate than the District Court’s. The

Circuit Court saw details that the District Court over-

looked, such as the many shortcomings of Evans’ report -

including the fact that it failed to utilize multiple

regressions but only relied on simple tallies and basic

comparisons - and the fact that Zellner submitted a

supplemental report addressing the very criticisms raised

by Evans. Not unduly leaning toward one side, the Cir-

cuit Court’s opinion also took account of Evans’ principal

criticisms of Zellner’s report. (Pet. App. A-6 to A-10, A-15

to A-16)

More specifically, the Circuit Court analyzed the

competing expert reports to determine whether sufficient,

reliable evidence of significant statistical disparities that

supported commonality was proffered:

1. The Court provided a three-page summary of the

experts’ reports that reflects a much more thorough

examination of the statistical evidence than the District

Court’s performed. (Id. A-6 to A-9)

2. The Court quoted Zellner’s explanation of her

methodology in choosing the dependent variable and five

independent variables for the regressions on disciplinary

charges and discussed the independent. variables in the

regressions on promotion. (Id. A-6-7)

3. The Court cited Zellner’s findings of gross dis-

parities and their high degree of statistical significance.

(Id. A-7)

4. After quoting Evans’ conjecture that named

plaintiffs’ experiences of discrimination would prove to

12

be “typical of only a fraction of the Metro-North work-

force” if an examination by position were prepared (Id.

A-7-8), the Court detailed the findings of Zellner’s posi-

tion-by-position analyses: disparities were found in the

48 positions where 4,266 of the 4,809 relevant workers

were employed. (Id. A-9)

5. Based on its in-depth analysis, the Circuit Court

criticized the District Court’s reliance on Evans’ report.

(Id. A-15 to A-16)

Overruling the District Court, the Circuit Court held

that “this [Zeilner’s] report, in conjunction with the anec-

dotal evidence, satisfies the Class Plaintiffs’ burden of

demonstrating commonality for purposes of class certi-

fication.” (Id. A-16) Read plainly, the Second Circuit’s

decision credited the analyses prepared by Zellner over

those submitted by Evans; the Court’s conclusions con-

tain statistics supplied by Dr. Zellner:

[T]he Class Plaintiffs’ statistical evidence sup-

ports a finding of commonality on the issue of

discipline with respect to those African-Ameri-

can employees who were disciplined while

working in one of the 48 positions in which

African-Americans are more likely to be disci-

plined than Whites. In addition, the statistical

evidence supports a finding of commonality on

the promotion claim. . . . [Bleing Black reduces

an employee’s likelihood of being promoted by

approximately 33 percent. In conducting her

analyses, the Class Plaintiffs’ expert controlled

for various factors that one would expect to be

relevant to the likelihood of disciplinary action

and promotion. The[ ] statistical disparities are

ja

13

not insignificant. (citation omitted) (emphasis

added) (Id. A-15 to A-16)

B. Regarding Metro-North’s Company-Wide Pro-

motion and Disciplinary Practices

The Second Circuit found that Metro-North has com-

pany-wide promotion and disciplinary practices that

apply to all relevant employees, wherever employed at

the railroad. (Id. A-4-6) The Circuit Court also held that

the delegation to supervisors, pursuant to company-wide

policies, of authority to make subjective decisions does

not preclude class certification. The Court concluded that

commonality and typicality can be met where plaintiffs

challenge the subjective decision making in company-

wide policies and procedures only if plaintiffs show that

the challenged practices are causally related to a pattern

or practice of discrimination or has a disparate impact.

Finally, the Court held that those requirements were met

in this particular case. (Id. A-2-3, A-13-15)

The District Court’s Decision

The District Court denied Class Plaintiffs’ Motion for

Class Certification primarily on the basis of its cursory

review of the statistical evidence. Metro-North agrees

that in reaching its conclusion that plaintiffs failed to

show commonality, “the District Court focused primarily

on the statistical evidence.” (Pet. 10)

The District Court relied entirely on Evans’ criticism

of Zellner’s report. The District Court must have over-

looked Zellner’s department-by-department regression

analyses and position-by-position analyses because the

14

Court failed even to mention, favorably or unfavorably,

these thorough-going answers contained in Zellner’s sup-

plemental affidavit.

*

REASONS FOR DENYING THE WRIT

The Writ should be denied because there is not a

grain of merit to the petitioner’s contention that there is a

split among the circuits, because the Petition is prema-

ture, and because the Petition is currently moot. |

Petitioner’s principal contention appears to be that

the Second Circuit’s decision is in conflict with the deci-

sions of other Circuits. Despite Petitioner’s rhetoric, how-

ever, there is no “existing split” that the Second Circuit's

decision, in petitioner’s works, “has deepened.” (Pet. 14)

The Petition cites authority from only three circuits — the

Fourth, the Fifth, and the Eighth - which can hardly be

regarded as a comprehensive reckoning of how the var-

ious Circuits are treating Rule 23. Simply put, the Petition

is premature at this time.

There is also no merit to petitioner’s claim that the |

Second Circuit’s decision is in conflict with those of the |

Fourth, Fifth, or Eighth Circuits. The Fourth and Eighth

Circuit authorities are distinguishable, almost without

effort, on their facts, and the Fifth Circuit case petitioner

cites is a 1980 decision actually cited by the Second

Circuit in its decision. Most critically of all, the Second

Circuit’s decision quotes and adheres to the basic princi-

ples announced by this Court in such cases as General

Telephone v. Falcon, 457 U.S. 147 (1982) and Watson v. Fort

Worth Bank & Trust, 487 U.S. 977 (1988).

TT

15

Petitioner also claims that this Court’s review is

required because the Second Circuit’s decision embraces

a theory of class actions that is novel, unprecedented, and

that could open the floodgates to widespread unwar-

ranted class action litigation. Here again, petitioner

engages in mere hyperbole. Consistent with authority

from this Court and other Circuits, the Second Circuit

held that delegating to supervisors, pursuant to com-

pany-wide policies, the authority to make subjective deci-

sions may give rise to a common question if sufficient

evidence, including the showing of a causal connection, is

presented.

Petitioner’s other contention is that the Second Cir-

cuit’s decision somehow precludes district courts from

performing a careful review of statistical evidence before

certifying classes. On this point, the Petition appears to

plainly misrepresent to this Court the contents of the

Second Circuit’s decision. The ruling does not “compel”

class certification (Pet. 14) under any circumstances, not

even in this case, where the Circuit Court remanded for

further consideration and the District Court has, since,

denied class certification again.

Because the Second Circuit ruling is in accord with

the rulings of this Court and other circuit courts, peti-

tioner has failed in its attempt to identify and delineate a

conflict, and this Court should deny the Petition for Writ

of Certiorari.

16

ARGUMENT

I. THE SECOND CIRCUIT’S RIGOROUS ANALYSIS

OF THE STATISTICAL EVIDENCE AND ITS USE

OF THAT ANALYSIS IN DETERMINING

WHETHER PLAINTIFFS SATISFIED RULE 23(a)

COMMONALITY AND OVERRULING THE DIS-

TRICT COURT ARE IN ACCORD WITH RULINGS

BY OTHER CIRCUIT COURTS.

A. The Second Circuit’s Rigorous Analysis Of The

Statistics Sets An Appropriate Example For

District Courts To Follow.

Metro-North imaginatively claims that due to the

Second Circuit’s decision in this case “district courts

would now be obliged to accept at face value the statisti-

cal arguments advanced by the plaintiffs in support of a

class certification motion, regardless of how unpersuasive

these arguments would be found if analyzed more

closely.” (Pet. 21) Petitioner clearly misreads the Second

Circuit’s decision.

Petitioner’s contention is especially ironic here

because the Circuit Court performed a more “rigorous

analysis” (General Telephone Co. v. Falcon, 457 U.S. 147, 161

(1982)) of the statistical evidence than the District Court.

It was the District Court that “accept[ed] at face value the

statistical arguments advanced by the [defendant]” in this

case. (Pet. 21) See decision of the Court of Appeals (Pet.

App. A-6 to A-9 and A-15 to A-16); Memorandum Order

of the District Court (Pet. App. A-30 to A-31).

The Second Circuit discussed both experts’ reports at

length and drew conclusions about their quality and per-

suasiveness. (Id. A-6-9, A-15-16) The Court described the

17

criticisms leveled against Zellner’s report (on behalf of

Class Plaintiffs) by Evans (on behalf of Metro-North) and

explained how Zellner’s supplemental report and affi-

davit answered Evans’ criticisms. (Id.) Unlike the District

Court, the Circuit Court recognized that Zellner re-ran

the discipline regressions separately for each of the ten

major departments at Metro-North and separately pre-

pared comprehensive analyses by job title within depart-

ment. (Id. A-9)7

Metro-North also claims that the Appellate Court

confused class certification determination with the

merits. Quite the opposite, the Court expressly stated that

the statistics needed at trial will likely be different, “more

detailed,” and concluded that Zellner’s report, along with

other evidence, satisfied the burden of demonstrating

commonality for purposes of class certification. (Id. A-16)

Moreover, the Court criticized the District Court for rely-

ing on Evan’s statistical report, specifically referring to

Evans’ attempt to refute Zellner’s reports on the basis of

different rates of discipline and promotion in different

positions. (Id. A-15) Noting that Evans’ criticisms might

be more fruitful on the merits, the Circuit Court

7 Metro-North never met its burden of proving that Zellner

should have controlled for additional variables. Under Bazemore

v. Friday, 478 U.S. 385, 404 n.14 (1986), to disprove Dr. Zellner, it

is not enough for Metro-North merely to name variables that

Zellner should have taken into account; the railroad must show

that regression analyses accounting for those variables would

eliminate the disparities. Accord Sobel v. Yeshiva University, 839

F.2d 18 (2d Cir. 1988); Churchill v. Int'l Business Machines, Inc.,

759 F. Supp. 1089, 1092-93 (D.N.J. 1991). Metro-North has

performed no such analysis.

18

explained in detail that Zellner’s “statistical evidence

supports a finding of commonality on the issue of disci-

pline . . . [in] the 48 positions” identified by Zellner and

“on the promotion claim.” (Id. A-15-16)

Thus, the Circuit Court re-examined the statistical

evidence submitted by the parties in this case and con-

cluded that Class Plaintiffs’ evidence was persuasive on

the issue of class certification. (A-6 to A-9, A-15 to A-16)

B. The Second Circuit’s Ruling Is In Accord With

Rulings By Other Circuit Courts.

The cases cited by Metro-North are in accord with the

Second Circuit’s decision here. The courts in those cases

analyzed the statistical evidence and rejected “raw” sta-

tistics and weak numerical presentations, similar in

nature to Evans’ report (on behalf of Metro-North) in this

case. Like those courts and unlike the District Court

below, the Second Circuit analyzed all of the statistical

evidence and examined it in depth.

Metro-North cites Chaffin v. Rheem Manufacturing Co.,

904 F.2d 1269 (8th Cir. 1990), which is not analogous to

this case because the Eighth Circuit emphasized the fact

that the lone plaintiff had failed to identify any other

class member alleging discrimination. Nevertheless,

although the statistics were not central to its decision, the

Eighth Circuit Court was satisfied with the District

Court’s finding that plaintiff's statistical evidence was

“too bareboned.” Id. at 1276. The plaintiff had simply

tallied the 72 promotions made in the relevant period and

compared the two promotions received by members of

the proposed class to the four or five promotions that

ee re 8

19

they might have expected if they were being promoted in

proportion to their representation in the available pool of

candidates. Id. at 1275.

Like the Chaffin court, the Second Circuit here found

that the statistics proffered by Metro-North — not those by

Class Plaintiffs - were too bareboned. The Court found

that “[s]ignificantly, Evans did not perform any regres-

sion analyses in reaching his conclusions; instead, he

simply tallied numbers of disciplinary actions and made

some basic comparisons.” Pet. App. A-8. On the other

hand, the Court noted with approval that Zellner utilized

“numerous multiple regression analyses,” Pet. App. A-6,

and “controlled for various factors that one would expect

to be relevant... .” Id. A-16.

In its comments on Chaffin, Metro-North claims that

“[t]here, as here, the plaintiff relied on statistical evidence

comparing the percentage of promotions awarded

. with the expected percentage based on the overall

African-American population in the department at issue.”

(Id. 22-23) However, the simple numerical presentation

provided by the plaintiff in Chaffin is no different in kind

from the simple tallies and basic comparisons presented

by Metro-North here. Like the Second Circuit here, the

Eighth Circuit in Chaffin rejected a barebones statistical

approach.

In citing Stastny v. Southern Bell Tel. & Tel. Co., 628

F.2d 267 (4th Cir. 1980), Metro-North highlights a case

that is actually in accord with the Second Circuit’s deci-

sion here because the Fourth Circuit was not persuaded

by the simple tallies and basic comparisons provided by

plaintiffs, just as the Second Circuit was not persuaded

20

by Evans’ (Metro-North’s) simple tallies and basic com-

parison. In Stastny, four plaintiffs, all from one office,

sought to represent a class of employees from all 24

autonomous facilities spread across the state of North

Carolina. Plaintiffs’ “statistical” evidence was limited to

simple company-wide totals that suggested women in

management were concentrated in iower levels. Id. at 270.

Unlike the plaintiffs in Stastny, Class Plaintiffs here

presented statistical analyses consisting of many multiple

regressions controlling for relevant factors and answering

the concerns raised by Metro-North’s expert. Indeed,

there is no difference between the approach required by

the Second and Fourth Circuits in analyzing statistical

evidence for class certification determinations. As shown

by this case and Stastny, both circuits find simple tallies

and comparisons unpersuasive.

Also, the Stastny court pointed out that a statewide

pattern or practice could be shown even in a dispersed

multi-facility setting, perhaps by statistical data showing

disparities at a sufficient number of the separate facilities.

Id. at 278. Here, although Metro-North is a local com-

muter railroad with a hierarchical structure that requires

all locations to report functionally up to its headquarters

in Grand Central Station and to apply uniform company-

wide practices, Class Plaintiffs have shown that racial

disparities occur department by department and in the 48

individual positions where most of the relevant

employees work.

Metro-North cites some cases that are clearly not

analogous here because they involve no statistics or

extremely simple numerical presentations and cites other

21

cases that are helpful to Class Plaintiffs. See, e.g., Gonzalez

v. Brady, 136 F.R.D. 329 (D.D.C. 1991), where plaintiffs

offered no statistics regarding their discipline claim and

in support of their promotion claim offered simple com-

parisons (like Evans’s data on behalf of Metro-North

here); Danielson v. Fletcher, 132 F.R.D. 489 (N.D. Ohio

1990), where the lone pro se plaintiff offered allegations

and no evidence; Ross v. Nikko Secs. Co., 133 F.R.D. 96

(S.D.N.Y. 1990) (Ross II), where plaintiffs presented “no

systematic statistical evidence” (quoting Ross v. Nikko

Secs. Co., 53 Fair Empl. Prac. Cas. 1121, 1125 (S.D.N.Y.

1990) (Ross I)); Price v. Cannon Mills, 113 F.R.D. 66

(M.D.N.C. 1986), where the only numerical evidence pre-

sented were tallies showing that workers were 80%

female, supervisors were 50% female and managers were

87.5% male; Harris v. Marsh, 100 F.R.D. 315, 323 (E.D.N.C.

1983), where defendants “compellingly” demonstrated

that no class existed; and Ray v. Phelps Dodge Brass Co., 35

Fair Empl. Prac. Cas. (BNA) 1004, 1007 (N.D. Ala. 1983),

where the four plaintiffs proffered only their individual

complaints and “speculative allegations.”

Metro-North cites cases in which courts denied class

certification “where the statistical evidence offered in

support of the motion could not withstand [a] ‘rigorous

analysis.’ ” (Pet. 22) Of course, when it is the defendant's

statistical evidence that fails a “rigorous analysis,” and

plaintiffs’ statistical evidence proves to be reliable and

sufficient, courts can and do find in favor of plaintiffs.

See, e.g., International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977); Hazelwood Sch. Dist. v. United

States, 433 U.S. 299 (1977); Capaci v. Katz & Besthoff, Inc.,

22

711 F.2d 647, 650-56 (5th Cir. 1983); E.E.O.C. v. Sheet Metal

Workers’ Int'l, 889 F. Supp. 642 (S.D.N.Y. 1995).

Il. THE SECOND CIRCUIT’S HOLDING THAT COM-

PANY-WIDE PRACTICES WHICH INCLUDE DEL-

EGATION OF SUBJECTIVE DECISION MAKING

DO NOT PRECLUDE CLASS CERTIFICATION IS

IN ACCORD WITH THE RULINGS OF OTHER

CIRCUIT COURTS.

Metro-North misstates the potential consequences of

the Second Circuit’s holding in this case; the opinion did

not require certification under any circumstances. Rather,

the Circuit Court held only that “the requirements of Fed.

R. Civ. P. 23(a) can be satisfied” where plaintiffs chal-

lenge “the delegation to supervisors, pursuant to com-

pany-wide policies, of the authority to make subjective

decisions,” (Pet. App. A-3), only if plaintiffs show a

causal connection, (Id. A-15). (emphasis added)

Even more fundamental to the Petition for Writ of

Certiorari before the Court, Metro-North grossly exagge-

rates any alleged ‘divergence of opinion’ among the cir-

cuits on the issue of class certification under the disparate

treatment and disparate impact theories. Regarding dis-

parate treatment, petitioner cites one, distinguishable

Fourth Circuit case from 1980, Stastny v. Southern Bell Tel.

& Tel. Co., 628 F.2d 267, and a Fifth Circuit case, Shipes v.

Trinity Indus., 987 F.2d 311 (Sth Cir.), cert. denied, 510 U.S.

991 (1993), that the Second Circuit itself cited in support

of its ruling and Class Plaintiffs cited in their brief below. |

Regarding disparate impact, Metro-North only cites the

same Fourth Circuit case and Anderson v. Douglas &

Lomason Co., 26 F.3d 1277 (5th Cir. 1994), cert. denied, 513

23

U.S. 1149 (1995). The Fifth Circuit Court reviewed Ander-

son on the merits, and the Anderson plaintiffs had pro-

ceeded to trial after the district court granted their

motion for class certification. Thus, instead of the “rift”

among the circuits that Metro-North trumpets to the

Court, the three cases petitioner relies on are more analo-

gous to a crack in the sidewalk. Moreover, the district

court cases that Metro-North cites add nothing significant

to their argument.

A. The Second Circuit’s Ruling On Disparate

Treatment Is In Accord With Rulings Of Other

Circuits.

Metro-North cites Stastny v. Southern Bell Tel. & Tel.

Co., for the proposition that class certification should be

denied if alleged discriminatory practices are “decentral-

ized.” The facts in Stastny, however, are quite different

from the facts here. The four Stastny plaintiffs all worked

in one office but sought to represent a class of all women

in management working in all 24 widely dispersed and

locally autonomous facilities across the state of North

Carolina. Id. At 278-79. While upholding the liability find-

ings for the four named plaintiffs, the Circuit Court

reversed the statewide class certification, emphasizing

that “[t]here was no showing by direct evidence that a

statewide practice or policy, either objectively or subjec-

tively administered, existed.” 628 F.2d at 279.

Here, as the Second Circuit found, there are com-

pany-wide practices and policies for both promotion and

discipline. (Pet. App. A-3-5) In fact, there are no aspects

24

of the practices in promotion or discipline at Metro-North

that are not standardized and applied company-wide.

Having failed to find a substantive conflict among

the circuits, Metro-North reverts to arguing the facts of

this case. Reiterating at every opportunity its claim to be

“decentralized,” — and asserting that the record supports

its view when the record clearly shows Metro-North is

centralized — petitioner tries to separate itself from the

reality that its company-wide practices regarding promo-

tion and discipline emanate from and are administered by

a few highly centralized executives. Metro-North argues

that the “defect” fatal to the Class Plaintiffs is their

alleged “failure to attribute the alleged discriminatory

conduct to some or all of the hundreds of supervisors

responsible for individual promotion and discipline deci-

sions to a centralized discriminatory practice or policy.”

(Pet. 15) However, Class Plaintiffs have shown exactly

that: the discriminatory conduct is attributable to a cen-

trally developed Metro-North policies implemented com-

pany wide.

Fifth Circuit and Second Circuit cases are in accord.

For example, in Bradford v. Sears Roebuck and Co., 673 F.2d

792 (Sth Cir. 1982), wholly separate operating procedures

and policies existed for each of the several formal groups

into which the 46 Sears outlets in the state were divided.

Metro-North, by contrast, does not contend that it main-

tains department-specific discipline or promotion poli-

cies. Similarly, in Coser v. Moore, 739 F.2d 746 (2d Cir.

1984), there were real, meaningful, department-specific

hiring criteria among different academic and other

departments at Stony Brook. (The facts are fully set forth

in the district court’s decision, Coser v. Moore, 587 F. Supp.

25

572 (E.D.N.Y 1983)). By contrast, the promotion and disci-

pline policies and practices are the same in every Metro-

North department.

Metro-North also relies on Appleton v. Deloitte &

Touche, 168 F.R.D. 221 (M.D. Tenn. 1996), where plaintiffs

sought certification of a nationwide class of technical and

other support staff who worked in 45 offices of this

public accounting firm. However, each managing partner

of those offices had autonomy to develop unique employ-

ment practices. Moreover, plaintiffs mounted an old-style

“across-the-board” challenge but offered only general sta-

tistics indicating under representation. The District Court

denied certification because decisions were made entirely

at the local level, pursuant to each local office’s own

policies, and because plaintiffs’ statistics were not devel-

oped separately for their hiring, promotion, compensa-

tion, and other claims.

In contrast, here, Metro-North’s promotion and disci-

pline practices are centrally administered and do not vary

by department or locale. Class Plaintiffs demonstrated

that there are centrally administered practices in place to

govern promotion and discipline with significant involve-

ment of high level management and a small number of

centralized executives in Personnel and Labor Relations

who administer those practices out of their offices in

Grand Central. (Pet. App. A-4-6)

Metro-North also cites Roberts v. Marine Midland

Bank, 22 Fair Empl. Prac. Cas. (BNA) 326 (S.D.N.Y. 1979),

where the court certified a class represented by only one

plaintiff who alleged discrimination in promotion at one

branch of the bank. The court granted certification for the

26

bank’s Eastern Region, the level of organization at which

employment practices were administered. Applying the same

reasoning here, class certification at the company-wide

level would be appropriate.

Metro-North cites other cases that are distinguishable

because the challenged practices were not centrally

administered. For example, in Wells v. General Electric Co.,

78 F.R.D. 433 (E.D. Pa. 1978), a lone plaintiff sought to

‘represent all African-American management employees

at all 2,500 facilities of this international company. See also

Brooks v. Circuit City Stores, Inc., 71 Fair Empl. Prac. Cas.

(BNA) 102 (D. Md. 1996), where plaintiffs from Maryland

sought to represent a nationwide class; De La Fuente v.

Chicago Tribune Co., No. 84 C 4596, 1985 U.S. Dist. LEXIS

17512 (N.D. Ill. July 24, 1985) (unpublished decision),

where a lone plaintiff sought to represent all non-white

employees in an old-style “across-the-board” challenge;

Williams v. New Orleans Pub. Serv., Inc., 30 Fair Empl. Prac.

Cas. (BNA) 1127 (E.D. La. 1982), where no company-wide

practices were alleged, different departments internally set

their own policies, developed and administered their own

training programs, et cetera, and some were unionized

while others were not; and Harrison v. Simon, 91 F.R.D.

423 (E.D. Pa. 1981), where the two plaintiffs offered only

their individual complaints as evidence.

In sum, the critical feature in each of the cases Metro-

North cites is the absence of a centrally-administered

policy pursuant to which employment decisions were

made.

27

B. The Second Circuit’s Ruling On Disparate

Impact Is In Accord With Rulings Of Other

Circuits.

Metro-North’s premise is that delegation to super-

visors, pursuant to company-wide policies, of the author-

ity to make subjective decisions about discipline and

promotions somehow precludes a claim that there is a

pattern or practice of racial discrimination in those dele-

gated decisions, but that premise is factually and legally

erroneous.

Factually, the subjectivity at the end of the Metro-

North chain of command is the result of a company-wide

policy of not supervising the delegees and not holding

them accountable for racial bias in their decisions. The

evidence shows, as the word “delegation” itself denotes,

that the discretionary authority exercised in promotion

and disciplinary decisions did not arise sua sponte but

was bestowed by management, and does not exist ran-

domly but dwells company-wide within every Metro-

North employee who disciplines or promotes other

Metro-North employees.

It is well established, in this Court’s words, that

disparate impact analysis “is in principle no less applica-

ble to subjective employment criteria than to objective or

standardized tests.” Watson v. Fort Worth Bank & Trust,

487 U.S. 977, 991 (1988). It is equally well established in

the class certification context that “subjectivity” is no bar

to commonality, provided there exists an overarching,

company-wide policy that addresses the individual

supervisors’ decisions. See, e.g., Falcon, 457 U.S. at 159, n.

15; Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598-99

28

(2d Cir. 1986); Barefield v. Chevron, U.S.A., Inc., 44 Fair

Empl. Prac. Cas. (BNA) 1885, 1887-89 (N.D. Cal. 1987)

(commonality found where managers made subjective

promotion decisions but were controlled by uniform cen-

tralized management organization that oversees promo-

tions); Shipes, 987 F.2d at 316; Larkin v. Pullman Standard

Div., Pitllman Inc., 854 F.2d 1549, 1555 (11th Cir. 1988). In

Shipes, the Fifth Circuit upheld the district court’s certi-

fication of a class encompassing two different plants

where: supervisors used subjective decision making;

employees were transferred between the two plants; the

plants “had the same insurance plan, retirement pro-

grams, administrative forms; and the two plants used the

same Hourly Employee Handbook.” Shipes, 987 F.2d at

316.

Metro-North relies on Anderson v. Douglas & Lomason

Co., 26 F.3d 1277 (5th Cir. 1994), cert. denied, 513 U.S. 1149

(1995). In Anderson, decided after trial on the merits, the

Circuit Court upheld the district court’s decision to apply

a disparate treatment analysis to plaintiffs’ claims and not

to apply a disparate impact analysis. However, the Cir-

cuit Court said nothing that would conflict with the Sec-

ond Circuit’s ruling here. The Fifth Circuit, like the

Second, noted that “class action plaintiffs may challenge

subjective or discretionary employment practices under

the disparate impact model, Watson, 487 U.S. at 990... .”

In another on-the-merits case, Lowe v. Commack Union Free

Sch. Dist., 886 F.2d 1364 (2d Cir. 1989), challenging hiring

under the ADEA, the court upheld the district court’s

refusal to give the jury a disparate impact charge on facts

very different from those in this case. Most significantly,

eight of the 13 people hired were over 40 years of age,

29

while a majority of those in the applicant pool were

under 40. Again, this is not in conflict with the Second

Circuit’s decision here.

Metro-North cites other cases where there was “no

showing that the challenged decisions were traceable to a

concrete practice or policy that applied to all class mem-

bers.” For example, in Stambaugh v. Kansas Dep't of Correc-

tions, 151 F.R.D. 664 (D.Kan. 1993); commonality was not

found for several reasons, including the autonomy of

each warden to make promotion decisions, a fact con-

ceded by plaintiffs who were all from one facility seeking

to represent a state-wide class covering many facilities

dispersed throughout the state of Kansas. Similarly, in

Stastny and Appleton, local autonomy was critical to the

courts’ decisions. Metro-North also cites McCree v. Sam's

Club, 159 F.R.D. 572 (M.D. Ala. 1995), where plaintiffs

offered almost no evidence; they even failed to meet the

numerosity requirement.

In sum, the cases that petitioner cites are inapposite

here because the concrete promotion and disciplinary

practices challenged by Class Plaintiffs do apply to all

class members and are uniformly administered by cen-

tralized executives at the railroad’s headquarters. (Pet.

App. A-4-6) (See discussion above.)

Il. THE PETITION IS PREMATURE AND MOOT.

As discussed above, the issues petitioner seeks to

have this Court review have not sufficiently percolated in

the Circuit Courts, as Metro-North points to decisions

from only three circuits other than the Second. Even

30

assuming, arguendo, that there were disagreement

among those four circuits, it is simply too early for this

Court to review the issues raised.

Additionally, the District Court, subsequent to the

Second Circuit decision finding that the requirements of

Rule 23(a) were satisfied, telephonically advised the par-

ties that it was denying class certification, presumably on

Rule 23(b) grounds. Thus, review by this Court at this

time would be inappropriate, as it would result, essen-

tially, in the issuance of an advisory opinion.

¢

CONCLUSION

For these reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,

ALAN L. FUCHSBERG

Counsel of Record

Mary A. (Mo ty) HUNTER

' THE JAcos D. FucHsserc LAw Firm

500 Fifth Avenue

New York, New York 10110

(212) 869-3500

and

JOHN R. QuINN

85 Fourth Avenue

New York, New York 10003

(212) 260-3948

New York, New York

April 12, 2000