Plaintffs in these two cases sued defendant Metro-North Commuter Railroad for employment discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964 and various laws of the State of New York and moved for class certification pursuant to Federal Rule of Civil Procedure 23(b)(2) and consolidation of their actions pursuant to Federal Rule of Civil Procedure 42(a). Following reassignment of the case to this Court on March 1 1997 Court convened a conference on March 12 1997 at which on defendant's consent Court granted plaintiffs' motion to consolidate see 3/12/97 Transcript at 31 and set a firm schedule to have the case trial-ready by September 1997. Subsequently after consideration of the parties' written submissions and oral arguments Court telephonically advised the parties on April 2 1997 that the motion for class certification would be denied. This memorandum will serve to confirm that latter ruling and briefly state the reasons therefor.

The 25 plaintiffs in these two actions are present or former Metro North employees who have served in seven of Metro-North's 37 departments and have held 12 of Metro-North's 220 employee slotting. One of the plaintiffs is a Pacific Asian Islander the rest African-Americans. Although most of the plaintiffs are union members one holds a non-agreement position and three others work for an employment agency that assigned them to work on Metro-North's premises. The plaintiffs allege discrimination on varying bases including individually varying incidents of racial discrimination age discrimination gender discrimination disability discrimination and religious discrimination. Additionally however both Complaints allege as a general matter that Metro-North engages in company-wide discriminatory practices against African-American employees. On the basis of these company-wide allegations plaintiffs seek to certify a class of "all African-American employees of defendant Metro-North Commuter Railroad from 1983 through 1996." This proposed class would include all such former or present African-American employees of Metro-North who are either union employees or lower- to middle-level management.

It is well established that the party seeking class certification bears the burden of showing that the requirements of numerosity commonality typicality and adequacy of representation set forth in Fed.R.Civ.P.23(a) have been satisfied and that the putative class falls within one of the three categories set forth in Rule 23(b). Achem Products Inc. v. Windsor __ U.S. __ __ 117 S. Ct.2231 2245 (1997); Comer v. Cisneros 37 F.3d 775 796 (2d Cir.1994). In this regard the allegations set forth in the complaint are accepted as true see Shelter Realty Corp. v. Allied Maintenance Corp. 574 F.2d 656 661 n. 15 (2d Cir.1978); In re NASDAO Market-Makers Antitrust Litig. 169 F.R.D. 493 501 (S.D.N.Y. 1996) but Court is required to scrutinize the pleadings and other submissions to determine whether the prerequisites of Rule 23(a) have been met. See General Tel. Co. of Southwest v. Falcon 457 U.S. 147 161 72 L. Ed. 2d 740 102 S. Ct.2364 (1982). Here Court after a careful examination not only of the pleadings but also of the voluminous submissions provided by the parties following extensive class certification discovery *fn1 concludes that the plaintiffs have failed to carry their burden with respect to both the commonality and the typicality requirements of Rule 23(a). *fn2 Accordingly their motion for certification must be denied. Krueger v. New York Tel. Co. 163 F.R.D. 433 438 (S.D.N.Y. 1995).

The commonality component of Rule 23(a) requires plaintiffs to show that there are questions of law or fact common to the aggrieved class. Comer 37 F.3d at 796; Krueger 163 F.R.D. at 439. Commonality does not require that all class members have identical claims and arguments. Trief v. Dun & Bradstreet Corp. 144 F.R.D. 193 198 (S.D.N.Y. 1992). But plaintiffs must make a more than conclusory showing that the defendant discriminated against the class members in some general fashion even if some of its employees also practiced individual discrimination. See Falcon 457 U.S. at 159 n.15; Open Housing Ctr. Inc. v. Samson Management Corp. 152 F.R.D. 472 476 (S.D.N.Y. 1993).

In the instant case plaintiffs attempt to establish commonality chiefly by reference to statistical data and sociological opinion. As to the first plaintiffs claim there are meaningful statistical disparities between the frequency with which Metro-North disciplines its African-American employees versus the frequency with which it disciplines other employees and similarly with respect to frequency of promotions. See Report of Dr. Harriet Zellner dated May 14 1996 at 3-7. But defendant has satisfied Court that the plaintiffs' statistics even taken most favorably to plaintiffs cannot carry their burden here because they fail to take account of the fact that different Metro-North positions have materially different individual rates of discipline and of promotion associated with them. See Affidavit of David Evans Ex. 1 at 7-18 (Report of Dr. David Evans dated April 15 1996). Unless these differences are taken into account plaintiffs' global statistics are meaningless. See Sheehan v. Purolator Inc. 103 F.R.D. 641 649 (E.D.N.Y. 1984) aff'd 839 F.2d 99 (2d Cir.) cert. denied 488 U.S. 891 102 L. Ed. 2d 216 109 S. Ct. 226 (1988); see also Woodbury v. New York City Transit Authority 832 F.2d 764 771 (2d Cir. 1987); Stastny v. Southern Bell Tel. & Tel. Co. 628 F.2d 267 278-79 (4th Cir. 1980). Conversely when these differences are taken into account no statistically significant racial disparities either for discipline or promotion can be established with respect to the great majority of the positions at Metro-North. See Affidavit of David Evans Ex. 1 (Report of David Evans dated April 15 1996). Thus plaintiffs' statistics are inadequate to carry their burden of establishing commonality as to the company-wide class here sought to be certified. See Wards Cove Packing Co. Inc. v. Atonia 490 U.S. 642 649-57 104 L. Ed. 2d 733 109 S. Ct. 2115 (1989); see also Watson v. Fort Worth Bank and Trust 487 U.S. 977 994 101 L. Ed. 2d 827 108 S. Ct. 2777 (1988); Coser v. Moore 739 F.2d 746 750 (2d Cir.1984).

As for the sociological opinion even if one puts aside reservations one might have as to its ultimate admissibility under the standards of Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 125 L. Ed. 2d 469 113 S. Ct.2786 (1993) it consists on its face of little more than rank conclusion and gross speculation. For example the opinion baldly premises that negative stereotypes result in African-American's being considered "inappropriate for higher level jobs" by defendant's managers. Affidavit of William T. Bielby P12; Report of William T. Bielby dated February 26 1996 at P12. Similarly the opinion simply presumes that Metro-North's personnel and disciplinary systems are inherently subjective and allow managers to materially circumvent policies that would reduce subjectivity and bias. Bielby Report P46. No meaningful weight can reasonably be attributed even at this state of the proceedings to a report so facially suspect.

These infirmities in the statistics and the sociological opinion are in no way cured by the other affidavits offered by plaintiffs in support of their motion. These six affidavits (from five plaintiffs and one other putative class member) relate on their face only to individual instances of alleged discrimination. *fn3 They hardly constitute a statistically significant number of aggrieved persons in a putative class of 1 300 employees. See Sheehan 103 F.R.D. at 649; Ross v. Nikko Securities Co. Int'l Inc. 133 F.R.D. 96 97-98 (S.D.N.Y. 1990).

Problems of proof aside there is a more fundamental problem with plaintiffs' approach to commonality in that even while seeking certification of a company-wide class they concede that defendant's standardized company-wide policies and procedures relating to discipline and promotion are (and were at all relevant times) non-discriminatory. Indeed plaintiffs state that "If those procedures were followed it might open the door to equal opportunity." Plaintiffs' Moving Brief at 15. Their claim is that discrimination enters the picture only because defendant does not strictly adhere to its own policies governing discipline and promotion but rather delegates broad authority for decision-making in promotions and discipline to its management personnel. This alleged policy of over delegation is of no moment however in the absence of any proof that it opens the door to generalized discrimination. Here as mentioned neither plaintiffs' statistics nor its sociological opinion meaningfully supports such an inference. Indeed as mentioned the statistics once analyzed in terms of individual positions suggest only that if there is any discrimination it is localized to a few positions and individuals insufficient to support a company-wide class. See Statsny 628 F.2d at 279; see also Woodbury 832 F.2d at 771; see also Bradford v. Sears Roebuck and Co. 673 F.2d 792 795-96 (5th Cir. 1982). And the sociological opinion simply assumes its conclusion rather than meaningfully establishing it.

Accordingly plaintiffs fail to establish commonality.

Plaintiffs have also failed to satisfy the typicality requirement of Rule 23(a)(3) i.e. the requirement that the claims or defenses of the representative parties be typical of the claims or defenses of the class as a whole. See Bishop v. New York City Dept. of Housing Preservation and Dev. 141 F.R.D. 229 238 (S.D.N.Y. 1992). To the extent that plaintiffs allege that their claims are typical because they arise from alleged company-wide practices and course of conduct this argument fails for the reasons set forth above. In addition most of the named plaintiffs appear to center their individual allegations on claims that on their face depart markedly from the class allegations. For example only five of the 25 plaintiffs assert a claim for discriminatory denial of promotion; *fn4 several plaintiffs admit that they have committed the infractions that gave rise to the challenged disciplinary incidents; *fn5 still others have been disciplined under plainly unique circumstances. *fn6 As previously mentioned one of the plaintiffs is not even an African-American and therefore not at all a member of the class proposed by the notice of motion. *fn7 Moreover the fact that not all named plaintiffs are union members may further preclude typicality. See Sheehan 103 F.R.D. at 650-51; Lo Re v. Chase Manhattan Bank Corp. 431 F. Supp.189 197-98 (S.D.N.Y. 1977).

Accordingly the typicality requirement is likewise not satisfied.