PAMELA K. CHEN, District Judge:
The named Plaintiffs and members of the proposed classes ("Plaintiffs") are a group of minority individuals employed by Defendant New York City (the "City") to answer and direct public calls to the City's 911 emergency response system. (Dkt. 77 ("Am. Compl.") ¶ 12.) Plaintiffs bring this action against the City; Michael Bloomberg as Mayor of the City and Raymond Kelly as New York Police Department ("NYPD") Commissioner, both in their official capacities
Plaintiffs assert the following claims against the City Defendants: (1) violation of §§ 1981 and 1983 through a pattern of discriminatory policies and practices principally relating to mandatory overtime and leave usage; (2) violation of the Family and Medical Leave Act ("FMLA") through interference with, and retaliation for,
Three motions are currently pending before the Court. The City Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6) for failure to state a cause of action. (Dkt. 91.) DC 37 moves to dismiss Plaintiffs' Section 1981 claim for failure to state a claim of racial discrimination. (Dkt. 89.)
The following facts are taken from the Amended Complaint and exhibits, and are taken as true and construed favorably to Plaintiffs, for purposes of deciding the motions to dismiss.
Plaintiffs are employed in the NYPD Communications Section as Police Communications Technicians ("PCTs") and Supervisor Police Communication Technicians ("SPCTs," collectively, "911 Operators"). (Am. Compl. ¶¶ 12-13.)
As of the date of the Amended Complaint, the City employed 1,200 PCTs and 91 SPCTs in the NYPD Communications Section as part of the City's overall emergency call and response system, which consisted of a total of approximately 1,800 dispatchers. (Id. ¶¶ 14, 17.) Other dispatcher units existed within the City's Fire Department ("FDNY"), Department of Sanitation ("DOS"), and Office of Emergency Medical Services ("EMS"). (Id. ¶¶ 258-59.) The City stationed most of the City's dispatchers, including the 911 Operators, at the Public Safety Answering Center ("PSAC") at 11 MetroTech Brooklyn. (Id. ¶¶ 15,262-64.) Some 911 Operators were stationed at One Police Plaza. (Id. ¶ 17.)
Over 95% of 911 Operators are minorities. (Id. ¶ 257.) Seven of the eight
Plaintiffs name several individual Defendants, all of whom are white males. (Id. ¶¶ 56, 59, 63, 66, 70, 73, 76, 79, 82.) Plaintiffs are pursuing official capacity claims against the Mayor as the chief policy-making official and the NYPD Commissioner as the official responsible for developing and implementing policies of the NYPD, and for training and supervising NYPD employees. (Id. ¶¶ 56-57, 60-62.) According to the Amended Complaint, the City's Executive branch and Deputy Mayors, the Mayor's Office of Operations, and the Office of Citywide Emergency Communications "centrally determine and oversee all major and strategic emergency communications policy and implementation for the City[.]" (Id. ¶ 14.)
Plaintiffs also name several individual Defendants in the NYPD Communications Section in their official and personal capacities. At all times relevant to this action, Napolitano was the Inspector and Deputy Inspector in charge of the section, and Dowd was a section Chief. (Id. ¶¶ 63, 66.) Plaintiffs allege that Naplitano and Dowd were responsible for developing, implementing, and enforcing employment policies within the NYPD Communications Section. (Id. ¶¶ 64, 67.) Kelly was a PPCT and section Platoon Commander who directly supervised other PPCTs. (Id. ¶¶ 20-21, 76.) Polito, Belusic, and Church were section Captains who supervised PPCTs. (Id. ¶¶ 20-21, 70, 73, 79.) Plaintiffs allege that Dowd, Polito, Belusic, Kelly, and Church were responsible for developing and implementing personnel policies, and for imposing and enforcing disciplinary measures against 911 Operators. (Id. ¶¶ 68, 71, 77, 80.)
The Amended Complaint additionally names Lichtenstein in his official and personal capacity. At all relevant times, Lichtenstein was a Deputy Chief Surgeon in the Medical Division of the NYPD. (Id. ¶ 82.) Plaintiffs assert that Lichtenstein was responsible for conducting examinations to determine if 911 Operators who sought reasonable accommodations for disabilities were medically fit for duty under New York Civil Service Law § 72 ("§ 72"). (Am. Compl. ¶ 83.)
Defendant DC 37 is a labor organization that represents municipal employees, including 911 Operators, and serves as the bargaining representative for these employees with the City. (Id. ¶¶ 86-88.)
Plaintiffs recite a litany of policies and practices that the City Defendants imposed on the 911 Operators as part of the alleged pattern of racial discrimination and hostility toward the group. These policies and practices, Plaintiffs maintain, were not imposed on the predominantly non-minority dispatcher units of the FDNY, DOS, or EMS. (Id. ¶¶ 258-59, 264-65, 267.) Plaintiffs allege that FDNY and EMS dispatchers serve the same function as 911 Operators, in that they also answer emergency calls, provide intake of caller information, and dispatch emergency response units, and that 911 Operators often work in tandem with these other dispatchers in response to emergencies, sometimes jointly handling calls. (Id. ¶¶ 259-61.) According to Plaintiffs, most 911 Operators and FDNY dispatchers work on the same floor of the
The Amended Complaint alleges that the City Defendants instituted several policies starting in May 2013 that overworked 911 Operators without regard for their health and safety. 911 Operators were required to work several double-shifts of undefined lengths, often consecutively, without meal or rest breaks. (Id. ¶¶ 111, 211-14.) Specifically, between May and July 2013, the NYPD mandated that 911 Operators work double-shifts of eight hours each, three times a week. (Id. ¶ 103.) Seven of the named Plaintiffs worked 16-hour tours three times a week in accordance with this policy. (Id. ¶ 106.) Since May 29, 2013, the NYPD has maintained a practice of relieving 911 Operators at 2:00 a.m. after a mandatory double-shift and requiring them to return for their next shift the same day at 8:00 a.m. (Id. ¶ 104.) On multiple occasions, seven of the named Plaintiffs were relieved from a double-shift only to be required to return hours later. (Id. ¶ 105.) Since July 2013, the NYPD required 911 Operators to work two 12-hour tours weekly "as a minimum amount of overtime" until relieved from duty. (Id. ¶ 103.)
911 Operators who refused, or did not complete, mandatory overtime were subjected to discipline. On or about July 7, 2013, Church threatened to dock three vacation days from a group of 911 Operators, including Pate, if they did not work a fifth consecutive 16-hour shift. (Id. ¶¶ 143-46.) PCTs assigned to work day shifts were switched to midnight shifts because they failed, or refused, to complete mandatory overtime. (Id. ¶ 137.) In addition, 911 Operators, including seven of the named Plaintiffs, were required to continue answering and dispatching calls during meal breaks. (Id. ¶¶ 115-16, 214.) Plaintiffs assert that these policies were driven by discriminatory animus toward the 911 Operators and as punishment for their use of sick and FMLA leave. (Id. ¶¶ 107-08, 113.)
The NYPD has a long-standing history, since around 1999, of restricting sick leave for 911 Operators. (Id. ¶ 121.) Pursuant to the CBA, 911 Operators accrued one day of sick leave each month (12 days annually), and were permitted to use three days of their sick leave balances to care for ill family members. (Id. ¶ 120, see id. Exs. A(CBA) at 11-12, C ("Arbitration Decision") at 2, 4.) In or around May 2006, DC 37 filed a grievance with the Board of Collective Bargaining (the "Board") against the City and NYPD on behalf of Hill and another individual for unilaterally changing procedures regarding the required documentation to use leave. (Am. Compl. ¶ 122.) The Board found that the
Plaintiffs allege that notwithstanding the Arbitration Decision, the City Defendants have "frequently and arbitrarily" cancelled sick leave since 2012. (Am. Compl. ¶ 107.) In May 2013, the City Defendants began suspending sick leave "on a regular basis" for 911 Operators. (Id. ¶¶ 108-09, 129-30.) Between May and August 2013, sick leave was "consistently cancelled" every Wednesday and reinstated the following Monday. (Id. ¶ 131.) The City Defendants also canceled sick leave for ten consecutive days from June 26, 2013 to July 4, 2013. (Id. ¶ 132.) Plaintiffs allege that DC 37 was aware of the City Defendants' recurrent cancellations of sick leave, but did not act meaningfully to protect the 911 Operators. (Id. ¶¶ 149, 240-51.)
Plaintiffs also allege that the City Defendants maintained a pattern of intimidation and retaliation with respect to the 911 Operators' use and attempted use of sick leave. (Id. ¶¶ 107-09.) 911 Operators who requested sick leave during a period of blanket sick leave cancellation were noted as "attempted sick." (Id. ¶ 134.) 911 Operators who attempted to use, or appeal the denial of, sick leave requests were threatened with discipline and received unfavorable evaluations, including comments that the operator was "not a team player." (Id. ¶¶ 138-140.) Additionally, 911 Operators who used sick leave at a time they were scheduled to work mandatory overtime were marked absent without leave ("AWOL"). (Id. ¶ 133.) City Defendants also threatened to change tours and squads of operators who took sick leave, and changed operators' day tours to midnight tours in response to sick leave use. (Id. ¶ 137.)
In June 2006, a class of 911 Operators, with Hill as one of the named representatives, brought a federal action against Defendants the City, Mayor, and NYPD Commissioner to challenge policies that interfered with the plaintiffs' FMLA rights, and retaliated against employees who sought to exercise their FMLA rights. (Id. ¶¶ 156-57, Ex. B-1 (Stip. of Settlement filed in Rodriguez v. New York City, 04 CV 3049 ("Rodriguez Settlement")).) On December 19, 2009, the district court approved the parties' settlement, pursuant to which the NYPD agreed, inter alia, (1) not to cancel or delay FMLA leave for 911 Operators, (2) to exclude consideration of approved FMLA absences from performance evaluations, and (3) to allow 911 Operators to use FMLA leave during mandatory overtime hours. (Am. Compl. ¶¶ 117, 158-59, Ex. B-2; Rodriguez Settlement ¶ 5.) Plaintiffs assert in this case that the City Defendants have since failed to comply with the Rodriguez Settlement, as well as their general obligations under the FMLA. (Am. Compl. ¶ 160.)
Plaintiffs allege that the City Defendants have followed a punitive approach with respect to Plaintiffs' exercise of their FMLA rights, and that no other City dispatcher unit has been subject to the same FMLA policies. (Id. ¶¶ 108, 110, 160-62, 197.) On March 23, 2013, Napolitano required 911 Operators to direct all FMLA leave requests to the NYPD Disciplinary Unit's dedicated FMLA number, rather than the Platoon Commander's Office, as
In April 2013, Belusic circulated a list of 911 Operators whose ability to work voluntary overtime was revoked due to having a "high absentee rate," regardless of whether the operator were absent due to qualified FMLA leave. (Id. ¶ 164.) Belusic also announced that the Disciplinary Unit would only accept requests for emergent FMLA leave if made within 30 minutes of the start of the shift for which the operator was requesting leave. Leave requests made before the 30-minute window were either not accepted, with the operator being told to call back, or denied. (Id. ¶ 165.) On several occasions, Ennis attempted to request FMLA leave hours before beginning her shift and was told to call back to receive approval. (Id. ¶¶ 171-72.) The Amended Complaint provides details of three other proposed class members who had similar experiences. (Id. ¶¶ 167-70.)
Beginning July 27, 2013, Kelly instituted a policy to compile and review lists of 911 Operators who missed a mandatory overtime shift because of sick or FMLA leave, so that they could "make up" the missed overtime upon returning from leave. (Id. ¶¶ 147-48, 174.) These operators were given a written order to work overtime the following day regardless of whether their squad was scheduled for overtime, and regardless of whether the "make up" shift fell on the operator's regular day off. (Id. ¶¶ 148, 174.) An operator's failure to comply with this requirement resulted in disciplinary charges. (Id. ¶ 174.) On various occasions between May and the fall of 2013, Ennis was required to work a missed overtime shift immediately after she had returned from FMLA leave. (Id. ¶¶ 175-76.) The Amended Complaint also specifies another instance, on July 27, 2013, when a proposed class member was ordered to perform mandatory overtime the day she returned from FMLA leave. (Id. ¶ 177.)
Plaintiffs also allege that the City Defendants intentionally miscalculated the number of FMLA hours used by 911 Operators to more quickly deplete the number of available FMLA hours, thus forcing 911 Operators to "take unpaid sick leave instead of using FMLA leave." (Id. ¶¶ 178-79.) On various occasions, Ennis requested and used a few hours of FMLA leave, but was told that a full seven-hour day was deducted from her FMLA hours. (Id. ¶¶ 185-88.) The Amended Complaint also details a similar experience of one proposed class member. (Id. ¶¶ 181-84.) Additionally, Plaintiffs allege that the City Defendants had a practice of miscalculating hours worked by an Operator to qualify for FMLA leave. (Id. ¶¶ 202-03.) The City and NYPD delayed FMLA certification approval by up to four months, and required excessive and repeated medical documentation. (Id. ¶¶ 189, 204-07.) The Amended Complaint includes examples of two proposed class members who experienced such delays. (Id. ¶¶ 190-92.) Plaintiffs also claim that the City Defendants investigated FMLA use without a good faith basis, including interrogating 911 Operators and calling physicians for medical information. (Id. ¶¶ 198-201.)
Plaintiffs allege that the City Defendants discouraged and retaliated against 911 Operators who requested to limit their hours as a reasonable accommodation under
Plaintiffs allege that the City Defendants misused its sign-out policy to keep 911 Operators at work without compensation. After clocking out from a shift, 911 Operators were forced to wait to sign out with a supervisor. Plaintiffs assert that supervisors were instructed to withhold sign-out sheets to impede 911 Operators' ability to leave. (Id. ¶¶ 114, 151, 153-54.) The time spent waiting to sign out was not compensated, and 911 Operators who did not sign out faced disciplinary action. (Id. ¶¶ 114, 150, 152.) DC 37 did not grieve this issue. (Id. ¶ 155.)
According to Plaintiffs, the City Defendants subjected 911 Operators to disciplinary policies that were not imposed on non-minority groups in the NYPD, such as PAAs. (Id. ¶¶ 229-39.) Beginning in 2011, any complaint against a 911 Operator initiated by a source outside the NYPD Communications Section was automatically considered substantiated. (Id. ¶ 232.) The NYPD also had a practice of permitting Communication Section captains who report violations by 911 Operators to also adjudicate those same claimed violations. (Id. ¶ 235.) Minority 911 Operators received a disproportionately high number of Command Disciplines ("CDs") for minor infractions. (Id. ¶¶ 233-34.) These CDs were treated as substantiated and used as a basis to deny seniority and to reject requests for more favorable work schedules. (Id. ¶ 233.) Further, Plaintiffs allege that the NYPD disciplined 911 Operators under a NYPD Patrol Guide that was not provided to them, sent detectives to 911 Operators' homes to investigate alleged infractions, and instituted disciplinary actions shortly before the expiration of the statute of limitations. (Id. ¶¶ 235-38.)
The Amended Complaint alleges that certain remarks by Polito suggest racial animus. In June 2013, after observing that only a few operators reported for duty, Polito commented "Don't they know they are hiring at Pathmark?" (Id. ¶ 141.) On or about July 4, 2013, Hill heard Polito remark, "you people are useless", referring to the 911 Operators. (Id. ¶ 142.)
Finally, Plaintiffs allege that the City Defendants undertook some of the above-described policies in retaliation for Plaintiffs' public complaints about their work conditions. Since May 2013, members of the class have repeatedly and publicly complained about the effect of their working conditions on public safety in rallies and other public forums, which has resulted
Defendants bring their motions to dismiss pursuant to FRCP 12(b)(6) for failure to state a claim. To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead facts sufficient "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In evaluating a Rule 12(b)(6) motion, a district court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.2014); Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir.2006). A complaint that "tenders `naked assertion[s]' devoid of `further factual enhancement'" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint should be dismissed where a plaintiff has not "nudged [its] claims across the line from conceivable to plausible[.]" Id. at 570, 127 S.Ct. 1955.
Plaintiffs first, second, and third causes of action allege that the City Defendants subjected the predominantly minority unit of 911 Operators to a pattern or practice of discriminatory treatment based on race in violation of §§ 1981 and 1983, NYSHRL, and NYCHRL. (Am. Compl. ¶¶ 257, 267, 276-87; see Dkt. 94 at 7.)
Section 1981 prohibits discrimination with respect to the enjoyment of
Section 1983 permits an action against a "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Here, the deprivation alleged is one of racial discrimination in violation of federal law under § 1981. Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred," such as those conferred by § 1981. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Hence, when the defendant sued for discrimination in violation of § 1981 is a municipality or individual sued in his official capacity, § 1983 supplies the exclusive remedy for violations of rights guaranteed under § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-34, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Bermudez v. City of New York, 783 F.Supp.2d 560, 576 (S.D.N.Y.2011).
Because Plaintiffs have brought their § 1981 claim under § 1983, they must show that the challenged acts were performed pursuant to a municipal policy or custom in order to hold liable the City or individual Defendants in their official capacity. See Patterson, 375 F.3d at 226-227 (citing Jett, 491 U.S. at 733-36, 109 S.Ct. 2702; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)) (internal citations omitted)). To show a policy, custom, or practice, a plaintiff need not identify an express rule or regulation. See, e.g., Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir.1992). It is sufficient to show, for example, that a discriminatory practice of municipal officials was so "persistent or widespread" as to constitute "a custom or usage with the force of law," id. at 870-71 (internal quotation marks omitted), or that a discriminatory practice of subordinate employees was "so manifest as to imply the constructive acquiescence of senior policy-making officials," id. at 871. A policy, custom, or practice may also be inferred where "the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (internal quotation marks omitted). Liability of a municipal defendant or an individual sued in his official capacity under § 1981 and § 1983 cannot be premised on a theory of respondeat superior. See, e.g., Jett, 491 U.S. at 733-36, 109 S.Ct. 2702.
The NYSHRL makes it unlawful for an "employer" to "discharge from employment" or "discriminate against [an] individual in compensation or in terms ... of employment" on the basis of, among other things, an individual's "age, race, creed, color, national origin, sexual orientation, military status, sex, [or] disability[.]"
Disparate treatment claims in the context of an employment discrimination case may be shown individually or by a pattern or practice suit brought by a "group of plaintiffs, entitled to be certified as a class[.]" United States v. City of New York, 717 F.3d 72, 83 (2d Cir.2013); see Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 150 (2d Cir.2012) (pattern or practice framework is unavailable to nonclass plaintiffs). "Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals." Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.2001); see City of New York, 717 F.3d at 83; Henderson v. City of New York, 818 F.Supp.2d 573, 578 (E.D.N.Y.2011). Whereas an individual claim requires intent to discriminate against one person, a pattern or practice claim requires a showing that (1) the alleged racial discrimination amounted to more than sporadic acts of discrimination, but rather the defendant's "standard operating procedure" or the "regular rather than the unusual practice," and (2) the discrimination was directed at a class of victims. City of New York, 717 F.3d at 83 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).
Employment discrimination claims under §§ 1981 and 1983, NYSHRL, and NYCHRL are governed by the same liability standard and analytical framework as Title VII disparate treatment claims. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (§ 1981); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000) (§ 1981); Torres v. Pisano, 116 F.3d 625, 629 (2d Cir.1997) (NYSHRL); Ortega v. New York City Off-Track Betting Corp., 97 CV 7582, 1999 WL 342353, at *3 n. 2 (S.D.N.Y. May 24, 1999) (NYSHRL and NYCHRL).
Once plaintiffs make their initial showing, the burden of production shifts to the employer "to rebut the presumption of discrimination." Texas Dep't of Comm. Aff. v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A defendant may attempt to do so by, for instance, "demonstrating that the [plaintiffs'] `proof is either inaccurate or insignificant,'" or offering affirmative evidence demonstrating the absence of an intent to discriminate. City of New York, 717 F.3d at 85-87 (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843); Robinson, 267 F.3d at 159.
If the defendant rebuts the presumption of discrimination, the trier of fact then must determine if the plaintiffs have proven "the ultimate fact" of whether the employer has "a policy of intentional discrimination." City of New York, 717 F.3d at 87. Pattern or practice discrimination claims generally are proven through evidence of a concrete policy and/or statistical evidence, along with anecdotal evidence of specific instances of discrimination. Robinson, 267 F.3d at 158-59, E.E.O.C. v. Bloomberg, 778 F.Supp.2d 458, 469 (S.D.N.Y.2011); Krish v. Connecticut Ear, Nose & Throat, Sinus & Allergy Specialists, P.C., 607 F.Supp.2d 324, 331 (D.Conn.2009); see Teamsters, 431 U.S. at 337-43, 97 S.Ct. 1843 (upholding finding that a pattern or practice of employment discrimination existed where plaintiffs offered statistical evidence buttressed by oral testimony of 40 specific instances of discrimination).
If a plaintiff succeeds in proving liability, the case then proceeds to a remedial phase, at which the court may fashion class-wide injunctive relief. Robinson, 267 F.3d at 158-59. In addition, at this stage, individual plaintiffs are entitled to a rebuttable presumption of discrimination in litigating a particular adverse employment decision rendered by the defendant during the class period to obtain individual relief. Id. at 159; Bloomberg, 778 F.Supp.2d at 468-69.
On a motion to dismiss, courts generally treat the elements of a prima facie case as "an outline of what is necessary
The gravamen of Plaintiffs' racial discrimination claim is that the City Defendants, motivated by racial animus and hostility toward the predominantly minority 911 Operator work force, maintained a pattern or practice of understaffing, allocating insufficient resources to the 911 call center, and declaring fictitious staffing emergencies, to the detriment of the health and safety of 911 Operators. (See, e.g., Am. Compl. ¶ 267; Dkt. 94 at 7-8.) The City Defendants contend that Plaintiffs' pattern or practice discrimination claim must be dismissed because the allegations are insufficient to raise an inference that the complained-of policies were motivated by race. (Dkt. 93 at 3-4, 6-8). At this early stage in the litigation, the Court cannot agree.
Initially, the Court finds that Plaintiffs' allegations in the Amended Complaint provide fair notice of Plaintiffs' pattern or practice disparate treatment claim and the grounds on which it rests. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir.2008). Plaintiffs allege an overarching pattern of intentional over-work, under-staffing, and punitive measures against 911 Operators, motivated by racial animus, that is detrimental to their health and safety. (Am. Compl. ¶¶ 210-14, 265-67.) The Amended Complaint contains allegations that this discriminatory pattern is manifested by the following practices: (1) requiring 911 Operators to work consecutive double-shifts and overtime shifts, (2) cancelling sick leave and retaliating for taking sick leave, (3) interfering with, and retaliating for, the use of FMLA leave, (4) subjecting 911 Operators who seek to limit their overtime as a reasonable accommodation to sham § 72 medical examinations before declaring them unfit for duty and placing them on unpaid leave, (5) requiring 911 Operators to work during meal breaks, and (7) imposing disciplinary measures on 911 Operators that were not imposed on other NYPD employees. (Id. ¶¶ 107-08, 210-14, 265-67; see Dkt. 94 at 7.) Of course, not every complaint that alleges instances of discrimination necessarily states a pattern or practice claim. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("If one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action."). Plaintiffs must plausibly allege that the discriminatory incidents were more than isolated or sporadic, but are repeated, routine, or of a generalized nature. Ste. Marie v. E. R.R. Ass'n, 650 F.2d 395, 405 (2d Cir.1981). "[T]he definition of a pattern or practice is not capable of a precise mathematical formulation," although "more than two acts will ordinarily be required." Id. at 406 (reviewing verdict after trial) (citations omitted). A small number of confirmatory acts
Here, the Amended Complaint alleges facts regarding both the City Defendants' formal announcement of the challenged policies and specific instances of these policies being enforced against Plaintiffs. For example, Plaintiffs assert that seven of the named Plaintiffs were required to work double eight-hour shifts three times a week and a minimum of two 12-hour overtime shifts each week since around May 2013. (Am. Compl. ¶ 106.) Plaintiffs specifically allege that Pate was required to work five consecutive 16-hour shifts. (Id. ¶ 146.) Plaintiffs also specify time periods in which sick leave was suspended for all 911 Operators. (Id. ¶¶ 131-32.) The Amended Complaint also includes allegations that Belusic announced a policy limiting the time to request FMLA leave, and that Ennis and three other putative class members were not permitted to request FMLA leave as a result of that policy. (Id. ¶¶ 165, 167-72.) Plaintiffs include specific allegations that Ennis and one other putative class member were required to perform mandatory overtime immediately upon returning from FMLA leave. (Id. ¶¶ 175, 177.) In addition, Plaintiffs allege that Gordon, Ennis, and Inman requested reasonable accommodations to limit their overtime hours, but that their requests were denied after sham § 72 medical examinations. (Id. ¶¶ 22-26.) The Court finds that, taken as a whole and viewed in the light most favorable to Plaintiffs, these allegations are sufficient to support an inference that the claimed overall discriminatory policy with respect to funding, structuring, and managing the 911 Operators was the City Defendants' "standard operating procedure". See U.S. v. E. River Hous. Corp., 90 F.Supp.3d 118, 156 (S.D.N.Y.2015); Barrett, 39 F.Supp.3d at 430.
The City Defendants' contention that Plaintiffs fail to state a discrimination claim because they have not demonstrated an adverse employment action misapprehends the nature of Plaintiffs' pattern or practice claims. (See Dkts. 92 at 12-15; 93 at 6-8.) Because analysis of pattern or practice claims at the initial liability phase focuses on whether plaintiffs have sufficiently alleged class-wide discriminatory policies, rather than allegations of individual discrimination, Plaintiffs need not show an adverse action as to particular employees to survive dismissal at this stage. City of New York, 717 F.3d at 84 ("instances of discrimination against particular employees ... are not required"). The existence of an adverse employment action becomes relevant at the remedial stage of the litigation. That is, if Plaintiffs succeed in showing that the City Defendants maintained a discriminatory pattern or practice, individual adverse employment decisions will be litigated at the remedial phase. Robinson, 267 F.3d at 158-59; Bloomberg, 778 F.Supp.2d at 468. In that regard, the Court observes that, at a minimum, the alleged blanket cancellation of sick leave is likely to satisfy the adverse action requirement. Cotterell v. Gilmore, 64 F.Supp.3d 406, 429 (E.D.N.Y.2014) (fact that plaintiff was prevented from using his sick leave "may constitute an `adverse employment action'"); Krishnapillai v. Donahoe, 09 CV 1022, 2013 WL 5423724, at *13 (E.D.N.Y. Sept. 26, 2013) ("[G]iven the significant effects of denying an employee the use of paid sick time or administrative leave during a medical absence, the court finds that this is sufficient to establish an adverse employment action."); Delaney v. LaHood, 07CV 471, 2009 WL 3199687 at *20-22 (E.D.N.Y. Sept. 30, 2009) (denial of
The Court also finds that, contrary to Defendants' assertions, Plaintiffs' factual allegations are sufficient to "give plausible support to a minimal inference of discriminatory motivation" to survive a motion to dismiss. Littlejohn, 795 F.3d at 312. While a plaintiff must ultimately prove that a defendant acted with discriminatory intent, at the initial stage of the litigation, "the plaintiff does not need substantial evidence" of such discriminatory intent. Id. at 311. Plaintiffs need only "sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation[.]" Id. (emphasis in original); see Tolbert v. Smith, 790 F.3d 427, 438 (2d Cir.2015) (noting that direct "smoking gun" evidence of discriminatory motive is often lacking) (internal citations omitted); Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 245 (S.D.N.Y.2014) ("A victim of discrimination is ... seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence."). Statistical disparities, though an important way of proving pattern or practice claims and often necessary to survive to survive summary judgment, need not be pled in the complaint to survive a motion to dismiss, "if a complaint pleads other facts that allow the court to infer a pattern of discrimination." Barrett, 39 F.Supp.3d at 430-32 (citing cases and noting that "in most cases, plaintiffs will be unable to provide reliable statistics before they have access to discovery"); see E. River Hous. Corp., 90 F.Supp.3d at 159 (statistical analysis was likely not possible, and "not essential" at the motion to dismiss stage).
Here, Plaintiffs plausibly raise the requisite inference of discriminatory animus based on allegations that predominantly non-minority groups, such as the FDNY, DOS and EMS dispatchers, were not subject to the same discriminatory policies as the 911 Operators, and allegations about disparaging remarks made by Polito with respect to the 911 Operators. In the absence of direct evidence of discrimination, plaintiffs may present circumstantial evidence showing that they were treated less favorably than similarly situated colleagues outside of the plaintiffs' protected class. See Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir.2014); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). The proposed comparator group must be "similarly situated in all material respects" to the plaintiffs. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997). "An employee is similarly situated to co-employees if they were (1) `subject to the same performance evaluation and discipline standards' and (2) engaged in comparable conduct.'" Ruiz, 609 F.3d at 493-94 (citing Graham, 230 F.3d at 40). The plaintiffs' and comparator groups' circumstances must bear a "reasonably close resemblance," but need not be "identical." Graham, 230 F.3d at 40. Ordinarily, whether employees are similarly situated "presents a question of fact rather than a legal question to be resolved on a motion to dismiss." Brown, 756 F.3d at 230.
Plaintiffs' claim is perhaps an atypical discrimination claim, in that it does not rely on a comparator group of "co-employees," i.e., non-minority 911 Operators. Plaintiffs do not allege that non-minority 911 Operators received favorable treatment compared to minority 911 Operators. Rather, Plaintiffs allege that the City Defendants' discriminatory intent is demonstrated by their imposition of policies and practices on the 95%-minority 911 Operators unit that were not imposed on the City's predominantly non-minority dispatcher
Plaintiffs also contend that the City Defendants' racial animus is demonstrated by two statements allegedly made by Polito, the NYPD Communications Section captain responsible for developing and implementing the section's personnel policies, with respect to the 911 Operators: first, "you people are useless," and second, "Don't they know they are hiring at Pathmark?", suggesting that the minority 911 Operators should be working in a low-wage job at a grocery store. (Id. ¶¶ 141-42.) A plaintiff may demonstrate an inference of discrimination by showing that an "employer criticized the plaintiff's performance in ethnically degrading terms" or "made invidious comments about others in the employee's protected group." Whethers v. Nassau Health Care Corp., 956 F.Supp.2d 364, 379 (E.D.N.Y.2013). "The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class." Tomassi v. Insignia
As the City Defendants correctly point out (Dkt. 92 at 19), "racially [] ambiguous, sporadic remarks" are not, without more, sufficient "evidence of race discrimination," Big Apple Tire, Inc. v. Telesector Res. Grp., Inc., 476 F.Supp.2d 314, 327 (S.D.N.Y.2007), especially when "there is insufficient evidence ... that the question was laced with racial innuendo as opposed to" a neutral, commonplace effort to identify the group being addressed, Feacher v. Intercontinental Hotels Grp., 563 F.Supp.2d 389, 404 (N.D.N.Y.2008). However, phrases such as "`you people'... `could just as easily be interpreted as [having] a negative racial connotation[,]" Wooten v. Reconstruction Home, Inc., 02 CV 01278, 2005 WL 1502149, at *11 (N.D.N.Y. June 24, 2005), particularly when Plaintiffs "provide `greater specificity as to the context of [such phrases'] usage,'" Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 253 (S.D.N.Y.2014) (quoting Griffin v. Ambika Corp., 103 F.Supp.2d 297, 314 (S.D.N.Y.2000)). See also Winston v. Verizon Servs. Corp., 633 F.Supp.2d 42, 53 (S.D.N.Y.2009) (in the context of a summary judgment motion, finding that statements such as, "you people cannot do anything right", permit a reasonable jury to find discriminatory motivation); Wooten, 2005 WL 1502149, at *11 (concluding that use of "you people," combined with evidence of discriminatory treatment that began only after the defendant discovered that the plaintiff was African-American, could provide a partial basis for drawing an inference of discrimination).
Plaintiffs argue that Defendants Polito's additional statement, "Don't they know they are hiring at Pathmark?", provides such context. The Court agrees that this comment could be interpreted to convey the view that the minority 911 Operators don't belong in the NYPD Communications Section, and thus lends more support to the racially hostile character of Polito's other "you people" remark. See Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 253 (2d Cir.2014) (noting at summary judgment that a jury could find that comments regarding a "better fit" or "fitting in," even when isolated, could be enough to create a reasonable question of fact for a jury with respect to discriminatory intent). While Polito's remarks may be susceptible to a plausible innocuous interpretation, the allegation of racial animus is equally plausible. On a Rule 12(b)(6) motion, it is not the province of the Court to dismiss the Amended Complaint on the basis of the Court's choice among plausible alternatives. See Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 190 (2d Cir.2012) (choosing between or among plausible interpretations of the evidence is a task for the factfinder); see also Kirkland v. Cablevision Sys., 760 F.3d 223, 226 (2d Cir.2014) (whether statements such as, "they don't know how to police each other", is probative of discriminatory intent is left for the jury to decide at trial).
Accordingly, the Court finds that based on their allegations regarding the FDNY and EMS comparators and Polito's statements, Plaintiffs have met their minimal burden, particularly at this stage, to allege an inference of discriminatory intent. See Boykin, 521 F.3d at 215 (denying motion to dismiss where plaintiff alleged that she was African-American, described defendant's actions, and alleges that she "was treated differently from similarly situated loan applicants ... because of her race, sex, and the location of the property in a
Having thus concluded that Plaintiffs have plausibly alleged a violation of their federal rights under § 1981, the Court rejects the City Defendants' contention that Plaintiffs have failed to allege an underlying federal violation as required by Monell. (See Dkts. 92 at 34; 93 at 22). Under Monell, "a municipality can be held liable under Section 1983 if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.2012); see Jett, 491 U.S. at 702, 109 S.Ct. 2702 (a plaintiff "must show that the violation of his § 1981 [rights] was caused by a custom or policy within the meaning of Monell and subsequent cases"). Moreover, as discussed above, the Plaintiffs' Amended Complaint alleges sufficient facts to raise an inference that the underlying federal injury of racial discrimination is pursuant to a municipal policy or custom. Accordingly, the Court finds that Plaintiffs have adequately alleged a deprivation of a federal right that satisfies the § 1983 Monell standard.
In sum, Plaintiffs have pled sufficient facts to state a plausible pattern or practice claim of racial discrimination under §§ 1981 and 1983, NYSHRL, and NYCHRL against the City and individual Defendants in their official capacity. The motion to dismiss these aspects of Plaintiffs' Amended Complaint is accordingly denied.
It is well-established that personal liability under §§ 1981 and 1983 must be predicated on the actor's personal involvement in the claimed violation and discriminatory purpose. Patterson, 375 F.3d at 229 ("a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action"). In Reynolds v. Barrett, 685 F.3d 193 (2d Cir. 2012), the Second Circuit refused to analyze a plaintiff's § 1983 Equal Protection claim against individual state defendants under the pattern or practice evidentiary framework, since holding individuals liable based on broad evidence of employer-wide discrimination would contravene the requirement of personal involvement. Id. at 204-05 (noting that pattern or practice framework relies on evidence of employer-wide discrimination, and is therefore "is ill-suited to the task of identifying which individual defendants engaged in purposeful discrimination"). Notably, the Court declined to decide whether the pattern or practice framework can ever be used in a § 1983 suit against a "policy-making supervisory defendant, although it expressed "considerable skepticism" on this issue." Id. at 205 n. 14.
Relying on Reynolds, the City Defendants seek to dismiss Plaintiffs' §§ 1981 and 1983 personal capacity claims against the individual defendants, contending that the pattern or practice framework may never be applied to analyze discrimination claims against individuals. (Dkt. 93 at 5.) The facts presented here, however, differ markedly from those in Reynolds. Rather than relying solely on allegations of entity-level discrimination, Plaintiffs assert facts that suggest personal involvement by each of the individual defendants sued in their personal capacity. As the City Defendants acknowledge, the Amended Complaint includes allegations about derogatory remarks made by Polito, threats of disciplinary action by Church, and correspondence or memoranda circulated by Belusic, Napolitano, and Kelly
In sum, these allegations provide the individual Defendants with fair notice of the basis for Plaintiffs' personal capacity claims against them. The Court accordingly denies the City Defendants' motion to dismiss Plaintiffs' §§ 1981 and 1983 claims against the individual Defendants in their personal capacities.
Plaintiffs' tenth cause of action alleges that DC 37 violated § 1981 by subjecting Plaintiffs to differential terms and conditions of representation because of race, and by tacitly approving of the NYPD's discriminatory policies. (Am. Compl. ¶¶ 118-19, 305-09.) DC 37 moves to dismiss Plaintiffs' discrimination claim on the ground that the Amended Complaint lacks allegations to support an inference that DC 37's conduct was motivated by racial animus.
Employment discrimination claims against unions are analyzed differently from claims against employers, in that claims against unions are grounded in the union's duty of fair representation to its members. Klaper v. Cypress Hills Cemetery, 10 CV 1811, 2012 WL 959403, at *7 (E.D.N.Y. Mar. 21, 2012). To prevail on a disparate treatment discrimination claim against DC 37 under § 1981, Plaintiffs must establish that: 1) DC 37 breached its duty of fair representation, and 2) DC 37's actions were motivated by discriminatory animus. Id.; see Vaughn v. Am. Tel. & Tel. Co., 92 Fed.Appx. 21, 23 (2d Cir.2004). At the pleading stage, Plaintiffs' allegations must at least suggest discriminatory intent. Durant v. Union Local 237, 12 CV 1166, 2013 WL 1232555, at *6 (E.D.N.Y. Mar. 4, 2013) report and recommendation adopted, 2013 WL 1247520 (E.D.N.Y. Mar. 26, 2013).
Plaintiffs advance an alternate theory for their § 1981 discrimination claim against DC 37, based on DC 37's acquiescence to the City's known discrimination. (Dkt. 90 at 12-16.) Courts indeed have held that "a union's tacit acquiescence [in] or ratification [of an employer's discriminatory conduct] ... can serve as a basis for an employment discrimination claim... if the plaintiff sufficiently alleges that this acquiescence or ratification was `arbitrary, discriminatory, or in bad faith' — that is, if the acquiescence or ratification establishes a breach of the union's [duty of fair representation]." Klaper, 2012 WL 959403, at *11-12 (citing cases); see Equal Employment Opportunity Comm'n v. Enter. Ass'n Steamfitters Local No. 638 of U.A., 542 F.2d 579, 589 (2d Cir.1976) ("mere acquiescence in the discriminatory acts of the union would render it liable").
DC 37 maintains that because Plaintiffs are proceeding under § 1981, which requires a showing of purposeful discrimination, Plaintiffs must still plead facts suggesting that DC 37 acted with discriminatory intent to state a claim on an acquiescence theory. This is incorrect. An acquiescence theory of liability "does not require a showing that [the union] was motivated by discriminatory intent." Klaper, 2012 WL 959403, at *12 (emphasis added); see Ruff v. Coba Union Corr. Officers Benefits, 12 CV 6113, 2013 WL 5960890, at *5 (E.D.N.Y. Nov. 6, 2013); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 669, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) ("A union which intentionally avoids asserting discrimination claims, either so as not to antagonize the employer and thus improve its chances of success on other issues, or in deference to the perceived desires of its white membership, is liable under ... § 1981, regardless of whether, as a subjective matter, its leaders were favorably disposed toward minorities.") Rather, this theory stems from the principle that "[a] § 1981 violation may be established not only via presentation of evidence regarding defendant's affirmative acts, but also by evidence regarding defendant's omissions when defendant is under some duty to act." Scelsa, 806 F.Supp. at 1145.
Plaintiffs' fifth cause of action asserts that the City Defendants "per se" or "facially" violated the FMLA through policies that interfered with the 911 Operators' exercise of their FMLA rights, and retaliated against them for using, or attempting to use, FMLA leave. (Id. ¶¶ 207, 291-95; see Dkt. 94 at 26 (arguing that "the City imposes policies that are per se or facial violations of the FMLA as applied against them and the proposed class" and "that Plaintiffs are entitled to present evidence to obtain broad injunctive relief against the City's FMLA policies outside of any individual FMLA claim[]").) Plaintiffs seek an injunction against the challenged FMLA policies. (Am. Compl. ¶ 207.) The City Defendants move to dismiss Plaintiffs' FMLA claims, contending that Plaintiffs have failed to state a cognizable harm or any violation of their FMLA rights. (Dkts. 92 at 26-30; 93 at 9-12.)
The FMLA was enacted by Congress in 1993 to address "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods[.]" 29 U.S.C. § 2601(a)(4). It grants eligible employees the right "to a total of 12 workweeks of leave during any 12-month period ... to care for [a] spouse, or a son, daughter, or parent" who "has a serious health condition." 29 U.S.C. § 2612(a)(1)(C); see Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 426 (S.D.N.Y.2004). "The term `eligible employee' means an employee who has been employed ... for at least 12 months by the employer" and "for at least 1,250 hours of service ... during the previous 12-month period." 29 U.S.C. § 2611.
FMLA leave may be taken "intermittently or on a reduced leave schedule when medically necessary." 29 U.S.C. § 2612(b)(1). It may be provided unpaid, 29 U.S.C. § 2612(c), or "an employer may require the employee[] to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave provided under [the FMLA] for any part of the 12-week period of such leave," 29 U.S.C. § 2612(d)(2)(B). At the end of FMLA leave, the employee is entitled to reinstatement to her former position or an equivalent. 29 U.S.C. § 2614(a)(2) ("The taking of [FMLA] leave
To ensure the availability of these rights, the FMLA makes it unlawful for employers to: (1) "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" provided under the FMLA (known as "interference" claims); or (2) "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" by the FMLA (known as "retaliation" claims). Id. § 2615(a); see Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir.2006); Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004). Therefore, employers may not "use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under `no fault' attendance policies." 29 C.F.R. § 825.220(c). Employers also are prohibited from discriminating against any employee for filing any charge or instituting any proceeding under or related to the FMLA. See 29 U.S.C. § 2615(b)(1).
In a FMLA interference claim, "an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act." Smith v. Westchester Cnty., 769 F.Supp.2d 448, 464-65 (S.D.N.Y.2011). To state a claim for FMLA interference, a plaintiff must plead facts to show that (1) she is an eligible employee under the FMLA; (2) the defendant is an employer as defined in the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave notice to the defendant of her intention to take leave; and (5) she was denied benefits to which she was entitled under the FMLA. See Geromanos, 322 F.Supp.2d at 427. The employer's intent is irrelevant to a FMLA interference claim. Potenza, 365 F.3d at 167. Denial of FMLA benefits is interpreted flexibly; "`[i]nterfering with' the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.'" 29 C.F.R. § 825.220(b); see Potenza, 365 F.3d at 168; Sista, 445 F.3d at 175. A plaintiff must show that "she suffered some injury by reason of the interference with her FMLA rights." Reyes v. N.Y.C. Health & Hosps. Corp., 10 CV 1606, 2012 WL 3764061, at *5 (E.D.N.Y. Aug. 29, 2012); see Roberts v. Health Ass'n, 308 Fed.Appx. 568, 570 (2d Cir.2009) ("Although [plaintiff] can likely show that [defendant] interfered with her FMLA rights, because there is no evidence that the violation was prejudicial, the District Court did not err in dismissing her [FMLA] claim."); see also Gilmore v. Univ. of Rochester, 654 F.Supp.2d 141, 149-50 (W.D.N.Y.2009) (dismissing FMLA claims on summary judgment where plaintiff failed to show any prejudice or injury resulting from defendant's alleged FMLA violation).
Here, each of the named Plaintiffs is alleged to be an eligible employee under the FMLA at all relevant times. (Am. Compl. ¶¶ 25, 29, 33, 37, 41, 49.) Plaintiffs assert that the City Defendants facially interfered with their FMLA rights by (1) refusing to accept leave requests made in advance of 30 minutes prior to a shift (id. ¶¶ 165-173), (2) miscalculating the amount of FMLA leave hours used by the employee (id. ¶¶ 178-88), (3) delaying FMLA certification (id. ¶¶ 189-92), (4) mandating the use of a special phone number for FMLA requests (id. ¶¶ 193-97), and (5) miscalculating eligibility hours for FMLA leave (id. ¶¶ 202-03). (See Dkt. 94 at 26-33.) The Court analyzes each of these policies separately to determine whether each interferes with Plaintiffs' exercise of their
With respect to their 30-minute call window claim, Plaintiffs allege that in April 2013, Belusic informed 911 Operators that FMLA requests would only be accepted if made within 30 minutes prior to the shift for which the employee was requesting leave. (Am. Compl. ¶ 165.) While the FMLA permits an employer to establish its own policies for usual and customary notice for requesting leave, 29 C.F.R. § 825.303(c), "[a]n employer cannot use its own notice policy to circumscribe an employee's rights under the FMLA," Slaughter v. Am. Bldg. Maint. Co. of New York, 64 F.Supp.2d 319, 327 (S.D.N.Y. 1999). The FMLA does not impose a specific time requirement for an employee to request FMLA leave, only requiring that "an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). As some courts have held, "[t]he specific purpose of the [FMLA] is to deal with situations ... [in which] a worker [must] ... balance the needs of family and work and need[s] flexibility to deal with emergency family and medical problems." Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1217 (S.D.Cal. 1998). Hence, a policy that "does not allow for such flexibility nor recognize that in FMLA leave situations it may not be possible for an employee to call [within a specific time window] before a shift begins violates the employee's rights under the Act." Slaughter, 64 F.Supp.2d at 327 (quoting Mora, 16 F.Supp.2d at 1216-17); see Bishop v. New Process Gear, Inc., No. 5:06-CV-0821 GTS/GHL, 2009 WL 3928679, at *6 (N.D.N.Y. Nov. 18, 2009)
The 30-minute call window policy, as alleged, states a FMLA interference claim because it fails to provide the flexibility mandated by the FMLA with respect to determining the appropriateness of a leave request. See 29 C.F.R. § 825.303(a) ("When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case."). Plaintiffs assert that calls to request FMLA leave made outside of the 30-minute window are categorically rejected or not accepted, and that the 911 Operators are required under all circumstances to call back within the 30-minute window. (Am. Compl. ¶ 165.) Plaintiffs allege that Ennis attempted to request FMLA leave several hours before her shift "on several occasions" but was told to call back for approval, that three non-plaintiff class members had similar experiences, and that because of the policy, 911 Operators have been unable to adequately plan for medical care, child care, and other exigencies. (Id. ¶¶ 167-73.) Indeed, if proven, such a policy is plainly antithetical to the FMLA's goals and its provisions, and interferes with Plaintiffs' exercise of their rights under the FMLA.
Plaintiffs also plausibly stated a claim that Defendants interfered with their FMLA rights by deducting a full seven-hour day from available FMLA leave regardless of the number of leave hours actually used by the employee. (Id. ¶¶ 178-79.) On multiple occasions, Ennis requested and used a few hours of FMLA leave but was told that an entire seven-hour day was deducted from her available FMLA hours. (Id. ¶¶ 185-88.) Another proposed class member was also told that seven hours of leave were deducted from her FMLA hours when she had only used two. (Id. ¶¶ 180-84.) These acts, if true, plausibly allege interference with Plaintiffs' FMLA rights. See Sista, 445 F.3d at 176 (interference claim contemplates whether the employer in some manner impeded the employee's exercise of [the] right[s] afforded substantive protection under the FMLA).
Plaintiffs' other allegations do not state a claim for a FMLA violation or support an inference of injury or prejudice to the named Plaintiffs. See Reyes, 2012 WL 3764061, at *5 (dismissing FMLA claims where plaintiff did not demonstrate that she was prejudiced by claimed FMLA violations and "has not presented evidence of injury"). For example, Plaintiffs allege that Defendants delayed over four months to approve FMLA requests, and provides two incidents in which members of the proposed class experienced delays in approving FMLA recertification. (Am. Compl. ¶¶ 189-92.) This allegation pleads a technical FMLA violation, because "[w]hen an employee requests FMLA leave ... the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances." 29 C.F.R. § 825.300(b)(1). However, because the Amended Complaint fails to allege that any of the named Plaintiffs experienced
Similarly, Plaintiffs' claim that the City Defendants interfered with FMLA leave by miscalculating 911 Operators' eligibility hours is not supported by any allegation that a named Plaintiff, or for that matter any member of the proposed FMLA class, was deemed ineligible for FMLA leave based on a miscalculation of the qualifying hours worked by the requesting employee. Thus, Plaintiffs fail to plausibly allege that the City Defendants maintained a policy of miscalculating FMLA qualification hours, and also fail to establish any tangible injury or prejudice to any named Plaintiff that confers standing to pursue this claim.
Plaintiffs' allegations regarding the City Defendants' use of a designated phone number for FMLA requests are similarly deficient. (Am. Compl. ¶ 193.) First, FMLA regulations specifically permit an employer to "require employees to call a designated number or a specific individual to request leave", so long as the policy allows flexibility when "unusual circumstances justify the failure to comply." 29 C.F.R. § 825.303(c). Second, Plaintiffs have not alleged any specific harm caused by the use of a designated number, or any instances in which use of the designated number interfered with a 911 Operator's ability to use FMLA leave.
Finally, although Plaintiffs assert that the City Defendants interfered with their FMLA rights by conducting investigations on FMLA approval and usage, "interrogating" Operators, contacting treating physicians, or requiring additional confirmation of a qualifying medical condition "at an excessive rate" (Am. Compl. ¶¶ 198-201, 204-06), Plaintiffs do not include any allegations that the named Plaintiffs or any class members were subjected to these alleged practices. Without specific examples or further detail, Plaintiffs' allegations fail to raise a non-speculative, plausible FMLA claim based on the City Defendants' alleged investigatory practices, or to establish standing to bring such a FMLA claim.
In sum, the City Defendants' motion is denied as to Plaintiffs' FMLA interference claims based on the 30-minute call window and the miscalculation of FMLA leave hours used, but granted as to the remainder of Plaintiffs' FMLA interference claims.
Plaintiffs also allege that the City Defendants maintain a pattern or practice of retaliating against 911 Operators for the exercise of FMLA leave rights. In a FMLA retaliation claim, "an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act." Smith, 769 F.Supp.2d at 469 (quoting Krosmico v. JP Morgan Chase Co., 06 CV 1178, 2006 WL 3050869, at *2 (E.D.N.Y. Oct. 19, 2006)). To establish a claim of FMLA retaliation, a plaintiff must show that (1) she exercised rights protected under the FMLA, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent. See, e.g., Potenza, 365 F.3d at 168.
Because individual retaliation claims pursuant to the FMLA are analyzed under Title VII's burden-shifting framework, see Serby v. N.Y.C. Dep't of Educ., 526 Fed.Appx. 132, 134 (2d Cir. 2013), the Court is persuaded by Plaintiffs' argument that it is also appropriate to apply the Title VII pattern or practice framework to Plaintiffs' allegations of class-wide retaliation. See Stoler, 2013 WL 6068598, at *7 (discussing pattern or practice standard and finding that plaintiffs have adequately alleged a FMLA retaliation claim based on allegations of FMLA retaliation against individuals); see also Employees Committed For Justice v. Eastman Kodak Co., 407 F.Supp.2d 423, 432 (W.D.N.Y.2005) (rejecting argument that pattern or practice analysis is incompatible with retaliation claims, and noting that pattern or practice retaliation claims have been certified as class actions and successfully prosecuted under Title VII) (citing cases). Unlike in an individual retaliation case, a class asserting a pattern or practice of retaliation need not allege retaliation against a particular employee to survive a motion to dismiss. See City of New York, 717 F.3d at 84. Rather, Plaintiffs must plead sufficient facts to raise an inference that the City Defendants engaged in a "pervasive policy of retaliation" against the 911 Operators. See Eastman Kodak, 407 F.Supp.2d at 433.
Plaintiffs' pleadings identify two policies that connect FMLA leave usage to allegedly retaliatory consequences. First, Plaintiffs allege that the City Defendants maintained a policy requiring 911 Operators who took FMLA leave to perform mandatory overtime immediately upon their return from FMLA leave, if the use of FMLA leave caused the 911 Operator to miss scheduled overtime. (Am. Compl. ¶ 174.) Second, Plaintiffs allege that in April 2013, Belusic circulated a list of 911 Operators who were not permitted to work voluntary overtime due to a "high absentee rate," regardless of whether the employee was absent due to qualified FMLA leave. (Id. ¶ 164.) Pursuant to this policy, 911 Operators who used FMLA leave were required to work overtime even when others in their squad were not scheduled to work overtime. (Id.) The Court construes these policies as discrete retaliatory acts — as opposed to parts of one unified retaliatory policy — alleged in support of two separate pattern or practice retaliation claims.
Turning first to the mandatory overtime policy, the Court finds that the Amended Complaint includes sufficient factual detail from which to infer a pattern of retaliation for the use of FMLA leave by requiring the immediate performance of mandatory overtime.
Plaintiffs may not, however, proceed on their FMLA retaliation claim based on the alleged "high absentee" list. (Id. ¶ 164.) Although a pervasive pattern of retaliation for FMLA leave usage may well be inferred from the allegation that defendant Belusic circulated a list of "high absentee" operators, who were precluded from performing voluntary overtime, that included those who used FMLA leave, see Ste. Marie, 650 F.2d at 405-06 (fewer confirmatory acts may suffice to state a plausible pattern or practice claim if a complaint alleges defendant adopted a discriminatory policy), Plaintiffs have failed to allege that any named Plaintiff has the requisite standing to pursue injunctive relief for this claim. While the pattern or practice framework does not require a proposed class to initially plead any individual retaliation if it can plead a pervasive retaliatory pattern, see City of New York, 717 F.3d at 84, Article III requires that at least one plaintiff who, at least, faces the risk of injury that is redressable by the requested injunctive relief. Oakley, 2012 WL 335657, at *15 ("Article III provides that `[f]or a plaintiff to have standing to request injunctive or declaratory relief, the injury alleged must be capable of being redressed through injunctive relief at that moment.'") (quoting Selby v. Principal Mut. Life Ins. Co., 197 F.R.D. 48, 64 (S.D.N.Y.2000)). The Amended Complaint contains no allegations that any named Plaintiff, or any proposed class member, was placed on the "high absentee" list after taking FMLA leave, sought voluntary overtime, or was denied voluntary overtime as a result. Accordingly, Plaintiffs' FMLA retaliation claim based on an alleged pattern or practice of placing 911 Operators who use FMLA leave on a "high absentee" list must be dismissed.
Plaintiffs' fourth cause of action asserts that the City Defendants violated
Plaintiffs have not adequately pleaded a causal connection between their protected activity and any adverse employment action. They allege that "[s]ince May 2013," Plaintiffs have complained about their "working conditions" and "the effects of [] forced and mandatory overtime shifts on public safety" in rallies and other forums, generating media coverage of these issues. (Am. Compl. ¶¶ 252-53.) Sometime after these activities took place and were reported in media outlets, the City Defendants developed and implemented "additional unlawful employment policies and practices and instituted disciplinary measures against Plaintiffs[.]" (Id. ¶ 255.) However, Plaintiffs fail to provide details regarding Plaintiffs' alleged public statements, including when they were made. Plaintiffs' only allegation concerning timing is that Plaintiffs engaged in the alleged protected speech "[s]ince May 2013[.]" (Id. ¶¶ 252-53.) Plaintiffs also did not specify what "additional" policies they claim Defendants instituted in retaliation for Plaintiffs' speech or the timing of these new policies. As a result, there is no factual support from which to infer the existence of these new allegedly retaliatory policies, or any information about the temporal proximity of these policies to any of Plaintiffs' protected activity, so as to raise an inference of causal connection. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001); Davis v. Oyster-Bay E. Norwich Cent. Sch. Dist., 09 CV 1823, 2010 WL 3855237, at *5 (E.D.N.Y. Sept. 28, 2010) ("an inference of retaliation does not arise" "[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity"). Furthermore, as Defendants correctly point out (Dkt. 92 at 25), the Amended Complaint alleges that the challenged adverse employment actions commenced prior to and including May 2013, which further undercuts Plaintiffs' claim of
Therefore, based on Plaintiffs' failure to sufficiently plead their First Amendment claim, the City Defendants' motion to dismiss this claim is granted.
Plaintiffs' sixth cause of action asserts a breach of contract claim against the City Defendants for violating the CBA by scheduling excessive involuntary double-shifts, canceling sick leave, violating health protection rights, and failing to provide proper notice of overtime. (Id. ¶¶ 296-98.) The City Defendants contend that Plaintiffs' breach of contract claim fails because Plaintiffs did not sufficiently plead that DC 37 breached its duty of fair representation to the Plaintiffs. (Dkt. 92 at 30-31.)
"[A] suit in which an employee alleges that an employer has breached a CBA and that a union has breached its duty of fair representation by failing to enforce the CBA is known as a `hybrid § 301/fair representation claim.'" Acosta v. Potter, 410 F.Supp.2d 298, 308 (S.D.N.Y. 2006) (quoting DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)) (referring to section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a)). To succeed on this type of claim, "a plaintiff must prove both (1) that the employer breached a collective bargaining agreement and (2) that the union breached its duty of fair representation vis-a-vis the union members." Bejjani v. Manhattan Sheraton Corp., 12 CV 6618, 2013 WL 3237845, at *8 (S.D.N.Y. June 27, 2013) (quoting White, 237 F.3d at 178), aff'd 567 Fed.Appx. 60 (2d Cir.2014). "Because a union's breach of the duty of fair representation `is a prerequisite to consideration of the merits of plaintiff's claim against' an employer for breach of a CBA, courts presented with hybrid claims need not reach the question of whether the employer violated the CBA unless the union has acted arbitrarily, in bad faith, or discriminatorily." Acosta, 410 F.Supp.2d at 309 (citing Young v. U.S. Postal Serv., 907 F.2d 305, 307 (2d Cir.1990)). By the same token, "if the employer is not liable to the employee, neither is the union." Id.
A union "has a duty to represent fairly all employees subject to the collective bargaining agreement." Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir.1998) (citing Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 74, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)). To prove that a union breached its duty of fair representation, a plaintiff must establish (1) "that the union's actions or inactions
Since DC 37 did not move to dismiss Plaintiffs' duty of fair representation claim against it, the City Defendants' contention that Plaintiffs fail to state a claim because DC 37 did not breach its duty is arguably premature. Nevertheless, the Court finds that the Plaintiffs' allegations are sufficient to survive a motion to dismiss. The Amended Complaint alleges that DC 37 filed a grievance in 2006 and an arbitration in 2007, and prevailed in both, resulting in the 2008 Arbitration Decision. (Am. Compl. ¶¶ 122, 124-25.) However, the Amended Complaint also describes DC 37's failings in enforcing the CBA and Arbitration Decision, despite knowledge of repeated violations by the City, including the City Defendants' repeated cancellations of sick leave. (Id. ¶¶ 118-19, 129, 149, 240-46.) Plaintiffs also allege that DC 37 refused to grieve issues, such as the practice of preventing 911 Operators from leaving their shift by withholding sign-out sheets, despite repeated complaints. (Id. ¶¶ 155, 247.) In addition, the Amended Complaint also alleges that DC 37 has pressured 911 Operators, including Plaintiffs Gordon and Inman, to withdraw their requests for reasonable accommodations. (Id. ¶¶ 227-28.) When considered alongside Plaintiffs' allegations of long-standing and widespread violations of the CBA, Plaintiffs have pled sufficient facts to state a plausible claim for a breach of the duty of fair representation.
The Court therefore denies City Defendants' motion to dismiss Plaintiffs' breach of contract claim.
The New York Labor Law requires that employees be provided with meal breaks of specified lengths based on the times and durations of their shifts. N.Y. Lab. Law § 162. Plaintiffs' seventh cause of action alleges that the City Defendants violated New York Labor Law § 162 ("§ 162") by requiring 911 Operators to answer and dispatch calls during their meal breaks. (Am. Compl. ¶¶ 5, 115-16, 214, 299-300.) This claim fails as a matter
In sum, the City Defendants' motion to dismiss the Amended Complaint in its entirety is granted in part and denied in part.
The following claims are dismissed as to the City Defendants: (1) Plaintiffs' FMLA interference claim based on certification delay, miscalculation of eligibility hours, use of a designated FMLA number, and investigation of FMLA use (fifth cause of action); (2) Plaintiffs' FMLA retaliation claim based on the "high absentee" list (fifth cause of action); (3) Plaintiffs' First Amendment retaliation claim (fourth cause of action); and (4) Plaintiffs' New York State Labor Law claim (seventh cause of action).
The City Defendants' motion is denied with respect to: (1) Plaintiffs' racial discrimination claims under §§ 1981 and 1983 (first cause of action); (2) NYSHRL racial discrimination claim (second cause of action); (3) NYCHRL racial discrimination claim (third cause of action); (4) Plaintiffs' FMLA interference claim based on the 30-minute call window and the miscalculation of FMLA hours used (fifth cause of action); (5) Plaintiffs' FMLA retaliation
DC 37's motion to dismiss Plaintiffs' § 1981 racial discrimination claim is granted with respect to any claim of direct discrimination, but denied with respect to an acquiescence theory (tenth cause of action).
Plaintiffs seek certification under FRCP 23(a) and 23(b)(2) on liability and for an injunction of a "§ 1981 Class" and a "FMLA Class," defined as follows:
(Dkt. 104 at 2.) Plaintiffs clarify that these definitions are limited to operators still employed by the City since only they will benefit from injunctive relief sought in this action. (Dkt. 108 at 8.) Both the City Defendants and DC 37 oppose certification.
FRCP 23 permits an action to be litigated as a class only if the party seeking certification can satisfy the four prerequisites of FRCP 23(a) and also show that at least one of the three criteria in FRCP 23(b) is met. Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.2010); Marisol A. v. Giuliani, 126 F.3d 372, 375-76 (2d Cir.1997). The moving party must demonstrate compliance with these rules by a preponderance of the evidence. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir.2008).
The prerequisites of FRCP 23(a) are numerosity, commonality, typicality and adequacy of representation. Plaintiffs must show on a preponderance of the evidence that "(1) `the class is so numerous that joinder of all members is impracticable'; (2) `there are questions of law and fact common to the class'; (3) `the claims or defenses of the representative parties are typical' of those of the class; and (4) `the representative parties will fairly and adequately protect the interests of the class.'" Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir.2015) (quoting Fed. R.Civ.P. 23(a)). In determining whether the moving party has established the prerequisites of FRCP 23(a), the Court conducts a rigorous analysis of the record; such analysis will frequently "entail `overlap with the merits of the plaintiff's underlying claims.'" Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)). However, FRCP 23 does not grant the Court license to engage in "free-ranging merits inquiries"; merits questions are to be considered only "to the extent that they are relevant" to the FRCP 23(a) inquiry. Amgen Inc. v. Conn. Ret. Plans and Trust Funds, ___ U.S. ___, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013) (citing Wal-Mart, 131 S.Ct. at 2552, n. 6.).
The Court finds that certification under FRCP 23(a) and 23(b)(2) are appropriate, except as limited below.
Numerosity requires that the proposed class have so many members so as to make joinder of all members impracticable. FRCP 23(a)(1). "[A] plaintiff need not present a precise calculation of the number of class members and it is permissible for the court to rely on reasonable inferences drawn from available facts[.]" Velez v. Majik Cleaning Service, Inc., 03 CV 8698, 2005 WL 106895 at *2 (S.D.N.Y. January 19, 2005); see Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995). While there is "no magic minimum number" to establish numerosity, courts in the Second Circuit generally presume that a class consisting of 40 or more members is sufficiently numerous. Gortat v. Capala Bros., 949 F.Supp.2d 374, 383 (E.D.N.Y.2013), aff'd sub nom., Gortat v. Capala Bros., Inc., 568 Fed.Appx. 78 (2d Cir.2014) (citations omitted). Additionally, "the Second Circuit has relaxed the numerosity requirement where" as here "the putative class seeks injunctive and declaratory relief pursuant to Rule 23(b)(2)." Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y.2001)
Defendants do not contest numerosity in this case, and the Court is satisfied that both classes meet this requirement. Plaintiffs allege that the class includes approximately 1,300 African-American, Hispanic, and other minority 911 Operators. Combined with Plaintiffs' allegations that each of the eight named plaintiffs is eligible for FMLA leave, the Court draws a "reasonable inference" that the number of minority operators eligible for FMLA leave is also sufficiently numerous. (Am. Comp. ¶¶ 5, 17, 257 (City employs over 1,200 911 Operators, 95% of whom are minorities); see Dkt. 105 at 1.)
To satisfy FRCP 23(a)'s commonality requirement, plaintiffs must show that the class members have "suffered the same injury" and that their claims "depend upon a common contention ... of such a nature that it is capable of classwide resolution." Sykes v. Mel S. Harris and Assocs. LLC, 780 F.3d 70, 80 (2d Cir.2015) (quoting Wal-Mart, 131 S.Ct. at 2551). "What matters to class certification ... is not the raising of common `questions' ... but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Wal-Mart, 131 S.Ct. at 2551 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 131-132 (2009)) (emphasis in original). The commonality question before the Court at the class certification stage is "whether the record evidence demonstrates a likelihood that common answers will be determined via a class action approach, or conversely, whether differences among [the proposed class members] will necessarily generate individualized, rather than common, determinations as [the] litigation moves forward." Jacob v. Duane Reade, 289 F.R.D. 408, 414-15 (S.D.N.Y. 2013), on reconsideration in part, 293
Applying these principles, the Court finds that both proposed classes satisfy commonality. With respect to the § 1981 class, Plaintiffs' central claim is that the City Defendants "created discriminatory and unsafe working conditions" for the named Plaintiffs and proposed class. (See Dkt. 105 at 13.) Plaintiffs provided a number of plaintiff declarations in support of their allegations that the City Defendants applied a set of practices and policies uniformly across the class as part of an overarching pattern of discrimination, including blanket cancellation of sick leave, mandatory double-shifts and/or overtime shifts several times a week, and automatic declarations that operators who request limited overtime as an ADA accommodation were unfit for duty. (See Dkt. 106.) Thus, common questions exist, including whether the City Defendants maintained a pervasive system of discrimination against the 911 Operators through the challenged discriminatory practices and policies, and whether the City Defendants' discriminatory intent can be inferred from statistical evidence, anecdotal evidence, or evidence that a similarly-situated group was not subjected to the same policies. Another common question exists as to whether the City Defendants breached the CBA through its leave policies. Since answering these questions are apt to drive the resolution of the case class-wide, the commonality requirement is met.
The City Defendants argue that Plaintiffs cannot establish commonality because they have not shown that the challenged practices are causally related to a pattern of disparate treatment based on race. The City Defendants contend, for instance, that because the challenged policies apply to all 911 Operators, and not just minority operators, there can be no finding of discriminatory intent. These arguments, however, go to the merits of the action and are irrelevant to the commonality inquiry, which asks whether one or more common questions exist that can be answered class-wide. Indeed, if Defendants are correct that Plaintiffs cannot show discriminatory intent, the class racial discrimination claims will be resolved in a single stroke.
Equally unavailing is the City Defendants' argument that answering the question of whether the City retaliated against 911 Operators who filed reasonable ADA accommodation requests requires individualized inquiries. Plaintiffs' allegation is that once a 911 Operator submits a reasonable accommodation request to limit hours, the Operator is invariably sent to a "sham" § 72 examination with a City physician, often Defendant Lichtenstein, during which no actual examination is conducted, and after which the 911 Operator is automatically declared unfit for duty and placed on leave without pay. Since Plaintiffs allege that this policy applies regardless of individual circumstances, no individualized inquiries, for purposes of determining liability, are required. Rather, determining the City's liability will turn on class-wide inquiries on the existence and pervasiveness of this policy and practice.
As to the FMLA class, common questions exist as to whether the City Defendants' policy and practice of requiring all requests for unanticipated FMLA leave be made within 30 minutes of the request, or the City Defendants' practice of miscalculating the hours of FMLA hours used by 911 Operators, constituted per se interference with the 911 Operators' exercise of their FMLA rights. Common questions also exist as to whether the City Defendants created a standard operating
"Rule 23(a)(3)'s typicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability." Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 164 (S.D.N.Y.2014) (citing Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir.1993)). WalMart recognized that in some contexts, commonality and typicality may merge because "[b]oth serve as guideposts determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." 131 S.Ct. at 2551 n. 5. A named plaintiff's claims need not be identical to those of the proposed class members; so long as the named plaintiff's claims share the same essential characteristics as that of the proposed class, typicality will be satisfied, even where there are "minor variations in the fact patterns underlying individual claims." Glatt v. Fox Searchlight Pictures, 293 F.R.D. 516, 537 (S.D.N.Y.2013) (quoting Robidoux, 987 F.2d at 936-37). "[C]lass certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir.2000) (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)).
Initially, Plaintiffs acknowledge that because named Plaintiffs Hill and Holly are retired, they do not stand to benefit from any prospective injunctive relief. As their claims are not typical of the class, they may not be appointed as class representatives.
The remaining named Plaintiffs, however, satisfy the typicality requirement for the § 1981 and FMLA classes. For both classes, the claims of the representatives and the class members stem from the same course of conduct and are based on the same legal or remedial theories. Turning first to the § 1981 class, like members of the proposed class, the named Plaintiffs are minority individuals who are employed by the City as 911 Operators in the Communications Section. Each alleges that he or she was subject to the same overtime policies as well as restrictive leave policies based on their race. With respect to the FMLA class, the named Plaintiffs are each eligible for FMLA and subject to the City's FMLA policies. Ennis has specifically alleged that the City Defendants interfered with her FMLA leave by rejecting her FMLA requests made outside of the 30-minute call window. Ennis further alleges that the City Defendants retaliated against her for using FMLA leave during an overtime shift by requiring her to work overtime immediately upon her return from leave. Thus, for both proposed classes, the named Plaintiffs
The factual variations in each named Plaintiff's experiences with these policies do not destroy typicality so long as the disputed issues occupy the same degree of centrality between the named representatives and the class. See Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 293 (2d Cir.1999); Latino Officers Ass'n v. City of New York, 209 F.R.D. 79, 88 (S.D.N.Y. 2002). That each named Plaintiff may not yet have been affected by each alleged policy does not destroy typicality, given that the named Plaintiffs are current employees who are subject to, and seek to enjoin, the same allegedly unlawful policies.
"Adequacy of representation is evaluated in two ways: (1) by looking to the qualifications of plaintiffs' counsel; and (2) by examining the interests of the named plaintiffs." Jackson, 298 F.R.D. at 164. Courts consider whether the class representative is prepared to fully litigate the action and has any known conflicts with other class members. Shayler v. Midtown Investigations, Ltd., 12 CV 4685, 2013 WL 772818, at *5 (S.D.N.Y. Feb. 27, 2013). A conflict of interest "must be fundamental" and concrete to defeat a motion for certification. In re Flag Telecom Holdings, Ltd. Secs. Litig., 574 F.3d 29, 35 (2d Cir.2009). Defendants do not contest the adequacy of class counsel, nor does the record provide a basis to doubt the competency of counsel to represent the class. Similarly, with respect to the adequacy of the class representatives, nothing in the record suggests an improper motive on the part of any named Plaintiff or a fundamental conflict of interest with members of the proposed class. To the contrary, the interests of the named representatives Williams, Inman, Gordon, Lopez, Pate, and Ennis align closely with the interests of the putative class members. Their claims arise under the same legal theories as will be relied on by the class members, the class members were harmed in the same way, and each class member seeks the same recovery.
"Although not expressly stated in the Rule, courts have found an implied requirement of ascertainability [in addition] to the express requirements set forth in Rule 23(a)." Stinson v. City of New York, 282 F.R.D. 360, 373 (S.D.N.Y. 2012); see In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir.2006). "An identifiable class exists if its members can be ascertained by reference to objective criteria." In re Fosamax, 248 F.R.D. 389, 395 (S.D.N.Y.2008) (quoting In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y.2002)). The standard for ascertainability "is not demanding" and "is designed only to prevent the certification of a class whose membership is truly indeterminable." Gortat v. Capala Bros., Inc., 07 CV 3629, 2010 WL 1423018, at *2 (E.D.N.Y. Apr. 9, 2010). In class actions seeking only declaratory and injunctive relief under FRCP 23(b)(2), "general class descriptions based on the harm allegedly suffered by plaintiffs are acceptable." Floyd v. City of New York, 283 F.R.D. 153, 171 (S.D.N.Y.2012) (quoting Daniels v. City of New York, 198 F.R.D. 409, 415 (S.D.N.Y.2001)).
Here, the class members can be identified by reference to "objective criteria." In re Fosamax, 248 F.R.D. at 395 (quoting In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. at 337). Both purported classes consist of minority employees holding specific titles who worked in a specific NYPD section over a defined period of time. Contrary to
The City Defendants' objection to defining the FMLA class as those eligible for FMLA leave is also unavailing. The FMLA defines eligibility in concrete terms, i.e., an individual employed for at least 12 months who worked for at least 1250 hours during the 12-month period preceding the request for FMLA leave. 29 U.S.C. § 2611(2). FMLA class membership thus may be readily ascertained by reference to the City Defendants' personnel records. See Flores v. Anjost Corp., 284 F.R.D. 112, 123 (S.D.N.Y.2012) (finding ascertainability where "[t]he class can clearly be ascertained by objective documentation, such as Defendants' employee payroll records and wage statements"); Noble v. 93 University Pl. Corp., 224 F.R.D. 330, 341-42 (S.D.N.Y.2004) ("[C]ertification is routinely granted where the proposed class definition relies in part on the consideration of the defendants' alleged liability."). Finally, the Court is not persuaded by the City Defendants' argument that the FMLA class is overbroad because it includes 911 Operators who have not requested leave, since, as discussed, Plaintiffs' FMLA interference claim applies equally to 911 Operators who have not requested leave. The implied ascertainability requirement is therefore satisfied.
In sum, the Court finds that Plaintiffs' proposed § 1981 and FMLA classes meet all of the criteria for class certification under FRCP 23(a).
Given its finding that the FRCP 23(a) prerequisites are met, the Court now analyzes whether each class satisfies at least one of FRCP 23(b)'s three subsections. Plaintiffs seek certification under subsection (b)(2). Certification under FRCP 23(b)(2) is appropriate if Defendants have acted or refused to act on grounds generally applicable to a class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole. "Rule 23(b)(2) is designed to assist and is most commonly relied upon by litigants seeking institutional reform in the form of injunctive relief." Marisol A. v. Giuliani, 929 F.Supp. 662, 692 (S.D.N.Y.1996), aff'd, 126 F.3d 372 (2d Cir.1997). "Class certification under Rule 23(b)(2) is particularly appropriate in civil rights litigation." Stinson, 282 F.R.D. at 379; see Loper v. N.Y.C. Police Dep't, 135 F.R.D. 81, 83 (S.D.N.Y.1991) ("Without class certification, their case ... could fail on technicality. Indeed, it is in part for concerns such as these that civil rights actions are paradigmatic
Certification under FRCP 23(b)(2) is appropriate in this case with respect to the claims against both the City Defendants and DC 37. With respect to their § 1981 claim against the City Defendants, Plaintiffs have made a sufficient showing, by a preponderance of the evidence, that the City Defendants acted on grounds generally applicable to the proposed class. The Amended Complaint includes repeated instances when the City Defendants issued a blanket cancellation of sick leave for 911 Operators, scheduled 911 Operators for consecutive double-shifts and/or overtime shifts, and required 911 Operators who request reasonable ADA accommodations, in the form of limited overtime hours, to undergo "sham" medical examinations. With respect to the FMLA class, Plaintiffs submitted a memorandum circulated by Kelly on July 23, 2013, announcing that because "members of squads scheduled for overtime three times a week ... are reporting sick or FMLA to avoid overtime", all platoon commanders will conduct daily reviews of sick and FMLA lists for the previous day's tour and order overtime on the current tour for any 911 Operator "who reported sick or FMLA for their squad's ordered overtime tour on the previous day ... even if their squad is not ordered." (Dkt. 106-2.) Plaintiffs also submitted an email from Belusic stating that the disciplinary unit will only accept emergent FMLA requests at most 30 minutes prior to the time of requested leave. (Dkt. 106-3.) Additionally, Plaintiffs submitted declarations from the named Plaintiffs and members of the proposed class attesting to these violations, and to DC 37's repeated failure to meaningfully protect their rights. The requested injunctive relief, insofar as it seeks to enjoin these policies and to obtain a declaratory judgment, would remedy these alleged wrongs class-wide.
With respect to the Section 1981 claims against it, DC 37 contends that Plaintiffs cannot show by a preponderance of the evidence that DC 37 acted or refused to act on generally applicable grounds because the core factual allegations underlying Plaintiffs' § 1981 claims "have been shown to be false", thereby rendering these claims moot. (Dkt. 110 at 1.)
However, as Plaintiffs correctly counter, DC 37's recent efforts do not render Plaintiffs' claims moot since these efforts have not resulted in meaningful relief. Plaintiffs have submitted affidavits from the named Plaintiffs attesting to the facts that sick leave continued to be canceled from December 31, 2014 to January 1, 2015 and again from January 26, 2015 to January 28, 2015, and that DC 37 is aware of these ongoing cancellations by the City Defendants. (Dkt. 109-2 ¶¶ 10-12, 15; 109-3 ¶¶ 10-12, 15.) If true, these facts further support the Amended Complaint's claim that DC 37's alleged failure to protect the 911 Operators by, inter alia, not enforcing agreements with the City, are ongoing. Plaintiffs contend that the November 2014 agreement is only the latest example of a long history of DC 37 failing to secure practical relief for Plaintiffs, and that class certification is necessary for Plaintiffs to finally obtain relief class-wide. (Dkt. 108 at 5.) Since this history creates a reasonable expectation that the complained-of conduct, namely DC 37's failure to protect 911 Operators, will recur, Plaintiffs' claims are not moot. See Comer, 37 F.3d at 800.
Because Plaintiffs have alleged the existence of City policies and practices that pose a legitimate, non-speculative threat to Plaintiffs' rights, the Court certifies both the § 1981 and FMLA classes to seek declaratory and injunctive relief pursuant to FRCP 23(b)(2).
Defendants present a variety of challenges to the named Plaintiffs' standing to seek injunctive relief. "To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and "`likely' to be redressed by a favorable ruling."" Davis v. Fed. Election Comm'n, 554 U.S. 724, 733, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). Moreover, plaintiffs seeking injunctive relief must establish a fourth element to have standing, namely a "real and immediate threat of repeated injury" demonstrated by more than "past exposure to illegal conduct." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). In other words, it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).
As to the § 1981 Class, the Court finds that named Plaintiffs Williams, Inman, Gordon, Lopez, Pate, and Ennis, as current employees, have standing to challenge many of the policies that they claim are a part of the overall pattern or practice of racial discrimination in resourcing and structuring the 911 Operators' unit. For instance, given the history of repeated unit-wide cancellation of sick leave alleged in the complaint, the named Plaintiffs are likely to be subject to the challenged unlawful policies again, and thus have standing to assert these claims. Plaintiffs allege that several of the named Plaintiffs were required to work consecutive mandatory double-shifts and/or overtime shifts, and that this policy is ongoing. Plaintiffs also allege that Gordon, Ennis, and Inman requested, and were denied, reasonable accommodations after being subject to a "sham" medical examination, and submit a copy of the notice declaring Gordon unfit
With respect to the FMLA class, the City Defendants acknowledge that Ennis has standing to pursue FMLA interference claims with respect to the 30-minute call window policy and the miscalculation of FMLA time used. (Dkt. 114 at 12-13.) This is sufficient for a class action lawsuit. See Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 241 (2d Cir. 2007) ("only one of the named Plaintiffs is required to establish standing in order to seek relief on behalf of the entire class"). As for Plaintiffs' FMLA retaliation claims, the Amended Complaint alleges that Ennis was required to perform automatic mandatory overtime upon returning from her FMLA leave at various times between May and the fall of 2013. There is no indication on the record that the City Defendants have discontinued their announced policy of requiring 911 Operators to make up missed mandatory overtime immediately upon returning from FMLA leave. Considering Ennis's continued employment and repeated use of FMLA leave in the past, the Court finds that Ennis has established a real and immediate threat of repeated injury to seek injunctive relief, and thus has standing with respect to this claim.
In conclusion, the City Defendants' motion to dismiss is granted in part and denied in part. The Court dismisses the following claims as to the City Defendants: (1) Plaintiffs' FMLA interference claim based on certification delay, miscalculation of eligibility hours, use of a designated FMLA number, and investigation of FMLA use (fifth cause of action); (2) Plaintiffs' FMLA retaliation claim based on the "high absentee" list (fifth cause of action); (3) Plaintiffs' First Amendment retaliation claim (fourth cause of action); and (4) Plaintiffs' New York State Labor Law claim (seventh cause of action).
The following claims are not dismissed and will proceed: (1) Plaintiffs' racial discrimination claims under §§ 1981 and 1983 (first cause of action); (2) NYSHRL racial discrimination claim (second cause of action); (3) NYCHRL racial discrimination claim (third cause of action); (4) Plaintiffs' FMLA interference claim based on the 30-minute call window and the miscalculation of FMLA hours used (fifth cause of action); (5) Plaintiffs' FMLA retaliation claim based on the requirement to perform mandatory overtime immediately upon returning from leave (fifth cause of action); and (6) Plaintiffs' breach of contract claim (sixth cause of action).
DC 37's motion to dismiss Plaintiffs' § 1981 racial discrimination claim (tenth cause of action) is granted insofar as Plaintiffs assert a direct discrimination claim, but denied on an acquiescence theory. Since DC 37 did not move to dismiss Plaintiffs' breach of duty of fair representation claim (eighth cause of action), that claim will proceed.
Plaintiffs' motion to certify the proposed § 1981 and FMLA classes, pursuant to
SO ORDERED.
N.Y.C. Admin. Code § 8-107(1)(a).
In contrast to Plaintiffs' allegations regarding the FDNY and EMS dispatcher units, Plaintiffs have not alleged facts tending to show that DOS dispatchers or NYPD PAAs were similarly situated to the 911 Operators. (See Am. Compl. ¶¶ 239, 258, 266.) However, because Plaintiffs' disparate treatment claim is being permitted to go forward, the Court will not limit the scope of discovery on this issue.
Even if the Court were inclined to analyze Plaintiffs' FMLA interference claims under a pattern or practice framework, as described infra, Plaintiffs' allegations are insufficient to plead allegations of widespread acts of intentional discrimination against individuals, i.e., acts that are more than isolated, accidental, or sporadic. See Stoler v. Inst. for Integrative Nutrition, 13 CV 1275, 2013 WL 6068598, at *7 (S.D.N.Y. Nov. 18, 2013) (addressing a motion to dismiss a putative class action alleging claims for FMLA interference and retaliation, the court recited the pattern-or-practice standard but analyzing FMLA claims as to each individual). Furthermore, analysis of each FMLA claim will be necessary for purposes of certifying a FMLA class, since an "undifferentiated mass of violations of a single statute" or "the possibility that the same law was violated in a variety of ways" would "not lead to common answers that would make class litigation a productive endeavor". Oakley v. Verizon Commc'ns Inc., 09 CV 9175, 2012 WL 335657, at *14 (S.D.N.Y. Feb. 1, 2012).
