Three years after the suit was filed, and one year after negotiations and a possible mediated settlement fell apart, Southern District of New York Judge Lewis A. Kaplan certified the class action on the issue of liability in Latino Officers Association City of New York v. The City of New York, 99 Civ. 9568.

The decision was a victory for plaintiffs' lawyers seeking broad relief in the form of both injunctions and damages for federal and state civil rights violations. Among other remedies, the suit seeks to reinstate terminated officers and expunge disciplinary records for officers who were allegedly discriminated against.

Black police officers, who together with their Latino counterparts make up 30 percent of the Police Department's 32,547 officers, are also a part of the suit, which includes complaints by both Latino and black civilian employees as well.

The suit charges that there is a hostile work environment characterized by slurs and derogatory comments, disparate application of disciplinary rules and procedures when compared to white officers, and a pattern of retaliation against officers who complain about work environments and disparate treatment.

The officers claim that complaints by individuals were met with unwanted transfers, denial of benefits, suspensions and even physical attacks.

The city has responded to the case by insisting that the Police Department has made great strides in improving its disciplinary system and ensuring fair treatment for all of its employees, whether uniformed or civilian.

Judge Kaplan first decided that the Latino Officers Association (LOA) "plainly ha[s] standing" to prosecute at least the liability phase of the action, although he left open the question of standing should liability be found and the case proceed to the remedial phase for individual officers.

Arguing against certification, New York City alleged that the class definition offered by the plaintiff "assumes too much" because the class was poorly defined.

Kaplan disagreed.

"For example, if true, the allegation that the NYPD is a hostile work environment for African-American and Latino officers indeed would mean that every Latino and African-American employed by the NYPD has suffered or will suffer from discrimination," he said. "At the liability stage, a class that includes all Latinos and African-Americans is perfectly appropriate."

Kaplan called "not persuasive" the city's claim that class status was inappropriate because the putative class members allege they were discriminated against in different ways.

"That one plaintiff may have been transferred to an undesirable position while another perhaps was denied a transfer is of little moment," he said. "Both allegedly were injured by discriminatory acts of the NYPD. The legal theories under which class representatives seek recovery are common throughout the class."

DISTINCT GROUPS

Judge Kaplan then rejected the city's claim that the presence of distinct groups within the putative class should defeat certification. For example, the city argued, the combination of uniformed and non-uniformed personnel or the mixing of supervisors with non-supervisors, posed conflicts that affected the adequacy of representation in the lawsuit.

"Their interests at this point are aligned," Kaplan said. "If an actual conflict develops, the court is prepared to revisit this question."

And the same holds true, he said, for "the ability of plaintiffs who are members of the LOA adequately to represent those who are not."

Finally, even though plaintiffs are seeking monetary damages, certification is appropriate, he said, because "the qualitative value of the declaratory and injunctive relief they seek overwhelms these requests for damages."

Alani Golanski, Richard A. Levy, Diane Paolicelli, Pamela Jeffrey and Tarik F. Ajami of Levy Phillips & Konigsberg represent the plaintiffs, along with Robert Spergel. Assistant corporation counsel Julie O'Neill, Stuart I. Parker and Amy F. Melican represent the Police Department.