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A federal civil rights lawsuit filed by Xerox sales employees alleging that the company assigned them to unprofitable territories and failed to promote them because they are black has received class action status. Eastern District Judge John Gleeson has affirmed a report written by a magistrate judge recommending class action certification to six plaintiffs who claim Xerox discriminated against black sales workers. Judge Gleeson’s order advised the 2nd U.S. Circuit Court of Appeals not to consider Xerox’s interlocutory appeal of the class certification should it seek to file one. The ruling in Warren v. Xerox Corp., 01 CV 2909, means that all black Xerox sales employees who worked for the company in the United States from Feb. 1, 1997, to the present or to the date of a judgment are included in the class. While the decision allows the plaintiffs to go forward as a class on injunctive and declaratory claims, it requires them to proceed individually in the damages and remediation phase. Plaintiffs counsel estimates the class to include about 1,000 people who worked for the corporation selling copiers, printers and other document services. Representing the plaintiffs are Leeds Morelli & Brown, based in Carle Place, and Milberg Weiss Bershad Hynes & Lerach in New York. Nixon Peabody attorney Eugene Ulterino in Rochester represents Xerox. The lawsuit, filed in May 2001, claims that Xerox initiated a sales restructuring program in 1997 that violated federal civil rights law by systematically assigning black sales employees to inferior sales territories, often in low income or minority neighborhoods. It also claims the company refused to promote black sales people or transfer them to more lucrative territories regardless of their performance and that the company denied sales commissions to those employees who rightfully earned them. The plaintiffs also had alleged that Xerox retaliated against them for asserting their civil rights, but on that claim, Gleeson denied class action status. According to Magistrate Judge Roanne Mann’s 39-page recommendation, Xerox had argued that in 1997 it began a “decentralized and multifaceted” process for sales assignments that was not based on race and that any disparity in compensation was based on individual performance. Despite those arguments, Gleeson found that the plaintiffs, who have received right-to-sue letters from the Equal Employment Opportunity Commission, established entitlement to proceed under Federal Rules of Civil Procedure 23 as a class. Apparently persuasive to the judge and the magistrate judge was a report issued by the plaintiffs’ expert that, according to the recommendation, “reveal[ed] a statistically significant disparity between the earnings of black and white salespersons at Xerox.” Xerox had argued that the report failed to establish a nexus between the territory configurations and the alleged income disparities. But the court was not convinced that Xerox’s cited reason for the disparity, individual performance, could undermine the plaintiffs’ claims that they had common experiences to warrant class action status. “Indeed, if an assertion of inferior performance were sufficient to defeat a certification motion, few, if any, classes would ever be certified in employment discrimination cases,” Mann wrote in a footnote. Finally, Gleeson’s order said that since he had no reason to believe that his decision would terminate the case by prompting a settlement, he urged the 2nd Circuit, “to the extent my advice is useful,” not to accept an appeal by Xerox. Lenard Leeds of Leeds Morelli & Brown said that the decision “opens the door for minorities in similar positions in companies nationwide.” Ulterino, counsel for Xerox, did not return calls seeking comment.

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