MICHAEL J. GARCIA United States Attorney for the Southern District of New York By: JEANNETTE A. VARGAS (N-7111)
ALLISON D. PENN (AP-3787) Assistant United States Attorneys 86 Chambers Street New York, New York 10007· Telephone: 212-637-2678/2725 Fax: 212-637-2730
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
Plaintiff,
v.
CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION,
Defendants.
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COMPLAINT

Plaintiff United States of America (the "United States") alleges upon infonnation and belief as follows:
INTRODUCTION 1. . This action is brought on behalf of the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VIlli). As set forth more fully below, the United States alleges in this action that Defendants have engaged in a pattern or practice ofdiscrimination on the basis of sex in hiring for the position of Bridge Painter with the New York City Department of Transportation.

JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action under 42 U.S.c. § 2000e-6 and 28 U.S.C. §§ 1331 and 1345. 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendants are located in this District and because the acts and omissions giving rise to the claims in this action occurred in this District.
THE PARTIES 4. Defendant City ofNew York (the "City") is a person within the meaning of 42 U.S.C. § 2000e(a) and an employer within the meaning of 42 U.S.c. § 2000e(b). 5. Defendant New York City Department ofTransportation ("DOT") is an
)
agency ofthe City, a person within the meaning of 42 U.S.C. § 2000e(a), and an employer or agent of an employer within the meaning of 42 U.S.C. § 2000e(b).
PATTERN OR PRACTICE OF DISCRIMINATION
6. The DOT's Division ofBridges is responsible for the maintenance ofthe approximately 770 elevated bridge structures operated by the City.
7. Defendants employ approximately one hundred individuals in the position of Bridge Painter. The responsibilities of a Bridge Painter in New York City include preparing and painting iron and steel members in bridges and other elevated structures.
8. Defendants are responsible for establishing the terms, conditions and other practices that bear upon the employment of Bridge Painters by the City.
9. Defendants have never hired, extended an offer to hire, or employed a woman as a Bridge Painter.
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10. The civil service process, which is administered by the New York City Department ofCitywide Administrative Services ("DCAS"), requires, among other things, that employees for competitive titles be hired from civil service lists following an open and competitive civil service examination. The position ofBridge Painter is a competitive position under the civil service system of the City of New York.
11. Contrary to the civil service process, the City has not administered a civil service examination for the position of Bridge Painter since 1992. Instead, Defendants have hired Bridge Painters on a provisional basis. Provisional hiring is not conducted in accordance with the civil service system. When Defendants have engaged in such provisional hiring, they have not provided any objective, formalized guidelines or procedures in hiring individuals for the position of Bridge Painter.
12. Each time Defendants have hired a Bridge Painter on a provisional basis, Defendants have hired exclusively men, notwithstanding that qualified women had applied.
13. Since October 31, 1997, fifty-six people have applied for the position of Bridge Painter and Defendants have hired thirteen of those applicants. All thirteen of the applicants hired by Defendants for the position of Bridge Painter during this period were men.
14. Since October 31, 1997, four women have applied for the position of Bridge Painter. Although all four ofthe women who applied during this period were qualified for the position of Bridge Painter, none has been hired.
15. In response to aJob Vacancy Notice dated February 9, 1998, twenty-two men and two women submitted applications for the position of Bridge Painter. Between February 1998 and October 1999, and pursuant to the February 9, 1998 Job Vacancy Notice, Defendants hired ten men and no women as provisional Bridge Painters. Although both of the
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women who had applied for the position of Bridge Painter in response to the February 9, 1998 Job Vacancy Notice were qualified for the position, Defendants did not interview either female applicant. Each of the male applicants who was hired had been interviewed.
16. In response to a Job Vacancy Notice issued July 29, 1999, twelve men and one woman applied for the position of Bridge Painter. Although the woman who applied for the position of Bridge Painter in response to the July 29, 1999 Job Vacancy Notice was qualified for the position, Defendants did not select her and instead hired two men for the position.
17. On August 8, 2000, Defendants hired a man as a provisional Bridge Painter. The August 8, 2000 hiring ofthis Bridge Painter was not conducted in cOIll1ection with any Job Vacancy Announcement. Nor did Defendants interview anyone for the position.
18. Defendants have pursued and continue to pursue policies and practices that discriminate against women and that deprive or tend to deprive women of employment opportunities because of their sex, in vio.1ation of Section 707 of Title VII ofthe Civil Rights Act of1964, as amended, 42 U.S.c. § 2000e-6, among other ways, by failing or refusing to hire women for the position of Bridge Painter on the same basis as men, by hiring outside of the civil service process, and by failing or refusing to take appropriate action to correct the present effects oftheir discriminatory policies and practices.
·19. The Department ofJustice investigated the employment practices ofthe Defendants, notified them of the investigation and the policies and practices described in paragraphs 6 through 18 above, and unsuccessfully attempted to resolve this matter through negotiations.
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Conditions Precedent to Suit 20. All conditions precedent to the filing of this suit have been satisfied.
CLAIM FOR RELIEF (Pattern or Practice of Discrimination) 21. Paragraphs 6 through 20 are realleged and incorporated by reference in this paragraph. 22. The acts, omissions, policies, and practices described in paragraphs 6 through 21 above constitute a pattern or practice of employment discrimination on the basis of sex in violation of 42 V.S.c. § 2000e-2(a). This pattern or practice is intended to deny women the full exercise of the rights secured by Title VII of the Civil Rights Act, as amended. Unless enjoined by the Court, Defendants will continue to pursue policies and practices that are the same as or similar to those that are alleged in this Complaint. WHEREFORE, the United States requests that this Court enter judgment: A. enjoining Defendants from engaging in discriminatory employment policies and practices in violation ofTitle VII and requiring that Defendants provide and follow a fair, open, and competitive selection process for the position of Bridge Painter; B. directing defendants to take such other steps as may be necessary to prevent and remedy employment discrimination and the patterns or practices of discrimination in employment identified above; C. awarding remedial relief, including but not limited to job offers with retroactive seniority and back pay with interest, to the individuals injured by Defendants' discriminatory conduct; and
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D. granting such further relief as the Court may deem just, together with the United States' costs and disbursements in this action. Dated: Washington, D.C. _ _ _ _ _ _ _, 2007
ALBERTO GONZALES Attorney General

Dated: Nejw York, NY
f{filWl {L , 2007

ey General Civil Rights Division.
MICHAEL 1. GARCIA
United States Attorney for the Southern District of New York Attorney for Plaintiff
By:

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 Case 1:07-cv-02083-WHP Document 46 Filed 07/02/09 Page 1 of 17

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA et aI.,
Plaintiffs,
-against-
CITY OF NEW YORK et ano.,

07 Civ. 2083 (WHP) MEMORANDUM & ORDER

Defendants.
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WILLIAM H. PAULEY III, District Judge: Plaintiff, the United States of America (the "United States"), brings this action
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), against the City of New York (the "City") and the NYC Department of Transportation ("DOT"). The United States alleges that Defendants engaged in a pattern or practice of discrimination on the basis of sex in hiring bridge painters. On June 27, 2007, this Court granted requests to intervene by the Structural Steel and Bridge Painters of Greater New York, Local Union No. 806 (the "Union"), as well as individual plaintiffs Esfrosini Katanakis ("Katanakis"), Helen Jackson ("Jackson"), Lulia Oliskovicz ("Oliskovicz"), and JoAnne Rush ("Rush") (collectively "Plaintiff-Intervenors"). Plaintiffs seek injunctive relief, including job offers with retroactive seniority and back pay. Defendants move for summary judgment. For the following reasons, Defendants' motion for summary judgment is granted in part and denied in part.

Case 1:07-cv-02083-WHP Document 46 Filed 07/02/09 Page 2 of 17
BACKGROUND In 1992, the City's Department of Personnel administered a civil service examination for Bridge Painters. (Defendants' Local Rule 56.1 Statement of Undisputed Facts dated Oct. 31, 2008 ("Def. 56.1") ~ 1.) Defendants hired Bridge Painters from the civil service eligible list established as a result ofthat exam until it expired in 1994. (Def. 56.1 ~ 5.) Despite DOT's repeated requests for a new Bridge Painter examination, the City's Department of Citywide Administrative ServicesI ("DCAS") did not administer another Bridge Painter Examination until 2004. (Def. 56.1 ~ 7.) The City claims its inaction was justified by the lack of examiner resources and the small number of Bridge Painters who were hired provisionally in the years after 1994. (Def. 56.1 ~~ 8,13,39,55,68.) While DOT planned to renovate its locker room space to accommodate females in the mid-I 990s, the modifications were not completed until approximately 2002. (Def. 56.1 ~ 9; Deposition transcript of Earlene Powell dated Mar. 26, 2008 ("Powell Dep. Tr.") at 264.) In any event, Defendants assert that other locker rooms were available for use by female employees. (Powell Dep. Tr. at 267.) Plaintiffs challenge that assertion and contend that there were no facilities for women until 2003. (Responsive Statement of Plaintiff Pursuant to Local Civil Rule 56.1 (b) dated Dec. 10, 2008 ("PI. 56.1") ~ 9.)
I In 1996 the New York City Department of Personnel merged with the New York City Department of General Services to form DCAS. (Def. 56.1 ~ 2.)
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1. Hiring Periods A. The 1997-1998 Hiring Period In October 1997, DOT posted a vacancy announcement seeking applications for
the position of Bridge Painter (the "1997 Posting"). (Def. 56.1 1 13.) Initially, applications were
limited to current full-time DOT employees. (Def. 56.1 1 14.) DOT claims that its Bridge
Painter Division had a general practice of disseminating vacancy announcements internally and
then, if vacancies remained, opening the positions to all City employees. (Def. 56.1 1 14.)
Plaintiffs claim that this practice is peculiar to the Bridge Painter Division, and that DOT typically publicizes vacant positions through newspaper advertisements and other channels. (PI.
56.1 1 14.) The 1997 Posting was re-advertised in February 1998 to all City employees (the "1998 Posting''). (Def. 56.1 1 15.)
The minimum qualifications for Bridge Painter include: "Five years of full-time satisfactory experience acquired within the last ten years in painting bridges, towers, tanks and other elevated steel structures, using rigging and scaffolding" (the "Five Year Experience
Requirement") and a commercial driver's license. (Def. 56.1 11 17-18; Declaration of Bruce
Rosenbaum dated Oct. 31,2008 ("Rosenbaum Decl.") Ex. F at 00002: Job Vacancy Notice; Rosenbaum Decl. Ex. H at 00044: Bridge Painter Job Description.) The 1997 and 1998 Postings required "[pJossession ofa Class B Commercial Driver License valid in the State of New York." (Job Vacancy Notice at 00001-02.) In contrast, the DCAS job description for Bridge Painter provided: "[cJandidates will be appointed subject to the receipt of a Class B Commercial Driver License valid in the State of New York with no restrictions, within the probationary period." (Bridge Painter Job Description at 00044.)
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DOT received applications from twenty-two male and two female candidates as a result of the 1997 and 1998 Postings. Jackson and Rush were the females. Neither received an interview. (Def. 56.1 ~~ 19-21,23.)
Defendants contend that Jackson's resume revealed that she did not meet the Five Year Experience Requirement. (Def. 56.1 ~ 21.) According to Defendants, the Five Year Experience Requirement is calculated by determining whether an applicant has worked as a Bridge Painter for a total of 60 months within the last ten years. (Deposition transcript of Joseph Lamberson dated Jan. 14,2008 ("Lamberson Dep.") at 129, 131.) In New York, depending on the severity of the weather, Bridge Painters customarily work eight or nine months per year. (Deposition transcript of Jure Dzida dated Mar. 6, 2008 at 17-18.) DCAS General Examination Regulations, which are "applicable to all examinations conducted by [DCAS] for positions in the competitive, non-competitive and labor classes," provide: "A maximum of one year of experience will be credited for each 12 month period." (Reply Declaration of Bruce Rosenbaum dated Dec. 24, 2008 ("Rosenbaum Reply Dec!.") Ex. YY: DCAS General Examination Regulations at Regulation E.1, E.12.2.) Joseph Lamberson, DOT's Bridge Division Director of Administration, testified that a determination about whether an applicant satisfies the Five Year Experience Requirement is not easily discemable from a resume, and often requires a conversation with the applicant. (Lamberson Dep. at 129-30.)
Plaintiffs dispute Defendants' construction of the Five Year Experience Requirement. According to Plaintiffs, neither the job postings nor the job description for Bridge Painter state that an applicant must have sixty months experience. (Job Vacancy Notice at 00001-02; Bridge Painter Job Description at 00044.) Plaintiffs also assert that DOT interviewed
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five male candidates with fewer than sixty months of qualifying work experience within the last ten years and hired two of them. (PI. 56.1 ~ 21.)
Defendants assert that then Acting Director of Bridge Painting, Michael Tohl ("Tohl"), and the Bridge Division Deputy Director Earlene Powell ("Powell"), attempted to contact Rush to schedule an interview, but the phone number listed on her resume was not current. (Def. 56.1 ~ 22.) According to Rush, Powell also sought the Union's help in reaching her. (PI. 56.1 ~ 22(a).) When they finally spoke, Powell informed Rush that she would not be interviewed because she did not possess a commercial driver's license. (PI. 56.1 ~ 22(a).) Powell denies ever speaking with Rush. (Def. 56.1 ~ 26.) After learning that a male applicantNicholas Krevatas-was hired, Rush discovered that applicants could obtain a commercial driver's license during their probationary year as a Bridge Painter. (De£ 56.1 ~ 24.) Plaintiffs also maintain that two males received job offers in 1998, even though they provided out-of-date telephone numbers on their applications. (PI. 56.1 ~ 22(b).) Ten males were hired as a result of the 1998 interviews.2 (Def. 56.1 ~ 35.)
B. The 1999 Hiring Period In December 1998, Leonid Levit ("Levit") replaced Tohl as Director of Bridge
Painting. (Def. 56.1 ~ 34.) In July 1999, DOT posted a vacancy notice for Bridge Painters limited to DOT employees (the "1999 Posting"). (Def. 56.1 ~ 39; Rosenbaum Decl. Ex. F at 00003: The 1999 Posting.) Twelve men and two women applied. Jackson applied but was not interviewed. (Def. 56.1 ~~ 41-42.) The parties disagree whether Jackson had the requisite five
2 Plaintiffs contend that an eleventh male hired in September 2000, was interviewed in 1998. (PI. 56.1 ~ 35.)
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years of bridge painting experience when she applied in 1999. (PI. 56.1 ~ 42(b); Def. 56.1 ~ 42.) Oliskovicz, the other female, was interviewed. (Def. 56.1 ~ 43.) DOT claims that
candidates were ranked on the basis of their interview performance. (Def. 56.1 ~~ 48-49.) While DOT anticipated extending an offer to Oliskovicz, budgetary constraints permitted only two offers. (Def. 56.1 ~~ 50-51.)
Plaintiffs assert that DOT has no policy requiring the ranking of candidates based on their interviews. (PI. 56.1 ~ 48.) Plaintiffs also maintain that DOT informed Union representatives at a labor-management meeting that Oliscovicz had not been hired because DOT lacked changing facilities for females. (PI. 56.1 ~ 51 (a); Deposition transcript of Joseph Ramaglia dated Feb. 26, 2008 at 23,26-27.) Finally, Plaintiffs assert that the budgetary constraints arguments is a red herring because DOT hired a third male in 2000. (PI. 56.1 ~ 49(b).)
c. The 2001 Hiring Period
In April 2001, another Bridge Painter vacancy was posted within DOT. In May 2001, the posting was circulated citywide (the "2001 Posting"). (Def. 56.1 ~ 55.) Sixteen males and one female applied. (Def. 56.1 ~ 59.) DOT interviewed Katanakis, the female, and a number of males. (Def. 56.1 ~ 61.) According to the deposition testimony, Levit coached several interviewees, including Katanakis. (Deposition transcript of Michele Vulcan dated Apr. 14, 2008 at 61; Powell Dep. Tr. at 226.) Three males were recommended for hiring, but no offers were made because of budgetary constraints. (PI. 56.1 ~ 63; Def. 56.1 ~ 66.)
D. The 2002 Hiring Period In June/July 2002, a final vacancy notice was posted (the "2002 Posting"). (Def.
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56.1 ~ 68.) However, no applicant was interviewed due to budgetary constraints. (Def. 56.1 ~ 69.) DOT has not hired any provisional Bridge Painters since August 2000. (Def. 56.1 ~ 7l.)
II. EEOC Filing On March 6, 2002, Oliscovicz filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC"). (Yu Decl. Ex. 31: Oliscovicz EEOC Charge of Discrimination.) Rush, Katanakis, Jackson, and the Union filed EEOC charges on March 20, March 28, March 29, and April 8, 2002, respectively. (Def. 56.1 ~~ 73-76.)
DISCUSSION I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Davis v. Blige, 505 F.3d 90, 97 (2d Cir. 2007). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In determining whether there is a genuine issue as to any material fact, "[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Liberty
Lobby. 477 U.S. at 255; Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005).
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II. The United States's Pattern-or-Practice of Disparate Treatment Claim A. Legal Standard "Pattern-or-practice disparate treatment claims focus on allegations of widespread
acts of intentional discrimination against individuals." Robinson v. Metro-North Cornmuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001). "To succeed on a pattern-or-practice claim, plaintiffs must prove more tban sporadic acts of discrimination; ratber, tbey must establish that intentional discrimination was tbe defendant's 'standard operating procedure.'" Robinson, 267 F.3d at 158 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,336 (1977». The Government is often tbe plaintiff in a pattern-or-practice action, and it has the "initial burden ... to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers." Teamsters, 431 U.S. at 360. To establish liability, "the Government is not required to offer evidence tbat each person for whom it will ultimately seek relief was a victim oftbe employer's discriminatory policy. Its burden is to establish a prima facie case tbat such a policy existed. The burden then shifts to tbe employer to defeat tbe prima facie showing of a pattern or practice by demonstrating tbat tbe Government's proof is either inaccurate or insignificant." Teamsters, 431 U.S. at 360.
Pattern-or-practice claims differ significantly from individual disparate treatment claims. "In a case involving individual claims of discrimination, the focus is on tbe reason(s) for tbe particular employment decisions at issue. . . . In contrast, tbe initial focus in a pattern-orpractice case is not on individual employment decisions but on a pattern of discriminatory decisionmaking." Thieseen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (lOtb Cir. 2001) (internal citations and quotation marks omitted); see also Robinson, 267 F.3d at 158 n.5
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(distinguishing pattern-or-practice disparate treatment claims from individual disparate treatment claims proceeding under the McDonnell Douglas framework).
"[PJlaintiffs must produce sufficient evidence to establish a prima facie case of a policy, pattern, or practice of intentional discrimination against the protected group.... Plaintiffs have typically depended upon two kinds of circumstantial evidence to establish the existence of a policy, pattern, or practice of intentional discrimination: (1) statistical evidence aimed at establishing the defendant's past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination." Robinson, 267 F.3d at 158 (internal citations omitted). While most pattern-or-practice claims are proved through the use of statistics, "when there is a small number of employees, anecdotal evidence alone can suffice." Sidor v. Reno, No. 95 Civ. 9588 (KMW), 1997 WL 582846, at *10 (S.D.N.Y. Sept. 19, 1997); see also McRevnolds v. Sodexho Marriott Services, Inc., 349 F. Supp. 2d 1, 7 (D.D.C. 2004) ("To establish a prima facie pattern or practice case, 'the plaintiffs must, by statistical evidence, individual testimony, or a combination of the two, make a showing adequate to raise the inference that employment decisions were predicated on an illegal criterion.'" (quoting McKenzie v. SaWYer, 684 F.2d 62, 71 (D.C. Cir. 1982») (emphasis added); E.E.O.C. v. LA Weight Loss, 509 F. Supp. 2d 527, 533 (D. Md. 2007) ("'This prima facie showing may in a proper case be made out by statistics alone, or by a cumulation [sic] of evidence, including statistics, patterns, practices, general policies, or specific instances of discrimination.'" (quoting E.E.O.C. v. Am. Nat'l Bank, 652 F.2d 1176, 1188 (4th Cir. 1981»).
B. Analysis of the Evidence To prove its prima facie case of disparate treatment, the United States argues: (1)
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the provisional hiring of Bridge Painters lacked clear standards; (2) DOT treated male and female applicants differently; and (3) DOT offered shifting explanations for Defendants' refusal to hire female Bridge Painters.
There are genuine issues of material fact regarding the criteria employed to select Bridge Painters. While Defendants contend that DOT's Five Year Experience Requirement means sixty months of Bridge Painting work within the last ten years, neither the job postings nor the Bridge Painter job description refer to a sixty month requirement. The DCAS regulation that "[aJ maximum of one year of experience will be credited for each 12 month period," appears to apply only to "examinations conducted by [DCASJ." However, the City has not administered a civil service examination for Bridge Painter since 1992. Moreover, even if the DCAS regulations apply, it is not clear that DOT measures the experience requirement for Bridge Painters in months rather than years. The ambiguity could give rise to an inference that DOT employed the Five Year Experience Requirement to disqualify certain applicants-in this case, females.
The same holds true for the requirement that applicants possess a Class B Commercial Driver License. While DOT's job postings require possession of such a license, the Bridge Painter job description specifically notes the existence of a one-year grace period to acquire a commercial driver's license. "Such 'subjective and ad hoc' employment practices, ... bolster plaintiffs' claim that defendants discriminated against class members." Wright v. Stem, 450 F. Supp. 2d 335, 366 (SD.N.Y. 2006) ("Multiple courts have observed that greater possibilities for abuse ... are inherent in subjective definitions of employment selection ....") (internal quotation marks and citation omitted).
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Plaintiffs' offer evidence that DOT treated male and female applicants differently. For example, while Defendants assert that Jackson was not interviewed because she lacked the minimum sixty months of experience, Plaintiffs identify five males who were interviewed even though they did not have sixty months of bridge painting experience. In addition, the Bridge Division's Director of Administration testified that interviews of applicants are appropriate to determine whether they possess the requisite sixty months of experience. No such inquiry was made of Jackson. There is also a dispute as to whether Rush was told that she was not being interviewed because she did not have a commercial driver's license. Moreover, an Equal Employment Opportunity ("EEO") representative testified that a male interviewee was coached during the course of his interview. While Defendants argue that other interviewees, including Katanakis, were also coached, this presents another issue for trial.
Other factual disputes warranting a trial include Defendants claim that Oliskovicz was not offered a job offer in 1999 because only two offers could be made for budgetary reasons. However, a third hire in 2000 calls that budgetary justification into question. Plaintiffs also point to statements by DOT officials that female Bridge Painters had not been hired because of the lack of locker rooms or other changing facilities for them. These comments are contradicted by other testimony that DOT had plans as early as 1994 to renovate locker room space to accommodate female Bridge Painters as well as testimony that locker rooms existed in 1999 which could have been used by females. See LA Weight Loss, 509 F. Supp. 2d at 533 (denying summary judgment on pattern-or-practice claim due to disputes in the testimonial evidence).
Accordingly, Defendants' motion for summary judgment dismissing the pattern or practice claim by the United States is denied.
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II. Plaintiff-Intervenors' Claims A. Pattern-or-Practice Claims Courts have held that an individual cannot maintain a private, non-class, pattern-
or-practice claim. See. e.g., Rambarran v. Mount Sinai Hosp., No. 06 Civ. 5109 (DF), 2008 WL 850478, at *8 (S.D.N.Y. Mar. 28, 2008) (collecting cases); Tucker v. Gonzales, No. 03 CIV 3106 (LTS) (FM), 2005 WL 2385844, at *5 (S.D.N.Y. Sept. 27, 2005) (dismissing pattern-orpractice claim as duplicative of disparate treatment claim); see also Lowery v. Circuit City Stores. Inc., 158 F.3d 742, 759 (4th Cir. 1998) ("individuals do not have a private, non-class cause of action under § 1981 or Title VII"); Celestine v. Petroleos de Venezuella S.A., 266 F.3d 343,356 (5th Cir. 2001) ("As the plaintiffs are before us in their individual capacities ... the Teamsters method is not available to them"); Bacon v. Honda of Am. Mfg.. Inc., 370 F.3d 565, 575 (6th Cir. 2004) ("We therefore hold that the pattern-or-practice method of proving discrimination is not available to individual plaintiffs."). Given the significant difference between individual disparate treatment claims and pattern-or-practice claims, this Court holds that individuals cannot maintain a private, non-class, pattern-or-practice claim against Defendants. To the extent Plaintiff-Intervenors rely on a pattern-or-practice theory of disparate treatment, Defendants' motion for summary judgment is granted and those individual pattern-orpractice claims are dismissed.
B. Individual Disparate Treatment Claims I. Timeliness The Plaintiff-Intervenors also bring individual disparate treatment claims pursuant
to 42 U.S.C. § 2000e-5, the section that governs Title VII actions by private parties. "Filing an
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administrative complaint with the EEOC is a statutory prerequisite to maintaining a Title VII action in the district court." Pikulin v. City Univ. of N.Y., 176 F.3d 598, 599 (2d Cir. 1999). "An employment discrimination claim must be filed with the EEOC within 300 days of the alleged discrimination in a state, like New York, with a fair employment agency." Pikulin, 176 F.3d at 599 (citing 42 U.S.C. § 2000e-5(e».
Oliskovicz filed her charge on March 6, 2002; therefore, any acts prior to May 10, 2001 are time barred. Because Rush filed her charge on March 20,2002, acts prior to May 24, 2001 are time barred. Since Katanakis filed her charge on March 28,2002, any act prior to May 28, 2001 is time barred.3 And any acts occurring prior to June 2, 2001 are time barred with respect to Jackson, because she filed her charge on March 29, 2002.
The statute oflimitations for an unlawful employment practice begins to run when
the employee "knew or had reason to know of the injury serving as the basis for [her1claim."
Harris v. City ofN.Y., 186 F.3d 243, 247 (2d Cir. 1999). Therefore, the question is when each Plaintiff-Intervenor knew or had reason to know of DOT's decision not to interview or hire her.
Jackson first applied after she saw the 1998 Posting. While the record does not indicate when the ten or eleven hires occurred, there is no dispute that they were hired before the 1999 Hiring Period. Therefore, Jackson knew or had reason to know of DOT's decision not to interview or hire her by July 1999-the date of the 1999 Posting. Accordingly, DOT's allegedly discriminatory failure to interview Jackson in 1998 is time barred. As for Jackson's application in response to the 1999 Posting, there is no evidence that she was told she would not receive an interview. The next job vacancy notice was made available to all City employees in May 2001.
3 Defendants concede that Katanakis' s claim is not time barred.
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Therefore, Jackson had reason to know that she was not granted an interview sometime in May 2001. Accordingly, DOT's allegedly discriminatory failure to interview Jackson in 1999 is also time barred.
Rush also applied pursuant to the 1997 and 1998 Postings. However, Rush claims that sometime in 1998, after speaking with Powell, she was informed that she was not being interviewed because she did not possess a commercial driver's license. Thus, Rush knew or had reason to know of DOT's decision not to interview her no later than 1998. Accordingly, her claim is time barred.
In 1999 DOT interviewed Oliskovicz after she responded to the 1999 Posting. That posting was only distributed among DOT employees. While no one told Oliskovicz that DOT would not be extending ajob offer to her, the next job posting within DOT occurred in April 2001. Therefore, Oliskovicz had reason to know that she was not offered a Bridge Painter position in April 2001. Thus, DOT's allegedly discriminatory failure to hire Oliskovicz in 1999 is also time barred.
To bring themselves within the statute oflimitations, the Plaintiff-Intervenors
invoke the continuing violation exception. "[A1continuing violation may be found where there
is proof of specific ongoing discriminatory polices or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). However, the Supreme Court has limited the continuing violation doctrine by holding that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock
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Case 1:07-cv-02083-WHP Document 46 Filed 07/02/09 Page 15 of 17
for filing charges alleging that act." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Court identified "termination, failure to promote, denial of transfer, or refusal to hire" as examples of such discrete discriminatory acts. Morgan, 536 U.S. at 114. Accordingly, the discriminatory acts alleged by the Plaintiff-Intervenors are discrete acts and do not constitute a continuing violation.4
2. McDonnell Douglas Framework Title VII's disparate treatment provision "makes it unlawful for an employer 'to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Ricci v. DeStefano, -- S.Ct. ---,2009 WL 1835138, at *13 (U.S. June 29, 2009) (citing 42 U.S.C. § 2000e-2(a)(l». A plaintiff in a discriminatory failure-to-hire context must establish as part of a prima facie case that the position remained open after plaintiff was rejected, and the employer continued seeking applicants who shared the same qualifications. See Gaffney v. Dep't ofInfo. Tech. and Telecommc'ns., 536 F. Supp. 2d 445, 462 (S.D.N.Y. 2008). When a position is not filled and a defendant continues to seek similarly-qualified applicants, a reasonable inference of discrimination may be drawn. See Gaffney, 536 F. Supp. 2d at 463. Here, DOT never filled the provisional Bridge Painter position for which Katanakis applied and has not hired a provisional Bridge Painter since August 2000. Moreover, while DOT circulated a job posting for Bridge
4 While Morgan did not address whether the continuing violation exception couId be applied to pattern-or-practice claims, see Morgan 536 U.S. at 115 n.9, this Court need not reach that question because of its holding that Plaintiff-Intervenors cannot bring individual pattern-orpractice claims.
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Case 1:07-cv-02083-WHP Document 46 Filed 07/02/09 Page 16 of 17

Painter in June 2002, it never scheduled any interviews. Accordingly, Katanakis fails to establish a prima facie case of disparate treatment and Defendants' motion for sununary judgment is granted dismissing her claim.

CONCLUSION For the foregoing reasons, Defendants' motion for sununary judgment is granted in part and denied in part. Defendants' motion for sununary judgment dismissing PlaintiffIntervenors' claims is granted. Defendants' motion for sununary judgment dismissing the pattern-or-practice claim of the United States is denied.

Dated: July 2, 2009 New York, New York

SO ORDERED:

''''-J ~~ ~o.\.,

WILLIAM H. PAULEY III

r--

U.S.DJ.

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Case 1:07-cv-02083-WHP Document 46 Filed 07/02/09 Page 17 of 17
Counsel ofRecord: Jeannette Anne Vargas, Esq. 86 Chambers Street New York, NY 10007 Counsel for PlaintiffUnited States Howard Wien, Esq. 61 Broadway, Suite 25 New York, NY 10006 Counsel for Plaintiff-Intervenors Bruce Rosenbaum, Esq. NYC Law Department 100 Church Street New York, NY 10007 Counsel for Defendants
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA,

Plaintiff,

07 Civ. 2083 (WHP)

-against-

OPINION & ORDER

CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION,
Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
WILLIAM H. PAULEY III, District Judge:

I~ Ii
' ELECI'RONlCAILY FlUID III DDAOTCE#F:ILED: s7rt,{aclo /.'

Plaintiff United States of America (the "Government") brings this Title VII

pattern-or-practice action against the City of New York (the "City") and the New York City

Department of Transportation (the "DOT"). The Government alleges that the Defendants

discriminate against women by hiring only men to work as City bridge painters. The evidence

adduced at trial reveals a municipal division in America's largest city that refuses to hire women,

in spite of societal norms, sound business practice, and city, state, and federal law. The Supreme

Court's observation 37 years ago that "the sex characteristic frequently bears no relation to

ability to perform or contribute to society" I is only underscored by actions like this one. This

Court makes the following findings of fact and conclusions oflaw as required under Fed. R. Civ.

P. S2(a) and determines that the United States has established its pattern-or-practice disparate

treatment claim.

I Frontiero v. Richardson, 411 U.S. 677,686 (1973).

FINDINGS OF FACT 1. New York City Bridge Painters
a. Description & Duties From 1996 to 2001, DOT employed approximately 40 in-house bridge painters to
care for its elevated iron and steel bridges (the "Bridge Painters"). (Trial Transcript ('Tr.") at 140,180-82.) Bridge Painters work for the City's Division of Bridges in a unit known as the Bridge Painter Section. The Bridge Painter Section has a capital crew, which is responsible for working with private contractors to paint large structures, and an in-house crew, which maintains smaller elevated structures and cleans grafitti. (Tr. at 181, 188.)
In addition to painting smaller iron and steel structures, Bridge Painters chip, clean, and prepare iron and steel surfaces for painting. (Government ("Gov.") Ex. 10: Bridge Painter Job Vacancy Notice ("Vacancy Notice").) Bridge Painters use hand tools on a daily basis and also work with power tools, such as wet blasters and needle guns, to remove old paint and graffiti. (Tr. at 186-87.) They construct their own rigging as well as containment structures to capture falling paint, often containing lead. (Tr. at 188-89.) Bridge Painters must know how to work within these containment structures and are expected to conduct road closures when work is being performed in areas of vehicle traffic. (Tr. at 188-89.)
Painting bridges is a seasonal occupation because structural steel can only be painted when the outside temperature is above 35 degrees-at colder temperatures the paint cracks. (Tr. at 28-29,496.) While painters in the private sector generally work seven to nine months each year, depending on weather conditions, DOT Bridge Painters are employed yearround. (Tr. at 485,543-45.) DOT Bridge Painters paint outdoor structures from March until
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November and then spend the winter months indoors at a Department of Environmental Protection ("DEP") plant on Staten Island. (Tr. at 502.) In addition, DOT Bridge Painters receive more desirable compensation packages than their private-sector counterparts, including health insurance, annuities, vacation days, and sick days. (Tr. at 533,583.)
Structural Steel and Bridge Painters of Greater New York, Local Union No. 806 ("Local 806") is the collective bargaining agent for bridge painters employed by private contractors and the City. (Joint Stipulation of Facts attached as Schedule B to the Joint Pretrial Order ("Stipulated Fact") No.1.) Local 806 runs an apprenticeship program for novice painters that allows apprentices to leam to mix paint, tie knots and use the tools of the bridge painting industry, move scaffolding, construct and work in containment structures, and use the protective suits, respirators, and other safety equipment. (Ir. at 16-17,90-91.)
b. Bridge Painter Hiring Procedures & Requirements The DOT Bridge Painter position is a civil service title subject to competitive
examination and City hiring regulations. (Tr. at 175.) In 1992, the City'S Department of Personnel issued a notice of examination for the Bridge Painter position under Examination No. 1133, which had a closing date of January 22,1992. (Stipulated Fact No.2.) The last appointment from the civil service list of eligible candidates established under Examination No. 1133 occurred in 1994. (Stipulated Fact No.3.) In 1996, the Department of Personnel merged with the City's Department of General Services to form the Department of Citywide Administrative Services (the "DCAS"). (Stipulated Fact No. 34.) Between 1996 and 2003, the DOT made five separate requests of DCAS to schedule a civil service exam to hire Bridge
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Painters. (Stipulated Fact No. 35.) However, the DCAS did not announce a Bridge Painter exam until 2004. (Stipulated Fact No. 36.)
i. The Vacancy Notices In the interim, hiring was conducted on a provisional basis. (Tr. at 175.) DOT issued vacancy notices when Bridge Painter positions became available. (Tr. at 175.) During the relevant period, DOT issued four sets of notices-in October 1997 and February 1998 (the "1997-1998 Postings"), in July 1999 (the "1999 Posting"), in April and May 2001 (the "2001 Postings") and in June 2002 (the "2002 Posting"). (Stipulated Facts Nos. 5, 13,21,42.) Since the start of provisional hiring, DOT has hired thirteen men as Bridge Painters. (Stipulated Facts Nos. 10, 16, 18.) DOT has not appointed a woman to that job title. (Stipulated Fact No. 33.)
The vacancy notices for the Bridge Painter position listed "Qualification Requirements" as "[f]ive years of full-time satisfactory experience acquired within the last ten years in painting bridges, towers, tanks, and other elevated steel structures, using rigging and scaffolding" (the "Five-Year Experience Requirement"). (Vacancy Notice.) Additionally, the vacancy notices listed "License Requirements" as "(p]ossession of a Class B Commercial Driver License valid in the State of New York" (the "Class B License Requirement"). (Vacancy Notice). However, in practice, applicants were required to obtain a Class B commercial driver license ("COL") only at the start of their employment with DOT, and the majority of candidates for the position in 1998 did not have a COL at the time they applied or were interviewed. (Tr. at 145-46.) Further, as of January 1999, DOT policy no longer required that an applicant "possess" a COL; rather, the policy required the applicant acquire the license within 12 months of being
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hired. (Tr. at 284-289; Defendant's ("Def.") Ex. HH: NYCDOT Memorandwn re: Bridge Painter License Requirements dated Jan. 13, 1999.)
The first vacancy notice issued in October 1997 limited the applicant pool to current DOT employees. (Tr. at 143-44; Vacancy Notice.) In the February 1998 vacancy notice, DOT expanded the applicant pool to all current City employees. (Tr. at 144.) Because DOT had trouble filling available positions from this expanded pool, the Bridge Painter Section also considered non-City employees who applied in response to the vacancy notices. (Tr. at 146-47, 721.) Michael ToW ("Tohl"), who served as Acting Director of Bridge Painting from late 1996 to December 1998, was unaware of any limitations on the hiring of provisional employees. (Tr. at 139-40, 175-76.) Moreover, the Bridge Painter Section employed no "formal mechanism" to notify the public about job vacancies. (Tr. at 721-22.) As a result, the Bridge Painter Section primarily resorted to "word-of-mouth" recruiting by Bridge Painters who informed Local 806 members of new openings. (Tr. at 147-48, 565, 721.) Tohl "rel[ied] on this fraternity" of existing bridge painters and acknowledged that Local 806 members were "an easy way to reach out." (Tr. at 148.) Word-of-mouth recruiting was especially effective in apprising potential applicants of DOT's unpublished modifications to the Class B License Requirement and expansion of the hiring pool to non-City employees. (Tr. at 285-86, 291-92.)
ii. Applicant Screening & Interview Process Applications and reswnes received in response to the vacancy notices were initially screened at DOT. (Tr. at 147-49.) Unqualified applications were endorsed "NQ," and those applicants were never interviewed. (Tr. at 380-81.) Qualified applicants were contacted for an interview by DOT employee Earlene Powell ("Powell"), a clerical assistant in 1998 who
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was promoted to Deputy Director of Bridge Painting in late 1999. (Tr. at 371, 396-400, 411 ; Stipulated Fact. No. 20.)
Interviews were conducted in connection with the 1997-1998, the 1999, and the 200 I Postings. However, no interviews were conducted following the 2002 Posting. (Stipulated Facts Nos. 7, 15, 23, 44.) For the 1997-1998 Postings, the interview panel consisted of Acting Director of Bridge Painting Tohl and two supervising Bridge Painters Vincent Babajko ("Babajko") and Ed Obara ("Obara"). (Stipulated Fact No. 12.) A liaison to DOT's Equal Employment Opportunity ("EEO") office was also present at each interview. (Stipulated Fact. No. 12.) For both the 1999 and 2001 Postings, the interview panel consisted of Leonid Levit ("Levit"), the new Director of Bridge Painting as of December 1998, various Bridge Painting Supervisors, and an EEO representative. (Stipulated Facts Nos. 15, 19,23; Tr. 294,420.) While not a panel member, Powell was also present at the interviews for the 1999 and 200 I Postings. (Stipulated Facts Nos. 15,23.)
II. Female Applicants for the Provisional Bridge Painter Position This Court permitted Local 806 and individual Plaintiffs Joann Rush ("Rush"),
Helen Jackson ("Jackson"), Luzia Oliskovicz ("Oliskovicz"), and Efrosini Katanakis ("Katanakis") to intervene in this action (collectively "Plaintiff-Intervenors"). Leave to intervene was granted after the Equal Employment Opportunity Commission ("EEOC") engaged in a soporific five-year investigation with little regard for the passage of time and the aging
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process.2 On July 7, 2009, this Court granted summary judgment to the City on all PlaintiffIntervenors' claims but denied the motion with respect to the claim by the United States. See United States v. City of New York, 631 F. Supp. 2d 419 (S.D.N.Y. 2009).
a. Joann Rush At the time of her DOT application, Rush had worked for more than a decade as
an apprentice and journeyman bridge painter. (Tr. at 32.) From 1984 to 1986, she was an apprentice bridge painter for Belt Paint and Canopy Company on a Long Island Railroad ("LlRR") project. (Tr. at 5-6, 9; Gov. Ex 18A: Cover Letter of Joann Rush dated Aug. 8,2001.) One of Rush's primary tasks was to operate the sandblasters--{)r "run the hoppers"-and load twelve I OO-pound bags of sand into machines every fifteen minutes. (Tr. at 6-7.) In addition to sandblasting, Rush repaired sandblasters, mixed paint, removed paint with both hand tools and power tools, and assisted in lead containment. (Tr. at 7-9.)
After the LlRR project, Rush worked for approximately two years as an apprentice on the Kosciuszko Bridge connecting Queens and Brooklyn. (Tr. at 10, 14.) Rush continued to perform blasting and also ran the blasting crew of six to eight men. (Tr. at 12.) Additionally, she helped the crew set up the cables-known as rigging-that support bridge painters working at heights and placed scaffolding on cables. (Tr. at II.) She also performed lead containment and paint removal by chipping, wire brushing, and needle gunning. (Tr. at 13.)
From 1988 to 1996, Rush continued work as a bridge painter with R.J. Ramano Painting ("Ramano") of Flushing, New York. (Tr. at 17,22-23; Gov. Ex. 8: Resume ofJoann
2 On March 6, 2002, Oliskovicz filed a charge of discrimination with the EEOC. Rush, Katanakis, Jackson, and the Union filed EEOC charges on March 20, March 28, March 29, and April 8, 2002, respectively.
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Rush undated ("First Rush Resume") at Bates No. 00404; Gov. Ex. 18A: Resume of Joann Rush dated Aug. 9, 2001 ("Second Rush Resume") at Bates No. 00350.) Her fIrst assignment with Ramano was on the Brooklyn Bridge and included painting the bridge's towers. (Tr. at 18.)
While working on the Brooklyn Bridge, Rush applied for the Local 806 apprenticeship program and was accepted after completing an aptitude test. (Tr. at 14-15.) Once accepted, Rush completed a "crane climb," which requires climbing a one hundred foot tall crane while carrying paint supplies, painting an area at that height, and then safely descending to the ground. (Tr. at 15-16.) Rush passed the crane climb test. (Tr. at 16.) She then completed approximately four years of training in the Local 806 program while continuing to work as a bridge painter for Ramano. (Tr. at 16-18.)
After graduating, Rush worked on a Long Island Expressway (the "LIE") project. (Tr. at 20.) Rush was primarily a painter on the LIE project, working on scaffolds at heights, although she also blasted and set up rigging and containment. (Tr. at 24-26.) After three to four years on the LIE project, Rush took short term jobs with George Campbell Company on the George Washington Bridge, worked on elevated steel structures for the J-Line Subway, and painted outdoor and indoor structures for L&L Painting. (Tr. at 26-28.) Until Rush took inside painting jobs in 1998, she had worked continuously as a bridge painter, excepting some offseason periods onjobs that did not "go through the winter." (Tr. at 28.)
Rush became interested in a DOT Bridge Painter position because it offered stable benefIts and a consistent work schedule. (Tr. at 31.) In late 1997 or early 1998, Rush applied for the provisional Bridge Painter position with the DOT. (Stipulated Fact No.6.) DOT never contacted her for an interview, and, as 1998 unfolded, Rush could not fInd steady work in the
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private sector. (Tr. at 29, 43; Stipulated Fact No. 26.) Rush eventually contacted Powell and learned that DOT would not hire her because she did not have a CDL. (Tr. at 36-37.) Rush remained in contact with Local 806 to check on job openings for the next three years, but found no further full-time work as a bridge painter. (Tr. at 29, 44.)
In August 200 I, Rush submitted a second resume to the DOT but was never called for an interview. (Tr. at 40.) In 2004, she moved to South Carolina. (Tr. at 77.)
b. Helen Jackson Jackson applied and was admitted to the Local 806 apprenticeship program in
March 1992. (Tr. at 90.) That same month, she started as an apprentice with the Four Silver Star Company working on highway overpasses, including the Clearview Expressway, Cross-Island Parkway, and Grand Central Parkway. (Tr. at 92,94-95.) Her duties were mixing paint and providing journeymen painters with supplies. (Tr. at 95.) From April to November 1993, Jackson worked as an apprentice for George Campbell on the Chelsea Piers structural steel skeleton. (Tr. at 95-97.) Jackson also obtained certificates in lead abatement and Hazmat work-such as proper use of protective suits, moving scaffolding, and containment proceduresthrough the Local 806 apprenticeship program. (Tr. at 93-94.)
After graduating in early 1994, Jackson worked full-time from March to November 1994 for Yonkers Construction on the structural-steel overpasses of the BrooklynQueens Expressway (the "BQE"), where she painted on scaffolding approximately 20 to 30 feet off the ground. (Tr. at 91-92, 97-98.) In March 1995, Jackson again began full-time work for Keystone Construction ("Keystone") on the structural steel of the Triborough Bridge along the Bruckner Expressway. (Tr. at 98-99.) In this position, Jackson removed rust and paint with
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sanders and needle guns and built and worked within lead containment. (Tr. at 99-100.) Her job with Keystone concluded in October 1995. (Tr. at 100.) At some point in late 1995, Jackson submitted a resume to DOT for the Bridge Painter position but was never contacted. (Tr. at 10507.)
In March 1996, Jackson started work with L&L Painting as a journeyman bridge painter on the Tappan Zee Bridge catwalk. (Tr. at 100.) She removed sand from the blasters, applied new paint to the bridge, moved material, and performed containment. (Tr. at 100-01.) She completed her work with L&L Painting on the Tappan Zee Bridge in September 1996. (Tr. at 101.) Jackson was not able to find jobs during the winter months. (Tr. at 101.)
From May to August 1997, Jackson worked full-time on structural steel along the Amtrak tracks on the Hudson River Parkway. (Tr. at 101-02.) When that job ended, Jackson had difficulty finding new bridge painting jobs. She was able to secure only two months of work with George Campbell on the George Washington Bridge. (Tr. at 102-03.) This was her last bridge painting job-after September 1998, Jackson was unable to find work in bridge painting. (Tr. at 103.) In 1998, Jackson updated her old resume and resubmitted it to the DOT. (Tr. at 107.) DOT never interviewed her. (Stipulated Fact. No. 27.)
c. Luzia Oliskovicz Oliskovicz began working as a bridge painter in 1988 for George Campbell. (Tr.
at 576.) She completed training in the Local 806 apprenticeship program. (Tr. at 576-77.) After graduating, Oliskovicz worked for ten years as a journeyman bridge painter. (Tr. at 576-77.) She continued at George Campbell-working March through November each year-until 1992, when she moved to a job with a company called Dynamic on the Hudson River Parkway. (Tr. at
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579-80.) On that job, Oliskovicz constructed rigging, built scaffolding, and removed paint and rust with air compressors. (Tr. at 580.) She then worked for Yonkers Construction on the Manhattan Bridge, using needle guns and chisel needles to remove rust and paint while positioned under the train tracks. (Tr. at 581.) Oliskovicz continued thereafter on a number of projects on elevated steel structures sandblasting, removing paint with power tools, and painting. (Tr. at 581-82.)
Oliskovicz applied for the Bridge Painter position in response to the 1999 Posting. (Stipulated Facts Nos. 15,28.) The Defendants determined that Oliskovicz satisfied the DOT Five-Year Experience Requirement for the Bridge Painter position. (Stipulated Fact No. 29.) At the time of her application, Oliskovicz did not hold a CDL but was taking classes to earn the license. (Tr. at 583.) She also moved to New York City a few weeks after applying on the belief that she had to reside within the five boroughs. (Tr. at 584.) On September 29, 1999, DOT interviewed Oliskovicz but never offered her ajob. (Stipulated Facts Nos. 15,16.) Since that time, Oliskovicz has worked as an interior painter. (Tr. at 589.)
d. Efrosini Katanakis Katanakis has worked as a bridge painter for approximately 20 years. (Tr. at
550.) She started in 1987 for a company called Promo Pro. (Tr. at 550-51.) Katanakis continued with that company for ten years doing sandblasting, waterblasting, painting, building and breaking down rigging, and constructing containment. (Gov. Ex. 15: Resume ofEfrosini Katanakis dated Apr. 19,2001 ("Katanakis Resume") at Bates No. 00318.) She constructed containment systems for the Bear Mountain Bridge, the BQE, the Eastern Parkway, the
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Verrazano Bridge, the Manhattan Bridge, the Brooklyn Bridge, and jet fuel tanks at an airport. (Tr. at 552-53.)
In the late 1990s, Katanakis applied to the Local 806 apprenticeship program so she could join the union and obtain steady full-time work in New York City. (Tr. at 556.) She continued to work for Promo Pro while completing the program. (Tr. at 557.)
From February 1999 through October 2000, Katanakis worked for Liberty Maintenance performing blasting and painting, and building rigging, platform scaffolding and containment on the Major Deegan Expressway. (Tr. at 557-58; Katanakis Resume.) From October to December 2000, she performed similar work on the Manhattan Bridge and erected scaffolding and containment that wrapped around the bridge towers. (Tr. at 558; Katanakis Resume.) Throughout her career, Katanakis has worked continuously during bridge painting season and worked indoors during the winter months. (Tr. at 555.)
Katanakis applied for the DOT Bridge Painter position in response to the 200 I Postings. (Stipulated Facts Nos. 31, 38.) DOT determined that she met the Five-Year Experience Requirement and interviewed her on August 30, 200 I, but she never heard from City again. (Stipulated Facts Nos. 32, 38; Tr. at 562.)
III. Provisional Bridge Painter Hiring a. 1997-1998 Postings In 1997, the DOT considered twenty-two male applicants and two female
applicants-Rush and Jackson-for ten new Bridge Painter positions. (Stipulated Facts Nos. 6, 8, 10.) Acting Director Tohl reviewed each resume to determine whether the applicant met the
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Five-Year Experience and Class B License Requirements. (Tr. at 147, 175-76.) Tohl was unaware of any civil service guidelines for provisional employees and "depended on personnel to guide [him] in hiring procedures." (Tr. at 175-76.) Tohl acknowledged he did not apply the Five-Year Experience Requirement strictly and interviewed candidates even "[i]fthey were slightly short." (Tr. at 174.) That concession contradicts other DOT officials, including Levit, who insisted that the Five-Year Experience Requirement was rigidly measured by months worked-that is, 60 months of work experience in the previous ten years. (Tr. at 167-68,24555,770-76.) Defendants do not cite any written policy or document defining the experience requirement as 60 months. (See Tr. at 169.)
In February 1998, DOT interviewed seventeen of the twenty-two male applicants and neither female applicant. (Stipulated Fact No.7; Tr. at 40,108.) According to Powell, the "only" applicants not called in for interviews in February 1998 were Rush and Jackson. (Tr. at 385.) Powell testified that she received Rush's resume and tried to schedule an interview for her. (Tr. at 385-86.) However, Powell could not reach Rush at the phone number on her resume. (Tr. at 386.) Powell made no other effort to contact Rush, nor did she ask Local 806 for assistance. (Tr. at 386.) Jackson, the other female applicant, was not scheduled for an interview because her resume was marked NQ by an unknown person. (Tr. at 383; Gov. Ex. 7: Resume of Helen Jackson ("Jackson Resume").)
As a result of the 1998 interviews, DOT appointed ten men as provisional Bridge Painters: Thomas Anzalone, Julio Brito, Thomas Jones, Nicholas Krevatas, Goncalo Lima, Arlindo Lima, Drago Milin, Joao Nascimento, Milan Radovic, and Michael Scotti. (Stipulated Facts Nos. 8, 10.) DOT recommended the hiring of two additional candidates-Christopher
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Serino and Ivan Bogovic-but ultimately did not extend offers for reasons unrelated to their sex or work experience. (Stipulated Fact No.9.)
At least six ofthe male candidates interviewed in February 1998-including two who were offered provisional positions-had less than sixty months of work experience as bridge painters. (Gov. Ex. 3: Resumes from 1997-1998 Postings ("1997-1998 Resumes") at Bates Nos. 00258 (Thomas Anzalone), 00259 (Frank Duic), 00272 (Carlos Estrada), 00276 (Christopher Serino), 00282 (Dennis Kenny); Gov. Ex. 11: Resumes from 1999 Posting ("1999 Resumes") at Bates No. 00293 (Frank Mota).) Interviewee Dennis Kenny had only two years of qualifying experience. (Tr. at 160.) Indeed, two men interviewed-Frank Mota and Carlos Estrada-had no qualifying work experience whatsoever, as established by their resumes and by testimony of Tohl and Defendants' Rule 30(b)(6) witness Paul Kahn. (Tr. at 160-61, 737-38.) In contrast to Rush, while the phone number on Christopher Serino's resume was crossed out, a new number was handwritten in its place. (1997-1998 Resumes at Bates No. 00276.)
b. 1999 Posting In July 1999, DOT received applications from twelve men and two women-
Jackson and Oliskovicz-in response to the 1999 Posting for provisional Bridge Painters. (Stipulated Facts Nos. 13, 14,27,28.) There were nine vacant budgeted positions at that time. (Stipulated Fact No. 40.) Levit testified that Powell was solely responsible for screening these resumes and that he saw resumes for the first time at the interviews. (Tr. at 245-46, 252.) According to Levit, Powell's review included a "very thorough" and "by the book" screening of qualifications, particularly the Five-Year Experience Requirement. (Tr. at 252-55.) Powell contradicted Levit and testified that she never reviewed resumes to determine whether applicants
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met the Five-Year Experience Requirement, that Levit never delegated that responsibility to her, and that she would not have known how to make such a determination. She also never flagged a resume as unqualified for lack of experience. (Tr. at 412-14.)
The DOT selected Oliskovicz and nine of the twelve male applicants for interviews in September 1999. (Stipulated Fact No. IS.) Although no DOT employee knows who marked Jackson's resume with an NQ, Defendants maintain that her failure to meet the Five-Year Experience Requirement was the reason she was again not selected for an interview in 1999. (Defendants' Proposed Findings of Fact & Conclusions of Law dated Nov. 29, 2009 at' 95; Jackson Resume; see also Stipulated Fact No. 27.)
It is undisputed that the Bridge Painter Section did not require applicants for provisional Bridge Painter to demonstrate any practical skills during the interview process, although practical skills testing was part of the civil service examination for the Bridge Painter position. (Tr. at ISO, 270.) Rather, during the September 1999 interviews, each candidate was asked an identical set of eighteen questions on technical knowledge. (Stipulated Fact No. IS; Tr. at 259, 267; Def. Ex. EE: Questions for Bridge Painters ("Interview Questions").) Levit alone scored each candidate. (Tr. at 263, 270-72; see Interview Questions.) After the interviews, Levit ranked the candidates based on their scores and then sent his recommended hires to the personnel office. (Tr. at 272.) Although other interview panel members could take notes, the panel did not compare scores or review Levit's scores and candidate rankings. (Tr. at 265-66, 272.)
Levit was unimpressed by Oliskovicz's interview. According to him, she could not answer "a single technical question" unless asked "several times" and was "silent" after several questions. (Tr. at 321.) Oliskovicz, whose first language is Portuguese, testified that she
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could not understand Levit, who speaks with a heavy accent. (Tr. at 585-86, 588.) To address this issue, Levit deviated from the script for each question and "rephrased" it to "help" her understand what he was asking. (Tr. at 321-22.) Although other candidates who could not understand Levit were read the questions by another panel member (Tr. at 261), this courtesy was not extended to Oliskovicz. (Tr. at 587; see also Tr. at 321-22). After the interview, Levit gave Oliskovicz a score of zero-having given no answer-on five questions. (Tr. at 322.) Oliskovicz disputes that and claims to have answered at least two of the five questions. (Tr. at 586-87.) Powell corroborated Oliskovicz and asserted that she answered questions once they were repeated. (Tr. at 419-20.)
While Levit recalls Oiiskoviez's answers, he could not remember the interview answers of any other candidate, as "[ilt is obviously impossible to have such a memory." (Tr. at 319-20.) Credible testimony contradicts Levit's account that Oliskovicz was unresponsive to his questions or that he tried to assist her during the interview. (Tr. at 419-20,586-88.) Levit's demeanor on the stand and his frequent impeachment on cross-examination undermined his testimony. This Court credits Oliskovicz's and Powell's testimony on this matter.
Based on his scoring of the 1999 interviews, Levit ranked the candidates in the following order: (1) Brian Casey, (2) Frank Ouie, (3) Jose Melo, (4) Arlindo Andrade, (5) Anthony Urban, (6) Frank Mota, (7) Luzia Oliskovicz. (Tr. at 322-24; Oef. Ex. EE: Scored and ranked question forms for 1999 applicant interviews.) The top two candidates, Brian Casey and Frank Ouic, were hired in 2000. (Stipulated Fact No. 16; Gov. Ex. 121A: Memorandum from OOT Personnel Coordinator dated Jan. 10,2000.) After her interview, Oliskovicz never heard
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from DOT. (Tr. at 588-89; see Stipulated Fact No. 30.) According to Levit, budget cutbacks prevented him from hiring seven Bridge Painters, including Oliskovicz. (Tr. at 325-28.)
c. Appointment of Anthony Attore In June 2000, Levit conducted an "orientation" interview for Anthony Attore, a
candidate who originally interviewed with Tohl after the 1997-1998 Postings but did not receive an offer. (Tr. at 329-33; StipUlated Fact No. II.) Although Attore had not applied in connection with the 1999 Posting, his resume was resubmitted by Louie Hernandez, a former DOT employee working at City Hall. (Stipulated Fact No. 17; Tr. at 630.) Levit recounted Attore's hiring as follows:
He came and he was in clean clothes, he had good English, okay, and so he can understand command of supervisors, and based on that, okay, I didn't see anything that have to be reported to personnel department that something outrageous happened during his interview. (Tr. at 332.) Levit further conceded that he had approved Attore because "he look like very strong guy." (Tr. at 323 (in original).) Attore was appointed as a provisional Bridge Painter in August 2000. (Stipulated Fact No. 18.) d. 2001 Po stings In April and May 2001, DOT issued vacancy notices for provisional Bridge Painter positions and received resumes from sixteen male applicants and one female applicantKatanakis. (Stipulated Facts Nos. 21, 22, 31.) The DOT determined that Katanakis satisfied the Five-Year Experience Requirement for the position. (Stipulated Fact No. 32.) On August 30, 2001, DOT interviewed eight male applicants and Katanakis. (Stipulated Fact No. 23.) The interviews were conducted by a panel comprised of Levit,
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Babajko, and Jure Dzida ("Dzida"), a supervising Bridge Painter. (Stipulated Facts No. 23.) Powell and Michele Vulcan ("Vulcan"), an EEO liaison, were also present. (Stipulated Fact Nos. 23, 24.) For this set of interviews, Levit prepared a new set of questions which had been reviewed by DOT's EEO office. (Tr. at 256-57.) Following the interviews, Levit, Babajko, Dzida, and Powell met briefly to discuss the candidates. (Tr. at 611-12.) The group appeared to reach a "consensus" as to the three applicants to hire--Anthony Urban, George Krevatis, and Diantamino Lima ("Lima"). (Tr. at 612-13.) According to Levit, Katanakis was not selected on the basis of her interview performance.
DOT representatives disagree sharply over what occurred during Katanakis's interview. Levit described Katanakis as acting both "irritated" and "confrontational" and further stated, "She was offensive." (Tr. at 345-51.) At his deposition, Levit described her as "erratic." (Tr. at 345-47.) In contrast, Powell testified that Levit tried to accommodate Katanakis more than he did other candidates and that he coaxed answers from her. (Tr. at 436-37.) It appears that both Katanakis and Lima received assistance from Levit. (Tr. at 507-09.) Moreover, contrary to Powell's assertions, the male applicant Lima received the most assistance from Levit, which led Vulcan to remove Levit from the room to discuss his coaching behavior. (Tr. at 61415.)
This series of interviews produced no provisional hires. (Stipulated Fact No. 45.) e. 2002 Posting
In 2002, Levit sought and received approval to recruit five additional Bridge Painters. (Stipulated Fact Nos. 41, 43.) However, due to budgetary constraints, DOT ultimately did not interview any applicants. (Stipulated Fact No. 44; Tr. at 693-703; Def. Ex. WWW:
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Email from Alice Todd dated July 25, 2002; Def. Ex. XXX: Nov. 2002 Financial Plan Changes; Def. Ex. ZZZ: Email from Henry Perahia dated Jan. 28, 2003; Def. Ex. BBBB: FY 2003 & 2004 Executive Budget - Expense Reduction & Revenue Proposals; Def. Ex. DDDD: Email from Joseph Lamberson dated June 9, 2003; Def. Ex. EEEE: Email from Dorothy Roses dated Oct. 6, 2003.) No provisional Bridge Painters have been appointed since 2001. (Stipulated Fact No. 45.)
IV. Bridge Painter Facilities & Hostile Environment Issues a. Facilities for Female Bridge Painters The total absence offemale Bridge Painters was well-known to DOT supervisors.
Local 806 officials raised the issue on two occasions with Levit, Powell, and Levit's supervisor Henry Perahia. (Tr. at 487-490,528-530.) DOT supervisors responded to both inquiries by citing the absence of female decontamination facilities-such as garment changing areas and showers-as a bar to interviewing or hiring women. (Tr. at 488-89,527-28.)
Changing facilities for DOT Bridge Painters must include a special "dirty" area where painters can remove lead paint from their clothing. (Tr. at 645.) DOT provides Bridge Painters these facilities in large trailers at various locations throughout the City. (Tr. at 644-48.) Defendants contend that they developed plans for female changing facilities at the Queensboro Bridge and, in any event, that they maintained adequate existing facilities for women to remove lead paint. (Tr. at 644-45.) Levit testified that when Local 806 officials spoke with him, DOT had sufficient locker room space to accommodate female Bridge Painters at a facility on Greenpoint Avenue in Brooklyn. (Tr. at 215.) He testified further that this locker room space
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has been empty and unused since 1999 because male Bridge Painters are banned from it. (Tr. at 219-20.)
However, Levit's testimony was directly contradicted by Tohl, Babajko, and DOT Executive Director Dorothy Roses ("Roses"). According to Tohl, there were no facilities for female bridge painters available in either 1997 or 1998. (Tr. at 172-73.) Babajko testified that the Greenpoint Avenue trailer was continuously used by male painters, except during the winter months when all Bridge Painters are transferred to Staten Island. (Ir. at 501-02.) Importantly, Roses conceded that the first facility equipped with female locker rooms was completed in 2001 and then turned over for use by male painters in 2002. (Tr. at 637-38.) This Court credits Tohl, Babajko, and Roses's testimony on this matter.
b. Hostile Environment Issues Beginning in the spring of 1999, it was obvious to DOT officialdom that certain
male Bridge Painters would not welcome women to their job sites. (Tr. at 229.) This was particularly evident given the manner in which certain male painters treated Powell, the only woman in constant contact with the Bridge Painter Section. In April 1999, after Powell found sexually-explicit materials at the Greenpoint Yard, Levit issued a memorandum to the Bridge Painter Section reminding male Bridge Painters not to keep "dolls, [] sexual photographs, cartoons or drawings" in the workplace. (Gov. Ex. 132: Memorandum from Levit dated Apr. 5, 1999.)
Powell also experienced gender-based resentment from the rank-and-file after she was promoted to Deputy Director and assigned to oversee Bridge Painters in 1999. (Tr. at 44041.) She testified that some of the Bridge Painters 'Just didn't want me around them." (Tr. at
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441.) Shortly after her promotion, two male Bridge Painters at the Greenpoint Yard filed false charges of sexual harassment against Powell in what she perceived as an effort to get her fired. (Tr. at 440-41.) In addition, certain Greenpoint Yard Bridge Painters threatened Powell, telling her to "watch [her] back," and she learned that others called her a "bitch" outside her presence. (Tr. at 441-42.)
Following an EEO investigation, DOT required "all personnel at the Greenpoint Yard be scheduled for EEO training covering diversity of ethnicity and gender within the workplace." (Gov. Ex. 130: Memorandum from Ann Williams, Director ofEEO dated Oct. 29, 1999, at 7; Tr. 466.) Wilbur Chapman, the DOT Commissioner, reviewed the EEO investigation and adopted the finding that "assignment of a female supervisor has obviously caused resentment." (Gov. Ex. 129: Determination After Report and Recommendation from Wilbur Chapman, Commissioner dated Oct. 14, 1999, at 1-2.)
CONCLUSIONS OF LAW I. The Pattern or Practice of Disparate Treatment Claim
a. Legal Standard Title VII of the Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e et seq.,
prohibits various forms of employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination-known as disparate treatm~nt-and unintentional discrimination practices which have a disproportionately adverse effect on a protected class-known as disparate impact. See Ricci v. DeStefano, 129 S. Ct.
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2658,2672 (2009). This is a disparate treatment case for sex discrimination in the City's hiring practices.
Disparate treatment cases are "the most easily understood type of discrimination" because the "employer simply treats some people less favorably" because they possess a protected trait. int'I Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.l5 (1977). Accordingly, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(I). Unlike disparate impact claims, disparate treatment claims require proof of an employer's discriminatory motive, which "can in some situations be inferred from the mere fact of differences in treatment." Teamsters, 431 U.S. at 335 (citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 (1977».
In a "pattern-or-practice" disparate treatment case, proof of discrimination focuses on "widespread acts of intentional discrimination against individuals." Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001). "To succeed ... plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant's standard operating procedure." Robinson, 267 F.3d at 158 (quoting Teamsters, 431 U.S. at 336) (emphasis added). Accordingly, "the initial focus in a pattern-or-practice case is not on individual employment decisions" but on the existence of multiple related acts of discrimination. Thieseen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001) (internal citations and quotation marks omitted); see also Robinson, 267 F.3d at 158 n.5 (distinguishing pattern-or-practice disparate treatment claims from individual
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disparate treatment claims proceeding under the framework set forth in McDonnell Douglas Corn. v. Green, 411 U.S. 792 (1973)).
The plaintiff has the "initial burden ... to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers." Teamsters, 431 U.S. at 360. To establish liability, "the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant." Teamsters, 431 U.S. at 360. This burden shifting is not "intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." U.S. Postal Servo Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Constr. Corn. v. Waters, 438 U.S. 567, 577 (1978)). Ultimately, where a plaintiff meets its burden of production and the defendant articulates a legitimate, non-discriminatory reason for its behavior, all presumptions drop from the analysis and the fact-finder simply decides "whether [by a preponderance of the evidence] the defendant intentionally discriminated" on the basis of sex. Aikens, 460 U.S. at 715; Texas Dep't ofCmtv. Affairs v. Burdine, 450 U.S. 248,253-54 (1981); see also St. Marv's Honor Ctr. v. Hicks, 509 U.S. 502, 510-12 (1993) ("If, on the other hand, the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework-with its presumptions and burdens-is no longer relevant. ").
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b. Government's Proof of Discrimination "Plaintiffs have typically depended upon two kinds of circumstantial evidence to
establish the existence of a policy, pattern, or practice of intentional discrimination: (1) statistical evidence aimed at establishing the defendant's past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination." Robinson, 267 F.3d at 158 (internal citations omitted). While most pattern-or-practice claims are proven through the use of statistics, "when there is a small number of employees, anecdotal evidence alone can suffice." Sidor v. Reno, No. 95 Civ. 9588 (KMW), 1997 WL 582846, at *10 (S.D.N.Y. Sept. 19, 1997); see Attenborough v. Constr. & Gen. Bldg. Laborers' Local 79, --- F. Supp. 2d ----, Nos. 03 Civ. 4399 (RJH), 09 Civ. 6520 (RJH), 2009 WL 3103783, at *11,14 (S.D.N.Y. Sept. 29,2009); McReynolds v. Sodexho Marriott Serv., Inc., 349 F. Supp. 2d 1, 7 (D.D.C. 2004) ("To establish a prima facie pattern or practice case, the plaintiffs must, by statistical evidence, individual testimony, or a combination of the two, make a showing adequate to raise the inference that employment decisions were predicated on an illegal criterion." (internal quotation marks and citation omitted)); see also E.E.O.C. v. LA Weight Loss, 509 F. Supp. 2d 527, 533 (D. Md. 2007) (,"This prima facie showing may in a proper case be made out
by statistics alone, or by a cumulation [sic1of evidence, including statistics, patterns, practices,
general policies, or specific instances of discrimination.'" (quoting E.E.O.C. v. Am. Nat'l Bank, 652 F.2d 1176, 1188 (4th Cir. 1981))).
This case was litigated without resort to statistical evidence other than the elephant in the room-the incontrovertible fact that DOT has never hired a provisional female Bridge Painter. Because this case proceeded without the use of statistics, the Government did
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not seek an inference of discrimination based on the "inexorable zero" in DOT's hiring. See Teamsters, 431 U.S. at 342 n.23; Loyd v. Phillips Bros., Inc., 25 F.3d 518, 524 n.4 (7th Cir. 1994) ("For instance, the 100% sex-segregated workforce is highly suspicious and is sometimes alone sufficient to support judgment for the plaintiff."). Yet evidence of an "inexorable zero" is still relevant. First, a court cannot help but be circumspect where a municipal department in the country's largest city repeatedly selects only applicants of one sex for job vacancies-after all, "zero is not just another number." Barner v. City of Harvey, No. 95 Civ. 3316, 1998 WL 664951, at *50 (N.D. Ill. Sept. 18, 1998); see also Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 662 (5th Cir. 1983) ("To the noble theoretician predicting the collisions of weightless elephants on frictionless roller skates, zero may be just another integer, but to us it carries special significance in discerning [] policies and attitudes.''). Second, even in cases where there is a weak inference of an "inexorable zero" or "scant evidence of other women who applied and were rejected," a court should consider that this "lack of evidence may itself be attributable to the 'inexorable zero.'" Ortiz-del Valle v. Nat'l Basketball Ass'n., 42 F. Supp. 2d 334, 337-38 & n.l (S.D.N.Y. 1999).
Regardless of the weight given to the total absence offemale hires, the remaining anecdotal evidence was more than sufficient to show that DOT lacked consistent hiring standards in the Bridge Painter Section, that less qualified men were given preferences over more qualified women, and that the disparate treatment was intentional appeasement of DOT's existing all-male workforce.
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1. Absence of Hiring Standards The Defendants carried out provisional hiring without meaningful objective standards or consistent guidelines. While an employer's use of certain subjective hiring criteria, "such as the impression an individual makes during an interview," is not per se unlawful, Byrnie v. Town of Cromwell Bd. ofEduc., 243 F.3d 93,104 (2d Cir. 2000), '''subjective and ad hoc' employment practices ... bolster [a] plaintifll's] claim that defendants discriminated against class members." Wright v. Stem, 450 F. Supp. 2d 335, 365-66 (S.D.N.Y. 2006) ("Multiple courts have observed that greater possibilities for abuse ... are inherent in subjective definitions of employment selection ....") (citing Davis v. Califano, 613 F.2d 957,965 (D.C. Cir. 1979); Rogers v. Int'I Paper Co., 510 F.2d 1340, 1345 (8th Cir. 1975)). Indeed, "[d]epartures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the [employment] decision." Stem v. Trustees of Columbia Univ. in City of N.Y., 131 F.3d 305, 313 (2d Cir. 1997) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984)) (internal quotation marks omitted). In that vein, the Court of Appeals has observed that "subjective word-of-mouth hiring methods" are suspect and used to mask ongoing bias. See Grant v. Bethlehem Steel Com., 635 F.2d 1007,1015 (2d Cir. 1980). Further, hiring practices or tests that, while neutral on their face, serve only to perpetuate past imbalances violate Title VII. E.E.O.C. v. Int') Union of Operating Eng'rs, 553 F.2d 251, 255 (2d Cir. 1977) ("It is established law that practices, procedures or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices ... and that practices which 'perpetuate' past discrimination violate the Act." (citing Griggs v. Duke Power Co., 401 U.S. 424,430 (1971))).
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The DOT and Bridge Painter Section departed from procedural regularity in multiple respects. Foremost, the provisional hiring system lacked written standards with specific instructions to guide DOT personnel in provisional hiring. There were simply no mechanisms to ensure that the persons tasked with hiring were employing permissible criteria in their selection of applicants. As Tohl testified, he was not aware of any regulations that governed hiring of provisional painters. Instead, the only consistent practice at DOT was that complete discretion and authority was vested in the head of the Bridge Painter Section. Beginning with Tohl in 1998 and increasing through Leonid Levit's tenure, Bridge Painter hiring was not the result of a deliberative and straightforward process, but subject to the personal proclivities of the director of the Bridge Painter Section. Notably, no one at DOT knew who was responsible for marking resumes as not qualified with an "NQ." Although Levit testified that resume review was "very thorough," the record shows otherwise-when a resume was marked NQ, as Jackson's was, no further notation explained why. When challenged on this practice, Levit pointed the finger at Powell, and she pointed it right back, while the City simply explained that those decisions were "determined by DOT." Thus, the situation was ripe for male and female applicants to face differential treatment.
The in-person interviews were also deeply flawed. First, contrary to longestablished public employment law and practice, no written notes memorialize the 1998 interviews. See 42 U.S.C. § 2000e-8; 29 C.F.R. § 1602 et seq. (relating to Title VII recordkeeping requirements); Byrnie, 243 F.3d at 98-99,104-05 (outlining school's comprehensive interviewing procedures and consequences for not retaining records for the hiring process). Under Levit's leadership, candidates were asked questions by Levit or by other panel
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members, depending on whether each candidate was able to understand Levit's heavy accent. Although the questions Levit asked in the 1999 interviews called for written notations on responses, his notes were limited to "yes" and "no" as opposed to written summaries of the candidate's answers. Finally, none of the other interviewing panelists reviewed Levit's scoring of candidates or meaningfully engaged in a deliberative process. Rather, based on Powell's description, candidates were selected during a short huddle at the end of the day. The opportunities were plentiful for giving preferential treatment to one group over another in this environment of minimal oversight unblemished by paper trails.
2. Preferences to Less Qualified Men An essential element in any Title VII action in which qualifications are in dispute is demonstrating that persons in the protected class possessed comparable qualifications yet were repeatedly subject to adverse employment decisions. See Grant, 635 F.2d at 1018; see also McDonnell Douglas, 411 U.S. at 802. Where a "reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidatesomething that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture." Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (citations omitted). In some circumstances, "qualifications evidence may suffice ... to show pretext." Ash v. Tyson Foods, Inc., 546 U.S. 454,457 (2006) (citing Patterson v. McLean Credit Union, 491 U.S. 164,187-88 (1989». But see Burdine, 450 U.S. at 259 ("The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself
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expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination.").
The Supreme Court has cautioned that the qualifications disparity need not "jump[] off the page to slap you in the face." Ash, 546 U.S. at 457. Rather, the disparity should be enough that "a reasonable employer would have found the plaintiff to be significantly better qualified for the job." Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc); see also Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) (adopting "clearly superior" qualifications standard).
Some of the Government's evidence regarding whom DOT chose to fill positions did "jump off the page." Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (lIth Cir. 2001). However, on the whole, the Government effectively wove together numerous anecdotal instances of less qualified men receiving preferential treatment. Proceeding without statistical evidence, the Government showed that the relevant decision makers at DOT always chose a man for a position when a more qualified female candidate was available. See Robinson, 267 F.3d at 15859 (citing Mozee v. Am. Commercial Marine Servo Co., 940 F.2d 1036, 1051 (7th Cir. 1991)).
DOT's differential treatment was most apparent in its "strict" application ofjob requirements to Rush and Jackson vis-a-vis numerous male applicants. This is particularly perplexing given that the DOT needed to repeatedly expand its applicant pool given the lack of interest in the position. The City's contention that the Five-Year Experience Requirement meant 60 months of prior work experience is without merit. The vacancy notices refer only to "five years" of experience, and the Government showed that a "year" in the profession of bridge painting is flexibly defined-lasting between seven and nine months depending on the weather.
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Moreover, DOT Bridge Painters winter on Staten Island (the City's southernmost borough) as opposed to painting elevated steel structures in the open air. Thus, under the City's proffered definition, even its own "full-time" Bridge Painters do not work full-time. Contrary to the City's assertions, the evidence demonstrated that a "year" of qualifications did not mean 12 months of painting work, but full-time seasonal employment during a calendar year.
A. Rush & Jackson Both Rush and Jackson were more qualified than male applicants given employment preferences by DOT. At the time DOT conducted interviews in early 1998, Rush and Jackson each met the Five-Year Experience Requirement. Rush had achieved the status of journeywoman painter with Local 806 and had worked on numerous projects in the prior decade. Moreover, her completion of the Local 806 apprenticeship program and ability to do grueling work like "running the hoppers" clearly distinguished her as qualified. Jackson also completed the apprentice program and had five years of experience when she submitted her resume in 1998 or 1999. Defendants' contention that she was not qualified for the position when her resume was rejected for a second time in 1999 is unsupported by the evidence. Even accepting the Defendants' construction of the Five-Year Experience Requirement, the evidence still shows that the City applied its policy differently to men and women. Thomas Anzalone, who was interviewed and appointed over Rush and Jackson, began painting in 1993---one year after Jackson and nine years after Rush. Unlike Rush and Jackson, his resume was not detailed, but broadly stated that he painted from "Winter 93 to present." Christopher Serino, who was interviewed but not hired, began painting in 1991 and had work experience similar to Rush's. Similarly, neither Frank Duic nor Dennis Kenny met the Five-
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Year Experience Requirement yet both received interviews. Finally, Frank Mota and Carlos Estrada submitted resumes showing no experience as a bridge painter-Estrada was a general day laborer and Mota had most recently managed an airline's commissary building and ground operations at JFK International Airport.
With respect to the CDL requirement, most candidates did not possess a CDL at the time of their interview. Defendants did not premise their failure to interview Rush or Jackson on the CDL requirement at trial and, given the leniency toward men, such a justification would not have been supported by the evidence.
B. Oliskovicz Oliskovicz was also more qualified than certain male applicants who received preferential treatment in hiring. Oliskovicz met the Five-Year Experience Requirement, under either party's interpretation, and was taking classes to obtain her CDL at the time of her interview. The City all but acknowledges that she was well qualified for the job and bases its rejection on her interviewing skills and a budget shortfall. Although the City may use subjective criteria in evaluating a candidate, Byrnie, 243 F.3d at 104, the record shows that Oliskovicz's interview performance alone could not have disqualified her from the position or placed her behind applicants like Frank Mota (as she ultimately was). Although Oliskovicz had difficulty understanding some of Levit's questions, when it came to the substance of her answers, this Court credits her testimony over Levit's and finds that she gave appropriate responses. Accordingly, there was no legitimate business reason for Levit to rank Oliskovicz seventh after the interviews. Although only the top two candidates-Brian Casey and Frank
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Duic-were hired, several less qualified male candidates were ranked higher than Oliskovicz. The creditability of Levit's rankings is completely undermined by his listing Frank Mota, the former airline ground manager for TWA, as higher than Oliskovicz. Even the City's Rule 30(b)(6) witness conceded that Mota was "obviously not qualified." The testimony offered to justify Mota's ranking was unconvincing, and the inference of discrimination in the Defendants' treatment of Oliskovicz is very strong.
C. Katanakis Like Oliskovicz, Katanakis was deemed qualified by DOT yet was denied a position after her interview with Levit. Once again, in disregard of established record-keeping requirements, Levit did not preserve his 200 I interview notes, so the only evidence of Katanakis's interview comes from the individuals involved. Although Levit claims he treated Katanakis and male applicants similarly, this contention, like so many of Levit's, cannot be believed. Levit characterized Katanakis as "irritated," "erratic," and "confrontational" in her job interview. Moreover, any claim by Levit that he objectively reviewed candidates was directly contradicted by his description of his interview of Anthony Attore just a year earlier, whom Levit found acceptable because he looked "strong" and did nothing "outrageous" during their meeting. Throughout three consecutive DOT vacancy periods,3 every female applicant for the Bridge Painter position was subjected to less favorable treatment than lesser qualified male
applicants. In addition, word-of-mouth recruiting and nepotism in DOT's hiring practices
reinforced existing gender disparities. See Thomas v. Washington Cty. Sch. Bd., 915 F.2d 922,
3 Because DOT neither interviewed nor hired following the 2002 Posting, that period is excluded from consideration in the pattern or practice claim.
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925-26 (4th Cir. 1990) ("These policies and practices amount to nepotism and word-of-mouth hiring, which, in the context of a predominantly white work force, serve to freeze the effects of past discrimination."). Consideration of cronyism is warranted in a Title VII action. See generally Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 655 n.9 (1989) (noting that nepotism is a factor subject to Title VII challenge in a disparate impact case) (superseded by statute at Pub. 1. No. 102-166, 105 Stat. 1071 (1991». Although the City downplays the hiring of Anthony Attore as a decision made by City Hall, the Government showed that Levit and DOT were closely involved in that decision. Moreover, since the City is a Defendant in this action, the Government need not show that only personnel of the Bridge Painter Section used cronyism to reinforce the existing gender imbalance---other city employees could have contributed to discriminatory hiring, and indeed did.
3. Potential Conflict Between Female & Male Bridge Painters Showing an employer's motivation to discriminate is "usually" accomplished through the "cumulative weight of circumstantial evidence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). In determining whether Defendants were motivated by discrimination, "[c]ourts recognize that 'direct evidence of intentional discrimination is hard to come by' and that plaintiffs will rarely be able to produce eyewitness testimony as to the employer's mental processes." United States v. City of New York, m F. Supp. 2d ----, 2010 WL 234768, at *13 (E.D.N.Y. 2010) (citing Aikens, 460 U.S. at 716). "It does not follow, however, that the plaintiffs in a Title VII case are obligated to present 'smoking-gun' proof of intentional discrimination in order to obtain judgment." City of New York, 2010 WL 234768, at *18.
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In addition to the considerable circumstantial evidence presented at trial, the Government's case is buttressed by Powell's account of the abusive and hostile environment she experienced as a female supervisor in the Bridge Painter Section. The Government showed that the Bridge Painters resisted hiring or promoting female workers to preserve a de facto boys club in which lewd sexual images and cartoons were frequently displayed and employees disparaged their female supervisor, apparently without consequences. See Washington v. Davis, 426 U.S. 229,253 (1976) (Stevens, J., concurring) ("Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds."). It was apparent that assigning women to selective Bridge Painter units was an unwelcome proposition to many rank-and-file. DOT supervisors were well aware of this culture and the deplorable way Powell was treated by certain male Bridge Painters. The hostility Powell confronted as a supervisor would also have been faced by female Bridge Painters. That environment disincentivized DOT to carry out its Title VII obligations.
The Government has shown multiple related instances of discrimination. Foremost, it has proven the existence of an ongoing practice which excluded qualified women from obtaining work as Bridge Painters on the basis oftheir gender. The circumstantial and direct evidence adduced at trial makes out a prima facie case of discrimination. See e.g., Ortizdel Valle, 42 F. Supp. 2d at 337-38 (finding evidence "that no women were ever hired as NBA referees," testimony regarding qualifications, and testimony that certain NBA employees "had a problem" with hiring female referees sufficient to support a jury verdict of gender discrimination). Moreover, that the discrimination appeared to impact only four women does not
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diminish the Government's case-there is "[n]o precise mathematic formulation" for a pattern or practice claim. United States v. Jacksonville Terminal Co., 451 F.2d 418,441 (5th Cir. 1971). Even discrimination against just four women is sufficient to support a pattern or practice claim. See Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871-72 (2d Cir. 1992) (evidence that four probationary female police officers had been terminated was sufficient to conclude that the dismissal of one officer was part of a broader pattern or practice of discrimination by the New York City Police Department).
c. Legitimate Non-Discriminatorv Reasons Where a plaintiff meets its burden in a Title VII case, "the burden [of production]
then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant." Teamsters, 431 U.S. at 360. In essence, the defendants must offer proof which demonstrates that the applicants were denied employment for lawful reasons-that is, non-discriminatory reasons. See Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 772-73 (1976); see also Aikens, 460 U.S. at 714-15. This burden on a defendant is only one of production, as opposed to persuasion. See Hicks, 509 U.S. at 509 ("In the nature of things, the determination that a defendant has met its burden of production ... can involve no credibility assessment.").
Although Defendants primarily argue that the Government does not make out a prima facie case, the City musters three non-discriminatory explanations for not hiring female Bridge Painters. First, the City asserts that various female applicants were not hired because they failed to satisfy certain procedural requirements-namely the Five-Year Experience and CDL Requirements or that they did not submit a resume. Second, the City asserts that budgetary
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cuts prevented the hiring of Bridge Painters. Finally, Defendants aver that DOT's preparation of changing facilities for female painters shows an absence of discrimination in hiring. 4
The City's argument that female candidates lacked qualifications or failed to submit resumes was a fact-intensive inquiry addressed earlier in this opinion and lacked any evidentiary support. Accordingly, only the budget and facilities justifications are addressed further. This Court concludes the Defendants met their burden of production on these issues and turns to the weight and credibility to be given to the Defendants' justifications. See Hicks, 509 u.S. at 509 ("For the burden-of-production determination necessarily precedes the credibilityassessment stage.").
I. Budget Cuts Through Joseph Jarrin, the City established that there were numerous hiring freezes and headcount reductions from 1997 to 2003 that had a negative impact on DOT's ability to fill provisional Bridge Painter positions. Notably, in 1999, when Levit expected to hire seven painters, DOT was only able to hire two: Brian Casey and Frank Duic. A significant budget cut that prevents hiring constitutes a sufficient non-discriminatory defense to Title VII allegations. See Wards Cove, 490 U.S. at 648; see also Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275, 291 (E.D.N.Y. 2005) ("It is not a court's role to second-guess an employer's personnel decisions, so long as they are non-discriminatory.").
4 Defendants also assert one individual defense against Intervenor-Plaintiff Joann Rush, arguing that her execution of a release on March 27, 2007, for claims from "an unrelated tort action against the City of New York," bars her suit. Under Title VII, the United States maintains a right of action independent of the legal rights of the individual victims of discrimination. E.E.O.C. v. Waftle House, 534 U.S. 279,291-93 (2002); Occidental Life Ins. Co. of Cal. v. E.E.O.C., 432 U.S. 355, 370-71 (1977). Accordingly, this defense is without merit.
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However, the evidence presented by the Defendants is insufficient to rebut the Government's case for two reasons. First, there was never a complete hiring freeze relieving the City of its obligation to hire qualified female Bridge Painters. Indeed, Anthony Attore was appointed in the midst of a budget reduction, revealing that appointment of anyone of the four female painters was possible. As Judge Garaufis recently highlighted in the City of New York firefighter case, the defense of a "fiscal crisis" is a familiar refrain at City Hall and does little to explain why the City should be relieved of Title VII obligations. See 2010 WL 234768, at *8 (chronicling the history of Vulcan Soc. of New York City Fire Dep't Inc. v. Civil Servo Cornm'n, 490 F.2d 387 (2d Cir. 1973), in which the City avoided implementing the relief ordered "ostensibly due to a fiscal crisis"). More importantly, since this is a pattern-or-practice case, the fact that a fiscal crisis occurred in one year-200 1--does not contradict proof of discrimination in prior years. Ultimately, this action concerns the hiring process, not the City's budget. And as to those procedures, Defendants cannot dispute that when both Rush and Jackson applied in 1998, DOT hired ten new male Bridge Painters instead. Further, although the City argues that Oliskovicz was going to be hired before a budget cut intervened, it offered no corroborating records to support Levit's testimony. Ultimately, budget cuts have no bearing on why less qualified males received interviews in 1998 and 1999 and were subsequently given higher interview rankings in later hiring periods.
2. Facilities for Female Painters Another line of testimony developed by the City at trial concerned the construction and availability offemale changing facilities. The City presented ambiguous, and at points contradictory, evidence that women's locker rooms were available. Even assuming that
-37-

locker rooms were available, that fact has no bearing on whether DOT's hiring practices violated Title VII. That DOT had sufficient space for women only buttresses the Government's case, as it removes a potential business justification for hiring only men. Regardless, the issue of locker rooms does not go to the heart of this dispute about DOT's hiring procedures.
d. Totality of the Evidence The "ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated" remains at all times with the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 144 (2000). The Defendants proffered several nondiscriminatory justifications for failing to hire female applicants. The burden-shifting framework is, therefore, not at issue-rather the Court must assess the "ultimate question" of whether the evidence shows a pattern or practice of discrimination. See Hicks, 509 U.S. at 510-11 ("The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture."). The evidence leaves no room for dispute-the Government has proven, by a preponderance of evidence, its Title VII claim. The Government established a prima facie case of discrimination and, for the reasons set forth above, the proffered justifications put forth by the Defendant were either not credible or wholly inadequate to overcome the evidence of intentional discrimination by the Defendants. The Government presented a compelling case detailing a multi-year pattern of discrimination at all stages in the process of Bridge Painter hiring. The net result was to exclude qualified and impressive women from pursuing the careers they desired with the City of New York. This is especially puzzling given the City's troubles in finding enough qualified male applicants to work as Bridge Painters. The Defendants failed to meet their legal obligations to treat men and women seeking City
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employment equally, and, accordingly, this Court concludes the United States established its
pattern or practice disparate treatment claim.
II. Relief
The final issue before this Court is the appropriate relief. The Government moves
for injunctive relief pursuant to 42 U.S.c. § 2000e-5(g). That section, in relevant part, provides:
(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
In Section II of its Proposed Order of Remedial Relief, the Government requests
injunctive relief with respect to DOT's procedures for hiring Bridge Painters. The United States
sets out new procedures that would govern Bridge Painter hiring, either in a provisional marmer,
through a civil service exam, or should the position be reclassified as non-competitive. In
Section III, the United States requests a permanent injunction to prevent the City from violating
Title VII or retaliating against persons who cooperated with the EEOC or United States in its
pursuit of this litigation. Section IV sets out proposed relief for the Intervenor Plaintiffs,
including appointment as provisional Bridge Painters and equitable back pay. Section V lays out
monitoring and oversight requirements going forward.
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"The primary purposes of Title VII are to prevent discrimination and achieve equal employment opportunity in the future, and to make whole the victims of past discrimination." United States v. City of New York, --- F. Supp. 2d ----, 2010 WL 318087, at *2 (E.D.N.Y. Jan. 21, 2010) ("City of New York II") (citing Assoc. Against Discrimination in Employment. Inc. v. City of Bridgeport, 647 F.2d 256, 278 (2d Cir. 1981)). A district court has "broad equitable discretion" to "make persons whole for injuries suffered on account of unlawful employment discrimination." Franks, 424 U.S. at 764. "Courts have generally recognized three categories of relief in Title VII cases: compliance relief, compensatory relief, and affirmative
relief." City of New York 11,2010 WL 318087, at *2 (citing Berkman v. City of New York, 705
F.2d 584, 595 (2d Cir. 1983)). The United States requests both compliance and compensatory relief.
a. Compliance Relief "Compliance relief is 'designed to erase the discriminatory effect of the
challenged practice and to assure compliance with Title VII in the future.'" City of New York II,
2010 WL 318087, at *2 (citation omitted). "Such relief may include ... ordering that new and
valid selection procedures be adopted, and authorizing interim hiring that does not have a disparate impact on any group protected by Title VII." Berkman, 705 F.2d at 595. Compliance relief is "appropriate whenever a Title VII violation has been found, irrespective of any history of prior discriminatory practices or the intent of the defendant." Berkman, 705 F.2d at 595 (citing City of Bridgeport, 647 F.2d at 278).
The Government's proposal to end the standardless, ad hoc decision-making at DOT is reasonable and clearly appropriate in light of the years of discrimination. The proposed
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relief-which includes wider dissemination of Bridge Painter vacancy notices and adherence to New York Civil Service Law-requires the Defendants to simply engage in behavior that should have been the modus operandi to date. Because the City has not yet decided if and when it will hire new Bridge Painters, the Government proposes procedures covering all types of hiringprovisional, from an eligible list, or as a non-competitive position. The Government's proposal does not impose a quota or set targets-indeed, it provides the City a good deal of flexibility in meeting its Title VII obligations going forward. These compliance remedies are structured to allow women to fairly compete for a position at DOT. Considering DOT's history of intentional discrimination, even such forms of relief may in some sense be termed as "affirmative," the Government is entitled to these remedies by virtue of proving a case of intentional, long-term discrimination. Berkman, 705 F.2d at 596 ("[A]ffirmative relief is normally justified only if the defendant's discrimination has been intentional."). Accordingly, this Court adopts Sections I, II, III, V, VI, and VII of the Government's Proposed Order of Remedial Relief in their entirety.
b. Compensatory Relief The United States seeks the appointment of Rush, Jackson, and Katanakis to the
position of provisional Bridge Painter. Each of these women indicated at trial that she would accept the position if it was offered to her. The Government further seeks equitable compensatory relief in the form of backpay for Rush, Jackson, Oliskovicz, and Katanakis. These requests-which are designed to "make whole" the victims-are "generally appropriate under the same circumstances as compliance relief." Berkman, 705 F.2d at 595-96 (citing City of Bridgeport, 647 F.2d at 278, 282).
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The Government met its burden to show a discriminatory hiring pattern and practice by the Defendants, and, therefore, its requests for monetary and hiring relief are appropriate. This relief is subject to the burden-shifting framework set forth in Franks. See City of New York II, 2010 WL 318087, at *7 (citing Teamsters, 431 U.S. at 362).
Accordingly, this Court reserves final judgment with respect to the individual hiring and compensatory relief pending further briefing from the parties setting forth the appropriate amount of backpay and specific procedures governing provisional hiring of discrimination victims.
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CONCLUSION Despite their years of bridge painting experience in the private sector, female Bridge Painter applicants were turned away by the Defendants. The City did not offer them jobs as Bridge Painters solely because they were women. This was unvarnished sex discrimination. The United States has proven that such discrimination was a pattern or practice of the City of New York and the Department of Transportation in the hiring of Bridge Painters. This Court adopts the Government's Proposed Order of Remedial Reliefwith respect to Sections I, II, III, V, VI, and VII. This Court will conduct a hearing to determine victim-specific compensation and job placement. The Government is directed to submit a proposed judgment consistent with this Opinion and Order by May 20, 2010. This Court will hold a conference on May 27, 2010 at 4:00 p.m. to discuss the status of this case and to schedule appropriate additional proceedings. The Clerk of Court is directed to terminate all motions in this case.

Dated: May 13,2010 New York, New York

SO ORDERED:
~ ~ ~ ~o,~). WILLIAM H. PAULEY III ~ U.S.DJ.

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Counsel ofRecord: Jeannette Anne Vargas, Esq. United States Attorney's Office 86 Chambers Street New York, NY 10007 Counsel for Plaintiff United States Howard Wien, Esq. 61 Broadway, Suite 25 New York, NY 10006 Counsel for Plaintiff-Intervenors Bruce Rosenbaum, Esq. New York City Law Department 100 Church Street New York, NY 10007 Counsel for Defendants
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 Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 1 of 14
~U=~==~SD~NY~======~\I

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------------ x
UNITED STATES OF AMERICA,
Plaintiff,

DOCUMENT

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ELECfRONICALLY fiLED:,
II DDOATCEit~: ~rB~I ~;;/ ~=-111

ECF Case

- v-

07 Civ. 2083 (WHP)(HP)

CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION,

COMPLIANCE INJUNCTION

Defendants.
------------------------------------------------------------------------------ x

WHEREAS, the United States of America (the "United States") brought this action

pursuant to 42 U.S ,C. § 2000e-6 to remedy a pattern or practice of unlawful discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S,c. § 2000e ("Title VII"); and

WHEREAS, the United States alleges in its complaint that the New York City

Department of Transportation (the "Department of Transportation") and the City of New York

(collectively, the "Defendants") engaged in a pattern or practice of employment discrimination

by refusing to hire women for the position of Bridge Painter on the basis of sex; and

WHEREAS, on June 27, 2007, the Court approved the request of four female

applicants for the Bridge Painter position - JoAnn Rush, Helen Jackson, Efrosini Katanakis,

and Luzia Oliskovicz (collectively, the "Female Bridge Painter Applicants") - and Local

Union No. 806 (collectively with the Female Bridge Painter Applicants, the "Intervenors") to

intervene in this action; and

WHEREAS, on July 2, 2009, the Court granted Defendants' motion for summary

judgment insofar as it pertained to the claims of the Intervenors and dismissed such claims; and

WHEREAS, a trial in this matter was held from October 13 to October 19, 2009

and, following the trial, the United States and Defendants submitted their respective proposed

findings of facts and conclusions of law, as well as opposition papers; and

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 2 of 14

WHEREAS, on May 13,2010, the Court issued an Opinion and Order, holding that

the United States "established its pattern-or-practice disparate treatment claim;" and

WHEREAS, on May?3, 2010, the Court entered a Judgment in favor ofthe United

States with respect to the compliance relief requested by the United States, as set forth in this

Compliance Injunction. NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREEDD

that the United States is entitled to the following compliance relief pursuant to 42 U.S.c. §

2000e-5(g):

I.

DEFINITIONS

1. As used in this Compliance Injunction (the "Injunction"), the following

capitalized terms shall have the following meanings:

(a) "Applicant" refers to any person who has applied for the position of Bridge

Painter with the Department of Transportation's Division of Bridges.

(b) "Bridge Painter" refers to the title and/or position of Bridge Painter (held either

Permanently or Provisionally) with the Department of Transportation's Division of Bridges, as

well as any successor job titles for these positions, unless otherwise specified.

(c) "Days" refers to calendar and not business days, unless otherwise specified.

(d) The "Effective Date" refers to the date on which this Injunction is approved by

the Court and entered on the docket.

(e) "Employee" refers to any individual who is employed by the Department of

Transportation's Division of Bridges in the position of Bridge Painter.

(f) A "Job Vacancy" refers to any vacancy within the Department of Transportation's

Division of Bridges for the position of Bridge Painter.

(g) A "Posting" refers to any written or electronic notice or advertisement of a Job

Vacancy issued or authorized by the Department of Transportation.

2

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 3 of 14

(h) "Provisional Appointment" refers to the appointment of an individual to the

position of Bridge Painter provisionally, as set forth in N.Y. Civil Service Law § 65.

(i) The ''Term of the Injunction" refers to the three-year period beginning on the

Effective Date, except where the Court so-orders that such term to be extended or reduced.

G) "Union Offices" refer to the following labor organization offices: (1) the Bridge

Painters Local 806, 40 West 27th Street lOth Floor, New York, N.Y. 10001; (2) District Council

9 Painters Union, 45 West 14th Street, New York, N.Y. 10011; (3) District Council 9

Apprenticeship and Training Center, 45-15 36th Street, Long Island City, N.Y. 11101 and (4)

District Council 9 Painters Union newsletter.

II.

INJUNCTIVE RELIEF WITH RESPECT TO THE DEPARTMENT OF

TRANSPORTATION'S PROCEDURES FOR HIRING BRIDGE PAINTERS

A. The Procedures for Hiring Bridge Painters Provisionally

2. Defendants may fill Job Vacancies through provisional appointments pursuant to

New York Civil Service Law § 65, provided, however, that any such Job Vacancy is filled in

accordance with the following procedures:

a. Defendants shall publish a Posting at least thirty (30) days prior to the deadline

for the submission of applications for the Job Vacancy and the Posting shall be

published for a period of at least thirty (30) days.

b. The Posting shall include, at a minimum, a description of the position, a

description of the application process which shall include submission of a resume,

the salary for the position, the minimum qualifications necessary for the position,

and any other eligibility requirements, including but not limited to a description of

proficiency in any skills that applicants will be required to demonstrate. The

Posting shall also include a statement that the Department of Transportation is an

Equal Opportunity Employer.

3

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 4 of 14

c.

Defendants shall, at a minimum, (i) publish the Posting on the Department of

Transportation's internet and intranet websites; (ii) arrange for it to appear in The

ChiefLeader, the weekly newspaper concerning New York City civil service; (iii)

provide copies of the Posting to the Union Offices for posting at their offices

and/or publication in union newsletters; and (iv) post it at all job sites for bridges

owned or operated by the Defendants currently undergoing painting or

renovation.

d. The Department of Transportation will review all applications for the position of

Bridge Painter and notifY all Applicants who meet the minimum qualifications

and are eligible to apply to report for assessments of their climbing skills, cable

riggings skills, and knot tying skills. All applicants who demonstrate satisfactory

proficiency in climbing, cable riggings and knot tying skills, as described in the

Posting, shall be notified to report for an interview. All such skills assessments

shall comply with Title VII of the Civil Rights Act of 1964, and information

regarding these assessments shall be disclosed to counsel for the United States

pursuant to paragraphs 14-15.

e. All communications and notifications required in this paragraph 4(d) shall be by

letter to the address provided by the Applicant on hislher resume, to be followed

up by a telephone call where necessary, and include the date, time and location of

the skills assessments or interview.

f.

All Applicants who are interviewed after responding to the same Job Vacancy

Posting shall be interviewed by the same panel members, unless extraordinary

circumstances require the substitution of a member of the interviewing panel. A

4

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 5 of 14

representative of the Department of Transportation's Equal Employment

Opportunity (EEO) Office shall be present at every such interview.

g. During the interview, the panel will ask the same prepared questions of all

Applicants. Panel members may also ask appropriate, job-related follow-up

questions of their own. Each panel member, other than the EEO representative,

must separately fill out an interview rating sheet for each Applicant.

h. At the conclusion ofthe interviews, the panel will meet to discuss the Applicants

interviewed and to make a final decision as to which Applicants are best qualified

for the position. The panel will then prepare a list ranking the Applicants in order.

Rankings will be based upon an evaluation of the Applicant's qualifications and

interview rating.

I.

Offers for the position of Bridge Painter shall be made in order of the Applicant's

ranking on the list prepared by the panel; and notices of selection for the position

of Bridge Painter shall be made in writing.

B. The Procedures for Hiring Bridge Painters Permanently Through the Administration of Civil Service Examinations

3. Defendants shall open filing for a competitive Civil Service Exam for the title of

Bridge Painter (the "Exam"), shall provide to counsel for the United States a copy of the Notice

of Exam, and shall (i) publish the Notice of Exam on the Department of Transportation's internet

and intranet websites; (ii) arrange for the publication of the Notice of Exam in The ChiefLeader,

the weekly newspaper concerning New York City civil service; (iii) provide copies of the Notice

of Exam to the Union Offices for posting at their offices and/or publication in union newsletters;

and (iv) post it at all job sites for bridges owned or operated by the Defendants currently

undergoing painting or renovation.

5

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 6 of 14
4. Defendants shall complete the administration of the Exam no later than November 1, 2010. At least ninety (90) days prior to the administration of any Exam pursuant to this paragraph, Defendants shall provide counsel to the United States with the Exam. The Exam shall comply with Title VII of the Civil Rights Act of 1964, and information regarding the Exam shall be disclosed to counsel for the United States pursuant to paragraphs 14-15.
5. By December 31, 2010, Defendants shall establish a Civil Service Eligible List based on the results of the Exam.
6. Defendants shall hire from the Civil Service Eligible List, in accordance with New York Civil Service Law § 61, provided, however, that Defendants shall not invoke their discretion under the so-called "One-in-Three" rule, set forth in Civil Service Law § 61 (I), to non-select one of the Individual Intervenors. Nor shall Defendants invoke their discretion under the so-called "One-in-Three" rule, set forth in Civil Service Law § 61(1), to deviate from the rank order of the Civil Service Eligible List and non-select any female Applicant on the grounds that a lower-ranked male Applicant has previously served provisionally as a Bridge Painter.
C. The Procedures for Hiring Bridge Painters Permanently in the Event of Its Reclassification to a Non-Competitive Position
7. Nothing contained in this Injunction shall be construed as precluding, impairing or in any way limiting Defendants from seeking to reclassify the Bridge Painter position to the non-competitive class in accordance with New York State Civil Service Law.
8. In the event that Defendants apply to the New York State Civil Service Commission to reclassify the Bridge Painter title from the competitive to the non-competitive class and such application is granted, Defendants shall provide to counsel to the United States, within sixty (60) days of their receipt of such reclassification decision, a detailed plan for selecting non-competitive Bridge Painters for appointment.
6

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 7 of 14

9. Such a plan shall include, at a minimum, (i) a timetable for the hiring process, (ii)

a description of the minimum qualifications for the position, and (iii) an explanation of the

criteria to be used to evaluate applicants and the method of evaluation. Such a plan shall comply

with Title VII of the Civil Rights Act of 1964, and information regarding this plan shall be

disclosed to counsel for the United States pursuant to paragraph 8.

10. In the event that Defendants determine that a female Provisional Bridge Painter

has failed a non-competitive examination for the Bridge Painter position, Defendants shall

provide to the counsel for the United States, within ten (10) days of reaching such a

determination, a copy of the examination report for that female Provisional Bridge Painter, as

well as all other records relied upon by Defendants to reach their conclusion.

III.

GENERAL INJUNCTIVE RELIEF

I I. Defendants, their officials, agents, employees, and successors, shall not engage in

any act or practice that violates Title VII of the Civil Rights Act of 1964 in connection with the

recruitment, selection, and employment of women for the position of Bridge Painter.

12. Defendants, their officials, agents, employees, and successors, shall not retaliate

against any person because that person has filed a complaint with the Equal Employment

Opportunity Commission or has participated or cooperated with counsel for the United States in

the investigation and/or litigation of this case or the implementation of this Injunction.

13. Except as noted below, during the Term of the Injunction, Defendants shall not

hire, employ, retain or otherwise contract with (an) independent contractor(s) to perform bridge

maintenance painting and related tasks or duties that have traditionally been, and in the ordinary

course would be otherwise, performed by Employees. This paragraph does not apply to the

performance of bridge painting functions not currently or traditionally performed by Employees

including, but not limited to, cyclical bridge painting on the major New York City bridges and

7

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 8 of 14

related tasks or duties that are currently or have traditionally been, and in the ordinary course

would be otherwise, performed by persons employed by bridge painting firms with which the

Department of Transportation contracts. Nothing herein shall be deemed to require Defendants

to increase the number of Employees that it employs, either provisionally or permanently, as of

the Effective Date.

IV.

MONITORING AND OVERSIGHT

A. Reporting

14. Defendants shall provide the United States with three (3) reports, each covering a

12-month reporting period. The first reporting period will begin on the first day of the month

following the Effective Date. The information and documents contained in the reports will be

subject to an appropriate stipulation of confidentiality, to be agreed upon by the parties and so-

ordered by the Court. The first reporting period will begin on the first day of the month

following the Effective Date. These reports will be due within thirty (30) days from the closing

of the respective reporting period. Defendants will provide the United States with the third and

final report thirty (30) days before the end of the third reporting period and will cover the period

from the closing date of the second report until ten (10) business days prior to the issuance of

that report. For each of these three reports, Defendants will provide the United States with the

following information and documents relating to the reporting period in question:

a. A list of all Applicants for the position of Bridge Painter from the Exam or any

list resulting from any open competitive civil service exam administered during

the reporting period, including (i) names; (ii) genders (based upon self-

identification); (iii) the date of hire, if applicable; and (iv) ranking on the civil

service eligible list.

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Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 9 of 14
b. To the extent any individual receives a Provisional or Non-competitive Appointment during the reporting period: (i) a list of all Applicants, including name and gender (based upon self-identification); (ii) the disposition of each application (i.e., appointed or not appointed); (iii) for each applicant not appointed an indication of the reason for non-appointment (e.g., failed to satisfy minimum qualifications, failed drug screening or background investigation, failed to demonstrate satisfactory proficiency on a skills test, or is a viable candidate but has not yet been reached on rank ordered list). At the United States' request, Defendants will provide the complete application packages for any Applicant, including all written materials submitted by the Applicant, the rating sheet for the skills assessments, the list of questions asked at the interview, the interview rating sheets, and notes taken by the interview panel.
c. To the extent any individual receives a Permanent Appointment pursuant to a non-competitive examination in accordance with the procedures set forth in Paragraphs 7 through 10 above, (i) a list of all other Applicants who took the examination, including name and gender (based upon self-identification); and (ii) the examination reports for all Applicants. At the United States' request, Defendants also will provide the complete application packages for each Applicant, including all written materials submitted by the Applicant, the list of questions asked at the interview, the interview rating sheets, and notes taken by the interview panel.
d. For each Posting during the reporting period, (i) the date of such Posting; (ii) a copy of such Posting; (iii) the manner of such Posting; (iv) the location of such Posting; and (v) the duration of such Posting.
9

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 10 of 14
e. All complaints of which the Department of Transportation is aware filed by Bridge Painters or Applicants, either with the Department of Transportation's Equal Employment Opportunity office or any City, state or federal entity, alleging discrimination on the basis of sex, and all reports of investigation or findings regarding those complaints.
15. To the extent that Defendants establish a Civil Service Eligible List and then invoke their discretion under Civil Service Law § 61(1) to hire individuals from the Civil Service Eligible List out of rank order, Defendants shall provide within ten (10) days the following information: (i) the names and genders (based upon self-identification) of all such persons hired; and (ii) the names and genders (based upon self-identification) of all persons who were ranked higher on the Civil Service Eligible List than the individual selected, but who were not hired for the position of Bridge Painter. In the event a female was ranked higher on the Civil Service Eligible List than the individual selected and was not hired for the position of Bridge Painter, Defendants will also provide the United States with (iii) all information relied upon in making the hiring decision, and (iv) an affidavit from the relevant decision-maker at the Department of Transportation setting forth the basis for the hiring decision in detail.
B. Record-Keeping 16. During the Term of the Injunction, the Defendants shall retain, in addition to the documents identified in paragraph 14 above, all documents created for purposes of ensuring compliance with this Injunction. 17. During the Term of the Injunction, the United States may request, in writing, access to any other documents identified or not identified in this Injunction that the United States deems necessary to assess Defendants' compliance with the terms of this Injunction.
10

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 11 of 14
c. Review by the United States
18. Within thirty (30) days of receiving the reports described in paragraph 14 above, counsel for the United States shall notify counsel for Defendants in writing of any compliance issues or concerns they have. The parties shall meet at a mutually convenient time as soon as practicable to discuss the issues and/or concerns raised, if any, and any other related issues. The meeting shall be scheduled at a mutually convenient time and place.
19. Should the United States, at any stage of the development or administration of Defendants' selection procedures, determine that the selection procedures do not comply with this Injunction, the United States shall promptly notify Defendants in writing. Thereafter, the parties shall meet within thirty (30) days to discuss the United States' objection(s) and any alternative selection procedures. If the parties fail to reach agreement on how to resolve the United States' objection within sixty (60) days of the United States' written notice, either party to this Injunction may move the Court for resolution. If an objection to Defendants' selection procedures is made by the United States, no person shall be certified for appointment from any affected eligibility list pending resolution of the objection by the Court or written agreement of the parties.
20. During the term of this Decree, in connection with each administration of Defendants' selection procedures for Bridge Painter, Defendants shall:
a. At least sixty (60) days prior to the issuance of a testing announcement for the Bridge Painter position, produce to the United States all applicable job analysis reports, underlying data, and proposed test plans not already provided to the United States.
b. Upon the close of the application period, provide to the United States: (i) a report on the applications received, in hard copy and, electronic form, including the
11

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 12 of 14

name and gender of each applicant and whether or not each applicant met the

minimum qualifications for the position in question, and if not, the reason the

applicant was disqualified; (ii) a test plan for the selection procedure that will be

used; (iii) any validation studies or validation information not previously provided

to the United States; and (iv) any additional information that Defendants may

have as to whether the selection procedure is likely to have disparate impact and

as to whether Defendants' use of the selection procedure is job related and

consistent with business necessity.

c. At least thirty (30) days prior to establishing any passing score for a written

examination, Defendants shall provide the United States with the name and

gender of each Bridge Painter applicant who participated in the selection

procedure, each applicant's total score and each sub-score if applicable, and the

proposed passing score(s).

V.

FAIRNESS HEARING

21. A Fairness Hearing shall be held before this Court to determine whether the terms

of this Injunction are fair, reasonable, equitable and otherwise consistent with federal law. The

purpose of the Fairness Hearing is to provide to all individuals who may be affected by the terms

of this Injunction notice and an opportunity to present objections prior to the final entry of this

Injunction, in accordance with Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n).

22. No later than fifty-five (55) days prior to the date that the Court sets for the

Fairness Hearing, Defendants shall provide a Notice of Fairness Hearing, Instructions for Filing

an Objection Prior to the Fairness Hearing, and a form Objection to the Entry of Injunction of

Remedial Relief, in the formats to be approved by the Court, as follows:

12

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 13 of 14

a.

via certified U.S. mail (return receipt requested) to the last known address of each

applicant for a provisional Bridge Painter position, and any applicant who

registered for Civil Service Exam No. 3027;

b. to each Bridge Painter in the Department of Transportation's Bridge Painting

Section, as an attachment or enclosure to the employee's paycheck.

c. via certified U.S. mail to the Union Offices for posting at their offices and/or

publication in union newsletters.

At or before the time notices are provided pursuant to this Paragraph, Defendants shall provide to

the United States a list stating the last known address of each individual or entity to whom such

notice is being sent.

23. Persons who wish to object to the terms of this Injunction may file objections, in

accordance with the requirements and format to be approved by the Court, as follows:

a. Objections shall state the objector's name, address and telephone number; set

forth a description of the objector's basis for objecting; include copies of any

documentation supporting the objections; state the name and address of the

objector's counsel, if any; and state whether the objector wishes the opportunity

to be heard in Court at the Fairness Hearing.

b. Objections shall be submitted by mailing a copy of any objection to both of the

following addresses:

Jeannette Vargas, Assistant United States Attorney United States Attorney's Office Southern District of New York 86 Chambers Street New York, NY 10007

Bruce Rosenbaum, Assistant Corporation Counsel The City of New York Law Department 100 Church Street New York, NY 10007-2601

13

Case 1:07-cv-02083-WHP Document 75 Filed 05/28/10 Page 14 of 14

c. Objections must be mailed no later than twenty-five (25) days prior to the date

that the Court sets for the Fairness Hearing.

24. No later than ten (10) days prior to date of the Fairness Hearing, the United States

and Defendants shall file with the Court copies of all objections received by the United States

and Defendants. In addition, no later than ten (10) days prior to the Fairness Hearing, the United

States shall file its response, if any, to all objections timely received.

VI.

MISCELLANEOUS TERMS

25. Nothing in this Injunction shall be construed to relieve Defendants of their

obligation to comply with any federal, state or city statute or regulation.

26. Copies of all notices, correspondence, reports or documents required to be

provided by one party to the other under this Injunction shall be mailed to:

United States Attorney's Office, Southern District of New York 86 Chambers Street New York, NY 10007 Attention: Chief, Civil Rights Unit

The City of New York Law Department 100 Church Street New York, NY 10007-2601 Attention: Chief, Labor and Employment Law Division

Dated: New York, New York May~,2010

SO ORDERED:

~ ~ ~ ....b}-.,."'" ':l. WILLIAM H. PAULEY

~...

~

UNITED STATES DISTRICT JUDGE

14

 
 Case 1:07-cv-02083-WHP Document 76 Filed 05/28/10 Page 1 of 3

tr-- =====-.-- - ..~..---.
USDCSDNY

DOCUMENT

UNITED STATES DISTRICT COURT

BLBCTRONICAlLY Fll...W

SOUTHERN DISTRICT OF NEW YORK

DOC #: _ _~--+-_

I-:). ------------------------------------------------------------------------------ x DME FILED: ~ .'~l~(!)

UNITED STATES OF AMERICA,

Plaintiff,

07 Civ. 2083 (WHP}(HP)

- v-

ECF Case

CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION,
Defendants.

JUDGMENT

------------------------------------------------------------------------------ x

WHEREAS, On March 12, 2007, plaintiff the United States of America filed a

complaint in this action, alleging that the New York City Department of Transportation (the

"Department of Transportation") and the City of New York (collectively, the "Defendants")

engaged in a pattern or practice of employment discrimination by refusing to hire qualified

female applicants for the position of Bridge Painter on the basis of their sex, in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.c. § 2000e ("Title VII"); and

WHEREAS, on June 27, 2007, the Court approved the request of four female

applicants for the Bridge Painter position - JoAnn Rush, Helen Jackson, Efrosini Katanakis,

and Luzia Oliskovicz (collectively, the "Female Bridge Painter Applicants") - and Local

Union No. 806 (collectively with the Female Bridge Painter Applicants, the "Intervenors") to

intervene in this action; and

WHEREAS, on July 2, 2009, the Court granted Defendants' motion for summary

judgment insofar as it pertained to the claims of the Intervenors and dismissed such claims; and

WHEREAS, a bench trial was held on the United States's claims from October \3

to October 19,2009 before this Court; and

WHEREAS, following the trial, the United States submitted a Proposed Order of

Remedial Relief (the "Proposed Remedial Order") [Dkt. No. 66, Ex. A], seeking two types of

Case 1:07-cv-02083-WHP Document 76 Filed 05/28/10 Page 2 of 3
relief: (I) compliance relief, consisting of provisions designed to change Defendants' policies, procedures and practices relating to the recruitment and hiring for the position of Bridge Painter so as to ensure their compliance with Title VII; and (i,) equitable/compensatory relief, including the appointment of JoAnn Rush, Helen Jackson, and Efrosini Katanakis to the Bridge Painter position, the award of backpay to JoAnn Rush, Helen Jackson, Efrosini Katanakis, and Luzia Oliskovicz, the fourth woman applicant (collectively, the "Female Bridge Painter Applicants"), and such other relief that the Court deems appropriate; and
WHEREAS, on May 13, 2010, the Court issued an Opinion and Order (the "Decision" or "Trial Op.") [Dkt. No. 73], holding that "the United States established its
pattem-or-practice disparate treatment claim," see Trial Op. at 39, and;
WHEREAS, the Court adopted "Sections I, II, Ill, V, VI, and VII" of the Proposed
Remedial Order, which pertain to the compliance relief sought by the United States, see Trial
Op. at 39 at 43, and also directed that further proceedings be held to determine the appropriate equitable/compensatory relief for the Female Bridge Painter Applicants, see id. at 41-42.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that the United States's request for compliance relief is granted in all respects; and it is further
ORDERED, ADJUDGED, and DECREED that the United States shall have judgment against Defendants with respect to its request for compliance relief, as set forth in the attached Compliance Injunction; and it is further
ORDERED, ADJUDGED, and DECREED that the only remaining issue in this action is the appropriate equitable/compensatory relief for the Female Bridge Painter Applicants, which shall be resolved in subsequent proceedings; and it is further
ORDERED, ADJUDGED, and DECREED that the foregoing constitutes the judgment of the Court pursuant to Rule 54(b) of the Federal Rules of Civil Procedure partially adjudicating the claims before this Court. The Court finds that there is no just reason for delay
2

Case 1:07-cv-02083-WHP Document 76 Filed 05/28/10 Page 3 of 3

in entering this judgment because the remaining claims in this action are sufficiently separate and distinct from those upon which judgment has been granted.
Dated: New York, New York May :;l:1I, 2010

UNITED STATES DISTRICT JUDGE

CLERK OF THE COURT

3

 
 Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 1 of 8

USDC SDNY DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT

DOC#:

SOUTHERN DISTRICT OF NEW YORK

If DATE F-I- L- E- D-: ---~~I- ,e-----

---------------------------------------------------------------------------~.~==========~~=======!J

UNITED STATES OF AMERICA, Plaintiff,
-v -

07 Civ. 2083 (WHP)(HP) ECF Case

CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION,
Defendants.

STIPULATION AND ORDER OF SETTLEMENT WITH RESPECT TO VICTIM-SPECIFIC RELIEF

------------------------------------------------------------------------------ x

WHEREAS, on March 12, 2007, plaintiff the United States of America

filed a complaint in this action (the "Complaint"), alleging that the New York City

Department of Transportation (the "Department of Transportation" or "DOT") and

the City of New York (the "City) (collectively, the "Defendants") engaged in a

pattern or practice of employment discrimination by refusing to hire qualified

female applicants for the position of Bridge Painter on the basis of their sex, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title

VII"); and

WHEREAS, the Complaint seeks (i) injunctive relief with respect to the

Department of Transportation's hiring policies, procedures and practices with

respect to the Bridge Painter position, and (ii) equitable relief for female

applicants for the position of Bridge Painter who were victims of employment

discrimination by Defendants;

WHEREAS, on June 27, 2007, the Court approved the request of four

female applicants for the Bridge Painter position - Joann Rush, Helen Jackson,

Efrosini Katanakis, and Luzia Oliskovicz (collectively, the "Claimants") - and

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 2 of 8
Local Union No. 806 (collectively with the Claimants, the "Intervenors") to intervene in this action; and
WHEREAS, on July 2, 2009, the Court granted Defendants' motion for summary judgment insofar as it pertained to the claims of the Intervenors and dismissed such claims; and
WHEREAS, a bench trial was held on the United States' claims from October 13 to October 19, 2009 before the Court; and
WHEREAS, on May 13, 2010, the Court issued an Opinion and Order (the "Decision" or "Trial Op.") [Dkt. No. 73], holding that "the United States established its pattern-or-practice disparate treatment claim," see Trial Op. at 39, but "reserve[d] final judgment with respect to [the United States' requests] for individual hiring and compensatory relief pending further briefing from the parties," see Trial Op. at 42; and
WHEREAS, on May 28, 2010, the Court entered partial judgment pursuant to Federal Rule of Civil Procedure 54(b) (the "Partial Judgment") and issued a Compliance Injunction (the "Injunction") [Dkt. Nos. 76 and 75], setting forth requirements regarding the Department of Transportation's policies, procedures, and practices for hiring for the Bridge Painter position; and
WHEREAS, on June 25, 2010, Defendants filed a Notice of Appeal from the Partial Judgment, which appeal is currently pending before the United States Court of Appeal for the Second Circuit (the "Appeal"); and
WHEREAS, the United States and Defendants have submitted supplemental briefing with regard to the appropriate equitable relief; and
2

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 3 of 8
WHEREAS, on or about August 6, 2010, the Department of Transportation offered Ms. Katanakis a provisional appointment to the position of Bridge Painter; and
WHEREAS, Ms. Katanakis commenced employment with DOT as a provisional Bridge Painter on September 7,2010; and
WHEREAS, the United States and Defendants wish to consensually resolve the claims in this action for victim-specific relief, so as to avoid further protracted litigation regarding the victim-specific relief and to preserve judicial resources;
NOW, THEREFORE, IT IS STIPULATED, AGREED AND ORDERED that:
l. In full and complete satisfaction of the claims of the United States in this action for victim specific relief on behalf of the Claimants, the Defendants shall offer the following backpay relief:
a. A monetary award of two hundred fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Helen Jackson;
b. A monetary award of two hundred fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Joann Rush;
c. A monetary award of two hundred and fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and
3

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 4 of 8
local withholding taxes on the monetary award as required by law, to Luzia M. Oliskovicz; and
d. A monetary award of two hundred and fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Efrosini Katanakis. 2. Within ten (10) days after the date of entry of this Stipulation and Order, the Defendants shall notify the Claimants of its terms by mailing to each, in care of their counsel, via certified mail, a notification letter in the form set forth in Appendix A (the "Appendix A letters"). Enclosed with the Appendix A letters shall be (1) the form attached as Appendix B, (the "Release of Claims Form"); (2) forms W-4 and IT 2104, attached as Appendix C; (3) an Affidavit Concerning Liens, in the form attached as Appendix D; and (4) a copy of this Stipulation and Order. 3. Only those Claimants who sign, notarize, and return the Release of Claims Form and the Mfidavit Concerning Liens, as well as return completed and executed Forms W-4 and IT 2104 to the Defendants shall be eligible for the individual relief described in paragraph 1 of this Stipulation and Order. Any Claimant who does not return the aforementioned documents to the Defendants within sixty days of the date of mailing, absent a showing of good cause, shall be deemed to have waived her entitlement to relief under this Stipulation and Order. The determination that a Claimant has shown good cause shall be within the sole discretion of the Court.
4

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 5 of 8
4. The Defendants shall provide the United States with a copy of each of the executed Release of Claims Form, the Forms W-4 and IT 2104 and the Affidavit Concerning Liens within ten (10) days of their receipt thereof.
5. Within a reasonable period of time from the date of their receipt of the Release of Claims Form, the Forms W-4 and IT 2104 and the Affidavit Concerning Liens from a Claimant, the Defendants shall mail to that Claimant a check made payable to her in the amount set forth in paragraph 1 of this Stipulation and Order. The Defendants will issue the appropriate tax documents to each Claimant within the time required by law. The Claimants will be responsible for paying any income taxes due on the payments that they receive from the Defendants. Nothing in this paragraph shall be construed as a waiver by the Defendants of any right that they may have to challenge, in an appropriate forum, the necessity of withholding employer taxes or employer contributions for the backpay awards.
6. At the time of a payment to a Claimant pursuant to this Stipulation and Order, the Defendants shall provide the United States with notice of the payment having been made to that Claimant.
7. Within three (3) days after the entry of this Stipulation and Order, Defendants and the United States shall submit a joint stipulation to the United States Court of Appeal for the Second Circuit, stipulating to the withdrawal of the Appeal, in the form attached as Appendix E.
8. Nothing contained herein shall limit, affect or modify the Compliance Injunction or the Defendants' obligation to comply in all respects with the Compliance Injunction.
5

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 6 of 8
9. Defendants agree to forever forfeit and waIve their right to challenge, in any manner, in any respect and at any time, the liability determination set forth in the Court's Decision.
10. Nothing in this Stipulation and Order shall bar the Defendants from applying to the district court for a modification of the terms of the Compliance Injunction; provided however, that as set forth in paragraph 9, the Defendants have waived any challenge to the liability determination set forth in the Court's Decision and provided further, however, that unless the Defendants obtain the consent of the United States to such a modification, any such application for modification of the terms of the Compliance Injunction shall be made in writing, shall be served upon the United States at least 30 days in advance of any hearing scheduled with respect to the application, and shall provide the United States with at least 14 days to file its response to the application for a modification.
11. The United States and the Defendants shall bear their own costs and fees in this action, except that the parties shall retain the right to seek costs and fees for any matter which, in the future, may arise from this Agreement or from the Compliance Injunction and require resolution by the Court.
12. Nothing contained in this Stipulation and Order shall be deemed to constitute a policy or practice of the New York City Department of Transportation, the City of New York, or any of its constituent agencies.
6

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 7 of 8

13. The United States and Defendants understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect.

Dated: New York, New York
September )1. 2010
PREET BHARARA United States Attorney

By:

?~

JE NNETTE A. :ARGAS

AL ISON D. PENN

LlYU

Assistant United States Attorneys

86 Chambers Street, 3rd Floor

New York, New York 10007

Tel: (212) 637-2678

Counsel for the United States

Dated: New York, New York September ____, 2010
MICHAEL A. CARDOZO Corporation Counsel of the City of New York
By: __________________
BRUCE ROSENBAUM, Esq. Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 Tel: (212) 788-0857 Counsel for Defendants

SO ORDERED:

HONORABLE WILLIAM H. PAULEY, III UNITED STATES DISTRICT JUDGE

7

Case 1:07-cv-02083-WHP Document 87 Filed 09/30/10 Page 8 of 8

UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the

day of September , two thousand and ten

UNITED STATES OF AMERICA, Plaintiff, - vCITY OF NEW YORK and NEW
a VrlOV ("'lTV nco" OTl\,fClI.TT riC

STIPULATION Docket Number: 10-2627

The undersigned counsel for the parties stipulate that the above-captioned case is withdrawn without costs and without attorneys' fees pursuant to FRAP 42(b).

Date: Date:

Attorney for Appellant MICHAEL A. CARDOZO, Corporation Cc Print Name and Firm
Attorney for Appellee PREET BHARARA, United States Attorne Print Name and Firm

 
 Case 1:07-cv-02083-WHP Document 94 FiledU1S2D/0C7/1S0ONPYage 1 of 3
DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DOC#:-----------------

DATE FILED:

o

------------------------------------------------------------------------------ }C

UNITED STATES OF AMERICA,

ECF Case

Plaintiff,

07 Civ. 2083 (WHP)(HP)

-v-
CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF TRANSPORTATION,
Defendants. ------------------------------------------------------------------------------ }C

[lljU~ F e~Pl'f)] FINAL ORDER ADOPTING THE COMPLIANCE INJUNCTION

WHEREAS, the United States of America (the "United States") brought

this action pursuant to 42 U.S.C. § 2000e-6 to remedy a pattern or practice of

unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e ("Title VII") and alleged that the New York City Department of

Transportation (the "Department of Transportation") and the City of New York

(collectively, the "Defendants") engaged in a pattern or practice of employment

discrimination by refusing to hire women for the position of Bridge Painter on the

basis of se}C; and

WHEREAS, on July 2, 2009, the Court granted Defendants' motion for

summary judgment insofar as it pertained to the claims of the Intervenors (Joann

Rush, Helen Jackson, Efrosini Katanakis, Luzia Oliskovicz and Local Union No.

806, Structural Steel and Bridge Painters of Greater New York) and dismissed

such claims; and

WHEREAS, a trial in this matter was held from October 13 to October

19,2009; and

Case 1:07-cv-02083-WHP Document 94 Filed 12/07/10 Page 2 of 3
WHEREAS, on May 13, 2010, the Court issued an Opinion and Order, holding that the United States "established its pattern-or-practice disparate treatment claim" and, specifically, that the evidence proved the Defendants had engaged in intentional, gender-based discrimination in violation of Title VII; and
WHEREAS, on May 28,2010, the Court entered a Judgment in favor of the United States with respect to the compliance relief and also entered a Compliance Injunction, prescribing certain injunctive relief which included procedures for recruiting and selecting candidates for the position of bridge painter at the Department of Transportation; and
WHEREAS, pursuant to Section 703(n) of Title VII, 42 U.S.C. § 2000e2(n), the Compliance Injunction provided for a fairness hearing to be held to provide an opportunity to be heard to individuals who believe that they could be adversely affected by the Compliance Injunction;
WHEREAS, on October 6, 2010, the Court approved a form of the notice to be given to affected parties (the "Notice"), giving notice that a fairness hearing was to be held at 11 a.m. on December 3, 2010, and specifying the procedures for filing objections and for requesting for an opportunity to address the Court; and
WHEREAS, pursuant to the paragraph 22 of the Compliance Injunction, Defendants provided copies of the Notice to (i) previous applicants for the bridge painter position at DOT, (ii) the bridge painters working at DOT, and (iii) offices of labor union organizations representing bridge painters; and
WHEREAS, in response to the Notice, the United States and Defendants received objections to the Compliance Injunction from nine individuals
2

Case 1:07-cv-02083-WHP Document 94 Filed 12/07/10 Page 3 of 3

(collectively, the "Objections"), and subsequently submitted the Objections to the Court for review; and
WHEREAS, after gIvmg careful consideration to the Objections, the Court held a hearing on December 3, 2010 (the "Hearing"), and afforded a further opportunity to be address the Court to any party who wished to be heard; and
WHEREAS, based on the record of the Hearing, and the Court's statement at the Hearing regarding the basis for the Court's judgment that the terms of the Compliance Injunction are fair, reasonable, lawful, and consistent with the purpose of Title VII; and
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
1. For the reasons stated on the record at the December 3, 2010 hearing, the terms of the Compliance Injunction are fair, reasonable, and lawful.
2. Pursuant to 42 U.S.C. § 2000e-2(n), the terms of the Compliance Injunction are entered as a final order of the Court.

Dated: New York, New York December ~, 2010

SO ORDERED:
~~~\)~
WILLIAM H. PAULEY)3J .. UNITED STATES DISTRICT JUDGE

3

 
 Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 1 of 13
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:07−cv−02083−WHP

CLOSED,ECF

United States of America v. City of New York et al Assigned to: Judge William H. Pauley, III Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 03/12/2007 Date Terminated: 09/03/2010 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Jeannette Anne Vargas U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2000 Fax: 212−637−2730 Email: Jeannette.Vargas@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison D Penn U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 2126372200 Fax: 2126372786 Email: Allison.d.Penn@usdoj.gov ATTORNEY TO BE NOTICED

Li Yu U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2734 Fax: (212) 637−2686 Email: li.yu@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant City of New York

represented by Bruce Rosenbaum NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 788−0303 Fax: (212) 788−0877 Email: brosenba@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Aaron Seacord New York City Law Department 100 Church Street, Room 4−114 New York, NY 10007 (212) 788−0866

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 2 of 13

Fax: (212) 341−3934 Email: cseacord@law.nyc.gov ATTORNEY TO BE NOTICED

Defendant
New York City Department of Transportation

represented by Bruce Rosenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Aaron Seacord (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Union Structural Steel and Bridge Painters of Greater New York, Local 806

Intervenor Plaintiff
Union Structural Steel and Bridge Painters of Greater New York, Local 806

represented by Structural Steel and Bridge Painters of Greater New York, Local 806 c/o Koehler &Isaacs LLP Howard Wien, Esq. 61 Broadway, Suite 25 New York, NY 10006 917−551−1333 Email: hwien@koehler−isaacs.com PRO SE

Date Filed 03/12/2007 03/12/2007 03/12/2007 03/12/2007 04/12/2007 04/13/2007 05/25/2007
06/13/2007

# Docket Text
1 COMPLAINT against City of New York, New York City Department of Transportation. Document filed by United States of America.(tro) (Entered: 03/12/2007)
SUMMONS ISSUED as to City of New York, New York City Department of Transportation. (tro) (Entered: 03/12/2007)
Magistrate Judge Henry B. Pitman is so designated. (tro) (Entered: 03/12/2007)
Case Designated ECF. (tro) (Entered: 03/12/2007)
2 WAIVER OF SERVICE RETURNED EXECUTED. Document filed by United States of America. (Penn, Allison) (Entered: 04/12/2007)
3 NOTICE OF APPEARANCE by Bruce Rosenbaum on behalf of City of New York, New York City Department of Transportation (Rosenbaum, Bruce) (Entered: 04/13/2007)
4 ENDORSED LETTER addressed to Judge William H. Pauley from Bruce Rosenbaum dated 5/14/07 re: Request a pre−motion conference on the proposed motion and to request that defendants time to answer the complaint be held in abeyance pending consideration of defendants proposed motion. ENDORSEMENT: Application GRANTED. A pre−motion conference will be held on June 15,2007 at 10:15 a.m. in conjunction with the IPTC. (Signed by Judge William H. Pauley III on 5/22/07) (js) (Entered: 05/29/2007)
5 REQUEST TO PARTICIPATE of Structural Steel and Bridge Painters of Greater New York, Local 806 Complaint and Request to Intervene. Document filed by Structural Steel and Bridge Painters of Greater New York, Local 806. (Attachments: # 1 Letter)(Wien, Howard) (Entered: 06/13/2007)

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 3 of 13

06/27/2007 07/05/2007 07/30/2007 07/30/2007 08/31/2007 10/26/2007 02/01/2008 02/06/2008
02/08/2008 03/09/2008 05/07/2008
06/05/2008

6 ENDORSED LETTER addressed to Judge William H. Pauley from Howard Wien dated 6/13/2007 re: Plaintiff and Defendants request leave to intervene. I am requesting that the parties and the Court forego formal motion practice. ENDORSEMENT: SO ORDERED. (Signed by Judge William H. Pauley III on 6/27/2007) (jmi) (Entered: 06/28/2007)
7 ENDORSED LETTER addressed to Judge William H. Pauley III from Jeanette A. Vargas dated 6/13/07 re: a request for an adjournment of the conference scheduled in this case for 6/15/2007. ENDORSEMENT: The IPTC/PMC is adjourned to 7/13/2007 at 10:00 a.m. SO ORDERED. (Signed by Judge William H. Pauley III on 7/3/07) (kco) (Entered: 07/06/2007)
8 ANSWER to Complaint. Document filed by City of New York, New York City Department of Transportation.(Rosenbaum, Bruce) (Entered: 07/30/2007)
9 ANSWER to Complaint. Document filed by City of New York, New York City Department of Transportation.(Rosenbaum, Bruce) (Entered: 07/30/2007)
10 SCHEDULING ORDER:Discovery due by 1/31/2008, Final Pretrial Conference set for 2/14/2008 at 10:00 AM before Judge William H. Pauley III,Pretrial Order due by 2/29/2008. SO ORDERED. (Signed by Judge William H. Pauley III on 8/30/2007) (jmi) (Entered: 08/31/2007)
11 SCHEDULING ORDER: Discovery due by 1/31/2008, Pretrial Order due by 5/29/2008, Final Pretrial Conference set for 6/13/2008 at 11:00 AM before Judge William H. Pauley III. SO ORDERED. (Signed by Judge William H. Pauley III on 10/25/2007) (jmi) (Entered: 10/29/2007)
12 SCHEDULING ORDER: A Conference shall take place on 2/5/2008 at 11:30 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 1/31/2008) (jar) (Entered: 02/01/2008)
13 SCHEDULING ORDER: Defendant City of New York shall produce the materials requested by Plaintiffs pertaining to Civil Examination No. 3027 by 3/7/08. Plaintiff shall identify any experts by 4/15/08. Defendants shall identify any rebuttal experts by 4/30/08. the parties shall complete all fact discovery, including all depositions, by 4/30/2008. Plaintiff shall produce any rebuttal expert reports by 5/30/08. The parties shall complete expert discovery by 6/30/2008. The parties shall submit a joint pre−trial order by 7/31/2008. Final Pretrial Conference set for 8/22/2008 at 10:15 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 2/5/08) (tro) (Entered: 02/06/2008)
***REJECTION OF ATTEMPTED PAPER FILING IN ECF CASE. The following document(s) Appearance by Li Yu, was rejected by the Clerk's Office and must be FILED ELECTRONICALLY on the Court's ECF System. (tve) (Entered: 02/13/2008)
14 NOTICE OF APPEARANCE by Li Yu on behalf of United States of America (Yu, Li) (Entered: 03/09/2008)
15 ENDORSED LETTER addressed to Judge William H. Pauley from Jeannette A. Vargas dated 5/1/08 re: The U.S. writes, with the consent of all parties, to request an extension of fact discovery deadline in the above−captioned matter from 4/30/08 to 5/30/08, and a similar four−week extension of the other discovery deadlines contained in the Court's 2/5/08, Scheduling Order, such that all discovery, including expert discovery, will be completed in this case by 7/30/08. ENDORSEMENT: Application granted. The parties shall submit a joint pretrial order by August 29, 2008. The final pre−trial conference is adjourned to September 26, 2008 at 10:30 a.m. (Signed by Judge William H. Pauley, III on 5/5/08) (tro) (Entered: 05/09/2008)
16 ENDORSED LETTER addressed to Judge William H. Pauley III from Liam L. Castro dated 5/30/2008 re: Requesting an extension of time, from May 30 to June 16, 2008, to respond to the defendants' second request for documents and interrogatories. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 6/4/2008) (jpo) (Entered: 06/05/2008)

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 4 of 13

08/25/2008
09/03/2008 09/16/2008 10/17/2008 10/17/2008 10/31/2008 10/31/2008 10/31/2008 10/31/2008 10/31/2008 10/31/2008

17 ENDORSED LETTER addressed to Judge William H. Pauley from Li Yu dated 8/15/08 re: Counsel writes to respectfully renew their March 11, 2008 request to Judge Pauley to refer this matter to Chief Magistrate Pitman for mediation. Plaintiffs further request that the court extend, nunc pro tunc, the deadline for close of expert discovery from July 30, 2008 to September 29, 2008, and also adjourn the date of the submission of the joint pretrial order from August 29, 2008 to October 31, 2008 and the final pretrial conference from 10:30 a.m. on September 26, 2008 to a date and time late in November 2008 that is convenient to the court. ENDORSEMENT: Application denied. The deadline for completion of discovery has passed. Mediation without defendants consent would be pointless. (Signed by Judge William H. Pauley, III on 8/22/08) (mme) (Entered: 08/25/2008)
18 ENDORSED LETTER addressed to Judge William H. Pauley, III from Bruce Rosenbaum dated 8/26/2008 re: Counsel writes requesting a pre−motion conference to discuss defendants' anticipated motion for summary judgment. ENDORSEMENT: Application granted. This Court will hold a pre−motion conference on 9/10/08 at 10:00 a.m. SO ORDERED. (Signed by Judge William H. Pauley, III on 9/2/2008) (tve) (Entered: 09/03/2008)
19 SCHEDULING ORDER: Defendants shall file their motion for summary judgment by October 17,2008; Plaintiffs shall file their opposition to the motion by November 17,2008; Defendants shall file any reply by November 26,2008; and Oral argument concerning the motion shall take place on December 12, 2008 at 10:30 a.m. SO ORDERED. (Signed by Judge William H. Pauley, III on 9/15/2008) (tve) (Entered: 09/16/2008)
20 ENDORSED LETTER addressed to Judge William H. Pauley from Bruce Rosenbaum dated 10/15/2008 re: Requesting a one week extension of the deadlines, for submission of papers in connection with defendants' motion for summary judgment. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 10/17/2008) (jpo) (Entered: 10/20/2008)
21 SCHEDULING ORDER: Motions for summary judgment due by 10/24/2008. Responses due by 11/24/2008 Replies due by 12/3/2008. Oral Argument set for 12/12/2008 at 10:30 AM before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 10/17/2008) Copies Mailed By Chambers.(jpo) (Entered: 10/20/2008)
22 MOTION for Summary Judgment. Document filed by City of New York, New York City Department of Transportation. Responses due by 12/1/2008(Rosenbaum, Bruce) (Entered: 10/31/2008)
23 RULE 56.1 STATEMENT. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 10/31/2008)
24 DECLARATION of Robert Collyer in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 10/31/2008)
25 DECLARATION of William Klimowicz in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 10/31/2008)
26 DECLARATION of Assistant Corporation Counsel Bruce Rosenbaum in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Attachments: # 1 Exhibit Exhibits A − C part 1, # 2 Exhibit Exhibit C part 2, # 3 Exhibit Exhibits D, E and F, # 4 Exhibit Exhibits G, H and I, # 5 Exhibit Exhibit J, # 6 Exhibit Exhibit K part 1, # 7 Exhibit Exhibit K part 2)(Rosenbaum, Bruce) (Entered: 10/31/2008)
27 DECLARATION of Assistant Corporation Counsel Bruce Rosenbaum in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Attachments: # 1 Exhibit Exhibits K part 3, L, M, N, O and P, # 2 Exhibit Exhibits Q, R, S, T, U, V, W, X, Y and Z, # 3 Exhibit Exhibits AA − SS, # 4 Exhibit Exhibit TT part 1, # 5 Exhibit Exhibits TT part 2, UU and VV, # 6 Exhibit Exhibit WW)(Rosenbaum, Bruce) (Entered: 10/31/2008)

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 5 of 13

11/03/2008 11/03/2008 11/03/2008 12/01/2008
12/10/2008 12/10/2008 12/10/2008

28 MEMORANDUM OF LAW in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Attachments: # 1 Exhibit Exhibit XX part 1, # 2 Exhibit Exhibit XX part 2)(Rosenbaum, Bruce) (Entered: 11/03/2008)
29 SCHEDULING ORDER: Motions due by 10/31/2008, Responses due by 12/1/2008 Replies due by 12/10/2008, Oral Argument set for 1/16/2009 at 10:45 AM before Judge William H. Pauley III. SO ORDERED. (Signed by Judge William H. Pauley, III on 10/30/2008) (jmi) (Entered: 11/03/2008)
30 ENDORSED LETTER addressed to Judge William H. Pauley from Bruce Rosenbaum dated 10/23/2008 re: Requesting that the deadlines for submission of papers set forth in Court October 17, 2008 scheduling order each be further extended by one week. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 10/31/2008) (jpo) (Entered: 11/05/2008)
31 ENDORSED LETTER addressed to Judge William H. Pauley from Allison D. Penn dated 11/24/08 re: Counsel for Plaintiff request a brief extension until 12/10/08 for the United States and the plaintiff−intervenors to file their opposition papers to Defendants' motion for summary judgment and that Defendants' reply be extended correspondingly to 12/19/08, with 1/16/09 remaining the date for oral argument. ENDORSEMENT: Application granted. Set Deadlines/Hearing as to 22 MOTION for Summary Judgment:( Responses due by 12/10/2008, Replies due by 1/16/2009.) (Signed by Judge William H. Pauley, III on 11/26/08) (tro) (Entered: 12/01/2008)
32 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Howard Wien in Opposition re: 22 MOTION for Summary Judgment. Document filed by Structural Steel and Bridge Painters of Greater New York, Local 806. (Attachments: # 1 Affidavit Declaration of Counsel in Opposition to Defendants' Motion for Summary Judgment, # 2 Supplement Memorandum of Law in Opposition, # 3 Affidavit Plaintiff−Intervenors' Statement Pursuant to Local Rule 56.1(b))(Wien, Howard) Modified on 12/11/2008 (db). (Entered: 12/10/2008)
33 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Opposition re: 22 MOTION for Summary Judgment. Document filed by United States of America. (Attachments: # 1 Counter−statement of the United States to Defendants' Local Civil Rule Rule 56.1 Statement)(Yu, Li) Modified on 12/11/2008 (db). (Entered: 12/10/2008)
34 DECLARATION of Li Yu in Opposition re: 22 MOTION for Summary Judgment.. Document filed by United States of America. (Attachments: # 1 Exhibit 1, Pt. 1 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 2 Exhibit 1, Pt. 2 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 3 Exhibit 2 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 4 Exhibit 3 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 5 Exhibit 4 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 6 Exhibit 5 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 7 Exhibit 6 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 8 Exhibit 7 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 9 Exhibit 8 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 10 Exhibit 9 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 11 Exhibit 10 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 12 Exhibit 11 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 13 Exhibit 12 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 14 Exhibit 13 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 15 Exhibit 14 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 16 Exhibit 15 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 17 Exhibit 16 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 18 Exhibit 17 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 19 Exhibit 18 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 20 Exhibit 19 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 21 Exhibit 20 to the Yu Decl. in Opposition to Defendants' Motion for

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 6 of 13

12/10/2008 12/10/2008
12/10/2008
12/11/2008 12/11/2008 12/11/2008 12/11/2008 12/11/2008 12/18/2008

Summary Judgment, # 22 Exhibit 21 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 23 Exhibit 22 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 24 Exhibit 23 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 25 Exhibit 24 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 26 Exhibit 25 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 27 Exhibit 26 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 28 Exhibit 27 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 29 Exhibit 28 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 30 Exhibit 29 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 31 Exhibit 30 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 32 Exhibit 31 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 33 Exhibit 32 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 34 Exhibit 33 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 35 Exhibit 34 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment, # 36 Exhibit 35 to the Yu Decl. in Opposition to Defendants' Motion for Summary Judgment)(Yu, Li) (Entered: 12/10/2008)
35 CERTIFICATE OF SERVICE of Memorandum of Law and attachments served on The City of New York, New York City Department of Transportation, Plaintiff−Intervenors on 12/10/2008. Service was made by E−Mail. Document filed by United States of America. (Yu, Li) (Entered: 12/10/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Howard Gary Wien to RE−FILE Document 32 Declaration in Opposition to Motion. ERROR(S): Supporting Document must be filed separately (i.e. Affidavit in Opposition, Memorandum in Opposition of Motion and Rule 56.1 Statement (found under event Other Anawers) to be filed individually). ***REMINDER*** − Re−File Declaration also. (db) (Entered: 12/11/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Li Yu to RE−FILE Document 33 Memorandum of Law in Opposition to Motion. ERROR(S): Supporting Document must be filed separately (i.e. Counter−Statement to Rule 56.1 to be filed individually − found under the event type Other Answers). ***REMINDER*** − Re−File Memorandum in Opposition. (db) (Entered: 12/11/2008)
36 MEMORANDUM OF LAW in Opposition re: 22 MOTION for Summary Judgment.. Document filed by United States of America. (Yu, Li) (Entered: 12/11/2008)
37 RESPONSE in Opposition re: 22 MOTION for Summary Judgment. Responsive Statement of the United States to Defendants' Local Civil Rule 56.1 Statement. Document filed by United States of America. (Yu, Li) (Entered: 12/11/2008)
38 DECLARATION of Howard Wien, Esq in Opposition re: 22 MOTION for Summary Judgment.. Document filed by Structural Steel and Bridge Painters of Greater New York, Local 806. (Wien, Howard) (Entered: 12/11/2008)
39 FIRST MEMORANDUM OF LAW in Opposition re: 22 MOTION for Summary Judgment.. Document filed by Structural Steel and Bridge Painters of Greater New York, Local 806. (Wien, Howard) (Entered: 12/11/2008)
40 COUNTER STATEMENT TO Document filed by Structural Steel and Bridge Painters of Greater New York, Local 806. (Wien, Howard) (Entered: 12/11/2008)
41 ENDORSED LETTER addressed to Judge William H. Pauley from Bruce Rosenbaum dated 12/16/08 re: Defendants request that the page limit for their reply memo of law be extended from 10 to 20 pages. In addition, defendant request a brief extension of their time to serve and file their reply papers from 12/19/08 to 12/24/08. ENDORSEMENT: Application granted in part, denied in part. Defendants' time to serve and file their reply papers is extended to December 24, 2008. Defendants' request to exceed the ten page limit is denied. Set Deadlines/Hearing as to 22 MOTION for Summary Judgment:( Replies due by

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 7 of 13

12/25/2008 12/25/2008
12/25/2008 12/30/2008
07/02/2009
07/02/2009 07/31/2009
09/14/2009 09/14/2009 09/14/2009 09/14/2009 09/15/2009

12/24/2008.) (Signed by Judge William H. Pauley, III on 12/18/08) (tro) (Entered: 12/19/2008)
42 REPLY MEMORANDUM OF LAW in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 12/25/2008)
43 REPLY AFFIRMATION of Assistant Corporation Counsel Bruce Rosenbaum in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Attachments: # 1 Exhibit YY, # 2 Exhibit ZZ, # 3 Exhibit AAA Part 1, # 4 Exhibit AAA Part 2, # 5 Exhibit AAA Part 3, # 6 Exhibit BBB Part 1, # 7 Exhibit BBB Part 2, # 8 Exhibit CCC, # 9 Exhibit EEE, # 10 Exhibit FFF)(Rosenbaum, Bruce) (Entered: 12/25/2008)
44 REPLY AFFIRMATION of Assistant Corporation Counsel Bruce Rosenbaum in Support re: 22 MOTION for Summary Judgment.. Document filed by City of New York, New York City Department of Transportation. (Attachments: # 1 Exhibit DDD Part 1, # 2 Exhibit DDD Part 2, # 3 Exhibit DDD Part 3, # 4 Exhibit DDD Part 4)(Rosenbaum, Bruce) (Entered: 12/25/2008)
45 ENDORSED LETTER addressed to Judge William H. Pauley from Li Yu dated 12/23/08 re: Request for leave from the Court to file substitute exhibits (nos. 26,31−33) to the United States' opposition to Defendants motion for summary judgment that include appropriate redactions to remove certain personally identifiable information. ENDORSEMENT: Application Granted. (Signed by Judge William H. Pauley, III on 12/30/08) (cd) (Entered: 12/31/2008)
46 MEMORANDUM AND ORDER, that Defendants' motion for summary judgment is granted in part and denied in part. Defendants' motion for summary judgment dismissing Plaintiff− Intervenors' claims is granted. Defendants' motion for summary judgment dismissing the pattern−or−practice claim of the United States is denied. (Signed by Judge William H. Pauley, III on 7/2/09) (pl) (Entered: 07/02/2009)
47 SCHEDULING ORDER: this Court will hold a conference on July 30, 2009, at II :30 a.m. to set a schedule for the submission of a joint pre−trial order and final pre−trial conference. (Signed by Judge William H. Pauley, III on 7/2/09) (pl) (Entered: 07/02/2009)
48 SCHEDULING ORDER: The parties shall submit a joint pre−trial order in accord with this Court's Individual Practices by 8/31/09. Each party shall submit its motions in limine by 9/14/09. Each party shall submit its opposition to motions in limine by 9/23/09. Each party shall submit any reply concerning motions in limine by 9/30/09. Each party shall submit its pre−trial legal memoranda by 10/6/09. Final Pretrial Conference set for 10/9/2009 at 12:00 PM before Judge William H. Pauley III. This Court will commence a bench trial on 10/13/09. (Signed by Judge William H. Pauley, III on 7/30/09) (tro) (Entered: 07/31/2009)
49 MOTION in Limine Seeking Ruling on Admissibility of Evidence at Trial. Document filed by United States of America.(Vargas, Jeannette) (Entered: 09/14/2009)
50 MEMORANDUM OF LAW in Support re: 49 MOTION in Limine Seeking Ruling on Admissibility of Evidence at Trial.. Document filed by United States of America. (Vargas, Jeannette) (Entered: 09/14/2009)
51 DECLARATION of Jeannette A. Vargas in Support re: 49 MOTION in Limine Seeking Ruling on Admissibility of Evidence at Trial.. Document filed by United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Vargas, Jeannette) (Entered: 09/14/2009)
52 MOTION in Limine. Document filed by City of New York, New York City Department of Transportation.(Rosenbaum, Bruce) (Entered: 09/14/2009)
53 MEMORANDUM OF LAW in Support re: 52 MOTION in Limine.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 09/15/2009)

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 8 of 13

09/18/2009
09/23/2009 09/23/2009
09/23/2009 09/30/2009 09/30/2009 10/03/2009 10/06/2009 10/06/2009 10/28/2009 11/23/2009 11/23/2009 11/24/2009
11/24/2009 11/25/2009 11/30/2009

54 ENDORSED LETTER addressed to Judge William H. Pauley from Li Yu dated 8/31/09 re: Counsel respectfully request leave to re−open discovery for the limited purpose of conducting a deposition of a representative of the New York City Department of Transportation pursuant to F.R.C.P. 30(b)(6) on the subject of DOT's plans to hire twelve provisional bridge painters in the near future. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 9/18/09) (tro) (Entered: 09/18/2009)
55 MEMORANDUM OF LAW in Opposition re: 52 MOTION in Limine.. Document filed by United States of America. (Yu, Li) (Entered: 09/23/2009)
56 DECLARATION of Li Yu in Opposition re: 52 MOTION in Limine.. Document filed by United States of America. (Attachments: # 1 Exhibit 1 to Yu Declaration, # 2 Exhibit 2 to Yu Declaration, # 3 Exhibit 3 to Yu Declaration, # 4 Exhibit 4 to Yu Declaration, # 5 Exhibit 5 to Yu Declaration, # 6 Exhibit 6 to Yu Declaration, # 7 Exhibit 7 to Yu Declaration)(Yu, Li) (Entered: 09/23/2009)
57 MEMORANDUM OF LAW in Opposition re: 49 MOTION in Limine Seeking Ruling on Admissibility of Evidence at Trial.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 09/23/2009)
58 REPLY MEMORANDUM OF LAW in Support re: 49 MOTION in Limine Seeking Ruling on Admissibility of Evidence at Trial.. Document filed by United States of America. (Yu, Li) (Entered: 09/30/2009)
59 REPLY MEMORANDUM OF LAW in Support re: 52 MOTION in Limine.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 09/30/2009)
60 NOTICE OF APPEARANCE by Christopher Aaron Seacord on behalf of City of New York, New York City Department of Transportation (Seacord, Christopher) (Entered: 10/03/2009)
61 FILING ERROR − WRONG EVERT TYPE SELECTED FROM MENU (Pre−Trial Memorandum) − MOTION for Pre−Trial Brief of the United States. Document filed by United States of America.(Yu, Li) Modified on 10/8/2009 (jar). (Entered: 10/06/2009)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Li Yu to RE−FILE Document 61 MOTION for Pre−Trial Brief of the United States. Use the event type Pretrial Memorandum found under the event list Trial Documents. (jar) (Entered: 10/08/2009)
62 TRANSCRIPT of proceedings held on October 9, 2009 at 3:50 pm before Judge William H. Pauley, III. (rdz) (Entered: 11/06/2009)
64 TRANSCRIPT of proceedings held on October 19, 2009 before Judge William H. Pauley, III. (eef) (Entered: 11/24/2009)
65 TRANSCRIPT of proceedings held on October 13, 14, 15, 2009 before Judge William H. Pauley, III. (eef) (Entered: 11/24/2009)
63 ORDER. The Clerk of this Court shall place the United States' proposed trial Exhibits Nos. 37, 39, 113 and 121, which were electronically filed as Exhibits 1−4 to the Yu Declaration, under seal so as to prevent the general public from viewing these documents. (Signed by Judge William H. Pauley, III on 11/23/09) (djc) (Entered: 11/24/2009)
***DELETED DOCUMENT. Deleted document number 71 Order. The document was incorrectly filed in this case. Duplicate entry. (tve) (Entered: 12/08/2009)
66 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by United States of America. (Attachments: # 1 Exhibit A to United States' Proposed Findings of Fact and Conclusions of Law (Proposed Remedial Order))(Yu, Li) (Entered: 11/25/2009)
67 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by City of New York, New York City Department of

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 9 of 13

12/03/2009
12/04/2009 12/08/2009 12/16/2009 12/16/2009 05/13/2010
05/19/2010 05/28/2010 05/28/2010 06/01/2010

Transportation.(Rosenbaum, Bruce) (Entered: 11/30/2009)
68 ENDORSED LETTER addressed to Judge William H. Pauley III from Bruce Rosenbaum dated 11/30/2009 re: I am an Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation Counsel for the City of New York, attorney for the defendants in the above−referenced action. I write to request that the Court grant an extension of defendants' time to serve their proposed findings of fact and conclusions of law in the above case, which were filed by ECF early this morning (Docket No. 67), from November 25, 2009 until today. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. (Signed by Judge William H. Pauley, III on 12/3/2009) (jmi) (Entered: 12/03/2009)
69 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by City of New York, New York City Department of Transportation.(Rosenbaum, Bruce) (Entered: 12/04/2009)
70 ENDORSED LETTER addressed to Judge William H. Pauley from Allison D. Penn dated 12/4/09 re: The United States requests a brief extension of time to file its Reply to the City's Proposed Findings of Fact and Conclusions of Law, from 12/9/09, to 12/16/09. ENDORSEMENT: APPLICATION GRANTED. (Signed by Judge William H. Pauley, III on 12/4/09) (tro) (Entered: 12/08/2009)
71 POST TRIAL MEMORANDUM. Document filed by City of New York, New York City Department of Transportation.(Rosenbaum, Bruce) (Entered: 12/16/2009)
72 POST TRIAL MEMORANDUM. Document filed by United States of America.(Vargas, Jeannette) (Entered: 12/16/2009)
73 OPINION AND ORDER: #98977 Despite their years of bridge painting experience in the private sector, female Bridge Painter applicants were turned away by the Defendants. The City did not offer them jobs as Bridge Painters solely because they were women. This was unvarnished sex discrimination. The United States has proven that such discrimination was a pattern or practice of the City of New York and the Department of Transportation in the hiring of Bridge Painters. This Court adopts the Government's Proposed Order of Remedial Relief with respect to Sections I, II, III, V, VI, and VII. This Court will conduct a hearing to determine victim−specific compensation and job placement. The Government is directed to submit a proposed judgment consistent with this Opinion and Order by May 20, 2010. This Court will hold a conference on May 27, 2010 at 4:00 p.m. to discuss the status of this case and to schedule appropriate additional proceedings. The Clerk of Court is directed to terminate all motions in this case. (Signed by Judge William H. Pauley, III on 5/13/2010) (jfe) Modified on 5/24/2010 (ajc). (Entered: 05/13/2010)
74 ENDORSED LETTER addressed to Judge William H. Pauley from Bruce Rosenbaum dated 5/18/2010 re: Counsel requests that the Court adjourn the conference in this action currently scheduled for 5/27/2010 at 4pm to a subsequent date convenient for the Court. ENDORSEMENT: Application Granted. This Court will hold a conference on June 1, 2010 at 2:30 pm. (Status Conference set for 6/1/2010 at 02:30 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 5/19/2010) (tro) (Entered: 05/20/2010)
75 COMPLIANCE INJUNCTION: The United States is entitled to the compliance relief pursuant to 42 U.S.C. 2000e−5(g) as further set forth in this Order. (Signed by Judge William H. Pauley, III on 5/28/2010) (tro) (Entered: 05/28/2010)
76 RULE 54(B) JUDGMENT in favor of United States of America against City of New York, and New York City Department of Transportation with respect to its request for compliance relief. (Signed by Judge William H. Pauley, III on 5/28/10) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 05/28/2010)
77 SCHEDULING ORDER: Responses due by 6/29/2010 Replies due by 7/7/2010. Status Conference set for 6/18/2010 at 10:00 AM before Judge William H. Pauley III. Status Report due by 6/8/2010. (Signed by Judge William H. Pauley, III on 6/1/2010) (jmi) (Entered: 06/02/2010)

Case: 1:07-cv-2083 As of: 07/18/2014 10:26 AM EDT 10 of 13

06/18/2010 06/18/2010
06/18/2010
06/25/2010 06/29/2010 06/29/2010 06/29/2010

78 POST TRIAL MEMORANDUM. Document filed by United States of America.(Vargas, Jeannette) (Entered: 06/18/2010)
79 ENDORSED LETTER: addressed to Judge William H. Pauley from Allison D. Penn dated 6/11/2010 re: The United States requests a three day extension of time to allow them to fully brief this additional issue. Under this adjusted schedule, the United States' brief would be due on June 18, the City's response, would be due on July 2; and the United States reply brief would be due on 7/9/2010. ENDORSEMENT: Application Granted. So Ordered (Signed by Judge William H. Pauley, III on 6/18/2010) (js) (Entered: 06/21/2010)
80 SCHEDULING ORDER: Counsel for all parties having appeared for a conference with this Court on June 18, 2010, the following schedule is established on consent: 1. This Court will hold a fairness hearing regarding the terms of the Compliance Injunction (Docket No. 75) on December 3, 3010, at 11:00 a.m. So Ordered. (Signed by Judge William H. Pauley, III on 6/18/2010) (js) (Entered: 06/21/2010)
81 NOTICE OF APPEAL from 76 Judgment,. Document filed by City of New York, New York City Department of Transportation. Filing fee $ 455.00, receipt number E 907460. (nd) (Entered: 06/29/2010)
Transmission of Notice of Appeal to the District Judge re: 81 Notice of Appeal. (nd) (Entered: 06/29/2010)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 81 Notice of Appeal. (nd) (Entered: 06/29/2010)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 35 Certificate of Service Other, filed by United States of America, 29 Scheduling Order, 15 Endorsed Letter, Set Deadlines/Hearings,,,, 79 Endorsed Letter, Set Deadlines/Hearings,,,, 40 Counter Statement to Rule 56.1 filed by Structural Steel and Bridge Painters of Greater New York, Local 806, 66 Proposed Findings of Fact filed by United States of America, 21 Scheduling Order, 19 Scheduling Order, 52 MOTION in Limine. filed by New York City Department of Transportation, City of New York, 34 Declaration in Opposition to Motion, filed by United States of America, 71 Post Trial Memorandum filed by New York City Department of Transportation, City of New York, 39 Memorandum of Law in Opposition to Motion filed by Structural Steel and Bridge Painters of Greater New York, Local 806, 25 Declaration in Support of Motion filed by New York City Department of Transportation, City of New York, 3 Notice of Appearance filed by New York City Department of Transportation, City of New York, 11 Scheduling Order, 81 Notice of Appeal filed by New York City Department of Transportation, City of New York, 43 Reply Affirmation in Support of Motion, filed by New York City Department of Transportation, City of New York, 5 Request to Participate, filed by Structural Steel and Bridge Painters of Greater New York, Local 806, 67 Proposed Findings of Fact filed by New York City Department of Transportation, City of New York, 26 Declaration in Support of Motion, filed by New York City Department of Transportation, City of New York, 54 Endorsed Letter, 23 Rule 56.1 Statement filed by New York City Department of Transportation, City of New York, 2 Waiver of Service Executed filed by United States of America, 77 Scheduling Order, 78 Post Trial Memorandum filed by United States of America, 4 Endorsed Letter, Set Deadlines/Hearings,, 20 Endorsed Letter, Set Deadlines/Hearings,, 17 Endorsed Letter,,, 27 Declaration in Support of Motion, filed by New York City Department of Transportation, City of New York, 69 Proposed Findings of Fact filed by New York City Department of Transportation, City of New York, 49 MOTION in Limine Seeking Ruling on Admissibility of Evidence at Trial. filed by United States of America, 60 Notice of Appearance filed by New York City Department of Transportation, City of New York, 37 Response in Opposition to Motion filed by United States of America, 18 Endorsed Letter, Set Hearings,, 8 Answer to Complaint filed by New York City Department of Transportation, City of New York, 13 Scheduling Order, Set Deadlines/Hearings,,,, 53 Memorandum of Law in Support of Motion filed by New York City Department of Transportation, City of New York, 73 Memorandum &Opinion, Set Hearings,,,,,,,, 57 Memorandum of Law in Opposition to Motion filed by New York City Department of Transportation, City of New York, 58 Reply Memorandum of Law in Support of Motion filed by United States of

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America, 50 Memorandum of Law in Support of Motion filed by United States of America, 9 Answer to Complaint filed by New York City Department of Transportation, City of New York, 61 MOTION for Pre−Trial Brief of the United States. filed by United States of America, 72 Post Trial Memorandum filed by United States of America, 10 Scheduling Order, 42 Reply Memorandum of Law in Support of Motion filed by New York City Department of Transportation, City of New York, 28 Memorandum of Law in Support of Motion filed by New York City Department of Transportation, City of New York, 1 Complaint filed by United States of America, 44 Reply Affirmation in Support of Motion, filed by New York City Department of Transportation, City of New York, 80 Scheduling Order, 74 Endorsed Letter, Set Hearings,, 45 Endorsed Letter, 70 Endorsed Letter, Set Deadlines,, 63 Order, 31 Endorsed Letter, Set Motion and RRDeadlines/Hearings,,,, 22 MOTION for Summary Judgment. filed by New York City Department of Transportation, City of New York, 46 Order on Motion for Summary Judgment, 16 Endorsed Letter, Set Deadlines/Hearings,, 56 Declaration in Opposition to Motion, filed by United States of America, 30 Endorsed Letter, Set Deadlines/Hearings,, 24 Declaration in Support of Motion filed by New York City Department of Transportation, City of New York, 59 Reply Memorandum of Law in Support of Motion filed by New York City Department of Transportation, City of New York, 76 Judgment, 38 Declaration in Opposition to Motion filed by Structural Steel and Bridge Painters of Greater New York, Local 806, 7 Endorsed Letter, Set Deadlines/Hearings, Set Motion and RRDeadlines/Hearings,,, 75 Permanent Injunction, 68 Endorsed Letter,, 55 Memorandum of Law in Opposition to Motion filed by United States of America, 36 Memorandum of Law in Opposition to Motion filed by United States of America, 47 Scheduling Order, 41 Endorsed Letter, Set Motion and RRDeadlines/Hearings,,,, 48 Scheduling Order,, 51 Declaration in Support of Motion, filed by United States of America, 14 Notice of Appearance filed by United States of America were transmitted to the U.S. Court of Appeals. (nd) (Entered: 06/29/2010)
82 TRIAL MEMORANDUM. Document filed by City of New York, New York City Department of Transportation.(Rosenbaum, Bruce) (Entered: 07/02/2010)
83 POST TRIAL MEMORANDUM. Document filed by United States of America.(Vargas, Jeannette) (Entered: 07/09/2010)
84 ENDORSED LETTER addressed to Judge William H. Pauley from Jeannette A. Vargas dated 8/5/2010 re: The parties request that the United States' request for victim−specific relief be stayed until such time as the settlement approval process is concluded. ENDORSEMENT: Application Granted. The parties shall submit a report or settlement to this Court by August 13, 2010. (Signed by Judge William H. Pauley, III on 8/6/2010) (tro) (Entered: 08/09/2010)
85 ENDORSED LETTER addressed to Judge William H. Pauley, III from Li Yu dated 8/13/10 re: In the event that the approval process requires additional time, we will submit a report to the Court on August 24, 2010, on the status of this matter. ENDORSEMENT: Application granted., (Status Report due by 8/24/2010.) (Signed by Judge William H. Pauley, III on 8/16/10) (rjm) (Entered: 08/17/2010)
86 ORDER OF DISCONTINUANCE It having been reported to this Court that this action has been or will be settled, it is hereby ordered that this action be discontinued without costs to any party, and without prejudice to restoring the action to this Court's calendar if the application to restore the action is made within thirty (30) days of the date of this Order. The Clerk of Court is directed to terminate all motions pending as of this date and mark this case closed. SO ORDERED. (Signed by Judge William H. Pauley, III on 9/3/2010) (jmi) (Entered: 09/07/2010)
87 STIPULATION AND ORDER OF SETTLEMENT WITH RESPECT TO VICTIM−SPECIFIC RELIEF. IT IS STIPULATED, AGREED AND ORDERED that: In full and complete satisfaction of the claims of the United States in this action for victim specific relief on behalf of the Claimants, the Defendants shall offer the following backpay relief: A monetary award of two hundred fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Helen Jackson; A monetary award of two hundred fifty thousand dollars ($250,000),

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subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Joann Rush; A monetary award of two hundred and fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Luzia M. Oliskovicz; and A monetary award of two hundred and fifty thousand dollars ($250,000), subject to the applicable deductions for federal, state and local withholding taxes on the monetary award as required by law, to Efrosini Katanakis, and as further set forth in said order. The United States and the Defendants shall bear their own costs and fees in this action, except that the parties shall retain the right to seek costs and fees for any matter which, in the future, may arise from this Agreement or from the Compliance Injunction and require resolution by the Court. (Signed by Judge William H. Pauley, III on 9/30/10) (rjm) (Entered: 09/30/2010)
88 ENDORSED LETTER addressed to Judge William H. Pauley, III, from Bruce Rosenbaum dated 10/6/2010 re: Defendants request that the Court approve the enclosed proposed Notice of Fair Hearing, Instructions for Filing and Objection Prior to the Fairness Hearing, and a form Objection to the Entry of Injunction of Remedial Relied so that they can timely comply with the Court's Order by 10/8/2010. ENDORSEMENT: The Court approves the proposed Notice, Instructions, and form Objections. So Ordered. (Signed by Judge William H. Pauley, III on 10/6/2010) (jfe) Modified on 10/28/2010 (jfe). (Entered: 10/08/2010)
89 MANDATE of USCA (Certified Copy) as to 81 Notice of Appeal filed by New York City Department of Transportation, City of New York USCA Case Number 10−2627....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/19/2010. (nd) (Entered: 10/20/2010)
Transmission of USCA Mandate/Order to the District Judge re: 89 USCA Mandate,. (nd) (Entered: 10/20/2010)
90 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010. Document filed by City of New York, New York City Department of Transportation. (Attachments: # 1 Affidavit Declaration of William F. Kimowicz)(Rosenbaum, Bruce) Modified on 10/21/2010 (KA). (Entered: 10/20/2010)
91 MEMORANDUM OF LAW in Support re: 90 MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010. MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 10/20/2010)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Bruce Rosenbaum to RE−FILE Document 90 MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010. MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010. ERROR(S): Filing Error of Attachment#1. Supporting Declaration must be filed individually. Use event code Declaration(non−motion) located under Other Answers. (KA) (Entered: 10/21/2010)
92 DECLARATION of William F. Klimowicz in Support re: 90 MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010. MOTION Pursuant to FRCP 60(b) Seeking Modification nunc pro tunc of the Compliance Injunction issued by the Court on May 28, 2010.. Document filed by City of New York, New York City Department of Transportation. (Rosenbaum, Bruce) (Entered: 10/21/2010)
93 PRE−CONFERENCE STATEMENT submitting the objections. Document filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Yu, Li) (Entered: 12/01/2010)

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94 FINAL ORDER ADOPTING THE COMPLIANCE INJUNCTION, that: 1. For the reasons stated on the record at the December 3, 2010 hearing, the terms of the Compliance Injunction are fair, reasonable, and lawful. 2. Pursuant to 42 U.S.C. § 2000e−2(n), the terms of the Compliance Injunction are entered as a final order of the Court. (Signed by Judge William H. Pauley, III on 12/7/2010) (lnl) (Entered: 12/08/2010)
95 TRANSCRIPT of proceedings held on 12/3/10, 11:45 a.m. before Judge William H. Pauley, III. (rjm) (Entered: 01/10/2011)